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Full Opinion
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
STEFAN KROL, DEFENDANT-APPELLANT.
The Supreme Court of New Jersey.
*242 Mr. Michael C. Shale, Assistant Deputy Public Defender, argued the cause for appellant (Mr. Stanley C. Van Ness, Public Defender, attorney; Mr. Steven Zamrin, Assistant Deputy Public Defender, of counsel and on the brief).
Mr. William Welaj, Deputy Attorney General, argued the cause for respondent (Mr. William F. Hyland, Attorney General of New Jersey, attorney; Mr. Welaj of counsel and on the brief).
*243 The opinion of the Court was delivered by PASHMAN, J.
An acquittal on grounds of insanity, unlike a simple acquittal, does not automatically free the criminal defendant. The governing statute, N.J.S.A. 2A:163-3,[1] provides that if the jury finds the defendant not guilty by reason of insanity, it must then make a special finding as to whether defendant's "insanity continues"; if it finds that defendant's "insanity" does "continue," defendant is ordered confined to the Trenton Psychiatric Hospital "until such time as he may be restored to reason." This confinement is for an indefinite period of time, and may prove permanent, for "restoration to reason" requires not merely remission of acute symptoms but complete cure of the underlying illness or personality disorder. State v. Maik, 60 N.J. 203, 217-18 (1972). A lesser degree of improvement suffices to obtain for defendant only a "conditional release" subject to summary revocation by the court. State v. Carter, 64 N.J. 382 (1974). Defendant challenges the constitutionality of this involuntary commitment procedure.
Stefan Krol stabbed his wife to death in their home. He was indicted for murder and tried in the Superior Court, *244 Law Division in Camden County before a jury. Since he did not deny commission of the homicide, the only issue disputed at trial was whether he had been insane at the time of the act. Testimony of psychiatrists who had examined Krol before and after his wife's death indicated that he was suffering from an acute schizophrenic condition at the time of the killing, and acted under the influence of a powerful delusion that his wife was conspiring with his employer to murder him. The jury returned a verdict of not guilty by reason of insanity and found specially that defendant's insanity continued. Acting pursuant to N.J.S.A. 2A:163-3, the trial judge ordered defendant committed to the Forensic Psychiatric Unit at Trenton Psychiatric Hospital.
Defendant appealed the commitment order to the Appellate Division, which affirmed. We granted certification, 65 *245 N.J. 561 (1974), to consider his contention that the standard for involuntary commitment of persons acquitted on grounds of insanity established by N.J.S.A. 2A:163-3 violates the due process and equal protection clauses of the fourteenth amendment to the federal constitution, a contention which we have not had occasion to consider in our prior decisions on this subject, State v. Maik, supra, and State v. Carter, supra.
I
Prior to considering the merits of this contention, we must first dispose of a procedural issue. On January 17, 1975, while the present matter was pending before this Court, the Camden County Court authorized the conditional release of defendant Krol, as permitted by our decision in State v. Carter, 64 N.J. 382 (1974). In granting the release, the court imposed a number of restrictive terms upon Krol: he must reside in a "Home for Sheltered Care" in close proximity to Ancora Psychiatric Hospital, continue psychiatric treatment as an outpatient, report regularly to a probation officer, and regularly inform the court of his condition; his freedom to travel is limited; and his release may be summarily revoked should he not comply with the terms of the conditional release order or should his condition change. Thus while the order released defendant from the physical custody of the State, it continues substantial restraints upon his liberty. Hence the principle, stated in Stizza v. Essex County Juvenile & Domestic Relations Court, 132 N.J.L. 406, 408 (E. & A. 1945), that commitment orders will not be reviewed after the person committed has been released and freed of all restraints upon his liberty and property does not govern this case. The present appeal is not rendered moot by the order for conditional release. Defendant still has a real and substantial interest in the validity of the original commitment order. Cf. State v. Parmigiani, 65 N.J. 154, 155 (1974); Bower v. State, 135 *246 N.J.L. 564, 568-69 (Sup. Ct. 1947); Sibron v. New York, 392 U.S. 40, 50-59, 88 S.Ct. 1889, 20 L.Ed.2d 917 (1968). Furthermore we have been informed by counsel that the defendant has not been able to obtain a satisfactory half-way house placement and has not in fact been released under the terms of this order, although he has been allowed a somewhat more limited conditional release under the terms of an order of the Camden County Court dated August 1, 1975.
