Full opinion text
ORDER HAROLD L. MURPHY, District Judge. I INTRODUCTION The named plaintiffs in this class action are presently confined in mental hospitals in the State of Georgia following their acquittal of criminal charges by reason of insanity. They challenge the procedures which led to their initial commitment and which govern their efforts to obtain release. Jurisdiction is founded on 28 U.S.C. § 1343(3) and 28 U.S.C. §§ 2201, and 2202. The class was certified on September 2, 1980 pursuant to Fed.R.Civ.P. 23(b)(2), as consisting of “all persons who are, or will be, confined in mental hospitals pursuant to Ga.Code § 27-1503 (Ga.Laws 1977, pp. 1293, 1295-96, Sec. 2) following findings of not guilty by reason of insanity.” Defendant Joe Edwards is the chief executive officer and Commissioner of the Department of Human Resources. Defendant John Branning is the Superintendent of Northwest Georgia Regional Hospital in Rome, Georgia. Presently pending is plaintiffs’ motion for a preliminary injunction. A hearing was held on August 25 at which the plaintiffs presented one witness, a professor of psychiatry at Emory University, Dr. Lloyd T. Baccus. The Court has examined the defendants’ answers to plaintiffs’ interrogatories, the deposition of Dr. Timothy Bullard, a clinical psychologist and director of forensic services at Northwest Regional Hospital, as well as the testimony of Dr. Baccus. The scholarly briefs submitted by counsel for both parties have proved invaluable to the Court in deciding the difficult questions presented in this case. II STATEMENT OF THE CASE In order for the Court to grant preliminary injunctive relief, the plaintiffs must demonstrate (1) a substantial likelihood that they will prevail on the merits; (2) a substantial threat that they will suffer irreparable injury if the injunction is denied; (3) that the injury to the plaintiffs outweighs any potential harm the injunction may cause the defendants; and (4) that granting the preliminary injunction will not disserve the public interest. Camenisch v. University of Texas, 616 F.2d 127, 130 (5th Cir. 1980); Morgan v. Fletcher, 518 F.2d 236, 239 (5th Cir. 1975). The plaintiffs challenge the procedures for the commitment and release of persons found not guilty of criminal offenses by reason of insanity (hereinafter “insanity-acquitees”) as violative of the due process and equal protection guarantees of the Fourteenth Amendment. The procedures are set out in Ga.Code § 27-1503, but must be read in conjunction with the interpretive gloss which appellate courts of Georgia have read into the statute. In particular, the following cases must be consulted to grasp the substance of § 27-1503: Clark v. State, 245 Ga. 629, 266 S.E.2d 466 (1980); Skelton v. Slaton, 243 Ga. 426, 254 S.E.2d 704 (1979); Pennewell v. State, 148 Ga.App. 611, 251 S.E.2d 832 (1979); Pitts v. State, 151 Ga.App. 691, 261 S.E.2d 435 (1979); Dubose v. State, 148 Ga.App. 9, 251 S.E.2d 15 (1978). Following a finding of not guilty by reason of insanity, the trial court retains jurisdiction over the insanity-acquitee and inquires into the present mental state of the person, and “upon a showing of good cause by the prosecutor” may order such person to be confined to a mental hospital for not less than thirty days. In fact, the commitment is for an indefinite period of time since the State does not initiate a hearing to determine the current mental state of the insanity-acquitee. To secure release, the erstwhile defendant, now patient, or the hospital, must petition the committing court. A petition cannot be entertained until the initial thirty day period has elapsed, and not within twelve months of any prior petition. A valid petition will set in motion a hearing at which the sole issue is whether the insanity-acquitee meets the criteria for civil commitment under the Georgia Mental Health Code, Ga. Code Ch. 88-5 or 88-25. A full panoply of rights are guaranteed the insanity-acquitee: (1) notice of his right to request a hearing; (2) right to counsel, and appointed counsel if the insanity-acquitee cannot afford to retain his own; (3) right to confront and cross-examine witnesses and to offer evidence; (4) right to subpoena witnesses and to require testimony to be given in person or by deposition from any physician upon whose evaluation the decision may rest; (5) right to have established an individualized plan specifically tailored to the person’s treatment needs; (6) right to be examined by a physician of his own choosing (at his own expense); and (7) right to have representatives or guardians ad litem appointed in his behalf. Clark, supra, 245 Ga. at 642-43, 266 S.E.2d 466. These rights are also provided to M.H.C. committees. Ga. Code § 88-506.-2; § 88-501(u); § 88-501(w); § 88-502.18. The release hearing for insanity-acquitees differs from the commitment and release hearings for M.H.C. committees in a number of ways: (1) insanity-acquitees are presumed to be mentally ill; (2) the burden of proof is cast upon the insanity-acquitee seeking release; (3) the state is not required to prove by clear and convincing evidence that the insanity-acquitee meets the Chapter 88-5 criteria for continued commitment; (4) once an application has been denied, another cannot be filed within one year; (5) the release of an insanity-acquitee must be ordered by the committing court. Ga. Code § 27-1503(b); Clark, supra; Pennewell, supra; Pitts, supra. M.H.C. committees are not encumbered with any of these burdens. The State must prove by clear and convincing evidence and without the aid of a presumption that the M.H.C. committee is mentally ill and in need of treatment. The State must “recommit” the individual within six months of the initial commitment, and at twelve month intervals thereafter. The hospital may release the patient at any time without any judicial approval. Ga. Code §§ 88-501(u); 88-506.2; 88-506.5; 88-506.6. Although the Court must resolve a number of subsidiary questions, nine fundamental issues are posed by this litigation. (1) Is the State constitutionally required to initiate a hearing prior to commitment of the insanity-acquitee? (2) At this commitment hearing, does the constitution require the State to bear the burden of proof, and if so, what is the standard of proof? (3) Is it constitutional to invoke a presumption of insanity at this hearing? (4) May the admissibility or weight of evidence be different at an M.H.C. hearing than at an insanity-acquitee hearing? (5) May the State adopt different release procedures for the two classes of patients? (6) Does the constitution permit the one-per-year limitation on release petitions? (7) Does the Constitution require the State to bear the burden of proof at release hearings? (8) Is it constitutional to prohibit the hospital from transferring the insanity-acquitee to another facility without judicial approval? (9) If there are constitutional infirmities, what relief, if any, is proper with respect to currently confined insanity-acquitees? Ill LIKELIHOOD OF SUCCESS ON THE MERITS A STATE INITIATED COMMITMENT HEARING On the 20th day of January 1843, Daniel M’Naghten shot Edward Drummond in the back. Mr. Drummond languished until the 25th of April and then died. Daniel M’Naghten’s Case, 10 Cl. & F. 200, 8 Eng. Rep. 720 (H.L. 1843). M’Naghten was tried and acquitted by reason of insanity. He languished in a mental hospital for twenty-two years, without the benefit of any further proceedings, until