State v. Carter

Clifford, J.

(concurring and dissenting in part). Defendant’s five year odyssey through a county jail, mental hospital, county jail again, mental retardation facility, mental hospital again, and psychiatric clinic finds him now on the threshold of his return to the New Jersey State Hospital at Trenton under a commitment order. 1 From the Appellate *411 Division’s affirmance of that order, one judge dissenting, defendant appeals to this Court, raising the issue of whether the alternative of a conditional release under appropriate supervisory controls for one committed after an acquittal on insanity grounds is permissible under our law.

*412 WMLe I concur with the Court’s decision to remand this case to the Law Division for a full hearing to determine if the conditional release is warranted, I am constrained to voice my disagreement with the majority’s route to that end, with some of the language used along the way, and with the standard imposed for the trial court’s ultimate determination.

*413 I am persuaded, in light of recent United States Supreme Court opinions, that the constitutional issue here, turning on the equal protection clause, must be addressed. In my view of the ease it becomes necessary to discuss that equal protection issue at some length initially, inasmuch as it permeates most of the points sought to be elucidated in this opinion.

I

EQUAL PROTECTION

Simply put, equal protection in this area of the mental health field requires that persons committed to a mental institution upon acquittal of a criminal charge on the basis of insanity, Bolton v. Harris, 130 U. S. App. D. C, 1, 395 F. 2d 642 (D. C. Cir. 1968); Wilson v. State, 287 N. E. 2d 875 (Ind. Sup. Ct. 1972); People v. Lally, 19 N. Y. 2d 27, 277 N. Y. S. 2d 654, 224 N. E. 2d 87 (N. Y. Ct. App. 1966); Commonwealth ex Rel. DiEmilio v. Shovlin, 449 Pa. 177 , 295 A. 2d 320 (Pa. Sup. Ct. 1972), and persons committed because they are incompetent to stand trial must, in important respects, be treated as civilly committed patients, Jackson v. Indiana, 406 U. S. 715 , 92 S. Ct. 1845 , 32 L. Ed. 2d 435 (1972). The insistence upon identity of treatment, found in the landmark Jackson case and Baxstrom v. Herold, 383 U. S. 107 , 86 S. Ct. 760 , 15 L. Ed. 2d 620 (1966), is perhaps most significant as applied to commitment and release standards, and to the placing of patients in a treatment facility. The majority in the Appellate Division in this ease summarily dismissed Jackson in one sentence as “inapposite.” The majority here makes no mention of the case or of the other consequential federal decisions in this fast-developing field of law, presumably for the reason that the Court finds it “unnecessary at this time to reach a claim of unconstitutionality under the equal protéction clause.” I find Jackson and its companion eases not only supportive of *414 today’s decision and thus apposite — I find those cases controlling.

In Jackson, the defendant was a 21 year old deaf mute with the mental level of a pre-school child, who lacked the ability to communicate. His prognosis was dim, and psychiatrists doubted that he would ever acquire the abilities necessary to stand trial for the robberies he allegedly committed. Following a competency hearing the trial court ordered Jackson committed to the Indiana Department of Mental Health until such time as that Department should certify to the court that he was “sane.” This order was tantamount to a lifetime sentence since there was no evidence that Jackson would ever improve to the point that he could stand trial. He challenged the court’s order on the grounds that his commitment (1) violated the equal protection clause because he was subjected to a more lenient standard for commitment and a more stringent standard for release than those applicable to all other hospitalized patients not charged with criminal offenses, (2) violated due process because there was no showing that his indefinite commitment would serve any valid state purpose.

The standard for commitment under Indiana’s civil commitment law was dangerousness. The standard for commitment of an accused, such as Jackson, was simply his inability to stand trial. Further, under the civil commitment statute an individual could be released whenever his condition “justified it” or, in other words, whenever the individual no longer required the custodial care of treatment or detention. However, under the criminal commitment sections the Department of Mental'Health had to certify to the court that the accused was “sane.” The Supreme Court held that the less stringent commitment standard and the more stringent release standard which were applied to persons accused of committing a criminal act violated the equal protection clause of the Fourteenth Amendment; the mere fact of the existence of the criminal charges did not justify the differential treatment. The Court also held that an indefinite commit *415 ment such as that here violated J aekson’s due process rights since there was no evidence that the incarceration would help Jackson to attain competency to stand trial.

