Slip opinion

NOTE: Where it is feasible, a syllabus
(headnote) will be released, as is being
done in connection with this case, at
the time the opinion is issued.  The
syllabus constitutes no part of the
opinion of the Court but has been pre-
pared by the Reporter of Decisions for
the convenience of the reader.  See
United States v. Detroit Lumber Co., 200
U. S. 321, 337.

SUPREME COURT OF THE UNITED STATES

          Syllabus

     FOUCHA v. LOUISIANA
certiorari to the supreme court of louisiana
No. 90-5844.  Argued November 4, 1991"Decided
        May 18, 1992

Under Louisiana law, a criminal defendant found
not guilty by reason of insanity may be commit-
ted to a psychiatric hospital.  If a hospital
review committee thereafter recommends that
the acquittee be released, the trial court must
hold a hearing to determine whether he is dan-
gerous to himself or others.  If he is found to
be dangerous, he may be returned to the hospi-
tal whether or not he is then mentally ill.  Pur-
suant to this statutory scheme, a state court
ordered petitioner Foucha, an insanity acquitt-
ee, returned to the mental institution to which
he had been committed, ruling that he was dan-
gerous on the basis of, inter alia, a doctor's
testimony that he had recovered from the drug
induced psychosis from which he suffered upon
commitment and was ``in good shape'' mentally;
that he has, however, an antisocial personality,
a condition that is not a mental disease and is
untreatable; that he had been involved in sev-
eral altercations at the institution; and that,
accordingly, the doctor would not ``feel com-
fortable in certifying that he would not be a
danger to himself or to other people.''  The
State Court of Appeals refused supervisory
writs, and the State Supreme Court affirmed,
holding, among other things, that Jones v. United
States, 463 U.S. 354, did not require Foucha's
release and that the Due Process Clause of the
Fourteenth Amendment was not violated by the
statutory provision permitting confinement of
an insanity acquittee based on dangerousness
alone.
Held:The judgment is reversed.
563 So. 2d 1138, reversed.
Justice White delivered the opinion of the
Court with respect to Parts I and II, concluding
that the Louisiana statute violates the Due
Process Clause because it allows an insanity
acquittee to be committed to a mental institu-
tion until he is able to demonstrate that he is
not dangerous to himself and others, even
though he does not suffer from any mental ill-
ness.  Although Jones, supra, acknowledged that
an insanity acquittee could be committed, the
Court also held, as a matter of due process,
that he is entitled to release when he has re-
covered his sanity or is no longer dangerous,
id., at 368, i. e., he may be held as long as he is
both mentally ill and dangerous, but no longer.
Here, since the State does not contend that
Foucha was mentally ill at the time of the trial
court's hearing, the basis for holding him in a
psychiatric facility as an insanity acquittee
has disappeared, and the State is no longer
entitled to hold him on that basis.  There are at
least three difficulties with the State's at-
tempt to perpetuate his confinement on the
basis of his antisocial personality.  First, even
if his continued confinement were constitution-
ally permissible, keeping him against his will in
a mental institution is improper absent a de-
termination in civil commitment proceedings of
current mental illness and dangerousness.
Vitek v. Jones, 445 U.S. 480, 492.  Due process
requires that the nature of commitment bear
some reasonable relation to the purpose for
which the individual is committed.  See, e. g.,
Jones v. United States, supra, at 368.  Second, if
he can no longer be held as an insanity acquitt-
ee in a mental hospital, he is entitled to con-
stitutionally adequate procedures to establish
the grounds for his confinement.  Jackson v.
Indiana, 406 U.S. 715.  Third, the substantive
component of the Due Process Clause bars cer-
tain arbitrary, wrongful government actions
regardless of the fairness of the procedures
used to implement them.  Zinermon v. Burch, 494
U.S. 113, 125.  Although a State may imprison
convicted criminals for the purposes of deter-
rence and retribution, Louisiana has no such
interest here, since Foucha was not convicted
and may not be punished.  Jones, 463 U.S., at
369.  Moreover, although the State may confine
a person if it shows by clear and convincing
evidence that he is mentally ill and dangerous,
id., at 362, Louisiana has not carried that
burden here.  Furthermore, United States v.
Salerno, 481 U.S. 739"which held that in certain
narrow circumstances pretrial detainees who
pose a danger to others or the community may
be subject to limited confinement"does not save
the state statute.  Unlike the sharply focused
statutory scheme at issue in Salerno, the Loui-
siana scheme is not carefully limited.  Pp.413.

White, J., announced the judgment of the Court
and delivered the opinion of the Court with re-
spect to Parts I and II, in which Blackmun, Stev-
ens, O'Connor, and Souter, JJ., joined, and an
opinion with respect to Part III, in which Blackm-
un, Stevens, and Souter, JJ., joined.  O'Connor,
J., filed an opinion concurring in part and concur-
ring in the judgment.  Kennedy, J., filed a dis-
senting opinion, in which Rehnquist, C. J., joined.
Thomas, J., filed a dissenting opinion, in which
Rehnquist, C. J., and Scalia, J., joined.

Opinion

NOTICE: This opinion is subject to formal
revision before publication in the pre-
liminary print of the United States
Reports.  Readers are requested to
notify the Reporter of Decisions, Su-
preme Court of the United States, Wash-
ington, D.C. 20543, of any typographical
or other formal errors, in order that
corrections may be made before the
preliminary print goes to press.

SUPREME COURT OF THE UNITED STATES
         No. 90-5844
 
TERRY FOUCHA, PETITIONER v. LOUISIANA
on writ of certiorari to the supreme court
             of louisiana
            [May 18, 1992]

