Amicus Brief — Jones v. United States

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Supreme Court, U.S.

FILED

MAR 24 1982

No. 81-5195

ALEXANDER L. STEVaS

CLERK

IN THE

Supreme Court of the United States

October Term, 1981

MICHAEL JONES,

Petitioner,

UNITED STATES OF AMERICA,

Respondent.

On Writ of Certiorari to the

District of Columbia

Court of Appeals

— ———

--— —

BRIEF OF AMICUS CURIAE, DEPARTMENT OF THE PUBLIC

ADVOCATE, DIVISION OF MENTAL HEALTH

ADVOCACY, STATE OF NEW JERSEY

———

—

JOSEPH H. RODRIGUEZ

Public Advocate

MICHAEL L. PERLIN

Duwrector

STANLEY C. VAN NESS Division of Mental Health Advocacy

Public Defender Department of the Public Advocate

JOHN J. ENSMINGER Counsel of Record

Division of Mental Health Advocacy Richard J Hughes Justice Complex

CN 850 :

Of Counsel and on the Brief. Trenton, NJ 08625

——oooooeeeeeeeeeeee

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TABLE OF CONTENTS

INTEREST OF AMICUS CURIAE

SUMMARY OF ARGUMENT

ARGUMENT

DUE PROCESS REQUIRES THAT

AN INDIVIDUAL FOUND NOT

GUILTY BY REASON OF INSANITY

NOT BE CONFINED TO A MENTAL

HOSPITAL INDEFINITELY ON

THE BASIS OF THAT FINDING

ALONE

A. New Jersey Has Evolved

An Efficient And

Constitutionally Ad-

equate System For The

Disposition Of Cases

Wherein There Has Been

An Acquittal Of A

Criminal Charge By

Reason Of Insanity

b. Considerations of Equal

Protection And Due Process

Require That, After A

Permissible Observation

Period, An Acquittee Not

Have His Liberty Restricted

Absent A Judicial Finding

Of Continuing Dangerousness

As A Result Of Mental

Illness

PAGE

II. CONSIDERATIONS OF EQUAL

PROTECTION REQUIRE THAT A

DEFENDANT FOUND NOT GUILTY

BY REASON OF INSANITY

SHOULD RECEIVE THE SAME

PROCEDURAL PROTECTIONS

AFFORDED CIVIL COMMITTEES 24

A. The Burden Of Proof

For Establishing Con-

tinuing Dangerousness

And Mental Illness

Of An Acquittee

Should Lie With The

Prosecuting Authority 24

B. Distinctions In The

Procedural Gurantees

Afforded Acquittees And

Committees Cannot Be

Justified On The Basis

Of Any Scientifically Or

Legally Supportable

"Presumption Of Continuing

Insanity" 2

C. The Prosecuting Authority

Should Bear The Burden Of

Proving The Committability

Of An Acquittee By Clear

And Convincing Evidence 38

CONCLUSION 40

iii

TABLE OF CASES AND AUTHORITIES

PAGE

Bar dee v. Texas, 441 U.S.

) 9, 12, 33,

Baxstrom v. Herold, 383 U.S.

107 (1966) 16, 30,31

Benham v. Edwards, 501 F. Supp.

-D. - 1980) 8, 29, 30,

31, 32, 36,

37, 38

Bolton v. Harris, 395 F. 2d

-C. Cir. 1968) 28

Dixon v. Attorney General of

the Commonwealth of Pennsylvania,

Pasulo v. Arafeh, 173 Conn.

473, 3170 A. 24 553 (1977) | 26, 27

In re Scelfo, 170 N.J. Super.

P A. 2d 939

(App. Div. 1979) 4, 9

Jackson v. Indiana, 406 U.S. 115

T1572) ie at 16

Jones v. U.S., 396 A. 2d 183

(D.C. Ct. App. 1978) 14

Kremens v. Bartley, 431 U.S.

119 (1977) 3

Matter of Newsome, 176 N.J.

Super. 511, 424 A. 24

App. Div. 1580)

Mills v. rs, cert.

grant - ap 2 =-, LOL

S. Ct. 1972 (1981) , motion

for leave to file brief

amicus curiae out-of-time

den., 50 U.S.L.W. 46 (1982)

O'Connor v. Donaldson, 422

Parham v. J.R., 442 U.S. 584

T1979) ini

People v. Chavez, 629 P. 2d

Tae (Colo. Sup. ct. 1981)

Polk County v. Dodson, --

Oe Wy . t. 45

T1981) “3

ae v. Illinois, 405 U U.S.

State v. Carter, 64 N.J. 382,

. 1974)

State v. Fields, 77 N.J. 282,

. 1978)

State v. Krol, 68 N.J. 236,

9, 10, ll,

12, 13, 16,

18, 22, 25

8, 9, ll,

12, 17, 18,

19, 20, 24,

25, 29, 35

PAGE

United States v. Brown, 478

F. 24 606 (D.C. Cir. 1973) 28, 39

Waite v. Jacobs, 475 F. 2d

-C. Cir. 1973) 27, 30

STATUTES AND REGULATIONS

N.J.S.A. 2C:4-1 7

N.J.S.A. 2C:4-8 4, 7, 9,

14, 15

N.J.S.A. 2C:4-8a 8

N.J.S.A. 2C:4-8b(3) 9, 10

N.J.S.A. 2C:4-9 7, 14

N.J-S.A. 30:4-23 24

N.J.S.A. 52:27E-24 2

N.J.S.A. 52:27E-25 | 2

N.J. Ct. R. 3:19-2 7, 10, 22

N.J. Ct. R. 4:74-7 7, 10

N.J. Ct. R. 4:74-7(f) 9, 22

OTHER AUTHORITIES

American Psychiatric Association,

Clinical Aspects of the Violent

Individual T1574)

Arieti, Interpretation of

Schizophrenia (1974)

Cocozza, Melick and Steadman,

"Trends in Violent Crime Among

Ex-Mental Patients,” 16 Criminol.

317 (1980)

Grumberg, Klinger and Grumet,

“Homicide and Community-Based

Psychiatry,” 166 J. Nerv. and

Ment. Disease 868

‘Lamb and Grant, "The Mentally

Ill In An Urban County Jail,"

39 Arch. Gen. Psych. 17 (1982)

Levine, "Criminal Behavior and

Mental Institutionalization,"

J. Clin. Psychol. 1134 (1977)

Monahan and Steadman, "Crime

and Mental Disorder” in Crime

and Justice: An Annual Review

of Research (Morris and Tonry,

Pressier, Current N.J. Court

EH Comment to R. 3:19-2

PAGE

18, 37

37, 38

vii

PAGE

Quinsey, “Release From A

Maximum Security Psychiatric

Institution: Demographic and

Clinical Variables," 6 Crim.

