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Green v. Commissioner of Mental Health

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MAINE SUPREME JUDICIAL COURT					Reporter of Decisions
Decision:	2000 ME 92
Docket:	Ken-99-335
Argued:	January 5, 2000
Decided:	May 17, 2000

Panel:WATHEN, C.J., and CLIFFORD, RUDMAN, DANA, SAUFLEY, ALEXANDER, and
CALKINS, JJ.




VIRGINIA GREEN v. COMMISSIONER OF MENTAL HEALTH AND MENTAL RETARDATION


DANA, J.

	[¶1]  Virginia Green appeals from the denial by the Superior Court
(Kennebec County, Atwood, J.) of her petition for release from the Augusta
Mental Health Institute (AMHI) and from the denial of her motion to alter or
amend the court's judgment.  Green was committed to AMHI on July 10,
1997, after she was found to be not criminally responsible by reason of
mental disease or defect for the killing of her mother.  On appeal, Green
argues that the allocation of the burden of proof by clear and convincing
evidence to insanity acquittees in release proceedings violates her right to
substantive and procedural due process, as well as her right to equal
protection.  She also argues that the court erred as a matter of law when it
applied the statutory criteria for release and that the court's findings of fact
are clearly erroneous.  Because we find that the allocation of the burden of
proof passes constitutional muster and because we find no error in the
court's judgment, we affirm.
I. FACTS
	[¶2]  On November 27, 1996, Virginia Green killed her mother while
in a psychotic and delusional state.  She was placed in AMHI in February
1997 pending the outcome of her trial.  In July 1997, she was found not
criminally responsible by reason of insanity and was automatically committed
to AMHI pursuant to 15 M.R.S.A. § 103 (Supp. 1999).  In October 1997,
Green filed a petition for release to a residential treatment program.  A
hearing was not held on her petition, however, until November 1998
because of various delays.
	[¶3]  Prior to the hearing, Green filed a trial memorandum challenging
the placement of the burden of proof on her as a petitioner and requested
that the burden be placed on the State to justify her continued commitment. 
The court denied her request citing our decision in Taylor v. Commissioner
of Mental Health and Mental Ret., 481 A.2d 139 (Me. 1984), and ruled that
the burden of proof rested with Green to show by clear and convincing
evidence her eligibility for release.
	[¶4]  In addition to the testimony of Green herself, the evidence at the
hearing consisted almost exclusively of testimony by experts regarding
Green's mental health and her potential for dangerousness if released to a
program like the one she proposed in her petition for release.  It is
undisputed that Green suffers from bipolar disorder, also known as manic
depressive illness, and poly-substance abuse, which together are referred to
as a dual diagnosis condition.  It is also undisputed that her illness is
incurable and will last a lifetime.
	[¶5]  Her treating psychiatrist at AMHI, Dr. Walter Christie, testified
that she will always suffer from mental illness, but that she is currently
asymptomatic.  It was Dr. Christie who developed the transition plan that
Green proposed to the court, as well as additional "steps" to the transition
plan that were later provided at the court's request.  Dr. Christie also
testified that Green had a pattern of relapses and hospitalizations, indicating
that she had been hospitalized fifteen to twenty times since 1972.
	[¶6]  Nevertheless, Dr. Christie opined that Green could safely be
returned to the community without a likelihood of harm to herself or others
as long as the proposed treatment plan was followed strictly.  He was
confident that Green could safely make the jump from being restricted to
the grounds of AMHI to a residential treatment program.  Dr. Christie
observed that the combination of Green's substance abuse and her bipolar
illness precipitated her mania that eventually evolved in psychosis and
delusion.  He testified that the events leading up to the death of her mother
represented an extreme state for Green that could have been avoided with
proper treatment and oversight like that provided for in the plan.
	[¶7]  Green testified that in the past she had used drugs and alcohol in
an effort to self-medicate despite her awareness that they precipitated
psychotic and delusional episodes, but that she would never again resort to