he died in 1865. No court ever determined whether he was presently mentally ill. As of 1968, only three states statutorily required a civil commitment hearing prior to the confinement of an insanity-acquitee. Note, Commitment Following Acquittal By Reason of Insanity and the Equal Protection of the Laws, 116 U.Pa.L.Rev. 924 n. 1 (1968) (hereinafter “Commitment Following Acquittal”) (Ariz.R.Crim.P. 288 (1956); La. Rev.Stat.Ann. § 28:59 (1951) (misdemeanors only); Wyo.Stat.Ann. § 7-241(b) (Supp. 1965)). In 1968, the Court of Appeals for the District of Columbia decided Bolton v. Harris, 395 F.2d 642 (D.C.Cir.1968). Chief Judge Bazelon found the D.C. statute by which all acquitees were automatically committed for an indefinite period of time unconstitutional on equal protection grounds: “[Pjersons found not guilty by reason of insanity must be given a judicial hearing with procedures substantially similar to those in civil commilgnent proceedings.” Id. at 651. The Georgia insanity-acquitee statute specifically provides that the criteria for the commitment of M.H.C. committees apply to the commitment of insanity-acquitees. The procedures utilized to commit an M.H.C. patient are not specifically made applicable to insanity-acquitees. M.H.C. committees can be committed only after a hearing has been held to determine whether the person meets the commitment standards, unless the M.H.C. committee waives his right to a hearing in writing. Ga. Code § 88-506.2. In Clark v. State, 245 Ga. 629, 266 S.E.2d 466 (1980) the Supreme Court of Georgia decided that the mere availability of a hearing after initial commitment satisfies the constitutional requirements of due process and equal protection. Clark held that the insanity-acquitee’s failure to apply for a hearing constituted a waiver of his constitutional rights. The- equal protection component of the Bolton Court’s analysis was derived principally from the Supreme Court’s decision in Baxstrom v. Herold, 383 U.S. 107, 86 S.Ct. 760, 15 L.Ed.2d 620 (1966) where a New York statute which provided for the commitment of prisoners to mental hospitals was held unconstitutional. In New York, a convicted prisoner could be transferred to a mental hospital with few of the procedural safeguards which were afforded other committees. The Court acknowledged that there were differences between prisoners and non-prisoners, and that the former’s prior criminal conduct was evidence of dangerousness. But the fact that a prisoner had engaged in criminal conduct in the past did not justify diluted procedures for his present commitment: Classification of mentally ill persons as either insane or dangerously insane of course may be a reasonable distinction for purposes of determining the type of custodial or medical care to be given, but it has no relevance ¿whatever in the context of the opportunity to show whether a person is mentally ill at all... . Id. at 111, 86 S.Ct. at 762. The Bolton Court’s extension of the Baxstrom principle to insanity-acquitees was cited approvingly in the subsequent Supreme Court case of Jackson v. Indiana, 406 U.S. 715, 724, 92 S.Ct. 1845, 1851, 32 L.Ed.2d 435 (1972), where the Indiana scheme of committing persons found incompetent to stand trial for an indefinite period of time without a civil commitment hearing was found unconstitutional on equal protection and due process grounds. The fact that insanity-acquitees have been through a trial which determined that they committed an antisocial act, but were not culpable because of their mental state at the time the act was committed, does not obviate the need for a mandatory, state-initiated pre-commitment hearing. First, the lodestar of the M’Naghten defense is that the defendant was not accountable “at a particular moment for a particular act.” G. Fletcher, Rethinking Criminal Law, § 10.4, p. 838 (1978); A. Goldstein, The Insanity Defense, 45-67 (1967). The acquitee’s mental state at the time of trial is not an issue at the trial. Second, M.H.C. commitment relies on factors which are foreign to the M’Naghten defense. Cf. Powell v. Florida, 579 F.2d 324, 330 (5th Cir. 1978). The M.H.C. criteria are (1) mental illness and (2) substantial risk of imminent harm as manifested by recent overt acts or threats, or inability to care for oneself creating an imminently life-endangering crisis. Ga. Code § 88-501(v). The M’Naghten test requires only the absence of mental capacity to distinguish between right and wrong in relation to the otherwise criminal act-an act which is not necessarily a manifestation of the likelihood of imminent harm. Ga. Code § 26-702. Numerous courts have endeavored to rationalize the automatic pre-hearing commitment of insanity-acquitees despite the substantive difference between the insanity defense and the criteria for the commitment of non-insanity-acquitees. In Chase v. Kearns, 278 A.2d 132 (Me.1971), for example, the Court explained the absence of a hearing prior to commitment as a function of the presumption which operated to the detriment of the insanity-acquitee to the effect that a mental state once proved is presumed to persist. Additionally, the prehearing commitment was held to reflect a wise legislative policy which required the insanity-acquitee to be evaluated by the hospital staff prior to his release petition, in the interest of public safety. These rationales also convinced the California Supreme Court in In re Franklin, 7 Cal.3d 126, 101 Cal.Rptr. 553, 496 P.2d 465 (1972) and In re Slayback, 209 Cal. 480, 288 P. 769 (1930), to uphold the constitutionality of its prehearing commitment statute. The Missouri Supreme Court in State v. Kee, 510 S.W.2d 477 (Mo.1974), and the Wisconsin Supreme Court in State ex rel. Schopf v. Schubert, 45 Wis.2d 644, 173 N.W.2d 673 (1970), similarly were persuaded that no hearing need precede the commitment of an insanity-acquitee. The reasoning of these decisions is contaminated with a basic flaw. The presumption of continued insanity is a ubiquitous concept which serves to justify many of the procedures which are the subject of this litigation. Whatever the presumption’s validity may be in other contexts, it provides not even a kernel of justification for depriving the insanity-acquitee of his right to a pre-commitment hearing. In short, that which is presumed is insufficient to justify commitment at all, to say nothing of commitment without a hearing. What is presumed is the continuity of the mental state earlier established-the mental incapacity to distinguish between right and wrong. In Georgia, this simple finding does not suffice to meet the criteria for M.H.C. commitment. The second rationale-that the state has an interest in committing the individual to enable psychiatrists to evaluate his current mental state proves too little and too much. Too little because the psychiatrists are given an opportunity to evaluate the insanityacquitee during the thirty-day preliminary period. The plaintiffs have explicitly refrained from challenging the constitutionality of the observation period. When this period elapses, however, the justification vanishes-there is no longer any reason why the State should not initiate a hearing as it does with M.H.C. committees. The argument proves too much because in Wisconsin, when Schopf was decided, in Missouri, when Kee was decided, and in Maine, when Chase was decided, the insanity-acquitee could apply for his release the day he was committed. There was no mandatory