Just. & Behav. 390 (1979) 32, 36

Quinsey and Ambtman, "Var-

iables Affecting Psychiatrists

and Teachers’ Assessments of

the Dangerousness of Mentally

Ill Offenders,” 47 J. Consult.

& Clin. Psychol. 353 (1979) 35

Rabkin, “Criminal Behavior of

Discharged Mental Patients:

A Critical Appraisal of the

Research," 86 Psychol. Bull.

(1979) 19, 32, 36,

Steadman, "The Right Not To

Be A False Positive: Problems

in the Application of the

Dangerousness Standard,”

52 Psych. 84 (1980) 35

Steadman and Morrissey, "The

Statistical Prediction of

Violent Behavior: Measuring

the Costs of a Public

Protectionist Versus An

Civil Libertarian Model,”

Law _& Human Behavior (in

press) 19

Thornberry and Jacoby, The

Criminally Insane: A

Community Follow-up of

Mentally 111 Sotankee

(1980) 20, 32

NO. 80-5195

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1981

MICHAEL JONES,

Petitioner,

UNITED STATES OF AMERICA,

Respondent.

ON WRIT OF CERTIORARI TO THE

DISTRICT OF COLUMBIA COURT OF APPEALS

BRIEF OF AMICUS CURIAE,

DEPARTMENT OF THE PUBLIC ADVOCATE,

DIVISION OF MENTAL HEALTH ADVOCACY,

STATE OF NEW JERSEY

INTEREST OF AMICUS CURIAE

This case presents questions

concerning the procedural rights of

individuals found not guilty by reason of

insanity. Amicus curiae, the

Division of Mental Health Advocacy of the

New Jersey Department of the Public Advocate, +

The Division of Mental Health Advocacy,

a State agency within the New Jersey Depart-

ment of the Public Advocate, created by the

New Jersey legislature in 1974, has two

primary statutory functions: It “may

provide .. . legal representation...

for any indigent mental hospital admittee's

admission to, retention in, or release from

confinement in... [a mental hospital or

a similar facility]," N.J.S.A. 52:27E-24,

and it “may represent the interests of

indigent mental hospital admittees in such

disputes and litigation, as will... best

advance [their] interests as a class on

an issue of general application to them,"

N.J.S.A. 52:27E-25.

represents such individuals in nine of

the state's 21 counties. * The Division

has handled litigation in which various

aspects of the issues present in the

instant case have been addressed by the

New Jersey courts. In these cases, the

Division has generally taken positions

consistent with those advocated by

petitioner in the instant matter. Be-

cause of its involvement and concern in

these matters, the Division desires to

inform the parties and this Court about

New Jersey's experience with its system

for assuring the rights of acquittees.

2pivision statistics indicate that

Division attorneys have represented 54

acgquittees at release hearings in the

last six months.

3nhe Division of Mental Health Advocacy

has also submitted, or moved for leave to

file, briefsas amicus curiae in three

other cases before this Court involving

mental health issues within the experience

and expertise of the Division and relevant

to its work in New Jersey. Kremens v.

Bartley, 431 U.S. 119 (1977),

Additionally, tHis case may resolve

an apparent conflict between New Jersey

Appellate Division decisions (In re Scelfo,

170 N.J. Super. 394, 406 A. 2d 973

(App. Div. 1979) and Matter of Newsome, 176

N.J. Super. 511 424 A. 2d 222 (App. Div.

1980)), and a recent revision of the New

Jersey statutory scheme relative to ac-

quittees (N.J.S.A. 2C:4-8), as to the

burden of proof appropriately borne by the

state in proceedings determining the

committability of such acquittees.

Because of its statutory role and

experience in these matters.and because its

concern about the possible effect of this

case on New Jersey law in this area, the

Division has sought leave from the parties

to file its brief amicus curiae. Both

parties to. this case have consented and

their consents are being filed herewith.

Parham v. J.R., 442 U.S- 584 (1979), and

s Vv. rs, cert. ant. -- U.S. <=

» Ge (1981), motion to file brief

amicus curiae out of time den, 50 U.S.L.W.

35a6 (1582). iter

SUMMARY OF ARGUMENT

Amicus wishes to share with this Court

and the parties a description of the development

of New Jersey law relative to the procedures of

incarceration and release of persons found not

guilty by reason of insanity of criminal offenses,

particularly as that development has been affected

by opinions of the United States Supreme Court.

Amicus, against the background of the New Jersey

experience, asserts that due process requires

that, except for an initial observation and

examination period, an acquittee may not be

committed or restricted except upon a finding of

continuing mental illness and dangerousness.

Further, amicus maintains equal protection

requires that an acquittee should receive the

same procedural protection afforded

committees. As to burden of proof, it is

amicus’ position that the prosecuting

authority should bear the burden of proving

the committability of the acquittee and

that no “presumption of continuing

insanity” should be used to shift this

burden to the acquittee. Finally, the

burden borne by the prosecuting authority

should be one requiring proof by evidence

that is at least clear and convincing.

ARGUMENT

I. DUE PROCESS REQUIRES THAT

AN INDIVIDUAL FOUND NOT

GUILTY BY REASON OF INSANITY

NOT BE CONFINED TO A MENTAL

HOSPITAL INDEFINITELY ON

THE BASIS OF THAT FINDING

ALONE.

A. New Jersey Has Evolved

An Efficient And

Constitutionally Ad-

equate System For

Disposition Of Cases

Wherein There Has Been

An Acquittal Of A Criminal

Charge By Reason Of

Insanity.

The present system of confinement

and release of persons found not guilty by

reason of insanity in New Jersey is found in

the New Jersey statutes and Rules of Court.

criminal offense by reason of insanity,

4 5

If a defendant is acquitted of a

4n.3.S.A. 2C:4-8 and 2C14-9 specifically deal

disposition of persons found not guilty

by reason of insanity. They are set forth in

Appendix A, infra.

5y.J. Ct. R. 3:19-2, as effective September 1,

, reads as follows:

If a defendant interposes the defense

of insanity and the defendant is

acquitted after trial on that ground,

the verdict and judgment shall so

state. Upon the return of a verdict

of "Not Guilty By Reason on Insanity"

or entering of judgment to that effect

by a court sitting without a jury,

the procedure for disposition of the

defendant shall be as provided by

N.J.S.A. 2C:4-8 and 2C:4-9 and

:/4-7.

