*1 Plaintiff-Respondent, Wisconsin, State
v. Defendant-Appellant. A. Alan Randall, Supreme Court 10, argument Oral November 93-0219-CR. No. 10, 1995. May 1994. Decided 94.) (Alsoreported in 532 N.W.2d *5 by defendant-appellant were briefs there For the Society Legal Milwaukee, A. send. Aid James Walrath Inc., argument by A. James and oral Milwaukee Walrath. argued plaintiff-respondent the cause was
For the attorney general, Sally Wellman, with assistant L. Doyle, attorney on James E. the brief was whom general. Kotecki and
Amicus curiae brief was filed Karen Radtke, S.C., for the American Kotecki & Milwaukee *6 Liberties Union of Wisconsin Foundation Civil Wisconsin Coalition for Advocacy. This
HEFFERNAN, CHIEF JUSTICE. case of the acceptance by before the court on certification (Rule) 809.61, court of to sec. Stats. appeals, pursuant defendant, (Randall), The Alan A. Randall appeals 1993, the circuit court for January 15, from a order of Wimmer, Circuit County, Joseph Judge, Waukesha E. constitutionality his motions the denying challenging (1987-88).1 not 971.17(2), Stats., of sec. The state did the certification. oppose
The certified the court of single question is: appeals
(1) scheme, Does the statutory Wisconsin which the insanity allows state confine an who acquittee2 ill, is no on the that the longer mentally solely grounds himself, others, individual is a herself or danger the Process of violate Due Clause the United States Constitution. not
We hold that it is a denial of due for an process who has committed a criminal act to acquittee in a confined state mental health for so facility long 1 parties agree review, purposes for the of this statutes, apply Wisconsin Revised 1987-88 to the instant case. "insanity acquittee" "acquittee" use the We terms interchangeably throughout opinion this to refer to an individ ual who has been tried and convicted of a criminal offense and subsequently responsibility excused from for the criminal act as having successfully proved jury by stipulation a result of to a state, with the that he or she suffered from a mental disease or defect at the time of the offense. dangerous, provided he or she is considered
as not the maximum term does exceed imposed could have been imprisonment that an insanity We think fact charged. offense beyond been shown reasonable already has dangerous at least one act to have committed doubt legislature forth set justifies disposition Furthermore, our we believe that 971.17(2), Stats. with the recent United here is inconsistent decision Louisiana, decision, v. Court Foucha Supreme States (1992). below, in detail we explain S.Ct. 1780 As we continued confinement Foucha to permit read in a mental health facil- acquittees but sane dangerous in a manner consistent are treated long they so as ity, commitment, e.g., there their purposes with *7 a holding to continue justification be a medical must in a mental insanity acquittee dangerous sane but facility. health a has that the state of Wisconsin
We recognize
the
in protecting
interest
compelling
legitimate
are a
those individuals
continu-
community from
who
It is
to themselves.
society
apparent
threat
to
ing
has
that
scheme,
legislature
statutory
from
drawn
the inference of dangerousness
determined
insanity contin-
reason of
guilty by
from a verdict of
See Foucha
of
finding
sanity.
even after a clinical
ues,
(1992).
Louisiana,
vides insanity acquit- facility following mental health a scheme, the statutory acquittee, tal. Under Wisconsin's spe- to treatment committed, subject programs is once and behavioral to treat both mental cifically designed those behav- reduce designed disorders. Treatment dangerous render the individual ioral disorders which signs continue even after clinical of mental illness longer apparent. necessary no are Such treatment is goal safely returning acquit- realize the ultimate community. tee into the Because this state's mental provide comprehensive health facilities such treatment punitive we cannot conclude that it is to continue an acquittee's dangerousness confinement based on alone. Rather, we conclude that there is a reasonable relation- ship purposes between the commitment and the which the insanity acquittees and, therefore, individual committed
are treated a manner consistent purposes with the of their commitment. We therefore affirm the decision circuit court and remand the hearing cause for further in accordance with this decision. statutory
Furthermore, unlike the Louisiana supra, inFoucha, scheme held unconstitutional we find provides procedu- that the Wisconsin scheme sufficient safeguards acquittee's right ral to insure an to due process. statutory Under the Louisiana scheme, an insanity acquittee could be held a mental institution for an indefinite and unlimited duration until prove, by preponderance could of the evi- longer dangerous.3 dence, that he or she was no Under procedure, the Wisconsin the state, rather than the acquittee, prove by bears the burden to clear and con- vincing evidence that the commitment should continue presently danger because the individual is himself, herself or Moreover, others. is not *8 imposed period for an indefinite of time. Section (1987-88) 971.17(4), provides Stats., that the commit- may ment not exceed the maximum term of imprisonment imposed which could have been for the
3LA. CODE CRIM. PROC. ANN. arts. 558.1 & 654-657 (West 1993).
808 of Once the maximum the period charged.4 offenses has imposed elapsed, which could have been sentence of the discharge insanity must order the court the state's to commence civil right to acquittee subject 51. Id. under ch. proceedings history and of this case are The facts procedural A. Defendant, Randall, Alan was dispute. not in mur- first-degree with three counts of charged and counts of der, burglary, counts of two seven a the owner's consent. motor vehicle without operating of incident of these arose out an charges Several killed officers and police Randall shot and two which a car to commit burglary. used their squad a of not guilty entered Initially, plea Randall all counts. reason of to twelve guilty insanity not counsel, of Ran- Later, by agreement stipulation not reason of guilty his of plea dall withdrew counts of burglary. four insanity with a guilty plea a result of of joining plea As Ran- eight counts, of not reason guilty by (1987-88) 971.165, Stats., dall was subject proceeding. is a which trial bifurcated provides or of the defen- In first innocence guilt phase at this is phase determined. The burden proof dant is all offense on state to the elements prove If verdict guilty a reasonable doubt. beyond charged, of the trial is returned, at the second phase the issue responsibil- be relieved of whether the defendant from suffered act because he she ity for criminal time of the offense. or defect at the a mental disease as or defect set finding mental disease standard Stats., 971.15(1), provides: forth in sec. revised, acquittee's limits the presently The statute as sentence
confinement to two-thirds maximum (1991-92). 971.17(1), Stats., imposed. Section could have been *9 person A is not responsible for criminal if conduct at the time of such conduct as a result of mental dis- ease or defect he lacked capacity substantial either the appreciate wrongfulness of his conduct or requirements conform his conduct to the of law. 971.15(3) Section provides "[m]ental disease or defect excluding is an responsibility affirmative defense which the defendant must establish to a rea- sonable certainty by greater weight of credible evidence." According 971.165(2), if the plea not guilty by reason of mental disease or defect is tried to a jury, verdict is not valid unless least five sixths of the jurors agree.