hiatus during which the insanity-acquitee was barred from applying for his release. Schopf, supra, 173 N.W.2d at 678; Kee, supra, at 483; Chase, supra, at 138. Cf. In re Lewis, 403 A.2d 1115, 1119 (Del.Super.1979). The 30 day observation period is constitutionally permissible, and is sufficient to safeguard the public safety while the hospital staff conducts the necessary evaluation: It is hardly asking too much to require that a defendant who is absolved from punishment by society because of his mental condition at the time of the criminal act should accept some restraint on his liberty by confinement in a hospital for such period as is required to determine whether he has recovered and whether he will be dangerous if released. Ragsdale v. Overholser, 281 F.2d 943, 949 (D.C.Cir. 1960). On equal protection grounds, then, there is no rational explanation why insanity-acquitees should not be guaranteed a state-initiated hearing to determine their present mental state. People v. McQuillan, 392 Mich. 511, 221 N.W.2d 569 (1974); People v. McNelly, 371 N.Y.S.2d 538 (Sup.Ct 1975); State v. Krol, 68 N.J. 236, 344 A.2d 289 (1975); State v. Wilcox, 92 Wash.2d 610, 600 P.2d 561 (1979); State v. Alto, 589 P.2d 402 (Alaska 1979); State v. Clemons, 110 Ariz. 79, 515 P.2d 324 (1973); Cf. Cameron v. Mullen, 387 F.2d 193, 201 (D.C.Cir.1967). Two states have held that even the preliminary observation period violates the equal protection clause. Wilson v. State, 259 Ind. 375, 287 N.E.2d 875, 881 (1972) (“If the State is concerned about the potential danger to the defendant or the community in the event of an acquittal upon the criminal charge, the procedure for civil commitment should be commenced ... in advance of the verdict.”); State ex rel. Kovach v. Schubert, 64 Wis.2d 612, 219 N.W.2d 341 (1974) (overruling Schopf, supra). This Court holds only that equal protection requires a hearing when the 30 day observation period ends. Due process requires no less. In State v. Krol, 68 N.J. 236, 344 A.2d 289 (1975) the Court recognized that the State’s reliance on the generalization that insanity-acquitees are dangerous and thus not entitled to a state-initiated hearing violated due process: [The State’s argument] does not rationally establish that any particular individual in the class should be confined even if he is not dangerous.... The decisive consideration where personal liberty is involved is that each individual’s fate must be adjudged on the facts of his own case, not on the general characteristics of a ‘class’ to which he may be assigned. Id. at 299. In Bolton, Chief Judge Bazelon found a similar due process violation in the D.C. automatic commitment statute. The foundation for the holding was Specht v. Patterson, 386 U.S. 605, 87 S.Ct. 1209, 18 L.Ed.2d 326 (1967) where the Supreme Court held that a defendant convicted under Colorado law for “indecent liberties” could not be given an indeterminate sentence under the Colorado Sex Offenders Act without a full hearing. The fact that the defendant’s criminal trial was replete • with due process protections was beside the point since commitment under the Sex Offender’s Act required distinct findings of fact. Similarly, the commitment of an insanity-acquitee requires distinct findings. Powell, supra, at 330; Bolton, supra, at 650. Specht emphasized that invoking the Sex Offender’s Act “means the making of a new charge leading to criminal punishment.” Specht, supra, 386 U.S. at 610, 87 S.Ct. at 1212. While the commitment of an insanity-acquitee is not a “criminal punishment,” the label is of no constitutional significance. Cf., In re Gault, 387 U.S. 1, 87 S.Ct. 1428, 18 L.Ed.2d 527 (1967). The confinement of an individual in a psychiatric hospital involves a “massive curtailment of liberty.” Humphrey v. Cady, 405 U.S. 504, 509, 92 S.Ct. 1048, 1052, 31 L.Ed.2d 394 (1971); Vitek v. Jones, 445 U.S. 480, 491, 100 S.Ct. 1255, 1262, 63 L.Ed.2d 552 (1980); Addington v. Texas, 441 U.S. 418, 425-26, 99 S.Ct. 1804, 1809, 60 L.Ed.2d 323 (1979). The fact that the commitment, in part, is for rehabilitative purposes does not vitiate this Court’s scrutiny: Experience should teach us to be most on our guard to protect liberty when the government’s purposes are beneficent. . .. The greatest dangers to liberty lurk in insidious encroachment by men of zeal, well-meaning but without understanding. Olmstead v. United States, 277 U.S. 438, 479, 48 S.Ct. 564, 572, 72 L.Ed. 944 (1928) (Brandéis, J. dissenting). In Fasulo v. Arafeh, 173 Conn. 473, 378 A.2d 553 (1977), the Connecticut Supreme Court invalidated the Connecticut procedure for the release of non-insanity-acquitees. The Court’s analysis applies in this situation as well: [T]o require a patient to initiate judicial review of his confinement . . . ignores the practical considerations.... Briefly, these include the difficulties of overcoming an isolated environment to initiate and coordinate a challenge to one’s confinement. For instance we cannot assume that friends and allies will always be available to secure counsel and marshal evidence on the patient’s behalf.... [T]hough the Statute provides for annual notice to patients of their right to a hearing, the burden of requesting and, therefore, initiating review remains with the patient. The state seeks to justify this procedure by arguing that allowing the patient to choose whether to have a hearing will avoid unnecessary judicial proceedings. We doubt whether this rationale is adequate since it ignores the practical difficulties of requiring a mental patient to overcome the effects of his confinement, his closed environment, his possible incompetence and the debilitating effects of drugs or other treatment on his ability to make a decision which may amount to the waiver of his constitutional right to a review of his status. Id. at 557. The defendants argue that the “elective” nature of the commitment hearing is reasonable. The failure of an insanity-acquitee to apply for release constitutes a waiver which is not offensive to the Constitution, they contend. Cf. Clark v. State, supra, 245 Ga. at 641, 266 S.E.2d 466. This argument fails to address the equal protection implications. Regardless of how reasonable this scheme may be, it is not the procedure which applies to M.H.C. committees. There is no relevant difference between M.H.C. committees and insanity-acquitees offered by the defendants to explain the difference in procedure. Any difference in the treatment of these two groups must be anchored in a relevant difference in the persons affected. Furthermore, it violates due process to infer a waiver from the patient’s inaction. As indicated by the Fasulo decision, the patient’s circumstances are not conducive to the assertion of his rights. As one commentator observes: Although many states permit courts to presume waivers of various commitment rights by a person’s failure to affirmatively seek their protections, given that the individual has been alleged to be mentally ill, these presumptions seem insufficient to assure the valid waiver of a constitutional right. Cf. Miranda v. Arizona, 384 U.S. 436, [86 S.Ct. 1602, 16 L.Ed.2d 694] (1966); Heryford v. Parker, 396 F.2d 393 (10th Cir. 1968). Like waiver of rights in criminal cases or emergency preliminary hearings, waiver of rights in full commitment hearings should be accomplished affirmatively, on the open record, and should be voluntary and knowing. In order to assure that valid waivers occur, the