Full opinion text
Justice White delivered the opinion of the Court, except as to Part III. When a defendant in a criminal case pending in Louisiana is found not guilty by reason of insanity, he is committed to a psychiatric hospital unless he proves that he is not dangerous. This is so whether or not he is then insane. After commitment, if the acquittee or the superintendent begins release proceedings, a review panel at the hospital makes a written report on the patient’s mental condition and whether he can be released without danger to himself or others. If release is recommended, the court must hold a hearing to determine dangerousness; the acquittee has the burden of proving that he is not dangerous. If found to be dangerous, the acquittee may be returned to the mental institution whether or not he is then mentally ill. Petitioner contends that this scheme denies him due process and equal protection because it allows a person acquitted by reason of insanity to be committed to a mental institution until he is able to demonstrate that he is not dangerous to himself and others, even though he does not suffer from any mental illness. 1 — l Petitioner Terry Foucha was charged by Louisiana authorities with aggravated burglary and illegal discharge of a firearm. Two medical doctors were appointed to conduct a pretrial examination of Foucha. The doctors initially reported, and the trial court initially found, that Foucha lacked mental capacity to proceed, App. 8-9, but four months later the trial court found Foucha competent to stand trial, id., at 4-5. The doctors reported that Foucha was unable to distinguish right from wrong and was insane at the time of the offense. On October 12, 1984, the trial court ruled that Foucha was not guilty by reason of insanity, finding that he “is unable to appreciate the usual, natural and probable consequences of his acts; that he is unable to distinguish right from wrong; that he is a menace to himself and others; and that he was insane at the time of the commission of the above crimes and that he is presently insane.” Id., at 6. He was committed to the East Feliciana Forensic Facility until such time as doctors recommend that he be released, and until further order of the court. In 1988, the superintendent of Feliciana recommended that Foucha be discharged or released. A three-member panel was convened at the institution to determine Foucha’s current condition and whether he could be released or placed on probation without being a danger to others or himself. On March 21, 1988, the panel reported that there had been no evidence of mental illness since admission and recommended that Foucha be conditionally discharged. The trial judge appointed a two-member sanity commission made up of the same two doctors who had conducted the pretrial examination. Their written report stated that Foucha “is presently in remission from mental illness [but] [w]e cannot certify that he would not constitute a menace to himself or others if released.” Id., at 12. One of the doctors testified at a hearing that upon commitment Foucha probably suffered from a drug induced psychosis but that he had recovered from that temporary condition; that he evidenced no signs of psychosis or neurosis and was in “good shape” mentally; that he had, however, an antisocial personality, a condition that is not a mental disease and that is untreatable. The doctor also testified that Foucha had been involved in several altercations at Feliciana and that he, the doctor, would not “feel comfortable in certifying that [Foucha] would not be a danger to himself or to other people.” Id., at 18. After it was stipulated that the other doctor, if he were present, would give essentially the same testimony, the court ruled that Foucha was dangerous to himself and others and ordered him returned to the mental institution. The Court of Appeal refused supervisory writs, and the State Supreme Court affirmed, holding that Foucha had not carried the burden placed upon him by statute to prove that he was not dangerous, that our decision in Jones v. United States, 463 U. S. 354 (1983), did not require Foucha’s release, and that neither the Due Process Clause nor the Equal Protection Clause was violated by the statutory provision permitting confinement of an insanity acquittee based on dangerousness alone. Because the case presents an important issue and was decided by the court below in a manner arguably at odds with prior decisions of this Court, we granted certiorari. 