At trial, the first of the phase found Ran- jury dall guilty two counts of first degree murder, four counts of and one burglary count of operating a motor vehicle without the owner's consent. The found jury Randall not of one count of guilty murder, first degree two counts one burglary and count of operating motor vehicle without the owner's consent.5 guilt The trial court phase origi record of the of Randall's nal trial and the proceedings following guilt phase have been asserted, lost. The state has and Randall has not challenged assertion, convicted, phase one, by that he was person jury. asserted, twelve The state has also and Randall challenged, has not phase that the second of the trial was obvi ated stipulated because the state plea guilty to Randall's of not by reasons of mental disease or defect. This is confirmed in a 1,1988, letter dated June original from the Judge, trial William Callow, Bolek, ACSW, G. to James Winnebago Mental Health appended Institute. The letter is as an Judge exhibit to Wim- mer's Decision and Order January 15, dated 1993. The letter provides in part: relevant trial, upon stipulation
At the conclusion of the on the record con- cerning disease, his mental counsel for the state acceded to the trial, state phase In lieu of the second *10 whereby record it on the stipulation into entered reason of mental guilty by Randall was not that agreed murder, of first-degree of two counts disease or defect one of of count burglary operating one count As a result of stipu- motor vehicle without consent. to Central State was committed lation Randall 971.17(1), to sec. charges, pursuant on four Hospital "When a defendant Stats., (1987-88), which provides: mental disease or reason of guilty is found to him to committed defect, the court shall order be to in an institution appropriate be department placed as discharged and treatment until custody, for care in this section." provided of for burglary
As four counts remaining he was sentenced on guilty, Randall was found in the Wauke- days to a term of one thousand one count satisfied his which had been County sha Jail 1975 to December 1977. January incarceration from counts, three he was sentenced On the remaining prison, of ten state years three concurrent terms with the provision were stayed which sentences three, for concur- on probation the defendant be placed until the stayed rent ten terms. was year probation suffering Mr. from a defense's contention that Randall was schizophrenia. diagnosed paranoid illness as stipulation, portion By the second virtue above-mentioned avoided, escaped Randall the burden was and Alan trial accepted stipulation, proving the state this mental illness. Because being escaped possibility the state committed to Randall prison he committed and for two murders for two life terms Had sentenced to two time for his other crimes. he been substantial terms, appropriate would have life terms and other he consecutive thirty-six years before he would have been had to serve least eligible parole. committing him to release from the order defendant's Following of commit- the initial order Central State. Winnebago ment, Randall was transferred to the presently Health Institute where he is Mental confined. years January more than fifteen after 11,1990,
On petitioned court, the circuit conviction, Randall his (1987-88) 971.17(2), pursuant Stats., to sec. for "Re- present of his mental condition.6 The examination" 971.17(2) (1987-88) pro- for release in sec. standard vides: court the defendant
[i]f the is satisfied safely discharged danger or released without *11 others, it order the himself or herself or shall discharge of the defendant or order his or her as court determines release on such conditions satisfied, If it necessary. to be it is not so shall custody recommit him or her to the of the department. hearing petition reexamination,
The on for held solely present dangerousness, to determine Randall's by jury. During days six-person four of Was heard police officers to the offenses Randall trial, testified committed in 1974 and Randall's confession 1975, was jury, psychiatric experts read to the and mental health to the and treat- testified defendant's condition 1977, ment since his commitment in and other history off-grounds witnesses testified to Randall's privileges purposes employment, attending for the
6 sought declaratory petition pursuant Randall's also relief 806.04, part petition to sec. Stats. That is not relevant to appeal. this
812 jury college pursuing The recreational activities.7 7 history off-grounds privileges from Winne Randall's petition, in his second titled "Verified Petition bago are set forth and for Declara and Release on Conditions for Re-Examination Relief,": 7,1991. in petition provides part: June tory filed (9) physicians, 1981, petitioner authorized Institute In was off-grounds engage supervised
psychologists and counselors educational, social, supervised participated in activities. Petitioner throughout communities northeast- and recreational activities in 17, February 1981 and ern Wisconsin on 39 occasions between December, spent more than 140 hours outside the 1981. Petitioner during grounds Institute these activities. (10) 1982, supervised, petitioner participated in off- In more throughout grounds on at least activities northeastern Wisconsin for than 250 hours. 64 different occasions more (11) supervised, 1983, petitioner participated In in more off- throughout grounds on least 50 different activities Wisconsin more than hours. occasions for (12) 1984, supervised, petitioner participated in off- In more throughout grounds on at least different activities Wisconsin for more than 424 hours. occasions (13) physicians, 1985, petitioner Institute In was authorized participate off-grounds activities psychologists and counselors sign-in sign-out basis. thereafter on Petitioner an individual educational, social, participated and recreational in numerous throughout on at least dif- activities northeastern Wisconsin during year. These activities included ferent occasions college petitioner functioned under attendance at classes so than 800 hours. normal conditions outside the Institute more (14) off-grounds 1986, petitioner participation in In his continued *12 sign-out sign-in individual and basis. Petitioner activities on an throughout participated on at in numerous activities Wisconsin These activities included attendance least 200 different occasions. business, college steady employment so and at a local courses petitioner normal outside the functioned under conditions 1,300 for over hours. Institute continued off-grounds activities Randall's unescorted permitting through Winnebago's policy of 1989 the fall when privilege this ended.