In so holding, the Court relied in part on Baxstrom v. Her- old, supra, which had held that a state prisoner who was civilly committed at the end of his prison sentence, by a simple administrative transfer from the prison to the hospital, was denied equal protection by being denied procedural protections afforded other civilly committed persons simply because he had been convicted of a crime. It also held that he should not have been committed to an institution for the dangerously mentally ill without a specific adjudication that he was dangerous, as necessary for all others committed to that institution. Again, the fact of the crime itself, even when the subject had been convicted of it, did not justify the different treatment. See also Humphrey v. Cady, 405 U. S. 504 , 92 S. Ct. 1048 , 31 L. Ed. 2d 394 (1972); Bolton v. Harris, supra. The Jackson Court stated that if criminal conviction as in Baxstrom did not justify less procedural and substantive protection than that generally available to all others, the mere filing of criminal charges surely cannot suffice.

The Jaclcson and Garter cases are essentially the same and, buttressed by Baxstrom , lead to the conclusion that the conditional release of Carter is constitutionally mandated (as well as legislatively permissible as held by the Court) on the following analysis: (1) In Garter, as in Jackson , the challenged commitment is of a person accused of committing a crime, although not tried or convicted of it. (2) In both cases procedures or standards differing from those for release of other mental patients were utilized simply because a criminal charge had been levied against them (if anything, Garter presents even a stronger equal protection argument since the charges against him had been dropped; he had been adjudged not responsible for the crime, while in Jackson those charges were still pending). (3) In both cases the commitment was for an indefinite period which, barring the decisions in the respective cases, could well have ripened into a *416 lifetime commitment. (4) Emally, in both cases, the evidence indicated that continued confinement would be .unlikely to advance the condition of either Carter or of Jackson. In light of these similarities, it seems to me that Carter’s right to equal protection would be violated if this Court were to refuse him the possibility of conditional release which is afforded to other involuntarily committed persons under N. J. 8. A. 30:4-107, 2 pertinent portions of which read as follows:

A patient admitted to any institution in this State, other than a correctional institution, may be paroled or discharged therefrom in accordance with the rules and regulations prescribed by the board of managers [now the board of trustees by virtue of N. J. 8. A. 30:4-4a, L. 1972, c. 57, § 3] or the board of chosen freeholders or the proper committee thereof, as the case may be. * * * The chief executive officer of any State institution, other than a correctional institution, subject to regulations of the State Board of Control [now the Com *417 missioner of Institutions and Agencies by virtue of N. J. S. A. 30:1-2.1, L. 1971, c. 384, § 24], may make arrangements with suitable families for the care, maintenance and treatment of patients of the institution and may place at board on parole in a family with whom any such arrangements have been made, any patient for whom family care shall be deemed beneficial. Patients so placed on parole in family care shall be returned to the institution at any time upon order of the chief executive officer. *■ * * All such patients placed in family care shall be and remain patients of the institution until discharged therefrom as provided for in this chapter.

The legal jurisdiction of the professional staff of the hospital over any person discharged therefrom shall terminate at the time of discharge of the person from in-patient status. However, upon recommendation of the professional staff of the hospital, patients so discharged may continue to receive further professional services on an outpatient basis or may be assisted in securing continued treatment from other community resources. * * *

II

CRIMINAL AND CIYIL COMMITMENT

Woven into the fabric of this case is a thread of confusion to which our criminal commitment statute, N. J. 8. A. ZÁ: 163-2, has contributed. It has long troubled courts, lawyers and legislators. The question becomes" especially critical in light of the prominence attained by equal protection in the mental health field as a result of Jaclcson and Baxstrom . The problematic issue to which I refer is the distinction between a “criminal commitment” and a “civil commitment.” I suggest that for practical purposes a person subject to “criminal commitment” is one who is subject, at the time of commitment, to the process of the criminal justice system. Under this definition, one in Carter’s position would not be a criminal committee, but rather a civil committee. The indictment against him has been dismissed. He has been convicted of no criminal activity. He therefore can be involuntarily detained only under the same procedures, the same standards, and in the same institutions as any other involuntary civilly committed patient; and to the extent that N. J. 8. A. 2A: *418 163-2 conflicts with these principles in their application to Carter, it invites a declaration of constitutional infirmity. 3

