Foucha v. Louisiana – Oral Argument – November 04, 1991

Media for Foucha v. Louisiana

Audio Transcription for Opinion Announcement – May 18, 1992 in Foucha v. Louisiana

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William H. Rehnquist:

We’ll hear argument now on No. 90-5844, Terry Foucha v. Louisiana.

Mr. Manasseh.

James P. Manasseh:

Mr. Chief Justice, and may it please the Court:

Once an insanity acquittee has regained his sanity, may the Government continue to confine him in a mental institution indefinitely solely on the basis that he cannot prove that he is no longer a danger to society?

Terry Foucha was found not guilty by reason of insanity back in 1984.

Since that time he has since regained his sanity.

And it was established at a release hearing back in 1988.

The Louisiana supreme court has answered in the affirmative that once an individual has been found not guilty by reason of insanity, he must, in order to gain release, prove that he is no longer a danger to himself or to society.

We ask this Court to reverse the 4-3 majority of the Louisiana supreme court by finding that such a statutory scheme violates the Fourteenth Amendment due process clause and equal protection clause.

Terry Foucha’s plea was accepted pursuant to a statute in Louisiana that allowed the judge to accept his plea with the concurrence of the respondent’s office.

Since that time, as I said, he’s regained his sanity.

And that’s been established at the release hearing in 1988.

He has since remained in limbo because the statutory scheme in Louisiana requires that in order to gain release the individual must prove that he is not a danger to himself or society.

The problem is that the statute makes irrelevant his present mental condition.

It does not consider whether he is mentally healthy or whether he’s not.

It makes that determination irrelevant to whether he can regain, whether he can ever gain release from the mental institution.

In Jones v. United States, this Court stated that the Constitution permits the Government to continue confinement indefinitely of an insanity acquittee until such time as the individual regains his sanity or is no longer a danger to himself or to others.

We believe that once he regains his sanity, the indefinite custodial confinement of this insanity acquittee must cease and cannot be based any further on his finding of not guilty by reason of insanity.

William H. Rehnquist:

In Jones, the Court was dealing with a statute, was it not, that required both of those findings?

James P. Manasseh:

Your Honor, it did deal with a statute that required both of those findings.

And that’s the way the Louisiana supreme court differed and found, as opposed to our position, that the insanity acquittee is entitled to release once one of those two things is established.

William H. Rehnquist:

Do you think Jones supports your position or is simply neutral?

James P. Manasseh:

Your Honor, I think that Jones supports our condition because Jones specifically says that the Constitution… and the Louisiana supreme court ignored the reference to the Constitution in that particular holding.

In addition, I would suggest–

William H. Rehnquist:

But in Jones, the Court was dealing with a statute that required both of those.

And it said that statute is constitutional.

James P. Manasseh:

–Yes.

William H. Rehnquist:

It doesn’t necessarily follow, I would think, the statute which required less from the State than the Jones statute is unconstitutional.

James P. Manasseh:

Your Honor, I would suggest that the statute, the reasoning in Jones specifically said… and I’m not here to tell the Court what the Court meant in Jones… but if the nature and the duration of confinement must be reasonably related to the purpose of initial confinement, and his initial confinement is based upon the fact that he was found not guilty by reason of insanity, and therefore, his confinement must continue because he is continuing to be mentally ill and dangerous, once he establishes that he is no longer dangerous… excuse me.

Once he establishes that he’s regained his sanity, then the finding of dangerousness that the Louisiana statute allows is not related to the mental illness for which he was originally committed for.

Sandra Day O’Connor:

Mr. Manasseh, what about a statute like in the State of Washington that, for someone who is acquitted in a criminal case as not guilty by reason of insanity and is then committed to a mental institution for a specific term of years that might, for example, be related to some equivalent penalty for the offense.

Do you think that under circumstances such as in this case that such as individual likewise would have to be released?

James P. Manasseh:

Your Honor, I believe that there can be certain circumstances, if a statute is narrowly tailored and specifically defined such as the situation of a regulatory detention, that the State could have interests that outweigh the individual’s liberty interest.

Sandra Day O’Connor:

Well, do you concede that a statutory scheme such as Washington State’s is valid?

James P. Manasseh:

Do I concede that it is valid?

Yes.

James P. Manasseh:

I do not necessarily concede that it is valid.

I don’t think this Court has ruled on that issue as of this time.

But the Washington statute is different than Louisiana’s, Your Honor.

The Washington statute deals with whether the individual is fit to be released.

It doesn’t deal with just a dangerousness test as the Louisiana supreme court indicated in their opinion.

It dealt with whether the individual could show that he was fit for release.

Sandra Day O’Connor:

Let’s put it this way.

Suppose Louisiana were to put a cap on the period of time in which someone could be held and put a limitation on it.

Would you still be here?

James P. Manasseh:

Your Honor, we may not be.

In that situation the Government’s interest with a narrowly tailored, specifically defined statutory scheme might… in those circumstances, the Government’s interest in societal protection might outweigh the individual’s liberty interest.

But the statute we have here requires an indefinite confinement, perhaps a lifetime confinement, for all insanity acquittees, no matter what their charge.

Harry A. Blackmun:

Counsel, if you prevail here what happens?

Is he released?

Or is there another what you call contradictory hearing?

James P. Manasseh:

Your Honor, I believe that what would happen would be the matter would be sent back to the district court to make a specific finding… factual finding whether he is in fact not mentally ill or not.

The testimony at the release hearing, by the State’s own witness, indicated that he was no longer mentally ill.

The trial judge, though, did not specifically state on the record that he found that he was no longer mentally ill.

But that evidence was uncontroverted in the record.

But that would be a factual determination for the trial court to make.

Anthony M. Kennedy:

Is your argument based on the assumption that he can be held only for treatment and not for preventative purposes?

Doesn’t that underlie your argument?

James P. Manasseh:

That would underlie the argument under one phase of a substantive due process argument that once an individual has proven himself to no longer be mentally ill, he could no longer be indefinitely confined in a mental institution.