Justice White delivered the opinion of the
Court, except as to Part III.
When a defendant in a criminal case pending in
Louisiana is found not guilty by reason of insani-
ty, he is committed to a psychiatric hospital
unless he proves that he is not dangerous.  This
is so whether or not he is then insane.  After
commitment, if the acquittee or the superinten-
dent begins release proceedings, a review panel
at the hospital makes a written report on the
patient's mental condition and whether he can be
released without danger to himself or others.  If
release is recommended, the court must hold a
hearing to determine dangerousness; the acquitt-
ee has the burden of proving that he is not dan-
gerous.  If found to be dangerous, the acquittee
may be returned to the mental institution whether
or not he is then mentally ill.  Petitioner con-
tends that this scheme denies him due process and
equal protection because it allows a person
acquitted by reason of insanity to be committed
to a mental institution until he is able to demon-
strate that he is not dangerous to himself and
others, even though he does not suffer from any
mental illness.
                   I
Petitioner Terry Foucha was charged by Louisi-
ana authorities with aggravated burglary and
illegal discharge of a firearm.  Two medical doc-
tors were appointed to conduct a pretrial exami-
nation of Foucha.  The doctors initially reported,
and the trial court initially found, that Foucha
lacked mental capacity to proceed, App. 89, but
four months later the trial court found Foucha
competent to stand trial.  Id., at 45.  The doc-
tors reported that Foucha was unable to distin-
guish right from wrong and was insane at the time
of the offense.  On October 12, 1984, the trial
court ruled that Foucha was not guilty by reason
of insanity, finding that he ``is unable to appreci-
ate the usual, natural and probable consequences
of his acts; that he is unable to distinguish right
from wrong; that he is a menace to himself and
others; and that he was insane at the time of the
commission of the above crimes and that he is
presently insane.  Id., at 6.  He was committed to
the East Feliciana Forensic Facility until such
time as doctors recommend that he be released,
and until further order of the court.  In 1988, the
superintendent of Feliciana recommended that
Foucha be discharged or released.  A three-
member panel was convened at the institution to
determine Foucha's current condition and whether
he could be released or placed on probation
without being a danger to others or himself.  On
March 21, 1988, the panel reported that there had
been no evidence of mental illness since admission
and recommended that Foucha be conditionally
discharged.  The trial judge appointed a two-
member sanity commission made up of the same two
doctors who had conducted the pretrial examina-
tion.  Their written report stated that Foucha  is
presently in remission from mental illness [but]
[w]e cannot certify that he would not constitute
a menace to himself or others if released.  Id.,
at 12.  One of the doctors testified at a hearing
that upon commitment Foucha probably suffered
from a drug induced psychosis but that he had
recovered from that temporary condition; that he
evidenced no signs of psychosis or neurosis and
was in  good shape mentally; that he has, howev-
er, an antisocial personality, a condition that is
not a mental disease and that is untreatable.  The
doctor also testified that Foucha had been in-
volved in several altercations at Feliciana and
that he, the doctor, would not  feel comfortable
in certifying that [Foucha] would not be a danger
to himself or to other people.  Id., at 18.
After it was stipulated that the other doctor, if
he were present, would give essentially the same
testimony, the court ruled that Foucha was
dangerous to himself and others and ordered him
returned to the mental institution.  The Court of
Appeals refused supervisory writs, and the State
Supreme Court affirmed, holding that Foucha had
not carried the burden placed upon him by statute
to prove that he was not dangerous, that our
decision in Jones v. United States, 463 U. S. 354
(1983), did not require Foucha's release, and that
neither the Due Process Clause nor the Equal
Protection Clause was violated by the statutory
provision permitting confinement of an insanity
acquittee based on dangerousness alone.
Because the case presents an important issue
and was decided by the court below in a manner
arguably at odds with prior decisions of this
Court, we granted certiorari.  499 U. S. ___ (1991).
                  II
Addington v. Texas, 441 U.S. 418 (1979), held that
to commit an individual to a mental institution in
a civil proceeding, the State is required by the
Due Process Clause to prove by clear and con-
vincing evidence the two statutory preconditions
to commitment: that the person sought to be
committed is mentally ill and that he requires
hospitalization for his own welfare and protection
of others.  Proof beyond reasonable doubt was not
required, but proof by preponderance of the
evidence fell short of satisfying due process.
When a person charged with having committed a
crime is found not guilty by reason of insanity,
however, a State may commit that person without
satisfying the Addington burden with respect to
mental illness and dangerousness.  Jones v. United
States, supra.  Such a verdict, we observed in
Jones,  establishes two facts: (i) the defendant
committed an act that constitutes a criminal
offense, and (ii) he committed the act because of
mental illness, id., at 363, an illness that the
defendant adequately proved in this context by a
preponderance of the evidence.  From these two
facts, it could be properly inferred that at the
time of the verdict, the defendant was still
mentally ill and dangerous and hence could be
committed.
     We held, however, that  (t)he committed acquittee
is entitled to release when he has recovered his
sanity or is no longer dangerous, id., at 368;
i. e. the acquittee may be held as long as he is
both mentally ill and dangerous, but no longer.  We
relied on O'Connor v. Donaldson, 422 U. S. 563 (1975),
which held as a matter of due process that it was
unconstitutional for a State to continue to
confine a harmless, mentally ill person.  Even if
the initial commitment was permissible,  it could
not constitutionally continue after that basis no
longer existed.  Id., at 575.  In the summary of
our holdings in our opinion we stated that  the
Constitution permits the Government, on the basis
of the insanity judgment, to confine him to a
mental institution until such time as he has
regained his sanity or is no longer a danger to
himself or society.  Jones, 463 U.S., at 368,
370.  The court below was in error in character-
izing the above language from Jones as merely an
interpretation of the pertinent statutory law in
the District of Columbia and as having no consti-
tutional significance.  In this case, Louisiana
does not contend that Foucha was mentally ill at
the time of the trial court's hearing.  Thus, the
basis for holding Foucha in a psychiatric facility
as an insanity acquittee has disappeared, and the
State is no longer entitled to hold him on that
basis.  O'Connor, supra, at 574575.
The State, however, seeks to perpetuate Fouch-
a's confinement at Feliciana on the basis of his
antisocial personality which, as evidenced by his
conduct at the facility, the court found rendered
him a danger to himself or others.  There are at
least three difficulties with this position.  First,
even if his continued confinement were constitu-
tionally permissible, keeping Foucha against his
will in a mental institution is improper absent a
determination in civil commitment proceedings of
current mental illness and dangerousness.  In
Vitek v. Jones, 445 U. S. 480 (1980), we held that a
convicted felon serving his sentence has a liberty
interest, not extinguished by his confinement as
a criminal, in not being transferred to a mental
institution and hence classified as mentally ill
without appropriate procedures to prove that he
was mentally ill.   The loss of liberty produced by
an involuntary commitment is more than a loss of
freedom from confinement.  Id. at 492.  Due
process requires that the nature of commitment
bear some reasonable relation to the purpose for
which the individual is committed.  Jones, supra, at
368; Jackson v. Indiana, 406 U. S. 715, 738 (1972).
Here, according to the testimony given at the
hearing in the trial court, Foucha is not suffering
from a mental disease or illness.  If he is to be
held, he should not be held as a mentally ill
person.  See  Jones, supra, at 368; Jackson, supra,
at 738.  Cf. United States v. Salerno, 481 U. S. 739,
747748 (1987); Schall v. Martin, 467 U.S. 253, 270
(1984).
Second, if Foucha can no longer be held as an
insanity acquittee in a mental hospital, he is
entitled to constitutionally adequate procedures
to establish the grounds for his confinement.
Jackson v. Indiana, supra, indicates as much.
There, a person under criminal charges was found
incompetent to stand trial and was committed until
he regained his sanity.  It was later determined
that nothing could be done to cure the detainee,
who was a deaf mute.  The state courts refused to
order his release.  We reversed, holding that the
State was entitled to hold a person for being
incompetent to stand trial only long enough to
determine if he could be cured and become compe-
tent.  If he was to be held longer, the State was
required to afford the protections constitu-
tionally required in a civil commitment proceeding.
We noted, relying on Baxstrom v. Herold, 383 U. S.
107 (1966), that a convicted criminal who allegedly
was mentally ill was entitled to release at the end
of his term unless the State committed him in a
civil proceeding.  ```[T]here is no conceivable
basis for distinguishing the commitment of a
person who is nearing the end of a penal term from
all other civil commitments.'''  Jackson v. Indiana,
supra, at 724, quoting Baxstrom, supra, at 111112.
Third,  the Due Process Clause contains a
substantive component that bars certain arbi-
trary, wrongful government actions `regardless of
the fairness of the procedures used to implement
them.'''  Zinermon v. Burch, 494 U. S. 113, 125 (1990).
See also Salerno, supra, at 746; Daniels v. Wil-
liams, 474 U. S. 327, 331 (1986).  Freedom from
bodily restraint has always been at the core of
the liberty protected by the Due Process Clause
from arbitrary governmental action.  Youngberg v.
Romeo, 457 U. S. 307, 316 (1982).  ``It is clear that
commitment for any purpose constitutes a signifi-
cant deprivation of liberty that requires due
process protection.''  Jones, supra, at 361 (inter-
nal quotation marks omitted.)  We have always been
careful not to ``minimize the importance and
fundamental nature'' of the individual's right to
liberty.  Salerno, supra, at 750.
A State, pursuant to its police power, may of
course imprison convicted criminals for the
purposes of deterrence and retribution.  But
there are constitutional limitations on the
conduct that a State may criminalize.  See, e. g.,
Brandenburg v. Ohio, 395 U.S. 444 (1969); Robinson v.
California, 370 U.S. 660 (1962).  Here, the State
has no such punitive interest.  As Foucha was not
convicted, he may not be punished.  Jones, supra,
at 369.  Here, Louisiana has by reason of his
acquittal exempted Foucha from criminal responsi-
bility as La. Rev. Stat. Ann. 14:14 (West 1986)
requires.  See n.1, supra.
The State may also confine a mentally ill person
if it shows  by clear and convincing evidence that
the individual is mentally ill and dangerous,
Jones, 463 U.S., at 362.  Here, the State has not
carried that burden; indeed, the State does not
claim that Foucha is now mentally ill.
We have also held that in certain narrow circum-
stances persons who pose a danger to others or
to the community may be subject to limited con-
finement and it is on these cases, particularly
United States v. Salerno, supra, that the State
relies in this case.
Salerno, unlike this case, involved pretrial
detention.  We observed in Salerno that the  gove-
rnment's interest in preventing crime by arreste-
es is both legitimate and compelling,  id., at 749,
and that the statute involved there was a consti-
tutional implementation of that interest.  The
statute carefully limited the circumstances under
which detention could be sought to those involving
the most serious of crimes (crimes of violence,
offenses punishable by life imprisonment or death,
serious drug offenses, or certain repeat offend-
ers), id., at 747, and was narrowly focused on a
particularly acute problem in which the govern-
ment interests are overwhelming.  Id., at 750.  In
addition to first demonstrating probable cause,
the government was required, in a  full-blown
adversary hearing, to convince a neutral decisi-
onmaker by clear and convincing evidence that no
conditions of release can reasonably assure the
safety of the community or any person, i.e., that
the  arrestee presents an identified and articul-
able threat to an individual or the community.
Id., at 751.  Furthermore, the duration of confine-
ment under the Act was strictly limited.  The
arrestee was entitled to a prompt detention
hearing and the maximum length of pretrial deten-
tion was limited by the  stringent time limitations
of the Speedy Trial Act.  Id., at 747.  If the
arrestee were convicted, he would be confined as
a criminal proved guilty; if he were acquitted, he
would go free.  Moreover, the Act required that
detainees be housed, to the extent practicable, in
a facility separate from persons awaiting or
serving sentences or awaiting appeal.  Id., at
747748.
Salerno does not save Louisiana's detention of
insanity acquittees who are no longer mentally ill.
Unlike the sharply focused scheme at issue in
Salerno, the Louisiana scheme of confinement is
not carefully limited.  Under the state statute,
Foucha is not now entitled to an adversary hear-
ing at which the State must prove by clear and
convincing evidence that he is demonstrably
dangerous to the community.  Indeed, the State
need prove nothing to justify continued deten-
tion, for the statute places the burden on the
detainee to prove that he is not dangerous.  At
the hearing which ended with Foucha's recommittal,
no doctor or any other person testified positive-
ly that in his opinion Foucha would be a danger to
the community, let alone gave the basis for such
an opinion.  There was only a description of
Foucha's behavior at Feliciana and his antisocial
personality, along with a refusal to certify that
he would not be dangerous.  When directly asked
whether Foucha would be dangerous, Dr. Ritter
said only  I don't think I would feel comfortable in
certifying that he would not be a danger to him-
self or to other people.  App. 18.  This, under the
Louisiana statute, was enough to defeat Foucha's
interest in physical liberty.  It is not enough to
defeat Foucha's liberty interest under the Con-
stitution in being freed from indefinite confine-
ment in a mental facility.
Furthermore, if Foucha committed criminal acts
while at Feliciana, such as assault, the State
does not explain why its interest would not be
vindicated by the ordinary criminal processes
involving charge and conviction, the use of en-
hanced sentences for recidivists, and other
permissible ways of dealing with patterns of
criminal conduct.  These are the normal means of
dealing with persistent criminal conduct.  Had
they been employed against Foucha when he as-
saulted other inmates, there is little doubt that
if then sane he could have been convicted and
incarcerated in the usual way.
 It was emphasized in Salerno that the detention
we found constitutionally permissible was strict-
ly limited in duration.  481 U. S., at 747; see also
Schall, 467 U. S., at 269.  Here, in contrast, the
State asserts that because Foucha once commit-
ted a criminal act and now has an antisocial
personality that sometimes leads to aggressive
conduct, a disorder for which there is no effec-
tive treatment, he may be held indefinitely.  This
rationale would permit the State to hold indefi-
nitely any other insanity acquittee not mentally
ill who could be shown to have a personality
disorder that may lead to criminal conduct.  The
same would be true of any convicted criminal, even
though he has completed his prison term.  It would
also be only a step away from substituting con-
finements for dangerousness for our present
system which, with only narrow exceptions and
aside from permissible confinements for mental
illness, incarcerates only those who are proved
beyond reasonable doubt to have violated a
criminal law.
 In our society liberty is the norm, and deten-
tion prior to trial or without trial is the care-
fully limited exception.  United States v. Salerno,
supra, at 755.  The narrowly focused pretrial
detention of arrestees permitted by the Bail
Reform Act was found to be one of those carefully
limited exceptions permitted by the Due Process
Clause.  We decline to take a similar view of a law
like Louisiana's, which permits the indefinite
detention of insanity acquittees who are not
mentally ill but who do not prove they would not be
dangerous to others.