II
Commitment following acquittal by reason of insanity is not intended to be punitive, for, although such a verdict implies a finding that defendant has committed the actus reus, it also constitutes a finding that he did so without a criminal state of mind. There is, in effect, no crime to punish. State v. Carter, supra, 64 N.J. at 401; State v. Stern, 40 N.J. Super. 291, 296 (App. Div. 1956). The rationale for involuntarily committing such persons pursuant to N.J.S.A. 2A:163-3 is, rather, to protect society against individuals who, through no culpable fault of their own, pose a threat to public safety. Chief Justice Weintraub succinctly explained the purpose of this procedure in his opinion in State v. Maik, supra, 60 N.J. at 213:
For present purposes it is enough to say that all the doctrines which would excuse an offender from criminal accountability because of insanity have the common characteristic of attempting to distinguish between the sick and the bad.
* * * * * * * *
The point to be stressed is that in drawing a line between the sick and the bad, there is no purpose to subject others to harm at the hands of the mentally ill. On the contrary, the aim of the law is to protect the innocent from injury by the sick as well as the bad.
The anomaly of the procedure established by N.J.S.A. 2A:163-3 is that although its ultimate object is to protect society against certain individuals who may pose *247 special risk of danger, it does not at any point provide for inquiry by judge or jury into the question of whether the particular defendant involved in fact poses such a risk. The standard for commitment is simply that defendant's "insanity continues." The fact that defendant is presently suffering from some degree of mental illness and that at some point in the past mental illness caused him to commit a criminal act, while certainly sufficient to give probable cause to inquire into whether he is dangerous, does not, in and of itself, warrant the inference that he presently poses a significant threat of harm, either to himself or to others.[2]
The consequence of this procedure is that a defendant who, despite the fact he still suffers some degree of mental illness, poses no significant danger to society, may nevertheless be deprived of his liberty for an indefinite period of time because dangerousness is, in effect, presumed from continuing insanity. The problem is most acute when the offense which defendant has committed is one which, although violating social norm, did not itself involve dangerous behavior. *248 But even where, as in this case, the crime is a violent one, the procedure contains great potential for individual injustice.
This defect, which involves serious infringement upon personal liberty, is one of constitutional dimensions. Constitutional principles of due process require that any state action bear a reasonable relationship to some legitimate state purpose. In Jackson v. Indiana, 406 U.S. 715, 92 S.Ct. 1845, 32 L.Ed.2d 435 (1972), the United States Supreme Court, applying this principle to involuntary commitment proceedings, held that the standard for commitment must bear a reasonable relationship to the ostensible purpose for which the individual is committed. That decision, which involved the commitment for incompetency to stand trial of a mentally deficient deaf-mute accused of armed robbery, did not restrict the purposes for which the state might involuntarily commit individuals accused of crime; it did require that the state tailor its standard for commitment to whatever purpose it was nominally attempting to advance. Cf. Davy v. Sullivan, 354 F. Supp. 1320, 1329-30 (M.D. Ala. 1973) (holding that persons confined as sexual psychopaths must be released if their confinement is not within the nominal purpose of the statute protection of the public and treatment). Furthermore, the state must make a meaningful factual determination as to whether defendant actually meets the standard for commitment. Jackson v. Indiana, supra 406 U.S. at 738-39, 92 S.Ct. 1845; Specht v. Patterson, 386 U.S. 605, 87 S.Ct. 1209, 18 L.Ed.2d 326 (1967); Bolton v. Harris, 130 U.S. App. D.C. 1, 395 F.2d 642 (D.C. Cir.1968) (commitment following acquittal by reason of insanity); People v. McQuillan, 392 Mich. 511, 529-34, 221 N.W.2d 569, 577-79 (Sup. Ct. 1974) (same); State ex rel. Kovach v. Schubet, 64 Wis.2d 612, 623, 219 N.W.2d 341, 347 (Sup. Ct. 1974), appeal dismissed 419 U.S. 1117, 95 S.Ct. 799, 42 L.Ed.2d 817 (1975) (same). The state *249 may not simply presume essential adjudicatory facts. Cf. Cleveland Bd. of Ed. v. La Fleur, 414 U.S. 632, 644-46, 94 S.Ct. 791, 39 L.Ed.2d 52 (1974); Vlandis v. Kline, 412 U.S. 441, 446, 93 S.Ct. 2230, 37 L.Ed.2d 63 (1972); Stanley v. Illinois, 405 U.S. 645, 92 S.Ct. 1208, 31 L.Ed.2d 551 (1972); Bell v. Burson, 402 U.S. 535, 91 S.Ct. 1586, 29 L.Ed.2d 90 (1971).