Anthony M. Kennedy:

Suppose he’s dangerous.

James P. Manasseh:

Under those circumstances, Your Honor, just as I said, the Government may be able to fashion a statutory scheme similar to a Salerno situation that in those circumstances the Government interest would outweigh the individual’s liberty interest.

I’m not here to give the Louisiana legislature any–

Anthony M. Kennedy:

But I take it then that you must be saying that without some subsequent hearing, an acquittal by reason of insanity permits the State only to treat the insanity and not to incarcerate in order to prevent danger to others or to himself.

James P. Manasseh:

–No, Your Honor.

I’m sorry, respectfully, but that is not necessarily what I’m saying.

The dangerousness that Louisiana commits an individual who has been found not guilty by reason of insanity is because he’s insane and that finding, as Jones points out, is sufficient to establish continuing mental illness and his dangerousness.

But once his mental illness is cleared up, then the dangerousness should not be just a uniform, any sort of dangerousness.

It should be some sort of a dangerousness related to his mental illness.

Byron R. White:

Well, what’s your authority for that?

James P. Manasseh:

Your Honor, at that point I would suggest that an Addington-type hearing should be called for in order for the Government to make some sort of a showing that he is, in fact, dangerous, that it’s not related necessarily to the mental illness to justify his continued confinement.

William H. Rehnquist:

Well, why can’t the Government base it on his conviction, but for insanity, of aggravated burglary?

James P. Manasseh:

I’m sorry, Your Honor, I’m not sure I understand your question.

William H. Rehnquist:

Well, as I understand the Louisiana procedure is found not guilty by reason of insanity, which means that the jury found he did commit the aggravated burglary.

James P. Manasseh:

As I pointed out before, Your Honor, there was not a jury in this situation.

William H. Rehnquist:

Well, the judge, the judge found he committed–

James P. Manasseh:

The trial, the trial judge… yes, Your Honor.

William H. Rehnquist:

–Why can’t they use that as a basis for finding him dangerous?

James P. Manasseh:

Your Honor, they have.

And he’s been committed.

And he’s been indefinitely held in the mental institution.

But now, once he’s regained his sanity, his mental… his dangerousness is not related to the mental illness which he had.

William H. Rehnquist:

Why does it have to be?

Why can’t Louisiana simply say this man committed an aggravated burglary and we’re going to confine him?

James P. Manasseh:

At that point, Your Honor, I’m not saying that the Government could not make that sort of a showing, but it seems as though that procedural due process would require that the Government make that showing pursuant to Addington because the burden of the individual trying to prove nondangerousness is a untenable type of burden to maintain.

William H. Rehnquist:

But the Government did once sustain that burden in the criminal proceeding.

James P. Manasseh:

Your Honor, he was found not guilty by reason of insanity.

William H. Rehnquist:

But doesn’t that mean that he was found to have committed the crime, but was not culpable by reason of insanity?

James P. Manasseh:

Theoretically, that’s what that means.

If the Court looks at the judgment on page, I believe, it’s 5 of the Joint Appendix, the judgment indicates that the court accepted a not guilty and not guilty by reason of insanity judgment.

So it is unclear from looking at that judgment and looking at the record whether the trial court actually made a factual determination that he was in fact guilty of a criminal offense at that time.

William H. Rehnquist:

Well, then, is this case simply a sport?

I mean, a peculiar fact situation?

I thought we took the case to decide whether someone who was found not guilty by reason of insanity could be confined after they were no longer ill.

James P. Manasseh:

Yes, Your Honor.

I believe that’s why the case was accepted.

My point is is that it’s… you’re unable to make the determination by looking at the record whether the individual actually committed a criminal offense to begin with.

William H. Rehnquist:

Well, what assumption did the supreme court of Louisiana go on?

James P. Manasseh:

They made the assumption that the theoretical basis of a not guilty by reason of insanity plea is guilty, but insane.

William H. Rehnquist:

Yes, well, I think we would probably go on that same assumption.

James P. Manasseh:

Yes, Your Honor.

Sandra Day O’Connor:

Mr. Manasseh, in what way are the conditions of confinement in a mental institution more restrictive or oppressive than the kind of confinement this Court upheld in Salerno, pretrial detention?

James P. Manasseh:

Well, for one thing, Your Honor, the detention in this case is indefinite.

It can be a lifetime confinement.

In Salerno it was for a very limited duration based upon the Speedy Trial Act.

Secondly, Your Honor, the Salerno act targeted only the most dangerous of criminals.

This act allows for any insanity acquittee, no matter what sort of offense that he committed, whether it’s a DWI, a minor misdemeanor theft, or whether it’s a first-degree murder situation, any insanity acquittee is refused to be released unless he can prove himself not to be a danger.

Sandra Day O’Connor:

Does your equal protection claim add anything to the due process claim?

Do they really merge and amount to the same thing?

James P. Manasseh:

They do to some extent, Your Honor.

I don’t necessarily know if they amount to the same thing.

Under Louisiana civil statutes, an individual can only be continued to be confined if he is dangerous as a result of his mental illness.

We would suggest that it’s a violation of equal protection to have a dual finding in a civil commitment statute, but only to require and allow the Government to confine an individual criminally if he fails to prove himself nondangerous, even after he’s shown to be not mentally ill.

David H. Souter:

But even where the statute provided for a limit, say, of 2 years on any confinement which could be maintained after the mental illness has disappeared and if the Government had the burden, say, by clear and convincing evidence to prove continued dangerousness after that point, would you find a constitutional infirmity in that?

James P. Manasseh:

Your Honor, at that point, again, I would say that I believe that the Government may, under certain circumstances–

David H. Souter:

Well, how about the circumstances I just gave you?

James P. Manasseh:

–I would have to look more deeply into the circumstances, Your Honor.

I don’t necessarily know that that would… that that would be unconstitutional pursuant to Salerno.

