The Supreme Court/The Supreme Court.iso/pc/ascii/1990/90_5844/90_5844.zd2

Text File | 1992-05-17 | 36.3 KB | 670 lines

SUPREME COURT OF THE UNITED STATES
--------
No. 90-5844
--------
TERRY FOUCHA, PETITIONER v. LOUISIANA
on writ of certiorari to the supreme court
of louisiana
[May 18, 1992]

  Justice Thomas, with whom The Chief Justice and
Justice Scalia join, dissenting.
  The Louisiana statutory scheme the Court strikes down
today is not some quirky relic of a bygone age, but a
codification of the current provisions of the American Law
Institute's Model Penal Code.  Invalidating this quite
reasonable scheme is bad enough; even worse is the Court's
failure to explain precisely what is wrong with it.  In parts
of its opinion, the Court suggests that the scheme is
unconstitutional because it provides for the continued
confinement of insanity acquittees who, although still
dangerous, have ``recovered'' their sanity.  Ante, at 6 (``[T]he
committed acquittee is entitled to release when he has
recovered his sanity or is no longer dangerous'') (emphasis
added; internal quotation omitted).  In other parts of the
opinion, the Court suggests-and the concurrence states
explicitly-that the constitutional flaw with this scheme is
not that it provides for the confinement of sane insanity
acquittees, but that it (allegedly) provides for their ``indefi-
nite'' confinement in a mental facility.  Ante, at 10; ante, at
1 (O'Connor, J., concurring in part and concurring in
judgment).  Nothing in the Constitution, this Court's
precedents, or our society's traditions authorizes the Court
to invalidate the Louisiana scheme on either of these
grounds.  I would therefore affirm the judgment of the
Louisiana Supreme Court.
                            I
  The Court errs, in large part, because it fails to examine
in detail the challenged statutory scheme and its applica-
tion in this case.  Under Louisiana law, a verdict of ``not
guilty by reason of insanity'' differs significantly from a
verdict of ``not guilty.''  A simple verdict of not guilty
following a trial means that the State has failed to prove all
of the elements of the charged crime beyond a reasonable
doubt.  See, e.g., State v. Messiah, 538 So. 2d 175, 180 (La.
1988) (citing In re Winship, 397 U. S. 358 (1970)); cf. La.
Code Crim. Proc. Ann., Art. 804(A)(1) (West 1969).  A
verdict of not guilty by reason of insanity, in contrast,
means that the defendant committed the crime, but estab-
lished that he was ``incapable of distinguishing between
right and wrong'' with respect to his criminal conduct.  La.
Rev. Stat. Ann. 14.14 (West 1986).  Insanity, in other
words, is an affirmative defense that does not negate the
State's proof, but merely ``exempt[s the defendant] from
criminal responsibility.''  Ibid.  As the Louisiana Supreme
Court has summarized:  ``The State's traditional burden of
proof is to establish beyond a reasonable doubt all neces-
sary elements of the offense.  Once this rigorous burden of
proof has been met, it having been shown that defendant
has committed a crime, the defendant . . . bear[s] the
burden of establishing his defense of insanity in order to
escape punishment.''  State v. Marmillion, 339 So. 2d 788,
796 (La. 1976) (emphasis added).  See also State v.
Surrency, 88 So. 240, 244 (La. 1921).
  Louisiana law provides a procedure for a judge to render
a verdict of not guilty by reason of insanity upon a plea
without a trial.  See La. Code Crim. Proc. Ann., Art. 558.1
(West Supp. 1991).  The trial court apparently relied on this
procedure when it committed Foucha.  See 563 So. 2d 1138,
1139, n. 3 (La. 1990).  After ordering two experts to
examine Foucha, the trial court issued the following
judgment:
      ``After considering the law and the evidence adduced
in this matter, the Court finds that the accused, Terry
Foucha, is unable to appreciate the usual, natural and
probable consequences of his acts; that he is unable to
distinguish right from wrong; that he is a menace to
himself and to others; and that he was insane at the
time of the commission of the above crimes and that he
is presently insane.''  App. 6.