                   III

It should be apparent from what has been said
earlier in this opinion that the Louisiana statute
also discriminates against Foucha in violation of
the Equal Protection Clause of the Fourteenth
Amendment.  Jones established that insanity
acquittees may be treated differently in some
respects from those persons subject to civil
commitment, but Foucha, who is not now thought to
be insane, can no longer be so classified.  The
State nonetheless insists on holding him indefi-
nitely because he at one time committed a criminal
act and does not now prove he is not dangerous.
Louisiana law, however, does not provide for
similar confinement for other classes of persons
who have committed criminal acts and who cannot
later prove they would not be dangerous.  Crimi-
nals who have completed their prison terms, or
are about to do so, are an obvious and large
category of such persons.  Many of them will likely
suffer from the same sort of personality disorder
that Foucha exhibits.  However, state law does not
allow for their continuing confinement based
merely on dangerousness.  Instead, the State
controls the behavior of these similarly situated
citizens by relying on other means, such as pun-
ishment, deterrence, and supervised release.
Freedom from physical restraint being a fundamen-
tal right, the State must have a particularly
convincing reason, which it has not put forward,
for such discrimination against insanity acquitt-
ees who are no longer mentally ill.
Furthermore, in civil commitment proceedings the
State must establish the grounds of insanity and
dangerousness permitting confinement by clear
and convincing evidence.  Addington, 441 U.S., at
425433.  Similarly, the State must establish
insanity and dangerousness by clear and convinc-
ing evidence in order to confine an insane convict
beyond his criminal sentence, when the basis for
his original confinement no longer exists.  See
Jackson, 406 U.S., at 724; Baxstrom, 383 U.S., at
111112.  Cf. Humphrey v. Cady, 405 U.S. 504, 510511
(1972).  However, the State now claims that it may
continue to confine Foucha, who is not now consid-
ered to be mentally ill, solely because he is
deemed dangerous, but without assuming the
burden of proving even this ground for confine-
ment by clear and convincing evidence.  The court
below gave no convincing reason why the proce-
dural safeguards against unwarranted confine-
ment which are guaranteed to insane persons and
those who have been convicted may be denied to a
sane acquittee, and the State has done no better
in this Court.
For the foregoing reasons the judgment of the
Louisiana Supreme Court is reversed.
                             So ordered.
Concur
  SUPREME COURT OF THE UNITED STATES
         No. 90-5844
 
TERRY FOUCHA, PETITIONER v. LOUISIANA
on writ of certiorari to the supreme court
of louisiana
            [May 18, 1992]

