Lead Opinion
OPINION
At issue on appeal is the constitutionality of New Mexico’s Mental Illness and Competency Code, NMSA1978, §§ 31-9-1 to -1.5 (Cum.Supp.1995) (hereinafter “the NMMIC”), which provides the procedure to be followed in cases where a criminal defendant is incompetent to stand trial. ■ Appellants, Christopher Rotherham, Lucille Epperson, Richard Lopez, and Charles Lucas, are criminal defendants who are incompetent to stand trial. On appeal, they contend that the NMMIC is unconstitutional. Appellant, the State of New Mexico, appealing the dismissal of criminal commitment proceedings under Section 31-9-1.5 of the NMMIC against Joe Martinez (a/k/a Primitivo Ortega), also an incompetent criminal defendant, contends that the NMMIC is constitutional. We address the following issues: (1) whether the NMMIC deprives an incompetent criminal defendant of equal protection under the law; (2) whether the NMMIC deprives an incompetent defendant of substantive due process; and (3) whether the NMMIC deprives an incompetent criminal defendant of procedural due process. All five Appellants present identical constitutional issues, thus we deem their respective appeals proper for consolidation.
I.
A.
On June 13, 1989, Christopher Rotherham was indicted on charges of first-degree murder, second-degree murder, or manslaughter. The district court found Rotherham to be incompetent to stand trial on the charges and committed him to the Las Vegas Medical Center-Forensic Treatment Unit (“the LVMC-FTU”) for treatment to attain competency to stand trial. The court ordered the hospital to file a report within 30 days assessing, among other items, the specific cause , of Rotherham’s disability and amenability to treatment to competency. The court set a hearing for September 18, 1989, to review Rotherham’s competency. Over the next three years, the LVMC-FTU staff sent reports indicating that Rotherham was not competent to stand trial. On January 27, 1992, the LVMC-FTU staff indicated that he was not likely to attain competency to stand trial within a year. On April 27, 1992, the State filed a motion to determine Rotherham’s competency and dangerousness. At the hearing on the motion held on August 3, 1992, the State and counsel for Rotherham agreed that he was incompetent to stand trial. The court heard expert testimony that it was unlikely Rotherham would become competent to stand trial. The expert further testified that if Rotherham were allowed to live independently without treatment and without a staff to administer his medication, he would likely cause great bodily harm to himself or to other people. A hospital staff psychiatrist who treated Rotherham testified that he observed Rotherham exhibit behavior that was “very close to physical violence.”
On August 7, 1992, the court entered an order, finding beyond a reasonable doubt that Rotherham was dangerous and that, if released, he would pose a danger to himself or the community.
On August 18, 1993, the State filed a motion to pursue criminal commitment pursuant to Section 31-9-1.4(A) and Section 31-9-1.5 and, on April 6,1994, the district court granted that motion. Rotherham appealed to this Court before the district court proceeded under Section 31-9-1.5.
B.
On December 19,1989, Richard Lopez was indicted on charges of depraved-mind murder, second-degree murder, manslaughter, felony murder, and arson. On February 8, 1990, the district court found Lopez to be incompetent to stand trial and committed him to the care and custody of the Health and Environment Department for treatment to attain competency to stand trial. The court ordered the Health Departmént to submit a report to the court within 30 days assessing, among other items, the cause and nature of Lopez’s disability and his amenability to treatment to attain competency. The court also ordered that a hearing be held May 10, 1990, to review Lopez’s competency to stand trial. The Health Department designated the LVMC-FTU to provide appropriate evaluation and treatment.
On November 5, 1990, the district court determined that Lopez remained incompetent to stand trial and that there was no substantial probability that he would become competent within one year. The court further determined by a preponderance of the evidence that Lopez committed first-degree depraved-mind murder and that he was dangerous. The court reserved a ruling on the sufficiency of the evidence on the remaining counts. The court also ordered that Lopez remain committed at the LVMC-FTU. In March 1991, 1992, and 1993, the hospital provided the district court with written annual updates on Lopez’s status. In each update, the hospital reported that Lopez was making essentially no progress toward competency to stand trial and was not likely to attain such status in the foreseeable future. On February 22, 1994, Lopez filed a motion for writ of habeas corpus and to dismiss the criminal cause against him, arguing that he had been held in pretrial detainment longer than a reasonable amount of time, that his confinement was not in accord with the least drastic means principle, that his confinement constituted cruel and unusual punishment, and that his substantive due process rights were violated.
On October 3, 1994, the district court found that, although Lopez had made substantial progress toward competency to stand trial and there was a substantial probability he would obtain competency in the foreseeable future, he had not yet attained competency. The court also found that he had been confined for a reasonable amount of time, especially considering the seriousness of the charges against him, his disabilities, his history of substance abuse, and his dangerousness. The court also found that he was not entitled to the protection afforded, under the civil commitment statutes. To the extent that the court found the least drastic means standard applied, the court determined that Lopez’s treatment and confinement satisfied that standard. The court also found that Lopez was not denied equal protection of the law solely because of his pending criminal charges and incompetence, and that the conditions of his confinement did not violate his substantive due process rights to treatment and liberty under the United States or New Mexico constitutions. The court ordered that Lopez remain confined in a secure, locked facility. Lopez appeals from this order.
C.
On August 6, 1991, Lucille Epperson was charged with aggravated battery and first-degree murder. On December 2, the district court found her to be incompetent to stand trial and committed her to the LVMC-FTU for treatment. The court’s final December 2 order stated that Epperson “presents a serious threat of inflicting great bodily harm on another and is therefore dangerous.”
