Amicus Curiae Brief — Foucha v. Louisiana

1991

No. 90-5844

MOTION FILED

JUN 7

IN THE

Supreme Court of the United States

OCTOBER TERM, 1990

TERRY FOUCHA,

Petitioner,

v.

STATE OF LOUISIANA,

Respondent,

On Writ of Certiorari to the Louisiana Supreme Court

MOTION FOR LEAVE TO FILE BRIEF AMICUS CURIAE

AND BRIEF OF

THE AMERICAN ORTHOPSYCHIATRIC ASSOCIATION,

THE NATIONAL MENTAL HEALTH ASSOCIATION,

THE AMERICAN ASSOCIATION

ON MENTAL RETARDATION,

THE NATIONAL ASSOCIATION OF PROTECTION

AND ADVOCACY SYSTEMS,

THE AMERICAN CIVIL LIBERTIES UNION,

AND THE ACLU OF LOUISIANA

AS AMICI CURIAE IN SUPPORT OF PETITIONER

JAMES W. ELLIs

Counsel of Record

BARBARA E. BERGMAN

1117 Stanford, N.E.

Albuquerque, New Mexico 87131

Of Counsel: (505) 277-2146

STEVEN R. SHAPIRO Counsel for Amici Curiae

a eel

WILSON - Epes PRINTING Co., INC. - 789-0096 - WASHINGTON, D.C. 2000!

—_--

IN THE

Suprenve Court of the United States

OCTOBER TERM, 1990

No. 90-5844

TERRY FOUCHA,

Petitioner,

v.

STATE OF LOUISIANA,

Respondent.

On Writ of Certiorari to the Louisiana Supreme Court

MOTION FOR LEAVE TO FILE BRIEF AMICI CURIAE

Pursuant to Rule 37.4 of the Rules of this Court, the

American Orthopsychiatric Association, et al., respect-

fully move the Court for leave to file a Brief Amici

Curiae in the above-entitled case. Counsel for Petitioner

has granted his consent to the filing of this brief. Coun-

sel for Respondent has informally notified counsel for

movants that he will not consent.

Amici include national professional and voluntary as-

sociations concerned with the care of people with mental

disabilities and also concerned with civil liberties under

the U.S. Constitution. Amici thus have knowledge and

expertise in the diverse areas of the treatment of people

with mental illness, the administration of mental health

facilities, the operation of the defense of insanity in the

criminal justice system, and the rights of persons in

mental health facilities under the Fourteenth Amend-

ment.

The American Orthopsychiatric Association is an in-

terdisciplinary professional organization of mental health

professionals, including psychiatrists, psychologists, so-

cial workers, educators, and allied professionals concerned

with the problems, causes, and treatment of mental

illness.

The National Mental Health Association (NMHA) is

a national voluntary organization of individuals con-

cerned about the needs of persons with mental illness and

their families. Founded in 1909 by Clifford Beers, who

suffered from a serious mental illness, the Association

has historically led efforts to reform mental health care

in institutions and the community. The NMHA has

grown into a network of over 500 local chapters and

state divisions of volunteers and staff who are committed

to advocacy for the improved care and treatment of

people with mental illnesses, the promotion of mental

health, and the prevention of mental illness. The Asso-

ciation conducts studies and makes policy recommenda-

tions, such as the 1983 report, Myths and Realities: Re-

port of the National Commission on the Insanity Defense,

concerning use of the insanity defense, including tests,

disposition, and treatment. Also, the Association fre-

quently files amicus briefs in cases involving issues of

mental conditions and the rights of patients and ex-

patients.

The American Association on Mental Retardation

(AAMR) is the nation’s oldest and largest interdisci-

plinary organization of professionals in the field of men-

tal retardation. Unlike the mental health organizations,

AAMR joins this brief not because of direct involvement

with persons recovered from mental illness, but rather

from its concern about the scope of regulatory confine-

ment under the substantive meaning of the Due Process

Clause. AAMR has appeared before this Court on

numerous occasions as amicus curiae, most recently in

Penry v. Lynaugh, 492 U.S. 302 (1989).

The National Association of Protection and Advocacy

Systems represents Protection and Advocacy systems in

50 states and six territories, created pursuant to 42

U.S.C. § 10801 ef seg. These agencies have the statu-

tory mandate to advocate for the rights of persons with

mental illness. The Protection and Advocacy systems rep-

resented over 100,000 persons with mental disabilities in

1990.

The American Civil Liberties Union (ACLU) is a

nationwide, nonprofit, nonpartisan organization with

nearly 300,000 members dedicated to the principles of in-

dividual liberty embodied in the Bill of Rights. The

ACLU of Louisiana is one of its statewide affiliates. This

case raises issues of substantive and procedural due

process that are of central importance to the ACLU and

its affiliates. In furtherance of its organizational views

on these matters, the ACLU has often appeared before

this Court, both as direct counsel and as amicus curiae.

See, e.g., United States v. Salerno, 481 U.S. 739 (1987);

O’Connor v. Donaldson, 422 U.S 563 (1975).

Amici believe that the Louisiana statute permitting

commitment of persons who have no mental illness is un-

constitutional. Amici also believe that affirmance of the

judgment of the Supreme Court of Louisiana would erode

the substantive protections of the Due Process Clause

recognized in this Court’s previous decisions.

CONCLUSION

For the above-stated reasons, we respectfully urge the

Court to grant this motion for leave to file the accom-

panying amici brief in the present case in support of the

Petitioner.

Respectfully submitted,

JAMES W. ELLIS

Counsel of Record

BARBARA E. BERGMAN

1117 Stanford, N.E.

Albuquerque, New Mexico 87131

(505) 277-2146

Counsel for Amici Curiae

TABLE OF CONTENTS

INTEREST OF AMICI CURIAE

SUMMARY OF ARGUMENT

DL sdeaiedslatiakacerianakaiseuinisatipbedtiatieds

I.

Il.

ONCE PETITIONER RECOVERED FROM

HIS MENTAL ILLNESS, HIS CONTINUED

CONFINEMENT EXCEEDED THE STATE’S

AUTHORITY UNDER THE SUBSTANTIVE

MEANING OF THE DUE _ PROCESS

CLAUSE

A. Regulatory Confinement, in the Absence of

Conviction for a Crime, Must Be Carefully

Limited in Substantive Scope .....................