R. 4:74-7 is the court rule concerning civil

commitments. Relevant portions of the rule are

set forth in Appendix B, infra.

According to N.J.S.A. 2C:4=-1:

A person is not criminally responsible

for conduct if at the time such con-

duct he was laboring under such a

defect of reason, from disease of the

mind as not to know the nature and

quality of the act he was doing, or

if he did know it, that he did not

know what he was doing was wrong.

Insanity is an affirmative defense

which must be proved by a preponderance

of the evidence.

the court will order the defendant to under-

go a psychiatric examination to aid in the

determination of the appropriateness of

confinement or restriction of the acquittee.

If this examination is conducted while the

acquittee remains institutionalized, it

must, pursuant to the case of State v. Krol,

68 N.J. 236, 256, 344 A. 2d 289, 300 (1975)

be completed within 60 days.’ The acquittee

may, pursuant to N.J.S.A. 2c :4-8a,° also

be examined by a psychiatrist of his own

choice.

Tin providing for the 60 day period of

observation and examination, pret noted:

Proof by defendant that s

criminal conduct was the result

of mental illness provides sufficient

justification for holding him in

custody for a reasonable period of

time to determine if he in fact should

be indefinitely committed.

I See Benne eres 501 F. Supp. 1050,

9 (N.D. " » noting that a consensus

of jurisdictions have accepted automatic

observation periods but that two have rejected

them (Indiana, Wisconsin).

Srext of statute in Appendix A.

A hearing is then conducted at

which the state bearr the burden of showing

that the acquittee is mentally ill and poses

a danger such that hospitalization or other

suitable restraints are appropriate. The

burden placed upon the state at this hearing

is, by N.J.S.A. 2C:4-8b(3), one of

preponderance.” The court shall thereupon

enter an order providing for the appropriate

level of restraint.

See App. A for text of statute. It must be

noted that this was also the burden established

by the court in Krol, 68 N.J. at 257, 344 A. 2d

at 300. However, both panels of the New Jersey

Appellate Division which have considered the

question have concluded, subsequent to this

court's decision in Adding <on v. Texas, 441 U.S.

418 (1979), that a “clear conv g"

burden was pe rma pees yes | requisite for in-

voluntary institutionalization of acquittees.

a 170 N.J. S r, at 397, 406 A. 2d at 975;

oP - at 517, 424 A. 2d at

ne er Scelfe nor Newsome dealt

with neantaen " aevermining the jtial appropriate-

ness of commitment (N.J.S.A. infra

App. A) outlined judically Krol.

Rather, these two decisions dealt with hearings

_— Rigg mire ne gee! for the review and alteration

the initial commitment outlined pr Y

by te v. Fields, 77 N.J. 282, 390 A. 2d 574

O78 and ae Wd ~ R. 4:74-7(£), App. B.)

The degree of po conflict will be

@iscussed infra.

The periodicity of court review --

absent motion by a party -- is thereafter

identical to that received by a civil

committee as specified by N.J. Ct. R. 4:74-

7,20

This rule requires review “at intervals

of three months, nine months and twenty-one

months from the date of the judgment of

commitment and at least annually thereafter,

if necessary." Fields, 77 N.J. at 312, n.

ll, 390 A. 2d at 589.

At each such periodic review the

state continues to bear the burden of proof.

Fields, 77 N.J. at 295, 390 A. 2d at 580.

However, as indicated at n. 9, supra, the

level of the burden to be met is open to

some doubt at this time. N.J.S.A. 2C:4-8b(3),

N.J.Ct. R. 3:19-2, n. 5 supra, contams

specific reference to N. J. Ct. K. 4:74-7.

Amendment of the rule in 1979 to include this

reference was by way of conforming practice

concerning acquittee review procedures to

directives of the State Supreme Court in

- See Pressler, pee N.J. Court

Rules, Comment to R. 3:19- , at 438.

effective December 23, 1981, states that

“during the maximum period of imprisonment

that could have been imposed," had the

11 the continued

acquittee been found guilty,

commitment of the acquittee "shall be es-

tablished by a preponderance of the evidence."

This is consistent with the holdings of Krol,

68 N.J. at 257, 344 A. 2d at 300, and

Fields, 77 N.J. at 299-300, 399 A. 24 at 583.)

11sce text of statute, App. A., explaining

factors for calculation of "maximum period of

imprisonment."

1255 both cases the State Supreme Court noted

there were other jurisdictions employing more

stringent standards. Krol, 68 N.J. at 257,

n. 9, 344 A. 2d at 299; Fields, 77 N.J. at 299,

n. 6., 390 A. 24 at 586. In the latter foot-

note, the court commented:

We note that the United States

Supreme Court has recently agreed

to review this issue in the civil

— context. State v.

ngton... until the court

speaks as to the requirements of

the federal constitution in this

regard, we perceive no constitution-

al infirmity in continuing to employ

the preponderance standard in

New Jersey.

However, this would appear to be in conflict

with two holdings of the Appellate Division,

n. 9 supra, which construed Addington in the

context of the logic developed in Krol and

Fields. These courts concluded that patients

previously found not guilty by reason of

insanity could only be continued in confinement

at review hearings if the state met a burden

of showing the necessity for continued

confinement by clear and convincing evidence.

Moreover, the Scelfo court determined that

its holding was retroactive. 170 N.J. at

397, 406 A 2d at 975.

In addition to those hearings

regularly scheduled for review of commitment,

an acquittee may in the interim request judicial

review of the current validity of the

restrictions on his liberty. Fields, 77 N.J.

at 304, 390 A. 2d at 584. The court need not

grant the request absent "a prima facie showing

that a material change in circumstances has

occurred since the last periodic review hearing.”

Id. However, unlike the situation at a

regularly scheduled periodic review, in an

acquittee-initiated review the acquittee himself

bears the burden, by a preponderance of the

evidence, that his request for modification or

termination of restraints be grantea.+?

13ehis conforms to habeas corpus practice in the

District of Columbia. Respondent's brief at

5, n. 4. The Fields court supplemented its

reasoning by remarking.

We do not interpret the principles

of due process to require the State

to bear the burden of proof at eve

proceeding where the validity o

the prevailing restraings upon the

liberty of the committee is considered.

As we have noted .. . the order

entered after each periodic review

walidates the restraints imposed

therein until the next such hearing.

Hence, a committee-initiated review

proceeding seeks modification of

restraints whose current validity is

presumptively established as a result

of the adjudication at the most recent

periodic review. We perceive no

constitutional obstacle to requiring

the party who seeks change in the

presumptively valid status quo to bear

the burden of demonstrating the .

necessity for such a change.