After a hearing on the issue of whether Epperson committed the crimes charged, the district court found that the State showed with clear and convincing evidence that she committed the acts of the crimes charged, and that the defense of insanity was not available at a Section 31-9-1.5(A) hearing. The court further found that she remained incompetent to stand trial, that she remained a danger to herself and others, and that she should remain detained until competent to stand trial. Epperson appealed to the Court of Appeals and the case was certified to this Court pursuant to NMSA1978, Section 35-5-14(C)(1). Because Epperson has been released from the LVMC-FTU and is now residing at Highlands Living Center, she is out of the ambit of the NMMIC. Accordingly, the issues presented in her appeal are moot. We do, however, find her arguments instructive in our disposition of the consolidated appeal.
D.
On September 25, 1990, Joe Martinez was indicted on charges of attempted criminal sexual penetration, attempted kidnapping, and aggravated assault. On March 20, 1991, after having reviewed a competency evaluation, the district court found Martinez to be incompetent to stand trial and committed him to the custody of the Health and Environment Department for treatment to attain competency to stand trial. On April 27,1992, Martinez filed a motion to compel election pursuant to Section 31-9-1.4. On July 15, the court found that Martinez remained incompetent to stand trial and that he was not likely to attain such competency in one year or the foreseeable future. The court set a hearing on the issue of criminal commitment pursuant to Section 31-9-1.5. This hearing was continued following Martinez’s motion to dismiss, in which he argued that his commitment violated his right to equal protection and due process. The court granted Martinez’s motion to dismiss, finding that the standard of proof, a preponderance of the evidence,
E.
On June 1,1990, Charles Lucas was indicted on charges of armed robbeiy. On July 24, the district court found Lucas to be incompetent to stand trial and committed him to the forensic unit at the LVMC-FTU. On May 12, 1992, the State motioned the court to set a competency hearing, which was scheduled for August 17, 1992. The record does not indicate whether this hearing was ever held. On February 2, 1994, Lucas filed a motion to dismiss and to release him from custody. He contended inter alia that he had been detained longer than a reasonable period of time, he had been deprived equal protection of laws, his confinement was not in accord with civil commitment or within the least drastic means principle, his confinement constituted cruel and unusual punishment, and that he was deprived substantive due process. The district court denied this motion and, in the same order, found Lucas to be dangerous. Lucas appealed to the Court of Appeals, which certified the case to this Court, pursuant to Section 35-5-14(0(1). Lucas was released from custody in January 1995. On May 15, 1995, the State filed a motion to dismiss Lucas’s appeal, arguing that because he had been released, the issues he presents on appeal are moot as they apply to him. We agree and grant the State’s motion to dismiss Lucas’s appeal. As in Epperson’s appeal, Lucas’s arguments have assisted in our deliberation of the issues in this consolidated appeal.
F.
We gave leave to file amicus briefs to the New Mexico Council on Crime and Delinquency (NMCCD); the National Association of Criminal Defense Lawyers (NACDL) and the New Mexico Criminal Defense Lawyers Association (NMCDLA); the New Mexico Protection and Advocacy System (NMPAS), the National Association of Protection and Advocacy Systems (NAPAS), and ARC of New Mexico (ARC); and the National Alliance for the Mentally Ill (NAMI) and the Alliance for the Mentally Ill of New Mexico (AMINM).
II.
The law has long recognized that it is a violation of due process to prosecute a defendant who is incompetent to stand trial. Bishop v. United States,
Prior to Jackson v. Indiana,
After Jackson was decided, New Mexico revised its statutes governing the confinement and treatment of persons found to be incompetent to stand trial. Under the NMMIC, when a question as to a defendant’s competency is raised in a criminal case, the court is required to suspend further proceedings until the issue is resolved, Section 31-9-1, and the defendant’s competency must be professionally evaluated, Section 31-9-1.1. After the evaluation is completed, the court is required to conduct a hearing on the issue of competency “within a reasonable time but in no event later than thirty days after notification to the court of completion of the diagnostic evaluation.” Id. If, after the hearing, the court determines that the defendant is incompetent to stand trial but is not dangerous, it may dismiss the case without prejudice and may advise the district attorney to pursue civil commitment under the Mental Health and Developmental Disabilities Code, NMSA1978, §§ 43-1-1 to -25 (Repl. Pamp.1993) (hereinafter “the MHDDC”). Section 31-9-1.2(A). If the court determines that the defendant is incompetent to stand trial and that the defendant is dangerous, it may order treatment to attain competency for a period not to exceed one year. Section 31-9-1.2(B). The defendant must be placed in a “secure, locked facility,” Section 31-9-1.2(B)(1), and may be released only by court order, Section 31-9-1.2(B)(2).
Within thirty days of defendant’s admission to a treatment facility, the person supervising the defendant’s treatment is required to provide to the district court a report that includes an initial assessment, a treatment plan, a report on the defendant’s amenability to treatment to render him competent, an assessment on the facility’s capacity to appropriately provide treatment, and an opinion on the probability of the defendant’s attaining competency within one year. Section 31-9-1.2(D). Within ninety days of the entry of the order committing defendant to undergo treatment, the court is to hold a hearing to determine whether he is competent, Section 31-9-1.3(A)(l), and if not, whether he is making progress to attain competency within one year from the date of the original finding of incompetency, Section 31-9-1.3(A)(2). If the court determines the defendant is competent, it is required to set the matter for trial. Section 31-9-1.3(0). If the court determines the defendant is incompetent but is making progress toward competency, it may continue or modify the original order. Section 31-9-1.3(D). If the court determines the defendant is still incompetent and is not making progress toward competency such that there is no substantial probability he will attain competency within one year, the court may either release defendant and dismiss the case with prejudice, Section 31-9-1.4(B), dismiss the case with prejudice and refer the defendant to the district attorney for civil commitment under the MHDDC, Section 31-9-1.4(C), or pursue criminal commitment, Section 31-9-1.4(A).