1. Freedom from Physical Confinement Has

Been Held to Merit the Highest Level of

Constitutional Protection — .............. ee

2. When This Court Has Permitted Regula-

tory Deprivations of Liberty, It Has In-

sisted on Stringent Substantive and Pro-

cedural Protections for the Individual

Whose Liberty Is at Risk...

B. The Involuntary Confinement of an Insanity

Acquittee Who Has Recovered from Mental

Illness Lacks the Limitations of Time and

Scope Required by the Due Process Clause

PETITIONER’S CONTINUED CONFINE-

MENT VIOLATES THE PROCEDURAL RE-

QUIREMENTS OF THE DUE PROCESS

CLAUSE AND THE EQUAL PROTECTION

a RR Recto tyd nto One eT ROP TEE Toa IN

A. Once He Recovered from His Mental Illness,

Petitioner Was Entitled to a Hearing at

Which the State Bore the Burden of Persua-

sion by Clear and Convincing Evidence __..

(i)

Page

3

6

10

14

ii

TABLE OF CONTENTS—Continued

B. Petitioner’s Confinement Cannot Be Distin-

guished from That of Other Persons Who

May Have Committed a Criminal Act but

Cannot Be Prosecuted or Punished for It ......

Ill. ELIMINATING THE ESSENTIAL LINKAGE

BETWEEN CIVIL COMMITMENT AND MEN-

TAL DISABILITY DESTROYS THE THERA-

PEUTIC FUNCTION OF MENTAL HEALTH

FACILITIES AND THE PROFESSIONALS

Uk

Fs EER scsicins ap odacnapsiaadieastedlacmatidannags

PIITIIIIID -c::>:chiesi bcidceeevnecouapespucscemceebiecminasiecesdiaenwaeouiess

Page

16

18

20

la

iii

TABLE OF AUTHORITIES

CASES: Page

Addington v. Texas, 441 U.S. 418 (1979) ........... passim

Argersinger v. Hamlin, 407 U.S. 25 (1972) |. . 4,5

Baldwin v. New York, 399 U.S. 66 (1970) : 5

Baxstrom v. Herold, 383 U.S. 107 (1966) 12, 16

Bell v. Wolfish, 441 U.S. 520 (1979) 7

Burks v. United States, 437 U.S. 1 (1978) 16

Coffin v. United States, 156 U.S. 432 (1895) 5

Cool v. United States, 409 U.S. 100 (1972) 5, 15

County of Riverside v. McLaughlin, —— USS.

, 59 U.S.L.W. 4413 (1991) . | =

Duncan v. Louisiana, 391 U.S. 145 (1968) 5

Fong Foo v. United States, 369 U.S. 141 (1962) 16

Gideon v. Wainwright, 372 U.S. 335 (1963) 4

Humphrey v. Cady, 405 U.S. 504 (1972) 0000000... 8

In re Winship, 397 U.S. 358 (1970) | 5, 15

Jackson v. Indiana, 406 U.S. 715 (1972) 9

Jones v. United States, 463 U.S. 354 (1983)... passim

Klopfer v. North Carolina, 386 U.S. 213 (1967). 5

Lassiter v. Department of Social Services, 452

U.S. 18 (1981) ........ IORI: SLOPES A she Sache 4

Marshall v. United States, 414 U.S. 417 (1974)...... 20

Mathews v. Eldridge, 424 U.S. 319 (1976) ......._- 115, 16

Meyer v. Nebraska, 262 U.S. 390 (1923)... 4

Michael H. v. Gerald D., 491 U.S. 110 (1989) 4

O’Connor v. Donaldson, 422 U.S. 563 (1975)... passim

Pointer v. Texas, 380 U.S. 400 (1965) . ae 5

Robinson v. California, 370 U.S. 660 (1962) = 6

Schall v. Martin, 467 U.S. 253 (1984)... 8,15

Scott v. Illinois, 440 U.S. 367 (1979) 4

Shelton v. Tucker, 364 U.S. 479 (1960) ' 9

Stack v. Boyle, 342 U.S. 1 (1951) 7

United States v. Salerno, 481 U.S. 739 (1987) passim

Vitek v. Jones, 445 U.S. 480 (1980) 4,8

Washington v. Davis, 426 U.S. 229 (1976) 12

Washington v. Texas, 388 U.S. 14 (1967) 5

Youngberg v. Romeo, 457 U.S. 307 (1982) 3, 4, 11

Zinermon v. Burch, U.S. ——, 110 S. Ct. 975

a a aetna 3

iv

TABLE OF AUTHORITIES—Continued

CONSTITUTIONAL PROVISIONS:

STATUTES:

D.C. Code Ann. § 24-301(j) (1989) 00000 :

La. Code Crim. Proc. Ann. art. 652 (West 1981).

La. Code Crim. Proc. Ann. art. 655 (West Supp.

ta rots EAS SE RE a, cate oe Ee ee

La. Rev. Stat. Ann. § 28:54(A) (West 1989)...

SD EI ten ee Ae Re TN

OTHER AUTHORITIES:

American Bar Association, Criminal Justice Men-

tal Health Standards, Standard 7-7.4 (1989)...

American Bar Foundation, The Mentally Disabled

and the Law (S. Brakel, J. Parry, & B. Weiner

| Ee eee nn

American Law Institute, Model Penal Code

§$ 4.01(2) (1985) ....................0...... tn On Se

American Psychiatric Association, Diagnostic and

Statistical Manual (3d ed. rev. 1987)...

A. Deutsch, The Shame of the States (1948).......

Ellis, The Consequences of the Insanity Defense:

Proposals to Reform Post-Acquittal Commit-

ment Laws, 35 Cath. U.L. Rev. 961 (1986)...

H. Packer, The Limits of the Criminal Sanction

BRR Cera ne RH EDDA S cre Ret a a Ben ceb a ANI ae D

Uelmen, The Psychiatrist, the Sociopath and the

Courts: New Lines for an Old Battle, 14 Loy.

L.A.L. Rev. 1 (1980)... pe Ee Sciuaiamoiaosen

10, 19

IN THE

Supreme Court of the United States

OCTOBER TERM, 1990

No. 90-5844

TERRY FOUCHA,

Petitioner,

Vv.

STATE OF LOUISIANA,

Respondent.