813 May finding returned 25,1990, a unanimous verdict on custody Randall "should be recommitted to the Department appropriate of an Institution." Randall Winnebago. was returned to petition, 7, 1991, On June Randall filed a second this time for "Re-examination and Release on Condi- petition, tions." Unlike the first the second did not request jury trial. For reasons unrelated to this appeal, no immediate action was taken on Randall's petition. ultimately re-assigned second The case was County, Judge the Circuit Court of Waukesha Circuit Joseph E. Wimmer.8 January relying reports
On 10, 1992, on the 1991 court-appointed psychiatrists indicating that he was mentally seeking ill,9 Randall filed a motion initially assigned County, case was to Waukesha Cir Judge Roger Murphy. cuit P. prehearing In proceedings, Judge Murphy parties directed the testimony to summarize likely presented evidence hearing. at the second Those summaries indicated that there would be little new evidence presented. this, In view of requested because Randall had court, trial Judge Murphy thought to the difficult it would be him finding to make a contrary jury's to the verdict and there fore, signed he an Order of Disqualification, September 6,1991. September 19, 1991,
On Judge Chief Gempeler Mark S. Judge Murphy advised disqualification that his was insuffi- sought appellate cient. Randall Judge's review the Chief Ultimately, nonfinal order. disqualification the issue of was Judge Murphy mooted when rotated out of I Branch and his reassigned caseload Judge was pres- Wimmer. This case is ently in Judge Branch I before Wimmer. case, In the instant the state does not concede that Ran longer dall is mentally Judge no ill and Wimmer concluded in Decision, January 15, 1993, his dated there had been presented no evidence to the jury court or to a since 1977 that longer Randall mentally Nonetheless, is no testimony ill. *13 States, 463 U.S. v. United on Jones based release (1983). of Columbia statute a District upheld had Jones dangerousness illness and both requiring of an the continued for coexist Wimmer 22, 1992, Judge January On acquittee. court-appointed psychi- order requiring entered an reports file updated Randall and to re-examine atrists on Ran- hearing the court scheduled 1,1992; June 22, for June and the trial 5,1992 for June motion dall's 1992. Supreme States 1992, the United 18, May
On Louisiana, 1, On June supra. v. Foucha Court decided Sup- Discharge "Motion for filed a 1992, Randall that Foucha grounds on the Relief' plemental submit- parties release. The his immediate supported of whether court on issue the circuit ted briefs to was for re-commitment scheme statutory Wisconsin's 15,1993, On January Foucha. following constitutional Dismiss, Motion denied Randall's court the circuit for Discharge motion 7, 1992, and his January dated 1992. The 29, May dated Relief, and Supplemental (1) noAt findings: following on the was based decision found court or the 1977, jury had either since time dis- from mental suffered longer Randall no that Alan (2) at issue Louisiana statute illness; ease used the procedure from distinguishable Foucha is (3) (1987-88); Stats., 971.17(2), under sec. Wisconsin either (1987-88), not violate Stats., does 971.17(2), Clauses Protection Equal Process or the Due Constitu- the United States Amendment Fourteenth during closing jury reread to the psychiatrists court-appointed phy- hearing those indicates first release argument at Randall's Partial illness. See present mental no evidence of sicians found Re-examination, May 22 on Petition Transcript, Trial 25,1990,156-59. May through *14 (4) position on American Law Institute's
tion; and dangerousness. The ALI concluded: dangerous- ... to make
that, preferable [i]t seemed custody, rather for continued the criterion ness may be person that the committed provide than to sanity as restored to discharged or released when Although his hygiene mental laws. by the defined improved, an may greatly have disease mental may dangerous be because still (insanity acquittee) other background personality of factors his provides Also, such a standard mental disease. than defendant control of the occasional a means for the successfully may quite dangerous but who who be gain acquittal.10 an feigned mental disease Joseph Judge, Wimmer, E. Court Decision, Circuit See January appealed circuit court Randall 15, 1993. question appeals certified and the court decision to this court. legitimacy question court is not the before the whether commitment, but rather initial
of Randall's Winnebego Mental his continued dangerousness alone. based on Institute Health light argues Foucha, the state cannot that in Randall dangerous insanity a sane but continue to confine acquittee first, institution for two reasons: in a mental involving procedure "[a]ny an reexamination because finding acquittee dual as to the must involve a NGI dangerous- present acquittee's mental condition Appellant's and, second, because 21; at ness." See Brief reasonably of the confinement must be the nature dangerous acquittee purposes, to its a sane but related facility absent a medical held in a mental cannot be (1985). Code, 3,259-260 4.08, Penal Comment 10Model when the necessarily disappears justification, illness. recovers from the com- to continue right that its argues The state but who are sane acquittees mitment authority incapaci- the state's is based on dangerous of criminal adjudged guilty who have been tate those points doubt. The state a reasonable conduct, beyond on confinement, danger- based out that incapacitative view, recognized by with the ousness, comports court, insanity acquit- "that Court and this Supreme be treated class that should constitute a special tees candidates for commitment." from other differently Gebarski, 90 Wis. 2d Jones, State v. 370; 463 U.S. *15 (1979). For reasons we 672 754, 771-72, 280 N.W.2d with Randall's assertion below, disagree we explain a sane confining value to therapeutic there is no that mental to one of this state's acquittee dangerous but that the state although agree And we health facilities. have, reason felons who convicted incapacitate may responsi- been excused from their insanity acquittal, conduct, continued their criminal for bility alone. To be rest on that rationale may confinement confine- the continued constitutionally permissible, in a insanity acquittee but dangerous ment of a sane therapeutic must have some facility, health value. Supreme United States decisions of the
Earlier and the background the provide and this court Court history to the here. We turn first for our decision basis Court of in the Supreme confinement of post-acquittal the States. United
817 Post-Acquittal I. Confinement Supreme A. States Court United held that for Court has "commitment Supreme lib- significant deprivation constitutes any purpose process protection." Addington that due erty requires (1979). Texas, 418, Therefore, a state v. 441 U.S. for the adequate have constitutionally purpose must "a Donaldson, confinement." O'Connor v. 563, 422 U.S. (1975). civil The Court has also concluded that be treated may differently criminal committees constitute acquittees special class "insanity because treated from other candi- differently that should be States, Jones v. United dates commitment." (1983).11 354, 370 U.S. the most difference between
Perhaps significant of proof and criminal commitment is burden civil In commitment. civil required justify state is clear and required prove by proceedings, committee is men- convincing evidence a proposed This supra. dangerous. Addington, disabled and tally Addington burden, named for often referred to as first the decision that stated principle. States, United supra,
In Jones v. Supreme held Court state commit an insanity burden Addington without satisfying *16 to with mental illness and respect dangerous- proof As a insanity ness. an be consequence, a lesser of The lesser bur- proof. confined under burden den allows the to a prove insanity defendant
11 distinguish "special The term intended to class" is here persons pursuant involuntary those between committed civil insanity acquittees procedures committed insanity acquittal. pursuant to an
818 Jones, 463 U.S. at of the evidence. preponderance 368.12 for civil commitment was
The
standard
higher
in
concern
Addington,
because of
Court's
approved
on
be confined
could
public
that "members
be
might
per-
abnormal behavior which
basis of 'some
mental
or
some as
a
symptomatic
ceived by
in fact
a
disorder,
range
but which is
within
emotional
Jones, supra
that
is generally acceptable.'"