499 U. S. 946 (1991). II Addington v. Texas, 441 U. S. 418 (1979), held that to commit an individual to a mental institution in a civil proceeding, the State is required by the Due Process Clause to prove by clear and convincing evidence the two statutory preconditions to commitment: that the person sought to be committed is mentally ill and that he requires hospitalization for his own welfare and protection of others. Proof beyond a reasonable doubt was not required, but proof by preponderance of the evidence fell short of satisfying due process. When a person charged with having committed a crime is found not guilty by reason of insanity, however, a State may commit that person without satisfying the Addington burden with respect to mental illness and dangerousness. Jones v. United States, supra. Such a verdict, we observed in Jones, “establishes two facts: (i) the defendant committed an act that constitutes a criminal offense, and (ii) he committed the act because of mental illness,” id., at 363, an illness that the defendant adequately proved in this context by a preponderance of the evidence. From these two facts, it could be properly inferred that at the time of the verdict, the defendant was still mentally ill and dangerous and hence could be committed. We held, however, that “[t]he committed acquittee is entitled to release when he has recovered his sanity or is no longer dangerous,” id., at 368; i. e., the acquittee may be held as long as he is both mentally ill and dangerous, but no longer. We relied on O’Connor v. Donaldson, 422 U. S. 563 (1975), which held as a matter of due process that it was unconstitutional for a State to continue to confine a harmless, mentally ill person. Even if the initial commitment was permissible, “it could not constitutionally continue after that basis no longer existed.” Id., at 575. In the summary of our holdings in our opinion we stated that “the Constitution permits the Government, on the basis of the insanity judgment, to confine him to a mental institution until such time as he has regained his sanity or is no longer a danger to himself or society.” Jones, 463 U. S., at 368, 370. The court below was in error in characterizing the above language from Jones as merely an interpretation of the pertinent statutory law in the District of Columbia and as having no constitutional significance. In this case, Louisiana does not contend that Foucha was mentally ill at the time of the trial court’s hearing. Thus, the basis for holding Foucha in a psychiatric facility as an insanity acquittee has disappeared, and the State is no longer entitled to hold him on that basis. O’Connor, supra, at 574-575. The State, however, seeks to perpetuate Foucha’s confinement at Feliciana on the basis of his antisocial personality which, as evidenced by his conduct at the facility, the court found rendered him a danger to himself or others. There are at least three difficulties with this position. First, even if his continued confinement were constitutionally permissible, keeping Foucha against his will in a mental institution is improper absent a determination in civil commitment proceedings of current mental illness and dangerousness. In Vitek v. Jones, 445 U. S. 480 (1980), we held that a convicted felon serving his sentence has a liberty interest, not extinguished by his confinement as a criminal, in not being transferred to a mental institution and hence classified as mentally ill without appropriate procedures to prove that he was mentally ill. “The loss of liberty produced by an involuntary commitment is more than a loss of freedom from confinement.” Id., at 492. Due process requires that the nature of commitment bear some reasonable relation to the purpose for which the individual is committed. Jones, supra, at 368; Jackson v. Indiana, 406 U. S. 715, 738 (1972). Here, according to the testimony given at the hearing in the trial court, Foueha is not suffering from a mental disease or illness. If he is to be held, he should not be held as a mentally ill person. See Jones, supra, at 368; Jackson, supra, at 738. Cf. United States v. Salerno, 481 U. S. 739, 747-748 (1987); Schall v. Martin, 467 U. S. 253, 270 (1984). Second, if Foueha can no longer be held as an insanity ac-quittee in a mental hospital, he is entitled to constitutionally adequate procedures to establish the grounds for his confinement. Jackson v. Indiana, supra, indicates as much. There, a person under criminal charges was found incompetent to stand trial and was committed until he regained his sanity. It was later determined that nothing could be done to cure the detainee, who was a deaf mute. The state courts refused to order his release. We reversed, holding that the State was entitled to hold a person for being incompetent to stand trial only long enough to determine if he could be cured and become competent. If he was to be held longer, the State was required to afford the protections constitutionally required in a civil commitment proceeding. We noted, relying on Baxstrom v. Herold, 383 U. S. 107 (1966), that a convicted criminal who allegedly was mentally ill was entitled to release at the end of his term unless the State committed him in a civil proceeding. “ ‘[T]here is no conceivable basis for distinguishing the commitment of a person who is nearing the end of a penal term from all other civil commitments.’” Jackson v. Indiana, supra, at 