Since N.J.S.A. 2A:163-3 is designed to protect the public against the risk of future dangerous behavior by persons acquitted by reason of insanity who are still suffering from mental illness, State v. Maik, supra, the principles of due process enunciated in Jackson and like cases require that the standard for commitment be cast in terms of continuing mental illness and dangerousness to self or others, not in terms of continuing insanity alone, and that some trier of fact make a meaningful determination as to whether defendant is actually within these standards.[3]
*250 III
This conclusion is also compelled by considerations of equal protection.
In Baxstrom v. Herold, 383 U.S. 107, 86 S.Ct. 760, 15 L.Ed.2d 620 (1966), the Supreme Court held that prisoners who had allegedly developed mental illness while incarcerated and who were, as a result, being involuntarily committed to mental institutions, were entitled under the equal protection clause to substantially the same procedural protections as other persons subject to involuntary civil commitment. Among other things, Baxstrom held that the same standard for commitment to a particular mental institution had to be applied to prisoners and to other persons subject to involuntary civil commitment to that institution. Subsequently, in Jackson v. Indiana, 406 U.S. 715, 92 S.Ct. 1845, 32 L.Ed.2d 435 (1972), the Court applied the principle of Baxstrom to persons determined to be incompetent to stand trial on criminal charges. It held that, except for a short observation period, a state cannot commit such a person unless it applies the same standards for commitment to him as it does to other persons involuntarily committed.
While neither of these cases deals specifically with the problem of involuntary commitment of persons acquitted by reason of insanity, the Supreme Court in these opinions has plainly attempted to enunciate a broad principle that the fact that the person to be committed has previously engaged in criminal acts is not a constitutionally *251 acceptable basis for imposing upon him a substantially different standard or procedure for involuntary commitment. The labels "criminal commitment" and "civil commitment" are of no constitutional significance. In Jackson v. Indiana, supra at 406 U.S. 724-25, 92 S.Ct. 1845, the Supreme Court clearly indicated that it regarded this principle as one to be applied very broadly throughout the spectrum of various forms of involuntary commitment, including commitment of persons acquitted by reason of insanity.
The principles of Baxstrom and Jackson have been widely applied by the state courts and the lower federal courts to overturn procedures for involuntary commitment of persons acquitted by reason of insanity which deviate substantially from those applied to civil commitments generally. E.g., Bolton v. Harris, 130 U.S. App. D.C. 1, 395 F.2d 642 (D.C. Cir.1968); Reynolds v. Neill, 381 F. Supp. 1374 (N.D. Texas 1974) (three-judge court), vacated and remanded, sub nom. Sheldon v. Reynolds, 422 U.S. 1050, 95 S.Ct. 2671, 45 L.Ed.2d 703 (1975); State v. Clemons, 110 Ariz. 79, 515 P.2d 324 (Sup. Ct. 1973); In re Franklin, 7 Cal.3d 126, 101 Cal. Rptr. 553, 496 P.2d 465 (1972); Mills v. State, 256 A.2d 752 (Del. Sup. Ct. 1969); People v. McQuillan, 392 Mich. 511, 221 N.W.2d 569 (Sup. Ct. 1974); State ex rel. Kovach v. Schubert, 64 Wis.2d 612, 219 N.W.2d 341 (Sup. Ct. 1974), appeal dismissed 419 U.S. 1117, 95 S.Ct. 799, 42 L.Ed.2d 817 (1975); State ex rel. Walker v. Jenkins, 203 S.E.2d 353 (W. Va. Sup. Ct. 1974) (semble). Cf. Commonwealth ex rel. DiEmilio v. Shovlin, 449 Pa. 177, 295 A.2d 320 (Sup. Ct. 1972). See also Chase v. Kearns, 278 A.2d 132 (Me. Sup. Ct. 1971); State v. Kee, 510 S.W.2d 477 (Mo. Sup. Ct. 1974).