those tactics because they had led to the death of her mother.  Green did
acknowledge, however, that her illnesses are prone to relapse.
	[¶8]  Dr. Prudence Baxter, a forensic psychiatrist, prepared an
independent psychiatric examination of Green at AMHI's request and
conducted a general review of Green's case.  She concluded that Green was
not an appropriate candidate for release from the hospital, even in a
supervised living situation like the one proposed.  She expressed concerns
that much of Green's treatment at AMHI had been focussed on gaining
discharge from the hospital and had not sufficiently explored why Green's
most recent episode of psychosis had resulted in such an extreme outcome. 
She was also concerned about Green's anti-anxiety medication that had
highly addictive properties given her diagnosis of poly-substance abuse. 
Lastly, she indicated that she had not seen a residential treatment plan like
the one proposed implemented in a forensic setting in the absence of any
data regarding a candidate's responses to more incremental increases in
privileges.
	[¶9]  Dr. Ann Bower, the clinical director for the Department of
Mental Health, Mental Retardation and Substance Abuse Services, expressed
similar concerns regarding the absence of demonstrable evidence that
Green was ready for such a reduction in supervision.  She indicated that
such plans, known as "out-patient commitment plans," are rare in Maine
because the State lacks an effective enforcement mechanism in the event of
a breakdown in compliance.  Dr. Bower also had concerns regarding
analgesics that Green had been prescribed because of their addictive
qualities.
	[¶10]  Following the testimony, the court issued an order in which it
denied Green's petition for release, but noted that a higher level of
privileges might be appropriate for Green.  Green then filed a motion to
amend the judgment, seeking an order granting off-grounds privileges.  The
State opposed the motion and submitted an institutional report
recommending off-grounds privileges of a more circumscribed nature.  The
court denied Green's motion to amend the judgment and accepted the
report's recommendation, approving the increased privileges it outlined
including the more limited off-grounds privileges.  Green then filed a notice
of appeal.
II. THE BURDEN OF PROOF
	[¶11]  If a defendant is determined to be not criminally responsible by
reason of mental disease or defect pursuant to 17-A M.R.S.A. § 39 (Supp.
1999), the person is automatically committed to the custody of the
Commissioner of Mental Health.  See 15 M.R.S.A. § 103 (Supp. 1999). 
Generally, the State must carry the burden beyond a reasonable doubt that
the defendant engaged in conduct constituting a crime after which the
burden shifts to the defendant to prove lack of criminal responsibility by
reason of mental disease or defect by a preponderance of the evidence.{1}  See
17-A M.R.S.A. §§ 39 & 40 (1983 & Supp. 1999).  The statute governing
release of insanity acquittees, however, does not provide for a standard of
proof, nor does it provide on whom the burden of proof rests.  See 15
M.R.S.A. § 104-A (Supp. 1999).  As a result, we have been forced to make
that determination in the past.
	[¶12]  In State v. Shackford, 262 A.2d 359 (Me. 1970), we determined
that the trial court had correctly placed the burden on the insanity acquittee
to prove beyond a reasonable doubt that he was qualified for release into the
community in a proceeding on a petition for release.  Id. at 365-66.  In
1984, we reconsidered our decision in Shackford and determined that,
while the burden should continue to rest with the insanity acquittee, see
Taylor, 481 A.2d at 144 n.6, the degree of proof required should be clear
and convincing evidence, see id. at 149.  Compare 18 U.S.C.A. § 4243(d)
(1985 & Supp. 1999) (placing burden on insanity acquittees by clear and
convincing evidence when underlying offense involved serious bodily injury
or serious damage to property).  We explicitly elected not to decide,
however, the constitutionality of the required degree of proof, as the parties
did not have an opportunity to brief the issue.  Id. at 154.  Green now asks us
to address, inter alia, the constitutionality of placing the burden of proof on
insanity acquittees by clear and convincing evidence in proceedings
regarding petitions for release and to reconsider our holding in Taylor.