right to counsel should not be waivable, and the waiver of other important rights should be carefully scrutinized by the court, perhaps in a manner similar to the acceptance of guilty pleas in criminal cases. Legal Rights of Mentally Disabled Persons, Practicing Law Institute, Vol. I, p. 265 (1979); Cf. Johnson v. Zerbst, 304 U.S. 458, 464, 58 S.Ct. 1019, 1023, 82 L.Ed. 1461 (1938); Fasulo v. Arafeh, 173 Conn. 473, 378 A.2d 553, 557 (Conn.1977); Fed.R.Crim.P. 11. In Vitek v. Jones, 445 U.S. 480, 493-94, 100 S.Ct. 1254, 1264, 63 L.Ed.2d 552 (1980) the Court held: A criminal conviction and sentence of imprisonment extinguish an individual’s right to freedom from confinement for the term of his sentence, but they do not authorize the State to classify him as mentally ill and to subject him to involuntary psychiatric treatment without affording him additional due process protections. The Court held the prisoner must be afforded, at a minimum, an adversary hearing to determine his mental state at the time of the proposed commitment. If a prisoner is entitled to this protection, it follows ineluctably that a person acquitted of criminal charges is entitled to no less. Powell v. Florida, 579 F.2d 324, 330 (5th Cir. 1978). Like the hapless Daniel M’Naghten, insanity-acquitees may remain in mental hospitals for many years after their acquittal of criminal charges. But unlike M’Naghten, insanity acquitees are entitled to a state-initiated hearing to determine their present mental state following an initial and brief observation period. B BURDEN OF PROOF AT THE COMMITMENT HEARING Although § 27-1503 is silent on the allocation of the burden of proof and the quantum of proof at a release hearing, the Georgia Supreme Court has filled in the gap. In Clark v. State, supra, the Court thrust the burden on the patient seeking release, who must prove by a preponderance of the evidence at the release hearing that he no longer meets the criteria for commitment set out in Chapter 88-5. 245 Ga. at 643-46, 266 S.E.2d 466. Here, the Court must decide whether the Clark holding should apply-or can constitutionally be applied-to the commitment hearing. Clark premised its holding on the legal maxim that the moving party bears the burden of proof in all civil cases and on the presumption of continued insanity. The former justification is superficial, a rationale conspicuously unencumbered by a judicious weighing of the rights at stake. Since under Section III. A., above, the State will be required to initiate the commitment hearing, the justification requires no further comment. Matteawan has 119 inmates who have been confined there since 1935, 29 since 1925, and 4 patients who have been there since at least 1915-over half a century.. . . [A]s of November 1, 1965, one inmate, then 83 years old, had been at Matteawan since 1901... . [A]nother individual was accused of stealing a horse and buggy in 1905 .. . • [and] was released 59 years later at the age of 89 because he was no longer a menace to society or other patients . .. [Another patient] wrongfully [spent] 24 years in Dannemora because he had stolen candy valued at $5.00 at the age of 16. The presumption of insanity is again relied on, this time to justify thrusting the burden of proof on the insanity-acquitee. Again, the Court will defer a fuller discussion of the presumption until Section III. C. infra, involving the constitutionality of the presumption’s invocation as evidence at the hearing. It is one thing to utilize a presumption as evidence, but a wholly different matter when the presumption serves as a justification for the allocation of the burden of proof. In the former sense, the presumption operates solely to shift the burden of coming forward with evidence-the burden of production. The existence of fact A (the verdict of not guilty by reason of insanity) is evidence of the existence of fact B (the insanity-acquitee is currently insane). In the latter sense, the presumption operates to cast the burden of persuasion on one party. That party’s failure to prove his case by the requisite quantum of proof (e. g., by a preponderance of the evidence; by clear and convincing evidence; beyond a reasonable doubt) will authorize the fact finder to rule against that party. See generally, McCormick’s Handbook of the Law of Evidence, §§ 343, 345 (2d ed. 1972 & Supp. 1978); Fed.R.Evid. 301. For the same reasons that the presumption is an inadequate predicate for compelling the patient to apply for a commitment hearing, it fails to justify placing the burden of proof on the patient at the state-initiated commitment hearing. Assuming the accuracy of the presumption-that a mental state once proved continues to exist-that which is presumed does not satisfy the criteria of M.H.C. commitment. The presumption, then, does not reflect a relevant difference between M.H.C. committees and .insanity-aequitees, and does not justify the different allocation of the burden of proof. Other courts have relied on a variety of different theories to justify placing the burden of proof on the insanity-acquitee. In In re Franklin, supra, the Court pointed to the prior judicial hearing (the criminal trial) as the relevant distinction. Similarly, in Jones v. United States, 396 A.2d 183 (D.C. 1978) vac. on rehearing en banc on other grounds, D.C.App., 411 A.2d 624 (1980), the Court compared an M.H.C. committee’s hearing to a de novo determination of mental illness, in contrast to an insanity-acquitee’s commitment hearing which was more of “an updating process”. Id. at 189. See also, Chase v. Kearns, supra; Mills v. State, 256 A.2d 752, 758 (Del.1969). But this logic, like the reliance on the presumption, ignores the irrelevance of the findings rendered by the criminal court to the determination which must be made by the committing court. In Jackson v. Indiana, 406 U.S. 715, 92 S.Ct. 1845, 32 L.Ed.2d 435 (1972), the Court examined Indiana’s procedure for committing defendants who were incompetent to stand trial. The Court held that these committees were entitled to the same procedural safeguards afforded other committees. Relying on Baxstrom, supra, the Court stated, If criminal conviction and imposition of sentence are insufficient to justify less procedural and substantive protection against indefinite commitment than that generally available to all others, the mere filing of criminal charges cannot suffice. . . . [B]y subjecting Jackson to a more lenient commitment standard and to a more stringent standard of release than those generally applicable to all others not charged with offenses .. . deprived petitioner of equal protection of the laws under the Fourteenth Amendment. Id. at 724, 730, 92 S.Ct. at 1851, 1854. If criminal charges and criminal convictions do not sufficiently distinguish the plaintiffs in Baxstrom and Jackson from M.H.C. committees, then certainly, a criminal acquittal will not pass muster. State v. Krol, 68 N.J. 236, 344 A.2d 289, 297 (1975); Cf. People v. McQuillan, 392 Mich. 511, 221 N.W.2d 569 (1974). In Waite v. Jacobs, 475 F.2d 392 (D.C.Cir. 1973), the Court examined the release procedures prescribed by the D.C. insanity-acquitee statute. Relying on Humphrey v. Cady, 405 U.S. 504, 92 S.Ct. 1048, 31 L.Ed.2d-394 (1972), the Court, in dictum, implied that procedural discrimination in commitment procedures between insanityacquitees and M.H.C. committees may be justified. In Humphrey, the Supreme Court questioned the validity of the