Justice O'Connor, concurring in part and con-
curring in the judgment.
Louisiana asserts that it may indefinitely
confine Terry Foucha in a mental facility because,
although not mentally ill, he might be dangerous to
himself or to others if released.  For the reasons
given in Part II of the Court's opinion, this con-
tention should be rejected.  I write separately,
however, to emphasize that the Court's opinion
addresses only the specific statutory scheme
before us, which broadly permits indefinite con-
finement of sane insanity acquittees in psychiat-
ric facilities.  This case does not require us to
pass judgment on more narrowly drawn laws that
provide for detention of insanity acquittees, or
on statutes that provide for punishment of
persons who commit crimes while mentally ill.
I do not understand the Court to hold that
Louisiana may never confine dangerous insanity
acquittees after they regain mental health.
Under Louisiana law, defendants who carry the
burden of proving insanity by a preponderance of
the evidence will ``escape punishment,'' but this
affirmative defense becomes relevant only after
the prosecution establishes beyond a reasonable
doubt that the defendant committed criminal acts
with the required level of criminal intent.  State
v. Marmillion, 339 So. 2d 788, 796 (La. 1976).
Although insanity acquittees may not be incarcer-
ated as criminals or penalized for asserting the
insanity defense, see Jones v. United States, 463
U. S. 354, 368369, and n. 18 (1983), this finding of
criminal conduct sets them apart from ordinary
citizens.
We noted in Jones that a judicial determination
of criminal conduct provides ``concrete evidence''
of dangerousness.  Id., at 364.  By contrast,
```[t]he only certain thing that can be said about
the present state of knowledge and therapy
regarding mental disease is that science has not
reached finality of judgment . . . .'''  Id., at 365, n.
13 (quoting Greenwood v. United States, 350 U. S.
366, 375 (1956)).  Given this uncertainty, ``courts
should pay particular deference to reasonable
legislative judgments'' about the relationship
between dangerous behavior and mental illness.
Jones, supra, at 365, n. 13.  Louisiana evidently
has determined that the inference of dangerous-
ness drawn from a verdict of not guilty by reason
of insanity continues even after a clinical finding
of sanity, and that judgment merits judicial
deference.
It might therefore be permissible for Louisiana
to confine an insanity acquittee who has regained
sanity if, unlike the situation in this case, the
nature and duration of detention were tailored to
reflect pressing public safety concerns related
to the acquittee's continuing dangerousness.  See
United States v. Salerno, 481 U. S. 739, 747751
(1987); Schall v. Martin, 467 U. S. 253, 264271
(1984); Jackson v. Indiana, 406 U. S. 715, 738 (1972).
Although the dissenters apparently disagree, see
post, at 11 (Kennedy, J., dissenting); post, at 24
(Thomas, J., dissenting), I think it clear that
acquittees could not be confined as mental pa-
tients absent some medical justification for doing
so; in such a case the necessary connection
between the nature and purposes of confinement
would be absent.  See Vitek v. Jones, 445 U. S. 480,
491494 (1980) (discussing infringements upon
liberty unique to commitment to a mental hospital);
Jones, supra, at 384385 (Brennan, J., dissenting)
(same).  Nor would it be permissible to treat all
acquittees alike, without regard for their partic-
ular crimes.  For example, the strong interest in
liberty of a person acquitted by reason of insani-
ty but later found sane might well outweigh the
governmental interest in detention where the only
evidence of dangerousness is that the acquittee
committed a non-violent or relatively minor crime.
Cf. Salerno, supra, at 750 (interest in pretrial
detention is ``overwhelming'' where only individuals
arrested for ``a specific category of extremely
serious offenses'' are detained and ``Congress
specifically found that these individuals are far
more likely to be responsible for dangerous acts
in the community after arrest'').  Equal protection
principles may set additional limits on the con-
finement of sane but dangerous acquittees.
Although I think it unnecessary to reach equal
protection issues on the facts before us, the
permissibility of holding an acquittee who is not
mentally ill longer than a person convicted of the
same crimes could be imprisoned is open to seri-
ous question.
The second point to be made about the Court's
holding is that it places no new restriction on the
States' freedom to determine whether and to what
extent mental illness should excuse criminal
behavior.  The Court does not indicate that
States must make the insanity defense available.
See Idaho Code 18207(a) (1987) (mental condition
not a defense to criminal charges); Mont. Code Ann.
4614102 (1991) (evidence of mental illness
admissible to prove absence of state of mind that
is an element of the offense).  It likewise casts no
doubt on laws providing for prison terms after
verdicts of ``guilty but mentally ill.''  See, e.g.,
Del. Code Ann., Tit. 11, 408(b) (1987); Ill. Rev.
Stat., ch. 38, 100526 (1989); Ind. Code 3536-
25 (Supp. 1991).  If a State concludes that mental
illness is best considered in the context of
criminal sentencing, the holding of this case
erects no bar to implementing that judgment.
Finally, it should be noted that the great
majority of States have adopted policies consis-
tent with the Court's holding.  Justice Thomas
claims that 11 States have laws comparable to
Louisiana's, see post, at 1112, n. 9, but even this
number overstates the case.  Two of the States
Justice Thomas mentions have already amended
their laws to provide for the release of acquitte-
es who do not suffer from mental illness but may
be dangerous.  See Cal. Penal Code Ann. 1026.2
(West Supp. 1992) (effective Jan. 1, 1994); Va. Code
19.2182.5 (Supp. 1991) (effective July 1, 1992).
Three others limit the maximum duration of crimi-
nal commitment to reflect the acquittee's specific
crimes and hold acquittees in facilities appropri-
ate to their mental condition.  See N. J. Stat. Ann.
2C:48(b)(3) (West 1982), 30:424.2 (West 1981);
Wash. Rev. Code 10.77.020(3), 10.77.110(1) (1990);
Wis. Stat. 971.17(1), (3)(c) (Supp. 1991).  I do not
understand the Court's opinion to render such
laws necessarily invalid.
Of the remaining six States, two do not condition
commitment upon proof of every element of a
crime.  Kan. Stat. Ann. 223428(1) (Supp. 1990) (``A
finding of not guilty by reason of insanity shall
constitute a finding that the acquitted person
committed an act constituting the offense charged
. . . , except that the person did not possess the
requisite criminal intent''); Mont. Code Ann. 461-
4301(1) (1991) (allowing commitment of persons
``found not guilty for the reason that due to a
mental disease or defect the defendant could not
have a particular state of mind that is an essen-
tial element of the offense charged'').  Such laws
might well fail even under the dissenters' theo-
ries.  See post, at 25 (Kennedy, J., dissenting);
post, at 2 (Thomas, J., dissenting).
Today's holding follows directly from our prece-
dents and leaves the States appropriate latitude
to care for insanity acquittees in a way consis-
tent with public welfare.  Accordingly, I concur in
Parts I and II of the Court's opinion and in the
judgment of the Court.

Dissent
  SUPREME COURT OF THE UNITED STATES
         No. 90-5844
 
TERRY FOUCHA, PETITIONER v. LOUISIANA
on writ of certiorari to the supreme court
             of louisiana
            [May 18, 1992]

Justice Kennedy, with whom the Chief Justice
joins, dissenting.
As incarceration of persons is the most common
and one of the most feared instruments of state
oppression and state indifference, we ought to
acknowledge at the outset that freedom from this
restraint is essential to the basic definition of
liberty in the Fifth and Fourteenth Amendments of
the Constitution.  I agree with the Court's reaf-
firmation of this first premise.  But I submit with
all respect that the majority errs in its failure
to recognize that the conditions for incarcera-
tion imposed by the State in this case are in
accord with legitimate and traditional state
interests, vindicated after full and fair proce-
dures.  The error results from the majority's
primary reliance on cases, such as O'Connor v.
Donaldson, 422 U. S. 563 (1975), and Addington v.
Texas, 441 U. S. 418 (1979), which define the due
process limits for involuntary civil commitment.
The majority relies on these civil cases while
overruling without mention one of the holdings of
our most recent and significant precedent from
the criminal context, Jones v. United States, 463
U. S. 354 (1983).
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 con-
fronted him as he fled.  Id., at 12.  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 con-
duct in question.
Mental illness may bear upon criminal responsi-
bility, 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. 429430 (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,
795796 (1952).
The power of the States to determine the exis-
tence of criminal insanity following the estab-
lishment of the underlying offense is well estab-
lished.  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 squa-
rely 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 were to 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 795796 (footnotes omitted).
As then-Justice Rehnquist explained the reason-
ing 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, en-
sures 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 determina-
tion 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 adjudica-
tion 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 369372 (Harlan, J., concurring).  We have often
subjected to heightened due process scrutiny,
with regard to both purpose and duration, depri-
vations 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
363364, 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 height-
ened 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 significan-
ce'' to the fact that petitioner has been adjudi-
cated ``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 to
a 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 protect-
ions afforded as a consequence of the State's