On the other hand, a person subject to criminal commitment procedures would be one against whom an indictment is still pending as, for example, one found incompetent to stand trial, or one who has been convicted of the crime charged. Note, however, that even persons in the “criminally insane” category may insist on treatment accorded civil patients in most respects. 4

Because I read equal protection to dictate equal treatment for persons acquitted on grounds of insanity and other involuntary civil committees, not only must the conditional release provision of N. J. 8. A. 30:4-107 be available to those in Carter’s position but, strictly speaking, it must be applied identically to both groups. The question arises, then, as to *419 the necessity for court control over the conditional release of Carter, when such release is left to the sole discretion of the chief executive officer of the hospital in cases of other civil commitments. Although I have some reservations about the constitutionality of this differential in treatment of the two groups, I am satisfied for the time being to accept it, as did Judge Bazelon in Bolton v. Harris, supra. In that case, while finding that persons acquitted on insanity grounds must be treated in all other respects as civilly committed patients, he concluded that equal protection is not offended by allowing the government or the court the opportunity to insure that standards for release of civilly committed patients are faithfully applied to patients committed after having been found not guilty by reason of insanity. Id. 395 E. 2d at 652. See also United States v. Ecker, 156 U. S. App. D. C. 223, 479 F. 2d 1206 (D. C. Cir. 1973). Thus the Court may retain some control over the Garter-type patient.

Ill

VIABILITY OF STATE v. MAIK

State v. Maik, 60 N. J. 203 (1972), dwelt on by the majority here, and by the majority and the dissenter in the Appellate Division, undertook to define- the phrase “restored to reason” as a standard for release of persons adjudged not guilty by reason of insanity under N. J. S. A. 2A :163-3. As interpreted by that case the standard for release is a most stringent one; not only must the psychotic episode which produced the criminal act have subsided, but the underlying illness must have been removed or effectively neutralized if it can be. Clearly adherence to this standard, likewise applicable under the companion statute, N. J. S. A. 2A:163-2, will lead in many cases to lifetime confinements, as recognized, by the majority here. I question both the wisdom of that standard and its constitutionality. 5 The majority seems *420 also to question, its wisdom but seeks to lessen its impact by providing for conditional release in appropriate cases. Parenthetically I should observe that I find absolutely no warrant for the majority opinion’s statement that the Mailc Court “indicated that something less than a ‘cure’ is acceptable for compliance with the ‘restored to reason’ standard of conditional release established by N. J. 8. A. 2A:163-2 and 2A :163-3.”

I would point out that Jackson , which was decided since Mailc, raises doubts about the constitutionality of Maik’s holding, both as a matter of due process and of equal protection. Jackson held that “due process requires that the nature and duration of commitment bear some reasonable relation to the purpose for which the individual is committed.” Jackson v. Indiana, supra, 406 U. S. at 738 , 92 S. Ct. at 1858 , 32 L. Ed. 2d at 451 . If an underlying illness cannot be cured, no rehabilitative purpose can be served by continued confinement ; if that illness is in remission, such that the patient is no longer dangerous, societal safety is not served either by that confinement. Additionally, because this is a more strict standard than that applied to the other involuntary civilly committed patients, it runs afoul of the equal protection clause of the Fourteenth Amendment.

IY

TEST FOR COMMITMENT

I further question the statement in the majority opinion which hinges commitment to a mental institution on a finding of insanity according to the M’NagMen standards. Research has disclosed no other jurisdiction in which commitment turns on such a test. This Court’s opinion in Aponte v. *421 State, 30 N. J. 441 (1959), as I read it, clarifies the point. Aponte explains that there are three specific and separate tests for insanity, depending on the purpose of the insanity determination. The M’Naghten standard is to he used for determining whether an accused was insane at the time the criminal act was executed. To decide whether a defendant is “sane” enough to stand trial, the test to be used is whether the accused understands the nature of the proceedings against him and whether he is capable of assisting counsel with his defense. To decide if he is presently insane such that commitment is warranted, he must be dangerous to himself or others. See also State v. Coleman, 46 N. J. 16, 40 (1965), cert. denied, 383 U. S. 950 , 86 S. Ct. 1210 , 16 L. Ed. 2d 212 (1966); State v. Caralluzzo, 49 N. J. 152 (1967). As Aponte points out, the standards are not explicitly stated in either New Jersey’s criminal or civil commitment statutes, but they should be read in. And again, I believe that equal protection mandates that the same standard be used for someone in Carter’s position (not guilty by virtue of insanity) as for all other civilly committed persons •—• that is, the standard of dangerous to self or others. Aponte v. State, supra, 30 N. J. at 455; In re Heulcelehian, 24 N. J. Super. 407, 409 (App. Div. 1953).