724, quoting Baxstrom, supra, at 111-112. Third, “the Due Process Clause contains a substantive component that bars certain arbitrary, wrongful government actions ‘regardless of the fairness of the procedures used to implement them.’” Zinermon v. Burch, 494 U. S. 113, 125 (1990). See also Salerno, supra, at 746; Daniels v. Williams, 474 U. S. 327, 331 (1986). Freedom from bodily restraint has always been at the core of the liberty protected by the Due Process Clause from arbitrary governmental action. Youngberg v. Romeo, 457 U. S. 307, 316 (1982). “It is clear that commitment for any purpose constitutes a significant deprivation of liberty that requires due process protection.” Jones, supra, at 361 (internal quotation marks omitted). We have always been careful not to “minimize the importance and fundamental nature” of the individual’s right to liberty. Salerno, supra, at 750. A State, pursuant to its police power, may of course imprison convicted criminals for the purposes of deterrence and retribution. But there are constitutional limitations on the conduct that a State may criminalize. See, e. g., Brandenburg v. Ohio, 395 U. S. 444 (1969); Robinson v. California, 370 U. S. 660 (1962). Here, the State has no such punitive interest. As Foucha was not convicted, he may not be punished. Jones, supra, at 369. Here, Louisiana has by reason of his acquittal exempted Foucha from criminal responsibility as La. Rev. Stat. Ann. § 14:14 (West 1986) requires. See n. 1, supra. The State may also confine a mentally ill person if it shows “by clear and convincing evidence that the individual is mentally ill and dangerous,” Jones, 463 U. S., at 362. Here, the State has not carried that burden; indeed, the State does not claim that Foucha is now mentally ill. We have also held that in certain narrow circumstances persons who pose a danger to others or to the community may be subject to limited confinement and it is on these cases, particularly United States v. Salerno, supra, that the State relies in this case. Salerno, unlike this case, involved pretrial detention. We observed in Salerno that the “government’s interest in preventing crime by arrestees is both legitimate and compelling,” id., at 749, and that the statute involved there was a constitutional implementation of that interest. The statute carefully limited the circumstances under which detention could be sought to those involving the most serious of crimes (crimes of violence, offenses punishable by life imprisonment or death, serious drug offenses, or certain repeat offenders), id., at 747, and was narrowly focused on a particularly acute problem in which the government interests are overwhelming, id., at 750. In addition to first demonstrating probable cause, the Government was required, in a “full-blown adversary hearing,” to convince a neutral decisionmaker by clear and convincing evidence that no conditions of release can reasonably assure the safety of the community or any person, i. e., that the “arrestee presents an identified and articulable threat to an individual or the community.” Id., at 751. Furthermore, the duration of confinement under the Bail Reform Act of 1984 (Act) was strictly limited. The arrestee was entitled to a prompt detention hearing and the maximum length of pretrial detention was limited by the “stringent time limitations of the Speedy Trial Act.” Id., at 747. If the arrestee were convicted, he would be confined as a criminal proved guilty; if he were acquitted, he would go free. Moreover, the Act required that detainees be housed, to the extent practicable, in a facility separate from persons awaiting or serving sentences or awaiting appeal. Id., at 747-748. Salerno does not save Louisiana’s detention of insanity ac-quittees who are no longer mentally ill. Unlike the sharply focused scheme at issue in Salerno, the Louisiana scheme of confinement is not carefully limited. Under the state statute, Foucha is not now entitled to an adversary hearing at which the State must prove by clear and convincing evidence that he is demonstrably dangerous to the community. Indeed, the State need prove nothing to justify continued detention, for the statute places the burden on the detainee to prove that he is not dangerous. At the hearing which ended with Foucha’s recommittal, no doctor or any other person testified positively that in his opinion Foucha would be a danger to the community, let alone gave the basis for such an opinion. There was only a description of Foucha’s behavior at Feliciana and his antisocial personality, along with a refusal to certify that he would not be dangerous. When directly asked Whether Foucha would be dangerous, Dr. Ritter said only, “I don’t think I would feel comfortable in certifying that he would not be a danger to himself or to other people.” App. 18. This, under the Louisiana statute, was enough to defeat Foucha’s interest in physical liberty. It is not enough to defeat Foucha’s liberty