On Writ of Certiorari to the Louisiana Supreme Court

BRIEF OF

THE AMERICAN ORTHOPSYCHIATRIC ASSOCIATION,

THE NATIONAL MENTAL HEALTH ASSOCIATION,

THE AMERICAN ASSOCIATION

ON MENTAL RETARDATION,

THE NATIONAL ASSOCIATION OF PROTECTION

AND ADVOCACY SYSTEMS,

THE AMERICAN CIVIL LIBERTIES UNION,

AND THE ACLU OF LOUISIANA

AS AMICI CURIAE IN SUPPORT OF PETITIONER

INTEREST OF AMICI CURIAE

Amici curiae include national professional and volun-

tary associations concerned with the care of people with

mental disabilities and also concerned with civil liberties

under the U.S. Constitution. For reasons stated in the

attached motion, amici believe that the Louisiana statute

permitting continued commitment of persons who have no

mental illness is unconstitutional.

2

SUMMARY OF ARGUMENT

Petitioner was acquitted of the criminal charges

brought against him. He was not convicted of any crim-

inal offense, and therefore he cannot be punished by the

state of Louisiana. Nor can he be convicted and punished

on those charges at some point in the future.

Louisiana had the right to seek Petitioner’s commit-

ment following the verdict because his acquittal created

a presumption of continuing mental illness and danger-

ousness. Jones v. United States, 463 U.S. 354 (1983).

But the Louisiana statute goes much further and pro-

vides for continued indefinite confinement even when an

acquittee has recovered from his mental illness unless

the acquittee can somehow “prove” that he will not com-

mit any dangerous acts in the future.

By breaking the essential connection between civil com-

mitment and mental illness, Louisiana exceeds the scope

of its authority to take away the liberty of persons who

have not been convicted of any crime. Affirmance of the

judgment of the Louisiana Supreme Court would obliter-

ate the limits on the state’s power of regulatory confine-

ment that this Court carefully delineated in Jones and

United States v. Salerno, 481 U.S. 739 (1987'. To do

so would turn mental hospitals into jails. But more im-

portantly, it would leave few substantive (or procedural |

limits on the state’s ability to lock up those citizens it

suspects might commit dangerous acts in the future. Such

a result would be inconsistent with the protections of

physical liberty that pervade the Constitution and this

Court’s cases,

3

ARGUMENT

I. ONCE PETITIONER RECOVERED FROM HIS

MENTAL ILLNESS, HIS CONTINUED CONFINE-

MENT EXCEEDED THE STATE’S AUTHORITY

UNDER THE SUBSTANTIVE MEANING OF THE

DUE PROCESS CLAUSE.

A. Regulatory Confinement, in the Absence of Convic-

tion for a Crime, Must Be Carefully Limited in Sub-

stantive Scope.

Deprivation of an individual’s physical freedom with-

out a criminal conviction must only be permitted in nar-

rowly defined circumstances. The application of Louis-

iana’s law to reach Petitioner and other persons who

are no longer mentally ill exceeds the power that states

may exercise under the Due Process Clause. The para-

mount importance of physical freedom within our consti-

tutional system requires that the statute be invalidated as

a violation of substantive due process,

1. Freedom from Physical Confinement Has Been

Held to Merit the Highest Level of Constitutional

Protection.

It is well established that the substantive meaning of

the Due Process Clause of the Fourteenth Amendment

places significant limits on state action, particularly when

the state proposes to deprive individuals of their physical

freedom. As this Court recently noted, “the Due Process

Clause contains a substantive component that bars cer-

tain arbitrary, wrongful government actions regardless

of the fairness of the procedures used to implement them.”

Zinermon v. Burch, —— US. , 110 S. Ct. 975, 983

(1990). This Court has long recognized that freedom

from physical confinement is at the highest level of rights

cuaranteed by the Constitution. “|L]iberty from bodily

restraint always has been recognized as the core of the

liberty protected by the Due Process Clause from arbitrary

4

governmental action.” Youngberg v. Romeo, 457 U.S.

307, 316 (1982). When the Court discusses other sub-

stantive liberties protected by the Constitution, it typ-

ically begins the analysis with the most basic liberty,

which is freedom from confinement. See, e.g., Meyer v.

Nebraska, 262 U.S. 390, 399 (1923) (“Without doubt,

[liberty] denotes not merely freedom from bodily re-

straint but also... .”). Whatever disagreement there

may be concerning the precise contours of the liberties

protected by the Due Process Clause, see Michael H. v.

Gerald D,, 491 U.S. 110, 127 n.6 (1989) (plurality opin-

ion); id. at 132 (O’Connor, J., concurring), there can

be no doubt that in the minds of the framers and ratifiers

of the Fifth and Fourteenth Amendments, and in the

understanding of every succeeding generation, physical

confinement is the deprivation of freedom requiring the

most compelling justification.’

Even when contrasted to other rights which the Court

has recognized as fundamental under the Due Process

Clause, freedom from confinement has been treated as

sui generis, meriting more vigilant protection. See Las-

siter v. Department of Social Services, 452 U.S. 18, 25

(1981). See generally County of Riverside v. McLaugh-

la, ———— US. , 59 U.S.L.W. 4413, 4417 (1991);

Scott v. Illinois, 440 U.S. 367, 373-74 (1979).

The state may deprive a person of physical freedom

through conviction of a criminal offense. Vitek v, Jones,

445 U.S. 480, 493 (1980). The gravity of this enterprise

and the magnitude of the loss suffered by individuals

so incarcerated are reflected in the procedural protec-

tions guaranteed by the Constitution and this Court be-

fore the punishment will be permitted.’

1 Indeed, recognition of the central importance of physical liberty

preceded the adoption of the Bill of Rights. See U.S. Const. art. I,

$9, protecting the right to writs of habeas corpus.

2 See, e.g., Gideon v. Wainwright, 372 U.S. 335, 344 (1963),

Argersinger v. Hamlin, 407 U.S. 25, 37 (1972) (a defendant in a

5

A source and embodiment of these protections is the

principle that defendants awaiting trial are presumed to

be innocent. Cool v. United States, 409 U.S. 100, 104

(1972); Coffin v. United States, 156 U.S. 432, 453

(1895) (“principle that there is a presumption of in-

nocence in favor of the accused is the undoubted law,

axiomatic and elementary, and its enforcement lies at

the foundation of the administration of our criminal

law”). But the presumption that an individual defend-

ant is innocent was not adopted because the courts con-

cluded as an empirical matter that most criminal de-

fendants are factually innocent, but ra‘her because “the

interests of the defendant are of such magnitude that

historically and without any explicit constitu‘ional re-

quirement they have been protected by standards of proof

designed to exclude as nearly as possible the likelihood of

an erroneous judgment.” Addington v. Texas, 441 US.