V

LEAST RESTRICTIVE ALTERNATIVE DOCTRINE

This case affords the Court an opportunity to incorporate the principle of the least restrictive alternative into our body of law governing criminal and civil commitments. We should accept it as a judicial interpretative tool. Under this principle, Carter would be conditionally released as a “less restrictive alternative” to full commitment, should it be demonstrated at a hearing that he is a fit subject for such release.

*422 The classic statement of this principle in . the mental health field 6 is that of Judge Bazelon in Lake v. Garrieron, 124 U. S. App. D. C. 264, 364 F. 2d 657 (D. C. Cir. 1966). There an elderly woman had been found wandering around, unable to care for herself: At a hearing she was found to be suffering from "chronic brain syndrome” associated with aging. She was adjudged of unsound mind and committed. In an action for habeas corpus relief, the Court of Appeals for the District of Columbia remanded the case to the District Court for inquiry into other less drastic courses of treatment. The alternative course of treatment, said the court, should be fashioned as the interests of the person and the public require. See also Covington v. Harris, 136 U. S. App. D. C. 35, 419 F. 2d 617 (D. C. Cir. 1969); Ashe v. Robinson, 146 U. S. App. D. C. 220, 450 F. 2d 681 (D. C. Cir. 1971) (doctrine is applied to someone acquitted on grounds of insanity). The majority opinion here seems almost to speak to this point when it indicates that rehabilitative ends might be better served by conditional release to a more normal environment. Since Lake , at least two courts have held that those seeking involuntary commitment must, as a requirement of due process, inquire into less restrictive alternatives to incarceration. Lessard v. Schmidt, 349 F. Supp. 1078 (E. D. Wis. 1973), rev’d on other grounds, 414 U. S. 473 , 94 S. Ct. 713 , 38 L. Ed. 2d 661 (1974); Matter of Kesselbrenner v. Anonymous, 33 N. Y. 2d 161, 350 N. Y. S. 2d 889 (N. Y. Ct. of App. 1973). Indeed, such an approach follows naturally from Jackson’s *423 due process holding that there must be some reasonable relation between the nature and duration of confinement and the purpose of which the individual is committed.

YI

STANDARD EOR CONDITIONAL RELEASE AND BURDEN OE PROOE

Einally (and this is the basis for my partial dissent) I am troubled by my inability to discern from the majority opinion what standard the Court would require a patient to meet in order to establish his eligibility for conditional release, and I am equally disturbed by the burden of proof —■ clear and convincing — which the majority decides Carter will have to sustain at his conditional release hearing.

As to the first, the majority says at one point that

[d]angerousness is not !! * * the sole criterion for release. If the patient is in a state of remission and there are sufficient medical assurances that he will pose no threat to society, there may be no danger to be feared from his conditional release. There may, however, be a rehabilitative purpose in retaining the patient in the hospital if further progress can be made in “curing” his underlying condition. Public protection may demand prolonged confinement in hopes of eventual recovery and release.

If this statement is intended to suggest that the state can take it upon itself to act in loco parentis to “rehabilitate” an involuntary civilly committed patient, I think the notion is nothing short of reprehensible. It is “big brotherism” at its worst. It amounts to the state taking someone never convicted of a crime and, lacking the “dangerousness” element, saying “we think it is for your own benefit to be locked up for a lifetime.”