David H. Souter:

All right.

If that is the case would you also agree… let’s assume that the dangerousness here relates to dangerousness in terms of likely physical violence rather than, say, dangerousness in some belated sense of just committing further crimes like check-writing, say, real dangerousness to the health or safety of other human beings.

By the same principle that you, I think, have just conceded, could the Government not confine individuals for periods of 2 years without there being any preceding criminal charge and without there ever being any finding of insanity?

David H. Souter:

Could the Government, in other words, simply say we’re going to round up dangerous individuals and if we can prove by clear and convincing evidence that they are dangerous, we will confine them for 2 years subject to a renewable commitment with the burden being on us?

Would that be constitutional?

James P. Manasseh:

Your Honor, I don’t necessarily know that that would be constitutional.

David H. Souter:

What’s the difference between that case and the case that I gave you in which the insanity had been cured and the Government could keep the person in for 2 more years subject to the burden of proof?

James P. Manasseh:

Your Honor, of course there’s a distinction when the Government has shown that the individual has at one time committed a criminal act.

David H. Souter:

And is that distinction because the proof of dangerousness is more reliable?

James P. Manasseh:

Your Honor, I don’t know necessarily that it’s more reliable.

Once his mental illness has subsided–

David H. Souter:

Then what is the distinction?

James P. Manasseh:

–Your Honor, because once the criminal act had occurred the individual is not necessarily in a position to prove that he cannot at some point not present a danger.

David H. Souter:

No, but in my… in the example that I’m giving, in each instance the mental illness is cured or disappeared.

A period of 2 years go by.

The Government has a burden at that point either to release the person or to prove by clear and convincing evidence that the person remains dangerous.

And I thought your answer was that if that situation arose following a not guilty by insanity plea, it could be constitutional for the Government to keep the person in for another 2 years, to renew the commitment.

But I thought you were saying that if there had not been a preceding NGI or a preceding offense giving rise to that, that the Government could not do that constitutionally.

And I want to know why you can do it in the one instance and not in the other.

James P. Manasseh:

I believe in the situation where the act has already occurred the Government can make a limited, carefully drawn, regulatory detention.

David H. Souter:

I know that’s the conclusion that you come to, but why do you come to it?

Is it because the fact of the preceding criminal offense lends a greater weight to the soundness of the finding of dangerousness which it subsequently makes?

Or is there some other reason?

James P. Manasseh:

Yes.

It’s because of the fact that the Government has already shown that in certain circumstances while he is mentally ill he may in fact be a danger.

David H. Souter:

Yes, but on my hypothesis, he’s not mentally ill anymore.

James P. Manasseh:

Your Honor, again, the reason being is because the fact that the individual had suffered from a mental illness and was dangerous at one time may support that sort of a finding.

The Louisiana district attorney’s office out of Orleans Parish suggests that the Government’s interest in societal protection is legitimate and a compelling interest.

This Court has stated that just because the invocation of a legitimate purpose is made by the Government, that it cannot support all such restraints.

The court looks at whether the restriction is excessive in relationship to the Government interest.

This particular restraint, the indefinite custodial confinement in a mental institution of someone who’s been found to no longer be mentally ill certainly must fall within the grounds of excessiveness.

Anthony M. Kennedy:

Well, you say indefinite, there’s a hearing every 6 months?

James P. Manasseh:

Your Honor, there’s a hearing and he’s entitled to a litany of different hearings.

James P. Manasseh:

The problem is is that when the burden is on the individual to prove nondangerousness, he can have a hearing every day, every other day, and it is not going to make that burden any more reasonable for the individual to meet.

Anthony M. Kennedy:

Well, I recognize that there’s some negative aspects to it, but the statute is fairly specific.

There has to be behavior or significant threats that support a reasonable expectation of a substantial risk that he will inflict physical harm upon another person in the near future.

Isn’t that the standard that has to be met every 6 months?

James P. Manasseh:

But, Your Honor–

Anthony M. Kennedy:

Given he has the burden of proof.

And maybe you’re going to tell us that that’s impossible.

But it seems to me that he can show that during that period of time there’s been no significant behavior or threats.

James P. Manasseh:

–Your Honor, when the individual has already committed an act and the judge can rely upon the testimony of a doctor who has seen him for just a short period of time to testify that he refuses to certify that the individual is not a danger, this doctor will never certify that he’s not a danger.

If this Court does not reverse the Louisiana supreme court, Terry Foucha will, in all likelihood, remain at that mental institution for the rest of his life because Dr. Ritter is never going to certify, and no doctor will ever certify, that anyone will not be a danger.

And Dr. Ritter–

Anthony M. Kennedy:

Is it clear that that finding would have been made if there had been no showing of the specific incident, I think he put a pencil or an object through another inmate’s hand?

Are you saying that that’s just irrelevant based on the rationale adopted by the trial court?

James P. Manasseh:

–I’m not saying that that’s irrelevant, Your Honor.

But I am saying that there was no specific… the facts given by Dr. Ritter about the fact that he jabbed… somebody was jabbed with a pen doesn’t indicate whether Terry Foucha jabbed the person with the pen or whether he was provoked or what the circumstance was.

He is a sane person in a mental institution with lots of insane people.

There are going to be incidents at the mental institution regarding different problems.

The doctor indicates that he’s paranoid and he’s not the… he’s not the nicest… he’s had some problems with management.

I would suggest that anyone who was confined in a mental institution who knows that he is not insane and has had six specific doctors tell him that he’s not insane, a little paranoia is probably justified in that circumstance.

One of the problems that I think procedurally the case has is this unbridled discretion that the trial judge is given to disregard the recommendation of the superintendent, the recommendation of the review panel who recommended specifically at page 10 of the Joint Appendix that he could be released, he is no longer insane, and that he could be released without danger to himself or to others.

The doctor, Dr. Ritter, comes in and testifies, well, I’m afraid I don’t feel comfortable in certifying that he wouldn’t be a danger to himself or to others.