ultimate choice of nomenclature.  The due process
implications ought not to vary under these cir-
cumstances.  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 concomi-
tant 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 proceed-
ings 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 crimi-
nal 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 356358.  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 363364, and n. 12.  In cases of
acquittal by reason of insanity, District law
provided for automatic 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 357358, 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 convinc-
ing evidence before commitment.  We rejected that
contention.  In Jones we distinguished criminal
from civil commitment, holding that the Due Pro-
cess 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 89, 1314.  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-estab-
lished 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 426427.  The
criminal law defines a discrete category of
conduct for which society has reserved its great-
est opprobrium and strictest sanctions; past or
future dangerousness, as ascertained or predict-
ed in civil proceedings, is different in kind.  Third,
the State presents distinct rationales for these
differing forms of commitment:  In the civil con-
text, the State acts in large part on the basis of
its parens 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 2425
(3d ed. 1985).  A dismissive footnote, see ante, at
5, n. 4, cannot overcome these fundamental de-
fects 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 de-
fined 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, 536537 (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 proceed-
ings, 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'Nagh-
ten, findings of past insanity and past criminal
conduct possess intrinsic and ultimate signifi-
cance.
The system here described is not employed in all
jurisdictions.  Some have supplemented the tradi-
tional M'Naghten test with the so-called  irre-
sistible impulse test, see 1 LaFave & Scott 4.1,
at 427428; others have adopted a test proposed
as part of the Model Penal Code, see ibid.; and
still others have abolished the defense altogeth-
er,see Idaho Code 18207(a) (1987); Mont. Code Ann.
4614102 (1992).  Since it is well accepted that
the States may define their own crimes and de-
fenses, 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  `com-
mitted the act because of mental illness.'  Ante,
at 45, 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, 240241, 214 F.
2d 862, 874875 (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
45, and n. 4.
The establishment of a criminal act and of
insanity under the M'Naghten regime provides a
legitimate basis for confinement.  Although Loui-
siana has chosen not to punish insanity acquitte-
es, 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 compliance with In re Winship, the State may
incarcerate on any reasonable basis, see supra,
at 4.  Incapacitation for the protection of soci-
ety 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 incar-
ceration under these circumstances is demon-
strated 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 danger-
ousness.  To use a familiar example, under the
federal parole system in place until the enact-
ment 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.), re-
pealed 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, Massa-
chusetts, 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,
and n. 103 (1983).  It is difficult for me to recon-
cile the rationale of incapacitative incarcera-
tion, which underlies these regimes, with the
opinion of the majority, which discounts its
legitimacy.
I also have difficulty with the majority's empha-
sis 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 384385 (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 petitione-
r'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 stig-
matized by the verdict itself, and thus the com-
mitment 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 indepen-
dent 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 pro-
ceedings 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, peti-
tioner had been sent to a maximum security sec-
tion 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 com-
mands 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 determin-
ing criminal insanity, and having complied with the
rigorous demands of In re Winship, the State
possesses the constitutional authority to incar-
cerate petitioner for the protection of society.
I submit my respectful dissent.

Dissent 2
  SUPREME COURT OF THE UNITED STATES
         No. 90-5844
 
TERRY FOUCHA, PETITIONER v. LOUISIANA
on writ of certiorari to the supreme court
             of louisiana
            [May 18, 1992]

Justice Thomas, with whom The Chief Justice and
Justice Scalia join, dissenting.
The Louisiana statutory scheme the Court
strikes down today is not some quirky relic of a
bygone age, but a codification of the current
provisions of the American Law Institute's Model
Penal Code.  Invalidating this quite reasonable
scheme is bad enough; even worse is the Court's
failure to explain precisely what is wrong with it.
In parts of its opinion, the Court suggests that
the scheme is unconstitutional because it pro-
vides for the continued confinement of insanity
acquittees who, although still dangerous, have
``recovered'' their sanity.  Ante, at 6 (``[T]he
committed acquittee is entitled to release when he
has recovered his sanity or is no longer dangero-
us'') (emphasis added; internal quotation omitted).
In other parts of the opinion, the Court sug-
gests"and the concurrence states explicitly"that
the constitutional flaw with this scheme is not
that it provides for the confinement of sane
insanity acquittees, but that it (allegedly) pro-
vides for their ``indefinite'' confinement in a
mental facility.  Ante, at 10; ante, at 1 (O'Connor,
J., concurring in part and concurring in judgment).
Nothing in the Constitution, this Court's prece-
dents, or our society's traditions authorizes the
Court to invalidate the Louisiana scheme on
either of these grounds.  I would therefore affirm
the judgment of the Louisiana Supreme Court.
                   I
The Court errs, in large part, because it fails
to examine in detail the challenged statutory
scheme and its application in this case.  Under
Louisiana law, a verdict of ``not guilty by reason
of insanity'' differs significantly from a verdict
of ``not guilty.''  A simple verdict of not guilty
following a trial means that the State has failed
to prove all of the elements of the charged crime
beyond a reasonable doubt.  See, e.g., State v.
Messiah, 538 So. 2d 175, 180 (La. 1988) (citing In re
Winship, 397 U. S. 358 (1970)); cf. La. Code Crim.
Proc. Ann., Art. 804(A)(1) (West 1969).  A verdict of
not guilty by reason of insanity, in contrast,
means that the defendant committed the crime, but
established that he was ``incapable of distinguish-
ing between right and wrong'' with respect to his
criminal conduct.  La. Rev. Stat. Ann. 14.14 (West
1986).  Insanity, in other words, is an affirmative
defense that does not negate the State's proof,
but merely ``exempt[s the defendant] from criminal
responsibility.''  Ibid.  As the Louisiana Supreme
Court has summarized:  ``The State's traditional
burden of proof is to establish beyond a reason-
able doubt all necessary elements of the offense.
Once this rigorous burden of proof has been met, it
having been shown that defendant has committed a
crime, the defendant . . . bear[s] the burden of
establishing his defense of insanity in order to
escape punishment.''  State v. Marmillion, 339 So.
2d 788, 796 (La. 1976) (emphasis added).  See also
State v. Surrency, 88 So. 240, 244 (La. 1921).
Louisiana law provides a procedure for a judge
to render a verdict of not guilty by reason of
insanity upon a plea without a trial.  See La. Code
Crim. Proc. Ann., Art. 558.1 (West Supp. 1991).  The
trial court apparently relied on this procedure
when it committed Foucha.  See 563 So. 2d 1138,
1139, n. 3 (La. 1990).  After ordering two experts
to examine Foucha, the trial court issued the
following judgment:
  ``After considering the law and the evidence
adduced in this matter, the Court finds that
the accused, Terry Foucha, is unable to ap-
preciate the usual, natural and probable
consequences of his acts; that he is unable to
distinguish right from wrong; that he is a
menace to himself and to others; and that he
was insane at the time of the commission of
the above crimes and that he is presently
insane.''  App. 6.
After adjudicating a defendant not guilty by
reason of insanity, a trial court must hold a
hearing on the issue of dangerousness.  The law
specifies that ``[i]f the court determines that the
defendant cannot be released without a danger to
others or to himself, it shall order him committed
to . . . [a] mental institution.''  La. Code Crim. Proc.
Ann., Art. 654 (West Supp. 1991).  ```Dangerous to
others' means the condition of a person whose
behavior or significant threats support a reason-
able expectation that there is a substantial risk
that he will inflict physical harm upon another
person in the near future.''  La. Rev. Stat. Ann.
28:2(3) (West 1986) (emphasis added).  ```Dangerous
to self' means the condition of a person whose
behavior, significant threats or inaction sup-
ports a reasonable expectation that there is a
substantial risk that he will inflict physical or
severe emotional harm upon his own person.''
28:2(4).
After holding the requisite hearings, the trial
court in this case ordered Foucha committed to
the Feliciana Forensic Facility.  After his commit-
ment, Foucha was entitled, upon request, to
another hearing six months later and at yearly
intervals after that.  See La. Code Crim. Proc.
Ann., Art. 655(B) (West Supp. 1991).  In addition,
Louisiana law provides that a release hearing
must be held upon recommendation by the superin-
tendent of a mental institution.  See Art. 655(A).-
  In early 1988, Feliciana's superintendent recom-
mended that Foucha be released, and a three-
doctor panel met to review the case.  On March 21,
1988, the panel issued a report pursuant to Art.
656.  The panel concluded that ``there is no
evidence of mental illness.''  App. 10.  In fact, the