In Bolton v. Harris, supra, the U.S. Appeals Court struck down the District of Columbia automatic commitment statute, holding, among other things, that the standard for involuntary commitment of persons acquitted by reason *252 of insanity must be substantially the same as that generally applied to persons civilly committed. Id. at 651 n. 50. This holding has been followed in People v. McQuillan, supra, and State ex rel. Kovach v. Schubert, supra. Cf. State ex rel. Walker v. Jenkins, supra.
The standard for involuntary civil commitment in New Jersey is set out in N.J.S.A. 30:4-44:
If the patient shall be found not to be suffering from a mental illness, the court shall direct his discharge forthwith.
"Mental illness" is defined in N.J.S.A. 30:4-23:
"Mental illness" shall mean disease to such an extent that a person so afflicted requires care and treatment for his own welfare, or the welfare of others, or of the community.
Prior to 1965, when the present statutes were enacted, New Jersey courts consistently held that a person could not be involuntarily committed unless, if permitted to remain at large, he would probably imperil his own safety or the safety or property of others. In re Heukelekian, 24 N.J. Super. 407, 409 (App. Div. 1953). Accord, Aponte v. State, 30 N.J. 441, 450 (1959); DiGiovanni v. Pessel, 104 N.J. Super. 550, 572 (App. Div. 1969), mod. on other grounds 55 N.J. 188 (1970); In re J.W., 44 N.J. Super. 216, 226 (App. Div. 1957), certif. den. 24 N.J. 465 (1957); In re R.R., 140 N.J. Eq. 371 (Ch. 1947). Although N.J.S.A. 30:4-44 has not been construed since the 1965 amendments, N.J.S.A. 30:4-82, which incorporates the same definitions, was construed in State v. Caralluzzo, 49 N.J. 152, 156 n. 1 (1967), to continue to mean "dangerous to self or to society" and we understand that to be the proper construction of the civil commitment statute, N.J.S.A. 30:4-44. Hence, if equal protection requires the standard for involuntary commitment of persons acquitted by reason of insanity to be identical to that applicable to civil commitment proceedings *253 generally, defendant may be committed only if he has been determined to be both mentally ill and dangerous to himself or to society.
Constitutional principles of equal protection, however, do not require that all persons be treated identically. They require only that any differences in treatment be justified by an appropriately strong state interest.
Under the so-called "two-tiered" analysis of the federal equal protection clause, the state need show only a rational basis for its classification, unless it involves "invidious" standards or infringes upon "fundamental" rights, in which case it must show a "compelling state interest." San Antonio Independent School District v. Rodriguez, 411 U.S. 1, 15, 93 S.Ct. 1278, 36 L.Ed.2d 16 (1973). The Supreme Court, in deciding Jackson v. Indiana and Baxstrom v. Herold, has not clearly indicated whether differences in commitment procedure between those applicable to persons acquitted by reason of insanity and those applicable to other persons subject to civil commitment must be justified by a "compelling state interest" or whether some lesser interest will suffice. State courts considering the question have divided. Compare State v. Kee, supra, 510 S.W.2d at 481-82 (rational basis) with People v. McQuillan, supra, 221 N.W.2d at 579 n. 4 (compelling state interest). It has even been suggested that Jackson v. Indiana, supra represents an abandonment of the "two-tiered" analysis. Nowak, "Realigning the Standards of Review Under the Equal Protection Guarantees Prohibited, Neutral and Permissive Classifications," 62 Geo. L. Rev. 1071 (1974).
Fortunately, we need not leap into this bramble bush to decide the present case. The distinction between the standard for involuntary commitment for persons acquitted by reason of insanity and other persons lacks even a rational basis.