The judge basically is given unbridled discretion because the statute does not give specific considerations for him to consider, such as the statute did in Salerno.

And, again, and this point is very important, the Government may be able to come in and make a carefully limited and narrowly drawn statutory requirement that allows for the indefinite confinement of an insanity acquittee even if he’s regained his sanity.

But this type of indefinite confinement based upon his failure to be able to prove nondangerousness is… is clearly the most excessive type of restraint that Louisiana can fashion.

It is in no way related or closely akin to the type of restriction in Salerno.

Salerno was specific, that it was a narrow set of factual circumstances that led to that opinion.

It was a brief period of time, of detention.

The Government had the burden of proving clear and convincing evidence that there were no circumstances under which the individual could be released without endangering society.

The statute specifically specified the most dangerous types of criminals, major drug offenders, murderers, and those types of individuals.

In addition, the court, the legislature laid out specific factors that the Government was to consider and the judge was to consider in making the determination whether a limited duration regulatory confinement could be instituted in that situation.

James P. Manasseh:

Louisiana’s statute isn’t close.

It has a possible lifetime confinement in a mental institution by an insanity acquittee.

It involves all insanity acquittees with no relation to the… to the facts.

It gives the court no factors to consider in making its decision.

And there’s no showing necessary by the Government to prove the different circumstances for his release.

Your Honor, the Government wants this Court to look at these statutes and to apply these factors in a very mechanicalistic fashion, the regulatory detention circumstances, very mechanicalistically.

I would suggest that those sort of mechanical applications cannot be applied in this sort of situation where an individual is looking at… his liberty interests are involved.

As far as the equal protection argument goes, this Court stated that in Baxstrom that the fact that a person has suffered and been convicted and was sentenced to a specific sentence, that that was not, that was insufficient to justify giving him less protection than those given to individuals who are civilly committed.

I would certainly suggest that an individual who’s been found not guilty by reason of insanity should also not be given less procedural and substantive protections as those afforded to other civil committees in Louisiana.

Even convicted felons are not put in the position that insanity acquittees are put in in Louisiana.

A convicted felon, when his term of sentence is up, he is entitled to release and it has nothing–

Harry A. Blackmun:

Even though he may be dangerous?

James P. Manasseh:

–Even though he may be dangerous, Your Honor, he is entitled to release once his sentence is up.

Harry A. Blackmun:

There are a lot of dangerous people out there, aren’t there?

James P. Manasseh:

There certainly are, Your Honor.

But the dangerousness of my client is not… for which he was originally sentenced for was because he was dangerous in relationship because he was mentally ill.

Once his mental illness has been cured, then the dangerousness that’s related to the mental illness is irrelevant to the fact of whether they’re going to try to confine him at this particular point.

William H. Rehnquist:

You say he was dangerous because of his mental illness.

Why do you deduce that conclusion?

James P. Manasseh:

Your Honor, I would suggest that the nature… because the nature and duration is, of confinement, is related to the reason that he has committed, that his dangerousness was related to his mental illness.

And that was the reason that an insanity acquittee… an insanity acquittal–

William H. Rehnquist:

Does that necessarily follow, though?

I mean, an insanity acquittal, what, in Louisiana means that you weren’t able to appreciate the consequences of your act?

James P. Manasseh:

–It means that you did not understand right from wrong, Your Honor.

William H. Rehnquist:

Well, but does that necessarily explain why the defendant did, committed this particular crime?

That doesn’t go to his motivation.

James P. Manasseh:

No, Your Honor.

The reason it doesn’t go to his motivation is because a person who is found not guilty by reason of insanity has no criminal intent to commit a crime, just as an individual who maybe makes a mistake and commits a criminal act or who doesn’t act in self-defense–

William H. Rehnquist:

Now, is that Louisiana law or is that your speculation about what it might mean?

Because it certainly isn’t accepted everywhere that someone who is found not guilty by reason of insanity lacks the intent.

William H. Rehnquist:

I think in many States that is regarded, not guilty by reason of insanity, is an affirmative defense… that the State can make out all the other elements including intent, and you can still say you have an affirmative defense, not guilty by reason of insanity.

So in many States it does not negate intent.

James P. Manasseh:

–Your Honor, in Louisiana it means that they didn’t understand right from wrong.

And if they didn’t understand right from wrong–

William H. Rehnquist:

But that’s a non sequitur to say that they didn’t understand right from wrong, therefore, they didn’t have the necessary intent.

James P. Manasseh:

–Your Honor, I would suggest that is someone doesn’t understand what’s right from wrong, then they couldn’t have criminal intent to commit a criminal act.

William H. Rehnquist:

If the State of Louisiana in its aggravated burglary statute requires that the State show that a person entered a dwelling in the nighttime with the intent to enter in order to commit a felony, it seems to me the State could prove every one of those elements, and including the intent, the intent to enter the dwelling with intent to commit a felony.

And you… the fact that a person didn’t know right from wrong would be, would go to insanity.

It wouldn’t go to the lack of intent at all.

James P. Manasseh:

I will respectfully note the Court’s opinion.

Your Honors, there is something that is holy and just about a situation in which the Government can tell a young man that he’s not guilty because he was sick, because he was ill, and then refuse to release him from a mental institution–

Antonin Scalia:

Did the Government have to tell him that?

Could the State simply disallow the defense of insanity if it wanted to?

James P. Manasseh:

–Yes, sir, they could, Your Honor.

Antonin Scalia:

And could the State impose a sentence for life for aggravated burglary if it wanted to?

James P. Manasseh:

I believe that the Government could.

Antonin Scalia:

So why can’t the State say, look, we don’t have to give you this insanity defense, but here’s the deal.

If you choose to use it, you simply, you simply don’t get out of prison until we’re sure you’re no longer a danger to society.

They are not conditioning any constitutional right upon this.

You just told me he doesn’t have a constitutional right to plead not guilty by reason of insanity.

So the State says, this is the deal.

