THOMAS, J., dissenting

required for civil committees by Addington v. Texas, 441 U. S. 418 (1979). There are, we recognized, "important differences between the class of potential civil-commitment candidates and the class of insanity acquittees that justify differing standards of proof." Jones, 463 U. S., at 367. In sharp contrast to a civil committee, an insanity acquittee is institutionalized only where "the acquittee himself advances insanity as a defense and proves that his criminal act was a product of his mental illness," and thus "there is good reason for diminished concern as to the risk of error." Ibid. (emphasis in original). “More important, the proof that he committed a criminal act . . . eliminates the risk that he is being committed for mere 'idiosyncratic behavior."" Ibid. Thus, we concluded, the preponderance of the evidence standard comports with due process for commitment of insanity acquittees. Id., at 368. "[I]nsanity acquittees constitute a special class that should be treated differently from other candidates for commitment." Id., at 370.

The Court today attempts to circumvent Jones by declaring that a State's interest in treating insanity acquittees differently from civil committees evaporates the instant an acquittee "becomes sane." I do not agree. As an initial matter, I believe that it is unwise, given our present understanding of the human mind, to suggest that a determination that a person has "regained sanity" is precise. "Psychiatry is not... an exact science, and psychiatrists disagree widely and frequently on what constitutes mental illness." Ake v. Oklahoma, 470 U. S. 68, 81 (1985). Indeed,

"[w]e have recognized repeatedly the 'uncertainty of diagnosis in this field and the tentativeness of professional judgment. The only certain thing that can be said about the present state of knowledge and therapy regarding mental disease is that science has not reached finality of judgment.' The lesson we have drawn is not that government may not act in the face of this uncertainty, but rather that courts should pay particular

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deference to reasonable legislative judgments." Jones, supra, at 365, n. 13 (quoting Greenwood v. United States, 350 U. S. 366, 375 (1956); citations omitted).

In this very case, the panel that evaluated Foucha in 1988 concluded that there was "never any evidence of mental illness or disease since admission," App. 10; the trial court, of course, concluded that Foucha was "presently insane," id., at 6, at the time it accepted his plea and sent him to Feliciana. The distinction between civil committees and insanity acquittees, after all, turns not on considerations of present sanity, but instead on the fact that the latter have "already unhappily manifested the reality of anti-social conduct," Dixon v. Jacobs, 138 U. S. App. D. C. 319, 334, 427 F. 2d 589, 604 (1970) (Leventhal, J., concurring). “[T]he prior anti-social conduct of an insanity acquittee justifies treating such a person differently from ones otherwise civilly committed for purposes of deciding whether the patient should be released." Powell v. Florida, 579 F. 2d 324, 333 (CA5 1978) (emphasis added); see also United States v. Ecker, 177 U. S. App. D. C. 31, 50, 543 F. 2d 178, 197 (1976), cert. denied, 429 U. S. 1063 (1977). While a State may renounce a punitive interest by offering an insanity defense, it does not follow that, once the acquittee's sanity is "restored," the State is required to ignore his criminal act, and to renounce all interest in protecting society from him. "The state has a substantial interest in avoiding premature release of insanity acquittees, who have committed acts constituting felonies and have been declared dangerous to society." Hickey v. Morris, 722 F. 2d 543, 548 (CA9 1983).

Furthermore, the Federal Constitution does not require a State to "ignore the danger of 'calculated abuse of the insanity defense."" Warren v. Harvey, 632 F. 2d 925, 932 (CA2 1980) (quoting United States v. Brown, 155 U. S. App. D. C. 402, 407, 478 F. 2d 606, 611 (1973)). A State that decides to offer its criminal defendants an insanity defense, which the defendant himself is given the choice of invoking, is surely

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allowed to attach to that defense certain consequences that prevent abuse. Cf. Lynch v. Overholser, 369 U. S. 705, 715 (1962) ("Congress might have considered it appropriate to provide compulsory commitment for those who successfully invoke an insanity defense in order to discourage false pleas of insanity").

"In effect, the defendant, by raising the defense of insanity-and he alone can raise it-postpones a determination of his present mental health and acknowledges the right of the state, upon accepting his plea, to detain him for diagnosis, care, and custody in a mental institution until certain specified conditions are met. . . . [C]ommitment via the criminal process . . . thus is more akin to 'voluntary' than 'involuntary' civil commitment." Goldstein & Katz, Dangerousness and Mental Illness, Some Observations on the Decision to Release Persons Acquitted by Reason of Insanity, 70 Yale L. J. 225, 230 (1960) (footnote omitted).

A State may reasonably decide that the integrity of an insanity-acquittal scheme requires the continued commitment of insanity acquittees who remain dangerous. Surely, the citizenry would not long tolerate the insanity defense if a serial killer who convinces a jury that he is not guilty by reason of insanity is returned to the streets immediately after trial by convincing a different factfinder that he is not in fact insane.

