Foucha v. Louisiana (90-5844), 504 U.S. 71 (1992).
[ O'Connor ]
[ Kennedy ]
[ Thomas ]
[ White ]
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No. 90-5844


on writ of certiorari to the supreme court of louisiana

[May 18, 1992]

Justice Kennedy , with whom the Chief Justice joins, This is a criminal case. It began one day when petitioner, brandishing a .357 revolver, entered the home of a married couple, intending to steal. Brief for Respondent 1. He chased them out of their home and fired on police officers who confronted him as he fled. Id., at 1-2. Petitioner was

apprehended and charged with aggravated burglary and the illegal use of a weapon in violation of La. Rev. Stat. Ann. §§ 14:60 and 14:94 (West 1986). 563 So. 2d 1138, 1138" 1139 (La. 1990). There is no question that petitioner committed the criminal acts charged. Petitioner's response was to deny criminal responsibility based on his mental illness when he committed the acts. He contended his mental illness prevented him from distinguishing between right and wrong with regard to the conduct in question.

Mental illness may bear upon criminal responsibility, as a general rule, in either of two ways: First, it may preclude the formation of mens rea, if the disturbance is so profound that it prevents the defendant from forming the requisite intent as defined by state law; second, it may support an affirmative plea of legal insanity. See W. LaFave & A. Scott, Jr., 1 Substantive Criminal Law § 4.1(b), pp. 429-430 (1986) (hereinafter LaFave & Scott). Depending on the content of state law, the first possibility may implicate the State's initial burden, under In re Winship, 397 U.S. 358, 364 (1970), to prove every element of the offense beyond a reasonable doubt, while the second possibility does not. Patterson v. New York, 432 U.S. 197, 206 (1977); Leland v. Oregon, 343 U.S. 790, 795-796 (1952).

The power of the States to determine the existence of criminal insanity following the establishment of the underlying offense is well established. In Leland v. Oregon, we upheld a state law that required the defendant to prove insanity beyond a reasonable doubt, observing that this burden had no effect on the State's initial burden to prove every element of the underlying criminal offense.

"[T]he burden of proof of guilt, and of all the necessary elements of guilt, was placed squarely upon the State. As the jury was told, this burden did not shift, but rested upon the State throughout the trial, just as, according to the instructions, appellant was presumed to be innocent until the jury was convinced beyond a reasonable doubt that he was guilty. The jurors wereto consider separately the issue of legal sanity per se -- an issue set apart from the crime charged, to be introduced by a special plea and decided by a special verdict." Id., at 795-796 (footnotes omitted).

As then Justice Rehnquist explained the reasoning of Leland, "the existence or nonexistence of legal insanity bears no necessary relationship to the existence or nonexistence of the required mental elements of the crime." Mullaney v. Wilbur, 421 U.S. 684, 706 (1975) (concurring opinion); see also Patterson v. New York, supra, at 206 (defense of insanity considered only after the facts constituting the crime have been proved beyond a reasonable doubt); Rivera v. Delaware, 429 U.S. 877 (1976) (dismissing challenge to a Leland instruction for want of a substantial federal question).

Louisiana law follows the pattern in Leland with clarity and precision. Pursuant to La. Code Crim. Proc. Ann., Art. 552 (West 1981), the petitioner entered a dual plea of not guilty and not guilty by reason of insanity. The dual plea, which the majority does not discuss or even mention, ensures that the Winship burden remains on the State to prove all the elements of the crime. The Louisiana Supreme Court confirms this in a recent case approving the following jury instruction on the defense of insanity:

" `In this case the accused has entered a dual plea of not guilty and not guilty by reason of insanity. As a consequence of such a plea, you must first determine whether or not the accused committed a crime [on which you have been instructed]. If you are convinced beyond a reasonable doubt that the accused did commit any of these crimes, any one of these crimes, then you must proceed to a determination of whether he was sane at the time the crime was committed and thereby criminally responsible for committing it.' " State v. Marmillion, 339 So. 2d 788, 796 (La. 1976).