The State argues that persons acquitted by reason of insanity pose a special hazard to the public because *254 they have been convicted of committing a criminal act and have proven by a preponderance of the evidence that the act resulted from mental illness, State v. DiPaglia, 64 N.J. 288 (1974), and that therefore they constitute an "exceptional class" of persons in whose confinement and treatment the State has a special interest. Accepting arguendo the factual assumption upon which this claim is predicated that persons acquitted by reason of insanity pose a greater hazard to the public than other mentally ill persons[4] the argument does not support a claim that the State should not be required to establish that the particular defendant poses a danger to himself or society. The State does not claim that it would be more burdensome to determine whether persons such as defendant are dangerous than it is generally for persons subject to civil commitment. Its contention that, as a class, persons acquitted by reason of insanity are more likely to be dangerous than other persons, does not rationally establish that any particular individual in the class should be confined even if he is not dangerous. Cases which treat persons acquitted by reason of insanity as an "exceptional class" as urged by the State, e.g., Mills v. State, supra; Chase v. Kearns, supra; State v. Kee, supra, have not done so in response to a contention that persons acquitted by reason of insanity must be shown to be dangerous to be involuntarily committed but rather in response to a contention that it must be shown that such persons are mentally ill, a matter not in dispute in this case. Such cases hold that persons acquitted by reason of insanity may be committed without a fresh determination of mental illness because they have proven insanity at the time of the crime by a preponderance of the evidence and insanity is presumed to continue. *255 Such arguments, whose soundness is doubtful at best,[5]see, Note 74 Colum. L. Rev. 733, 746-50 (1974), are not pertinent to the contention that like other persons subject to involuntary commitment, persons acquitted by reasons of insanity may not be committed without a showing of dangerousness. Johnson v. Robinson, 509 F.2d 395, 399 n. 18 (D.C. Cir.1974) (dictum). The decisive consideration where personal liberty is involved is that each individual's fate must be adjudged on the facts of his own case, not on the general characteristics of a "class" to which he may be assigned.
IV
Having determined that the commitment provisions of N.J.S.A. 2A:163-3 (and N.J.S.A. 2A:163-2) are unconstitutional in that they authorize involuntary commitment without proof of dangerousness,[6] the Court cannot simply stop short. Revision of the procedure for disposition of persons acquitted by reason of insanity is ultimately a matter for the Legislature. In the interim, the Court must itself formulate a constitutional and workable procedure. In doing so, we do not claim that the procedures *256 which we adopt constitute either the only acceptable alternative or the best one. They are simply expedients to enable the machinery of justice to continue to function pending action by the Legislature.
Following acquittal by reason of insanity, the defendant may, at the request of the State, be confined in a suitable mental institution for a period of 60 days for observation and examination. Proof by defendant that his criminal conduct was the result of mental illness provides sufficient justification for holding him in custody for a reasonable period of time to determine if he in fact should be indefintely committed. Such procedures for automatic temporary commitment, even though deviating from procedures applicable to civil commitment generally, have uniformly been upheld. See, e.g., Bolton v. Harris, 130 U.S. App. D.C. 1, 395 F.2d 642, 651 (D.C. Cir.1969); State v. Clemons, 110 Ariz. 79, 84, 515 P.2d 324, 328 (Sup. Ct. 1973); In re Franklin, 7 Cal.3d 126, 141-43, 101 Cal. Rptr. 553, 562-64, 496 P.2d 465, 474-76 (Sup. Ct. 1972); People v. McQuillan, 392 Mich. 511, 524-30, 221 N.W. 2d 569, 575-77 (Sup. Ct. 1974). See generally, Hamann, "The Confinement and Release of Persons Acquitted by Reason of Insanity," 4 Harv. J. Leg. 55, 65-67 (1966); Annotation "Validity of statutory provisions for commitment to mental institution of one acquitted on grounds of insanity without formal determination of mental condition at time of acquittal," 50 A.L.R.3d 144 (1973). While judicial decisions and scholarly commentators have differed on the most appropriate maximum to place on this period of temporary commitment, 60 days appears to be within the range of reasonableness.[7]