re-commitment procedures for Wisconsin Sex Crimes Act committees. The Court stated: Respondent seeks to justify the discrimination [between Sex Crimes Act recommitment hearings and M.H.C. recommitment hearings] on the ground that commitment under the Sex Crimes Act is triggered by criminal conviction; that such commitment is merely an alternative to penal sentencing; and consequently that it does not require the same procedural safeguards afforded in a civil commitment proceeding. That argument arguably has force with respect to an initial commitment under the Sex Crimes Act, which is imposed in lieu of sentence, and is limited in duration to the maximum permissible sentence. Id. at 510-11, 92 S.Ct. at 1052-53 (emphasis supplied). Waite interpreted this language to permit procedural discrimination at the commitment stage. This Court cannot accept this interpretation for two reasons. First, the recent Supreme Court decision in Vitek v. Jones, 445 U.S. 480, 100 S.Ct. 1254, 63 L.Ed.2d 552 (1980) specifically held that persons convicted of crime could not be transferred to mental hospitals as “an alternative to sentence.” Consequently, the dictum in Humphrey was discarded by Vitek, and cannot be said to sanction initial commitment discrimination. ' Second, Waite ignored the fundamental difference between Sex Crimes Act committees and insanity-acquitee committees. The Court noted, Insofar as the initial commitment is concerned, we can perceive little difference between Humphrey and an acquitee. . . . The circumstance that Humphrey was committed in lieu of sentence, while an acquitee is committed ‘in lieu of conviction’ does not detract from the essential similarity of the two commitments. 475 F.2d at 398. Whatever the “essential similarities” may be, the essential dissimilarity is that Humphrey was found guilty. He was found responsible for criminal acts, and as such, was subject to the State’s police power and its deterrent, punitive, and retributive designs. An insanity-acquitee is an acquitee. Having decided that the State must initiate the commitment hearing and must sustain the burden of proof, it must be determined what level of proof is required to commit the insanity-acquitee. In Addington v. Texas, 441 U.S. 418, 99 S.Ct. 1804, 60 L.Ed.2d 323 (1979) the Court decided that the “clear and convincing” standard was required by the Due Process Clause of the Fourteenth Amendment in an M.H.C. commitment hearing. Recognizing that the interests of the individual to be free from unwarranted commitment required a standard more rigorous than “a preponderance of the evidence,” but that the imprecision of psychiatric diagnosis rendered the “beyond a reasonable doubt” standard impractical, the Court adopted the intermediate standard. In United States v. Brown, 478 F.2d 606 (D.C.Cir.1973), the Court upheld the D.C. commitment scheme which arguably imposed a lesser burden of proof on the state in insanity-acquitee commitment hearings than in M.H.C. commitment hearings. The fulcrum of the decision was the finding that “modern standards of the insanity defense, not restricted to those who do not know right from wrong call for the acquittal of persons who ‘may have meaningful elements of responsibility.’ ” Id. at 611, citing Dixon v. Jacobs, 427 F.2d 589, 601-603 (D.C.Cir.1970) (concurring opinion). These “meaningful elements of responsibility”, the Court held, distinguish the insanity-acquitee and the M.H.C. committee and justify the imposition of different burdens of proof at their commitment hearings. See also, Waite v. Jacobs, 475 F.2d 392, 396 (D.C.Cir.1973). In short, Brown held that insanity-acquitees could be punished. To punish an insanity-acquitee, or to utilize a procedure which includes a punitive component, runs counter to the overwhelming authority that an insanity-acquitee is not responsible, and not properly subject to punishment. Warren v. Harvey, 472 F.Supp. 1061, 1068 (D.Conn.1979) (“Once petitioner was acquitted, even by reason of his insanity, his criminal responsibility for his past acts was at an end.”); Cameron v. Mullen, 387 F.2d 193, 198 n. 13 (D.C.Cir. 1967) (“Unlike sentence or probation, commitment is not punitive.”); United States v. Ecker, 479 F.2d 1206, 1211 (D.C.Cir.1973) (“Ecker was not found to be legally responsible for his acts, he was not convicted, and he is not being punished.”); Hough v. United States, 271 F.2d 458, 462 (D.C.Cir.1959) (“the individual is confined in the hospital for the purpose of treatment not punishment .... Any preoccupation . . . with the need of punishment for crime is out of place in dealing with an individual who has been acquitted of the crime charged.”); Holloway v. United States, 148 F.2d 665, 666 (D.C.Cir.1945) (“Our collective conscience does not allow punishment where it cannot impose blame”); Douglas v. United States, 239 F.2d 52 (D.C.Cir.1956) (“that one who commits a wrong by reason of insanity must be acquitted is so well-settled that no one questions it.... Only the guilty are to be punished.”) Ragsdale v. Overholser, 281 F.2d 943, 947 (D.C.Cir.1960) (“No penal or punitive considerations enter into this procedure. It has two purposes: (1) to protect the public and the subject; (2) to afford a place and a procedure to rehabilitate and restore the subject as to whom the standards of our society and the rules of law do not permit punishment or accountability.”) State v. Shackford, 262 A.2d 359, 366 (Me. 1970) (“He became one who is to be held blameless and free from punishment for an act otherwise subject to criminal sanctions.”); State v. Krol, 68 N.J. 236, 344 A.2d 289, 295 (1975) (“[Ajlthough such a verdict implies a finding that defendant has committed the actus reus, it also constitutes a finding that he did so without a criminal state of mind. There is, in effect, no crime to punish.”). But see, cases cited in A. Goldstein, The Insanity Defense, 153 n. 21 (1967) (e. g., the insanity-acquitee should not go “unwhipped of justice.”). The Georgia Courts have consistently exonerated the insanity -acquitee of all responsibility. See e. g., Bailey v. State, 210 Ga. 52, 55, 77 S.E.2d 511 (1953) (“A person confined to an asylum or a hospital for the insane, after his acquittal on the ground of insanity, is not to be considered as a criminal undergoing punishment.”); Drewry v. State, 208 Ga. 239, 241, 65 S.E.2d 916 (1951) (“A person is ‘insane’, and hence not criminally responsible, when he or she does not have reason sufficient to distinguish between right and wrong ... ”). These Courts are not engaged in mere ipse dixitism. Even prior to M’Naghten’s Case in 1843, Courts recognized that no valid purpose would be furthered by holding the insanity-acquitee accountable for his acts. The insanity defense is a recognition that none of the theories which underlie our criminal law-prevention, restraint, rehabilitation, deterrence, education, and retribution-are furthered by punishing the insane. See generally, W. LaFave, A. Scott, Handbook on Criminal Law, § 36, pp. 271-272; A. Goldstein, The Insanity Defense, pp. 11-15 (1967) (“[U]nderlying [the themes of criminal law], as the single constant element, is the concept of blame. Because it is widely assumed that “blame” plays a critical role in maintaining individual responsibility and social order, the insanity defense continues to be regarded as exceptional. It becomes the occasional device through which an offender is found to be inappropriate for the social purposes