of conduct
Addington,
insanity
automatic
dangerousness
justify
illness and
Jones,
the defendant plea insanity the issue is tried or —whether acquittee may accepted successful be immedi- —the facility ately health without committed to a mental hearing present mental to determine his her further jus- The Court found automatic condition. "[t]he respect dangerousness, because, with to tified person beyond found, has been a reasonable fact that certainly indi- doubt, to have committed a criminal act dangerousness." illness, Id. at 364. As for mental cates say "Nor can we that it was unreasona- the Court held: Congress to determine that ble for supports continuing acquittal an inference of comports It with common sense to conclude illness. to whose mental illness was sufficient that someone likely to remain ill lead him to commit a criminal act is in need treatment." Id. at 366. that the dura- Moreover, Jones the Court held insanity acquittee's confinement exceed tion of an sentence, which, the maximum but for the defendant's plea insanity, imposed could have been for successful holding, underlying criminal In so conduct. purpose following that the of commitment Court noted insanity acquittal to treat the individ- an two-fold: protect the ual's mental illness and to individual society potential dangerousness. from his or her Id. at impossible predict long 368. "And because it is to how it any given to will take individual recover—or indeed Congress chosen, whether he ever will has as recover — respect it civil commitment, has with leave the length subject peri- indeterminate, of commitment patient's suitability odic for release." Id. review length Hence, the Court concluded that of an acquittee's potential imposes maximum sentence no acquit- constitutional limitation on the duration of the *18 "[t]he hospitalization Due Process Clause because tee's 'requires the and duration of commitment nature purpose for reasonable relation to the which bear some is committed.'" Id. the individual Supreme Court found the summarize, To the has constitutionally permissible: following civil and to be insanity acquittees may differently be treated criminal proof required regard of for the to the burden with following an initial commitment —commitment may preponderance insanity acquittal on a of be based evidence, in a civil commitment the state the whereas proof by clear convinc- must its burden establish following ing evidence; an automatic process; insanity acquittal not due does violate length com- for both civil criminal of commitment may for indefinite; be term commitment mittees acquittee may length of the an exceed acquittee could been sub- sentence the have maximum following imposed; jected and, a been to had sentence insanity acquittee, an commitment of the initial subsequent hearing proof at for reexamina- a burden acquittee. by the be borne tion and release Acquittal In Confinement Wisconsin B. Post many has of the same issues. considered This court regard civil and crimi- to the distinction between With we nal committees stated: convicted, been that one who has
[I]t does follow reexamination, must confined, applies and then by one by judged the same standard under the stat- civilly judged committed merely to have who has been found ... utes. One this of criminal acts that perpetrated type a to have by jury was found committed defendant slightest which there is not the doubt and about position in the same as argument, does not stand mentally poten- ill and as a who is committed as one dangerousness to himself or others. The danger tial shooting has been day on the of this defendant question to be decided demonstrated and amply jury on re- sitting or a court without a jury legisla- the standard set forth examination is danger presently in the statutes: Is he ture himself or others. Gebarski, v. 771-72, 280 N.W.2d
State 754, 90 Wis. 2d (1979). Gebarski, Jones, In State v. before we held decided law, hearing at a recommitment that under Wisconsin *19 that the defendant only "the state is required prove Gebarski, to himself or others." danger is of presently that, at 757. We concluded "our statutes 90 Wis. 2d as the dangerousness set the standard very properly for release or further care by eligibility criteria which to be determined." Id. at 773. Accord- and treatment is of either due infringement process we found "no ingly, in the set procedures of the laws equal protection 971.17(2)....'"Id. by forth Court's by reasoning
Guided the Supreme Jones, commit we the automatic subsequently upheld Field, Stats. State v. 971.17(1), in sec. ment provision (1984). 365 269, Further, 118 Wis. 2d 347 N.W.2d with to recommitment the burden of regard proceedings, dangerous at the is on the state to proof hearing prove Mahone, State v. ness, 364, 379 127 Wis. 2d N.W.2d 878 (Ct. 1985); recommitment, and App. dangerousness, State evidence, must be clear and proven by convincing (Ct. Gladney, v. 486, 2d 547 App. Wis. N.W.2d 1984). commit- for Wisconsin's authority
The primary A successful statutory. ment scheme or Winne- either Mendota is committed acquittee 51.37(3) institute, to secs. pursuant health bago been (1987-88), having after first Stats., 971.17(1), second, after hav- conduct, and criminal guilty found a mental from he or she suffered that ing proved thereby the conduct the time of or defect at disease Sec- criminal responsibility. from excusing person 971.15(1). tion is entitled to petition
Thereafter, for reexamination intervals court at regular (1987-88) Stats., provides 971.17(2), Section release. of a crime following acquittal committed person examined as insanity may periodically reason of the examina- 51.20(16)(g), except in sec. provided court. committing before tion shall be in sec. prescribed are for reexamination standards (13) (10) to "[s]ubsections provides, (16)(g), 51.20 in the conduct to be used the procedure govern shall (10) pro- Subsection applicable." insofar as hearing, not be which shall of six people, trial by jury vides for a the jurors. least five of at unless agreed valid (16)(i) reexami- [subsequent that" provides Subsection in the discretion time any be had nations *20 days pre- 120 after compelled but be court for petitions . . all [and] . examination ceding of their 30 days heard within must be reexamination 51.20(13)(e) provides court." Section receipt by all of proving has the burden petitioner13 "[t]he evidence." convincing clear and by facts required 13 (13)(e), is the state. sub. purposes for the "Petitioner" 1984). (Ct. App. Gladney, 486, 492-93 v. 2d State 120 Wis.
823 held constitutional of the procedures In light stat- that Wisconsin's Court, we conclude Supreme with more insanity acquittee an provides scheme utory his or to insure safeguards sufficient procedural than process. her due right of sec. portion now to the substantive
We turn the contin- Stats., (1987-88), permits 971.17(2), but "dangerous" of a sane ued confinement acquittee. is a question of a statute constitutionality Borrell, 167 Wis. State v. review de novo.
law which we (1992). acts are presumed All 749, legislative 762 2d must constitutional, and every presumption State ex rel. Hammermill the law. sustain indulged Plante, 205 N.W.2d v. La 32, 47, 58 2d Co. Wis. Paper (1973). resolved in it must be "If doubt exists any 784 Id. of a statute." constitutionality (quoting favor of the Giessel, 564, 61 v. 558, 265 Wis. State ex rel. Thomson (1953)). of establishing The burden 903 N.W.2d on the attack- person of a statute is unconstitutionality 352, 2d Defendant, State v. Unnamed 150 Wis. ing it. (1989). is In this case the burden 696 365, N.W.2d on Randall. Stats., 971.17(2), here,
The assertion
(1987-88)
unconstitutional,
Supreme
is
on two
based
States,
v. United
Court decisions: Jones
463 U.S.
(1992).