interest under the Constitution in being freed from indefinite confinement in a mental facility. Furthermore, if Foucha committed criminal acts while at Feliciana, such as assault, the State does not explain why its interest would not be vindicated by the ordinary criminal processes involving charge and conviction, the use of enhanced sentences for recidivists, and other permissible ways of dealing with patterns of criminal conduct. These are the normal means of dealing with persistent criminal conduct. Had they been employed against Foucha when he assaulted other inmates, there is little doubt that if then sane he could have been convicted and incarcerated in the usual way. It was emphasized in Salerno that the detention we found constitutionally permissible was strictly limited in duration. 481 U. S., at 747; see also Schall, 467 U. S., at 269. Here, in contrast, the State asserts that because Foucha once committed a criminal act and now has an antisocial personality that sometimes leads to aggressive conduct, a disorder for which there is no effective treatment, he may be held indefinitely. This rationale would permit the State to hold indefinitely any other insanity acquittee not mentally ill who could be shown to have a personality disorder that may lead to criminal conduct. The same would be true of any convicted criminal, even though he has completed his prison term. It would also be only a step away from substituting confinements for dangerousness for our present system which, with only narrow exceptions and aside from permissible confinements for mental illness, incarcerates only those who are proved beyond reasonable doubt to have violated a criminal law. “In our society liberty is the norm, and detention prior to trial or without trial is the carefully limited exception.” United States v. Salerno, supra, at 755. The narrowly focused pretrial detention of arrestees permitted by the Bail Reform Act was found to be one of those carefully limited exceptions permitted by the Due Process Clause. We decline to take a similar view of a law like Louisiana’s, which permits the indefinite detention of insanity acquittees who are not mentally ill but who do not prove they would not be dangerous to others. I HH HH It should be apparent from what has been said earlier in this opinion that the Louisiana statute also discriminates against Foucha in violation of the Equal Protection Clause of the Fourteenth Amendment. Jones established that insanity acquittees may be treated differently in some respects from those persons subject to civil commitment, but Foucha, who is not now thought to be insane, can no longer be so classified. The State nonetheless insists on holding him indefinitely because he at one time committed a criminal act and does not now prove he is not dangerous. Louisiana law, however, does not provide for similar confinement for other classes of persons who have committed criminal acts and who cannot later prove they would not be dangerous. Criminals who have completed their prison terms, or are about to do so, are an obvious and large category of such persons. Many of them will likely suffer from the same sort of personality disorder that Foucha exhibits. However, state law does not allow for their continuing confinement based merely on dangerousness. Instead, the State controls the behavior of these similarly situated citizens by relying on other means, such as punishment, deterrence, and supervised release. Freedom from physical restraint being a fundamental right, the State must have a particularly convincing reason, which it has not put forward, for such discrimination against insanity acquittees who are no longer mentally ill. Furthermore, in civil commitment proceedings the State must establish the grounds of insanity and dangerousness permitting confinement by clear and convincing evidence. Addington, 441 U. S., at 425-433. Similarly, the State must establish insanity and dangerousness by clear and convincing evidence in order to confine an insane convict beyond his criminal sentence, when the basis for his original confinement no longer exists. See Jackson, 406 U. S., at 724; Baxstrom, 383 U. S., at 111-112. Cf. Humphrey v. Cady, 405 U. S. 504, 510-511 (1972). However, the State now claims that it may continue to confine Foucha, who is not now considered to be mentally ill, solely because he is deemed dangerous, but without assuming the burden of proving even this ground for confinement by clear and convincing evidence. The court below gave no convincing reason why the procedural safeguards against unwarranted confinement which are guaranteed to insane persons and those who have been convicted may be denied to a sane acquittee, and the State has done no better in this Court. For the foregoing reasons the judgment of the Louisiana Supreme Court is reversed. So ordered. Louisiana law provides: “If the circumstances indicate that because of a mental disease or mental defect