For criminal commitment, the State must establish by clear and convincing evidence that the defendant committed the criminal act charged. Section 31-9-1.5. If the State fails to prove its case, the court will dismiss the criminal case with prejudice. 31-9-1.5(B). The State, however, is not precluded from initiating civil commitment proceedings under the MHDDC. Id. If the State does prove that the defendant committed the criminal act charged, the court is required to determine whether the defendant is dangerous. Section 31-9-1.5(C). If the defendant is not dangerous, the court must dismiss the charges without prejudice, and the State may pursue civil commitment under the MHDDC. Id. If the court determines by clear and convincing evidence that defendant committed the crime charged and has previously found the defendant dangerous, the defendant must be detained in a “secure, locked facility,” Section 31-9-1.5(D)(l), for a period not to exceed the maximum sentence available had he been convicted in a criminal proceeding, Section 31-9-1.5(D)(2). The court is further required to conduct a hearing every two years on the issues of competency and dangerousness. Section 31-9-1.5(D)(4). If at any time the defendant is determined to be competent, the court is required to continue with criminal proceedings. Section 31-9~1.5(D)(4)(a). The defendant must be released if he is not either civilly or criminally committed or if he is determined to be no longer dangerous. Section 31-9-1.5(D)(4)(c).
III.
We first address whether the NMMIC denies Appellants equal protection of the law. Appellants argue that they are treated differently than persons civilly committed under the MHDDC. Specifically, Appellants argue (1) that the commitment criteria under the NMMIC are less stringent and the release criteria are more stringent than the standards under the MHDDC, (2) that they are denied treatment that is consistent with legitimate treatment objectives, and (3) that their confinement is inconsistent with the least drastic means principle. Appellants contend they are treated differently because of their pending criminal charge and their incompetence to stand trial, which they argue are an insufficient basis for unequal treatment. We disagree with Appellants and hold that the NMMIC does not impinge on equal protection guarantees.
A.
“The Equal Protection Clause of the Fourteenth Amendment commands that no State shall ‘deny to any person within its jurisdiction the equal protection of the laws,’ which is essentially a direction that all persons similarly situated should be treated alike.” City of Cleburne v. Cleburne Living Ctr, Inc.,
“A suspect class has been defined as a discrete group ‘saddled with such disabilities, or subjected to such a history of purposeful unequal treatment, or relegated to such a position of political powerlessness as to command extraordinary protection from the majoritarian political process.’ ” Richardson v. Carnegie Library Restaurant, Inc.,
We recognize, however, that although a classification may not involve a suspect class, strict scrutiny is applied when the classification creates inequalities bearing on fundamental rights. Laurence H. Tribe, American Constitutional Law § 16-7, at 1454 (2nd ed. 1988). Involuntary commitment of a person for treatment to attain competency to stand trial impinges on that person’s constitutional guarantee of liberty, a “fundamental right.” Cf. San Antonio Indep. Sch. Dist.,
B.
Appellants rely on Jackson,
First, Appellants argue that a person must have a mental illness to be committed and incompetence to stand trial is not a mental illness. We find no merit in this argument. It is well established that the government may “detain mentally unstable individuals who present a danger to the public and dangerous defendants who become incompetent to stand trial.” United States v. Salerno,
Second, Appellants contend that a person civilly committed under the MHDDC may be released if the district attorney fails to proceed with a recommitment hearing. See Section 43-1-11 & -12. Additionally, Appellants argue that long-term recommitment hearings under the MHDDC must be held annually and that an individual must be released when he no longer meets commitment criteria. Id. Appellants argue that criminal defendants are unconstitutionally denied these same protections. We conclude that the release criteria in the NMMIC are constitutional.
At issue in Jackson was an Indiana statute that allowed a defendant to be indefinitely committed solely because he was incompetent to stand trial. Jackson was a developmentally disabled deaf-mute with a mental capacity of a pre-school child who was charged with two separate robberies. He was found to be incompetent to stand trial and, because he had neither sufficient intelligence nor necessary communication skills, the trial court committed him to the Department of Mental Health until he became sane. Jackson,
The United States Supreme Court ruled that the existence of pending criminal charges did not justify distinguishing Jackson from other defendants with similar mental impairments. The Court compared the commitment criteria and the release criteria of the civil commitment statutes with the commitment criteria and release criteria of the statute under which Jackson was committed. Id. at 727-29,
to a more lenient commitment standard and to a more stringent standard of release than those generally applicable to all others not charged with offenses, and by thus condemning him in effect to permanent institutionalization without the showing required for commitment or the opportunity for release afforded by § 22-1209 or § 22-1907....
Id. at 730,
The NMMIC provides that “[a] hearing on the issue of the competency of an incarcerated defendant charged with a felony shall be held by the district court within a reasonable time, but in no event later than thirty days.” Section 31-9-1.1. The NMMIC provides a series of hearings in which the district court can regularly monitor a defendant’s competence and to determine whether criminal proceedings, dismissal, or perhaps civil commitment should be pursued.
Additionally, there are various steps at which the State cannot continue to confine an incompetent defendant and must either release, civilly commit, or prosecute him. That is, a criminal defendant cannot be subject to commitment under Section 31-9-1.2 for any amount of time unless he is both incompetent to stand trial and dangerous. If a defendant is not dangerous, even if he remains incompetent, the district court must dismiss the criminal case but may do so without prejudice and may advise the district attorney to consider civil commitment under the MHDDC. Section 31-9-1.2(A). If at any time the district court determines the defendant is competent to stand trial, it shall continue the criminal proceeding. Section 31-9-1.5(D)(4)(a). Even after a defendant has been criminally committed and if the district court determines the defendant is no longer dangerous, the defendant must be released. Section 31-9-1.5(D)(4)(c). Thus, our statutes do not permit the type of permanent institutionalization proscribed by Jackson.
C.