Louisiana,
II. Jones In Jones defendant, shoplift- was arrested a maximum prison a misdemeanor ing, punishable incom- Jones was found Initially, sentence of one year. *21 public hospital to a trial and committed to stand petent later, psy- a hospital months ill. Six mentally the was Jones the court chologist reported not Thereafter, Jones pleaded trial. to stand competent not did government the insanity; reason guilty of facts into a stipulation entered and plea the contest Court found the Superior Subsequently, Jones. with committed and insanity reason of not guilty Jones 24-40l(d)(l).14 to sec. pursuant Elizabeth's him to St. 24-301(d)(l) provides: 14District of Columbia information for an upon or any person an indictment If tried solely insanity acquitted on the and is raises the defense offense commission, he shall be its ground at the time of that he was insane is mentally such time as he hospital ill until for the to a committed (e) of or subsection pursuant to this subsection eligible for release section. this only permissi- provision, automatic
Under this the defense. raised if the defendant ble 24-301(e) provides: Section mentally hospital any in a for the person been confined has Where (d) section, superinten- the of this pursuant to subsection ill (1) person has recovered hospital That such certifies: dent of such (2) superintendent, that, opinion such sanity; of the in the his dangerous himself or person reasonable future be will not in the (3) person is superintendent, the others; opinion hospital, and such from the release entitled to his unconditional person in which the clerk of the court is filed with the certificate to authorize be sufficient such certificate shall tried . . . was person . . . but release of the unconditional court to order or objection States may, upon ofthe United court in its discretion notice, hearing shall, hold a after due of Columbia the District person so confined condition the as to the mental which evidence and, weigh evidence ... The court shall be submitted sanity person recovered his has finds that such if the court dangerous him- reasonable future be and will person others, such shall order the court self or to in said unconditionally confinement released from further find, such court shall order hospital. does not so If the court hospital... person said returned to *22 statutory of Columbia's the District Under days within 50 hearing a entitled to Jones was scheme, for his eligibility to determine commitment of his has burden hearing, At the release. that he or she of the evidence a prove by preponderance longer danger- ill or no longer mentally either no who scheme, insanity acquittee an this ous.15 Under must be mentally ill, longer or is no that he she proves from hearing, psychologist At the 50-day released.16 to suffer Jones continued testified that Elizabeth's St. illness, he of his and that because schizophrenia from As a and to others. to himself danger to be a continued to the hospital. Jones was returned result, his denying the decision appealed Jones Although he that findings contest the court's release, he did not did he argue ill Nor dangerous. and mentally was release, dangerous- illness for the standard Emphasis added. 24r-301(d)(2) specify does
15Although D.C. statute sec.
release,
States Court
determining
the United
for
the standard
held,
in Jones
Circuit
Appeals for the District
Columbia
pursuant
to sec.
law,
proceedings
release
under state
24-301(e)
21-545(b),
either
committee must show
mentally
longer dangerous.
longer
ill or no
is no
that he or she
364, 372,
n.16
Jones,
n.3, citing
432 A.2d
ness, was that it was not "asked to acknowledged Court Supreme the District's release are procedures decide whether Id. constitutional."17 Field, 277, court noted in State v. 118 Wis. 2d at As this argued process [in Jones] due that he was denied
The defendant judgment guilty of not reason of did not because the finding present dangerousness, mental illness and constitute a only by preponderance established and because it was defendant therefore asserted that his commitment evidence... The governed by of Columbia's civil- should have been the District procedures, under which an individual could be com- convincing government upon proof clear and that the mitted *23 mentally likely injure person or others. is ill and himself to argument, Supreme Court considered Based on Jones' (1) finding insanity at a criminal trial three issues: whether a of dangerousness sufficiently probative of mental illness and is (2) facility; justify psychiatric to a whether the commitment insanity acquittee pre- a commitment of an based on indefinite (3) unconstitutional; and whether ponderance of the evidence is insanity acquittee is entitled to release when his a committed hypothetical term. has exceeded his maximum confinement issue, upheld Court regard to the first and second With statutory permitting automatic commit- the District's scheme insanity proven by preponderance of the ment —when is Jones, at following acquittal. 463 U.S. an evidence— 367-68. issue, regard concluded that the to the third the Court With criminal imposed sentence could be for the maximum conduct, limit duration of impose did not a constitutional on the goal examined the of acquittee's hospitalization. The Court insanity and following acquittal by an reason of recovery retribution or that because rather than concluded commitment, provided the. rationale for continued deterrence sentence, society's reflect length potential of the "chosen to particular of a proper response to commission view offense," goal light In was not relevant to the of treatment. are not note issues raised important what
It sought appellate Petitioner has this case. findings in Superior Court's 1976 and review of the mentally dangerous, remained ill 1977 that he that and, indeed, not indicate since the record does hearing sought he has a release hear- ever —a every to which he was entitled six months. ing asked to decide whether the Dis- Nor are we As procedures for release are constitutional. trict's release above,... the basic standard for is the noted or commit- under either civil commitment same insanity: reason following acquittal by ment longer he is prove danger- individual must no mentally ill... ous this, find it curious that the outset
Id. In we light Court held that the stan- of the decision Foucha the confinement or release of an dard for continued dangerousness," "mental illness or insanity acquittee, in Jones. had been decided We turn now to Foucha. Foucha was with bur-
Terry charged aggravated of a firearm. he was illegal discharge Initially glary incompetent found to stand trial and committed to later, reported state four months doctors hospital; trial, Foucha was stand At doctors competent trial. testified that he unable to from distinguish was right *24 of and was insane the time the offense. Based wrong on was this trial court ruled that Foucha testimony, not of insanity pursuant reason La. Rev. guilty Ann. Stat. 14:14.18 § rationale, recovery only
this
the Court concluded that
is the
Jones,
precondition to
appropriate
release.
