Full opinion text
R. LANIER ANDERSON, III, Circuit Judge: This is a class action brought pursuant to 42 U.S.C.A. § 1983 (West 1981) to challenge the Georgia procedures governing the involuntary commitment and release of persons who have been acquitted of criminal charges by reason of insanity (insanity ae-quittees). The plaintiffs’ class was certified 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 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. The defendants will be referred to as the “State” or as “Georgia.” The procedures are challenged as violating both the Due Process Clause and the Equal Protection Clause of the Fourteenth Amendment. The plaintiffs attack Ga.Code Ann. § 27-1503 (1978), which sets forth the procedures that govern the disposition of defendants found not guilty by reason of insanity. These provisions, however, must be read in conjunction with the interpretive gloss which the appellate courts of Georgia have applied to the statute. See Clark v. State, 245 Ga. 629, 266 S.E.2d 466 (1980); Skelton v. Slaton, 243 Ga. 426, 254 S.E.2d 704 (1979); Pitts v. State, 151 Ga.App. 691, 261 S.E.2d 435 (1979); Pennewell v. State, 148 Ga.App. 611, 251 S.E.2d 832 (1979); Du-bose v. State, 148 Ga.App. 9, 251 S.E.2d 15 (1978). The statutory scheme, as construed by the Georgia courts, can be summarized as follows. Following a finding of not guilty by reason of insanity, the trial court retains jurisdiction over the insanity acquittee 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 30 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 acquittee. Once so committed to a state mental hospital the acquittee or the hospital must petition the committing court to secure the acquittee’s release. A petition cannot be entertained within the initial thirty day period nor 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 acquittee meets the criteria for civil commitment under the Georgia Men- tal Health Code, Georgia Code Chapter 88-5 or 88-25. In contrast, an M.H.C. committee must automatically receive a hearing within 17 days of his involuntary hospitalization, unless he in writing waives the right to this hearing. Although insanity acquittees and M.H.C. committees are guaranteed many of the same rights at their respective hearings (e.g., the right to counsel, the right to confront and cross-examine witnesses), see 501 F.Supp. at 1056, the release hearing for insanity acquittees differs substantially in several ways from the commitment and release hearings for M.H.C. committees. Not only are insanity acquittees denied a state-initiated hearing at the start of their commitment, but they may apply for release only once every twelve months; after the initial commitment of the M.H.C. committee, the state must “recommit” the committee within six months, and at twelve month intervals thereafter. Insanity acquittees are presumed to be mentally ill; M.H.C. committees are not presumed to be mentally ill at either their commitment or recom-mitment hearings. Insanity acquittees bear the burden of proving their fitness for release and the State, therefore, need not prove by clear and convincing evidence that an acquittee meets the Chapter 88-5 criteria for continued confinement; the State must prove by clear and convincing evidence that the M.H.C. committee meets the Chapter 88-5 criteria. The release of an insanity acquittee must be ordered by the committing court; the hospital may release the M.H.C. committee at any time without any judicial approval. See Clark v. State, supra; Pitts v. State, supra; Pennewell v. State, supra; Ga.Code Ann. §§ 27-1503, 38-118, 88-501(u), 88-506.2, 88-506.5, and 88-506.6 (1978, 1979, 1981 and Supp. 1981). In a comprehensive and scholarly opinion, Judge Murphy granted plaintiffs motion for preliminary injunction, holding: 1. That both the Equal Protection Clause and the Due Process Clause require Georgia to provide insanity acquittees with a state-initiated initial commitment hearing; 2. That equal protection and due process considerations require that the State bear the burden of proving, by clear and convincing evidence, the commitment criteria at the initial commitment hearing; 3. With respect to Georgia’s presumption that an insanity acquittee’s mental state continues, reliance on this presumption to justify procedural differences in the commitment process violates both equal protection and due process; and 4. That some of Georgia’s procedures for the release of insanity acquittees violate equal protection and due process, but that Georgia’s requirement of court approval for the release of insanity acquittees is constitutional when limited to acquittees who have committed violent crimes. The State challenges each of the foregoing rulings. We will consider each in turn. In dealing with the release issue, we will address separately its three aspects: the requirement of court approval for the release of insanity acquittees, the burden of proof at the release hearing, and the frequency of applications for release. I. PRESUMPTION OF CONTINUING MENTAL STATE Departing from the order in which the district court discussed the issues, we address first the constitutionality of Georgia’s presumption that the mental state of an acquittee continues — i.e., once a defendant has been found not guilty by reason of insanity, in all subsequent legal proceedings Georgia law presumes, subject to rebuttal, that the acquittee is still legally insane. We address this issue first because the state asserts that this presumption is a partial justification for denying insanity acquittees a state-initiated commitment hearing and for the placement of the burden of proof on insanity acquittees. The presumption derives from Ga.Code § 38-118, which provides: “Other presumptions of law, such as of ... continuance of ... a mental state once proved to exist ... may be rebutted by proof.” Ga.Code § 38-118 (1981). Applying this statutory presumption, the Georgia scheme permits the presumption of present mental illness from the fact of the finding of insanity at the criminal trial. Clark v. State, 245 Ga. 629, 266 S.E.2d 466, 470, 476-77 (1980). Although the statute provides support only for a presumption that mental illness continues, Clark arguably creates a judicial presumption that the dangerousness evidenced by the crime also continues. Thus, the Georgia scheme combines a statutory presumption and an implicit judicial presumption of both present mental illness and present dangerousness from the fact of the insanity acquittal. The district court held that both due process and equal protection prohibit utilization of the presumption either to justify denying insanity acquittees a state-initiated commitment hearing or to justify imposing on them a higher burden of proof. We need not decide whether the presumption violates due process, because it is, beyond peradventure, a violation of the Equal Protection Clause. At the initial commitment hearing for an M.H.C. committee, the State must demonstrate by clear and convincing evidence that the M.H.C. committee is both mentally ill and dangerous. Six months after that initial determination, and annually thereafter, the State must “recommit” the M.H.C. committee, sustaining again a burden of proof, by clear and convincing evidence, that the M.H.C. committee is both mentally ill and dangerous. No presumption of