panel stated that there was ``never any evidence
of mental illness or disease since admission.''
Ibid. (emphasis added).  Although the panel did not
discuss whether Foucha was dangerous, it recom-
mended to the trial court that he be conditionally
released.
As a result of these recommendations, the trial
court scheduled a hearing to determine whether
Foucha should be released.  Under La. Code Crim.
Proc. Ann., Art. 657 (West Supp. 1991), Foucha
had the burden at this hearing to prove that he
could be released without danger to others or to
himself.  The court appointed two experts (the
same doctors who had examined Foucha at the time
of his original commitment) to evaluate his dan-
gerousness.  These doctors concluded that Foucha
``is presently in remission from mental illness,''
but said that they could not ``certify that he
would not constitute a menace to himself or to
others if released.''  App.  12.  On November 29,
1988, the trial court held the hearing, at which
Foucha was represented by counsel.  The court
concluded that Foucha ``is a danger to himself, and
to others,'' id., at 24, and ordered that he be
returned to Feliciana.

                  II
The Court today concludes that Louisiana has
denied Foucha both procedural and substantive
due process.  In my view, each of these conclu-
sions is wrong.  I shall discuss them in turn.

                   A
What the Court styles a ``procedural'' due pro-
cess analysis is in reality an equal protection
analysis.  The Court first asserts (contrary to
state law) that Foucha cannot be held as an
insanity acquittee once he ``becomes'' sane.  Ante,
at 67.  That being the case, he is entitled to the
same treatment as civil committees.  ``[I]f Foucha
can no longer be held as an insanity acquittee,'' the
Court says, ``he is entitled to constitutionally
adequate procedures [those afforded in civil
commitment proceedings] to establish the grounds
for his confinement.''  Ante, at 7 (emphasis added).
This, of course, is an equal protection argument
(there being no rational distinction between A and
B, the State must treat them the same); the Court
does not even pretend to examine the fairness of
the release procedures the State has provided.
I cannot agree with the Court's conclusion
because I believe that there is a real and legiti-
mate distinction between insanity acquittees and
civil committees that justifies procedural dis-
parities.  Unlike civil committees, who have not
been found to have harmed society, insanity
acquittees have been found in a judicial proceed-
ing to have committed a criminal act.
That distinction provided the ratio decidendi for
our most relevant precedent, Jones v. United
States, 463 U. S. 354 (1983).  That case involved a
man who had been automatically committed to a
mental institution after being acquitted of a
crime by reason of insanity in the District of
Columbia (i. e., he had not been given the proce-
dures afforded to civil committees).  We rejected
both of his procedural due process challenges to
his commitment.  First, we held that an insanity
acquittal justified automatic commitment of the
acquittee (even though he might presently be
sane), because Congress was entitled to decide
that the verdict provided a reasonable basis for
inferring dangerousness and insanity at the time
of commitment.  Id., at 366.  The Government's
interest in avoiding a de novo commitment hearing
following every insanity acquittal, we said,
outweighed the acquittee's interest in avoiding
unjustified institutionalization.  Ibid.  Second, we
held that the Constitution did not require, as a
predicate for the indefinite commitment of insani-
ty acquittees, proof of insanity by ``clear and
convincing'' evidence, as required for civil com-
mittees by Addington v. Texas, 441 U. S. 418 (1979).
There are, we recognized, ``important differences
between the class of potential civil-commitment
candidates and the class of insanity acquittees
that justify differing standards of proof.''  Jones,
463 U. S., at 367.  In sharp contrast to a civil
committee, an insanity acquittee is institutional-
ized only where ``the acquittee himself advances
insanity as a defense and proves that his criminal
act was a product of his mental illness,'' and thus
``there is good reason for diminished concern as
to the risk of error.''  Ibid. (emphasis in original).
``More important, the proof that he committed a
criminal act . . . eliminates the risk that he is
being committed for mere `idiosyncratic behavior.'''
Ibid.  Thus, we concluded, the preponderance of
the evidence standard comports with due process
for commitment of insanity acquittees.  Id., at
368.  ``[I]nsanity acquittees constitute a special
class that should be treated differently from
other candidates for commitment.''  Id., at 370.
The Court today attempts to circumvent Jones by
declaring that a State's interest in treating
insanity acquittees differently from civil commit-
tees evaporates the instant an acquittee ``be-
comes sane.''  I do not agree.  As an initial matter,
I believe that it is unwise, given our present
understanding of the human mind, to suggest that
a determination that a person has ``regained
sanity'' is precise.  ``Psychiatry is not . . . an
exact science, and psychiatrists disagree widely
and frequently on what constitutes mental ill-
ness.''  Ake v. Oklahoma, 470 U. S. 68, 81 (1985).
Indeed,
``[w]e have recognized repeatedly the `uncer-
tainty of diagnosis in this field and the ten-
tativeness of professional judgment.  The only
certain thing that can be said about the
present state of knowledge and therapy re-
garding mental disease is that science has not
reached finality of judgment.'  The lesson we
have drawn is not that government may not act
in the face of this uncertainty, but rather
that courts should pay particular deference
to reasonable legislative judgments.''  Jones,
supra, at 365, n. 13 (quoting Greenwood v.
United States, 350 U. S. 366, 375 (1956); cita-
tions omitted).
In this very case, the panel that evaluated Foucha
in 1988 concluded that there was ``never any
evidence of mental illness or disease since
admission,'' App. 10; the trial court, of course,
concluded that Foucha was ``presently insane,''
Id., at 6, at the time it accepted his plea and sent
him to Feliciana.
The distinction between civil committees and
insanity acquittees, after all, turns not on
considerations of present sanity, but instead on
the fact that the latter have ``already unhappily
manifested the reality of anti-social conduct,''
Dixon v. Jacobs, 138 U. S. App. D. C. 319, 334, 427 F.
2d 589, 604 (1970) (Leventhal, J., concurring).
``[T]he prior anti-social conduct of an insanity
acquittee justifies treating such a person dif-
ferently from ones otherwise civilly committed
for purposes of deciding whether the patient
should be released.''  Powell v. Florida, 579 F. 2d
324, 333 (CA5 1978) (emphasis added); see also
United States v. Ecker, 177 U. S. App. D. C. 31, 50,
543 F. 2d 178, 197 (1976), cert. denied, 429 U. S.
1063 (1977).  While a State may renounce a punitive
interest by offering an insanity defense, it does
not follow that, once the acquittee's sanity is
``restored,'' the State is required to ignore his
criminal act, and to renounce all interest in
protecting society from him.  ``The state has a
substantial interest in avoiding premature
release of insanity acquittees, who have commit-
ted acts constituting felonies and have been
declared dangerous to society.''  Hickey v. Morris,
722 F. 2d 543, 548 (CA9 1983).
Furthermore, the Federal Constitution does not
require a State to ``ignore the danger of `calcu-
lated abuse of the insanity defense.''' Warren v.
Harvey, 632 F. 2d 925, 932 (CA2 1980) (quoting
United States v. Brown, 155 U. S. App. D.C. 402, 407,
478 F. 2d 606, 611 (1973)).  A State that decides to
offer its criminal defendants an insanity defense,
which the defendant himself is given the choice of
invoking, is surely allowed to attach to that
defense certain consequences that prevent abuse.
Cf. Lynch v. Overholser, 369 U. S. 705, 715 (1962)
(``Congress might have considered it appropriate
to provide compulsory commitment for those who
successfully invoke an insanity defense in order
to discourage false pleas of insanity'').
``In effect, the defendant, by raising the
defense of insanity"and he alone can raise
it"postpones a determination of his present
mental health and acknowledges the right of
the state, upon accepting his plea, to detain
him for diagnosis, care, and custody in a
mental institution until certain specified
conditions are met.  . . .  [C]ommitment via the
criminal process . . . thus is more akin to
`voluntary' than `involuntary' civil commit-
ment.''  Goldstein & Katz, Dangerousness and
Mental Illness, Some Observations on the
Decision to Release Persons Acquitted by
Reason of Insanity, 70 Yale L. J. 225, 230
(1960) (footnote omitted).
A State may reasonably decide that the integrity
of an insanity-acquittal scheme requires the
continued commitment of insanity acquittees who
remain dangerous.  Surely, the citizenry would not
long tolerate the insanity defense if a serial
killer who convinces a jury that he is not guilty
by reason of insanity is returned to the streets
immediately after trial by convincing a different
factfinder that he is not in fact insane.
As the American Law Institute has explained:
``It seemed preferable to the Institute to make
dangerousness the criterion for continued
custody, rather than to provide that the
committed person may be discharged or re-
leased when restored to sanity as defined by
the mental hygiene laws.  Although his mental
disease may have greatly improved, [an insani-
ty acquittee] may still be dangerous because
of factors in his personality and background
other than mental disease.  Also, such a stan-
dard provides a means for the control of the
occasional defendant who may be quite danger-
ous but who successfully feigned mental
disease to gain an acquittal.''  Model Penal
Code 4.08, Comment 3, pp. 259260 (1985).
That this is a reasonable legislative judgment is
underscored by the fact that it has been made by
no fewer than 11 state legislatures, in addition to
Louisiana's, which expressly provide that insanity
acquittees shall not be released as long as they
are dangerous, regardless of sanity.
     The Court suggests an alternative ``procedural''