Appellants argue that incompetent defendants are simply detained without an opportunity to receive the same treatment that is afforded to those persons civilly committed under the MHDDC. Specifically, Appellants argue that civil commitment under the MHDDC requires the court to make specific findings that the proposed treatment will benefit the client and that the treating facility must provide treatment consistent with an individualized treatment plan. Appellants argue that no such findings are required to commit a defendant under the NMMIC. We disagree and hold that the NMMIC requires treatment and, when necessary, the treatment shall be the same as that under the MHDDC.
Clearly, the NMMIC is not intended to allow a defendant who is committed to a facility to languish unattended. To the contrary, a defendant is committed specifically to undergo treatment to attain competency. Section 81-9-1.2(B). Indeed, when the district court deems treatment necessary, it may order such treatment, which shall be the same treatment “available to involuntarily committed persons,” civil committees. Section 31-9-1.2. The only difference between the treatment rendered under the NMMIC and that rendered under the MHDDC is location: an incompetent defendant under the NMMIC shall be treated in a “secure, locked facility.” Section 31-9-1.2(B)(l). Once entered, the court’s order is not to be considered a simple benign suggestion. In accordance with the statute’s mandate, the court order requires treatment. The order requires the defendant to undergo treatment and requires the treating facility to render that treatment.
Additionally, the court-ordered treatment must be tailored to render a particular defendant competent to stand trial. The NMMIC includes several points at which the district court shall monitor the sufficiency of the treatment. For example, Section 31-9-1.2(D) requires the treating facility to file “an initial assessment and treatment plan and a report on the defendant’s amenability to treatment ..., an assessment of the facility’s or program’s capacity to provide appropriate treatment ... and an opinion as to the probability of the defendant’s attaining competency within a period of one year ...” with the court within thirty days after a defendant has been admitted to a facility to undergo treatment to attain competency. The Legislature provided a means for the district court to determine whether the treatment order is being properly effectuated, and whether the treatment will benefit the defendant. If the treatment is insufficient, the district court, upon reviewing the report, may modify it accordingly.
Additionally, Section 31-9-1.3(B) requires the treating supervisor to file a progress report with the district court that outlines inter alia clinical findings and an opinion as to the defendant’s competency or the defendant’s progress toward attaining competency within one year. Section 31-9-1.3(B)(2). Using this report, the district court must conduct a hearing to determine whether the defendant is competent to stand trial, whether he should plead, Section 31-9-1.3(A)(l), and if not, whether the defendant is making progress to attain competency within one year, Section 31-9-1.3(A)(2). The latter determination cannot and should not be made without the district court first inquiring into the sufficiency of the treatment that either has been rendered or, if necessary, will be rendered or, if necessary, will be rendered in the future.
The MHDDC defines “treatment” as “any effort to accomplish a significant change in the mental or emotional condition or behavior.” Section 43-l-3(T). Under the NMMIC, the “significant change” in mental condition is competence to stand trial. Although the focus of treatment under the NMMIC,
Finally, a defendant who has been criminally committed pursuant to Section 31-9-1.5 shall be afforded continued treatment to attain competency. The NMMIC requires that at least every two years after a defendant has been criminally committed, “the district court shall conduct a hearing ... on the issues of trial competency and dangerousness.” Section 31-9-1.5(D)(4). Similarly, if at any time during criminal commitment a defendant becomes competent to stand trial, “the court shall continue with the criminal proceeding.” Section 31-9-3(D)(4)(a). It is true that a defendant who has been criminally committed has exhibited a reduced likelihood in attaining competency to stand trial. Nonetheless, it logically follows that by requiring continued monitoring for any changes in the defendant’s mental condition and dangerousness, the Legislature expects treatment to continue. Indeed, it is unrealistic to expect a defendant to spontaneously, without treatment, become competent in order to continue criminal proceedings or to become no longer dangerous in order to justify release. See Section 31-9-1.5(D)(4)(c).
We conclude that when a defendant has been found dangerous under the NMMIC, see § 31-9-1.2(C), treatment to alleviate the threat of dangerousness is as important as treatment to obtain competency: “[T]he failure to provide habilitative services tailored to the defendants’ needs may result in needlessly protracted, possibly lifelong confinement.” James W. Ellis & Ruth A. Luckasson, Mentally Retarded Criminal Defendants, 53 Geo.Wash.L.Rev. 414, 424-25 (1985) (footnote omitted). We see no basis within the statutory scheme for distinguishing a defendant who has been criminally committed pursuant to Section 31-9-1.5 from those subject to the expedited schedule of hearings provided prior to the Section 31-9-1.5 hearing. We conclude that equal protection principles require that defendants criminally committed under Section 31-9-1.5 be afforded treatment comparable to that available to those awaiting a hearing under that section. We construe the Legislature’s intent as requiring a result consistent with those principles. So construed, we are satisfied there is no constitutional infirmity.
D.
Next, Appellants argue that the NMMIC deprives them of equal protection because their commitment is not in accordance with the “least drastic means principle,” which civil committees are afforded under the MHDDC. Appellants argue, for example, that persons committed under the MHDDC are provided an opportunity to earn liberties or transfers to less restrictive environments while the NMMIC does not afford defendants the same right.
The MHDDC provides that persons receiving mental health services, Section 43-1-7, and persons receiving developmental disabilities services, Section 43-1-8, each have the right to services consistent with the least drastic means principle. The concept, “consistent with the least drastic means principle,” is defined as
the habilitation or treatment and the conditions of habilitation or treatment for the client, separately and in combination:
(1) are no more harsh, hazardous or intrusive than necessary to achieve acceptable treatment objectives for the client;
(2) involve no restrictions on physical movement and no requirement for residential care except as reasonably necessary for the administration of treatment or for the protection of the client or others from physical injury; and
(3) are conducted at the suitable available facility closest to the client’s place of residence.