77 N.J. at 304, n. 9, 390 A. 2d at 585. It is

Additionally, N.J.S.A. 2C:4-9

provides that if "the commissioner [of Human

Services], or his designee, or the

Superintendent of the institution” to which a

person has been committed pursuant to

N.J.S.A. 2C:4-8, is “of the view"that this

person may be discharged or released with

conditions, he may so apply to the Court.

The court may obtain additional psychiatric

reports, if it desires, and may follow the

recommendations it receives without a hearing,

or, if not satisfied, order a hearing which

appropriate to note here that in the District

of Columbia, acquittees also bear the burden

of proof at hearings they initiate. Respondents’

brief at 3, n. 1. However, the difference

between New Jersey and the District is that,

unlike New Jersey, in the District there are no

reqularly scheduled reviews at which the

prosecuting authority bears the burden. The

District of Columbia panel did, however, mandate

that the Superintendent of St. Elizabeth's or

his subordinates should examine the patient

every six months to determine potential

eligibility for release. Jones. v. U.S.

A. 24 183, 190 (App. D.c. I578).

shall be conducted in the manner outlined

in N.J.S.A. 2C:4-8. No statement is made

in the statute as to who might bear the

burden at such a hearing and, as of yet,

there is no case law on the question. *4

B. Considerations Of Equal

Protection And Due Process

Require That, After A

Permissible Observation

Period, An Acquittee Not Have

His Liberty Restricted

Absent A Judicial Finding

Of Continuing Dangerousness

As A Result Of Mental Illness.

The New Jersey Supreme Court has

enunciated a clear doctrine of the sub-

stantial identity of acquittees and committees

in terms of committability;

Apparently there is similar confusion as

to the placement of the burden in the District

of Columbia's analogous statute. Respondent's

brief at 3, n. l. An ingenious solution to

this problem has been devised in Colorado

where the burden is borne by the party con-

testing the recommendation of the chief

officer of the custodial institution.

People v. Chavez, 629 P. 2d 1040 (Colo. Sup.

A defendant who has avoided

criminal sanction by establish-

ing his insanity at the time

he committed the offense for

which he was tried stands on

essentially the same legal

footing, in terms of his

amenability to involuntary

commitment, as any other member

of society ... + Prospective

NGI [not guilty by reason of

insanity] committees and pro-

spective civil committees are

constitutionally indistinguish-

able in terms of their entitlement

. to procedural and substantive

due process rights.

Fields, 77 N.J. at 297, 390 A. 2d at 581.

It is clear that the court was making

an effort to conform its logic to that

previously developed by the Supreme Court of

the United States. In Krol, after analyzing

Baxstromv. Herold, 383 U.S. 107 (1966) and

Jackson v. Indiana, 406 U.S. 715 (1972), the

New Jersey Supreme Court concluded:

By way of footnote to the first sentence the

Court noted the justifiable exception of an

“automatic temporary commitment following an

insanity acquittal for purpose of psychiatric

evaluation of the acquittee's present mental

condition." See analysis, at n. 9 supra.

[T]he Supreme Court in these

Opinions has plainly attempted

to enunciate a broad principle --

that the fact that the person

to be committed has previously

engaged in criminal acts is not

a constitutionally accepted

basis for imposing upon him a

substantially different standard

ef procedure for involuntary

commitment. The labels “criminal

commitment" and “civil commit-

ment" are of no constitutional

significance.

68 N.J. at 251, 344 A. 2d at 297.

It must be immediately stated that in

no way has the New Jersey Supreme Court suggested

that the fact that the acquittee has committed

a crime is to be ignored. Far to the

contrary, the court has stated:

It is appropriate for the

{trial] court to give substantial

weight to the nature and

seriousness of the crime

committed by defendant and its

relationship to his present

mental condition.

Krol, 68 N.J. at 261, 344 A. 2d at 302.

Nor is the fact to be ignored at periodic reviews;

the acquittee's "propensity, by reason of his

mental illness, to engage in serious antisocial

conduct has on at least one occasion

crystallized into the commission of what

otherwise would constitute a criminal

offense." Fields, 77 N.J. at 308, 390

A. 2d at 587.

The relevance of the prior anti-

sociai conduct to present mental illness

and dangerousness remains a question of fact:

Empirical studies suggest that

prior criminal conduct is an

important factor -- perhaps the

most important -- in the pre-

diction of future dangerous

conduct. (Citations omitted.)

Krol, 68 N.J. at 261, 344 A. 24 at 302.76

Por a recent analysis of the literature

in support of this proposition, see Cocozza,

Melick and Steadman, "Trends in Violent

Crime Among Ex-Mental Patients," 16 Criminol.

317, 330 (1978). See also

Nevertheless, the Krol court

made the following observations which

certainly must inspire caution in any

reliance that is placed upon the prior

anti-social conduct:

Even persons suffering from

mental illness who have

committed prior criminal

acts have not been shown to

be consistently substantially

more dangerous than other

persons suffering from mental

illness ... (Citations

omitted.)

Krol, 68 N.J. at 247, 344 A. 2d at 295. A

long term study of criminally insane patients

Rabkin, “Criminal Behavior of Discharged

Mental Patients: A Critical Appraisal of

the Research," 86 Psychol. Bull. 1, 21 (1979),

noting that “the best predictor of sub-

sequent arrest for violent crime was arrest

for one or more violent crimes preceding

hospitalization." This is, of course, to

be kept in the perspective that, “arrests

for criminal acts are comparatively rare

events... " Id. at 2. This latter point

is prevalent in the literature. Steadman

and Morrissey, "The Statistical Prediction Of

Violent Behavior: Measuring the Costs of a

Public Protectionist Versus A Civil Lib-

ertarian Model,” Law & Human Behavior (in

press) ("Clearly the most parsimonious

manner to reduce the number of errors of

either clinical or statistical predictions

of dangerousness is to predict no one will

be dangerous.") (manuscript, at 13).

released as a result of a federal court

decision in Pennsylvania [Dixon v.

Attorney General of the Commonwealth of

Pennsylvania, 325 F.Supp. 966 (M.D. Pa.

1971)] concluded:

In any population of the

criminally insane, the pro-

portion who would repetitively

commit serious violent acts is

quite small and the overall

licy concerning the treatment

i the cr a x sane s

not be on vior

of this small subor °

Thornberry and Jacoby, The Criminally Insane:

A_ Community Follow-up of Mentally I11

Offenders 210 (1980) (emphasis added).