418, 423 (1979)." As a result, the s‘ate is required to

prove that it is entitled to inecarcerate a criminal de-

fendant by demonstrating guilt beyond a_ reasonable

doubt. /d. at 424; In re Winship, 397 U.S. 358, 364

(1970),

criminal case, when faced with possible confinement, has a right to

appointed counsel) ; Duncan v. Louisiana, 391 U.S. 145, 149 (1968)

Baldwin v. New York, 399 U.S. 66, 69 (1970) (defendant has a

right to a trial by jury if he faces a potential sentence of more

than six months); see also Argensinger, 407 U.S. at 28 Cright to

notice of the charges); Washington v, Teras, 388 US. 14, 19

(1967) (right to compulsory process to obtain witnesses); Klopfer

v. North Carolina, 386 U.S. 218, 223 (1967) (right to a speedy

trial); Pointer v. Teras, 380 U.S. 400, 403-04 (1965) (right to

confront and cross examine witnesses).

%It is worth noting that unlike defendants awaiting trial, Peti-

tioner is not presumed by the law to be innocent; rather, he has

been adjudicated to be innocent. Thus the state is not waiting for

its chance to convict him on the charyes in the bill of information;

it has already lost that opportunity permanently when Petitioner

was acquitted.

6

Just as the procedural protections found in the Bill

of Rights and this Court’s precedents demonstrate the

Constitution’s insistence that the state’s power to incar-

cerate individuals must be carefully rationed, the sub-

stantive limitations of the Due Process Clause and the

Eighth Amendment’s prohibition on cruel and unusual

punishment perform a similar function. For example,

the state may not criminalize a status and thereby in-

carcerate those who find themselves within the boundar-

ies of that class. Robinson v. California, 370 U.S. 660,

666-67 (1962); see also O’Connor v. Donaldson, 422 U.S.

563, 575 (1975) (“finding of ‘mental illness’ alone can-

not justify a State’s locking a person up against his

will and keeping him indefinitely in simple custodial

confinement.” ).

The central teaching of all these cases is that the fram-

ers of the Constitution provided extensive procedura! and

substantive protections so citizens would be free from

arbitrary deprivations of their physical liberty. This

Court’s modern cases involving regulatory confinement

teach that when the state seeks to confine an individual

without a criminal conviction it is not free to evade

casually these protections which are guaranteed to crim-

inal defendants. This is because an individual who loses

his physical liberty through what the state labels a ‘‘reg-

ulatory” confinement suffers a loss fully equivalent to that

experienced by an incarcerated convict.

2. When This Court Has Permitted Regulatory

Deprivations of Liberty, It Has Insisted on Strin-

gent Substantive and Procedural Protections for

the Individual Whose Liberty Is at Risk.

The principal way in which a state may deprive an

individual of physical liberty is by a conviction for a

criminal offense. It was the potential for loss of liberty

(and loss of life in capital cases) that led to the enact-

ment of the procedural and substantive protections of

defendants found in the Bill of Rights.

7

In recent years, this Court has recognized that, in

certain carefully limited circumstances, the state may

confine individuals for regulatory, as well as punitive

purposes. Addington v. Texas, 441 U.S. 418 (1979);

Bell v. Wolfish, 441 U.S. 520 (1979); Jones v. United

States, 463 U.S. 354 (1983); United States v. Salerno,

481 U.S. 739 (1987). In each of these instances, the

state’s goal was of a compelling nature, the law was nar-

rowly tailored to the accomplishment of that purpose, and

the duration of the “regulatory” deprivation of physical

freedom was carefully limited.

In the case of detention of defendants awaiting crim-

inal trial, these principles are clearly evident in this

Court’s precedents. Where the state’s purpose is an ar-

raignment or the filing of charges, the state’s interest

may temporarily outweigh the individual’s right to be

free, pending a judicial determina‘ion of probable cause.

The durational limit is strict and explicit; confinement

can last no longer than reasonable, and in no circum-

stances longer than 48 hours. County of Riverside v. Mc-

Laughlin, USS. , 59 U.S.L.W. 4413, 4417 (1991).

An inJividual’s liberty interest may also be limited when

it is proven that detention is necessary to assure a de-

fendant’s appearance at trial or to protect the safety of

witnesses. Stack v. Boyle, 342 U.S. 1, 4 (1951). When

the state’s purpose is to insure the defendant’s presence

a’ trial, the Eighth Amendment prohibits requiring bail

in excess of the amount necessary to accomplish that pur-

pose. Jd. at 5.

In addition, this Court has recognized that the govern-

ment may detain certain individuals while they are await-

ing trial where that detention is proven to be necessary

to prevent violent crimes the defendant would commit

if released on bail. United States v. Salerno, 481 U.S.

739 (1987). But, here too, this Court has approved such

regulatory confinement only under carefully limited cir-

cumstances. As Chief Justice Rehnquist has observed

8

for the Court, “In our society liberty is the norm, and

detention prior to trial or without trial is the carefully

limited exception.” /d. at 755. The Salerno case involved

such a limited exception contained in the Bail Reform

Act of 1984. The government interest in’ public safety

in that case involved potential danger from an individual

whom the government hoped and expected to confine and

incapacitate in the near future through a conviction on

his pending criminal charge. Even then, this Court has

approved such detention only for “the most serious of

crimes.” /d. at 747. Those are defined as “crimes of

violence, offenses for which the sentence is life imprison-

ment or death, serious drug offenses, or certain repeat

offenders.” Jd. Moreover, the “maximum length of pre-

trial detention” (‘and thus the exception to the general

rule against deprivation of physical liberty without the

protections of the criminal law) was carefully circum-

scribed by “the stringent time limitations” inherent in the

right to a speedy trial on criminal charges. /d.'

Similar limitations have been placed on the state’s

power to commit persons with mental illness. This Court

has lone recognized the loss of freedom involved in civil

commitment as a “massive curtailment of liberty.”

Humphrey v. Cady, 405 U.S. 504, 509 (1972); Vitek v.

Jones, 445 U.S. 480, 491 (1980). But in cases involving

individuals who have a mental illness which renders them

dangerous to themselves or others, the Court has also

recognized a limited power of the state to confine for

regulatory purposes related to that mental illness. Al-

though the Court has not spelled out the substantive scope

4 Similarly, the detention permitted in Schall v. Martin, 467 U.S.

253 (1984), was “strictly limited in time,” ‘/. at 269, because juve-

niles were “entitled to an expedited factfinding hearing,” id. at 270,

and was carefully tailored to the unique circumstances and govern-

ment interests involved in the adjudication of juvenile delinquency

cases.

