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NOTICE: This opinion is subject to formal revision before publication in the
preliminary print of the United States Reports.  Readers are requested to
notify the Reporter of Decisions, Supreme Court of the United States, Wash-
ington, D.C. 20543, of any typographical or other formal errors, in order that
corrections may be made before the preliminary print goes to press.
SUPREME COURT OF THE UNITED STATES
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No. 90-5844
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TERRY FOUCHA, PETITIONER v. LOUISIANA
on writ of certiorari to the supreme court
of louisiana
[May 18, 1992]

  Justice White delivered the opinion of the Court, except
as to Part III.
  When a defendant in a criminal case pending in Louisi-
ana is found not guilty by reason of insanity, he is commit-
ted to a psychiatric hospital unless he proves that he is not
dangerous.  This is so whether or not he is then insane.
After commitment, if the acquittee or the superintendent
begins release proceedings, a review panel at the hospital
makes a written report on the patient's mental condition
and whether he can be released without danger to himself
or others.  If release is recommended, the court must hold
a hearing to determine dangerousness; the acquittee has
the burden of proving that he is not dangerous.  If found to
be dangerous, the acquittee may be returned to the mental
institution whether or not he is then mentally ill.  Petition-
er contends that this scheme denies him due process and
equal protection because it allows a person acquitted by
reason of insanity to be committed to a mental institution
until he is able to demonstrate that he is not dangerous to
himself and others, even though he does not suffer from any
mental illness.
                            I
  Petitioner Terry Foucha was charged by Louisiana
authorities with aggravated burglary and illegal discharge
of a firearm.  Two medical doctors were appointed to
conduct a pretrial examination of Foucha.  The doctors
initially reported, and the trial court initially found, that
Foucha lacked mental capacity to proceed, App. 8-9, but
four months later the trial court found Foucha competent to
stand trial.  Id., at 4-5.  The doctors reported that Foucha
was unable to distinguish right from wrong and was insane
at the time of the offense.  On October 12, 1984, the trial
court ruled that Foucha was not guilty by reason of insani-
ty, finding that he ``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 others; and that he was insane at the time
of the commission of the above crimes and that he is
presently insane.-  Id., at 6.  He was committed to the East
Feliciana Forensic Facility until such time as doctors
recommend that he be released, and until further order of
the court.  In 1988, the superintendent of Feliciana recom-
mended that Foucha be discharged or released.  A three-
member panel was convened at the institution to determine
Foucha's current condition and whether he could be
released or placed on probation without being a danger to
others or himself.  On March 21, 1988, the panel reported
that there had been no evidence of mental illness since
admission and recommended that Foucha be conditionally
discharged.  The trial judge appointed a two-member
sanity commission made up of the same two doctors who
had conducted the pretrial examination.  Their written
report stated that Foucha -is presently in remission from
mental illness [but] [w]e cannot certify that he would not
constitute a menace to himself or others if released.-  Id., at
12.  One of the doctors testified at a hearing that upon
commitment Foucha probably suffered from a drug induced
psychosis but that he had recovered from that temporary
condition; that he evidenced no signs of psychosis or
neurosis and was in -good shape- mentally; that he has,
however, an antisocial personality, a condition that is not
a mental disease and that is untreatable.  The doctor also
testified that Foucha had been involved in several alterca-
tions at Feliciana and that he, the doctor, would not -feel
comfortable in certifying that [Foucha] would not be a
danger to himself or to other people.-  Id., at 18.
  After it was stipulated that the other doctor, if he were
present, would give essentially the same testimony, the
court ruled that Foucha was dangerous to himself and
others and ordered him returned to the mental institution.
The Court of Appeals refused supervisory writs, and the
State Supreme Court affirmed, holding that Foucha had not
carried the burden placed upon him by statute to prove that
he was not dangerous, that our decision in Jones v. United
States, 463 U. S. 354 (1983), did not require Foucha's
release, and that neither the Due Process Clause nor the
Equal Protection Clause was violated by the statutory
provision permitting confinement of an insanity acquittee
based on dangerousness alone.
  Because the case presents an important issue and was
decided by the court below in a manner arguably at odds
with prior decisions of this Court, we granted certiorari.