A.  Substantive Due Process

	[¶13]  Green argues that placing the burden on her to show by clear
and convincing evidence that she is either no longer mentally ill or no
longer harbors a potential for dangerousness violates her right to substantive
due process provided by the Maine and United States Constitutions.{2}  We
conclude that placing such a burden on an insanity acquittee in release
proceedings neither offends common concepts of ordered liberty, nor is
such an arbitrary and wrongful government action that it violates either the
Maine or United States constitutions.
	The United States Supreme Court has stated:
Our established method of substantive-due-process analysis has
two primary features:  First, we have regularly observed that the
Due Process Clause specially protects those fundamental rights
and liberties which are, objectively, deeply rooted in this
Nation's history and tradition, and implicit in the concept of
ordered liberty, such that neither liberty nor justice would exist
if they were sacrificed.  Second, we have required in substantive-
due-process cases a careful description of the asserted
fundamental liberty interest. Our Nation's history, legal
traditions, and practices thus provide the crucial guideposts for
responsible decisionmaking that direct and restrain our
exposition of the Due Process Clause.
Washington v. Glucksberg, 521 U.S. 702, 720-721 (1997) (internal quotation
marks and citations omitted).  When a state infringes on one of these
fundamental rights or liberties, the infringement must be narrowly tailored
to serve a compelling government interest.  See id. at 721 (citation
omitted).  Additionally, the Court has stated, "the Due Process Clause
contains a substantive component that bars certain arbitrary, wrongful
government actions regardless of the fairness of the procedures used to
implement them."  Foucha v. Louisiana, 504 U.S. 71, 80 (1992) (internal
quotation marks and citations omitted).
	[¶14]  Green relies heavily on Foucha for her proposition that the
allocation and degree of proof in a release proceeding violates substantive
due process.  However, as the United States Supreme Court has
admonished, we first must have a careful description of the asserted
fundamental interest.  In Foucha, an insanity acquittee challenged a
Louisiana statute that allowed for the indefinite commitment of individuals
who although dangerous, were no longer mentally ill.  Id. at 73.  The Court
determined that a statute that allowed for the indefinite confinement of an
individual who the State conceded was no longer mentally ill simply because
he could not prove that he was no longer a danger to society was the kind of
arbitrary and wrongful government conduct that substantive due process
protection guards against.  See id. at 80-83.  In other words, individuals who
are not mentally ill and who have not been found guilty of any crime have a
fundamental interest in being free from indefinite confinement by the
government and simply showing that they pose a danger to society is not a
constitutionally sufficient justification for impinging on that fundamental
interest.  In this case, Green is merely challenging the allocation and
standard of proof in a release proceeding, not the basis for her confinement.
	[¶15]  It is well established that the State may confine someone who is
both mentally ill and who poses a danger to society.  See Jones v. United
States, 463 U.S. 354, 370 (1983) ("when a criminal defendant establishes
by a preponderance of the evidence that he is not guilty of a crime by reason
of insanity, 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"). 
Green does not dispute that she may continue to be confined on that basis,
rather she argues that placing the burden on her in a release proceeding to
prove by clear and convincing evidence that one of these two requirements
is no longer met violates a fundamental liberty interest.
	[¶16]  Green cites no authority, and we find none, that stands for the
proposition that once an individual has been properly committed, that
individual possesses a substantive due process right to be free from bearing
the burden of proof in subsequent release proceedings.  Again, we stress
that Green is not arguing that her continued confinement is an arbitrary and
wrongful governmental action; as someone who has been adjudged both
mentally ill and dangerous, she does not possess a fundamental right to be
free from confinement.  Rather, she merely argues that the allocation of the
burden of proof is arbitrary and wrongful government action.  We do not
agree, however, that placing the burden on an insanity acquittee in a release
proceeding is somehow repugnant to our notion of ordered liberty;
therefore, doing so does not violate Green's right to substantive due
process.{3}