continued mental illness or continued dangerousness is operative, see Clark v. State, 266 S.E.2d at 476, even though the standard to be proved at the subsequent hearing — i.e., mental illness and dangerousness — is identical to the standard at the initial hearing. By contrast, Georgia applies the presumption against insanity acquittees, notwithstanding the fact that the insanity acquittal findings are somewhat different from the findings necessary for commitment, and notwithstanding the fact that the criminal trial, unlike the civil commitment hearing, is not focused on the two crucial findings, i.e., mental illness and dangerousness. Several reasons convince us that there is no rational basis for applying the presumption against insanity acquittees and not against M.H.C. committees. First, although we acknowledge that the finding of insanity, whether it be pursuant to the M’Naghten standard or the delusional compulsion standard, probably encompasses a finding of mental illness as that term is defined by Georgia Code § 88-501(a), we nevertheless doubt that the reliability of the insanity finding equals that of the finding of mental illness at a commitment hearing. The normal statutory procedures for commitment hearings are meticulous and insure a significant measure of reliability. Two preliminary hearings precede the commitment hearing itself, as well as a five day evaluation period at a mental hospital. Certifications from several physicians are required. Ga.Code §§ 88-505.2, 88-505.3, 88-505.5, 88-506.2 (1979 & Supp. 1981). Moreover, in a criminal trial the finding of insanity is only by a preponderance of the evidence; in a civil commitment hearing the finding of mental illness is supported by the higher standard of clear and convincing evidence. Even if we cannot say with certainty that the civil commitment finding of mental illness is more reliable than the insanity finding, we can say with confidence that there is no rational basis at all to assume that the insanity finding is more reliable. Second, we believe that the finding of dangerousness at a commitment hearing is more reliable than that at an insanity acquittal both because of the meticulous procedures above mentioned, and because the commitment hearing is focused exclusively on only two crucial issues, i.e., mental illness and dangerousness, whereas the criminal trial is focused on conviction and the issue of insanity, but the issue of dangerousness is involved, if at all, only incidentally. Even crimes such as murder, which implicate the dangerousness criterion, do so by revealing past violent behavior; the Mental Health Code criterion of dangerousness, however, speaks to the probability of future dangerous conduct. A person whose mental illness has manifested itself in violence in the past may in some cases pose no threat to himself or others in the future. The application of the dangerousness criterion in a civil commitment hearing entails a prediction of future conduct which cannot be equated with a finding of a single past criminal act, even if that act constituted a substantial risk of imminent harm to the perpetrator or others. While Georgia does require that this past act must provide reasonable cause to believe that such a prediction of future dangerousness may be made, this reasonable cause finding also cannot be equated with the actual prediction of dangerousness. Simply stated, the criminal trial looks toward the past, the civil commitment hearing and criteria look toward the future. Third, and most important, the dangerousness finding at a commitment hearing is a finding that the person involved is sufficiently dangerous to require involuntary commitment. On the other hand, the finding of dangerousness at an insanity acquittal is considerably more anemic. The finding is merely that the insanity acquittee has committed a crime that implicates the dangerousness criterion. The fact of the crime is merely relevant to the dangerousness criterion; it is not a finding that the dangerousness criterion has been met. It is true that the Georgia procedure provides for a summary finding by the criminal trial judge, immediately after the insanity acquittal, that there is “reasonable cause to believe that the defendant presently meets the criteria for civil commitment,” Clark v. State, 266 S.E.2d at 475. However, such a probable cause finding is clearly less reliable than the final judicial finding of dangerousness at a commitment hearing, a full and fair hearing following the meticulous statutory procedures mentioned above. A finding that there is probable cause to believe a person is dangerous is considerably weaker than a finding, supported by clear and convincing evidence, that a person is dangerous. The contrast between the two findings of dangerousness might be more starkly stated as follows; with respect to M.H.C. committees, fact A (the dangerousness criterion) has been finally proved at the commitment hearing following meticulous procedures, but at subsequent hearings the identical fact A must be proved again without the benefit of any presumption. On the other hand, with respect to insanity acquittees fact X (the commission of a crime implicating danger in some manner) has been proved at the insanity acquittal, from which fact the trial judge has found that there is probable cause to believe fact A (the dangerousness criterion), all of which the State argues, by application of the presumption, make it unnecessary to prove at all, or justifies a lesser burden of proof with respect to, the existence of fact A. We conclude that there is no conceivable rational basis for applying the presumption against insanity acquittees and not against M.H.C. committees, when the factual predicate for the presumption would be stronger in the context of M.H.C. committee hearings. Accordingly, we hold that application of the presumption in the instant case violates the Equal Protection Clause. II. STATE-INITIATED HEARING Under the Georgia scheme, insanity acquittees may be summarily committed immediately following their acquittal by reason of insanity, without a hearing to determine their present status with respect to mental illness and dangerousness. The summary commitment is made on the basis of the criminal trial itself. See 501 F.Supp. at 1055, n.4; Clark v. State, 245 Ga. 629,266 S.E.2d 466, 475 (1980). Because a state-initiated commitment hearing is provided to determine whether M.H.C. committees meet the commitment criteria at the time of commitment — i.e., present mental illness and dangerousness — the district court held that Georgia’s failure to provide such a hearing for insanity acquittees violates the Equal Protection Clause. The district court also held that such a hearing is required by the Due Process Clause. We agree. This precise issue was addressed in Powell v. Florida, 579 F.2d 324 (5th Cir. 1978). In Powell, the Florida statute empowered the trial court to commit an insanity acquit-tee if the court considers that the discharging of the insanity acquittee would be manifestly dangerous to the safety of the people. 579 F.2d at 326, n. 2. Powell was thus committed on the basis of evidence presented at his trial in chief and without any evidence of present mental condition. 