499 U. S. ___ (1991).
                           II
  Addington v. Texas, 441 U.S. 418 (1979), held that to
commit an individual to a mental institution in a civil
proceeding, the State is required by the Due Process Clause
to prove by clear and convincing evidence the two statutory
preconditions to commitment: that the person sought to be
committed is mentally ill and that he requires hospitaliza-
tion for his own welfare and protection of others.  Proof
beyond reasonable doubt was not required, but proof by
preponderance of the evidence fell short of satisfying due
process.
  When a person charged with having committed a crime is
found not guilty by reason of insanity, however, a State
may commit that person without satisfying the Addington
burden with respect to mental illness and dangerousness.
Jones v. United States, supra.  Such a verdict, we observed
in Jones, -establishes two facts: (i) the defendant committed
an act that constitutes a criminal offense, and (ii) he
committed the act because of mental illness,- id., at 363, an
illness that the defendant adequately proved in this context
by a preponderance of the evidence.  From these two facts,
it could be properly inferred that at the time of the verdict,
the defendant was still mentally ill and dangerous and
hence could be committed.
  We held, however, that -(t)he committed acquittee is
entitled to release when he has recovered his sanity or is no
longer dangerous,- id., at 368; i. e. the acquittee may be
held as long as he is both mentally ill and dangerous, but
no longer.  We relied on O'Connor v. Donaldson, 422 U. S.
563 (1975), which held as a matter of due process that it
was unconstitutional for a State to continue to confine a
harmless, mentally ill person.  Even if the initial commit-
ment was permissible, -it could not constitutionally contin-
ue after that basis no longer existed.-  Id., at 575.  In the
summary of our holdings in our opinion we stated that -the
Constitution permits the Government, on the basis of the
insanity judgment, to confine him to a mental institution
until such time as he has regained his sanity or is no longer
a danger to himself or society.-  Jones, 463 U.S., at 368,
370.  The court below was in error in characterizing the
above language from Jones as merely an interpretation of
the pertinent statutory law in the District of Columbia and
as having no constitutional significance.  In this case,
Louisiana does not contend that Foucha was mentally ill at
the time of the trial court's hearing.  Thus, the basis for
holding Foucha in a psychiatric facility as an insanity
acquittee has disappeared, and the State is no longer
entitled to hold him on that basis.  O'Connor, supra, at
574-575.
  The State, however, seeks to perpetuate Foucha's confine-
ment at Feliciana on the basis of his antisocial personality
which, as evidenced by his conduct at the facility, the court
found rendered him a danger to himself or others.  There
are at least three difficulties with this position.  First, even
if his continued confinement were constitutionally permissi-
ble, keeping Foucha against his will in a mental institution
is improper absent a determination in civil commitment
proceedings of current mental illness and dangerousness.
In Vitek v. Jones, 445 U. S. 480 (1980), we held that a
convicted felon serving his sentence has a liberty interest,
not extinguished by his confinement as a criminal, in not
being transferred to a mental institution and hence classi-
fied as mentally ill without appropriate procedures to prove
that he was mentally ill.  -The loss of liberty produced by
an involuntary commitment is more than a loss of freedom
from confinement.-  Id. at 492.  Due process requires that
the nature of commitment bear some reasonable relation to
the purpose for which the individual is committed.  Jones,
supra, at 368; Jackson v. Indiana, 406 U. S. 715, 738
(1972).  Here, according to the testimony given at the
hearing in the trial court, Foucha is not suffering from a
mental disease or illness.  If he is to be held, he should not
be held as a mentally ill person.  See  Jones, supra, at 368;
Jackson, supra, at 738.  Cf. United States v. Salerno, 481
U. S. 739, 747-748 (1987); Schall v. Martin, 467 U.S. 253,
270 (1984).
  Second, if Foucha can no longer be held as an insanity
acquittee in a mental hospital, he is entitled to constitution-
ally adequate procedures to establish the grounds for his
confinement.  Jackson v. Indiana, supra, indicates as much.
There, a person under criminal charges was found incompe-
tent to stand trial and was committed until he regained his
sanity.  It was later determined that nothing could be done
to cure the detainee, who was a deaf mute.  The state
courts refused to order his release.  We reversed, holding
that the State was entitled to hold a person for being
incompetent to stand trial only long enough to determine if
he could be cured and become competent.  If he was to be
held longer, the State was required to afford the protections
constitutionally required in a civil commitment proceeding.
We noted, relying on Baxstrom v. Herold, 383 U. S. 107
(1966), that a convicted criminal who allegedly was mental-
ly ill was entitled to release at the end of his term unless
the State committed him in a civil proceeding.  ```[T]here is
no conceivable basis for distinguishing the commitment of
a person who is nearing the end of a penal term from all
other civil commitments.'''  Jackson v. Indiana, supra, at
724, quoting Baxstrom, supra, at 111-112.