*257 Within this period, the State may move for indefinite commitment on the ground that defendant is mentally ill[8] and, if permitted to remain at large in the general population without some restraints, is likely to pose a danger to himself or to society. If, following a hearing, the court finds that the State has shown by a preponderance of the evidence[9] that defendant is mentally ill and is likely to pose such a danger, it should order suitable restraints placed upon defendant's liberty so as to protect the public and provide defendant with appropriate treatment. Such an order may take the form of confinement to an appropriate mental institution or other lesser restraints upon defendant's liberty participation in a residential half-way house program, mandatory out-patient care, etc. The order should be molded so as to protect society's very strong interest in public safety but to do so in a fashion that reasonably minimizes infringements upon defendant's liberty and autonomy *258 and gives him the best opportunity to receive appropriate care and treatment.[10]
In establishing a standard for commitment based on dangerousness as well as mental illness, we are cognizant of the difficulties which inhere in such a standard, a problem which we discussed in some depth in our recent decision in State v. Carter, 64 N.J. 382, 404-05 (1974). Dangerousness is a concept which involves substantial elements of vagueness and ambiguity, see, e.g., Goldstein & Katz, "Dangerousness and Mental Illness: Some Observation on the Decision to Release Persons Acquitted by Reason of Insanity," 70 Yale L.J. 224, 235-36 (1960), Rubin, "Prediction of Dangerousness in Mentally Ill Criminals," 27 Arch. Gen. Psychiat. 397, 398-99 (1972). The practical application *259 of a dangerousness standard is further impeded by the difficulty of making valid and meaningful predictions of the likelihood of future harmful conduct, see, e.g., Diamond, "The Psychiatric Prediction of Dangerousness," 123 U. Pa. L. Rev. 439 (1974); "Developments Civil Commitment of the Mentally Ill," 87 Harv. L. Rev. 1190, 1240-45 (1974); Rubin, supra, and by the subtle but strong pressures upon decision makers to overpredict dangerousness. See, e.g., Diamond, supra, at 447; Rubin, supra; Dershowitz, "The Law of Dangerousness: Some Fictions about Predictions," 23 J. Legal Ed. 24 (1970). To a considerable extent, these are problems which can be dealt with only by trial judges on a case by case basis. An appellate court can only suggest guidelines for analysis.
The standard is "dangerous to self or society."[11] Dangerous conduct is not identical with criminal conduct. Dangerous conduct involves not merely violation of social norms enforced by criminal sanctions, but significant physical or psychological injury to persons or substantial destruction of property. Persons are not to be indefinitely incarcerated because they present a risk of future conduct which is merely socially undesirable. Personal liberty and autonomy are of too great value to be sacrificed to protect society against the possibility of future behavior which some may find odd, disagreeable, or offensive, or even against the possibility of future non-dangerous acts which would be ground for criminal prosecution if actually committed. Unlike inanimate objects, people cannot be suppressed simply because they may become public nuisances. State v. Carter, supra 64 N.J. at 405; O'Connor v. Donaldson, 422 U.S. *260 563, 95 S.Ct. 2486, 45 L.Ed.2d 396 (1975); Cross v. Harris, 135 U.S. App. D.C. 259, 418 F.2d 1095, 1102 (D.C. Cir.1969); Davy v. Sullivan, 354 F. Supp. 1320, 1330 (M.D. Ala. 1973) (three-judge court). Cf. Millard v. Harris, 132 U.S. App. D.C. 146, 406 F.2d 964 (D.C. Cir.1968).
Commitment requires that there be a substantial risk of dangerous conduct within the reasonably foreseeable future. Evaluation of the magnitude of the risk involves consideration both of the likelihood of dangerous conduct and the seriousness of the harm which may ensue if such conduct takes place. Cross v. Harris, supra, 1100-1101; "Developments Civil Commitment of the Mentally Ill," 87 Harv. L. Rev. 1190, 1236-40 (1974); Livermore, Malinquist & Mechl, "On the Justification for Civil Commitment," 115 U. Pa. L. Rev. 75, 81-83 (1968); Goldstein & Katz, supra at 235. It is not sufficient that the state establish a possibility that defendant might commit some dangerous acts at some time in the indefinite future. The risk of danger, a product of the likelihood of such conduct and the degree of harm which may ensue, must be substantial within the reasonably foreseeable future. On the other hand, certainty of prediction is not required and cannot reasonably be expected.
A defendant may be dangerous in only certain types of situations or in connection with relationships with certain individuals. An evaluation of dangerousness in such cases must take into account the likelihood that defendant will be exposed to such situations or come into contact with such individuals. Cross v. Harris, supra at 1101. See State v. Johnson, 8 Or. App. 263, 493 P.2d 1386 (Ct. A