579 F.2d at 329. The panel held that this original commitment without a hearing violated Powell’s due process rights, saying: An acquittal by reason of insanity is based upon the jury’s determination that there is a reasonable doubt as to the defendant’s sanity at the time of the offense. See Farrell v. State, 101 So.2d 130 (Fla.1958). It does not speak to the defendant’s present mental condition. Bolton v. Harris, 130 U.S.App.D.C. 1, 5-9, 395 F.2d 642, 646-650 (1968). Before a trial judge can refuse to discharge a person acquitted by reason of insanity, Fla. R.Crim.P. 3.460 requires a finding that “the discharge or going at large of such insane person shall be . . dangerous to the peace and safety of the people.” The section thus requires the trial judge, before he can order the defendant committed, to make a determination that the defendant is presently insane and that he now would be dangerous if discharged. In re Connors, 332 So.2d 336, 338 (Fla. 1976). Commitment, therefore, depends upon findings of fact different from those established by the jury’s acquittal by reason of insanity. Due process requires that such findings be made following a hearing at which the defendant is present with counsel, has an opportunity to be heard and to present evidence, and has an opportunity to confront and cross examine witnesses. Specht v. Patterson, 386 U.S. 605, 87 S.Ct. 1209,18 L.Ed.2d 326 (1967); Bolton v. Harris, 130 U.S.App. D.C. 1, 9, 395 F.2d 642, 650 (1968). The trial judge’s commitment of Powell based only on “the evidence adduced at trial, the plea of not guilty by reason of insanity and the verdict entered in this cause” and his failure to hold a separate hearing to take evidence on Powell’s then present mental condition violated Powell’s due process rights. 579 F.2d at 330. Accord Jackson v. Foti, 670 F.2d 516 (5th Cir. 1982). The State attempts to distinguish Powell and Jackson by pointing to the Georgia presumption of continuing state of mind. The State argues that the presumption fills in the time gap which concerned the Powell panel. Since the law presumes that an insanity acquittee’s mental deficiency at the time of the crime continues to the time of commitment, the State argues that there is no need to hear evidence concerning present mental state and thus no need for a separate commitment hearing. We need not address other possible deficiencies in this argument, because we have held in Part I of this opinion that application of this presumption in the manner urged is constitutionally forbidden. Thus, we reject the State’s attempted distinction of Powell and Jackson on this ground. The State also argues that these plaintiffs’ due process rights are not violated because, while they are not entitled to an automatic, state-initiated hearing, they do have a right after the expiration of the 30 day evaluation period to notice of their right to a hearing, which they waive if they decline to file an application for release. Finding Powell v. Florida, supra, and Jackson v. Foti, supra, controlling, we reject the state’s argument that the mere availability of a hearing is sufficient. In both cases, this court held that due process requires a commitment hearing to determine an insanity acquittee’s current mental condition and dangerousness. In both cases the insanity acquittee had the right, under the state procedures, to file a state habeas corpus petition to seek release; yet in both cases the state procedures were found to violate due process and a state-initiated commitment hearing was required. We find no significant difference between the state ha-beas corpus petition which was available in Powell and Jackson to obtain a commitment hearing, and the elective application for release which was available to the plaintiffs here. We agree with the implicit holdings of Powell and Jackson that the mere availability of a commitment hearing is not sufficient due process in the case of an insanity acquittee who is confined in a mental institution under circumstances that may be adverse to his intelligent exercise of his rights, and for whom at this stage of the proceedings counsel is not appointed. Ac cord United States ex rel. Schuster v. Herold, 410 F.2d 1071, 1085 (2d Cir. 1969). We also find support for our position in a recent Ninth Circuit decision, Doe v. Gallinot, 657 F.2d 1017 (9th Cir. 1981), which expressly rejected, on grounds similar to those we find persuasive, the adequacy of state habeas corpus relief as a substitute for a mandatory, state-initiated hearing before the involuntary civil commitment of mentally ill persons. Because the Ninth Circuit decision involved commitment for only a limited time, i.e., 14 days, the instant case involving commitment for an indeterminate time presents a much more compelling case. We conclude, following Powell v. Florida, supra, and Jackson v. Foti, supra, that Georgia’s procedure affording only the mere availability of a commitment hearing violates the Due Process Clause. Both Powell v. Florida, 579 F.2d at 334, and Jackson v. Foti, 670 F.2d at 520-21, also hold that a state-initiated commitment hearing is mandated for insanity acquittees by the Equal Protection Clause, when civil committees are provided such a hearing before involuntary commitment. We see no way to distinguish the instant case from Powell and Jackson, and accordingly we also hold that the Equal Protection Clause requires that the plaintiffs here receive the same state-initiated commitment hearing which Georgia provides for M.H.C. committees. Accordingly, we affirm the district court’s holding that Georgia, at the expiration of the 30 day evaluation period, must provide for insanity acquittees the same state-initiated commitment hearing that it provides for M.H.C. committees. Accord Bolton v. Harris, 395 F.2d 642 (D.C.Cir. 1968). See Specht v. Patterson, 386 U.S. 605, 87 S.Ct. 1209, 18 L.Ed.2d 326 (1967). III. BURDEN OF PROOF AT COMMITMENT HEARING Having determined that there must be a state-initiated commitment hearing, we next address the issue of what burden of proof is constitutionally required. The State defends the Georgia scheme which places the burden on the insanity acquittee to prove by a preponderance of the evidence that he is not mentally ill and dangerous. The district court held on equal protection and due process grounds that, at the initial commitment hearing, the State must bear the burden of proving mental illness and dangerousness by clear and convincing evidence. We agree. Our analysis begins with Addington v. Texas, 441 U.S. 418, 99 S.Ct. 1804, 60 L.Ed.2d 323 (1979). There the Supreme Court of Texas held that the appropriate standard of proof for the involuntary commitment of civil committees was the preponderance of the evidence standard. The Supreme Court of the United States disagreed, holding that the preponderance standard falls short of the demands of the Due Process Clause. The court noted: This Court repeatedly has recognized that civil commitment for any purpose constitutes a significant deprivation of liberty that requires due process protection. See e.g., Jackson v. Indiana, 406 US 715 [92 S.Ct. 1845, 32 L.Ed.2d 435] ...; Humphrey v. Cady, 405 US 504 [92 S.Ct. 1048, 31 L.Ed.2d 394] .... . . . [T]he state has no interest in confining individuals involuntarily if they are not mentally ill or if they do not pose some danger to themselves or others. Since the preponderance standard creates the risk of increasing the number of individuals erroneously committed, it is at least unclear to what extent, if any, the state’s interests are furthered by using a preponderance standard in such commitment proceedings. ... We conclude that the individual’s interest in the outcome of a civil commitment proceeding is of such weight and gravity that due process requires the state to justify confinement by proof more substantial than a mere preponderance of the evidence. 