  Third, -the Due Process Clause contains a substantive
component that bars certain arbitrary, wrongful govern-
ment actions `regardless of the fairness of the procedures
used to implement them.'''  Zinermon v. Burch, 494 U. S.
113, 125 (1990).  See also Salerno, supra, at 746; Daniels v.
Williams, 474 U. S. 327, 331 (1986).  Freedom from bodily
restraint has always been at the core of the liberty protect-
ed by the Due Process Clause from arbitrary governmental
action.  Youngberg v. Romeo, 457 U. S. 307, 316 (1982).  ``It
is clear that commitment for any purpose constitutes a
significant deprivation of liberty that requires due process
protection.''  Jones, supra, at 361 (internal quotation marks
omitted.)  We have always been careful not to ``minimize
the importance and fundamental nature'' of the individual's
right to liberty.  Salerno, supra, at 750.
  A State, pursuant to its police power, may of course
imprison convicted criminals for the purposes of deterrence
and retribution.  But there are constitutional limitations on
the conduct that a State may criminalize.  See, e. g.,
Brandenburg v. Ohio, 395 U.S. 444 (1969); Robinson v.
California, 370 U.S. 660 (1962).  Here, the State has no
such punitive interest.  As Foucha was not convicted, he
may not be punished.  Jones, supra, at 369.  Here, Louisi-
ana has by reason of his acquittal exempted Foucha from
criminal responsibility as La. Rev. Stat. Ann. 14:14 (West
1986) requires.  See n.1, supra.
  The State may also confine a mentally ill person if it
shows -by clear and convincing evidence that the individual
is mentally ill and dangerous,- Jones, 463 U.S., at 362.
Here, the State has not carried that burden; indeed, the
State does not claim that Foucha is now mentally ill.
  We have also held that in certain narrow circumstances
persons who pose a danger to others or to the community
may be subject to limited confinement and it is on these
cases, particularly United States v. Salerno, supra, that the
State relies in this case.
  Salerno, unlike this case, involved pretrial detention.  We
observed in Salerno that the -government's interest in
preventing crime by arrestees is both legitimate and
compelling,-  id., at 749, and that the statute involved there
was a constitutional implementation of that interest.  The
statute carefully limited the circumstances under which
detention could be sought to those involving the most
serious of crimes (crimes of violence, offenses punishable by
life imprisonment or death, serious drug offenses, or certain
repeat offenders), id., at 747, and was narrowly focused on
a particularly acute problem in which the government
interests are overwhelming.  Id., at 750.  In addition to first
demonstrating probable cause, the government was re-
quired, in a -full-blown adversary hearing,- to convince a
neutral decisionmaker by clear and convincing evidence
that no conditions of release can reasonably assure the
safety of the community or any person, i.e., that the
-arrestee presents an identified and articulable threat to an
individual or the community.-  Id., at 751.  Furthermore,
the duration of confinement under the Act was strictly
limited.  The arrestee was entitled to a prompt detention
hearing and the maximum length of pretrial detention was
limited by the -stringent time limitations of the Speedy
Trial Act.-  Id., at 747.  If the arrestee were convicted, he
would be confined as a criminal proved guilty; if he were
acquitted, he would go free.  Moreover, the Act required
that detainees be housed, to the extent practicable, in a
facility separate from persons awaiting or serving sentences
or awaiting appeal.  Id., at 747-748.
  Salerno does not save Louisiana's detention of insanity
acquittees who are no longer mentally ill.  Unlike the
sharply focused scheme at issue in Salerno, the Louisiana
scheme of confinement is not carefully limited.  Under the
state statute, Foucha is not now entitled to an adversary
hearing at which the State must prove by clear and
convincing evidence that he is demonstrably dangerous to
the community.  Indeed, the State need prove nothing to
justify continued detention, for the statute places the
burden on the detainee to prove that he is not dangerous.
At the hearing which ended with Foucha's recommittal, no
doctor or any other person testified positively that in his
opinion Foucha would be a danger to the community, let
alone gave the basis for such an opinion.  There was only a
description of Foucha's behavior at Feliciana and his
antisocial personality, along with a refusal to certify that he
would not be dangerous.  When directly asked whether
Foucha would be dangerous, Dr. Ritter said only -I don't
think I would feel comfortable in certifying that he would
not be a danger to himself or to other people.-  App. 18.
