On certification to the Superior Court, Law Division, Essex County.
For reversal and remandment -- Chief Justice Hughes, Justices Sullivan, Pashman, Schreiber and Handler and Judge Conford. Dissenting in part -- Justice Clifford. The opinion of the court was delivered by Pashman, J. Conford, P.J.A.D. (temporarily assigned), concurring. Clifford, J., dissenting in part. Conford, P.J.A.D., concurring in the result.
[77 NJ Page 288] In State v. Krol, 68 N.J. 236 (1975), this Court announced certain interim rules to govern the disposition of persons acquitted of criminal charges by reason of insanity pursuant to N.J.S.A. 2A:163-2 and 3. We authorized the automatic temporary commitment of an insanity-acquittee for up to sixty days for the purpose of a psychiatric evaluation of his current mental condition and propensity for future antisocial conduct. See 68 N.J. at 256.
We further authorized the State to seek, within that period, the indefinite imposition of restraints on the insanity-acquittee's liberty because of his alleged mental illness and potential dangerousness to himself or to society. We required a judicial hearing on the State's request at which the State must satisfy the court, by a preponderance of the evidence, that the insanity-acquittee is presently mentally ill (as that term is defined in N.J.S.A. 30:4-23) and is likely to pose a danger to himself or to society. If the State's burden is met, the court must order "suitable restraints" placed upon the insanity-acquittee's liberty in order to "protect the public and provide defendant with appropriate treatment." 68 N.J. at 257. The suitability of the restraints is determined by the court's assessment of the degree of restraint upon the liberty of the insanity-acquittee necessary to "reduce the risk of danger which he poses to an acceptable level." 68 N.J. at 261. We provided for the modification or termination of orders imposing such restraints upon a showing, again by a preponderance of the evidence, by the party seeking to change the status quo that the degree of dangerousness presently posed by the committee warrants a different level of restraints or even none at all. 68 N.J. at 263 and n. 13.
Appellant Hetra Fields was indicted for the stabbing murder of her boyfriend and at her subsequent jury trial was acquitted by reason of her insanity at the time of the commission of the offense. Pursuant to the procedures set forth in Krol, the trial judge ordered her temporary confinement for observation in an appropriate psychiatric facility. Upon completion of the psychiatric evaluation, a hearing in conformity with Krol's directives was held to determine what restraints were required under the Krol criteria. The court determined that Fields was presently mentally ill, and constituted a danger to herself and society. Accordingly the judge ordered her continued confinement at a psychiatric hospital until his further order. At a commitment review hearing conducted six months later the court made an identical
determination and disposition, although authorizing the grant of furloughs in the discretion of the hospital staff.
A second such hearing was held six months thereafter at which the court found that the committee's mental illness (schizophrenia, chronic, undifferentiated type) was incurable. The reviewing judge concluded that although Fields was in a state of remission, she remained a probable danger to herself and society and continued to be in need of "controlled supervision." The court ordered her continued commitment under the same terms as provided in its previous order, subject to further review one year later, and directed that the hospital take certain steps aimed at her eventual conditional release. The committee appealed from this order and we directly certified the appeal on our own motion, R. 2:12-1, while it was pending unheard before the Appellate Division, 75 N.J. 588 (1977), in order to resolve certain important questions not settled by our decision in Krol and not yet resolved by legislative action.*fn1
The main subject of controversy at the hearing below was the proper allocation of the burden of proof, both as to production of evidence and risk of non-persuasion, in court-ordered [77 NJ Page 291] review proceedings. Counsel for Fields argued that under Krol, persons found not guilty by reason of insanity who are subsequently committed (hereinafter designated as "NGI committees") must be treated the same as persons whose commitment did not result from their involvement in the criminal justice system, i.e., "civil" committees. Under R. 4:74-7(e), (f) and (g), which govern the initial entry and automatic periodic review of orders for civil commitment and conditional release, that burden is placed upon the State, as the party seeking the continued imposition of restraints upon the liberty of the committee, at both stages in the civil context.*fn2 Thus, counsel for Fields argued that
the burden at the review stage of proceedings involving an NGI committee must remain where Krol had placed it at the initial commitment stage -- upon the State. The court rejected this argument, ruling that neither party bore the burden of persuasion at a periodic review hearing held at the initiative of the court. He distinguished such a hearing, in terms of the proper allocation of the burden of persuasion, from review proceedings initiated by the committee or by the state at which, under Krol, the burden is placed upon the moving party. See ante at 288-290. The judge stated that the periodic review proceeding required proof "to the satisfaction of the court" that the committee's mental illness and dangerousness continued. The court further ruled that the State was not required to produce fresh psychiatric testimony at each court-ordered periodic review hearing but could rely instead on the proofs previously adduced in support of the continuation of the commitment.
The only new evidence presented at the hearing was testimony on behalf of the committee by a senior psychiatrist at the hospital to which she had been committed. The psychiatrist
testified that the committee was in complete remission and did not require further hospitalization and indeed would be detrimentally affected by it. He stated that future violent psychotic episodes were unlikely so long as Fields was able to stay away from alcohol. The reviewing court was nevertheless concerned with the report of such an episode on one of the committee's weekend furloughs where, while under the influence of alcohol, she had threatened one of her daughters with a knife. The judge attributed her state of remission to the structured institutional environment and feared that exposure to the stress of the non-institutional world coupled with availability of alcohol might lead to another violent reaction. He accordingly refused to approve her conditional release at that time.
The narrow question before us is the entitlement of NGI committees to automatic periodic judicial review of the validity of the continued restraints upon their liberty on the basis of their dangerousness to themselves or others by reason of mental illness. We shall also address the ancillary questions of the allocation of the burden of persuasion on that issue and the appropriate standard and type of proof to be required.