9

of the state’s power in this area comprehensively, it has

recognized that “the state also has authority under its

police power to protect the community from the danger-

ous tendencies of some who are mentally ill.” Adding-

ton, 441 U.S. at 426. All states have laws that permit

the therapeutic confinement of individuals “suffering

from mental illness which contributes or causes that

person to be a danger to himself or others.” La. Rev.

Stat. Ann. § 28:54(A) (West 1989). See American Bar

Foundation, The Mentally Disabled and the Law 50 (S.

Brakel, J. Parry, & B. Weiner eds., 3d ed. 1985).

But the civil commitment power is also narrowly tail-

ored to the state’s regulatory purpose and by the limita-

tions imposed on the confinement’s duration. See Jackson

v. Indiana, 406 U.S. 715, 738 (1972). The state cannot

confine for mental illness alone, O’Connor v. Donaldson,

422 U.S. 563, 575 (1975), and may not pursue its thera-

peutic objectives through confinement in an institution if

less drastic means are available. Jd. (citing Shelton v.

Tucker, 364 U.S. 479, 488-90 (1960) ).

Most directly relevant to the case at bar, the Court

has recognized the ability of the state to civilly commit

individuals acquitted of criminal charges by reason of a

defense of insanity. Jones v. United States, 463 U.S.

354 (1983:. The justification for this authority to de-

prive an acquittee of physical liberty is the likelihood

that the mental disability that produced the previous

criminal act will produce similar acts in the future—-acts

which the state is unable to address through the ordinary

processes of the criminal law because of the likelihood of

another successful assertion of the insanity defense.

Civil commitment of insanity acquittees may be accom-

plished, however, only within strict limitations. The Dis-

trict of Columbia statute approved by this Court in

Jones was premised on the fact that the defendant had

10

demonstrated his insanity at trial.’ Most significantly,

the duration of commitment of insanity acquittals is lim-

ited by the duration of the illness that occasions the com-

mitment. Thus, this Court observed in Jones, “The pur-

pose of commitment following an insanity acquittal, like

‘hat of civil commitment, is to treat the individual’s men-

tal illness and protect him and society from his potential

dangerousness. The committed acquittee is entitled to re-

lease when he has recovered his sanity or is no longer

dangerous.” Jd. at 368 (citing O'Connor v. Donaldson,

422 U.S. 563, 575-76 (1975)) (‘emphasis added). The

Court’s use of the disjunctive was not inadvertent. To

the contrary, the Court emphasized at another point in

its opinion, that the release of an insanity acquittee “who

recover{s| his sanity or is no longer dangerous,” id, at

368, is mandated precisely because his “‘confinement rests

on his continuing illness and dangerousness.” /d, at 369

(emphasis added).

B. The Involuntary Confinement of an Insanity Ac-

quittee Who Has Recovered from Mental Illness

Lacks the Limitations of Time and Scope Required

by the Due Process Clause.

Unlike these carefully limited regulatory laws, Louis-

iana’s provision regarding insanity acquittees who are

5 This Court has not resolved whether the presumption in Jones

extends to cases in jurisdictions in which the verdict of acquittal

conveys less certainty about the acquittee’s mental disability and

criminal conduct. Jones, 463 U.S. at 370. See also American Bar

Association, Criminal Justice Mental Health Standards, Standard

7-7.4, Commentary at 425 n.18 (1989); Ellis, The Consequences of

the Insanity Defense: Proposals to Reform Post-Acquittal Commit-

ment Laws, 35 Cath. U.L. Rev. 961, 972 n.53 (1986). Such a distine-

tion is not involved in this case because the allocation of the burden

of persuasion on the issue of insanity at the criminal trial in

Louisiana is similar to that in the District of Columbia statute at

issue in Jones. See La. Code Crim. Proc. Ann. art. 652 (West 1981)

and D.C. Code Ann. § 24-301(j) (1989).

11

no longer mentally ill ® contains no such limitation. The

state is not awaiting its opportunity to try petitioner,

since jeopardy has attached with his acquittal. Nor is the

state awaiting his recovery from his mental illness, ef.

Jones v. United States, 463 U.S. 354, 366 (1983), since

that has already occurred.

In the absence of these limitations, the sole justification

for Louisiana’s continuing confinement of Petitioner

when he is no longer mentally ill is the prediction that

he may be dangerous in the future. His previous mental

illness no longer has any relevance io the constitutional-

ity of his confinement. It does not make the current

predictions of dangerous behavior any more accurate or

his prospective dangerousness any more likely. Therefore

his previous mental condition provides no additional sup-

port for his current confinement. As this Court has ob-

served regarding civil commitment, “even if [a patient’s]

involuntary confinement was initially permissible, it could

® The state’s experts unanimously concluded that Petitioner does

not now have any mental illness. J.A. 15, 22. There was some testi-

mony that Petitioner had an “anti-social personality,”” however no

expert was of the view that this constituted a mental illness. The

American Law Institute and other courts and commentators have

reached the same conclusion. See A.L.1., Model Penal Code § 4.01 (2)

(1985); Uelmen, The Psychiatrist, the Sociopath and the Courts:

New Lines for an Old Battle, 14 Loy. L.A.L. Rev. 1 (1980). See gen-

erally American Psychiatric Association, Diagnostic and Statistical

Manual xxix (3d ed. rev. 1987) (“cautionary statement” that the dis-

cussion of categories within the manual “does not imply that the

condition meets legal or other nonmedical criteria for what con-

stitutes mental disease, mental disorder, or mental disability.”’).

Since this case is a facial challenge to the constitutionality of

the Louisiana statute, the details of Petitioner’s mental condition

are not strictly relevant. It is noteworthy, nevertheless, that once

the clinicians determined that Petitioner no longer had any mental

illness, their prediction concerning future dangerousness is, in a

very real sense, no longer a clinical judgment. Cf. Youngberg v.

Romeo, 457 U.S. 307, 323 (1982). What they are asserting is that

their expertise does not permit them to preclude the potential for

future dangerousness. J.A. 18, 22.

12

not constitutionally continue after [its factual] basis no

longer existed.” O’Connor v. Donaldson, 422. U.S. 563,

575 (1975); see also Chief Justice Burger’s concurring

opinion, “{e]qually important, confinement must cease

when those reasons no longer exist.” Jd. at 580.