If you choose to take it, you go in and you have to stay there until you’re no longer a danger.

James P. Manasseh:

If he had chosen to take it at that particular point, he would.

But this situation, he’s been found not guilty by reason of insanity and he should be released once he establishes that his insanity is no longer relevant.

I would reserve the balance of my time for rebuttal, Your Honor.

David H. Souter:

This was clear but then I began to wonder, Louisiana does require proof not only of insanity, but of dangerousness as a separate element prior to the original commitment.

Is that correct?

James P. Manasseh:

That is correct.

David H. Souter:

Okay.

James P. Manasseh:

That is correct.

William H. Rehnquist:

Very well, Mr. Manasseh.

Ms. Moran, we’ll hear from you.

Pamela S. Moran:

Mr. Chief Justice, and may it please the Court:

The State has a legitimate and compelling interest in conferring in an insanity acquittee who continues to present a danger to society, even though that acquittee may have regained his sanity.

The question that we have before us, I think, is preventative detention.

We know that preventative detention is allowed in cases such as Shaw v. Martin, which this court determined that juveniles can be detained, postarrest, pretrial.

Also the case of U.S. v. Salerno, where you have a postarrest detention situation where a dangerous defendant may be detained simply based on his dangerousness.

Antonin Scalia:

We don’t know that this defendant is dangerous, though.

That’s the difference.

Pamela S. Moran:

Well, I–

Antonin Scalia:

We just don’t have a psychiatrist who’s willing to come in and say, you know, he’s not dangerous.

I mean, the burden… isn’t that a significant difference?

Pamela S. Moran:

–I beg to differ with you on this point, Justice Scalia.

Based on the hearing, lunacy hearing, that was conducted on November of 1988, certain facts came out which indicated that Mr. Foucha remained a danger.

At one point, the three… three-doctor review panel at the Feliciana Forensic Facility recommended that he be released.

Since that report came out, subsequent to that report, Mr. Foucha was detained in the maximum security section of the hospital.

That’s in the Joint Appendix, page 18.

Joint Appendix, page 15, Dr. Ritter indicated that he got into a lot of difficulties.

He had trouble with Feliciana.

He had altercations with other patients, and it appears that he stabbed a prison guard with an ink pen.

Harry A. Blackmun:

How do you really prove dangerousness?

Future dangerousness?

Pamela S. Moran:

It’s inexact.

Sandra Day O’Connor:

It’s what?

Pamela S. Moran:

It’s an inexact science, just as psychiatry is inexact.

Harry A. Blackmun:

Well, not very long ago, the American Medical Association issued a paper saying that the prognosis of future dangerousness is wrong more times than it is correct.

Does that bother you?

Pamela S. Moran:

Not in terms of this petitioner, Mr. Foucha.

Harry A. Blackmun:

It has been cited in an opinion in this Court.

Pamela S. Moran:

It does not… it does not bother me because I still feel that the State has a legitimate overwhelming interest in protecting the community from individuals such as Mr. Foucha who remain dangerous.

Harry A. Blackmun:

Well, I think it is true that medical opinion often says that a murderer, incarcerated, will never commit another crime.

Some.

Therefore, I say, I think your estimates of future dangerousness are always on very dangerous ground.

Pamela S. Moran:

Well, some people… people may hold that view, but I feel that in this particular case, and in other cases as well, it must be looked at on a case-by-case basis based on what the individual has done.

The first dangerous act the petitioner did was to take a.357 Magnum and burglarize a home, an inhabited dwelling.

Also, criminal discharge of a firearm.

That act in itself indicates a dangerous individual.

John Paul Stevens:

No, but is it not fair to infer that the reason he did it was that he was mentally unbalanced at the time of the act?

And that is why the finding of not guilty was returned.

Pamela S. Moran:

Well, then, again, you come back to the inexact science of psychiatry.

At the outset–

John Paul Stevens:

Well, if it’s an inexact science, then what you’re saying is that as long as one is unclear, and we don’t know whether the person is dangerous or not, which is probably true of most individuals, then the individual cannot sustain the burden of proving beyond… by a preponderance of the evidence that he’s not dangerous.

Pamela S. Moran:

–Well, he can’t–

John Paul Stevens:

So the uncertain… in all uncertain cases, the person must remain incarcerated forever.

Pamela S. Moran:

–No, that’s not what I’m saying.

I think that Mr. Foucha and other insanity acquittees are able to carry that burden of proving that they are no longer dangerous.

John Paul Stevens:

Yes, but if psychiatrists are all uncertain, because of his past history, and are unwilling to say, I certify this man is no longer dangerous, then he loses, doesn’t he?

Pamela S. Moran:

No, because, you see, dangerousness is not a medical determination.

It’s a judicial determination.

John Paul Stevens:

Well, but, what is there in judicial history that determines dangerousness from some source other than prior criminal acts on the one hand or mental disease on the other?

What is this other category of dangerousness that’s unrelated to mental illness and unrelated to wrongdoing?

Pamela S. Moran:

Well, not necessarily unrelated to wrongdoing, but in Mr. Foucha’s case, he was diagnosed as having an antisocial personality disorder, which Dr. Ritter indicated cannot be cured.

And he does not classify that–

John Paul Stevens:

But then… but you say… then would you not win on the ground that he is still mentally ill?

Are there personality disorders that are unrelated to mental illness?

Pamela S. Moran:

–This appears to be the case, from what I can ascertain from Dr. Ritter’s testimony.

John Paul Stevens:

Do you think he could… if you think he’s got a personality disorder unrelated to mental illness, but nevertheless makes him dangerous, could you commit him if he had… never been found not guilty by reason of insanity?

Say you just find a man out in the street who meets the very characteristics that you assigned to this man.

Could he be put away for preventive purposes?

Pamela S. Moran:

No, not… not civilly.

Why not?

Pamela S. Moran:

Because the man on the street has not done a dangerous act.