served by the criminal law. He is too much unlike the man in the street to permit his example to be useful for the purposes of deterrence. He is too far removed from normality to make us angry with him. But because he is sick rather than evil, society is cast as specially responsible for him and obligated to make him better.”); Weihofen, The Urge to Punish (1956); American Law Institute, Model Penal Code, Tentative Draft No. 4, p. 156 (1955) (“What is involved specifically is the drawing of a line between the use of public agencies and public force to condemn the offender by conviction, with resultant sanctions in which there is inescapably a punitive ingredient (however constructive we may attempt to make the process of correction) and modes of disposition in which that ingredient is absent, even though restraint is involved. To put the matter differently, the problem is to discriminate between the cases where a punitive-correctional disposition is appropriate and those in which a medical-custodial disposition is the only kind that the law should allow.”) The holding in Brown is based on the finding that the “modern standards of insanity” do not absolve the defendant of responsibility. To what extent Chief Judge Bazelon’s pioneering decisions in Durham v. United States, 214 F.2d 862 (D.C.Cir.1954) and United States v. Brawner, 471 F.2d 969 (D.C.Cir.1972) may have had this effect, this Court need not decide. The sets of Durham/Brawner insanity-acquitees and M’Naghten insanity acquitees are not mutually exclusive. But Brawner acquitees who are not M’Naghten acquitees exhaust the set of insanity-acquitees who can be held responsible for their acts. In short, there can be no M’Naghten acquitees who can be held responsible, and thus dealt with more harshly than M.H.C. committees. The reasoning of the Court in Addington applies to insanity-acquitees with equal force. Cf. Jackson v. Indiana, 406 U.S. 715, 92 S.Ct. 1845, 32 L.Ed.2d 435 (1972). In Warren v. Harvey, 472 F.Supp. 1061, 1071 (D.Conn.1979), the Court concluded that Addington, concerned as it was with M.H.C. commitments, had no relevance to the insanity-acquitee’s hearing. The District Court relied, instead, on the dictum in the earlier Supreme Court case of Lynch v. Overholser, 369 U.S. 705, 82 S.Ct. 1063, 8 L.Ed.2d 211 (1962). Cf. State v. Wilcox, 92 Wash.2d 610, 600 P.2d 561, 562-63 (1979) (ignoring Addington). This Court views the unbroken line of Supreme Court cases, which, although not precisely on point, evidence an acute awareness and increasing concern for the rights of the allegedly mentally ill, be they M.H.C. committees, prisoners, those found incompetent to stand trial, Sex Crime Offenders, or insanity-acquitees, as more persuasive. Baxstrom v. Heroid, 383 U.S. 107, 86 S.Ct. 760, 15 L.Ed.2d 620 (1966); Specht v. Patterson, 386 U.S. 605, 87 S.Ct. 1209, 18 L.Ed.2d 326 (1967); Humphrey v. Cady, 405 U.S. 504, 92 S.Ct. 1048, 31 L.Ed.2d 394 (1972); Jackson v. Indiana, 406 U.S. 715, 92 S.Ct. 1845, 32 L.Ed.2d 435 (1972); O'Connor v. Donaldson, 422 U.S. 563, 95 S.Ct. 2486, 45 L.Ed.2d 396 (1975); Addington v. Texas, 441 U.S. 418, 99 S.Ct. 1804, 60 L.Ed.2d 323 (1979); Vitek v. Jones, 445 U.S. 480, 100 S.Ct. 1254, 63 L.Ed.2d 552 (1980). This Court is not afflicted with the judicial myopia which seems to have burdened the Court in Warren. It is inconceivable that the Lynch dictum (which did not even address the Constitutional issues) has any vitality in light of the dramatic advances the Court has made to protect the rights of the mentally ill. Dissenting in United States v. Brown, 478 F.2d 606, 612-15 (D.C.Cir.1973), Judge Skelly Wright wrote, Bolton and Baxstrom stand for a basic proposition that a proven history of past dangerousness or' illness, while certainly admissible in evidence, may not be used as an excuse to abrogate or change well recognized safeguards, including burden of proof, in civil commitment proceedings, or their equivalent, to determine present dangerousness or illness. . . . [Ajcquittal by reason of insanity says precious little on the question whether a person presently suffers from mental illness. ... As I have always understood the issue of burden of proof, the standard we adopt reflects our view as to the risk of error we are willing to accept in our judgments. A heavy burden of proof in criminal cases, for example, reflects our belief that, given the consequences of conviction, only a minimal chance of error will be tolerated, that it is better to risk letting culpable defendants go free as the price of ensuring that those not culpable will be acquitted to the greatest extent possible. In civil commitment cases the majority seems prepared to concede that this logic-basically, our abhorrence of wrongful incarceration-dictates a greater burden of proof than “preponderance of evidence” as to the relevant issues of illness and dangerousness. But with respect to those acquitted of criminal charges by reason of insanity, my brethren pull back. They do this notwithstanding the teaching of Baxstrom and Bolton and in spite of the fact that the prior judgment of acquittal speaks in muted tones at best to the central question of current illness. Id. at 613-14. In sum, with respect to the commitment of insanity-acquitees, the State must initiate a commitment hearing at which it must sustain the burden of proving, by clear and convincing evidence, that the insanity-acquitee presently meets the criteria for M.H.C. commitment. C THE PRESUMPTION OF CONTINUED INSANITY Georgia Code § 38-118 provides, “Other presumptions of law, such as of ... a mental state once proved to exist . . . may be rebutted by proof.” The origin of this presumption predates the mid-nineteenth century codification of Georgia law. The first reported case to introduce the presumption into the jurisprudence of Georgia is Dicken v. Johnson, 7 Ga. 484 (1849). The Court was confronted with the question “what is that insanity which, when proven to exist previous to the act, will cast upon the defendant the burthen of proving a lucid interval at the time of the act.” 7 Ga. at 490. The plaintiff, attempting to rescind a deed, established that he was an habitual drunkard, and sought to cast the burden of proving capacity to convey upon the grantee. The Court held that only habitual or fixed insanity would trigger the presumption. The Court further held that the requisite degree (in addition to duration) of insanity which would be needed to rescind the deed in equity must be proved to have existed earlier, in order to generate the presumption. Id. at 491. The wisdom of this case seems to have been lost over the subsequent decades. Today, regardless of the degree or duration of the mental illness and regardless of the antisocial act committed, the insanity-acquitee-once found to have lacked the mental capacity at an earlier time to distinguish right from wrong with respect to one particular act-is presumed to be mentally ill and (1) a person who presents a substantial risk of imminent harm to himself or others as manifested by either recent overt acts or recent expressed threats of violence which present a probability of physical injury to himself or others or (2) is so unable to care for his own physical health and safety as to create an imminently life-endangering crisis. In order to explain the basis of the presumption, courts have had trouble doing more than merely reiterating it, commenting on its “self-evident legitimacy.” See