The State's burden is unaffected by an adjudication without trial, such as occurred here, because state law requires the trial court to determine, before accepting the plea, that there is a factual basis for it. La. Code Crim. Proc. Ann., Art. 558.1 (West Supp. 1992). There is no dispute that the trial court complied with state law and made the requisite findings.

Compliance with the standard of proof beyond a reasonable doubt is the defining, central feature in criminal adjudication, unique to the criminal law. Addington, 441 U. S., at 428. Its effect is at once both symbolic and practical, as a statement of values about respect and confidence in the criminal law, Winship, 397 U. S., at 364, and an apportionment of risk in favor of the accused, id., at 369-372 (Harlan, J., concurring). We have often subjected to heightened due process scrutiny, with regard to both purpose and duration, deprivations of physical liberty imposed before a judgment is rendered under this standard. See, e. g., United States v. Salerno, 481 U.S. 739, 750-751 (1987); Jackson v. Indiana, 406 U.S. 715, 738 (1972); cf. Jones v. United States, 463 U. S., at 363-364, and n. 12 ("The proof beyond a reasonable doubt that the acquittee committed a criminal act distinguishes this case from Jackson v. Indiana, 406 U.S. 715 (1972) . . . . In Jackson there never was any affirmative proof that the accused had committed criminal acts . . ."). The same heightened due process scrutiny does not obtain, though, once the State has met its burden of proof and obtained an adjudication. It is well settled that upon compliance with In re Winship, the State may incarcerate on any reasonable basis. Chapman v. United States, 500 U. S. ___, ___ (1991) (slip op. 11); Williams v. Illinois, 399 U.S. 235, 243 (1970).

As Justice Thomas observes in his dissent, the majority errs by attaching "talismanic significance" to the fact that petitioner has been adjudicated "not guilty by reason of insanity." Post, at 18, n. 13. A verdict of not guilty by reason of insanity is neither equivalent nor comparable toa verdict of not guilty standing alone. We would not allow a State to evade its burden of proof by replacing its criminal law with a civil system in which there is no presumption of innocence and the defendant has the burden of proof. Nor should we entertain the proposition that this case differs from a conviction of guilty because petitioner has been adjudged "not guilty by reason of insanity," rather than "guilty but insane." Petitioner has suggested no grounds on which to distinguish the liberty interests involved or procedural protections afforded as a consequence of the State's ultimate choice of nomenclature. The due process implications ought not to vary under these circumstances. This is a criminal case in which the State has complied with the rigorous demands of In re Winship.

The majority's failure to recognize the criminal character of these proceedings and its concomitant standards of proof leads it to conflate the standards for civil and criminal commitment in a manner not permitted by our precedents. O'Connor v. Donaldson, 422 U.S. 563 (1975), and Addington v. Texas, supra, define the due process limits of involuntary civil commitment. Together they stand for the proposition that in civil proceedings the Due Process Clause requires the State to prove both insanity and dangerousness by clear and convincing evidence. See O'Connor, supra, at 575; Addington, supra, at 433. Their precedential value in the civil context is beyond question. But it is an error to apply these precedents, as the majority does today, to criminal proceedings. By treating this criminal case as a civil one, the majority overrules a principal holding in Jones v. United States, 463 U. S., at 354.

In Jones we considered the system of criminal commitment enacted by Congress for the District of Columbia. Id., at 356-358. Congress provided for acquittal by reason of insanity only after the Government had shown, beyond a reasonable doubt, that the defendant had committed the crimes charged. Id., at 363-364, and n. 12. In cases of acquittal by reason of insanity, District law provided forautomatic commitment followed by periodic hearings, where the insanity acquittee was given the opportunity to prove that he was no longer insane or dangerous. Id., at 357-358, and n. 3. Petitioner in Jones contended that Addington and O'Connor applied to criminal proceedings as well as civil, requiring the Government to prove insanity and dangerousness by clear and convincing evidence before commitment. We rejected that contention. In Jones we distinguished criminal from civil commitment, holding that the Due Process Clause permits automatic incarceration after a criminal adjudication and without further process. Id., at 366. The majority today in effect overrules that holding. It holds that "keeping Foucha against his will in a mental institution is improper absent a determination in civil commitment proceedings of current mental illness and dangerousness." Ante, at 7; see also ante, at 8-9, 13-14. Our holding in Jones was clear and to the contrary. We should not so disregard controlling precedent.