441 U.S. at 425-27, 99 S.Ct. at 1809-10. Having rejected the preponderance standard as being insufficient to meet due process requirements, the Court proceeded to reject also the very strict criminal law standard, j.e., beyond a reasonable doubt. The Court found the strict criminal law standard inappropriate for several reasons. First, the Court noted that the continuous professional review of a patient’s condition will afford opportunities for correction of any initially erroneous commitments. Second, the Court was concerned that the “subtleties and nuances of psychiatric diagnosis render certainties virtually beyond reach in most situations.” 441 U.S. at 430, 99 S.Ct. at 1811. In contrast to the criminal prosecution context where specific, knowable facts make the reasonable doubt standard practicable, “psychiatric diagnosis . .. is to a large extent based on medical ‘impressions’ drawn from subjective analysis and filtered through the experience of the diagnostician. This process often makes it very difficult for the expert physician to offer definite conclusions about any particular patient.” 441 U.S. at 430, 99 S.Ct. at 1811. The Court thus concluded that the reasonable doubt standard is inappropriate “because, given the uncertainties of psychiatric diagnosis, it may impose a burden the state cannot meet.” 441 U.S. at 432, 99 S.Ct. at 1812. Having held that the preponderance standard falls short of the due process demands, but that the strict reasonable doubt standard is not required, the Court adopted the intermediate “clear and convincing” evidence standard. 441 U.S. at 431, 99 S.Ct. at 1812. We cannot conclude that there is sufficient difference between the instant class of insanity acquittees and the class of civil committees in Addington to justify a departure from the Addington “clear and convincing” evidence standard. Insanity ac-quittees, like civil committees, have at stake a significant deprivation of their liberty. The State argues that the insanity acquittal, with its determination of insanity, justifies a different burden of proof, i.e., placement of the burden of proof on the insanity acquittee. In Powell v. Florida, supra, we rejected in another context the State’s attempt to attach significance to this previous finding of insanity. There, we pointed out that the previous finding of insanity related to the time of the offense, and “does not speak to the defendant’s present mental condition.” 579 F.2d at 330. This time gap cannot be bridged by utilizing the Georgia presumption of a continued mental state; as discussed above, the presumption is not constitutionally permissible. In the only significant post -Addington decision by a federal circuit court of appeals, Warren v. Harvey, 632 F.2d 925 (2d Cir. 1980), the Second Circuit considered a constitutional challenge to the Connecticut statute providing for the commitment of insanity acquittees. The statute required that the state prove that the insanity acquittee was mentally ill and dangerous by a preponderance of the evidence. It was challenged as falling short of the clear and convincing evidence standard required in Addington v. Texas, supra, for the commitment of civil committees. The Second Circuit held that the fact that the insanity acquittee had committed the criminal act justified the lesser standard of proof, implicitly holding that insanity acquittees were more dangerous than civil committees. After careful analysis of Warren v. Harvey, several considerations persuade us to decline to follow it. First, we cannot square the Second Circuit case with the controlling Supreme Court precedent, primarily Addington v. Texas, supra. The factor relied upon by the Second Circuit to justify the lesser burden of proof was the insanity acquittee’s commission of the crime. However, Addington also had committed a crime. His civil commitment was triggered by an “assault by threat” against his mother, for which he was arrested and taken into custody. Thus, in balancing the interest of Addington (protection against the risk of erroneous commitment, a significant deprivation of his liberty) against the interest of the State (protection for the community against the dangerous tendencies of such mentally ill persons), the Supreme Court was considering a person whose commitment was triggered by circumstances involving the commission of a crime, just as was the commitment in Warren v. Harvey, and as was the commitment of each class member before us. This fact significantly undermines the Second Circuit’s distinction of Addington. We conclude that the State of Georgia’s interest in protection against the erroneous release of insanity acquittees generally is not significantly different from Texas’ interest in protection against the erroneous release of Addington. And, as noted above, the interest of insanity acquittees generally is identical to Addington’s interest — i.e., protection against erroneous commitment, a significant deprivation of liberty. Second, we also think that the implicit assumption in Warren v. Harvey that insanity acquittees are more dangerous than civil committees is inconsistent with the second prong of Baxstrom v. Herold, 383 U.S. 107, 113, 115, 86 S.Ct. 760, 763, 764, 15 L.Ed.2d 620 (1966). There the Supreme Court held that the fact of Baxstrom’s past crime did not establish that he was “such a danger to others that the strict security of a Department of Correction hospital is warranted,” 383 U.S. at 115, 86 S.Ct. at 764. The Court held that Baxstrom’s past crime did not justify denying Baxstrom judicial review of the administrative decision assigning him to the maximum security institution when all civil committees could be assigned to that institution only after a judicial determination that the “person is so dangerously mentally ill that his presence in a civil hospital is dangerous to the safety of other patients or employees, or to the community.” 