Stripped of any factual or legal connection to the

mental illness that was the basis of Petitioner’s acquittal,

his continued indefinite involuntary confinement is not

constitutionally distinguishable from a state simply con-

fining persons who have no mental disability at all on

the basis that someone has predicted that they will be

dangerous in the future. Numerous groups in our society

might be predicted, with varying degrees of accuracy, to

be more likely than others to commit dangerous acts in

the future. Factors of age, gender, and economic status

may enhance the accuracy of such predictions up to a

certain point. Previous encounters with law enforcement,

even when they did not result in a conviction or after

the individual’s sentence has been completed, might also

serve as part of the basis for such predictions. Cf.

Baxstrom v. Herold, 383 U.S. 107 (1966). As long as

a confined individual could not demonstrate that a state

was intentionally employing a suspect classification, see

Washington v. Davis, 426 U.S. 229, 239-41 (1976), it is

doubtful that the Equal Protection Clause would prove to

be a sufficient safeguard against the abuses of liberty in-

herent in such a scheme.

The principal constitutional infirmity in such a hypo-

thetical scheme is not that the state might choose the cri-

teria for prediction with insufficient care or precision,

but rather that the state cannot, consistent with this

Court’s teachings on the substantive meaning of the Due

Process Clause, deprive citizens of their liberty on the

basis of a prediction of future conduct alone.

Following this Court’s opinion in Salerno, it is clear

that a mechanistic recitation of the standard substantive

due process formula cannot fully capture the Constitu-

13

tion’s requirements for regulatory confinement. The

Court clearly held that freedom from physical confine-

ment is a “fundamental” right. 481 U.S. at 750. At the

same time, it held the government’s interest in prevent-

ing crime to be “both legitimate and compelling.” Jd. at

749. But it would be grossly inaccurate to oversimplify

Salerno as suggesting that the state’s compelling interest

in preventing crimes invariably overcomes an individual’s

interest in physical liberty.

If that were an accurate reading, every state would

be free to establish general ‘“‘dangerousness” courts, and

every time the state could persuade the trier of fact that

any citizen would be prospectively dangerous, it could lock

him up indefinitely in “regulatory” confinement until the

individual could prove that he no longer posed a threat

to public safety.

It is obvious that such a statute would be unconstitu-

tional. Therefore, this Court’s precedents in cases like

Salerno and Jones must be read more carefully to discern

the limits on the state’s ability to confine individuals on

the basis of predicted future dangerousness. Salerno in-

volved a statute under which confinement was carefully

limited in duration, and under which the government was

required to prove the defendant’s dangerousness by clear

and convincing evidence. Jones was premised on the

acquittee’s continuing mental illness and his right to

obtain his release when that illness no longer existed.

The Louisiana statute contains neither of these sets of

limitations, ror any comparable protections. It clearly

exceeds the state’s power to deprive individuals of their

physical] liberty.

14

II. PETITIONER’S CONTINUED CONFINEMENT VIO-

LATES THE PROCEDURAL REQUIREMENTS OF

THE DUE PROCESS CLAUSE AND THE EQUAL

PROTECTION CLAUSE.

Although amici believe that the central constitutional

problem with the Louisiana law under which Petitioner

is incarcerated is that it exceeds the state’s power under

the substantive meaning of the Due Process Clause, other

constitutignal approaches also illustrate the magnitude of

the statute’s excesses.

A. Once He Recovered from His iiiental Illness, Peti-

tioner Was Entitled to a Hearing at Which the State

Bore the Burden of Persuasion by Clear and Con-

vincing Evidence.

Petitioner has never been afforded a commitment hear-

ing at which the state was required to demonstrate the

necessity of his confinement by clear and convincing evi-

dence. See Addington, 441 U.S. at 433. In Jones, this

Court held that insanity acquittees were not entitled to

an Addington hearing at the beginning of their commit-

ment because the factual findings inherent in their ac-

quittal were sufficient to indicate dangerousness. Jones

v. United States, 463 U.S. 354, 364 (1983). This portion

of the Jones holding appears sufficient to preclude any

claim that Petitioner in the case at bar was en-

titled to an Addington hearing at the time of his initial

commitment.

But Petitioner is also deprived of the opportunity for

an Addington hearing subsequently, when ‘he state con-

ceded that he no longer had a mental illness. There is no

support for this deprivation in either the holding or

the reasoning of Jones. The Court rejected Jones’s claim

to an Addington hearing at the expiration of what would

have been his maximum sentence if he had been con-

victed because ‘‘[t]here simply is no necessary correla-

tion between severity of the offense and /ength of time

15

necessary for recovery.” 463 U.S. at 369 (emphasis

added). By contrast, Petitioner in this case is conceded

by the state’s experts to be free from mental illness.

Since it cannot be claimed that the state is “waiting’’ for

his recovery, or providing him treatment in the hope of

accomplishing that recovery, Louisiana has no constiu-

tionally adequate justification for denying Petitioner a

hearing at which the state is required to bear the burden

of persuasion on the issue of prospective commitability.

Except for those insanity acquittees who remain pre-

sumptively mentally ill, this Court has never approved a

protracted deprivation of physical liberty without re-

quiring the state to bear the burden of persuasion, gen-

erally by a heightened standard of proof. See Cool v.

United States, 409 U.S. 100, 104 (1972) (beyond a

reasonable doubt standard constitutionally required in

adult criminal prosecutions); Jn re Winship, 397 U.S.

358, 361-64 (1970) (beyond a reasonable doubt stand-

ard constitutionally required in juvenile delinquency pro-

ceedings) ; Addington v. Texas, 441 U.S. 418, 433 (1979)

(clear and convincing evidence constitutionally required

for civil commitment) ; United States v. Salerno, 481 U.S.

739, 750 (1987) (clear and convincing evidence required

to preventively detain adults); Schall v. Martin, 467

U.S. 253, 278-79 (1984) (state must prove a “serious

risk”’ of future criminal! conduct for pretrial preventive

detention of juveniles).

Placing the burden of persuasion on Petitioner to

“prove” his “‘nondangerousness” is particularly unfair

and onerous. As the court below has made clear, i will

do him no good to demonstrate that he no longer has any

mental illness. In the absence of mental illness, it is

not apparent how Petitioner—or any other citizen, for

that matter—can prove that he will never in the future

be a “danger to others or to himself.” La. Code Crim.

Proc. Ann. art. 655 (West Supp. 1991). For acquittees

who are no longer mentally ill, an analysis of the factors

16

in the calculus prescribed by Mathews v. Eldridge, 424

U.S. 319, 335 (1976), would require, at a minimum, that

the state must demonstrate prospective dangerousness by

at least clear and convincing evidence.

