Releasing Insanity Acquittees

In Foucha v. Louisiana (1992) 504 U.S. 71, Foucha was charged with aggravated burglary and discharge of a firearm but was found not guilty by reason of insanity. (Id. at pp. 73-74.) The court committed him to a mental institution "until such time as doctors recommend that he be released, and until further order of the court." (Id. at p. 74.) Years later, the superintendent of the mental institution recommended that Foucha be discharged or released, as did a three-member panel at the institution. The trial court appointed a commission of two doctors, who reported that Foucha's mental illness was in remission but that they would not certify he would not be a danger to himself or others if released. One of the doctors testified that Foucha had an antisocial personality, not a mental disease but untreatable, and based on Foucha's involvement in several altercations at the institution, the doctor refused to certify that Foucha would not be a danger to himself or others. The parties stipulated that the other doctor would give the same testimony. The court found Foucha to be a danger to himself and others and returned him to the mental institution. (Id. at pp. 74-75.) The United States Supreme Court concluded the state statute that permitted the indefinite detention of insanity acquittees who are not mentally ill but who cannot prove they would not be dangerous violated due process. (Foucha, supra, 504 U.S. at pp. 77-80.) The high court also noted that 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 and 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." (Id. at pp. 81-82.)