The Krol court summarized its

reasoning, as applied in this regard to

the first post-commitment hearing, by stating;

The fact that defendant is

presently suffering from some

degree of mental illness and

that at some point in the past

mental illness caused him to

commit a criminal act, while

certainly sufficient to give

probable cause to inquire into

whether he is dangerous, does

not, in and of itself, warrant

the inference that he presently

poses a significant threat of

harm, either to himself or

to others.

68 N.J. at 247, 344 A. 24 at 295.2”

Having developed its reasoning

as to the substantial identity of ac-

quittees and committees, the court felt,

when faced with the issue, that this must

extend to the availability of automatic

periodic judicial review. Such reviews

were mandated by the court, “in response

to O'Connor v. Donaldson [433 U.S. 563

(1975)]," by means of a civil practice

17 one “probable cause” for inquiry to

which the court referred must not be

mistaken for any kind of presumption of

continuing insanity, an argument “whose

soundness is doubtful at best...

The decisive consideration where per-

sonal liberty is involved in that each

individual's fate must be adjudged on

the facts of his own case, not on the

general characteristics of a ‘class’ to

which he may be assigned.” Id. at

255, 344 A. 2d at 299.

rule. Fields, 77 N.J. at 297, 390 A. 2d

at 581. In requiring that the same procedures

be made available to acquittees, the court

stated simply:

In light of the constitutional

imperative of substantially

equal Cenenenes-pommenees, Be

Jackson, we scern

no constitutionally satisfactory

justification for denying

able protection to NGI

committees.

1a.39

a4 It must be emphasized that the court

has endeavored to advise the trial judges, of

New Jersey that “(t]he final decision on the

need for an appropriate extent of restrictions

on the committee's liberty is for the court,

not the psyc hiatrists" (emphasis in original).

Fields, 77 N.J. at 308, 390 A. 24 at 587. 7°

18y 5. Ct. R. 4:74-7(f); see App. B. inf 1.

19 ccordingly, the court referred the matter

to its Criminal Practice Committee which re-

vised N.J. ct, - 3:19-2 to its present

= see n. supra. See also, n. 10 supra,

App. B.

200he loyalties of state-employed psychiatrists

may, in any case, bé somewhat divided. We

y , = U.S. == 102 S. Ct.

In indicating the caution that should be taken

in these cases, the court remarked:

{E]ven where the committee's

condition shows marked improve-

ment, only the most extra-

ordinary case would justify

modification in any manner other

than by a gradual de-escalation

of the restraints upon the

committee's liberty. For

example, where the state is

unable to justify the continu-

ance of an order for restrictive

confinement, the outright re-

lease of the committee into

the community without the use

of any intermediate levels

of restraint . . . would normally

constitute a manifestly

mistaken exercise of the

reviewing court's discretion.

Id. at 303, 390 A. 2d at 584.

On the basis of the foregoing, it

can therefore be concluded that the New Jersey

system of treating acquittees operates both

efficiently and consistently in accordance

with federal case law and current scientific

thinking about the nature of this population.

II. CONSIDERATIONS OF EQUAL

PROTECTION REQUIRE THAT A

DEFENDANT FOUND NOT GUILTY

BY REASON OF INSANITY

SHOULD RECEIVE THE SAME

PROCEDURAL PROTECTIONS 21

AFFORDED CIVIL COMMITTEES.

A. The Burden Of Proof

For Establishing Con-

tinuing Dangerousness

And Mental Illness Of

An Acquittee Should Lie

With The Prosecuting

Authority.

In 1974, in the case of State v. Carter,

64 N.J. 382, 316 A. 24 449 (1974), the New

Jersey Supreme Court declared that an acquittee,

at a hearing seeking discharge, bore the burden

of proving his eligibility for conditional

2los the three differences between the

statutory schemes of the District of Columbia

for acgquittees and committees -- jury trial,

placement of proof burden and sequisite

quanta of proof -- amicus will only comment

on the latter two. ury trial issue could

not arise in New Jersey, at least in any

similar context, because "[c]ivil commit-

ments under N.J.S.A. 30 .4-23 et « are

nonjury proceedings.” Krol N.J. supra

at 264, n. 14, 344 A. 20 at 304. :

22 Only a year later, in the Krol

release.

case, the court reversed itself on this issue

and declared that the state must establish

the acquittee's committability by a pre-

ponderance of the evidence. Krol, 68 N.J.

at 257, 344 A. 2d at 300. In Fields, the

rationale was easily extended to periodic

reviews, the court citing the "eloquently

stated” reasoning of the Supreme Court of

Connecticut.

The burden should not be

placed on the committed

patient to justify his right

to liberty. Freedom from

involuntary confinement for

those who have committed no

crime is the natural state of

individuals in this country.

The burden must be placed on

the state to prove the nec-

essity of stripping the citizen

of one of his most fundamental

rights, and the risk of error

22 at the time, New Jersey law was to the

effect that an acquittee must show his lack

ef dangerousness by clear and Sen

evidence, thus justifying his release with

conditions, but had to show his “restoration

to reason" only a preponderance in order

to justify his final release. See dis-

cussion of this history in 68 N.J. at

263, n. 13, 344 A. 24 at 30 .

must rest on the state.

Since the state has no greater

right to confine a patient

after the validity of the

original commitment has expired

than it does to commit him

in the first place, the state

must bear the burden of proving

the necessity of recommitment,

just as itbears the burden of

proving the necessity for

commitment. (Fasulo v. Arafeh,

173 Conn. 473, 378 A. 2d 553,

557 [1977]).

77 N.J. at 300, 390 A. 2d at 574.

The Connecticut court based its

conclusions in part on a realistic consideration

of the patient's environment:

[T]o require a patient to

initiate judicial review of his

confinement and to bear the

burden of proving the non-

existence of the necessity for

that confinement ignores the

practical considerations...

which are inherent in the mental

patient's situation. Briefly,

these include the difficulties

of overcoming an isolated en-

vironment to initiate and

coordinate a challenge to one's

confinement. For instance, we

cannot assume that friends and

allies will always be available

to secure counsel and marshal

evidence on the patient's behalf.

Fasulo, 173 Conn. at 481, 378 A. 2d at 557.

Additionally the Connecticut court noted that

"practical difficulties" for the patient may

include “his possible incompetence and the

debilitating effects of drugs or other treatment."

Id, at 482, 378 A. 2d at 557.

Obviously these considerations all

add weight to the observation of the D.C.

Circuit Court of Appeals in Waite v. Jacobs,

475 F. 2d 392, 395 (Ct. App. 1973):

{[E]specially in cases con-

cerning psychiatric testimony

which is “often unclear, some-

times woefully muddled,"

United States v. Leazer

[citation omitted] , the

allocation of the burden of

proof can be outcome determina-

tive.