B. Petitioner’s Confinement Cannot Be Distinguished

from That of Other Persons Who May Have Com-

mitted a Criminal Act but Cannot Be Prosecuted or

Punished for It.

Principles of equal protection are at least strained by

the Louisiana statute as well. This Court has held that

it does not violate the Equal Protection Clause to distin-

guish between acquittees who remain presumptively men-

tally ill and general commitment patients. Jones v. United

States, 463 U.S. 354 (1983). But the case at bar pre-

sents a different equal proteciion issue. The comparison

here is between two classes: (1) persons who “commit-

ted” a criminal offense but were acquitted by reason of

insanity and who are not now mentally ill (such as Peti-

tioner!, and (2) other persons who committed such an

offense but who cannot be punished now for some other

reason. Examples in the latter class would include such

groups as individuals on whose acts the statute of limi-

tations expired before they could be tried; persons ac-

quitted because of insufficient evidence where the later

discovery of conclusive evidence of guilt cannot produce

a conviction because of double jeopardy;* and persons

who have completed their sentence of imprisonment.”

7As Chief Justice Burger noted for a unanimous Court, “The

Double Jeopardy Clause forbids a second trial for the purpose of

affording the prosecution another opportunity to supply evidence

which it failed to muster in the first proceeding.” Burks v. United

States, 437 U.S. 1, 11 (1978). See Fong Foo v. United States, 369

U.S. 141, 143 (1962).

*The state may not deny a prisoner a civil commitment hearing

on his prospective dangerousness “solely on the ground that he was

nearing the expiration of a prison term.” Parstrom v. Herold, 383

U.S. 107, 114 (1966).

17

The seemingly disparate groups in the second class

have a great deal in common with one another and with

Petitioner. Each consists of persons who committed an

act which the state cannot now punish, but which may

give rise to a concern about prospective dangerousness.

Each is, in other words, a group which includes indi-

viduals who may be prospectively dangerous, but whom

the state cannot incapacitate through its punitive au-

thority under the criminal law. In each instance, the

law’s response to this dilemma is that whatever level

of danger may be posed is outweighed by the value of

individual liberty and of the rule of law. Jn none of these

classes of cases has this court permitted the previous act

to serve as the predicate for preventive detention.

The Jones class of presumptively mentally ill acquittees

is distinguishable from these groups. Jones acquittees are

persons who still have the mental illness that produced

criminal acts. The state has a particular reason to

be concerned about these acquittees because the same

mental disability that produced acquittal in the first case

may well do so for subsequent acts as well. And finally,

members of the Jones class receive treatment designed to

alleviate their mental illness. This treatment may con-

stitute a benefit to persons suffering from mental illness,

but, more significantly, is a positive step by the state to

render the individual less likely to be dangerous by re-

moving the causative mental illness.

Unlike Jones acquittees, Petitioner cannot be distin-

cuished from the second group. Like them, he committed

an act prohibited by law. Like them, there is some (un-

ascertained) level of possibility that he may commit a

future dangerous act, and that degree of likelihood may

be affected by the fact that he committed such an act in

the past.” And like them, he cannot be incapacitated

* In fact, Petitioner’s class, as a whole, may be less likely to repeat

the previous act than the other classes. If an insanity acquittee’s

criminal act is the product of a mental illness that no longer exists,

18

through punitive imprisonment. Nevertheless, Louisiana

claims the power to incarcerate '’ Petitioner to prevent

the possibility of unspecified future acts of dangerous-

ness,

In treating Petitioner differently from members of the

second group of individuals, it deprives him of his funda-

mental right to physical freedom. It can offer no com-

pelling—or even rational—justification for Jocking up

Petitioner without any outer time limit or realistic pros-

pect for release while allowing the others to remain at

liberty.

Ill. ELIMINATING THE ESSENTIAL LINKAGE BE-

TWEEN CIVIL COMMITMENT AND MENTAL DIS-

ABILITY DESTROYS THE THERAPEUTIC FUNC-

TION OF MENTAL HEALTH FACILITIES AND

THE PROFESSIONALS WHO WORK IN THEM.

Mental hospitals and other mental health facilities are

maintained to provide treatment to persons suffering the

effects of mental illness. The mental health professions,

in cooperation with state governments, have taken sub-

stantial strides in transforming these facilities from the

“warehouses” and “snakepits” they had become in pre-

vious eras of neglect. Cf. A. Deutsch, The Shame of the

States (1948). Success in this effort to modernize the

therapeutic functioning of mental hospitals is still in-

complete, but mental health professionals continue to

work diligently toward that end.

Approving the involuntary confinement in mental hos-

pitals of persons who have no mental illness would im-

pede this professional effort. The statute under which

the likelihood of recidivism may be lower than for those who escaped

punishment by more capricious means, such as nondiscovery of evi-

dence or the expiration of the statute of limitations.

The term “hospitalize’” would certainly be inappropriate in

these circumstances, since Petitioner has no “illness” and the state

concedes that it cannot and will not provide him “treatment.”

19

Petitioner is confined transforms mental hospitals into

prisons and turns mental health professionals into jailors.

Therapists are required to confine individuals whom they

cannot treat because they have no illness. As the Ameri-

can Bar Association has observed:

To allow special commitment on the basis of a pre-

diction of dangerousness in the absence of current

mental disability ignores an essential element of civil

commitment and converts special commitment into a

form of imprisonment despite an acquittal ....

A.B.A., Criminal Justice Mental Health Standards,

Standard 7-7.4, Commentary at 421 (1989).

Not only would affirmance of the ruling below validate

and foster bad public policy in the mental health field,"

stripping mental hospitals of their therapeutic mission

and function, it may also be a constitutional violation in

itself. In Salerno, when this Court emphasized the con-

stitutional relevance of the time limits inherent in the

Bail Reform Act, it noted that at some point “detention

in a particular case might become excessively prolonged,

and therefore punitive... .” 481 U.S. at 747 n.4. The

prospect of limitless nontherapeutic confinement under

the Louisiana statute crosses that line when an acquittee

no longer has any mental illness.'*

1! Following the amendment that will take effect in Virginia in

1992, 1991 Va. Acts 427, it appears that, at most, only six other

states do not require mental illness as a prerequisite to the continued

confinement of insanity acquittees either by statute or caselaw.

See Appendix.