Seemingly consistent with this first statement of a criterion is the observation later in the majority opinion that “¡VJlearly, dangerousness by itself is not a sufficiently specific guide to the formulation of conditional release standards.” However, later it is said that “[rjelease is to occur only ‘if *424 a combination of conditions may be found that would reduce the likelihood of dangerous behavior below the standard required for commitment * * *.’ ” The latter is adopted from Judge Bazelon’s concurring opinion in United States v. McNeil, 140 U. S. App. D. C. 228, 434 F. 2d 602 (D. C. Cir. 1970) and to me is plainly incompatible with the majority’s earlier efforts to articulate a standard, quoted above. I think the trial judge is entitled to clearer guidance than these irreconcilable statements furnish him. Por myself, it is apparent from what I have said elsewhere in this opinion that I would permit the conditional release to occur upon a showing that defendant has reached a stage where he is no longer dangerous to himself or others as long as he complies with the terms and conditions imposed on him by his conditional release.

But to require him to meet that standard by any more than the mere preponderance of the evidence revokes to a great extent the benefits of conditional release which is, by definition, something of a gamble. The standard of “clear and convincing proof” lies somewhere between the ordinary civil requirement of “preponderance of the evidence” and the criminal rule of “beyond a reasonable doubt.” New Jersey Rules of Evidence, § l(4)-4. However, at least two New Jersey cases 'have stated that “the line of demarcation between what is ‘clear, satisfactory and convincing’ and that which removes ‘all reasonable doubt’ is more fanciful than real,” In re Calef, 109 N. J. Eq. 181 (Prerog. 1931), aff’d 111 N. J. Eq. 355 (E. & A. 1932), cert. denied sub nom. Neely v. Stacy, 288 U. S. 606 , 53 S. Ct. 397 , 77 L. Ed. 981 (1933); State v. Cale, 19 N. J. Super. 397 (App. Div. 1952). Regardless of whether the “clear and convincing” test is viewed as being this strict or slightly less so, it is a difficult standard to meet — probably so difficult that as a practical matter Carter, or others in his position, are unlikely to be conditionally released if they must sustain this burden.

Application of the “clear and convincing” standard in the context of release of mental patients is novel in New Jersey. *425 As Me Gormiclc, Evidence 679 (1954) indicates, “clear and convincing” is commonly utilized only where there are special dangers of deception by the party on whom this burden is imposed. Therefore, that text tells us, this burden has been imposed where the undue influence of a mental incompetent is at issue, where an oral contract to make a will is sought to be proved, in suits for specific performance of an oral contract, where the terms of a lost will are being established, or where fraud is in question. New Jersey’s use of the “clear and convincing” standard has been even more limited. It has been adopted judicially to preserve the strong policy of the Statute of Wills, N. J. S. A. 25:1-1 et seq., which requires all wills to be in writing, and of the Statute of Frauds, N. J. 8. A. 3A:3-2, requiring certain types of contracts to be in writing. Where the courts have felt that equity dictated enforcement of such instruments, although not in writing, they have instituted the stricter standard of proof to “forestall trumped-up prayers for relief.” Aiello v. Knoll Golf Club, 64 N. J. Super. 156 (App. Div. 1960). See also In re Calef, supra; State v. Cale, supra; Coddinglon v. Jenner, 57 N. J. Eq. 528 (Ch. 1898), aff’d 60 N. J. Eq. 447 (E. & A. 1900). Additionally, this test has been adopted statutorily to relieve the harshness of the “dead man’s rule” that no oral evidence may be introduced against a dead man’s estate or his representatives. Under this statute, N. J. S. A. 2A :81-2, such evidence can be introduced, but proof of a claim against a dead man, relying upon such evidence, must be by “clear and convincing” proof, to guard against fraudulent claims in an area peculiarly open to trickery. For examples of cases applying this standard under the same statute, see Moran v. Estate of Pellegrino, 90 N. J. Super. 122 (App. Div. 1966); Busha v. Aguinaldo, 84 N. J. Super. 577 (Law Div. 1964).

No such mitigating factor presents itself in a conditional release decision. Such a proceeding is a simple civil determination and the standard normally utilized ■—■ preponderance of evidence — is the proper burden of proof for the *426 committed patient to bear. Hough v. United States, 106 U. S. App. D. C. 192, 271 F. 2d 458 (D. C. Cir. 1959); Bolton v. Harris, supra; In re Franklin, 7 Cal. 3d 126 , 101 Cal. Rptr. 553 , 496 P. 2d 465 (Cal. S. Ct. 1972); Newton v. Brooks, 246 Or. 484 , 426 P. 2d 446 (Or. Sup. Ct. 1967); (en banc); contra, State v. Blubaugh, 80 Wash. 2d 28 , 491 P. 2d 646 (Wash. Sup. Ct. 1971).