  After adjudicating a defendant not guilty by reason of
insanity, a trial court must hold a hearing on the issue of
dangerousness.  The law specifies that ``[i]f the court
determines that the defendant cannot be released without
a danger to others or to himself, it shall order him commit-
ted to . . . [a] mental institution.''  La. Code Crim. Proc.
Ann., Art. 654 (West Supp. 1991).  ```Dangerous to others'
means the condition of a person whose behavior or signifi-
cant threats support a reasonable expectation that there is
a substantial risk that he will inflict physical harm upon
another person in the near future.''  La. Rev. Stat. Ann.
28:2(3) (West 1986) (emphasis added).  ```Dangerous to self'
means the condition of a person whose behavior, significant
threats or inaction supports a reasonable expectation that
there is a substantial risk that he will inflict physical or
severe emotional harm upon his own person.''  28:2(4).
  After holding the requisite hearings, the trial court in
this case ordered Foucha committed to the Feliciana
Forensic Facility.  After his commitment, Foucha was
entitled, upon request, to another hearing six months later
and at yearly intervals after that.  See La. Code Crim. Proc.
Ann., Art. 655(B) (West Supp. 1991).  In addition, Louisi-
ana law provides that a release hearing must be held upon
recommendation by the superintendent of a mental institu-
tion.  See Art. 655(A).  In early 1988, Feliciana's superin-
tendent recommended that Foucha be released, and a three-
doctor panel met to review the case.  On March 21, 1988,
the panel issued a report pursuant to Art. 656.  The panel
concluded that ``there is no evidence of mental illness.''
App. 10.  In fact, the panel stated that there was ``never any
evidence of mental illness or disease since admission.''  Ibid.
(emphasis added).  Although the panel did not discuss
whether Foucha was dangerous, it recommended to the trial
court that he be conditionally released.
  As a result of these recommendations, the trial court
scheduled a hearing to determine whether Foucha should
be released.  Under La. Code Crim. Proc. Ann., Art. 657
(West Supp. 1991), Foucha had the burden at this hearing
to prove that he could be released without danger to others
or to himself.  The court appointed two experts (the same
doctors who had examined Foucha at the time of his
original commitment) to evaluate his dangerousness.  These
doctors concluded that Foucha ``is presently in remission
from mental illness,'' but said that they could not ``certify
that he would not constitute a menace to himself or to
others if released.''  App.  12.  On November 29, 1988, the
trial court held the hearing, at which Foucha was repre-
sented by counsel.  The court concluded that Foucha ``is a
danger to himself, and to others,'' id., at 24, and ordered
that he be returned to Feliciana.

                           II
  The Court today concludes that Louisiana has denied
Foucha both procedural and substantive due process.  In my
view, each of these conclusions is wrong.  I shall discuss
them in turn.

                            A
  What the Court styles a ``procedural'' due process analysis
is in reality an equal protection analysis.  The Court first
asserts (contrary to state law) that Foucha cannot be held
as an insanity acquittee once he ``becomes'' sane.  Ante, at
6-7.  That being the case, he is entitled to the same treat-
ment as civil committees.  ``[I]f Foucha can no longer be
held as an insanity acquittee,'' the Court says, ``he is
entitled to constitutionally adequate procedures [those
afforded in civil commitment proceedings] to establish the
grounds for his confinement.''  Ante, at 7 (emphasis added).
This, of course, is an equal protection argument (there
being no rational distinction between A and B, the State
must treat them the same); the Court does not even pretend
to examine the fairness of the release procedures the State
has provided.
  I cannot agree with the Court's conclusion because I
believe that there is a real and legitimate distinction
between insanity acquittees and civil committees that
justifies procedural disparities.  Unlike civil committees,
who have not been found to have harmed society, insanity
acquittees have been found in a judicial proceeding to have
committed a criminal act.