Our respect for the Court's opinion in Jones should be informed by the recognition that its distinction between civil and criminal commitment is both sound and consistent with long established precedent. First, as described above, the procedural protections afforded in a criminal commitment surpass those in a civil commitment; indeed, these procedural protections are the most stringent known to our law. Second, proof of criminal conduct in accordance with In re Winship eliminates the risk of incarceration "for mere `idiosyncratic behavior,' [because a] criminal act by definition is not `within a range of conduct that is generally acceptable.' " Jones, supra, at 367, quoting Addington, supra, at 426-427. The criminal law defines a discrete category of conduct for which society has reserved its greatest opprobrium and strictest sanctions; past or future dangerousness, as ascertained or predicted in civil proceedings, is different in kind. Third, the State presents distinct rationales for these differing forms of commitment: In the civil context, the State acts in large part on the basis of itsparens patriae power to protect and provide for an ill individual, while in the criminal context, the State acts to ensure the public safety. See Addington, 441 U. S., at 426; S. Brakel, J. Parry, & B. Weiner, The Mentally Disabled and the Law 24-25 (3d ed. 1985). A dismissive footnote, see ante, at 5, n. 4, cannot overcome these fundamental defects in the majority's opinion.

The majority's opinion is troubling at a further level, because it fails to recognize or account for profound differences between clinical insanity and state law definitions of criminal insanity. It is by now well established that insanity as defined by the criminal law has no direct analog in medicine or science. "[T]he divergence between law and psychiatry is caused in part by the legal fiction represented by the words `insanity' or `insane,' which are a kind of lawyer's catchall and have no clinical meaning." J. Biggs, The Guilty Mind 117 (1955); see also 2 J. Bouvier, Law Dictionary 1590 (8th ed. 1914) ("The legal and the medical ideas of insanity are essentially different, and the difference is one of substance"). Consistent with the general rule that the definition of both crimes and defenses is a matter of state law, see Patterson v. New York, supra, at 210, the States are free to recognize and define the insanity defense as they see fit.

"Nothing could be less fruitful than for this Court to be impelled into defining some sort of insanity test in constitutional terms. . . . It is simply not yet the time to write into the Constitution formulas cast in terms whose meaning, let alone relevance, is not yet clear either to doctors or to lawyers." Powell v. Texas, 392 U.S. 514, 536-537 (1968) (Marshall, J., plurality opinion); see also id., at 545 (the Constitution does not impose on the States any particular test of criminal responsibility) (Black, J., concurring).

As provided by Louisiana law, and consistent with both federal criminal law and the law of a majority of the States,petitioner was found not guilty by reason of insanity under the traditional M'Naghten test. See La. Rev. Stat. Ann. § 14:14 (West 1986); 18 U.S.C. § 17; M'Naghten's Case, 10 Cl. & Fin. 200, 8 Eng. Rep. 718 (1843); 1 LaFave & Scott § 4.2, at 436. Louisiana law provides a traditional statement of this test: "If the circumstances indicate that because of a mental disease or mental defect the offender was incapable of distinguishing between right and wrong with reference to the conduct in question, the offender shall be exempt from criminal responsibility." La. Rev. Stat. Ann. § 14:14 (West 1986).

Because the M'Naghten test for insanity turns on a finding of criminal irresponsibility at the time of the offense, it is quite wrong to place reliance on the fact, as the majority does, that Louisiana does not contend that petitioner is now insane. See ante, at 6. This circumstance should come as no surprise, since petitioner was competent at the time of his plea, 563 So. 2d, at 1139, and indeed could not have entered a plea otherwise, see Drope v. Missouri, 420 U.S. 162, 171 (1975). Present sanity would have relevance if petitioner had been committed as a consequence of civil proceedings, in which dangerous conduct in the past was used to predict similar conduct in the future. It has no relevance here, however. Petitioner has not been confined based on predictions about future behavior but rather for past criminal conduct. Unlike civil commitment proceedings, which attempt to divine the future from the past, in a criminal trial whose outcome turns on M'Naghten, findings of past insanity and past criminal conduct possess intrinsic and ultimate significance.