B.  Procedural Due Process

	[¶17]  Green also argues that the placement of the burden and degree
of proof in release proceedings does not comport with her right to
procedural due process. The first step in procedural due process analysis is
to identify whether there is an interest to be protected.  See Matthews v.
Eldridge, 424 U.S. 319, 335 (1976).  Courts have generally determined that
release proceedings implicate a liberty interest on the part of insanity
acquittees.  See, e.g., United States v. Phelps, 955 F.2d 1258, 1266 (9th Cir.
1992) (holding that federal statute placing burden on insanity acquittees to
prove eligibility for release did not violate due process), cert. denied, 504
U.S. 989 (1992); United States v. Wallace, 845 F.2d 1471, 1473 (8th Cir.
1988) (also holding statute did not violate procedural due process), cert.
denied, 488 U.S. 845 (1988).
	[¶18]  Once a protected interest is established, that interest receives
constitutionally required procedural protection.  See Vitek v. Jones, 445
U.S. 480, 492 (1980).  To determine whether a certain procedure comports
with due process, courts look to three factors:  the private interest affected,
the risk of error inhering in the procedure, and the government interest in
the given procedure.  See Matthews, 424 U.S. at 335.  While courts have
recognized the liberty interest at stake for the acquittee, i.e., avoiding
continued confinement, see Wallace, 845 F.2d at 1474, the United States
Supreme Court noted in Jones that insanity acquittees experience a
diminished deprivation of liberty when compared to civil committees
because they have already assumed the social stigma associated with
commitment by raising the insanity defense themselves.  Jones, 463 U.S. at
367, n.16.
	[¶19]  The Court also noted that, for purposes of initial automatic
commitment of insanity acquittees, the finding beyond a reasonable doubt
that the acquittee committed a crime is a sufficient indication of
dangerousness and that an insanity acquittal supported an inference of
continuing mental illness.  See id. at 365-66.  The Court noted that this
mitigated the risk of error generally, as compared to civil commitment
proceedings, and that it eliminated altogether the risk that an individual was
being confined merely for idiosyncratic behavior, a legitimate concern in the
civil commitment context.  See id. at 367.  Furthermore, continuing to place
the burden on the acquittee regarding issues of mental health at release
proceedings subsequent to commitment places the burden on the individual
with the best ability to collect and present evidence on those matters.  In
addition, although an insanity acquittee certainly has an interest in avoiding
erroneous continuation of confinement, the acquittee also has an interest in
avoiding an erroneous release that may lead to personal harm and harm to
others.
	[¶20]  Furthermore, the State clearly has an interest, for reasons of
public safety, in avoiding erroneous release.  See Wallace, 845 F.2d at 1474
("[T]he government's interest in preventing the premature release of
persons who have already proven their dangerousness to society . . .
outweighs the interest in avoiding continued confinement of an acquittee."). 
This interest merits a heightened degree of proof for release.  The State also
has an interest in avoiding duplicative hearings in which issues established
during the criminal phase leading up to commitment are relitigated, see
Jones, 463 U.S. at 366, and insanity acquittees have already gathered much
of the relevant information by virtue of their carrying the original burden in
the criminal proceedings.  Placing the risk of error with the acquittee in
release proceedings does not appear to strike an improper balance among
these competing interests.   Cf. Benham v. Ledbetter, 785 F.2d 1480, 1491-
92 (11th Cir. 1986).  Therefore, the placement and the degree of the
burden of proof does not violate procedural due process.

C.  Equal Protection

	[¶21]  Green argues that the disparity in the allocation and degree of
proof at release proceedings for civil committees and those for insanity
acquittees violates her right to equal protection guaranteed by the Maine
and United States Constitutions.{4}  We have noted previously, "[i]f a
challenged statute involves neither a fundamental right nor a suspect class,
different treatment accorded to similarly situated persons need only be
rationally related to a legitimate state interest."  See School Admin. Dist. No.
1, 659 A.2d at 857; see also FCC v. Beach Communications, Inc., 508 U.S.
307, 313 (1993) (noting that in areas of social policy, if neither a
fundamental right nor suspect class is involved, a classification must be
upheld if there is "any reasonably conceivable state of facts that could
provide a rational basis for the classification").
	[¶22]  Allocating the burden of proof to insanity acquittees by clear
and convincing evidence in release proceedings, while not doing so to civil
committees, does not impinge on a fundamental right, nor are insanity
acquittees considered members of a suspect classification, therefore, strict
scrutiny does not apply.  Rather, we must determine whether similarly
situated individuals are being treated differently and whether there is a
rational basis for it.  See City of Cleburne, Texas v. Cleburne Living Center,
473 U.S. 432, 439 (1985).  There is a good argument that insanity
acquittees and individuals civilly committed are not similarly situated for
purposes of equal protection analysis because of the difference in
circumstances giving rise to their commitment, see, e.g., Glatz v. Kort, 807
F.2d 1514, 1522 (10th Cir. 1986); Hartman v. Summers, 878 F. Supp. 1335,
1346 (D.C. Cal. 1995).  As the United States Supreme Court noted in Jones,
there is a "widely and reasonably held view that insanity acquittees
constitute a special class that should be treated differently . . . ."  Jones, 463
U.S. at 370.  Even if we assume, however, that they are similarly situated
there is a rational basis to justify the differing procedures at their respective
release proceedings.
	[¶23]  Insanity acquittees have previously demonstrated their
dangerousness to the community.  The danger posed by civil committees is
more speculative.  This distinction does not change once commitment has
taken place.  As a result, insanity acquittees pose an increased risk to society
once they are released and this provides a rational basis for the disparity in
treatment.  Cf. Francis S. v. Stone, 995 F. Supp. 368, 385 (S.D.N.Y. 1998). 
Therefore, the release procedures for insanity acquittees do not violate their
right to the equal protection of the law.
	[¶24]  Because the placement and the degree of the burden of proof in
release proceedings do not violate insanity acquittees' rights to due process
and equal protection, we conclude that our ruling in Taylor is
constitutionally sound.  Therefore, our decision in that case will remain
undisturbed.  The Superior Court properly adhered to Taylor in the hearing
on Green's petition for release.


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