Four
after
Facility
superintendent
the East Feliciana Forensic
According
pretrial
to the
his release.
recommended
psychiatrists,
reports
court-appointed
examination
since
of mental
illness
had been no evidence
there
condi-
recommended Foucha's
The doctors
admission.
discharge.
hearing
release,
for
one of the
At the
tional
although
presently
Foucha was
that,
testified
doctors
he nonetheless suf-
illness,
from mental
in remission
personality,
a condition
antisocial
from an
fered
Foucha, 112 S.Ct. at
untreatable.
doctor conceded was
that he would
the doctor testified
Further,
1782.19
question,
wrong
right
to the conduct
with reference
responsibility.
exempt
from criminal
offender shall
con
Foucha,
right
it had the
argued that
In
the state
facility
even
Terry
to a
Foucha's commitment
tinue
mentally ill
fur
longer
he was no
though it conceded that
personality
only from an antisocial
ther,
he suffered
Foucha,
diagnosed as untreatable.
his doctors
disorder which
The factual distinction between Foucha, made no similar the state has important. Unlike case is sanity. opinion And this respect to Randall's concession with continuing process recognizes that the due basis expressly dangerous, is sane but of an who the commitment holding, justification. In so long medical so as there is a satisfied *25 would not [Foucha] comfortable in that certifying "feel Id. at 1783. other to himself or to danger people." be a court Foucha returned to the trial ordered Accordingly, institution. Court, a divided court20 Supreme On review to the scheme violated statutory concluded Louisiana's it permits because process equal protection due of an who is insanity acquittee indefinite commitment ill a mental and because hospital, no longer mentally contingent upon acquittee's ability it makes release no longer dangerous. Writing that he or she is prove Court, for the Justice White concluded Louisiana's First, on recommitment scheme failed three grounds.21 view Justice in her concur- expressed we follow the O'Connor undisputed by majority in that ring opinion; view left case. Justice O'Connor wrote: acquittees patients I not be confined mental absent think could as justification doing so; case, in the neces- some medical such sary purposes connection nature and of confinement between the then, relationship absent., there is
would be
because
reasonable
purposes
and the
for which the individ-
between
commitment
ual is committed.
Foucha,
failed here because the was indefi- *26 no the conceded that Foucha was longer because state ill, basis for him a mentally holding psychiatric the Foucha, S.Ct. 1784. facility disappeared, that civil proceed- Court concluded absent in a keep it was to Foucha mental ings, improper his will. Id. at 1785. institution against Second, no held an longer "if Foucha can be as in a he is entitled to insanity acquittee hospital, to establish the constitutionally adequate procedures Id. the Therefore, for his Court grounds confinement." Foucha entitled to release unless the concluded that is Id. him to a civil pursuant proceeding. state commits Third, the Court substantive due observed that action arbitrary government bars certain process used to procedures of the fairness "regardless (citations omitted). Id. at 1785 them." implement could convicted, was not he not Because Foucha the had interest Therefore, state no punished. punitive who had not person sane but detaining dangerous in Id. been found guilty. of the limitations emphasized
Justice O'Connor Foucha in her concurring opinion: however, emphasize to that the
I write separately, only specific statu- opinion Court's addresses us, broadly permits tory scheme before acquittees insanity indefinite confinement of sane release, of proof because the burden for was nite in duration and reasons, Id. at 1787. For these the Court held acquittee. on qualify exception limited the Due scheme did not as an Process Clause. Id. asked, case, in instant to decide whether
We are not Salerno, satisfy procedure for release would Wisconsin's declined, brief, argue that expressly its because state insanity similar, purposes for the of confine- an ment, pretrial to a detainee. require This case facilities. does psychiatric drawn narrowly on more laws pass judgment
us to insanity acquittees, of provide for detention that persons provide punishment on statutes mentally ill. commit crimes while who Court to hold Loui- I do not understand the dangerous never confine siana they regain mental health. acquittees after Foucha, 112 at 1789.22 S.Ct. open possi think O'Connor left door We Justice dangerous continuing but
bility the commitment a sane *27 hospital, facility, prison a a when acquittee to a other than or an might permissible "It be for Louisiana confine she wrote: acquittee regained sanity, has if unlike the situa insanity who case, of the detention in this the nature and duration tion pressing public safety concerns related were tailored reflect Foucha, continuing dangerousness." 112 S.Ct. acquittees to the at 1289. noted, accepted the idea of one commentator "O'Connor
As dangerousness solely on confining insanity an based taking merely took issue with the continued confinement insanity institution. intimates that place in a mental O'Connor facility 'dangerous person' in once acquittees could be held a mentally no found to ill." Rebecca Frank they longer are Dallet, THE FOUCHA LOUISIANA: DANGER OF COM v. DANGEROUSNESS, 44 Case W. Res. MITMENT BASED ON 1993). 157, 181 (Fall, L. Rev. Foucha, dissenting opinion his in Justice Thomas wrote:
In [s] no facilities the Court . believe the Due I have idea what . . sane-but-danger- Process Clause mandates the confinement insanity prisons May acquittees. Presumably do .... will not a ous designate wing prison of a institution or for sane state a mental acquittees? May insanity mix them other state with detainees? society's provides any nor our traditions Neither Constitution questions. answer to these Foucha, n.18. permit confine- the continued read Foucha
We dangerousness insanity acquittees based on ment of statutory Wisconsin's, scheme, such as alone under a rea- of the commitment bears some the nature where purposes for which relation to sonable individual is committed. legitimate purposes recognize of com- that the
We insanity acquittal by following an reason mitment to treat the individual's are two-fold: Wisconsin society protect from the individual and to illness dangerousness. acquittee's potential Unlike Louisi- insanity acquittee here has scheme, a successful ana's guilty beyond adjudged reasonable been engaging stipulation trial doubt —whether —of is entitled to a hear- conduct, he or she before criminal following insanity. ing an Commitment on part, premised acquittal defendant's crimi- on the is, in although acquittee, relieved A successful nal conduct. criminal con- for his or her sanctions of the criminal guilty. nonetheless duct, is provides guilt
It is the determination
*28
incapacitate
and treat
for the state to
basis
971.17(1),
provides
part
acquittee.
Stats.,
Section
defendant]
[the
to be com-
shall order
that "the court
placed
department
in an
to be
to the
mitted
custody,
appropriate
care and treatment
institution for
discharged
provided in this section."
as
until
purposes
Incapacitation
treatment and
for the
term which
limited to the maximum
rehabilitation,
imposed
conduct, does
for the criminal
have
could
been
impermissible form of
into an
not turn commitment
acquittee
as the state houses the
long
incarceration so
condition and
to his or her
facility appropriate
to over-
with care and treatment
provides
Foucha,
him or her dangerous.