  That distinction provided the ratio decidendi for our most
relevant precedent, Jones v. United States, 463 U. S. 354
(1983).  That case involved a man who had been automati-
cally committed to a mental institution after being acquit-
ted of a crime by reason of insanity in the District of
Columbia (i. e., he had not been given the procedures
afforded to civil committees).  We rejected both of his
procedural due process challenges to his commitment.
First, we held that an insanity acquittal justified automatic
commitment of the acquittee (even though he might
presently be sane), because Congress was entitled to decide
that the verdict provided a reasonable basis for inferring
dangerousness and insanity at the time of commitment.
Id., at 366.  The Government's interest in avoiding a de
novo commitment hearing following every insanity acquit-
tal, we said, outweighed the acquittee's interest in avoiding
unjustified institutionalization.  Ibid.  Second, we held that
the Constitution did not require, as a predicate for the
indefinite commitment of insanity acquittees, proof of
insanity by ``clear and convincing'' evidence, as 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 profes-
sional 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 deference to reasonable legislative judg-
ments.''  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 com-
mitted 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 allowed to attach to that defense certain conse-
quences 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 deter-
mination of his present mental health and acknowledg-
es 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 commit-
ment.''  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 commit-
ment 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 danger-
ousness the criterion for continued custody, rather than
to provide that the committed person may be dis-
charged 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 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).
That this is a reasonable legislative judgment is under-
scored 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.
  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 determina-
tion in civil commitment proceedings of current mental
illness and dangerousness.''  Ante, at 7 (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 mentally ill.  Second, the theory is not
supported by Vitek.  Stigmatization (our concern in Vitek)
is simply not a relevant consideration where insanity
acquittees are involved.  As we explained in Jones: ``A
criminal defendant who successfully raises the insanity
defense necessarily is stigmatized by the verdict itself, and
thus the commitment causes little additional harm in this
respect.''  463 U. S., at 367, n. 16; see also Warren v.
Harvey, 632 F. 2d, at 931-932.  (This is in sharp contrast to
situations involving civil committees.  See Addington, 441
U. S., at 425-426; Vitek, supra, at 492-494.)  It is implau-
sible, in my view, that a person who chooses to plead not
guilty by reason of insanity and then spends several years
in a mental institution becomes unconstitutionally stigmat-
ized by continued confinement in the institution after
``regaining'' sanity.
  In my view, there was no procedural due process violation
in this case.  Articles 654, 655, and 657 of the Louisiana
Code of Criminal Procedure, as noted above, afford insanity
acquittees the opportunity to obtain release by demonstrat-
ing at regular intervals that they no longer pose a threat to
society.  These provisions also afford judicial review of such
determinations.  Pursuant to these procedures, and based
upon testimony of experts, the Louisiana courts determined
not to release Foucha at this time because the evidence did
not show that he ceased to be dangerous.  Throughout these
proceedings, Foucha was represented by state-appointed
counsel.  I see no plausible argument that these procedures
denied Foucha a fair hearing on the issue involved or that
Foucha needed additional procedural protections.  See
Mathews v. Eldridge, 424 U. S. 319 (1976); Patterson v. New
York, 432 U. S. 197 (1977); cf. Addington, supra, at
427-432; Jones, supra, at 363-368; Benham v. Ledbetter,
785 F. 2d 1480, 1486-1488 (CA11 1986).
                            B
  The Court next concludes that Louisiana's statutory
scheme must fall because it violates Foucha's substantive
due process rights.  Ante, at 8-12.  I disagree.  Until today,
I had thought that the analytical framework for evaluating
substantive due process claims was relatively straightfor-
ward.  Certain substantive rights we have recognized as
``fundamental''; legislation trenching upon these is subjected
to ``strict scrutiny,'' and generally will be invalidated unless
the State demonstrates a compelling interest and narrow
tailoring.  Such searching judicial review of state legisla-
tion, however, is the exception, not the rule, in our demo-
cratic and federal system; we have consistently emphasized
that ``the Court has no license to invalidate legislation
which it thinks merely arbitrary or unreasonable.''  Regents
of University of Michigan v. Ewing, 474 U. S. 214, 226
(1985) (internal quotation omitted).  Except in the unusual
case where a fundamental right is infringed, then, federal
judicial scrutiny of the substance of state legislation under
the Due Process Clause of the Fourteenth Amendment is
not exacting.  See, e.g., Bowers v. Hardwick, 478 U. S. 186,
191-196 (1986).
