Limits on the State's Power to Confine "dangerous" Persons: Constitutional Implications of Foucha v. Louisiana

• Publication year: 1992
• Citation: Vol. 15 No. 03

UNIVERSITY OF PUGET SOUND LAW REVIEWVolume 15, No. 3SPRING 1992

Limits on the State's Power to Confine "Dangerous" Persons: Constitutional Implications of Foucha v. Louisiana

James W. Ellis(fn*)

On a number of occasions, the United States Supreme Court has decided cases regarding the state's ability to confine individuals in circumstances other than criminal convictions. In these cases, the Court has recognized that states pursue several public policies through non-conviction confinements, including involuntary treatment of mentally ill individuals, habilitation of developmentally disabled individuals, determination of competency to stand trial of accused individuals, and protection of public safety. For the Court, each such system presents unique issues involving achieving procedural fairness, achieving a balance between the state's interest in confinement and the individual's right to liberty, and achieving equal protection among the jurisdiction's various systems of confinement. The Court's cases have not, however, announced comprehensive constitutional principles addressing these issues.

In its recent decision in Foucha v. Louisiana,(fn1) the Court again declined to provide a complete set of constitutional guidelines, but it did give some guidance on the applicability of procedural due process, substantive due process, and equal protection principles. It also provided some indication of the views of the newer members of a changing Court. All of these concerns are raised by Washington's Sexually Violent Predators statute, providing for the confinement of individuals determined to be "sexual predators."

This Article does not attempt a complete analysis of all the constitutional implications of Foucha, nor does it attempt to provide a definitive answer to the question of the constitutionality of Washington's sexual predator statute. Rather, because Foucha addressed important due process and equal protection questions relevant to the Washington statute, the Article is an attempt to analyze the case's basic constitutional holdings and discussion on the issue of state deprivation of physical liberty.

I. The Foucha Litigation

The Foucha case involved a challenge to the constitutionality of Louisiana's statute providing for civil commitment subsequent to a criminal defendant's acquittal by reason of insanity. Louisiana law provided for automatic commitment of defendants who successfully asserted a defense of insanity. The constitutionality of automatic commitment of insanity acquittees had been upheld by the United States Supreme Court in Jones v. United States.(fn2) Louisiana, however, provided for the release of a person committed under this law only if the individual could demonstrate that he was no longer dangerous.(fn3) Thus, a person could be confined indefinitely in a mental hospital despite the fact that he was no longer mentally ill.

Terry Foucha was confined in a Louisiana state mental hospital under this statute. He had been prosecuted for aggravated burglary and illegal discharge of a firearm,(fn4) and was acquitted by reason of insanity. Following several years of confinement in a mental institution, Foucha sought his release in 1988. The superintendent of the facility in which he was confined recommended his discharge, and none of the mental disability professionals involved in the hearing (including the state's experts) disagreed with the conclusion that he no longer had a mental illness.(fn5) But the trial court concluded that Foucha had not carried the burden of persuasion that he was not prospectively dangerous, and his request for release was denied. The Supreme Court of Louisiana affirmed on appeal,(fn6) and the Supreme Court of the United States granted certiorari(fn7) "because the case present[ed] an important issue and was decided by the court below in a manner arguably at odds with prior decisions of this Court."(fn8)

The Supreme Court of the United States reversed. Justice White's majority opinion was joined by Justices Blackmun, Stevens, Souter, and, for most issues, Justice O'Connor. Justice O'Connor filed a separate opinion concurring in part (with regard to procedural and substantive due process) and concurring in the judgment. Justice Kennedy filed a dissent, which was joined by Chief Justice Rehnquist; Justice Thomas also wrote a lengthy dissent that was joined by Justice Scalia and the Chief Justice.

Justice White's majority opinion held that the Louisiana statute is unconstitutional on grounds of both substantive and procedural due process. Writing for a plurality of four Justices, he also concluded that the statute violated equal protection. Although Justice O'Connor thought that the question raised about equal treatment was "serious," she declined to join this portion of the opinion because she believed it "unnecessary to reach equal protection issues on the facts before us. . . ."(fn9)

As is often true in difficult cases involving a close division of the Justices, the majority opinion is something less than a model of clarity. The remaining sections of this Article attempt to sort out what the Court has said about the constitutional doctrines of procedural and substantive due process and equal protection.

II. Procedural Due Process

The procedural challenge to Louisiana's statute involved the fact that acquittees were required to demonstrate their own lack of dangerousness to obtain their release. In 1979, the Supreme Court had held in Addington v. Texas(fn10) that civil commitment statutes violated the procedural meaning of the Due Process Clause unless the state were required to carry the burden of persuasion by clear and convincing evidence.(fn11) By contrast, in the 1983 case of Jones v. United States,(fn12) the Court permitted some jurisdictions to place the burden of persuasion on insanity acquittees whose commitment is sought because the factual findings inherent in their acquittal were deemed sufficient to indicate prospective dangerousness and mental illness.(fn13) The issue in Foucha was whether Louisiana could constitutionally place the burden on acquittees whom it conceded no longer had any mental illness.

The Court concluded that this case was governed by Add-ington rather than Jones, and therefore, procedural due process required that Foucha be given a release hearing at which the state bore the burden by clear and convincing evidence. Thus the key to the procedural holding in Foucha was the determination that this case was distinguishable from Jones. The majority found the source of the distinction in the Jones opinion itself, which had limited the ability to hold an acquit-tee under special procedures only "until such time as he has regained his sanity or is no longer a danger to himself or society."(fn14) Because Foucha had "regained his sanity," the state lost its authority to treat him differently from other individuals whose confinement was sought.(fn15) Without that extraordinary authority, the procedural due process calculus was the same as the holding in Addington, in which the individual's interest in physical liberty outweighed the state's interest in a different burden of persuasion when considered in light of the risk of error and the likelihood that the requested procedure would reduce that risk.(fn16)

Justice Thomas's dissent addresses the procedural due process holding of the majority by first denying that it exists: "What the Court styles a 'procedural' due process analysis is in reality an equal protection analysis."(fn17) This hyperbolic statement is an introduction to a complaint that the majority does not spell out its analysis balancing out the state and individual interests: "[T]he Court does not even pretend to examine the fairness of the release procedures the State has provided."(fn18) Justice Thomas does not discuss that issue in detail either, but indicates that he is satisfied because Foucha had a forum in which to seek his release and because he "was represented by state-appointed counsel."(fn19) There is little discussion of the extent to which a different burden of persuasion might reduce the risk of erroneous commitment.

At a more basic level, Justice Thomas indicates that he disagrees with the majority about what he would consider an "error." Citing previous Supreme Court decisions, he finds assurance that the criminal trial court's finding that the defendant committed the underlying act "eliminates the risk that he is being committed for mere 'idiosyncratic behavior.' "(fn20) While the subject is not discussed directly in Justice White's opinion, it appears that the majority envisions a broader spectrum of potential "errors" than those described by Justice Thomas that must be guarded against, including confinement in a mental hospital of an individual who concededly has no mental illness and who may not be dangerous to himself or others.

Justice White's majority opinion does not discuss the elements of the procedural due process balancing test in detail, and thus the opinion does not advance our understanding of the Court's approach to the individual elements of that test or their interrelationship. Nevertheless, the Foucha decision has major significance in the field of procedural due process because it signals a return to that balancing process. The Jones Court's acquiescence in shifting the burden of persuasion to insanity acquittees on the basis of...