At the risk of being repetitious, I also observe that the “clear and convincing” standard seems open to constitutional challenge since it is a higher standard than that which all other civilly committed mental patients must meet; thus, it violates the equal protection clause of .the Pourteenth Amendment. As I have already pointed out, Jackson v. Indiana, supra, addressed itself specifically to the problem of more stringent commitment and release standards in the case of an unconvicted mental patient, and struck down a statute which imposed them. Additionally, as a policy matter, I would strike down a standard which seems to ignore the high value which has always been placed on human liberty by the American system of justice. In a day when some courts are requiring states to prove dangerousness “beyond a reasonable doubt” before they can involuntarily civilly commit someone, e. g., In re Ballay, 482 F. 2d 648 (D. C. Cir. 1973); Lessard v. Schmidt, supra, I do not agree that New Jersey’s policy should be to create such a difficult route for conditional release as is imposed here. 7

*427 The Court has today extended the application of a creative principle of law. It would be a bitter irony were the conditional release concept, both noble in principle and practical in its effect, permitted to founder on the shoals of an indefinite standard and an entirely inappropriate burden of proof. I fear that may be its fate. Therefore, as to those portions of the majority opinion which require meeting a standard greater than “dangerous to self or others” by a burden of more than “preponderance of the evidence,” I dissent.

Clifford, J., concurs in result.

For reversal and remandment—Justices Jacobs, Hall, Sullivan, Pashman and Clifford—5.

For affirmance—Hone.

The procedural jungle tlirougli which defendant has sought to make his way is portrayed in the majority opinion but perhaps bears repeating in chronological order as an aid to understanding the factual complex.

a. On January 10, 1969 defendant allegedly shot and wounded a police officer in Plainfield, New Jersey. He was lodged in Union County Jail and, in due course, indicted for atrocious assault and battery under N. J. 8. A. 2A :90-l, armed assault with intent to kill • in violation of W. J. 8. A. 2A :90-2 and N. J. 8. A. 2A :151-5, and receiving stolen property (a revolver) in violation of N. J. 8. A. 2A :139-1.

b. On March 18, 1969 Carter was admitted to Trenton State Hospital as a class “B” commitment, as defined by N. J. 8. A. 30 :4-25 (“Where immediate temporary confinement is necessary, owing to the condition of the patient, and where an order of temporary confinement can be obtained before the patient is taken into such institution [for the mentally ill].”).

c. On September 5, 1969 defendant was remanded to Union County Jail. The record does not enlighten us as to the reason for the remand or the circumstances under which it was effected.

d. On May 29, 1970 a sanity hearing under N. J. 8. A. 2A:163-2 was conducted in Superior Court, Union County. The Court took psychiatric testimony from experts for both the State and defendant, and concluded that “defendant was unable to confer with his attorney and assist in the proper defense of his case and * * * was insane at the time of the commission of the crime alleged in the indictment and * * * was insane at the time of the hearing and said insanity continued to that date * *

*411 e. On June 5, 1970 the Court ordered that “the prisoner, Milton Carter, be imprisoned in the New Jersey State Hospital at Trenton until further order of the Court, upon this conviction." (Emphasis added). Presumably, this unexplained, glaringly inappropriate language of “imprisonment” of a mental patient is chargeable to some clerical error, inasmuch as it appears on a typed-in printed form containing other archaic language. It should be noted that on May 10, 1971 the Court issued a “Judgment Nunc Pro Tunc” ordering that defendant be committed to the New Jersey State Hospital at Trenton, pursuant to N. J. 8. A. 2A :163-2, “until such time as he may be restored to reason as determined by the order of this Court * * because “the original judgment prepared and executed in this matter [has! been lost or misplaced,” despite which it is reproduced in one of the appendices by way of photostatic copy.

f. On July 1. 1970 an “Order Postponing Trial” indefinitely and transferring the matter to the “off term” was entered, for the reason that defendant has been “adjudged incompetent to stand trial and insane at the time of the act. 6-5-70.” The proper procedure, of course, would have been for the charges against defendant to have been dismissed, in keeping with N. J. 8. A. 2A: 163-2. All the parties hereto treat the indictment as having been dismissed, despite the absence of any formal order.

g. On April 21, 1971 a judge of the Superior Court, Mercer County, heard defendant’s petition for a writ of habeas corpus. The hearing was conducted at the Forensic Psychiatry Unit (Vroom Building) of the New Jersey State Hospital at Trenton. A deputy attorney general and deputy public defender were in attendance. The Court, after hearing testimony of one physician of the Hospital’s medical staff, found that Carter was “able to intelligently consult with counsel, form a defense and stand trial on the criminal charges pending against him.” The next day he granted defendant’s petition for his release and directed that he “be returned to Union County .for the purpose of standing trial on the charges now pending against him under indictment No. 311-68.”