  In striking down Louisiana's scheme as a violation of
substantive rights guaranteed by the Due Process Clause,
the Court today ignores this well-established analytical
framework.  First, the Court never explains if we are
dealing here with a fundamental right, and, if so, what
right.  Second, the Court never discloses what standard of
review applies.  Indeed, the Court's opinion is contradictory
on both these critical points.
  As to the first point: the Court begins its substantive due
process analysis by invoking the substantive right to ``[f]ree-
dom from bodily restraint.''  Ante, at 8.  Its discussion then
proceeds as if the problem here is that Foucha, an insanity
acquittee, continues to be confined after recovering his
sanity, ante, at 8-10; thus, the Court contrasts this case to
United States v. Salerno, 481 U. S. 739 (1987), a case invol-
ving the confinement of pretrial detainees.  But then,
abruptly, the Court shifts liberty interests.  The liberty
interest at stake here, we are told, is not a liberty interest
in being free ``from bodily restraint,'' but instead the more
specific (and heretofore unknown) ``liberty interest under
the Constitution in being freed from [1] indefinite confine-
ment [2] in a mental facility.''  Ante, at 10 (emphasis added).
See also ante, at 1 (O'Connor, J., concurring in part and
concurring in judgment).  So the problem in this case is
apparently not that Louisiana continues to confine insanity
acquittees who have ``become'' sane (although earlier in the
opinion the Court interprets our decision in Jones as having
held that such confinement is unconstitutional, see ante, at
6), but that under Louisiana law, ``sane'' insanity acquittees
may be held ``indefinitely'' ``in a mental facility.''
  As to the second point: ``[a] dispute regarding the appro-
priate standard of review may strike some as a lawyers'
quibble over words, but it is not.''  Metro Broadcasting, Inc.
v. FCC, 497 U. S. --, -- (1990) (O'Connor, J., dissent-
ing).  The standard of review determines when the Due
Process Clause of the Fourteenth Amendment will override
a State's substantive policy choices, as reflected in its laws.
The Court initially says that ``[d]ue process requires that
the nature of commitment bear some reasonable relation to
the purpose for which the individual is committed.''  Ante,
at 7 (emphasis added).  Later in its opinion, however, the
Court states that the Louisiana scheme violates substantive
due process not because it is not ``reasonably related'' to the
State's purposes, but instead because its detention provi-
sions are not ``sharply focused'' or ``carefully limited,'' in
contrast to the scheme we upheld in Salerno.  Ante, at 10.
Does that mean that the same standard of review applies
here that we applied in Salerno, and, if so, what is that
standard?  The Court quite pointedly avoids answering
these questions.  Similarly, Justice O'Connor does not
reveal exactly what standard of review she believes applica-
ble, but appears to advocate a heightened standard hereto-
fore unknown in our caselaw.  Ante, at 2 (``It might there-
fore be permissible for Louisiana to confine an insanity
acquittee who has regained sanity if . . . the nature and
duration of detention were tailored to reflect pressing public
safety concerns related to the acquittee's continuing
dangerousness'') (emphasis added).
  To the extent the Court invalidates the Louisiana scheme
on the ground that it violates some general substantive due
process right to ``freedom from bodily restraint'' that trig-
gers strict scrutiny, it is wrong-and dangerously so.  To
the extent the Court suggests that Louisiana has violated
some more limited right to freedom from indefinite commit-
ment in a mental facility (a right, by the way, never
asserted by Foucha in this or any other court) that triggers
some unknown standard of review, it is also wrong.  I shall
discuss these two possibilities in turn.