due process theory that is, if anything, even less
persuasive than its principal theory.  ``[K]eeping
Foucha against his will in a mental institution is
improper absent a determination in civil commit-
ment proceedings of current mental illness and
dangerousness.''  Ante, at 7 (emphasis added).  The
Court cites Vitek v. Jones, 445 U. S. 480 (1980), as
support.  There are two problems with this theory.
First, it is illogical: Louisiana cannot possibly
extend Foucha's incarceration by adding the
procedures afforded to civil committees, since it
is impossible to civilly commit someone who is not
presently mentally ill.  Second, the theory is not
supported by Vitek.  Stigmatization (our concern in
Vitek) is simply not a relevant consideration
where insanity acquittees are involved.  As we
explained in Jones: ``A criminal defendant who
successfully raises the insanity defense neces-
sarily is stigmatized by the verdict itself, and
thus the commitment causes little additional harm
in this respect.''  463 U. S., at 367, n. 16; see also
Warren v. Harvey, 632 F. 2d, at 931932.  (This is in
sharp contrast to situations involving civil
committees.  See Addington, 441 U. S., at 425426;
Vitek, supra, at 492494.)  It is implausible, in my
view, that a person who chooses to plead not
guilty by reason of insanity and then spends
several years in a mental institution becomes
unconstitutionally stigmatized by continued
confinement in the institution after ``regaining''
sanity.
In my view, there was no procedural due process
violation in this case.  Articles 654, 655, and 657
of the Louisiana Code of Criminal Procedure, as
noted above, afford insanity acquittees the
opportunity to obtain release by demonstrating
at regular intervals that they no longer pose a
threat to society.  These provisions also afford
judicial review of such determinations.  Pursuant
to these procedures, and based upon testimony of
experts, the Louisiana courts determined not to
release Foucha at this time because the evidence
did not show that he ceased to be dangerous.
Throughout these proceedings, Foucha was repre-
sented by state-appointed counsel.  I see no
plausible argument that these procedures denied
Foucha a fair hearing on the issue involved or
that Foucha needed additional procedural protec-
tions.  See Mathews v. Eldridge, 424 U. S. 319
(1976); Patterson v. New York, 432 U. S. 197 (1977);
cf. Addington, supra, at 427432; Jones, supra, at
363368; Benham v. Ledbetter, 785 F. 2d 1480,
14861488 (CA11 1986).
                     B
The Court next concludes that Louisiana's
statutory scheme must fall because it violates
Foucha's substantive due process rights.  Ante, at
812.  I disagree.  Until today, I had thought that
the analytical framework for evaluating substan-
tive due process claims was relatively straight-
forward.  Certain substantive rights we have
recognized as ``fundamental''; legislation trenching
upon these is subjected to ``strict scrutiny,'' and
generally will be invalidated unless the State
demonstrates a compelling interest and narrow
tailoring.  Such searching judicial review of state
legislation, however, is the exception, not the
rule, in our democratic and federal system; we
have consistently emphasized that ``the Court has
no license to invalidate legislation which it
thinks merely arbitrary or unreasonable.''  Re-
gents of University of Michigan v. Ewing, 474 U. S.
214, 226 (1985) (internal quotation omitted).
Except in the unusual case where a fundamental
right is infringed, then, federal judicial scrutiny
of the substance of state legislation under the
Due Process Clause of the Fourteenth Amendment
is not exacting.  See, e.g., Bowers v. Hardwick, 478
U. S. 186, 191196 (1986).
In striking down Louisiana's scheme as a viola-
tion of substantive rights guaranteed by the Due
Process Clause, the Court today ignores this
well-established analytical framework.  First, the
Court never explains if we are dealing here with a
fundamental right, and, if so, what right.  Second,
the Court never discloses what standard of
review applies.  Indeed, the Court's opinion is
contradictory on both these critical points.
As to the first point: the Court begins its
substantive due process analysis by invoking the
substantive right to ``[f]reedom from bodily
restraint.''  Ante, at 8.  Its discussion then
proceeds as if the problem here is that Foucha, an
insanity acquittee, continues to be confined
after recovering his sanity, ante, at 810; thus,
the Court contrasts this case to United States v.
Salerno, 481 U. S. 739 (1987), a case involving the
confinement of pretrial detainees.  But then,
abruptly, the Court shifts liberty interests.  The
liberty interest at stake here, we are told, is not
a liberty interest in being free ``from bodily
restraint,'' but instead the more specific (and
heretofore unknown) ``liberty interest under the
Constitution in being freed from [1] indefinite
confinement [2] in a mental facility.''  Ante, at 10
(emphasis added).  See also ante, at 1 (O'Connor, J.,
concurring in part and concurring in judgment).  So
the problem in this case is apparently not that
Louisiana continues to confine insanity acquitte-
es who have ``become'' sane (although earlier in the
opinion the Court interprets our decision in Jones
as having held that such confinement is unconsti-
tutional, see ante, at 6), but that under Louisiana
law, ``sane'' insanity acquittees may be held
``indefinitely'' ``in a mental facility.''
As to the second point: ``[a] dispute regarding
the appropriate standard of review may strike
some as a lawyers' quibble over words, but it is
not.''  Metro Broadcasting, Inc. v. FCC, 497 U. S.,
 (1990) (O'Connor, J., dissenting).  The standard
of review determines when the Due Process Clause
of the Fourteenth Amendment will override a
State's substantive policy choices, as reflected
in its laws.  The Court initially says that ``[d]ue
process requires that the nature of commitment
bear some reasonable relation to the purpose for
which the individual is committed.''  Ante, at 7
(emphasis added).  Later in its opinion, however,
the Court states that the Louisiana scheme
violates substantive due process not because it
is not ``reasonably related'' to the State's pur-
poses, but instead because its detention provi-
sions are not ``sharply focused'' or ``carefully
limited,'' in contrast to the scheme we upheld in
Salerno.  Ante, at 10.  Does that mean that the
same standard of review applies here that we
applied in Salerno, and, if so, what is that stan-
dard?  The Court quite pointedly avoids answering
these questions.  Similarly, Justice O'Connor does
not reveal exactly what standard of review she
believes applicable, but appears to advocate a
heightened standard heretofore unknown in our
caselaw.  Ante, at 2 (``It might therefore be per-
missible for Louisiana to confine an insanity
acquittee who has regained sanity if . . . the
nature and duration of detention were tailored to
reflect pressing public safety concerns related
to the acquittee's continuing dangerousness'')
(emphasis added).
To the extent the Court invalidates the Louisi-
ana scheme on the ground that it violates some
general substantive due process right to ``free-
dom from bodily restraint'' that triggers strict
scrutiny, it is wrong"and dangerously so.  To the
extent the Court suggests that Louisiana has
violated some more limited right to freedom from
indefinite commitment in a mental facility (a right,
by the way, never asserted by Foucha in this or
any other court) that triggers some unknown
standard of review, it is also wrong.  I shall
discuss these two possibilities in turn.
                   1
I fully agree with the Court, ante, at 8, and with
Justice Kennedy, ante, at 1, that freedom from
involuntary confinement is at the heart of the
``liberty'' protected by the Due Process Clause.
But a liberty interest per se is not the same thing
as a fundamental right.  Whatever the exact scope
of the fundamental right to ``freedom from bodily
restraint'' recognized by our cases, it certain-
ly cannot be defined at the exceedingly great
level of generality the Court suggests today.
There is simply no basis in our society's history
or in the precedents of this Court to support the
existence of a sweeping, general fundamental
right to ``freedom from bodily restraint'' applica-
ble to all persons in all contexts.  If convicted
prisoners could claim such a right, for example, we
would subject all prison sentences to strict
scrutiny.  This we have consistently refused to
do.  See, e.g., Chapman v. United States, 500 U. S.
"", "" (1991).
The critical question here, then, is whether
insanity acquittees have a fundamental right to
``freedom from bodily restraint'' that triggers
strict scrutiny of their confinement.  Neither
Foucha nor the Court provides any evidence that
our society has ever recognized any such right.
To the contrary, historical evidence shows that
many States have long provided for the continued
institutionalization of insanity acquittees who
remain dangerous.  See, e.g., H. Weihofen, Insanity
as a Defense in Criminal Law 294332 (1933); A.
Goldstein, The Insanity Defense 148149 (1967).
Moreover, this Court has never applied strict
scrutiny to the substance of state laws involving
involuntary confinement of the mentally ill, much
less to laws involving the confinement of insanity
acquittees.  To the contrary, until today we have
subjected the substance of such laws only to very
deferential review.  Thus, in Jackson v. Indiana,
406 U. S. 715, 738 (1972), we held that Indiana's
provisions for the indefinite institutionalization
of incompetent defendants violated substantive
due process because they did not bear any ``reas-
onable'' relation to the purpose for which the
defendant was committed.  Similarly, in O'Connor v.
Donaldson, 422 U. S. 563 (1975), we held that the
confinement of a nondangerous mentally-ill person
was unconstitutional not because the State failed
to show a compelling interest and narrow tailor-
ing, but because the State had no legitimate
interest whatsoever to justify such confinement.
See id., at 575576.  See also id., at 580 (Burger,
C. J., concurring) (``Commitment must be justified on
the basis of a legitimate state interest, and the
reasons for committing a particular individual
must be established in an appropriate proceeding.
Equally important, confinement must cease when