Section 43-l-3(D)(l)-(3) (emphasis added). Appellants do not present any meaningful argument that their treatment to attain competency is “more harsh, hazardous or intrusive than necessary” or that their confinement is not a “suitable available facility closest to [their] place of residence.” Although the MHDDC may afford civil committees certain liberties and transfers to less restrictive environments, those privileges may be afforded only when the committee’s dangerousness is considered. Logically, those civilly-committed individuals who present a high risk to themselves or others should not receive the same privileges as those who present a low or no risk. This is not the case under the NMMIC: A criminal defendant undergoing treatment to attain competency is confined not only for treatment but also because he already has exhibited dangerous conduct. See Jones v. United States,
IV.
Next, we address whether the statute deprives Appellants of substantive due process. Appellants argue that the statute violates their substantive due process rights with regard to the nature and duration of their incarceration, their treatment, and their confinement, which they argue are not in accordance with the least drastic means principle.
A.
“[S]ubstantive due process prevents the government from engaging in conduct that ‘shocks the conscience’ or interferes with rights ‘implicit in the concept of ordered liberty.’ ” Salerno,
B.
Appellants rely primarily on Jackson v. Indiana to argue that the nature and duration of their confinement allowed by the statute deprives them of their substantive due process rights. Specifically, Appellants argue that they have been held longer than permitted by Jackson because there is no substantial probability they will become competent in the foreseeable future, and that they have been confined beyond a “reasonable period of time.” Appellants also argue that neither their progress towards attaining trial competency nor their dangerousness justifies their continued confinement. We hold that the statute does not deprive Appellants of their substantive due process rights.
In Jackson the Supreme Court stated that “[a]t the least, due process requires that the nature and duration of commitment bear some reasonable relation to the purpose for which the individual is committed.” Jackson,
New Mexico’s statute satisfies Jackson because it requires more than mere incompetence for commitment to treatment. The NMMIC requires that a criminal defendant be committed to treatment only if he is both incompetent to stand trial and dangerous, otherwise the district court must either dismiss the criminal ease or advise the district attorney to proceed with civil commitment proceedings. Section 31-9-1.2(A)-(B). When the district court finds both incompetence and dangerousness, it may order treatment but only for a period not to exceed one year. Section 31-9-1.2(B).
Additionally, once the defendant is committed and is undergoing treatment, the statute requires the district court to periodically monitor whether he is making any progress toward competency such that he may become competent within the one-year time frame. Within thirty days after the defendant is admitted for treatment, the court must receive an opinion from the treating facility as to the probability of the defendant’s attaining competency within the one-year time frame. Section 31-9-1.2(D). In effect, Jackson requires that if the treating facility opines that there is no probability the defendant will attain competency, there is no longer any justification to confine the defendant for treatment. Within ninety days of the entry of the treatment order, the court again must determine whether the defendant is making progress under the treatment toward attainment of competency within the one-year time frame. Section 31-9-1.3(A)(2). Pursuant to Jackson, the district court can continue treatment only if the defendant is making progress toward attaining competency within the one-year time frame. Section 31-9-1.3(D).
We also hold that the duration of commitment is not unreasonable. Again, pursuant to Jackson, once the district court determines that there is no substantial probability that a defendant will attain competency, continued commitment can no longer be justified. This determination may be made “at any time,” Section 31-9-1.4, in which case the district court may either set the matter for hearing, Section 31-9-1.4(A), release the defendant, Section 31-9-1.4(B), or dismiss the ease without prejudice and refer the defendant for possible civil proceedings under the MHDDC, Section 31-9-1.4(0). Certainly, this determination can be made within thirty days after the defendant is admitted to treatment, provided adequate notice is given to the State. Section 31-9-1.2(D). If the determination is not made then, it could still be made within ninety days of the district court’s order to commit the defendant for treatment. Section 31-9-1.3(2). Logically, in order for the district court to make this determination, the treating facility must have a “reasonable amount of time,” see Section 31-9-1.4, to evaluate and assess the probability that the defendant will attain competency. The time limits built into the statute represent a reasonable duration to allow the treating facility to make this determination and “bear some reasonable relation to the purpose for which the individual is committed.” Jackson,
Appellants also contend that although New Mexico’s legislation is patterned after the American Bar Association’s (ABA) standards, see ABA Criminal Justice Mental Health Standards (1989), it reflects the oppressive components only and omits the features that would save it as constitutional. Although we recognize the practical merit in the ABA standards, constitutional validity does not depend on whether the NMMIC fully reflects such standards. Gallegos,
Appellants rely on Youngberg v. Romeo,
Youngberg is inapplicable because Appellants have not claimed they have been subjected to violence or are otherwise subjected to violence, unsafe conditions, or bodily restraints. Additionally, it is the MHDDC and not the NMMIC that addresses a person’s ability to function in society. The MHDDC applies to civil committees and to criminal defendants who will not likely attain competency to stand trial. The purview of the NMMIC, on the other hand, is more narrow — to ensure that a defendant is competent to stand trial on criminal charges. Although the NMMIC does not mandate a particular treatment plan, the plan must be tailored to meet that end. Indeed, it would be incongruous to mandate by statute any one treatment plan for all defendants. Given the particular needs of individual defendants, this approach would likely be inefficient, if not altogether ineffective. Rather, the NMMIC leaves the particular treatment to the discretion of qualified professionals. These professionals are required to timely report to the district court on the treatment plan. Additionally, the NMMIC requires the district court to not only ensure that these reports are timely filed, but also to review the report itself for full compliance. Hence, the NMMIC provides a comprehensive scheme to ensure incompetent defendants receive the necessary treatment. Any alleged defect in treatment is not due to unconstitutionality. Rather, any alleged defect in treatment is likely the result of noneompliance with the statute’s mandate by those charged with administering it.