                            1
  I fully agree with the Court, ante, at 8, and with Justice
Kennedy, ante, at 1, that freedom from involuntary confine-
ment is at the heart of the ``liberty'' protected by the Due
Process Clause.  But a liberty interest per se is not the
same thing as a fundamental right.  Whatever the exact
scope of the fundamental right to ``freedom from bodily
restraint'' recognized by our cases, it certainly cannot be
defined at the exceedingly great level of generality the
Court suggests today.  There is simply no basis in our
society's history or in the precedents of this Court to
support the existence of a sweeping, general fundamental
right to ``freedom from bodily restraint'' applicable to all
persons in all contexts.  If convicted prisoners could claim
such a right, for example, we would subject all prison
sentences to strict scrutiny.  This we have consistently
refused to do.  See, e.g., Chapman v. United States, 500
U. S. --, -- (1991).
  The critical question here, then, is whether insanity
acquittees have a fundamental right to ``freedom from bodily
restraint'' that triggers strict scrutiny of their confinement.
Neither Foucha nor the Court provides any evidence that
our society has ever recognized any such right.  To the
contrary, historical evidence shows that many States have
long provided for the continued institutionalization of
insanity acquittees who remain dangerous.  See, e.g., H.
Weihofen, Insanity as a Defense in Criminal Law 294-332
(1933); A. Goldstein, The Insanity Defense 148-149 (1967).
  Moreover, this Court has never applied strict scrutiny to
the substance of state laws involving involuntary confine-
ment of the mentally ill, much less to laws involving the
confinement of insanity acquittees.  To the contrary, until
today we have subjected the substance of such laws only to
very deferential review.  Thus, in Jackson v. Indiana, 406
U. S. 715, 738 (1972), we held that Indiana's provisions for
the indefinite institutionalization of incompetent defendants
violated substantive due process because they did not bear
any ``reasonable'' relation to the purpose for which the
defendant was committed.  Similarly, in O'Connor v.
Donaldson, 422 U. S. 563 (1975), we held that the confine-
ment of a nondangerous mentally-ill person was unconstitu-
tional not because the State failed to show a compelling
interest and narrow tailoring, but because the State had no
legitimate interest whatsoever to justify such confinement.
See id., at 575-576.  See also id., at 580 (Burger, C. J.,
concurring) (``Commitment must be justified on the basis of
a legitimate state interest, and the reasons for committing
a particular individual must be established in an appropri-
ate proceeding.  Equally important, confinement must cease
when those reasons no longer exist.'') (emphasis added).
  Similarly, in Jones, we held (in addition to the procedural
due process holdings described above) that there was no
substantive due process bar to holding an insanity acquittee
beyond the period for which he could have been incarcerat-
ed if convicted.  We began by explaining the standard for
our analysis: ``The Due Process Clause `requires that the
nature and duration of commitment bear some reasonable
relation to the purpose for which the individual is commit-
ted.'''  463 U. S., at 368 (emphasis added) (quoting Jackson,
supra, at 738).  We then held that ``[i]n light of the congres-
sional purposes underlying commitment of insanity acquit-
tees [in the District of Columbia,]'' which we identified as
treatment of the insanity acquittee's mental illness and
protection of the acquittee and society, ``petitioner clearly
errs in contending that an acquittee's hypothetical maxi-
mum sentence provides the constitutional limit for his
commitment.''  463 U. S., at 368 (emphasis added).  Given
that the commitment law was reasonably related to Con-
gress' purposes, this Court had no basis for invalidating it
as a matter of substantive due process.