On the basis of this reasoning, amicus

therefore submits that the burden of proof

for continued restriction of acquittees should

lie with the prosecuting authority. 7?

B. Distinctions In The Procedural

Guarantees Afforded Acquittees

And Committees Cannot Be

Justified On The Basis Of Any

Scientifically Or Legally

Supportable "Presumption Of

Continuing Insanity?

Central to the argument that the acquittee should

bear the burden in establishing his own lack of

committability is a notion that, by successful

assertion of an insanity defense, he has raised a

“presumption of continuing insanity."

An aspect of the case law from the District

of Columbia which has received no recognition

in New Jersey is the notion that an acquittee

may bear “meaningful elements of responsibility."

United States v. Brown, 478 F. 2d 606, 611

(D.C. Cir. 1973); Waite, 475 F. 2d at 396.

It appears that the District's statutory scheme

may have been developed in part as a result of

the widened scope of the insanity defense —

resulting from case law in the district.

Bolton v. Ha.cis, 395 F. 2d, 642, 648-649

r. . It Is submitted that any

decision hinged on this idea could have no

significance to a jurisdiction like New Jersey

which retains a modified M'Naghten standard

(n. 6 supra) and where the State Supreme Court

has stated

In order to explain the basis

of the presumption, courts have

had trouble doing more than

merely reiterating it, commenting

on its “self-evident legitimacy.

Benham, 501 F. Supp. at 1068. This statement

appears to be true of the instant case. In

the en banc decision, the court stated that

"it is reasonable to presume the continuation of

mental illness ... ," 432 A. 2d at 374,

and:

Commitment following acquittal by

reason of insanity is not intended

to be punitive, for, although such

a verdict implies a finding that

defendant has committed the actus

reus, it also constitutes a finding

that he did so without a criminal

state of mind. There is, in effect,

no crime to punish. (Citations

omitted.)

Krol, at 246, 344 A. 2d at 295. Or, as a federal

court in Georgia has recently pointed out:

To punish an insanity-acquittee,

or tc utilize a procedure which

includes a punitive component,

runs counter to the overwhelming

authority that an insanity-acquittee

is not responsible, and not properly

subject to punishment.

Benham, 501 F. Supp. at 1065, citing numerous

authorities. :

As mentioned above, the pre-

sumption that a mental condition

continues is a reasonable one

and it is also reasonable to

require the person who raised the

presumption to refute it by

affirmative proof.

Id. This view seems, in the District of

Columbia, to go back to Waite, 475 F. 2d at

399-400, where it was stated, without supporting

citation:

The rational justification for

placing the burden of proof on a

committee is that his mental

illness and dangerousness have

previously been convincingly

established. In light of these

established facts, the law gives

effect to a presumption of

continunity of status. It

comports with normal perception

of reality -- and hence is

rational -- to assume that,

once a given status is proven to

exist, it continues to do so

in the absence of evidence

showing the contrary to be more

likely than not.24

Creation of « “presumption” application to the

criminally insane but not the civilly insane

certainly contradicts the general principle

enunciated in Baxstrom:

Classification of mentally ill

persons as either insane or

In criticizing such a view, Judge Murphy

in Benham noted that the Supreme Court has required

that:

[Flor a statutory presumption to

pass constitutional muster,

it must be shown with "substantial

assurance that the presume act

is more likely than not to flow

from the proved fact on which it

is made to depend.” Leary v.

United States, 395 U.S. ; 36,

89 S. Ct. 1532, 1548, 23 L. Ed.

2a 57 (1965) (emphasis supplied).

Even if the presumption were

"rational" -- which it is not --

it would not satisy this

requirement of due process.

Benham, 501 F. Supp. at 1068, n. 24.7°

dangerously insane of course may

be a reasonable distinction for

purposes of determining the

type of custodial or medical care

to be given, but it has no

relevance whatever in the context

of the opportunity to show whether

a person is mentally ill at all.

Id. 383 U.S., supra, at 111 (emphasis in original).

25 essential adjudicatory facts may not be merely

-aken as presumed. Stanley v. Illinois, 405 U.S.

645, 657-8 (1972).

Judge Murphy then proceeded to show that

"the literature emanating from the medical

profession indicates that the presumption

is not based on valid scientific evidence."

Id.

In fact, it would appear that if

any presumption were to accord with

scientific evidence, it would be one ex-

pressing the opposite conclusion: that

any given individual who has exhibited

criminal dangerousness as a result of

mental illness in the past will, more

likely than not, exhibit no such dangerous-

ness in the future. See citations in

Benham, 501 F. Supp. at 1068.7°

26 nor more recent studies, see Thornberry and

Jacoby, text at n.16, SUREai Quinsey, "Release from

a Maximum Security Psychiatric Institution:

Demographic and Clinical Variables," 6

Crim. Just. & Behav. 390 (1979); Rabkin, n.

16, supra.

‘

Furthermore, he may very well recover and

cease to present any evident psychiatric

symptomatology. Even schizophrenics, who

as a class have a relatively poor prognosis,

may be successfully treated if the condition

is treated in one of its less serious stages.

Arieti, Interpretation of Schizophrenia

646-7 (1974).

The Supreme Court has already

recognized “the lack of certainty and the

fallibility of psychiatric diagnosis,"

Addington, 441 U.S., at 429.

Psychiatric diagnosis...

is to a large extent based

on medical "impressions"

drawn from subjective analysis

and filtered through the

rience of the diagnostician.

This process often makes it

very difficult for the expert

physician to offer definite

conclusions about any

particular patient.

Id. at 430. Moreover, social and political

pressure has been shown to affect psychiatric

predictions. A Task Force Report of the

American Psychiatric Associated noted that

"“[p] sychiatrists, in order to be safe, too

often predict dangerousness, especially

in the case of mentally ill offenders."

American Psychiatric Assocation, Clinical

Aspects of the Violent Individual 25 (1974).

See Thornberry and Jacoby, supra, at 192,

finding that patients released from a

hospital for the criminally insane pursuant

to court order had considerably lower re-

arrest rates than predicted by the hospital

staft.*’

The study concluded:

The Dixon patients were confined

for an average of 14.1 years and,

in New York State, the Baxstrom

patients had been confined for an

average of 14.7 years before they

were transferred by court

decisions . . . In both cases the

empirical evidence suggests that

confinement for this length of

time is excessive and is not required

for the benefit of either the

patients or the community.