This, under the Louisiana statute, was enough to defeat
Foucha's interest in physical liberty.  It is not enough to
defeat Foucha's liberty interest under the Constitution in
being freed from indefinite confinement in a mental facility.
  Furthermore, if Foucha committed criminal acts while at
Feliciana, such as assault, the State does not explain why
its interest would not be vindicated by the ordinary crimi-
nal processes involving charge and conviction, the use of
enhanced sentences for recidivists, and other permissible
ways of dealing with patterns of criminal conduct.  These
are the normal means of dealing with persistent criminal
conduct.  Had they been employed against Foucha when he
assaulted other inmates, there is little doubt that if then
sane he could have been convicted and incarcerated in the
usual way.
   It was emphasized in Salerno that the detention we
found constitutionally permissible was strictly limited in
duration.  481 U. S., at 747; see also Schall, 467 U. S., at
269.  Here, in contrast, the State asserts that because
Foucha once committed a criminal act and now has an
antisocial personality that sometimes leads to aggressive
conduct, a disorder for which there is no effective treat-
ment, he may be held indefinitely.  This rationale would
permit the State to hold indefinitely any other insanity
acquittee not mentally ill who could be shown to have a
personality disorder that may lead to criminal conduct.  The
same would be true of any convicted criminal, even though
he has completed his prison term.  It would also be only a
step away from substituting confinements for dangerous-
ness for our present system which, with only narrow
exceptions and aside from permissible confinements for
mental illness, incarcerates only those who are proved
beyond reasonable doubt to have violated a criminal law.
  -In our society liberty is the norm, and detention prior to
trial or without trial is the carefully limited exception.-
United States v. Salerno, supra, at 755.  The narrowly
focused pretrial detention of arrestees permitted by the Bail
Reform Act was found to be one of those carefully limited
exceptions permitted by the Due Process Clause.  We
decline to take a similar view of a law like Louisiana's,
which permits the indefinite detention of insanity acquit-
tees who are not mentally ill but who do not prove they
would not be dangerous to others.

                           III

  It should be apparent from what has been said earlier in
this opinion that the Louisiana statute also discriminates
against Foucha in violation of the Equal Protection Clause
of the Fourteenth Amendment.  Jones established that
insanity acquittees may be treated differently in some
respects from those persons subject to civil commitment,
but Foucha, who is not now thought to be insane, can no
longer be so classified.  The State nonetheless insists on
holding him indefinitely because he at one time committed
a criminal act and does not now prove he is not dangerous.
Louisiana law, however, does not provide for similar
confinement for other classes of persons who have commit-
ted criminal acts and who cannot later prove they would
not be dangerous.  Criminals who have completed their
prison terms, or are about to do so, are an obvious and
large category of such persons.  Many of them will likely
suffer from the same sort of personality disorder that
Foucha exhibits.  However, state law does not allow for
their continuing confinement based merely on dangerous-
ness.  Instead, the State controls the behavior of these
similarly situated citizens by relying on other means, such
as punishment, deterrence, and supervised release.  Free-
dom from physical restraint being a fundamental right, the
State must have a particularly convincing reason, which it
has not put forward, for such discrimination against
insanity acquittees who are no longer mentally ill.
  Furthermore, in civil commitment proceedings the State
must establish the grounds of insanity and dangerousness
permitting confinement by clear and convincing evidence.
Addington, 441 U.S., at 425-433.  Similarly, the State must
establish insanity and dangerousness by clear and convinc-
ing evidence in order to confine an insane convict beyond
his criminal sentence, when the basis for his original
confinement no longer exists.  See Jackson, 406 U.S., at
724; Baxstrom, 383 U.S., at 111-112.  Cf. Humphrey v.
Cady, 405 U.S. 504, 510-511 (1972).  However, the State
now claims that it may continue to confine Foucha, who is
not now considered to be mentally ill, solely because he is
deemed dangerous, but without assuming the burden of
proving even this ground for confinement by clear and
convincing evidence.  The court below gave no convincing
reason why the procedural safeguards against unwarranted
confinement which are guaranteed to insane persons and
those who have been convicted may be denied to a sane
acquittee, and the State has done no better in this Court.
  For the foregoing reasons the judgment of the Louisiana
Supreme Court is reversed.
                                            So ordered.