383 U.S. at 113, 86 S.Ct. at 763. The Supreme Court so held despite the fact that Bax-strom’s crime involved an assault on a police officer with an ice pick at night, injuring the officer’s face, forehead, and collar bone. Brief for Respondent at App. 4r-5, Baxstrom v. Herold, supra. All civil committees are by definition dangerous; the implicit assumption of Warren v, Harvey is that insanity acquittees are more dangerous. This is the precise assumption that was found insufficient in Baxstrom’s second holding. See dicta to the same effect in Jackson v. Indiana, 406 U.S. at 728, 92 S.Ct. at 1853. Third, we find unpersuasive the three explicit considerations relied upon by Warren v. Harvey in distinguishing Addington. The Second Circuit minimized the interest of insanity acquittees in protection against erroneous commitment, assuming that any such error would probably have been offset by a similar error in the determination of his insanity in connection with his insanity acquittal. We harbor considerable doubt that there is any logical necessity or even probability that one such error would lead to the other. In any event, the assumption runs counter to Powell v. Florida, 579 F.2d at 330, which emphasizes that the finding of insanity as of the time of the crime is discrete from the finding of mental illness and dangerousness at the time of the commitment hearing. An acquittal, even on grounds of insanity, generally absolves the defendant of criminal responsibility for his act. Notwithstanding this well settled principle, the Second Circuit’s justification for the different burden of proof is in fact an attempt to punish an “erroneously” acquitted insanity acquittee. Even if an “error” were made in finding the defendant not guilty by reason of insanity, this “error” cannot be “corrected” by committing the defendant under the State’s mental health power. See infra, n. 24. The Warren v. Harvey court also minimized the stigma which would be suffered by the erroneous commitment of an insanity acquittee, observing that insanity acquittees had already incurred stigma as a result of the judicial determination, by virtue of their insanity acquittal, that they committed a crime. We find this observation inconsistent with Vi-tek v. Jones, 445 U.S. 480, 492, 494, 100 S.Ct. 1254,1263,1264, 63 L.Ed.2d 552 (1980), which held that commitment of those already incarcerated as prisoners constitutes a significant stigma. Moreover, the stigma element is certainly of lesser significance than the deprivation of liberty. Finally the Second Circuit relied upon the danger of calculated abuse of the insanity defense, and the deterrent effect that might be afforded by the utilization of the lesser burden of proof. This consideration also contains overtones of punitive consequences lingering after an insanity acquittal, which is inconsistent with Georgia’s rejection of the notion that any punitive purpose remains after as insanity acquittal. Bailey v. State, 210 Ga. 52, 77 S.E.2d 511 (1953) (A person confined to ... a hospital for the insane after his acquittal on the ground of insanity, is not to be considered as a criminal undergoing punishment; he is there solely to be cared for, protected, and guarded so that he may not injure another or himself). Even if these considerations are proper, and we do not believe that they are, we note also that, as compared to the Georgia scheme, there is a greater risk in the Connecticut scheme under consideration in Warren that an accused could receive an insanity acquittal, but that the state could not satisfy its burden of proving the criteria for involuntary commitment. In Connecticut, an accused need only establish a reasonable doubt as to his sanity in order to obtain an insanity acquittal. By contrast, in Georgia, the accused must prove his insanity by a preponderance of the evidence. We conclude that little weight should be accorded to the suggested deterrent effect to guard against calculated abuse of the insanity defense, and we agree with the Warren court’s own acknowledgment that such deterrent effect is “slight.” For the foregoing reasons, we find Warren v. Harvey, supra, unpersuasive. We can find no satisfactory ground to distinguish Addington v. Texas, supra, and we therefore affirm the district court’s conclusion that due process requires the State to bear the burden of proof at the initial commitment hearing by clear and convincing evidence. We hold alternatively on equal protection grounds that Georgia cannot place the burden of proof on insanity acquittees while simultaneously providing that the State must prove the initial commitment criteria of M.H.C. committees by clear and convincing evidence. The foregoing discussion indicates that there is no rational basis to justify treating the two classes differently with respect to the burden of proof. The strongest justification offered by the State is the intuitive feeling that the insanity acquittees are more dangerous than M.H.C. committees. However, as noted above, the Supreme Court in Baxstrom v. Herold, supra, rejected this precise justification in the second prong of its equal protection analysis. 383 U.S. at 115, 86 S.Ct. at 764. Accord, Bolton v. Harris, 395 F.2d 642, 647, 649 (D.C.Cir.1968) (referring to the “principle derived from the Supreme Court’s decision in Baxstrom v. Herold that the commission of criminal acts does not give rise to a presumption of dangerousness which, standing alone, justifies substantial difference in commitment procedures and confinement conditions for the mentally ill”); Waite v. Jacobs, 475 F.2d 392, 397 (D.C.Cir. 1973); Cameron v. Mullen, 387 F.2d 193, 201-02 (D.C.Cir.1967); United States ex rel. Schuster v. Herold, 410 F.2d 1071, 1081, 1085-86 (2d Cir. 1969) With respect to the purported state interest of isolating the super-dangerous for different treatment, the classification of insanity acquittees is overinclusive and underinclusive in precisely the same way and to precisely the same degree as was the classification in Bax-strom’s second prong. The disadvantaged class of insanity acquittees is overinclusive to the extent that they might have committed crimes which evidenced a degree of danger less than or comparable to, but not greater than, the dangerousness inherent in M.H.C. committees generally. This is identical to the overinclusiveness in Baxstrom’s second prong where the Supreme Court observed that Baxstrom “may or may not be . . . such a danger to others that the strict security of a Department of Correction hospital is warranted.” 383 U.S. at 114-15, 86 S.Ct. at 764. Similarly, the disadvantaged class of insanity acquittees is underinclusive to the extent that M.H.C. committees also might have committed past dangerous crimes and to the extent that they might for other reasons be more dangerous than the average M.H.C. committee. The classification which failed the equal protection scrutiny in Baxstrom’s second prong was underinclusive in the same way and to the same degree. 383 U.S. at 115, 86 S.Ct. at 764. We conclude that Baxstrom’s second prong forecloses the State’s reliance on the proffered justification that insanity acquit-tees generally are more dangerous than M.H.C. committees generally. Moreover, the instant record does not support a conclusion that insanity acquit-tees are in fact more dangerous. Commentators have questioned the accuracy of the intuitive assumption that insanity acquittees are more dangerous. See e.g. Note: Commitment and Release of Persons Found Not Guilty by Reason of Insanity, A Georgia Perspective, 15 Ga.L.Rev. 1065, 1079 (1981) (“Scientific studies,[] while not conclusive, do indicate that .. . [insanity acquittees] as a group are not substantially more dangerous than their civilly committed counterparts.”) The Second Circuit in United States ex rel. Schuster v. Herold, 410 F.2d 1071 (2d Cir. 1969), reporting on the subsequent history after Baxstrom v. Herold, raised similar doubts about the assumption: Most judicial reform is accompanied by cries of horror and dismay that the action by the court has surely carried society over the brink and into the abyss of administrative chaos. Certainly this was true of Baxstrom. When § 384 was invalidated, the New York authorities decided to transfer all patients confined in Dannemora or Matteawan pursuant to that provision — a total of 992 inmates — to civil hospitals. This transfer was designated by them as “Operation Baxstrom.” When this decision was announced, some segments of the community were anxious and outraged. Involved labor unions demanded special pay and training for working with the Operation Baxstrom transferees because they were presumptively “dangerous.” Residents in the neighborhoods of civil mental hospitals protested the presence of “criminal lunatics” in their midst. Yet in only one year the protests evaporated. The transfer has been an astounding success. Of these nearly 1000 exprisoners whom the appropriate state authorities had prior to Bax-strom determined to be too dangerous to be placed in a civil hospital, 176 have been fully discharged — 147 to their home communities and the rest to other hospitals; 454 others have elected to remain in civil mental hospitals on voluntary or informal status; and only seven have had to be returned to Matteawan after a judicial determination that they were dangerous. As one author has noted, the Bax-strom patients were almost as pure as Ivory Snow; they were 99/ioo per cent free from dangerous mental illness. 