Inevitably, it is only appropriate

to consider each individual separately.

The decisive consideration where

personal liberty is involved is

that each individual's fate must

be adjudged on the facts of his

own case, not on the general

characteristics of a “class” to

which he may be assigned.

Krol, 68 N.J. at 255, 344 A. 2d at 299. ‘his

is all the more true if, as appears to be the

case, there is no class, from a scientific

perspective, to begin with. 7°

Id. at 208. See also authorities cited at n. 16

Supra, and Quinsey and Ambtman, “Variables Affecting

sychiatrists and Teachers’ Assessments of the

Dangerousness of Mentally Ill Offenders," 47

i: lt. & Clin. Psychol. 353 (1979), concluding

t forensic psychiatrists tended to make their

assessments of patient dangerousness primarily

on the basis of offense type. For a more recent

analysis see Steadman, “The Right Not To Be A

False Positive: Problems in the Application of the

Dangerousness Standard," 52 Psych. . 84, 96

(1980): ("Nowhere in the research literature is

there any documentation that clinicians can pre-

dict dangerous behavior beyond the level of chance.”")

Some recent studies have suggested that certain

factors may be more predictive of future

dangerousness among psychiatric populations

than others. One study found correlations of

this sort connected with (1) the nature of

As Judge Murphy correctly

observed in Benham, 501 F. Supp., at 1069,

no presumption can arise as to acquittees

because of the criminal behavior which

the original offense (murder), (2) level

‘of education and (3) diagnosis (retarda-

tion more likely connected with subsequent

dangerousness). Quinsey, n. 26, supra.

Another study concluded that:

{[PJatients with diagnosis

of personality disorders,

alcoholism, and drug

dependency have disproportion-

ate arrest rates. Whether

this is caused by the nature

of their disorders or by demo-

graphic characteristics

associated with their distri-

bution in the general pop-

ulation remains unclear.

Rabkin, 86 Psychol. Bull. at 23. See also,

Grumberg, xiineer, and Grumet, “Homicide and

Community-Based Psychiatry," 166 J. Nerv.

and Ment. Disease 868, 873 (1978), noting

especially:

If mental illness is compared

with the consumption of alcohol

as a factor in the commission

of homicide, we find that the

use of alcohol is much more

significant. Yet restrictions

on the sale and consumption

of alcohol are not considered

popular ways to reduce crimes

of violence.

initiated the legal processes against them.

Many committees have in fact been committed

rather than prosecuted because of police

or prosecutorial discretion in disposition

of cases. **

Judge Murphy was correct in

concluding:

In the light of the absence

of any relevant difference

between M.H.C. committees

and insanity-acquittees,

the tautological justifica-

tion for the presumption in

the latter's hearing lacks

rational support.

It must also be considered that individuals

violating the same social norms may be

treated differently in different states

depending on how much de-institutionalization

and fundinc cut-backs have effected the

closing of mental hospitals. See, Cocozza

et al., supra, n. 17, and Monahan and Steadman,

Crime and Mental Disorder: An Epidemiological

gn Crime and Justice: An Annual

of Research (Morris and Tonry, eds., in press} .

29see Rabkin, 86 Psychol. Bull. at 6-7, for

a literature summary. e study found that

71 of 100 randomly selected committees had

engaged in illegal acts, including 23 likely

felcnies,none of which were prosecuted; also

see Levine, “Criminal Behavior and Mental

Id. Therefore, amicus would urge this Court

to decide this case without relying on a

"scientifically unsupported” presumption of

continuing insanity.

C. The Prosecuting Authority

Should Bear The Burden Of

Proving The Committability

Of An Acquittee By Clear

And Convincing Evidence.

Amicus supports petitioner's

contention that committability of an

acguittee should be proven by clear and

convincing evidence. As indicated above,

two New Jersey appellate decisions have

acknowledged the Addington logic as

applicable to acquittees. Perhaps the

logic for such an application of Addington

a. J. Clin. Psychol. 1134

977).

Concommitantly, there is now evidence

that a significant number of minor crimes

may be committed by individuals as a way of

asking for help. Lamb and Grant, "The

Mentally Ill In An Urban County Jail," 39

Arch. Gen. Psych. 17, 19 (1982).

was best developed in Judge Wright's dissent

in the pre-Addington case of United States

v. Brown, 478 F. 2d 606, 613-614 (D.C.

Cir. 1973), where he observed:

Bolton and Baxstrom stand for

a@ basic proposition that a

proven history of past

dangerousness or illness, while

certainly admissable in

evidence, may not be used as

an excuse to abrogate or change

well recognized safeguards

including burden of proof, in

civil commitment proceedings, or

their equivalent, to determine

present dangerousness or

illness ... .- [A]cquittal by

reason of insanity says precious

little on the question whether

a person presently suffers from

mental illness. At most, an

insanity acquittal means that

at the time the charged crime

was committed, which ordinarily

would be months or sometimes

years before the Section 301 (d)

hearing, there was a reasonable

doubt that the defendant was free

of such an illness. Such a

reasonable doubt as to sanity is

hardly tantamount to a conclusion

of mental illness, there may well

be only the flimsiest relation

between the Government's failure

to prove past capacity and current

incapacity [footnote omitted] .

Thus, it can hardly be argued

that the prior acquittal, standing

alone, has any necessary

bearing as a factual matter

on the mental illness finding

to be made in the Section

301(d) hearing.

Amicus contends that no distinction between

acgquittees and committees can appropriately be

made by the procedural mechanisms being

considered here, but that rather the

distinction can be more effectively made

by substantive consideration of the evidence

of the acquittees prior conduct. See Point II.

B., supra. Therefore, amicus believes the

Court should extend the clear and convincing

standard as to the commitment of acquittees.

CONCLUSION

For the reasons stated above,

amicus urges the Court to reverse the

judgment of the Court of Appeals of the

District of Columbia.

Respectfully submitted,

JOSEPH H. RODRIGUEZ

Director

Division of Mental

Health Advocacy

Department of the

Public Advocate

Counsel of Record

Richard J. Hughes

Justice Complex

CN 850

Trenton, N.J. 08625

STANLEY C. VAN NESS

Public Defender

JOHN J. ENSMINGER

Division of Mental Health

Advocacy

Of Counsel and on the Brief

APPENDIX A

N.J.S.A. 2C:4-8. Commitment of a person

by Reason of Insanity.

a. After acquittal by reason of insanity,

the court shall order that the defendant

undergo a psychiatric examination by a

psychiatrist of the prosecutor's choice.