The system here described is not employed in all jurisdictions. Some have supplemented the traditional M'Naghten test with the so called "irresistible impulse" test, see 1 LaFave & Scott § 4.1, at 427-428; others have adopted a test proposed as part of the Model Penal Code, see ibid.; and still others have abolished the defense altogether,see Idaho Code § 18-207(a) (1987); Mont. Code Ann.§ 46-14-102 (1992). Since it is well accepted that the States may define their own crimes and defenses, see supra, at 7, the point would not warrant further mention, but for the fact that the majority loses sight of it. In describing our decision in Jones, the majority relies on our statement that a verdict of not guilty by reason of insanity establishes that the defendant " `committed the act because of mental illness.' " Ante, at 4-5, quoting Jones, 463 U. S., at 363. That was an accurate statement in Jones but not here. The defendant in Jones was acquitted under the Durham test for insanity, which excludes from punishment criminal conduct that is the product of a mental disease or defect. See Bethea v. United States, 365 A.2d 64, 69, n. 11 (1976); see also Durham v. United States, 94 U. S. App. D.C. 228, 240-241, 214 F. 2d 862, 874-875 (1954). In a Durham jurisdiction, it would be fair to say, as the Court did in Jones, that a defendant acquitted by reason of insanity "committed the act because of mental illness." Jones, supra, at 363. The same cannot be said here, where insanity under M'Naghten proves only that the defendant could not have distinguished between right and wrong. It is no small irony that the aspect of Jones on which the majority places greatest reliance, and indeed cites as an example of its adherence to Jones, has no bearing on the Louisiana statute at issue here. See ante, at 4-5, and n. 4.

The establishment of a criminal act and of insanity under the M'Naghten regime provides a legitimate basis for confinement. Although Louisiana has chosen not to punish insanity acquittees, the State has not surrendered its interest in incapacitative incarceration. The Constitution does not require any particular model for criminal confinement, Harmelin v. Michigan, 501 U. S. ___, ___ (1991) (slip op. 4) (Kennedy, J., concurring in judgment) ("The federal and state criminal systems have accorded different weights at different times to the penological goals of retribution, deterrence, incapacitation, and rehabilitation"); Williams v. New York, 337 U.S. 241, 246 (1949), and upon compliancewith In re Winship, the State may incarcerate on any reasonable basis, see supra, at 4. Incapacitation for the protection of society is not an unusual ground for incarceration. "[I]solation of the dangerous has always been considered an important function of the criminal law," Powell v. Texas, 392 U. S., at 539 (Black, J., concurring), and insanity acquittees are a special class of offenders proved dangerous beyond their own ability to comprehend. The wisdom of incarceration under these circumstances is demonstrated by its high level of acceptance. Every State provides for discretionary or mandatory incarceration of insanity acquittees, 1 LaFave & Scott § 4.6(a), at 510, and as Justice Thomas observes in his dissent, provisions like those in Louisiana, predicated on dangerousness alone, have been endorsed by the Model Penal Code and adopted by the legislatures of no fewer than 11 other States. See post, at 11 and nn. 8 and 9.