410 F.2d at 1085-86 (footnote omitted). The argument that insanity acquittees generally are more dangerous than M.H.C. committees generally is especially weak in light of the Georgia statutory scheme. Before the state-initiated hearing — which is the relevant time for purposes of determining the appropriate burden of proof at that hearing — the statutory scheme contemplates that the following procedures normally will have been completed and the following findings will have been made with respect to M.H.C. committees: (1) either a preliminary investigation by the county board of health has found that there is probable cause to believe that such person is mentally ill and dangerous, or a physician has certified that he has examined such person within the preceding five days and found that such person may be mentally ill and dangerous, Ga.Code Ann. § 88-505.2 (1979); and (2) the court, after reviewing the aforementioned finding or certificate, has found that there is reasonable cause to believe that such person may be mentally ill and dangerous, and has therefore held a full and fair hearing thereon, and after such hearing has satisfied itself that an immediate evaluation is necessary, whereupon the court orders such person to be delivered to the hospital, for a five day evaluation period, id. § 88-505.3; and (3) the Chief Medical Officer of the evaluating hospital, supported by the opinions of two physicians who have examined such person within the five day evaluation period, has recommended that such person is mentally ill and dangerous and petitioned the court for the state-initiated hearing at issue. Id. §§ 88-505.5 & 88-506.2. Thus, the M.H.C. committee has been certified to be mentally ill and dangerous by a physician, followed by a probable cause determination by a court, followed by a finding by the court after a full and fair hearing, followed by a five day evaluation at the hospital, followed by a recommendation by the hospital that such person is mentally ill and dangerous. It is also significant that the foregoing findings of dangerousness are made pursuant to the Georgia definition which requires that the danger be “manifested by either recent overt acts or recent expressed threats of violence, which present a probability of physical injury to himself or to other persons.” Id. § 88-501(v). By contrast, the insanity acquittee has been judicially determined to be legally insane at some previous time, i.e., the time of the crime, and to have committed the crime at that past time. In addition, the court has made the “good cause” finding that there is reasonable cause to believe that the insanity acquittee is presently mentally ill and dangerous, Clark v. State, 266 S.E.2d at 475, but that finding is a summary one made on the basis of evidence at criminal trial and without a further hearing. See infra, Part IV.A.2. In this setting, we cannot conclude that there is any rational basis for the intuitive assumption — that insanity acquittees generally are more dangerous than M.H.C. committees generally — sufficient to justify discriminating against insanity acquittees with respect to the burden of proof. Of course, the egregious nature of any particular crime might justify an inference that such particular person is more dangerous than M.H.C. committees generally, e.g., the brutal rape and murder in United States v. Ecker, 543 F.2d 178 (D.C.Cir.1976), cert. denied, 429 U.S. 1063, 97 S.Ct. 788, 50 L.Ed.2d 779 (1977), or the murder in Warren v. Harvey, supra. However, such extreme cases should not skew the proper location of the burden of proof; in such cases the State will easily carry its burden of proof by clear and convincing evidence. Rather, it is only in the closer, more ambiguous cases that the burden of proof standard will be significant. For the foregoing reasons, we hold that there is no rational basis to justify treating insanity acquittees differently from M.H.C. committees with respect to burden of proof at the initial commitment hearing. We thus hold, on both due process and equal protection grounds, that the State must bear the burden of proving the commitment criteria by clear and convincing evidence. IV. RELEASE PROCEDURES A. Requirement of Court Approval for Release As noted above, Georgia law provides that insanity acquittees committed pursuant to Georgia Code § 27-1503, must secure judicial approval in order to be released from the State hospital. Persons committed under Georgia Code Chapter 88-5 (i.e., civil commitment) may be discharged from the hospital without court approval if the chief medical officer of the hospital finds that the patient is either no longer mentally ill or no longer dangerous. Ga.Code Ann. § 88-506.6(b)(l) (1979). The plaintiffs contend that this difference in release procedures violates the Equal Protection Clause. 1. The District Court’s Opinion. Although the district court astutely noted that Georgia Code § 27-1503 “must be read in conjunction with the interpretive gloss which appellate courts of Georgia have read into the statute,” 501 F.Supp. at 1055, the district court did not refer to these state court interpretations when it deemed the statute to require “all insanity-acquittees to obtain an order from the committing court before they could be released.” Id. at 1071 (emphasis added). Having so construed § 27-1503, the district court found “no rational basis for withholding from all insanity-acquittees the release procedure available to all M.H.C. committees in Georgia.” Id. (emphasis added). The district court’s constitutional analysis paralleled the second prong of the Baxstrom case. Compare 501 F.Supp. at 1071-72 with 383 U.S. at 114-15, 86 S.Ct. at 764. The district court noted that justifying release procedures for all insanity acquittees different from those available for all M.H.C. committees on the ground that the former group is more dangerous than the latter exposes the legislative classification to problems of overinclusiveness and under-inclusiveness. Some M.H.C. committees have committed acts evidencing a much greater degree of dangerousness than have some acquittees (i.e., underinclusiveness), and many insanity acquittees have shown no greater likelihood of harming others than have M.H.C. committees (i.e., overin-clusiveness). In light of these considerations, the district court held that requiring all acquittees, but not all M.H.C. committees, to obtain judicial approval prior to release violated equal protection. Acknowledging, however, that some acquittees have committed acts which constitute the elements of “violent crimes” (i.e., “murder, rape, armed robbery, arson, aggravated assault, and other offenses of like nature,” 501 F.Supp. at 1072), the district court concluded that the State constitutionally could require acquittees who were charged with serious violent crimes to secure court approval for release. Analysis of the State Law. 2. Before reaching the difficult constitutional question of whether a state could validly impose more stringent release procedures for a 11 acquittees than those required for all M.H.C. committees, we should ascertain whether Georgia has indeed attempted to do so. A well-settled doctrine of constitutional law is that a court should not reach out and decide difficult questions of federal constitutional law if these questions can be avoided by a decision based on state law. Siler v. Louisville & Nashville Railroad Co., 213 U.S. 175, 29 S.Ct. 451, 53 L.Ed. 753 (1909). Moreover, in this case, if Georgia has not established one set of release procedures for all acquittees and another only for all M.H.C. committees, then a pronouncement on the constitutionality of such a plan would be merely an advisory opinion. Our examination of the statute in question, as authoritatively interpreted by the Georgia Supreme Court, leads us to conclude that, as a matter of state law, § 27-1503 does not require judicial approval for the release of all acquittees involuntarily committed in Georgia. Although the statute does provide that in “all criminal trials” where the jury returns a verdict of not guilty by reason of insanity the trial court “shall immediately inquire into the sanity of the person at the time of acquittal,” the statute further requires that only “upon a showing of good cause by the prosecutor, may [the court] defer ruling on the same and order such person to be confined in a state mental hospital ... for a period of not less than 30 days.” Ga.Code Ann. § 27-1503(a) (1978) (emphasis added). The Georgia Supreme Court’s most recent interpretation of this statutory language reveals that not all insanity acquittees can be committed under this section; therefore, we must consider the release provisions to apply only to a more limited class than all acquittees. In Clark v. State, 245 Ga. 629, 266 S.E.2d 466 (1980), the court construed the “good cause” language “to mean a showing that there is reasonable cause to believe that the defendant presently meets the criteria for civil commitment.” Id. 266 S.E.2d at 475, that is, mental illness and dangerousness. Although perhaps not compelled by the statutory language, the Clark construction was strongly suggested by the statute itself, which incorporates the civil commitment criteria as the standard for determining the release of insanity acquittees. Ga. Code Ann. § 27-1503 (1978). Clark, however, clearly does not view Georgia law as requiring or providing for a hearing on the issue of dangerousness at this point in the proceedings. Not only does the court refer to the “good cause” showing as “summary commitment,” 266 S.E.2d at 475, but also the Georgia court’s discussion of the due process rights of ac-quittees reveals that no “hearing” (i.e., in the sense of taking new or additional evidence) takes place when the court “immediately” inquires into the sanity of the acquit-tee. Clark held that the acquittee’s due process right to a hearing would be waived if the acquittee did not file an application for release after the 30-day evaluation commitment period ends. Clark also held that the acquittee was entitled to receive notice of his right to a hearing “after expiration of the 30-day period.” Id. If Georgia law contemplated a hearing at the time of the “good cause” showing on the acquittee’s present sanity, then there would have been no need for Clark to find a waiver of the due process right to a hearing in failure to apply for release after the 30-day period. Similarly, if a hearing were held at the time of the good cause showing, then receiving notice of a right to a hearing after the expiration of the 30-day period would be superfluous. The record in the instant case confirms that in practice the Georgia courts do not hold a hearing at this stage in the proceedings. 501 F.Supp. at 1055 n.4. Thus, at the time of summary commitment, the trial court, under Georgia law, does not hold a hearing or take new evidence, but nonetheless is required to determine if there is reasonable cause to believe that the defendant presently meets the criteria for civil commitment (i.e., mental illness and dangerousness). Since no new evidence is taken for this showing of “good cause,” the crime for which the insanity acquittee was acquitted constitutes the only basis for the “good cause” finding of the dangerousness criterion. Unless facts, introduced in the criminal trial of the acquit-tee, relating to the acquittee’s crime itself, reveal reasonable cause for believing that the acquittee is dangerous, as that term is precisely defined by the civil commitment statutes, Georgia law does not authorize the commitment of that acquittee under § 27-1503. Clark v. State, supra. Accord Whitfield v. State, 158 Ga.App. 660, 281 S.E.2d 643 (1981). Our conclusion that Clark has so construed and limited § 27-1503 to apply only to acquittees acquitted of crimes evidencing dangerousness is reinforced by the reasons Clark advanced for upholding the different release procedures against equal protection attack. Clark justified the difference between release procedures for acquittees committed under § 27-1503 as compared to the procedures provided for other committees on the ground that “insanity acquittees have demonstrated their dangerous propensities by committing prior criminal acts.” 266 S.E.2d at 472, 477. The appellant in Clark, in fact, had been charged with and found not guilty by reason of insanity for murder. This justification for the difference in release procedures is true only if the class of acquittees required to obtain judicial approval for release is confined to those acquittees who have been tried for crimes evidencing dangerousness. See 501 F.Supp. at 1071-72. The cases cited by Clark in support of the different release procedures for acquittees also involve acquittals for crimes evidencing dangerousness. See 266 S.E.2d at 472, citing Powell v. Florida, 579 F.2d 324 (5th Cir. 1978) (murder); United States v. Ecker, 543 F.2d 178 (D.C.Cir.1976), cert. denied, 429 U.S. 1063, 97 S.Ct. 788, 50 L.Ed.2d 779 (1977) (murder and rape). These cases, moreover, in justifying the different release provisions applied to the acquittees there seeking relief, emphasized the proven dangerousness of the acquittees in question as established by their insanity acquittals for crimes clearly showing dangerousness. Powell v. Florida, 579 F.2d at 331-33; United States v. Ecker, 543 F.2d at 195-98 & n.80. Thus, we conclude that § 27-1503, as a matter of state law, only authorizes the commitment of insanity acquittees who have been tried for crimes that evidence dangerousness. Not all insanity acquittees can properly be committed pursuant to § 