V.
We now address whether the NMMIC deprives Appellants of procedural due process. Appellants and amicus curiae argue that a defendant’s right to procedural due process is violated because criminal commitment under Section 31-9-1.5 requires only clear and convincing evidence rather than proof beyond a reasonable doubt. Appellants and amicus also contend that a defendant’s right to procedural due process is violated because the NMMIC prohibits use of the insanity defense when facing criminal commitment.
A.
Appellants argue that criminal commitment under Section 31-9-1.5 (the “Section 1.5 hearing”) should require proof beyond a reasonable doubt, contending that the Section 1.5 hearing has all the relevant trappings of a criminal proceeding. As grounds for a higher burden of proof, Appellants point to the possibility of incarceration if they are found to have committed the criminal act charged, the inevitable stigmatization of such a finding, and the risk of erroneous decision-making in the adjudication. Amicus argues that incompetent defendants may be confined for a term equal to the maximum term had they been criminally convicted without the chance of receiving good-time credits, which even a convicted defendant may receive. We are not persuaded that the requirement of proof beyond a reasonable doubt is required by either the federal or our state constitution.
In Addington v. Texas, the United States Supreme Court, in discussing the correct standard for civil commitment, stated
[t]he function of a standard of proof, as that concept is embodied in the Due Process Clause and in the realm of factfinding, is to “instruct the factfinder concerning the degree of confidence our society thinks he should have in the correctness of factual conclusions for a particular type of adjudication.”
It is indisputable that commitment pursuant to Section 31-9-1.5 results in a loss of liberty. Thus, a defendant must be afforded due process to ensure that the decision to commit him is made with minimal risk of error. To be sure, proof beyond a reasonable doubt would reduce any risk. Nevertheless, the question involves balancing several factors. Under federal law, the United States Supreme Court has traditionally employed the test of Mathews v. Eldridge,
First, the private interest that will be affected by the official action; second, the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and finally, the Government’s interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requisites would entail.
Id, at 335,
Although due process dictates that a state cannot criminally prosecute an incompetent defendant, the State has a compelling interest in committing him under Section 31-9-1.5. First, the State’s interest arises from its parens patriae powers to provide care to its citizens when necessary. In this context, the care necessary is treatment to attain competency to stand trial. Second, the State’s interest arises from its police power — its authority to provide its citizenry a safe community in which to live. Salerno,
The fact that a criminal defendant is detained for a period of time does not inexorably mean the State has imposed punishment. Salerno,
There is a real distinction between the purpose of commitment under Section 31-9-1.5 and a criminal prosecution. Addington,
“The heavy standard applied in criminal cases manifests our concern that the risk of error to the individual must be minimized even at the risk that some who are guilty might go iree.” Id. The full force of that concern is not present here. While a defendant may be erroneously committed under Section 31-9-1.5, there are sufficient means by which the error may be corrected. See id., at 428-29,
The standard of clear and convincing evidence strikes a fair balance between the defendant’s interest in avoiding an erroneous deprivation of liberty and the State’s interest in treating the defendant, protecting the defendant from himself, and protecting society in general. Further, any risk of an erroneous decision from applying this standard is insufficient to warrant a higher standard.
B.
Appellants and amicus contend that a defendant’s right to procedural due process is also violated because the NMMIC prohibits the use of the insanity defense when facing criminal commitment in a Section 1.5 hearing. We disagree. Our Court of Appeals, in State v. Werner,
In Werner, appellant relied on the Section 31-9-1.5(A), which states, “[T]he state and the defendant may introduce evidence relevant to the question of the defendant’s guilt of the crime charged,” to argue that the Legislature intended that the defense of insanity be allowed in this hearing.
YI.
The NMMIC provides a series of deadlines at which the district court must hold hearings to determine issues of competency, dangerousness, and ' criminal conduct. Appellants Rotherham and Lucas argue that virtually every significant deadline has been violated in their respective cases. Appellants compare the time limitations to the “six-month rule,” SCRA1986, 5-604(D) (1992 Repl.Pamp.) (providing for dismissal if trial is not commenced within applicable six-month time period), and contend that any deadline violations under the NMMIC should have the same result as a violation under the “six-month rule” — an automatic dismissal. At oral argument, the State explained that the hearings are based on information contained in the reports from the treating supervisor and cannot be held until the reports are properly filed, effectively putting the time of the hearings beyond the State’s control. While we do not recognize any parallel to the six-month rule, the State has the duty to ensure that each provision of the NMMIC is administered within the required time limitations.
In State v. Mendoza we applied a “common sense approach” to hold that the six-month rule did not prevent recommencement of the six-month time period after a defendant is found competent to stand trial.
Still, an incompetent defendant cannot be committed for more than a “reasonable period of time” than necessary to determine whether he will be rendered competent to stand trial in the foreseeable future. Jackson,
We do not agree that the remedy for delay is automatic dismissal. This, too, would go beyond legislative intent. Significantly, the Supreme Court in Jackson did not articulate a hard and fast time limitation on commitment to attain competency, requiring only that commitment be for a “reasonable period of time.” We too expect there may be reasonable delays in administration and treatment that would require hearings to be held later than anticipated. When neglect by the State leads to unreasonably lengthy commitment, delay will not be excused. On the other hand, delay caused by a defendant’s own initiative will not suffice for dismissal. State v. Bishop,
VII.