If the examination cannot take place be-

cause of the unwillingness of the

defendant to participate, the court shall

proceed as in Section 2C:4-5c [allowing

the court "to permit examination without

cooperation . . . appoint a different

psychiatrist or .. . commit the

defendant for observation for a period

not exceeding 30 days except on good

cause shown, or exclude or limit testimony

by the defense psychiatrst"]. The

defendant, pursuant to this section,

may also be examined by a psychiatxist

of his own choice.

b. The court shall dispose of the

defendant in the following manner:

(1) If the court finds that the def-

endant may be released without

danger to the communtiy or himself

‘without supervision, the court shall

so release the defendant; or (2)

If the court finds that the defend-

ant may be release without danger

to the community or himself under

conditions, the court shall so order;

(3) If the court finds that the

defendant cannot be released with or

without supervision or conditions

without posing a danger to the

community or to himself, it shall

commit the defendant to a mental

health facility approved for this

purpose by the Commissioner of Human

Services to be treated as a person

civilly committed. In all

proceedings conducted pursuant to this

section, including any periodic review

proceeding, the prosecuting attorney

shall have the right to appear and

be heard. The defendant's continued

commitment, under the law governing

civil commitment, shall be established

by a preponderance of the evidence,

during the maximum period of imprison-

ment that could have been imposed, as

an ordinary term of imprisonment, for

any charge on which the defendant has

been acquitted by reason of insanity.

Expiration of that maximum period of

imprisonment shall be calculated by

crediting the defendant with any time

spent in confinement for the charge or

charges on which the defendant has been

acquitted by reason of insanity.

c. No person committed under this

section shall be confined within any

penal or correctional institution or

any part thereof.

2C:4-9 Release of Persons Committed

by Reason of Insanity

a. If a person has been committed

pursuant to this chapter and if the

commissioner, or his designee, or the

superindentent of the institution

to which the person has been committed,

is of the view that a person committed

to his custody, pursuant to Section

2C:4-8, may be discharged or released

on condition without danger to himself

or to others, or that he may be trans-

fered to a less restrictive setting for

treatment, the commissioner or super-

intendent shall make application for the

discharge or release of such person

in a report to the court by which such

person was committed and shall trans-

mit a copy of such application and

report to the prosecutor, the court,

and defense counsel. The court may,

in its discretion, appoint at least

two qualified psychiatrists, neither

of whom may be on the staff of the

hospital to which the defendant had

been committed, to examine such person

and to report within 30 days, or such

longer period as the court determines

for the purpose, their opinion as to

his mental condition.

b. If the court is satisfied by the

report filed pursuant to subsection

a. of this section and such testimony

of the reporting psychiatrists as the

court deems necessary that the committed

person may be discharged, released on

condition without danger to himself

or others, or treated as in civil commit-

ment the court shall order his discharge,

his release on such conditions as the

court determines to be necessary or his

transfer. If the court is not so satisfied,

it shall promptly order a hearing to

determine whether such person may safely

be discharged, released or transferred.

Any such hearing shall be deemed a civil

proceeding. According to the determination

of the court upon the hearing, the court

shall proceed as in section 2C:4-8b

(1) (2) or (3).

c. A committed person may make application

for his discharge or release to the court

by which he was committed, and the procedure

to be followed upon such application shall

be the same as that prescribed above in

the case of an application by the commissioner.

dad. Each tefendant's case shall be

specifically reviewed as provided by the

law governing civil commitment.

APPENDIX B

R. 4:74-7 Civil Commitment?

(d) Discovery...

The court may order testing or

examination of the patient by an

independent psychiatrist,

psychologist or educational

expert. The cost of any such

examination and the expert's fee for

testifying, if any, shall be

R:4-74-7 governs court practice

as to civil commitments in New Jersey.

Necessarily, much of the procedure

is irrelevant as to acquittees --

commencement of a civil action,

temporary commitment -- or

sufficiently tangential to this

argument -- legai settlement,

filing procedures -- that it has

been thought best to present an

abridgment here. Certain aspects

of those procedures which are

unique to minors have been deleted

also.

borne by the person or public body

charged with the patient's legal

settlement.

(e) Hearing

No permanent commitment order shall be

entered except upon hearing conducted

in accordance with provisions of these

rules. The application for commitment

shall be supported by the oral testi-

mony of at least one psychiatrist

licensed in any one of the United States

who shall have conducted at least one

examination of the patient subsequent

to the date of the temporary order.

The patient shall be required to appear

at the hearing, but may be excused from

the courtroom during all or any portion

of the testimony upon application for

good cause shown. Good cause shall in-

clude testimony by the psychiatrist that

the mental condition of the patient

would be adversely affected by the patient

hearing his candid and complete testimony.

The patient shall have the right to

testify in his own behalf but need not.

The hearing shall be held in camera unless

good cause to the contrary is shown.

The applicant for the commitment may appear

either by counsel retained by him or by the

county adjuster. In no case shall the

patient appear pro se. .

(f) Final Judgment Of Commitment, Review.

The court shall enter a judgment of commit-

ment to an appropriate institution if it

finds the evidence presented at the hearing

that the institutionalization of the

patient is required by reason of his being

a danger to himself or others or property

if he is not so confined and treated... .

If the patient is an adult, the judgment

shall provide for review of the commitment

no later than (1) three months from the

date of judgment, and (2) on or before

six months from the date of the first

review hearing, and (3) on or before

one year from the date of the second

review hearing, and (4) at least

annually thereafter, if the patient

is not sooner dishcarged ... . All

reviews shall be conducted in the

manner required by paragraph (e) of

this rule except that if the patient

has been diagnosed as suffering from

either severe mental retardation or

severe irreversible organic brain

syndrome, all reviews after the ex-

piration or two years from the date

of judgment may be summary, provided

all parties in interest are notified of

the review date and provided further that

the court and all interested parties

are furnished with the report of a

physical examination of the patient

conducted no less than three months

prior thereto. The court may, in its

discretion, at a review hearing, where

the advanced age of the mental patient

or where it would be impractical to ob-

tain the testimony of a psychiatrist

(as defined in paragraph (e)), support

its findings by the oral testimony of

a physician licensed in any one of the

United States. A scheduled periodic

review, as set forth above, shall not

be stayed pending appeal of a prior

determination under this rule.

(g) Judgment of Release. ~

A Judgment discharging the patient may

contain in appropriate circumstances

conditions for the release such as

attendance at a non-residential mental

health facility or other form of

supervision. Any such conditions shall

be stated in the order of discharge with

particularity. The continuation of any

such conditions shall be subject to

periodic review as provided by paragraph

(f) hereof.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.