12 As Professor Packer observed:

So long as we can tie our concern about a person’s future activity

to something he has done in the past—some act that he has

committed or some dangerous trait that he has manifested

(usually through an act)—and so long as our main concern is

with the protection of others rather than the betterment of the

person being dealt with, it seems to me misleading to call our

way of dealing with him anything but Punishment.

H. Packer, The Limits of the Criminal Sanction 28 (1968).

20

In previous cases involving mental disability, this

Court has observed that some degree of judicial defer-

ence is warranted when legislatures ‘act in areas fraught

with medical and scientific uncertainties ....”’ Marshall

v. United States, 414 U.S. 417, 427 (1974). But no such

deference is owed to the Louisiana statute because it in-

volves no “medical or scientific uncertainties” because the

commitment of a person who has no mental illness in-

volves no “medical or scientific” issues. It is either pun-

ishment under the guise of civil commitment, or unvarn-

ished preventive detention without the substantive, pro-

cedural, or durational limits that this Court has found

to be required under the Due Process Clause.

CONCLUSION

For the reasons set forth above, amici urge this Court

to reverse the decision of the Louisiana Supreme Court.

Respectfully submitted,

JAMES W. ELLIS

Counsel of Record

BARBARA E. BERGMAN

1117 Stanford, N.E.

Albuquerque, New Mexico 87131

Of Counsel: (505) 277-2146

STEVEN R. SHAPIRO Counsel for Amici Curiae

APPENDIX

la

APPENDIX

Forty-eight states, the District of Columbia, and fed-

eral law provide for acquittal by reason of insanity (Idaho

and Montana have no provisions for a defense of in-

sanity). It appears that, at most, only six jurisdictions,

in addition to Louisiana, do not require mental illness

as a prerequisite to the continued confinement of insanity

acquittees either by statute or caselaw.

The following jurisdictions prohibit continued confine-

ment on the basis of dangerousness alone in the absence

of mental illness: Ala. Code § 15-16-67 (Supp. 1990);

Alaska Stat. § 12.47.090(g¢) (1990); Ariz. Rev. Stat.

Ann. § 13-3994(C) (1989); Ark. Stat. Ann. § 5-2-315/a)

(2)(C) (Supp. 1989); Cal. Penal Code § 1026.2/e)

(West Supp. 1991); Colo. Rev. Stat. § 16-8-115/2)

(1986) ; Conn. Gen. Stat. Ann. § 17a-593/g) (West Supp.

1991); Del. Code Ann. tit. 11, § 403(b) (1987), In the

Matter of Lewis, 403 A.2d 1115 (Del. 1979); D.C. Code

Ann. § 24-301(e) (1989); Fla. Stat. § 916.17(3) (1982);

Ga. Code Ann. § 17-7-131(f) (1990) (as amended by 1991

Ga. Laws 378); Ill. Ann. Stat. ch. 38, para. 1005-2-4(h)

(Smith-Hurd Supp. 1991); Ind. Code Ann. § 35-36-2-4

(Burns 1985); Ky. Rev. Stat. Ann. § 504.030 (Baldwin

1984); Me. Rev. Stat. Ani. tit. 15, §104-A‘1) (Supp.

1990); Md. Health-Gen. Code Ann. § 12-113(b) (1990);

Mass. Gen. Laws Ann. ch. 123, §16/c) (West Supp.

1990); Mich. Comp. Laws Ann. § 330.2050(5) (West

1980); Minn. Crim. Proc. R. 20.02, subd. 8 (Supp.

1991); Miss. Code Ann. § 99-13-7 (1972); Mo. Ann. Stat.

§ 552.040(8) (Vernon 1987); Neb. Rev. Stat. § 29-3703

(2) (1989); Nev. Rev. Stat. Ann. § 175-521 (Michie

Supp. 1989); N.H. Rev. Stat. Ann. § 651:11l-a(I) (1986);

N.J. Stat. Ann. § 2C:4-9(b) (West 1982), State v.

Fields, 77 N.J. 282, 390 A.2d 574 (1978); N.M. Sup.

Ct. Rules Ann. 5-602 (Recomp. 1986) (N.M.R. Crim.

P.); N.Y. Crim. Proce. Law §§ 330.20(8), (9), (12), and

(13) (McKinney Supp. 1991); N.D. Cent. Code § 12.1-

2a

.04.1-24(3) (a) (1985); Ohio Rev. Code Ann. § 2945.40

(Anderson Supp. 1990); Okla. Stat. Ann. tit. 22, § 1161

(West Supp. 1991); Or. Rev. Stat. § 161.346(1) (Supp.

1990); Pa. Stat. Ann. tit. 50, § 7304(g) (‘Purdon Supp.

1990); R.I. Gen. Laws § 40.1-5.3-4(h) (1990); S.C. Code

Ann. § 17-24-40(C)(2)(¢c) (Law. Co-op. 1985); S.D.

Codified Laws Ann. § 23A-26-12.5 (1988); Tenn. Code

Ann. § 33-6-110 (Supp. 1990); Tex. Code Crim. Proc.

Ann. art. 46.03(d)(4), (5) (Vernon Supp. 1991); 18

U.S.C. § 4243/(f) (1988); Utah Code Ann. § 77-38-8(1)

(Supp. 1990); Vt. Stat. Ann. tit. 13, § 4822 (Supp.

1990); 1991 Va. Acts 427 (effective July 1, 1992); W.

Va. Code § 27-6A-4 (1986); Wyo. Stat. § 7-11-306(g)

(1987).

The following jurisdictions appear on their face to per-

mit continued confinement in the absence of mental ill-

ness: Haw. Rev. Stat. § 704-412 (1985); Iowa Code Ann.

§ 813.2, Rule 21/8) (e) (West Supp. 1991); Kan. Stat.

Ann. §§ 22-3428(3), 22-3428a (Supp. 1990); 1991 N.C.

Sess. Laws 37; Wash. Rev. Code Ann. §§ 10.77.150(2),

10.77.200 (1990); Wise. Stat. Ann. §$§ 971.17(4), (5)

(West Supp. 1990).

Of the states not requiring mental illness for continued

confinement, two differ substantially from Louisiana re-

garding duration of commitment. See Wash. Rev. Code

Ann. § 10.77.020/3) (1990) (commitment cannot exceed

the maximum possible penal sentence for any offense

charged); Wise. Stat. Ann. §971.17(1) (West Supp.

1990) (commitment may not exceed two-thirds of the

maximum term of imprisonment that could have been

imposed; state bears the burden of persuasion by clear

and convincing evidence).

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