We hold that New Mexico’s Mental Illness and Competency code is not unconstitutional. We also hold that any alleged deficiency in the treatment rendered to incompetent criminal defendants is not due to alleged unconstitutionality of the NMMIC. Rather, without defining the particular treatment for each defendant, the NMMIC properly requires treatment to be administered by qualified professionals. Thus, any claim that treatment is insufficient would be properly directed to those responsible for its specific design and administration. We, therefore, affirm the statute’s application to Appellant Lopez. We also remand the cases of Appellants Martinez and Rotherham for further proceedings as required under Section 31-9-1.5 of the NMMIC. We also have considered specific arguments made on behalf of individual defendants and conclude that our disposition of the common constitutional arguments makes it unnecessary to address any of the specific arguments unique to any particular defendant.
IT IS SO ORDERED.
Notes
. Each of the five incompetent criminal defendants in this consolidated appeal is presently at varying stages in the statutory procedure. Accordingly, the State effectively contends that defendants have no standing to challenge the particular sections of the statute that as yet have not been applied to their case. We acknowledge the State's contention. Nonetheless, because of today's holding, we deem it unnecessary to address issues regarding standing. Additionally, for clarity, we address each issue as being applicable to each Appellant, including Appellee, Mr. Martinez.
. While this language was inadvertently omitted from the court's order of December 2, 1991, the court subsequently amended that order nunc pro tunc to include it on October 21, 1993.
. In 1993, apparently in response to Foucha v. Louisiana,
. Briefs of amici curiae were filed in support of Appellants for the New Mexico Council on Crime and Delinquency by Barbara E. Bergman of Albuquerque, New Mexico and James W. Ellis of Albuquerque; the National Association of Criminal Defense Lawyers and the New Mexico Criminal Defense Lawyers Association by Adam G. Kurtz of Albuquerque (NACDL and NMCDLA); Lawrence J. Fleming of St. Louis, Missouri (NACDL Amicus Curiae Committee), and Richard A. Winterbottom of Albuquerque (NMCDLA and NACDL Amicus Curiae Committee); the New Mexico Protection and Advocacy System and the National Association of Protection and Advocacy Systems, and the ARC of New Mexico by Nancy Koenigsberg of Albuquerque; and the National Alliance for the Mentally 111 and the Alliance for the Mentally 111 of New Mexico by Ronald S. Honberg of Arlington, Virginia and Jerry T. Wertheim of Santa Fe, New Mexico.
. The Court noted that commitment of mentally ill under Section 22-1209 required “(1) a showing of mental illness and (2) a showing that the individual is in need of 'care, treatment, training or detention’ " while release required a " 'superintendent or administrator shall discharge such person, or [when] cured of such illness.’ " Commitment of the feeble-minded under Section 22-1907 required a showing that a person is " ‘unable properly to care for [himself]' ” and release was allowed "when his condition ‘justifies it.' ” Jackson,
. Under the NMMIC, the objective is to treat the criminal defendant such that he "has sufficient present ability to consult with his lawyer with a reasonable degree of understanding — and ... has a rational as well as factual understanding of the proceedings against him.” Dusky,
. The State’s power to commit an individual for the purpose of treatment to competency is limited. We are aware that all but one of these defendants has been or was incarcerated in excess of four years. We cannot tell whether the lengthy periods of confinement resulted from waiver by or acquiescence of defendant or defendant’s counsel or through neglect. We trust that on remand the trial court will entertain all appropriate arguments regarding the length of time each defendant for whom further proceedings are required has already been incarcerated.
Concurrence Opinion
(specially concurring).
I concur in the majority’s opinion, but write separately to address additional issues under the Mental Health and Developmental Disabilities code (“the MHDDC”), NMSA 1978, §§ 48-1-1 to -25 (Repl.Pamp.1993), and the New Mexico Mental Illness and Competency code (“the NMMIC”), NMSA 1978, §§ 31-9-1 to -4 (Repl.Pamp.1994 & Cum.Supp.1995), raised by Appellant Richard Lopez or suggested by his circumstances. Lopez’s issues and particularly his circumstances seem to me to present issues in addition to those raised and argued by the other appellants or presented by their circumstances.
Because I conclude that the State may continue to confine Lopez, I agree that we should affirm the trial court’s order denying release. I also would affirm his 1994 order on periodic review. The record indicates that a subsequent, two-year periodic review is pending before the trial court.
Additional Facts Regarding Lopez’s Circumstances and Issues Raised by Lopez.
In May 1990, Lopez’s treating physicians filed with the trial court a treatment plan which contained five objectives of diagnosing and treating Lopez with the goal of rendering him competent to stand trial. In October 1990, the court, following a hearing, found that there was no substantial probability that Lopez would become competent to stand trial by October 12, 1991, a year from the date of the hearing. In November 1990, the court conducted a Section 31-9-1.5 hearing. Between 1990 and 1993, Lopez’s physicians at the Las Vegas Medical Center-Forensic Treatment Unit (“the LVMC-FTU”) filed treatment and update reports with the court, stating that Lopez had shown minimal compliance with treatment. In April 1994, Dr. John Gatling, Lopez’s treating physician, testified during a hearing before the court that he didn’t think he would be able to treat Lopez to competency. Despite this testimony, the trial court concluded:
Although [Lopez] has made only minimal progress towards competency, in the period 1990 through March of 1993, he has— those are pursuant to those three annual reports that I have seen, plus the testimony at the April 1994 hearing — since then he has made substantial progress. Not nearly as much as I would like to see, but substantial progress towards attaining competency as a result of the’ May 11,1990 treatment plan and his care and supervision at Las Vegas Medical Center.
Lopez challenges the trial court’s finding that he stands a substantial likelihood of attaining competency in the foreseeable future as not supported by the evidence. He also argues that the findings are not sufficient to support his continued confinement and that the trial court made its findings pursuant to the wrong standard.