  It is simply wrong for the Court to assert today that we
``held'' in Jones that ```the committed acquittee is entitled to
release when he has recovered his sanity or is no longer
dangerous.'''  Ante, at 6 (quoting Jones, 463 U. S., at
368).  We specifically noted in Jones that no issue re-
garding the standards for the release of insanity acquittees
was before us.  Id., at 363, n. 11.  The question we were
answering in the part of Jones from which the Court quotes
was whether it is permissible to hold an insanity acquittee
for a period longer than he could have been incarcerated if
convicted, not whether it is permissible to hold him once he
becomes ``sane.''  As noted above, our substantive due
process analysis in Jones was straightforward: did the
means chosen by Congress (commitment of insanity acquit-
tees until they have recovered their sanity or are no longer
dangerous) reasonably fit Congress' ends (treatment of the
acquittee's mental illness and protection of society from his
dangerousness)?
  In its arguments before this Court, Louisiana chose to
place primary reliance on our decision in United States v.
Salerno, 481 U.S. 739 (1987), in which we upheld provi-
sions of the Bail Reform Act of 1984 that allowed limited
pretrial detention of criminal suspects.  That case, as the
Court notes, ante, at 10-11, is readily distinguishable.
Insanity acquittees, in sharp and obvious contrast to
pretrial detainees, have had their day in court.  Although
they have not been convicted of crimes, neither have they
been exonerated, as they would have been upon a determi-
nation of ``not guilty'' simpliciter.  Insanity acquittees thus
stand in a fundamentally different position from persons
who have not been adjudicated to have committed criminal
acts.  That is what distinguishes this case (and what
distinguished Jones) from Salerno and Jackson v. Indiana,
406 U. S. 715 (1972).  In Jackson, as in Salerno, the State
had not proven beyond a reasonable doubt that the accused
had committed criminal acts or otherwise was dangerous.
See Jones, supra, at 364, n. 12.  The Court disregards this
critical distinction, and apparently deems applicable the
same scrutiny to pretrial detainees as to persons deter-
mined in a judicial proceeding to have committed a criminal
act.
  If the Court indeed means to suggest that all restrictions
on ``freedom from bodily restraint'' are subject to strict
scrutiny, it has (at a minimum) wrought a revolution in the
treatment of the mentally ill.  Civil commitment as we
know it would almost certainly be unconstitutional; only in
the rarest of circumstances will a State be able to show a
``compelling interest,'' and one that can be served in no
other way, in involuntarily institutionalizing a person.  All
procedures involving the confinement of insanity acquittees
and civil committees would require revamping to meet strict
scrutiny.  Thus, to take one obvious example, the automatic
commitment of insanity acquittees that we expressly upheld
in Jones would be clearly unconstitutional, since it is
inconceivable that such commitment of persons who may
well presently be sane and nondangerous could survive
strict scrutiny.  (In Jones, of course, we applied no such
scrutiny; we upheld the practice not because it was justified
by a compelling interest, but because it was based on
reasonable legislative inferences about continuing insanity
and dangerousness.)
                            2
  As explained above, the Court's opinion is profoundly
ambiguous on the central question in this case: Must the
State of Louisiana release Terry Foucha now that he has
``regained'' his sanity?  In other words, is the defect in
Louisiana's statutory scheme that it provides for the
confinement of insanity acquittees who have recovered their
sanity, or instead that it allows the State to confine sane
insanity acquittees (1) indefinitely (2) in a mental facility?
To the extent the Court suggests the former, I have already
explained why it is wrong.  I turn now to the latter possibil-
ity, which also is mistaken.
  To begin with, I think it is somewhat misleading to
describe Louisiana's scheme as providing for the ``indefinite''
commitment of insanity acquittees.  As explained above,
insanity acquittees are entitled to a release hearing every
year at their request, and at any time at the request of a
facility superintendent.  Like the District of Columbia
statute at issue in Jones, then, Louisiana's statute provides
for ``indefinite'' commitment only to the extent that an
acquittee is unable to satisfy the substantive standards for
release.  If the Constitution did not require a cap on the
acquittee's confinement in Jones, why does it require one
here?  The Court and Justice O'Connor have no basis for
suggesting that either this Court or the society of which it
is a part has recognized some general fundamental right to
``freedom from indefinite commitment.''  If that were the
case, of course, Jones would have involved strict scrutiny
and is wrongly decided.