e. g., Clark v. State, 245 Ga. at 644, 266 S.E.2d 466 (“Code § 38-118’s presumption of the continuation of this mental state comports with due process, because it is rational to assume that, once a mental state is proven to exist, it continues to do so in the absence of evidence to the contrary); Waite v. Jacobs, supra at 400 (“It comports with normal perceptions of reality-and hence is rational-to assume that, once a given status is proven to exist, it continues to do so.... ”); State v. Kee, 510 S.W.2d 477, 480 (Mo.1974) (“When this type of conduct is engaged in as a consequence of a mental defect, it is reasonable to believe that it may be repeated until the defendant is cured.”); See also, State v. Allan, 166 N.W.2d 752, 758 (Iowa 1969). Although the presumption has garnered wide acceptance among jurists, the literature emanating from the medical profession indicates that the presumption is not based on valid scientific evidence. Punishing The Not Guilty at 1024-25, nn. 58-61; State v. Krol, 344 A.2d 289, 295 n. 2 and studies cited therein (N.J.1975); deposition of Dr. Timothy Bullard, pp. 37-38, 42, 51-52. Significantly, the presumption does not apply to M.H.C. committees. When an M.H.C. committee applies for release-within six months of his initial commitment-there is no operative presumption that he remains mentally ill. The psychology literature establishes that insanity-acquitees are no more dangerous than M.H.C. committees. See, Weihofen, Institutional Treatment of Persons Acquitted by Reason of Insanity, 38 Tex.L.Rev. 849, 855-58 and studies cited therein (1969); State v. Krol, supra, 344 A.2d at 295 n. 2. Indeed, the presumption only concerns the mental state of the individual. Even disregarding the obvious fact that the mental incapacity to distinguish right from wrong is not congruent with mental illness, it does not, by its own terms, constitute evidence that the individual presents a substantial risk of imminent harm to himself or others-the second criterion for M.H.C. commitment. Furthermore, the purported difference between M.H.C. committees and insanityacquitees-that the former is only potentially dangerous, while the latter has already manifested his dangerous propensity-is inaccurate in two respects. First, not all insanity-acquitees have committed acts which constitute “harm to themselves or others” or “physical injury to themselves or others.” In Overholser v. O’Beirne, 302 F.2d 852, 861 (D.C.Cir.1962) the Court examined the D.C. criteria for commitment-mental illness and “dangerous to himself or others”-and decided that, “to describe the theft of watches and jewelry as ‘non-dangerous’ is to confuse danger with violence .... [A] ‘bad check’ passer at large endangers himself by exposure to additional violations and additional arrests, trials and confinements, to say nothing of the serious effect on the public of his predatory tendencies.” Accord, Overholser v. Russell, 283 F.2d 195 (1960). Although the wisdom of this holding is questionable, see, Hamann, The Confinement and Release of Persons Acquitted By Reason of Insanity, 4 Harv.J. Legist 55, 84-85 (1966), this Court need not address the issue. In Georgia the test is not “dangerousness”, but risk of physical injury. Ga.Code § 88-501(v). An individual found not guilty by reason of insanity of the criminal charge of theft by taking or “bad check passing” has not manifested a substantial risk of inflicting physical injury on himself or others. The second flaw in the purported distinction between M.H.C. committees and insanity-aequitee committees is the failure to recognize that the M.H.C. committee has, by the statutory definition, manifested his dangerous propensity. Thus, while an insanity-acquitee may have evidenced no propensity to inflict physical harm, the M.H.C. committee has committed such overt acts, or recently expressed threats of violence. Yet the insanity-acquitee must overcome the presumption, and the M.H.C. committee does not. The distinction between the circumstances of the M.H.C. committees and the insanity-acquitees is further blurred in light of Ga.Code § 88-504.3: “A peace officer may take any person to a physician within the county ... or to [a hospital] if (a) the person is committing a penal offense, and (b) the peace officer has probable cause for believing that the person is a mentally ill person requiring involuntary treatment.” Consequently, many M.H.C. committees have committed criminal acts, but have escaped the criminal justice system solely by virtue of the policeman’s discretion. Professor Goldstein found that the policeman’s decision to bring the mentally ill to the hospital rather than the police station is “genuinely competitive with the criminal process.” A. Goldstein, The Insanity Defense, 172 (1967). This discretion also operates at the prosecutorial stage of the proceedings, the prosecutor deciding to forego criminal proceedings in favor of civil commitment proceedings. See, Dixon v. Jacobs, 427 F.2d 589, 603 (D.C.Cir.1970) (Leventhal, J., concurring); Alter v. Morris, 85 Wash.2d 414, 536 P.2d 630, 635-644 (1975) (Rosellini, J., dissenting in part). In light of the absence of any relevant difference between M.H.C. committees and insanity-acquitees, the tautological justification for the presumption in the latter’s hearing lacks rational support. To the extent that there is a difference between the classes, it would be more rational to employ the presumption at the M.H.C. committee’s hearing-he, at least, has unquestionably committed overt acts evidencing a risk of violent conduct. In State v. Krol, supra, the Court held, [A] defendant who, despite the fact he still suffers some degree of mental illness, poses no significant danger to society, may nevertheless be deprived of liberty for an indefinite period of time because dangerousness is, in effect, presumed from continuing insanity. The problem is most acute when the offense which defendant has committed is one which, although violating social norms, did not itself involve dangerous behavior. But even where . . . the crime is a violent one, the procedure contains great potential for individual abuse. Id. 344 A.2d at 295-96. Similarly, in People v. McQuillan, 392 Mich. 511, 221 N.W.2d 569, 580 (1974) the Court observed, Those committed civilly in the State of Michigan receive a determination of mental illness which attains far more certainty than any inference of insanity. Where the state has provided a full range of judicial protection to determine the competency of all civilly committed, it may not deny those rights to a person found not guilty by reason of insanity. The presumption of continued insanity, if left unrebutted, would suffice to institutionalize the insanity-acquitee. Like the M.H.C. committee, the insanity-acquitee is entitled, as a matter of equal protection, to a judicial determination which attains a greater degree of certainty than that generated by a scientifically unsupported presumption. D CRITERIA FOR COMMITMENT Plaintiffs challenge committing courts’ practice of relying on evidence which is not in the record, and disregarding uncontradicted medical testimony. See e. g., Pennewell v. State, 148 Ga.App. 611, 251 S.E.2d 832 (1979); Pitts v. State, 151 Ga.App. 691, 261 S.E.2d 435 (1979); Dubose v. State, 148 Ga.App. 9, 251 S.E.2d 15 (1978). The two elements required for both M.H.C. and insanity-acquitee commitment are mental illness and substantial risk of imminent harm. If either