The record contains two orders entered by the trial court in this case. The first is an order entered on Lopez’s motion to dismiss and petition for writ of habeas corpus. The second is the court’s order entered on periodic review. Neither order references the burden of proof the trial court believed to be applicable. Lopez relies on an oral comment by the trial court to the effect that the court found it possible that he would obtain competency within a reasonable time, but only by a preponderance of the evidence. We will not rely on the trial court’s oral comment to reverse. “Oral statements of a judge in articulating [a] ruling at the close of trial do not constitute a ‘decision’ within the meaning of [SCRA 1986, 1-052(B)(1)(a) (Repl.Pamp.1992) ], and error may not be predicated thereon.” Balboa Constr. Co. v. Golden,
The order entered on Lopez’s motion to dismiss contains no finding regarding the likelihood of his attaining competency. The order entered on periodic review contains a finding regarding the likelihood of Lopez’s attaining competency. There is no statutory requirement that the trial court make a finding regarding the likelihood of Lopez’s attaining competency on periodic review following a Section 31-9-1.5 hearing. The order entered contains findings that track the statutory requirements for the proceedings conducted by the trial court. The appropriate standard of review is whether substantial evidence supports the trial court’s findings. In re Pernell,
I conclude that the issue of the sufficiency of the finding regarding competency is not properly before us. The arguments on appeal have been constitutional challenges to the validity of the statutory scheme as a whole. The attack on the findings in this case seems intended to provide additional support for Lopez’s characterization of the statute as authorizing unlawful confinement. No independent basis for reversal has been identified.
Lopez’s Right to Substantive Due Process.
As the majority opinion notes, the NMMIC initially requires an expedited schedule of hearings regarding competency. See op. at 1138-39; see also 1141. I think that the statutory schedule satisfies Lopez’s constitutional rights to equal protection and due process, and particularly the holding in Jackson v. Indiana,
While Section 31-9-1.5 clearly mandates treatment to competency, it is unclear whether defendants are also to be afforded treatment addressed to their dangerous and disabling conditions. At present, the statute only requires the State to review a defendant’s condition every two years after an initial determination that the defendant committed the crime and is still dangerous. If the defendant is found to be competent, then the criminal case will proceed; otherwise, the State may detain defendants in a secure, locked facility for up to the maximum duration of their sentence.
Existing United States Supreme Court precedents suggest a direction, but they do not compel a particular answer. No state statute seems comparable to New Mexico’s, and thus precedent from other jurisdictions is of limited help in resolving this case. In the absence of controlling federal precedent or helpful state law opinions, I believe that we must identify the Legislature’s particular purpose in providing for the period of confinement following a Section 31-9-1.5 hearing. Then, to satisfy the Due Process Clause of the New Mexico Constitution, see N.M. Const, art. II, § 18, we must be satisfied that the period of confinement after the Section 31-9-1.5 hearing is narrowly tailored to serve that purpose. See generally Marrujo v. New Mexico State Highway Transp. Dep’t,
Lopez specifically challenges the limited kinds of treatment available to him at the LVMC-FTU. Dr. Gatling testified that he is limited in his ability to treat Lopez properly due to his commitment at the LVMC-FTU as opposed to the civil wing of the hospital, where a wider range of treatments is available. Lopez alleges that the nature of his confinement violates his right to substantive due process because the LVMC-FTU cannot and does not provide the type of treatment necessary to address his conditions. Counsel for Lopez argues that ultimately because of his status, i.e., commitment to an FTU, Lopez’s condition may deteriorate, since there have been inadequate efforts to restore him to a minimal level of functioning. Moreover, Amici assert that Section 31-9-1.5 restricts and curtails opportunities for treatment and rehabilitation for individuals such as Lopez because it effectively allows the State to subject defendants to an indefinite “treat to competency” status. Lopez seeks transfer to the civil side of the Las Vegas Medical Center for the purpose of obtaining proper treatment.
The majority opinion indicates that treatment available in civil commitments shall not be denied to those held for treatment to regain competency. Op. at 1141-43. Further, the majority opinion indicates that this broader range of treatment is also available to those committed to a “secure, locked facility” pursuant to Section 31-9-1.5(D)(l). Op. 1143. I agree with the majority that the State has a legitimate interest in confining incompetent, dangerous defendants to a secure, locked facility; I also agree with the explicit holding of the majority, that the broader range of treatment is available to those confined to a secure, locked facility, as a matter of equal protection. That is, it makes little or no sense to preclude those committed to a secure, locked facility following a Section 31-9-1.5 hearing from the broader range of treatment available to those who have not yet had the hearing. After all, those who have not had that hearing presumably are viewed as likely to attain competency within a reasonable period of time. For them, treatment to competency may be all that is appropriate or necessary. For the following reasons, however, I would also hold that following the Section 31-9-1.5 hearing, incompetent, dangerous defendants have a right to treatment for both of the conditions that serve as the basis for their confinement throughout their confinement as a matter of substantive due process under the New Mexico Constitution.
Eckerhart v. Hensley,
The confinement in this case is in effect pretrial detention in a mental institution. In Bell v. Wolfish,
I would construe confinement pursuant to Section 31-9-1.5 as pretrial detention primarily for remedial purposes rather than punishment, on the basis that the Legislature intended to create an alternative to civil commitment under the MHDDC to serve compelling state interests in protecting the community and in providing for the appropriate disposition of a criminal charge. Cf. Post,
Because it would be unconstitutional to try an incompetent defendant, Pate v. Robinson,
I conclude that the question of whether the conditions of confinement after a Section 31-9-1.5 hearing amount to punishment depends on the treatment that is available under the statute, either as written or as we may construe it to accomplish the Legislature’s purposes. See Post,
Various acceptable forms of treatment may rise above the constitutional threshold, but minimal constitutional standards require treatment to counter dangerousness in order to facilitate defendants’ release from a criminal involuntary commitment and into the potential advantages of a civil commitment. See Eckerhart,
. The transcript of that hearing contains testimony that Lopez’s condition has changed and that the court is considering the legal consequence of those changes.