those reasons no longer exist.'') (emphasis added).
Similarly, in Jones, we held (in addition to the
procedural due process holdings described above)
that there was no substantive due process bar to
holding an insanity acquittee beyond the period
for which he could have been incarcerated if
convicted.  We began by explaining the standard
for our analysis: ``The Due Process Clause `re-
quires that the nature and duration of commitment
bear some reasonable relation to the purpose for
which the individual is committed.'''  463 U. S., at
368 (emphasis added) (quoting Jackson, supra, at
738).  We then held that ``[i]n light of the congres-
sional purposes underlying commitment of insanity
acquittees [in the District of Columbia,]'' which we
identified as treatment of the insanity acquitte-
e's mental illness and protection of the acquittee
and society, ``petitioner clearly errs in contend-
ing that an acquittee's hypothetical maximum
sentence provides the constitutional limit for his
commitment.''  463 U. S., at 368 (emphasis added).
Given that the commitment law was reasonably
related to Congress' purposes, this Court had no
basis for invalidating it as a matter of substan-
tive due process.
It is simply wrong for the Court to assert today
that we ``held'' in Jones that ```the committed
acquittee is entitled to release when he has
recovered his sanity or is no longer dangerous.'''
Ante, at 6 (quoting Jones, 463 U. S., at 368).
We specifically noted in Jones that no issue re-
garding the standards for the release of insanity
acquittees was before us.  Id., at 363, n. 11.  The
question we were answering in the part of Jones
from which the Court quotes was whether it is
permissible to hold an insanity acquittee for a
period longer than he could have been incarcerat-
ed if convicted, not whether it is permissible to
hold him once he becomes ``sane.''  As noted above,
our substantive due process analysis in Jones was
straightforward: did the means chosen by Con-
gress (commitment of insanity acquittees until
they have recovered their sanity or are no longer
dangerous) reasonably fit Congress' ends (treat-
ment of the acquittee's mental illness and protec-
tion of society from his dangerousness)?
     In its arguments before this Court, Louisiana
chose to place primary reliance on our decision in
United States v. Salerno, 481 U.S. 739 (1987), in
which we upheld provisions of the Bail Reform Act
of 1984 that allowed limited pretrial detention of
criminal suspects.  That case, as the Court notes,
ante, at 1011, is readily distinguishable.  Insanity
acquittees, in sharp and obvious contrast to
pretrial detainees, have had their day in court.
Although they have not been convicted of crimes,
neither have they been exonerated, as they would
have been upon a determination of ``not guilty''
simpliciter.  Insanity acquittees thus stand in a
fundamentally different position from persons who
have not been adjudicated to have committed
criminal acts.  That is what distinguishes this
case (and what distinguished Jones) from Salerno
and Jackson v. Indiana, 406 U. S. 715 (1972).  In
Jackson, as in Salerno, the State had not proven
beyond a reasonable doubt that the accused had
committed criminal acts or otherwise was danger-
ous.  See Jones, supra, at 364, n. 12.  The Court
disregards this critical distinction, and appar-
ently deems applicable the same scrutiny to
pretrial detainees as to persons determined in a
judicial proceeding to have committed a criminal
act.
If the Court indeed means to suggest that all
restrictions on ``freedom from bodily restraint''
are subject to strict scrutiny, it has (at a
minimum) wrought a revolution in the treatment of
the mentally ill.  Civil commitment as we know it
would almost certainly be unconstitutional; only
in the rarest of circumstances will a State be
able to show a ``compelling interest,'' and one that
can be served in no other way, in involuntarily
institutionalizing a person.  All procedures
involving the confinement of insanity acquittees
and civil committees would require revamping to
meet strict scrutiny.  Thus, to take one obvious
example, the automatic commitment of insanity
acquittees that we expressly upheld in Jones
would be clearly unconstitutional, since it is
inconceivable that such commitment of persons
who may well presently be sane and nondangerous
could survive strict scrutiny.  (In Jones, of
course, we applied no such scrutiny; we upheld the
practice not because it was justified by a compel-
ling interest, but because it was based on rea-
sonable legislative inferences about continuing
insanity and dangerousness.)
                   2
As explained above, the Court's opinion is pro-
foundly ambiguous on the central question in this
case: Must the State of Louisiana release Terry
Foucha now that he has ``regained'' his sanity?  In
other words, is the defect in Louisiana's statuto-
ry scheme that it provides for the confinement of
insanity acquittees who have recovered their
sanity, or instead that it allows the State to
confine sane insanity acquittees (1) indefinitely
(2) in a mental facility?  To the extent the Court
suggests the former, I have already explained why
it is wrong.  I turn now to the latter possibility,
which also is mistaken.
To begin with, I think it is somewhat misleading
to describe Louisiana's scheme as providing for
the ``indefinite'' commitment of insanity acquitte-
es.  As explained above, insanity acquittees are
entitled to a release hearing every year at their
request, and at any time at the request of a
facility superintendent.  Like the District of
Columbia statute at issue in Jones, then, Louisia-
na's statute provides for ``indefinite'' commitment
only to the extent that an acquittee is unable to
satisfy the substantive standards for release.
If the Constitution did not require a cap on the
acquittee's confinement in Jones, why does it
require one here?  The Court and Justice O'Connor
have no basis for suggesting that either this
Court or the society of which it is a part has
recognized some general fundamental right to
``freedom from indefinite commitment.''  If that
were the case, of course, Jones would have in-
volved strict scrutiny and is wrongly decided.
Furthermore, any concerns about ``indefinite''
commitment here are entirely hypothetical and
speculative.  Foucha has been confined for eight
years.  Had he been convicted of the crimes with
which he was charged, he could have been incar-
cerated for 32 years.  See La. Rev. Stat. Ann.
14.60 & 14.94 (West 1986).  Thus I find quite odd
Justice O'Connor's suggestion, ante, at 4, that
this case might be different had Louisiana, like
the State of Washington, limited confinement to
the period for which a defendant might have been
imprisoned if convicted.  Foucha, of course, would
be in precisely the same position today"and for
the next 24 years"had the Louisiana statute
included such a cap.  Thus, the Court apparently
finds fault with the Louisiana statute not be-
cause it has been applied to Foucha in an uncon-
stitutional manner, but because the Court can
imagine it being applied to someone else in an
unconstitutional manner.  That goes against the
first principles of our jurisprudence.  See, e.g.,
Salerno, 481 U.S., at 745 (``The fact that [a deten-
tion statute] might operate unconstitutionally
under some conceivable set of circumstances is
insufficient to render it wholly invalid, since we
have not recognized an `overbreadth' doctrine
outside the limited context of the First Amendme-
nt'').
   Finally, I see no basis for holding that the Due
Process Clause per se prohibits a State from
continuing to confine in a ``mental institution''"t-
he federal constitutional definition of which
remains unclear"an insanity acquittee who has
recovered his sanity.  As noted above, many
States have long provided for the continued
detention of insanity acquittees who remain
dangerous.  Neither Foucha nor the Court present
any evidence that these States have traditionally
transferred such persons from mental institu-
tions to other detention facilities.  Therefore,
there is simply no basis for this Court to recog-
nize a ``fundamental right'' for a sane insanity
acquittee to be transferred out of a mental
facility.  ``In an attempt to limit and guide inter-
pretation of the [Due Process] Clause, we have
insisted not merely that the interest denominated
as a `liberty' be `fundamental' (a concept that, in
isolation, is hard to objectify), but also that it
be an interest traditionally protected by our
society.''  Michael H. v. Gerald D., 491 U. S. 110, 122
(1989) (plurality opinion).
Removing sane insanity acquittees from mental
institutions may make eminent sense as a policy
matter, but the Due Process Clause does not
require the States to conform to the policy
preferences of federal judges.  ``The Court is
most vulnerable and comes nearest to illegitimacy
when it deals with judge-made constitutional law
having little or no cognizable roots in the lan-
guage or design of the Constitution.''  Bowers, 478
U.S., at 194.  I have no idea what facilities the
Court or Justice O'Connor believe the Due Pro-
cess Clause mandates for the confinement of
sane-but-dangerous insanity acquittees.  Pre-
sumably prisons will not do, since imprisonment is
generally regarded as ``punishment.''  May a State
designate a wing of a mental institution or prison
for sane insanity acquittees?  May a State mix
them with other detainees?  Neither the Constitu-
tion nor our society's traditions provides any
answer to these questions.
                   3
``So-called `substantive due process' prevents
the government from engaging in conduct that
`shocks the conscience,' Rochin v. California, 342
U. S. 165, 172 (1952), or interferes with rights
`implicit in the concept of ordered liberty,' Palko
v. Connecticut, 302 U. S. 319, 325326 (1937).''
Salerno, supra, at 746.  The legislative scheme the
Court invalidates today is, at the very least,
substantively reasonable.  With all due respect,
I do not remotely think it can be said that the
laws in question ``offen[d] some principle of
justice so rooted in the traditions and con-
science of our people as to be ranked as funda-
mental.''  Snyder v. Massachusetts, 291 U. S. 97, 105
(1934).  Therefore, in my view, this Court is not
entitled, as a matter of substantive due process,
to strike them down.
I respectfully dissent.