come that which makes
Wisconsin 51.37(3). and Section Winnebago. tutions: Mendota provide housing appropri- Each is structured to facility individual Each has acquittee. ate to the needs of the medium (maximum, levels of confinement designated Mendota; minimum at medium and minimum and treatment special- Winnebago) providing appropriate defined in Treatment, broadly izations to all patients. Stats., "those educa- 51.01(17), as psychological, or tional, social, chemical, techniques medical somatic ill, of a mentally about rehabilitation designed bring alcoholic, disabled drug dependent developmentally ally is both and behavior person," therapeutically oriented. facil-
We are aware that Wisconsin's mental health offer comprehensive programs ities treatment danger- to reduce the for designed patient's propensity Treatment programs acquittees ousness. available Randall, include, to, such as but are not limited following: reducing physical aggression, decreasing explosive outbursts, basic social skills impulsivity emotional training, improving expression, taking actions, out," inhibiting "acting one's responsibility teaching forethought decreasing about consequences, intimidating hostile verbalization or provocative behaviors, and responses to improving authority.23 programs The treatment we refer to are available Randall, patients, including who are confined to medium or security Winnebago. minimum units at See Mendota Mental Institute, M.D.'s, Health Memo to Forensic Coordinators and *29 pur- are for the Moreover, acquittees "patients" statute, of Patient's sec. Rights Wisconsin's poses As have a to receive 51.61(1), such, they right Stats. "treatment," rehabilitation and adequate and prompt to their condition. appropriate educational services 51.61(l)(f). acquittee's And although insanity Section to confinement in the least do not have the right the pur- conditions achieve necessary restrictive commitment, to other of extended right their poses 51.61(l)(e), are committees, they regu- involuntary of both security, transferred between levels larly from less to from more to less restrictive and directions, Doren, Ph.D., 1993, 30, Dennis M. Forensic November from was ini- record indicates Randall Clinical Director. is security unit but that he now tially confined to a medium units Mendota. See of the least restrictive at housed one Re-examination, May Transcript, Trial on Petition Partial 105, Closing through 25, 1990, May Opening Statement at 22 Argument 150. Psychiatry points out that the Council
One commentator hospitalization of non-men- that the continued "recommended on the personality-disordered acquittees justified tally ill disorders grounds personality 'those who suffer from only in a management available special from the also benefit sensitive, comprehensive, unique institution where psychiatric developed often imaginative programs can treatment overcoming See them in their destructive behavior.'" assist Law, Psychiatric Associa- Psychiatry American Council Insanity tion, Report to Review Final the Sub-Committee (1988) Halpern, THE INSANITY {cited L. in Abraham Defense POST-ACQUITTAL PSYCHOPATH, VERDICT, THE AND 1993)). CONFINEMENT, April L. Rev. 1125 Pac. *30 course, As a matter of more restrictive environments.24 is transferred to a more restrictive before an acquittee due environment, process he or she is first afforded a hearing.25 the programs designed by
In addition to treatment transferred, with court state, may the acquittee from the approval county department, and approval community and of a custody county program the care 51.37(4), 51.437, sec. 51.42 or Stats. Section under 51.42(3)(aw)l, "a According county Stats. of community programs provide department case that Randall is The record in the instant indicates Gemini, presently housed in one of the least restrictive units at Winnebago.
Winnebago Mental Health Institute ASSESSMENT AND PROGRAM, IMPROVEMENT OUTLINE FOR GEMINI program as follows: describes 20-bed, 90-day inpatient pro- is a to six-month treatment Gemini gram [Winnebago on Mental Health housed a locked unit at WMHI Institute], accepts patients throughout from all counties Gemini population ranging The Gemini is coed in the state of Wisconsin. age from 18-50. diagnostic groups among patient population are Predominant disorder, control, schizophrenia, impulse of sub- affective disorders disorders, organic syndrome, psychotic stance-abuse brain specified. disorders not otherwise patients impairment occupational also Gemini show social and functioning respond community-based and have failed to treatment. 51.61(5), Stats., requires Department Section procedures
Health and Social Services to establish to ensure the protection patient/resident rights guaranteed Chapter under implement grievance procedure 51 and to to assure that the rights patient/residents protected are and enforced Accordingly, Department. procedure implemented such a was 1976, Department replaced revised in 1978 and on 1,1988 by Operations March Internal Memo 10.06. from mental suffering needs of persons program illness, not limited to mental disabilities, but including abuse, by or drug alcoholism disability, developmental services: following offering Precare, and rehabilitation and habil- aftercare
a. services;26 itation consultation; and
b. Professional informational educational services. Public c. *31 legisla- conclude that foregoing, From the we that the treatment programs ture has determined in Wiscon- to insanity acquittees made available the state administered whether regardless sin — or the phar- to the medical or not limited county —are statutory This state's patient. needs of the macological a structured environment provides scheme mental and behav- both the acquittee's seeks to treat ioral disorders. continue the extent insanity acquittee's
To Men- during treatment their confinement receive is treatment geared Winnebago dota or —whether illness or of mental reducing symptoms clinical dan- which render disabilities behavioral justification is sufficient medical find there gerous —we treatment. Accord- the confinement to continue (1987-88) 971.17(2), Stats., we hold that sec. ingly, we conclude there due because process does not violate between the nature relationship ais reasonable impaired assist an 26Habilitative services are those "which of Athans, In Matter community." live in the person's ability to 1982). (Ct. 336, App. 331, 2d 320 N.W.2d Wis. purposes for which the individual is committed. Hearing
III. for Reexamination imposed coupled Court restraints must be with a corresponding opportunity for care and treatment. appropriateness continuing Therefore, the the con- insanity acquittee depends upon finement of an justification whether or state has a medical only legitimate goal the commitment. The for confine- dangerousness ment based on is to reduce, to an acceptable danger level, the risk of which the individ- poses. goal ual To the extent that this is realized providing acquittee, treatment to the confinement at a facility following state mental health an acquittal medically justified and, such, as constitu- tionally permissible. making dangerousness,
In a determination on advantage expert testimony courts should take full presented by Although the state and the defendant. past significant conduct be a indicator of future *32 dangerousness rely behavior, evidence should not solely acquittee's past on the conduct. The factors the hearing court in consider a for reexamination to dangerousness determine 971.17(4)(d), are set forth in sec. (1993-94) provides part:
Stats., which in grant court shall the petition by unless it finds clear and convincing evidence person the pose significant would risk of bodily harm to him- self or herself or to others or of property serious damage if conditionally released. In making this determination, the may consider, court without lim- of enumeration the nature and itations because crime, person's mental his- of the the circumstances condition, where the and tory present live, will himself person support how the person will arrangements are available to herself, what has access and will take person to ensure that medication, arrangements what are and necessary beyond medication." for treatment possible 971.17(4)(d) not applies persons adjudicated Section or defect of mental disease by reasons guilty 1, On on 1991. January committed or after offenses statute, remand, apply bound although of the ought cognizant legislative approval court to be in the statute. appear to the principles given of dangerousness The ultimate determination interest in pro- balancing society's careful requires acquittee's against conduct tection from harmful autonomy. liberty Humphrey personal interest (1972). 504, We think circuit 405 U.S. Cady, v. guided balancing are of this state properly courts factors statutory pro- interests competing these 971.17(4)(d), Stats. in sec. legislature, vided