Ponder, then, defendant’s plight at being sent back to a county jail to stand trial on an indictment the dismissal of which had been mandated by statute upon the finding of his insanity at the time of the act with which he was charged, which dismissal had been accomplished more than ten months’ previously and the consequence of which, as pointed out by the majority, was to create defendant’s status as “not a criminal, but an individual requiring medical atten *412 ticm.” I can only conclude that the judge who conducted the habeas corpus proceeding was unaware of the June 5, 1970 commitment (or “imprisonment”) order.

h. On September 7, 1971 after defendant had languished in Union County Jail to await trial on the now non-existent indictment, the Union County Court, Probate Division, ordered that Carter’s parents be appointed his guardians, it having been determined that defendant was “a mental incompetent and incapable of governing himself and managing his affairs.” On about that date defendant’s parents had Carter civilly committed to the New Libson State School, a facility for the mentally retarded, because, according to his attorney, of the “hospital staff’s findings that Milton Carter’s basic problem was mild mental deficiency, rather than psychosis.”

i. On November 11, 1971 defendant was “administratively transferred” to the New Jersey State Hospital at Trenton.

j. On January 12, 1972 defendant was released in the custody of his parents as his guardians, this discharge being effected by order of the Medical Director and without any court approval.

k. In March, 1972 the original committing judge wrote the Prosecutor requesting a review of the matter in light of State v. Maik, 60. N. J. 203 (1972).

l. On June 30 and July 6, 1972, on Motion of the Prosecutor of Union County, a sanity hearing was held, with an assistant prosecutor representing the State and a deputy public defender appearing for defendant.

m. On July 7, 1972 the court held that defendant has “not been restored to reason,” and further determined that Carter had been “erroneously released on April 22, 1971 from the New Jersey State Hospital at Trenton.” It consequently remanded Carter to the Hospital “until further Order of this Court,” which commitment order has been stayed.

n. Since January 12, 1972 defendant has been living at home with his parents and brothers and sisters. He has been gainfully employed and has attended Union County Psychiatric Clinic on a regular basis. While testimony at the June 30 and July 6, 1972 sanity hearing was sharply in conflict as to defendant’s mental condition, it was uncontradicted that defendant had been making $80.00 a week of which he gave his mother $20.00 to bank. By the time of the hearing he had saved $300.00. He is now 28 years old and has an I.Q. of 67.

I confess to a question in my own mind about the extent to which the conditional release provisions referred to are actually employed in our mental institutions. While the concept embodied in this statutory provision is said to be “essential to the modern psychiatric thera■peutic model,” Note, “Release from Confinement of Persons Acquitted By Reason of Insanity in New Jersey,” 27 Rutgers L. Rev. 160 , 172 n. 89 (1973), there appear to be no cases discussing this part of the statute, and its use seems to be either limited or non-existent. The reasons for this are, of course, purely speculative. It may be that there is a reluctance on the part of the authorities to resort to the “parole” arrangements, not simply because of an aversion to the parole label as conjuring up “prisoner” connotations, but more importantly because of a concern that the threat of return to the institution may not be a helpful therapeutic aid in the treatment of the mentally ill. I suspect that the psychiatrists would be happy to have imposed upon them legislatively a system of conditional release which would require a new commitment order to the institution upon a failure of the conditions, rather than a return to the institution under the original commitment order, as apparently contemplated by the present statute. I repeat, this rumination is grounded in what I trust is excusable speculation in this area, there being no reliable information in the record before us. However, the legislature has made its declaration of policy, and that in itself provides a most adequate underpinning for the equal protection argument.