As the American Law Institute has explained:

"It seemed preferable to the Institute to make dangerousness the criterion for continued custody, rather than to provide that the committed person may be discharged or released when restored to sanity as defined by the mental hygiene laws. Although his mental disease may have greatly improved, [an insanity acquittee] may still be dangerous because of factors in his personality and background other than mental disease. Also, such a

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standard provides a means for the control of the occasional defendant who may be quite dangerous but who successfully feigned mental disease to gain an acquittal." Model Penal Code §4.08, Comment 3, pp. 259-260 (1985).8

That this is a reasonable legislative judgment is underscored by the fact that it has been made by no fewer than 11 state legislatures, in addition to Louisiana's, which expressly provide that insanity acquittees shall not be released as long as they are dangerous, regardless of sanity.9

8 The relevant provision of the Model Penal Code, strikingly similar to Article 657 of the Louisiana Code of Criminal Procedure, see supra, n. 6, provides in part as follows:

"If the Court is satisfied by the report filed pursuant to Subsection (2) of this Section and such testimony of the reporting psychiatrists as the Court deems necessary that the committed person may be discharged or released on condition without danger to himself or others, the Court shall order his discharge or his release on such conditions as the Court determines to be necessary. If the Court is not so satisfied, it shall promptly order a hearing to determine whether such person may safely be discharged or released. Any such hearing shall be deemed a civil proceeding and the burden shall be upon the committed person to prove that he may safely be discharged or released." Model Penal Code §4.08(3) (Proposed Official Draft 1962).

9 See Cal. Penal Code Ann. § 1026.2(e) (West Supp. 1992) (insanity acquittee not entitled to release until court determines that he "will not be a danger to the health and safety of others, including himself"); Del. Code Ann., Tit. 11, § 403(b) (1987) (insanity acquittee shall be kept institutionalized until court "is satisfied that the public safety will not be endangered by his release"); Haw. Rev. Stat. § 704-415 (1985) (insanity acquittee not entitled to release until court satisfied that acquittee "may safely be discharged or released"); Iowa Rule Crim. Proc. 21.8(e) (insanity acquittee not entitled to release as long as "court finds that continued custody and treatment are necessary to protect the safety of the [acquittee's] self or others"); Kan. Stat. Ann. §22-3428(3) (Supp. 1990) (insanity acquittee not entitled to release until "the court finds by clear and convincing evidence that [he] will not be likely to cause harm to self or others if released or discharged"); Mont. Code Ann. §46-14-301(3) (1991) (insanity acquittee not entitled to release until he proves that he "may safely be released");

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The Court suggests an alternative "procedural" due process theory that is, if anything, even less persuasive than its principal theory. "[K]eeping Foucha against his will in a mental institution is improper absent a determination in civil commitment proceedings of current mental illness and dangerousness." Ante, at 78 (emphasis added). The Court cites Vitek v. Jones, 445 U. S. 480 (1980), as support. There are two problems with this theory. First, it is illogical: Louisiana cannot possibly extend Foucha's incarceration by adding the procedures afforded to civil committees, since it is impossible to civilly commit someone who is not presently

N. J. Stat. Ann. §2C:4-9 (West 1982) (insanity acquittee not entitled to release or discharge until court satisfied that he is not "danger to himself or others"); N. C. Gen. Stat. § 122C-268.1(i) (Supp. 1991) (insanity acquittee not entitled to release until he "prove[s] by a preponderance of the evidence that he is no longer dangerous to others"); Va. Code Ann. § 19.2181(3) (1990) (insanity acquittee not entitled to release until he proves "that he is not insane or mentally retarded and that his discharge would not be dangerous to the public peace and safety or to himself" (emphasis added)); Wash. Rev. Code § 10.77.200(2) (1990) ("The burden of proof [at a release hearing] shall be upon the [insanity acquittee] to show by a preponderance of the evidence that [he] may be finally discharged without substantial danger to other persons, and without presenting a substantial likelihood of committing felonious acts jeopardizing public safety or security"); Wis. Stat. §971.17(4) (Supp. 1991) (insanity acquittee not entitled to release where court "finds by clear and convincing evidence that the [acquittee] would pose a significant risk of bodily harm to himself or herself or to others of serious property damage if conditionally released").

The Court and the concurrence dispute this list of statutes. Ante, at 84-85, n. 6; ante, at 89 (O'CONNOR, J., concurring in part and concurring in judgment). They note that two of the States have enacted new laws, not yet effective, modifying their current absolute prohibitions on the release of dangerous insanity acquittees; that courts in two other States have apparently held that mental illness is a prerequisite to confinement; and that three of the States place caps of some sort on the duration of the confinement of insanity acquittees. Those criticisms miss my point. I cite the 11 state statutes above only to show that the legislative judgments underlying Louisiana's scheme are far from unique or freakish, and that there is no well-established practice in our society, either past or present, of automatically releasing sane-but-dangerous insanity acquittees.