IV. Conclusion that Justice We conclude with the observation to statutes such as gave provisional approval O'Connor duration of which "limit the maximum Wisconsin's the acquittee's specific to reflect criminal in facilities acquittees appropriate crimes hold Foucha, 112 at 1790. their mental condition." S.Ct. to the revised Justice O'Connor referred Although 1991) 971.17(1), (3)(c), Stats., (Supp. of sec. version found essen- those law she aspects *33 limiting the maximum duration of the criminal tial — commitment and holding acquittee facility the in a appropriate to his her mental condition —are also present statutory applied in the scheme to Randall.27
We conclude that Jones and Foucha are not incon- sistent. An indefinite term of commitment, as was upheld permissible Jones, in when a dual standard present, e.g., acquittee for release is that the must be 971.17(4), Stats., 27Under the 1987-88 version the may the longer duration of no than the maxi period mum for which a imprisoned defendant could have been charged. version, if convicted of the offense Under the 1991 the duration of the commitment not exceed two-thirds of the prison maximum term imposed. that could have been Section (1991-92). 971.17(1), Stats.,
The older regard and newer versions are identical with placing facility appropriate par- in a to his or her ticular needs: (1987-88) 971.17(1), Stats., provides part:
Section in guilty by When a defendant is found not reason of mental disease or defect, department the court shall order him to be committed to the placed appropriate custody, to be in an institution care and discharged provided treatment until as in this section. (1991-92) 971.17(3)(c), Stats., provides Section part: specifies care, department If the court order institutional place person health and social services shall in an institution (3) department appropriate under s. 51.37 considers light required by person of the rehabilitative services and the protection public safety. dangerousness; Both versions condition release on the 1991 law, additionally persons forecloses release to pose signif- who property icant risk of damage. 971.17(3), (4)(d), serious Section (1991-92). Stats., version, Under legislature the revised has eliminated right jury hearing to a trial recommitment. at the on (1991-92). 971.17(4)(d), Stats., Section *34 no ill is either longer mentally he or she released when A standard for recom- single no longer dangerous. or alone, is mitment, permissible on dangerousness based (1) criteria are met: the maxi- all the following when is limited to reflect mum of the commitment duration (2) crimes; proof the burden the acquittee's specific for recommitment release is borne at the hearing (3) state; facility is confined in to his or her mental condition. appropriate scheme statutory that Wisconsin's We conclude therefore, it constitu- criteria and that is satisfies these tionally permissible. the Court. —The decision of the circuit court is
By the cause remanded. affirmed and is I (concurring). ABRAHAMSON, J. SHIRLEY S. this case should majority that agree with court. remanded to circuit the constitution- asks the court uphold state (1987-88). to the Stats., According 971.17, of sec.
ality guilty by a defendant found not state, under sec. 971.17 from does suffer illness, of mental who later reason in a mental institution illness, be confined may mental evidence convincing clear and proof by the state's upon confinement dangerous; the acquittee acquit- the maximum which the period continue for under the criminal law. tee have been sentenced could in a confining an acquittee argues The defendant upon dangerousness solely proof institution alone is unconstitutional. neither the state's
The majority opinion accepts Instead sec. 971.17. position about nor the defendant's ill- that either "mental concludes majority opinion which render disabilities ness or behavioral acquittee dangerous" must exist before confinement Majority op. majority can be continued.1 at 837. The disability concludes that a mental illness or behavioral provide justification" must exist to uing "medical for contin- dangerous acquittee the confinement of a under majority op. 971.17, 837, at and further that the committing facility circuit court must find that the can provide appropriate acquittee's treatment to the Majority op. 837, needs.2 841. *35 (1987-88), 971.17,
Section Stats., is silent about relationship the illness, of mental behavioral disabil ity, justification, medical or treatment to the continued acquittee dangerousness. confinement of an based on majority opinion appears graft require The these 971.17, ments onto sec. because it concludes that such interpretation an of the statute is needed to render it majority appropriately heeding constitutional. The is teaching process requires of Foucha: "Due that the nature of commitment bear some reasonable relation to purpose the for which the individual is committed." (1992). Louisiana, Foucha v. 1780, 1785 112 S. Ct. join majority opinion, I cannot however, majority's interpretation because I conclude that the 1 phrases The "behavioral disorder" and "behavioral disa bility" are not used either the civil or criminal commitment majority apparently statutes. The considers dangerous that by ness is underlying caused an disability behavioral disorder, the majority gives but no reasoning. basis for this majority The further concludes that Wisconsin's mental health designed facilities are to treat "mental and behavioral disorders" that can acquittee dangerous. render an Majority op. 833-834,837. at The majority cites no authority suggesting a behavioral disorder is treatable or that the "treatments" listed by majority do in fact address behavioral disorders. The parties did not brief these issues. As the teaching another Foucha. 971.17 violates the notion that rejected Foucha explains,
state's brief
in a
an
institu-
acquittee
confine
the state could
is not mental
of a condition which
tion on the basis
insanity
commit-
illness,
justified
not have
would
of that commitment
and
not the basis
ment
was
(an
con-
disorder"
important
a "behavioral
trial. Thus
undefined)
but
majority
in the
opinion
cept
may be
acquittee dangerous
analogous
renders
Foucha,
condition
personality
antisocial
on
or defect
to the level of a mental
illness
did not rise
commitment could
based.
which an
decision
that Foucha is a troublesome
I recognize
courts
conflicting interpretations
subject
to avoid
majority struggles
and commentators.
Foucha,
as
illness
that mental
conclusion mandated
to con-
necessary grounds
are
well as dangerousness
If I
majority
opinion
confinement.
read the
tinue
continue
confine an acquittee
the state can
correctly,
disordered
behaviorally
ill but is
mentally
who is not
but
if
the acquittee,
the state can treat
dangerous
mentally
who
release an
the state must
*36
3The
brief reads as follows:
State's
rejected the notion that the state could
The Court in Foucha also
newly
of a
in mental
institution on the basis
confine Foucha
(antisocial
diagnosed
personality), which the state con-
condition
apparently could not have
is not a mental illness and which
ceded
justified
of that
commitment and was
the basis
simply
place
had
because the condition
the first
in the mental
institution
been evidenced
conduct
dangerous to himself or others.
demonstrated Foucha
Foucha,
case,
in the instant
ill but institution.4 majority opin- from the
I am unable to determine I court should do on remand. the circuit ion what the circuit court should deter- conclude that on remand dangerous mentally ill or Randall is mine whether both. forth, I concur in the mandate. reasons set
For the confine constitutionally permissible, continued "To be insanity acquittee in a mental dangerous ment of a sane but therapeutic Majority op. facility, have some value." health must at 817.