It remains to be seen whether the majority, by questioning the legitimacy of incapacitative incarceration, puts in doubt the confinement of persons other than insanity acquittees. Parole release provisions often place the burden of proof on the prisoner to prove his lack of dangerousness. To use a familiar example, under the federal parole system in place until the enactment of the Sentencing Guidelines, an inmate could not be released on parole unless he established that his "release would not jeopardize the public welfare." 18 U.S.C. § 4206(a)(2) (1982 ed.), repealed 98 Stat. 2027; see also 28 CFR § 2.18 (1991). This requirement reflected "the incapacitative aspect of the use of imprisonment which has the effect of denying the opportunity for future criminality, at least for a time." U. S. Dept. of Justice, United States Parole Commission Rules and Procedures Manual 69 (July 24, 1989). This purpose is consistent with the parole release provisions of Alabama, Colorado, Hawaii, Massachusetts, Michigan, New York, and the District of Columbia, to name just a few. See N. Cohen & J. Gobert, Law of Probation and Parole § 3.05, p. 109, andn. 103 (1983). It is difficult for me to reconcile the rationale of incapacitative incarceration, which underlies these regimes, with the opinion of the majority, which discounts its legitimacy.

I also have difficulty with the majority's emphasis on the conditions of petitioner's confinement. In line with Justice O'Connor's concurring opinion, see ante, at 2, the majority emphasizes the fact that petitioner has been confined in a mental institution, see ante, at 6, 7, 10, suggesting that his incarceration might not be unconstitutional if undertaken elsewhere. The majority offers no authority for its suggestion, while Justice O'Connor relies on a reading of Vitek v. Jones, 445 U.S. 480 (1980), which was rejected by the Court in Jones v. United States. See ante, at 2, citing Jones v. United States, supra, at 384-385 (Brennan, J., dissenting). The petitioner did not rely on this argument at any point in the proceedings, and we have not the authority to make the assumption, as a matter of law, that the conditions of petitioner's confinement are in any way infirm. Ours is not a case, as in Vitek v. Jones, where the State has stigmatized petitioner by placing him in a mental institution when he should have been placed elsewhere. Jones v. United States is explicit on this point: "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. Nor is this a case, as in Washington v. Harper, 494 U.S. 210 (1990), in which petitioner has suffered some further deprivation of liberty to which independent due process protections might attach. Both the fact and conditions of confinement here are attributable to petitioner's criminal conduct and subsequent decision to plead insanity. To the extent the majority relies on the conditions of petitioner's confinement, its decision is without authority, and most of its opinion is nothing more than confusing dicta.

I submit that today's decision is unwarranted and unwise. I share the Court's concerns about the risks inherent in requiring a committed person to prove what can often be imprecise, but as Justice Thomas observes in his dissent, this is not a case in which the period of confinement exceeds the gravity of the offense or in which there are reasons to believe the release proceedings are pointless or a sham. Post, at 14, n. 10. Petitioner has been incarcerated for less than one third the statutory maximum for the offenses proved by the State. See La. Rev. Stat. Ann. §§ 14:60 (aggravated burglary) and 14:94 (illegal use of a weapon) (West 1986). In light of these facts, the majority's repeated reference to "indefinite detention," with apparent reference to the potential duration of confinement, and not its lack of a fixed end point, has no bearing on this case. See ante, at 5, n. 4, 11 and n. 7; cf. ante, at 5, n. 4 (curious suggestion that confinement has been extended beyond an initial term of years). It is also significant to observe that this is not a case in which the incarcerated subject has demonstrated his nondangerousness. Within the two months before his release hearing, petitioner had been sent to a maximum security section of the Feliciana Forensic Facility because of altercations with another patient. 563 So. 2d, at 1141. Further, there is evidence in the record which suggests that petitioner's initial claim of insanity may have been feigned. The medical panel that reviewed petitioner's request for release stated that "there is no evidence of mental illness," and indeed that there was "never any evidence of mental illness or disease since admission." App. 10. In sum, it would be difficult to conceive of a less compelling situation for the imposition of sweeping new constitutional commands such as the majority imposes today.

Because the majority conflates the standards for civil and criminal commitment, treating this criminal case as though it were civil, it upsets a careful balance relied upon by the States, not only in determining the conditions for continuing confinement, but also in defining the defenses permitted for mental incapacity at the time of the crime in question. In my view, having adopted a traditional and well accepted test for determining criminal insanity, and having complied with the rigorous demands of In re Winship, the State possesses the constitutional authority to incarcerate petitioner for the protection of society. I submit my respectful dissent.