The whole thing that started the ball rolling was the act that Mr. Foucha–

John Paul Stevens:

Well, suppose you had a man on the street who did the same act that this man did, served 5 years in the penitentiary, which would be the maximum sentence for it, and then you say, we think he’s still dangerous, and we can prove he has the kind of difficulty that you described as to him.

Could you put him away?

Pamela S. Moran:

–No, because–

Sandra Day O’Connor:

Why not?

Pamela S. Moran:

–Because he has served his 5 years in the penitentiary, and under–

John Paul Stevens:

But he poses precisely the same threat to society.

Pamela S. Moran:

–Well–

John Paul Stevens:

He has the same history, and the same kind of mental problem… mental… what do you call it… personality disorder.

Pamela S. Moran:

–I’m not saying that I’m happy to see this person get out, and that may possibly be why Louisiana has some of the longest prison sentences in the country.

[Laughter]

But we are trying to protect our citizens.

We know that we have people that go–

John Paul Stevens:

Yes, but how do you differentiate my case–

Pamela S. Moran:

–and are dangerous.

John Paul Stevens:

–a man who admittedly committed the crime on the one hand and was sentenced for the maximum term, yet when he gets out, the warden thinks he’s still dangerous and he could perhaps prove he’s… he may do it again, and the man before us today.

Pamela S. Moran:

Louisiana law does not allow that.

John Paul Stevens:

Pardon me?

Pamela S. Moran:

Louisiana law does not–

John Paul Stevens:

But Louisiana law could allow it, do you think?

Pamela S. Moran:

–No.

No, sir.

Antonin Scalia:

I’m confused.

You told Justice Stevens that dangerousness is not a medical concept.

And yet the trial judge, I think it’s a fair reading of the trial court’s opinion, found dangerousness based on the doctor’s refusal to certify.

That seems to me quite inconsistent.

Pamela S. Moran:

No, I think that dangerousness is a medical concept, but it is still a judicial determination.

The judge can look at what the doctors say.

Pamela S. Moran:

In this particular instance, Judge Wimberly was able to look at the report of the doctors at Feliciana.

He was able to listen to the testimony of Dr. Ritter.

But he, as the judge, with experience that, in sitting on the bench, if these people come through on a regular basis, has to look at all the facts, weigh the facts, and then make a determination.

That is the way to set up under Louisiana law.

If it were not that way, if the legislature had wanted, they could have just allowed the doctors at Feliciana to allow the release.

Anthony M. Kennedy:

Well, suppose the judge says, in this type of case, I simply am not going to make a finding of nondangerousness without supporting medical opinion.

That’s going to be my policy here in this court.

And the doctors say, as a medical matter, we simply cannot give you that certification.

What result?

Pamela S. Moran:

The results that you have here in the instance case.

Anthony M. Kennedy:

That’s close to this case, is it not?

Pamela S. Moran:

Close.

Antonin Scalia:

Ms. Moran, you’re saying that the State can keep this individual in the mental institution indefinitely, even though he no longer has a mental illness.

Right?

That’s okay?

Pamela S. Moran:

Based on dangerousness.

Antonin Scalia:

Based on dangerousness.

Could it, at the outset, commit somebody to mental institution for having committed a crime, even though he is not mentally ill?

I mean, there are some States that do that.

It’s… we–

Pamela S. Moran:

No, that… that–

Antonin Scalia:

–We have not generally considered it’s a good idea.

Pamela S. Moran:

–No, the person who commits a crime and is not mentally ill should go to prison.

Antonin Scalia:

Why?

You don’t think this fellow should go to… you don’t think this fellow should be in prison.

You think he should be in a mental institution, even though he is not mentally ill any more.

Pamela S. Moran:

I’m not going to say that I–

Antonin Scalia:

Because he’s dangerous.

So why don’t we just put him there in the first place?

Say, you know, you committed a burglary, you’re as sane as I am, but we are going to put you in a mental institution.

Pamela S. Moran:

–No, if you are sane, and you commit a burglary, then you go to prison, because you… you… because–

Antonin Scalia:

But I’m saying, but could you change it?

I’m going to change the law, we’re going to put you in a mental institution instead, the way they used to do in Russia.

Pamela S. Moran:

–No, because mental institutions are not prisons.

They have… they serve a different purpose.

Antonin Scalia:

I see.

Pamela S. Moran:

The idea is to rehabilitate the individual–

Antonin Scalia:

Do you think there might… do you think there might be something unconstitutional about committing someone to a mental institution for committing a crime?

Pamela S. Moran:

–Not if he was found not guilty by reason of insanity.

Antonin Scalia:

No, he was found guilty–

Pamela S. Moran:

And he’s–

Antonin Scalia:

–Not insane, he’s found guilty and the law says, you go to a mental institution.

Pamela S. Moran:

–Yes, that’s–

Antonin Scalia:

Would that be constitutional, do you think?

Pamela S. Moran:

–No, because the State has no–

Antonin Scalia:

It would not.

Pamela S. Moran:

–The State has no legitimate interest in putting–

Antonin Scalia:

Right.

Pamela S. Moran:

–such an individual in a mental institution.

Antonin Scalia:

But it’s okay to keep him there, once you have him in the mental institution, even though he’s become sane?

Pamela S. Moran:

They–

Antonin Scalia:

That doesn’t pose any constitutional problems?

Pamela S. Moran:

–No, based… it does not, based on the initial process by which this individual came to be in that mental hospital, based upon that insanity plea.

And if his adjudication has been not guilty by reason of insanity, it puts him in a different class.

Antonin Scalia:

I don’t feel any better about the one than I do about the other, I must say.

But even if it puts him in a different class, because there is a higher degree of soundness to the dangerousness prediction as a result of having committed an act which would be a crime but for the insanity and having been found insane?

Is that how you distinguish between the two cases?

Pamela S. Moran:

Yes, I think there’s a stronger basis at the outset for committing the man to the mental institution.