element is absent with respect to an M.H.C. committee, he cannot be committed. The major difficulty in deciding whether an insanity-acquitee meets the criteria for M.H.C. commitment is < determining what weight should be given to the anti-social act which led to the insanity-acquitee’s prosecution. The plaintiffs do not argue, and no court has held, that the committing court must ignore the act. However, the insanity-acquitee’s conduct, by itself, cannot support commitment. It must first be decided whether the person is presently mentally ill, and whether the act manifests a substantial risk of imminent harm to himself or others. Naturally, if the individual was acquitted of the charge of murder,, his situation is different from that of an individual acquitted of the charge of passing bad checks. Also relevant is the time which has elapsed since the act was committed. Warren v. Harvey, 472 F.Supp. 1061, 1070-71 (D.Conn.1979). This Court cannot dictate to the Courts of Georgia how the decisions in these cases are to be made. But two constitutionally guaranteed rights must be afforded insanity-acquitees. First, under the due process and equal protection clauses, an insanity-acquitee cannot be committed if he is either not dangerous or not mentally ill. The Georgia Legislature has specifically provided this in § 27-1503. Second, as a matter of equal protection, the evidence which is admissible and inadmissible at an M.H.C. committee’s hearing, and the weight which is attached to certain evidence must be the same at an insanity-acquitee’s hearing. With respect to the criteria for commitment, it is clear that mental illness, without more, is not a sufficient basis for depriving an individual of liberty. O’Connor v. Donaldson, 422 U.S. 563, 575, 95 S.Ct. 2486, 2493, 45 L.Ed.2d 396 (1975). This applies equally to those who have been previously subject to criminal prosecution and those who have not. Similarly, an individual who is dangerous, but not mentally ill, cannot be committed for the purpose of preventive detention. Cf. Millard v.. Harris, 406 F.2d 964, 985 n. 14 (D.C.Cir.1968) (Wright, J., concurring); Salinger v. Superintendent of Spring Grove St. Hosp., 206 Md. 623, 112 A.2d 907, 911 (1955); Note, Standards of Mental Illness in the Insanity Defense and Police Power Commitments: A Proposal for a Uniform Standard, 60 Minn.L.Rev. 1289, 1298 (1976). The evidentiary questions were resolved in Powell v. Florida, 579 F.2d 324 (5th Cir. 1978) which held that, “a judge cannot reject unanimous medical opinion that the insanity-acquitee is not mentally ill when the judge does not have such power in all other civil commitment cases.” Id. at 332. The import of this holding is clear: the equal protection clause requires that the committing court treat the evidence-its admissibility and weight-the same in M.H.C. commitment hearings and insanity-acquitee commitment hearings. Ga.Code § 88-501(u) provides that the rules of evidence apply in M.H.C. commitment hearings. They must also apply in the insanity-acquitee’s commitment hearing. In assessing dangerousness, the committing court must consider the criminal act committed by the insanity-acquitee in the same way it considers the “overt act” of the M.H.C. committee. In both cases, the past conduct is important as evidence of the probability of future violent conduct. The intervening criminal trial in the case of the insanity-acquitee does not change the nature of the act he committed, or the extent to which it constitutes a manifestation of the acquitee’s probability of inflicting injury on himself or others. In sum, the criteria for the commitment of insanity-acquitees must include both mental illness and dangerousness. The admissibility and weight of evidence at a commitment hearing must be the same for insanity-acquitees and M.H.C. committees. E RELEASE In Powell v. Florida, supra, the Court held “the prior anti-social conduct of an insanity acquitee justifies treating such a person differently from ones otherwise civilly committed for purposes of deciding whether the patient should be released.” 579 F.2d at 333. M.H.C. commitment in Florida at the time Powell was decided depended on criteria significantly different than the criteria for M.H.C. commitment in Georgia. In Florida, there was no requirement that the committee have committed overt acts evidencing dangerousness, or that he threatened to commit violence. A mere showing that the individual was “likely to injure himself or others if allowed to remain at liberty” was sufficient to warrant the involuntary commitment of a non-insanity-acquitee. Fla.Stat. § 394.467. The holding in Powell reflects an essential difference between the M.H.C. committee and the insanity-acquitee in Florida: the latter, but not the former, has committed an antisocial act. The holding has limited application in Georgia where the M.H.C. committee must have committed an overt act or expressed threats of violence which present a probability of physical injury. Powell was concerned specifically with the Florida statute which, like Ga.Code § 27-1503, requires all insanity-acquitees to obtain an order from the committing court before they could be released. M.H.C. committees in Florida, as in Georgia, could be released by the hospital when the staff determined that the patient was no longer mentally ill. There is no rational basis for withholding from all insanity-acquitees the release procedure available to all M.H.C. committees in Georgia. The difference between the committees in Florida which supported the Powell decision does not exist in Georgia. Both have committed acts which constitute evidence of dangerousness. The acts committed by some M.H.C. committees may be more persuasive evidence of dangerousness than the acts committed by some insanity-acquitees. The Court is cognizant that some M.H.C. committees are institutionalized under § 88-50l(v)(2): “so unable to care for his own physical health and safety as to create an imminently life-endangering crisis.” Certainly, they do not pose a threat of physical harm to others, and have not committed any overt act evidencing a risk of inflicting harm on others. But simply because certain members of the class of M.H.C. committees are not dangerous to others does not alter the basic fact that, in general, M.H.C. committees and insanityaequitees can be distinguished only by the criminal proceedings which were instituted against the latter. Indeed, many insanityaequitees have evidenced as little likelihood of inflicting harm on others as § 88-501(v)(2) committees have. Two of the three named plaintiffs in this case were acquitted of crimes which were entirely non-violent theft crimes. There is, then, a wide variety of both M.H.C. committees and insanity-aequitees. But there is also one group of insanity-aequitees whose status is substantially different than all M.H.C. committees and all other insanity-aequitees. These are the individuals who have committed acts which are considered violent crimes: murder, rape, armed robbery, arson, aggravated assault, and other offenses of like nature. These individuals can be required to obtain Court approval for release. The equal protection clause does not require that these individuals be treated the same as all others who are involuntarily hospitalized. The initial commitment must be the same for all committees, but the method of obtaining release may differ. Thus, all insanity-aequitees must be afforded a state-in