While I need not reach the point in this opinion, I would also observe that this interpretation is consistent with the United States Supreme Court’s language to the effect that penalizing someone for having a “disease” constitutes cruel and unusual punishment. Robinson v. California, 370 U. S. 660 , 82 S. Ct. 1417 , 8 L. Ed. 2d 758 (1962) ; Powell v. Texas, 392 U. S. 514 , 88 S. Ct. 2145 , 20 L. Ed. 2d 1254 (1968).

Procedures to commit must certainly be the same. In United States ex rel. Schuster v. Herold, 410 F. 2d 1071 (2d. Cir.), cert. denied 396 U. S. 847 , 90 S. Ct. 81 , 24 L. Ed. 2d 96 (1969) it was held that a prisoner who had been transferred during his prison term to Dannemora State Hospital for the criminally insane without notice or hearing, as was accorded to civilians undergoing commitment, was entitled to a hearing under the equal protection clause. Such prisoner, it was held, would be subject to additional deprivations and indignities in the hospital above those he suffered in prison, and would additionally be effectively deprived of the opportunity for parole. Therefore, he was entitled to substantially all the procedures granted to noneriminals who are involuntarily committed. Additionally, the same test for commitment must be applied to both classes of persons. Other cases standing for essentially the same principle are Matthews v. Hardy, 137 U. S. App. D. C. 39, 420 F. 2d 607 (D. C. Cir. 1969) ; cert. denied 397 U. S. 1010 , 90 S. Ct. 1231 , 25 L. Ed. 2d 423 (1970) ; Commonwealth v. Druken, 356 Mass. 503 , 254 N. E. 2d 779 (Sup. Jud. Ct. Mass. 1969).

In Davy v. Sullivan, 354 F. Snpp. 1320 (M. D. Ala. 1973) a United States District Court, citing Jackson , held that the release *420 of a person incarcerated under Alabama’s sexual psychopathic statute cannot constitutionally be conditioned on full and permanent recovery where he is not likely to benefit from further treatment and where he is not dangerous to himself or others.

The least restrictive alternative doctrine has been utilized widely in other areas of constitutional law. E. g., Dean Milk Co. v. City of Madison, 340 U. S. 349 , 71 S. Ct. 295 , 95 L. Ed. 329 (1951) (burden on interstate commerce) ; Shelton v. Tucker, 364 U. S. 479 , 81 S. Ct. 247 , 5 L. Ed. 2d 231 (1960) (free association) ; Dunn v. Blumstein, 405 U. S. 330 , 92 S. Ct. 995 , 31 L. Ed. 2d 274 (1972) (voting rights). The classic article on the subject is Wormuth & Mirlan, “The Doctrine of the Reasonable Alternative,” 9 Utah L. Rev. 254 (1964).

The justification suggested by the majority opinion for elevating the standard of proof to “clear and convincing” is that public safety would be undermined by a lesser standard. To support this rationale, the Court discusses the inexactness of psychiatry as a science, implying that because of it psychiatrists might easily testify erroneously as to a patient’s dangerousness, with the result that many still-dangerous patients would surely be released. However, I read psychiatric uncertainty to mitigate in favor of just the opposite result. It seems to me far more likely that psychiatrists, who incline toward treating persons whom they view as “abnormal,” are likely to be more, not less, cautious in recommending release of a committed patient than is really warranted. See Singer, “Sending Men to Prison: Oonstitu *427 tional Aspects of the Burden of Proof and thp Doctrine of the Least Drastic Alternative as Applied to Sentencing Determinations,” 58 Cornell L. Rev. 51 , 84 (1972). That this is so is demonstrated by results of the mass exodus from maximum security mental institutions following the decision in Baxstrom v. Herold, supra. Before this decision, prisoners who had served out their terms and who were still considered “dangerous” were automatically transferred to maximum security criminal mental hospitals. When this procedure was declared violative of equal protection, 900 “dangerous” inmates were transferred to less secure institutions, and of these over 140 were released completely within one year. See Hunt & Wiley, “Operation Baxstrom after One Year,” 124 Am. J. Psychiatry 974 (1968). Additionally, a leading criminologist has stated that psychiatry cannot assure, even to a 50% likelihood, that a given person is “dangerous,” Morris, “Psychiatry and the Dangerous Criminal,” 41 S. Cal. L. Rev. 514 (1968).