And I feel also very strongly that the system of checks and balances that we have in Louisiana ensures that this individual receives due process under the law.

David H. Souter:

Except that you… would you concede that at some point the probative value of the initial act or the probative value of the insanity finding, as itself, some index of future dangerousness, weakens.

David H. Souter:

Over time, it tends to prove a lower and lower and lower likelihood of future dangerousness, standing all by itself.

Isn’t that true?

Pamela S. Moran:

That’s true.

Possibly because I think that you… the reason that we haven’t been brought back on a yearly basis is to see how he’s doing, how far he’s come since that point where he made that first dangerous act.

How far he’s come along.

David H. Souter:

But if he wants to get out, the burden is on him to prove that he is no longer dangerous, right?

Pamela S. Moran:

That’s true, and in this particular case, the petitioner did absolutely nothing to carry that burden.

He put on no witnesses, he could have put on his own doctor.

He could have called family members in, that could say, well, we’re going to help take care of him, we’re going to see that he’s going to be okay and keep out of trouble.

He did nothing.

John Paul Stevens:

No, but supposing he did all that, and the judge said, well, yes, but I’m still not sure.

After all, you had a fight with another inmate 9 years ago, and I’m not sure.

You haven’t carried your burden.

I mean, there’s always some risk, isn’t there?

Pamela S. Moran:

There is always some risk.

John Paul Stevens:

And these are people who have had some problems in society.

Pamela S. Moran:

There’s always a risk.

And the system is set up to try and limit that risk of confining people that should not be confined.

John Paul Stevens:

When in doubt, confine them.

That’s the rule.

That’s exactly the rule, because the burden is on him.

Pamela S. Moran:

But–

John Paul Stevens:

When in doubt, he stays there forever.

Pamela S. Moran:

–But unlike what the petitioner says, he can meet that burden.

John Paul Stevens:

Yes, but not… as long as there’s doubt, as long as there’s doubt, he stays there.

Pamela S. Moran:

As long as–

John Paul Stevens:

Is that the rule, by the way, with your civil committees?

If someone is committed civilly, does that person have to prove both the lack of dangerousness and recovery from the mental illness?

Pamela S. Moran:

–I think it is a two-tiered situation there.

He has to recover mentally and with the dangerousness… and not be a danger.

Pamela S. Moran:

He can be maintained if he is still dangerous.

But he has to be mentally deficient also.

John Paul Stevens:

It has to be very expensive, Ms. Moran.

Why doesn’t the State just take him out of the mental institution, since he no longer has the mental illness?

I mean, they’re spending a lot of money for doctors and everything.

They could just put him in a regular jail, once he’s recovered his sanity.

Just put him in a regular jail until somebody says he’s no longer dangerous.

Pamela S. Moran:

Why should they–

John Paul Stevens:

Could they do that?

Pamela S. Moran:

–We cannot do that.

John Paul Stevens:

Why not?

Pamela S. Moran:

We cannot do that because–

Antonin Scalia:

It would be a lot cheaper.

You are not treating as mental illness anymore.

Why put him in an insane asylum?

Pamela S. Moran:

–Because he has not been convicted of a crime.

And there’s no way that we can put him in a jail if he has not been convicted of a crime.

Antonin Scalia:

No, he has.

I’m talking about this defendant here.

He has been convicted of a crime.

Pamela S. Moran:

No, he’s not been convicted of a crime.

He has been found not guilty by reason of insanity.

I’m–

Pamela S. Moran:

He’s done a dangerous act.

But technically he’s not been convicted and he cannot be put into prison.

Antonin Scalia:

–So you have to keep him in an insane asylum?

Pamela S. Moran:

He has to be kept someplace so that people are not endangered by these types of individuals.

And right now, this is… this is the State’s solution to this problem.

Sandra Day O’Connor:

Do you think the State could make it more difficult to plead and establish not guilty by reason of insanity as an alternative?

Pamela S. Moran:

I really don’t know how the State could make it more difficult.

Pamela S. Moran:

They could put more… I imagine they could put more guidelines and maybe require the testimony of more doctors, because essentially what the judge goes on is what the doctors recommend.

In this particular case Dr. Ritter testified that at the time… he submitted a report to the court saying that the man was not aware of his actions at the time of the crime.

So based on that, the judge found him not guilty by reason of insanity.

Perhaps if the legislature said what you have to have is a certain number of doctors, perhaps if they did away with Louisiana article… it’s Code of Criminal Procedure article 558, which allows the court to make an adjudication of not guilty by reason of insanity, essentially without a trial.

They essentially submit it on the police reports and the medical reports, and he looks at it and says, okay, not guilty by reason of insanity.

If they required a full-blown trial in such instances, there might be some things that could be done to make it more difficult, but it wouldn’t do away with it.

And that’s one of the problems in Mr. Foucha’s case.

Dr. Ritter at the November 29th, 1988 lunacy hearing at one point indicates that… he says, if this diagnosis was correct, that he could never be certain whether or not the petitioner had a drug-induced psychosis, or whether or not he was malingering.

And that part of the reason we have the system set up the way it is to discourage people from tendering false… false insanity pleas.

This Court has repeatedly held… in Salerno, states that the Government’s regulatory interest in community safety can, in appropriate circumstances, outweigh an individual’s liberty interests.

I think that this is one of those situations where the good of the many outweigh the needs of the few.

We have a situation here that, if you look at it realistically, I know that the doctors at Feliciana recommended a probationary discharge.

They said, okay, what we want you to do is, we want this man to stay off drugs.

We want this man to be gainfully employed or to be seeking employment.

Those were two of the requirements for his probationary release.

But just from a realistic standpoint, you know, as far as gainful employment, how difficult is it going to be for this individual to find a job when he has this type of background?

And what is the guarantee of staying off drugs?

Dr. Ritter indicated in his testimony that should the man get into contact with drugs or alcohol again, he could again have a drug-induced psychosis.

He could again become even more dangerous.