We hold that NGI committees possess the same right to automatic periodic review of the justification for their commitment (or lesser restraints, as the case may be) as that enjoyed by civil committees. We further hold that the State must bear the ultimate burden of proof in justifying any continued restrictions upon the liberty of NGI committees at each periodic review proceeding by establishing, by a preponderance of the evidence, that such restrictions currently meet the criteria set forth in Krol for the initial imposition of restraints.
Entitlement to Periodic Review
Our decision in Krol spoke broadly of the constitutional requirement of substantially identical treatment for
all persons subject to a loss of liberty because of their probable dangerousness due to mental disability. In view of the comprehensive treatment this issue received in Krol, we need not retrace our steps here. See 68 N.J. at 250-255. Simply stated, the fact that a mentally ill person has committed an act which would expose a mentally competent person to criminal sanction is a constitutionally unacceptable justification for granting him less procedural and substantive protection against involuntary commitment than that generally afforded all other members of society. Jackson v. Indiana, 406 U.S. 715, 724, 92 S. Ct. 1845, 32 L. Ed. 2d 435 (1972); Baxstrom v. Herold, 383 U.S. 107, 86 S. Ct. 760, 15 L. Ed. 2d 620 (1966). Krol mandated such parallel treatment for prospective NGI committees at the initial consideration of the appropriateness of restricting their liberty for the purpose of community or personal protection because of their predictive dangerousness. It also indicated that the same criteria should be dispositive of the propriety of modifying or terminating orders requiring institutionalization or lesser restraints at the request of the NGI committee or the State, as is the case where the release of civil committees is at issue. However, Krol was silent with respect to the question of mandatory judicial review, on a regular periodic basis, of the current validity of the restraints imposed upon NGI committees. At the time Krol was decided, no comparable provision for periodic judicial reevaluation of the need for continuation of restrictions upon the liberty of civil committees existed. Shortly thereafter, R. 4:74-7(f) and (g) became effective. Those rules mandate such automatic review for civil committees without the necessity of a request therefor.
We have concluded that the significant safeguards afforded civil committees by virtue of the periodic review provisions of R. 4:74-7(f) and (g) must be extended to NGI committees as well. We shall accordingly refer the matter to our Criminal Practice Committee for the purpose of formulating an appropriate revision of R. 3:19-2
which will guarantee NGI committees equivalent protection against the unwarranted continuance of state-imposed restrictions on their liberty.
Due process would seem to require a meaningful periodic review of the continued legitimacy of restraints on the liberty of all persons whose alleged dangerousness by reason of mental disability brought about these restrictions. Their present dangerousness to themselves and others must be assessed at reasonable intervals. The standard of proof and the burden of meeting it at each periodic review hearing must be identical to that required in the initial proceeding mandated by Krol -- whether the committee actually meets the criteria of mental illness and dangerousness by reason thereof necessary to validate the total or partial deprivation of his liberty by the State. See 68 N.J. at 249, 257.
In Jackson v. Indiana, 406 U.S. 715, 92 S. Ct. 1845, 32 L. Ed. 2d 435 (1972), the United States Supreme Court ruled that there were certain substantive constitutional limitations on state power to confine persons found to be mentally ill. However, the Court chose to articulate only the limitation pertinent to the case before it:
At the least, due process requires that the nature and duration of commitment bear some reasonable relation to the purpose for which the individual is committed.
[406 U.S. at 738, 92 S. Ct. at 1858]
The logical corollary of the Court's observation is that where that purpose is the protection of society or the individual himself from harm he may inflict, the deprivation of that person's liberty can constitutionally continue only so long as the potential for that harm remains sufficiently great so that his confinement would be warranted were his initial commitability at issue. In O'Connor v. Donaldson, 422 U.S. 563, 95 S. Ct. 2486, 45 L. Ed. 2d 396 (1975), the Court, citing Jackson v. Indiana, supra, was more explicit on this point:
Nor is it enough that [the committee's] original confinement was founded upon a constitutionally adequate basis, if in fact it was, because even if his involuntary confinement was initially permissible, it could not constitutionally continue after that basis no longer existed.
[422 U.S. at 574-75, 95 S. Ct. at 2493]
Simply stated, state power to continue restrictions on the liberty of a committee terminates when his condition no longer satisfies the legal standards for their initial imposition. The authority of the state to impose restraints on a committee's liberty is thus contingent upon the continuance of the justification therefor as measured by that individual's present mental condition and degree of dangerousness. Due process requires a review procedure adequate to effectuate those limitations. Cf. Fasulo v. Arafeh, 173 Conn. 473, 378 A.2d 553, 555 (1977). In Fasulo, supra, the Supreme Court of Connecticut interpreted the due process clause of that state's constitution to require that civil committees be granted periodic judicial review "of the propriety of their continued confinement." 378 A.2d at 556. The Court's analysis of O'Connor v. Donaldson's significance in terms of the demands of due process in this context is particularly instructive:
Since the state's power to confine is measured by a legal standard, the expiration of the state's power can only be determined in a judicial proceeding which tests the patient's present mental status against the legal standard for confinement. * * * [S]ince the state's power to confine is premised on the individual's present mental status, the original involuntary commitment proceeding can only establish that the state may confine the individual at the time of the hearing and for the foreseeable period during which that status is unlikely to change. Upon the expiration of that period, the state's power to deprive the patient of his liberty lapses and any further confinement must be justified anew. * * * The state, therefore, must bear the burden of initiating recommitment proceedings.
[ Id. at 556-57 (footnote omitted)]*fn3