27-1503, and thus not all acquittees who are or have been committed are subject to the release provisions of that statute. Since § 27-1503, as interpreted by Clark, cannot and does not govern the commitment and release of persons acquitted by reason of insanity of crimes not evidencing dangerousness, the release of these acquit-tees must be controlled by Chapter 88-5, the civil commitment standards. When the chief medical officer of a state hospital determines that an acquittee, who had been charged with a crime not evidencing dangerousness, should be discharged (i.e., the acquittee is no longer mentally ill or dangerous), that acquittee must be released pursuant to Georgia Code § 88-506.6; there is no statutory authority for his continued detention or for requiring court approval for his release. The continued detention of such an acquittee, in the absence of statutory authorization for such restraint, would violate due process of law. To the extent that the commitment, ostensibly under § 27-1503, of any of the class members here is based on an insanity acquittal for a crime not relevant to the dangerousness criterion, those class members will be entitled to appropriate relief on remand. See, infra. What we have said thus far about the release procedures for acquittees flows directly from state, not constitutional, law. Yet, it would be unrealistic to overlook the fact that Georgia courts inevitably have interpreted § 27-1503 with an eye toward constitutional principles. Clark interpreted § 27 — 1503 in the context of a constitutional challenge, inter alia, to the validity of requiring court approval for the release of acquittees. Clark’s narrowing construction of § 27-1503 accords with sound principles of statutory interpretation — i.e., courts should strive to construe a statute so as to avoid constitutional defects. See, e.g., Cro-well v. Benson, 285 U.S. 22, 62, 52 S.Ct. 285, 296, 76 L.Ed. 598 (1932); Bolton v. Harris, 395 F.2d 642 (D.C.Cir.1968); People v. Lally, 19 N.Y.2d 27, 277 N.Y.S. 654, 224 N.E.2d 87 (1966). Indeed, serious constitutional questions would be raised if the statute had been read broadly to require judicial approval for the release of all acquittees. Although we need not, and do not, decide these questions, we note that the constitutional issues are of significant dimension. We have already noted that the second prong of Baxstrom v. Herold, supra, rejected on equal protection grounds the asserted justification that prisoners were super-dangerous. Part III, supra, Part IV.A.l., n. 31. In addition, the first prong of Baxstrom’s equal protection analysis held that the fact of Baxstrom’s crime did not justify denying him a jury trial at the commitment hearing when a jury was afforded to all civil committees. In Jackson v. Indiana, 406 U.S. 715, 92 S.Ct. 1845, 32 L.Ed.2d 435 (1972), the Supreme Court applied the Baxstrom rationale in striking down differences in release standards applicable to those found incompetent to stand trial, as compared to the standards which civil committees had to satisfy to gain release from mental hospitals. The Court reasoned: 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 surely cannot suffice. 406 U.S. at 724,92 S.Ct. at 1851. The Court also quoted with apparent approval from a New York Bar Association Report: ‘The basic and unifying thread which runs through our recommendations is a rejection of the notion that the mere fact of a criminal charge or conviction is a proper basis upon which to build other unnecessary, unprofitable, and essentially unfair distinctions among the mentally ill.’ Id. at 724, n. 4, 92 S.Ct. at 1851, n. 4. Finally, in Humphrey v. Cady, 405 U.S. 504, 92 S.Ct. 1048, 31 L.Ed.2d 394 (1972), the Court noted the constitutional difficulties inherent in using past criminal conduct as a basis for distinguishing between classes of mentally ill persons with respect to the procedures available to such persons, when those procedural differences “are in no way limited by the nature of the defendant’s crime.” Id. at 511, 92 S.Ct. at 1053. The Court suggested further that the state might seek to justify the discrimination against mentally ill offenders “in some special characteristics” of those offenders that relate to the particular difference in procedures. This sort of justification, however, would be undermined and “the equal protection claim would seem especially persuasive if . . . [the procedural protections a committee receives were determined] by the arbitrary decision of the state to seek his commitment under one statute rather than the other.” Id. at 512, 92 S.Ct. at 1053. Grave constitutional problems would be raised had it been necessary to subject to the Baxstrom-Jackson-Humphrey scrutiny a classification composed of all insanity ac-quittees. The underinclusiveness and over-inclusiveness which concerned the court below would have to survive an uncomfortably close comparison to the sort of ill fit of legislative means to ends which Baxstrom’s second prong condemned. The challenge to a statute’s underinclusiveness and overin-clusiveness takes on a particular poignancy when raised in a context, such as in Bax-strom and here, where everyone in any event will receive a hearing prior to commitment. Since we have already held in Part II that the State is obligated to provide a hearing in the first place, there would be very little burden on the State and no interference with its legitimate interest if the State were required to identify at that hearing those for whom the State’s particular interest was applicable, e.g., the super-dangerous or the criminally dangerous. It is hard to conceive of a strong State interest in classifying all insanity acquittees as criminally dangerous or all prisoner-committees as super-dangerous when, for every member of these groups the State must in any event hold a hearing on the very issue of whether the particular acquittee or prisoner is dangerous at all. We realize that none of the above Supreme Court cases concern release procedures for insanity acquittees. Relying on qualifying language in Baxstrom that equal protection does not require identical treatment but only that the difference in procedures be relevant to the purpose of the classification, this circuit and the District of Columbia circuit have held that some differences in release provisions for some acquittees will survive equal protection scrutiny. Powell v. Florida, 579 F.2d 324 (5th Cir. 1978); United States v. Ecker, 543 F.2d 178 (D.C.Cir.1976), cert. denied, 429 U.S. 1063, 97 S.Ct. 788, 50 L.Ed.2d 779 (1977). Nevertheless, we are aware of no decision which has upheld such differences in release procedures in a context where the court clearly viewed the statute as intending to treat all acquittees (including those acquitted for crimes not evidencing dangerousness) differently from all M.H.C. committees. Cf., e.g., Powell v. Florida, supra (murder); United States v. Ecker, supra (rape and murder). See also Lee v. Kolb, 449 F.Supp. 1368 (W.D.N.Y.1978) (murder) (dictum); Allen v. Radack, 426 F.Supp. 1052 (D.S.D.1977) (murder) (dictum). The foregoing cases have upheld such differences in release procedures on the grounds that the acquittees challenging the release provisions, unlike M.H.C. committees, manifested their dangerousness in conduct which had been found beyond a reasonable doubt to c