Antonin Scalia:

Ms. Moran, suppose this… suppose this defendant has committed a crime.

Do you think it would be constitutional to give him an indeterminate sentence, not 20 years, not 30 years, not life, but just, we’re going to put you in prison until we determine that you are no longer dangerous.

Do you think that would be constitutional?

Pamela S. Moran:

No, I think he would need a determinate term.

I think that on a statute, a criminal statute, you’d have to be aware of what you are looking at.

You have to know, well, if I commit this crime, this is what’s going to happen to me.

And that can be vague.

Antonin Scalia:

But it’s okay with respect to this person who hasn’t been convicted of a crime, as you say, to keep this person put away on the… on the same kind of an indeterminate, indefinite basis.

We’re going to keep you there until we decide that you are no longer dangerous.

It’s okay now.

Pamela S. Moran:

It’s okay–

Antonin Scalia:

Even though he has not been convicted of a crime, and the other person has.

Pamela S. Moran:

–This is our way of protecting society.

It… it’s a balancing test.

Whose needs are going to be met here?

Antonin Scalia:

Is it a permissible way, is what I’m asking.

If I put it to you straightforward in the criminal context, it seems to you outrageous that society should say somebody… to somebody, we’re going to keep you locked up until we decide that you are no longer dangerous, without a determinate sentence or not.

Why does it seem okay to do it to this person?

Pamela S. Moran:

Because… because of the position that this person put himself in.

By the fact that he had tendered a plea not guilty by reason of insanity–

Antonin Scalia:

Insanity is out of the question.

We’re… he’s… I thought it’s agreed by everyone that the man no longer has a mental problem.

That’s out of the question.

So he’s just like the criminal that I talked about who’s given a sentence for… stay in jail until we decide you’re no longer dangerous.

I don’t think we’d allow that, do you?

Pamela S. Moran:

–Not for a criminal, straight out like that.

Harry A. Blackmun:

Justice Scalia’s hypothetical sounds very much like Jackson against Indiana in 406 U.S., and I think your answer was not in line with that holding.

You do not cite Jackson against Indiana, and your opponents do.

Pamela S. Moran:

No.

Anthony M. Kennedy:

Isn’t it true that most psychiatrists say that the best way to determine mental health and emotional balance is to observe the defendant in a normal environment?

Pamela S. Moran:

I’m not familiar… unfamiliar with that.

I assume that is correct.

Anthony M. Kennedy:

And a prison is not a normal environment, is it?

Pamela S. Moran:

No, it’s not.

I think that, given the fact that the State does have an interest, a legitimate and compelling interest in protecting society at large, that the due process procedures are sufficient.

If you look at the differences between Salerno and Foucha, even though the Government has the burden in Salerno and the petitioner has the burden in this particular case, the evidence guideline is the same, clear and convincing evidence.

You need a judicial officer to make a determination on the detention.

Under Salerno, the arrestee may be detained if no conditions reasonably ensure the safety of the community.

In Mr. Foucha’s case, the Court determined that the conditions that were set forth by the review panel at Feliciana, the probationary conditions, were insufficient to reasonably protect the community.

In both cases, the individual can have counsel at hearing.

In both cases the individual can testify himself.

Pamela S. Moran:

He can present witnesses, which Mr. Foucha did not do.

He can also present other evidence.

He can cross-examine the witnesses.

In both cases, the individuals are entitled to a written judgment and they may seek appellate review or seek a writ in the next higher court.

I think that Louisiana has provided a system of checks and balances.

I think that this idea of this being an indefinite commitment is somewhat premature.

This individual could have received up to 30 years in prison for an aggravated burglary.

He has been at Feliciana now for about 7 years.

He has a long way to go before it would even become indefinite.

Every year he can come up and try to persuade the court that he is no longer dangerous.

He has not succeeded in the times that he has come up to this point.

That is not to say that he cannot succeed in the future under the Louisiana statutory scheme.

On the issue of equal protection, this Court in Jones held that the holding in the Jones case accords with the widely and reasonably-held view that insanity acquittees constitute a special class that should be treated differently from other candidates for commitment.

So I feel that it has already been carved out a little niche for insanity acquittees as opposed to how civil acquittees are treated.

And that is legitimate.

I think that the equal protection argument merges with the due process argument.

I think it is simply a matter of how long can we apply standard preventive detention.

How long can we detain these people?

We’ve detained them before for, I think, a maximum for 17 days under Shaw v. Martin, and for longer times under Salerno… maybe for a period of weeks.

In this case, even though it is a period of… of years, it can be several years, many years, still, I think the Court has previously recognized an overwhelming State interest in protecting the community.

What we are trying to prevent… we are trying to prevent a situation where an individual, an insanity acquittee, is released and then goes out and commits another crime.

I know we can’t prevent all crimes from happening, it’s impossible to do.

But I think the State has an interest in trying to do what it can in a situation such as this, to prevent these people from getting out and committing another crime, hurting another individual.

And I would ask the Court to keep in place Louisiana’s statutory scheme for the detainment of insanity acquittees.

Thank you.

William H. Rehnquist:

Thank you, Ms. Moran.

Mr. Manasseh, you have a minute remaining.

James P. Manasseh:

Thank you, Your Honor.

Terry Foucha is being harmed because he had a good attorney to begin with that showed that he was… that proved himself to be insane at the time of the incident, and he is being harmed now because he had a bad attorney that was unable to prove that he was not a danger.

He would have been better off to have the bad attorney to begin with, be found guilty, been sentenced to a short period of time–

John Paul Stevens:

Your opponent says it would have 30 years.

James P. Manasseh:

–Your Honor, it was a first offense.

He was 17 years old.

In all likelihood, he would have been sentenced to a short amount of time.

Once his time was up, he’d have been released without having to try to prove nondangerousness.

There is no way for him to prove a negative proposition, that he would not be a danger to himself or community.

We ask this Court to reverse.

William H. Rehnquist:

Thank you, Mr. Manasseh.

The case is submitted.