  Furthermore, any concerns about ``indefinite'' commit-
ment here are entirely hypothetical and speculative.
Foucha has been confined for eight years.  Had he been
convicted of the crimes with which he was charged, he could
have been incarcerated for 32 years.  See La. Rev. Stat.
Ann. 14.60 & 14.94 (West 1986).  Thus I find quite odd
Justice O'Connor's suggestion, ante, at 4, that this case
might be different had Louisiana, like the State of Wash-
ington, limited confinement to the period for which a
defendant might have been imprisoned if convicted.  Fou-
cha, of course, would be in precisely the same position
today-and for the next 24 years-had the Louisiana
statute included such a cap.  Thus, the Court apparently
finds fault with the Louisiana statute not because it has
been applied to Foucha in an unconstitutional manner, but
because the Court can imagine it being applied to someone
else in an unconstitutional manner.  That goes against the
first principles of our jurisprudence.  See, e.g., Salerno, 481
U.S., at 745 (``The fact that [a detention statute] might
operate unconstitutionally under some conceivable set of
circumstances is insufficient to render it wholly invalid,
since we have not recognized an `overbreadth' doctrine
outside the limited context of the First Amendment'').
  Finally, I see no basis for holding that the Due Process
Clause per se prohibits a State from continuing to confine
in a ``mental institution''-the federal constitutional
definition of which remains unclear-an insanity acquittee
who has recovered his sanity.  As noted above, many States
have long provided for the continued detention of insanity
acquittees who remain dangerous.  Neither Foucha nor the
Court present any evidence that these States have tradi-
tionally transferred such persons from mental institutions
to other detention facilities.  Therefore, there is simply no
basis for this Court to recognize a ``fundamental right'' for
a sane insanity acquittee to be transferred out of a mental
facility.  ``In an attempt to limit and guide interpretation of
the [Due Process] Clause, we have insisted not merely that
the interest denominated as a `liberty' be `fundamental' (a
concept that, in isolation, is hard to objectify), but also that
it be an interest traditionally protected by our society.''
Michael H. v. Gerald D., 491 U. S. 110, 122 (1989) (plurali-
ty opinion).
  Removing sane insanity acquittees from mental institu-
tions may make eminent sense as a policy matter, but the
Due Process Clause does not require the States to conform
to the policy preferences of federal judges.  ``The Court is
most vulnerable and comes nearest to illegitimacy when it
deals with judge-made constitutional law having little or no
cognizable roots in the language or design of the Constitu-
tion.''  Bowers, 478 U.S., at 194.  I have no idea what
facilities the Court or Justice O'Connor believe the Due
Process Clause mandates for the confinement of sane-but-
dangerous insanity acquittees.  Presumably prisons will not
do, since imprisonment is generally regarded as ``punish-
ment.''  May a State designate a wing of a mental institu-
tion or prison for sane insanity acquittees?  May a State
mix them with other detainees?  Neither the Constitution
nor our society's traditions provides any answer to these
questions.
                            3
  ``So-called `substantive due process' prevents the govern-
ment from engaging in conduct that `shocks the conscience,'
Rochin v. California, 342 U. S. 165, 172 (1952), or interferes
with rights `implicit in the concept of ordered liberty,' Palko
v. Connecticut, 302 U. S. 319, 325-326 (1937).''  Salerno,
supra, at 746.  The legislative scheme the Court invalidates
today is, at the very least, substantively reasonable.  With
all due respect, I do not remotely think it can be said that
the laws in question ``offen[d] some principle of justice so
rooted in the traditions and conscience of our people as to
be ranked as fundamental.''  Snyder v. Massachusetts, 291
U. S. 97, 105 (1934).  Therefore, in my view, this Court is
not entitled, as a matter of substantive due process, to
strike them down.
  I respectfully dissent.