the offender was incapable of distinguishing between right and wrong with reference to the conduct in question, the offender shall be exempt from criminal responsibility.” La. Rev. Stat. Ann. §14:14 (West 1986). Justice Kennedy disregards the fact that the State makes no claim that Foucha was criminally responsible or that it is entitled to punish Foucha as a criminal. The panel unanimously recommended that petitioner be conditionally discharged with recommendations that he (1) be placed on probation; (2) remain free from intoxicating and mind-altering substances; (3) attend a substance abuse clinic on a regular basis; (4) submit to regular and random urine drug screening; and (6) be actively employed or seeking employment. App. 10-11. Although the panel recited that it was charged with determining dangerousness, its report did not expressly make a finding in that regard. Justice Thomas in dissent complains that Foucha should not be released based on psychiatric opinion that he is not mentally ill because such opinion is not sufficiently precise — because psychiatry is not an exact science and psychiatrists widely disagree on what constitutes a mental illness. That may be true, but such opinion is reliable enough to permit the courts to base civil commitments on clear and convincing medical evidence that a person is mentally ill and dangerous and to base release decisions on qualified testimony that the person is no longer mentally ill or dangerous. It is also reliable enough for the State not to punish a person who by a preponderance of the evidence is found to have been insane at the time he committed a criminal act, to say nothing of not trying a person who is at the time found incompetent to understand the proceedings. And more to the point, medical predictions of dangerousness seem to be reliable enough for Justice Thomas to permit the State to continue to hold Foucha in a mental institution, even where the psychiatrist would say no more than that he would hesitate to certify that Foucha would not be dangerous to himself or others. Justice Kennedy’s assertion that we overrule the holding of Jones described in the above paragraph is fanciful at best. As that paragraph plainly shows, we do not question and fully accept that insanity acquittees may be initially held without complying with the procedures applicable to civil committees. As is evident from the ensuing paragraph of the text, we are also true to the further holding of Jones that both Justice Thomas and Justice Kennedy reject: that the period of time during which an insanity acquittee may be held in a mental institution is not measured by the length of a sentence that might have been imposed had he been convicted; rather, the acquittee may be held until he is either not mentally ill or not dangerous. Both Justices would permit the indefinite detention of the acquittee, although the State concedes that he is not mentally ill and although the doctors at the mental institution recommend his release, for no reason other than that a psychiatrist hesitates to certify that the ac-quittee would not be dangerous to himself or others. Justice Kennedy asserts that we should not entertain the proposition that a verdict of not guilty by reason of insanity differs from a conviction. Post, at 94. Jones, however, involved a case where the accused had been “found, beyond a reasonable doubt, to have committed a criminal act.” 463 U. S., at 364. We did not find this sufficient to negate any difference between a conviction and an insanity acquittal. Rather, we observed that a person convicted of crime may of course be punished. But “[djifferent considerations underlie commitment of an insanity acquittee. As he was not convicted, he may not be punished.” Id,., at 369. Justice Kennedy observes that proof beyond reasonable doubt of the commission of a criminal act permits a State to incarcerate and hold the offender on any reasonable basis. There is no doubt that the States have wide discretion in determining punishment for convicted offenders, but the Eighth Amendment ensures that discretion is not unlimited. The Justice cites no authority, but surely would have if it existed, for the proposition that a defendant convicted of a crime and sentenced to a term of years may nevertheless be held indefinitely because of the likelihood that he will commit other crimes. Justice Thomas, dissenting, suggests that there was no issue of the standards for release before us in Jones. The issue in that case, however, was whether an insanity acquittee “must be released because he has been hospitalized for a period longer than he might have served in prison had he been convicted,” 463 U. S., at 366; and in the course of deciding that issue in the negative, we said that the detainee could be held until he was no longer mentally ill or no longer dangerous, regardless of how long a prison sentence might have been. We noted in footnote 11 that Jones had not sought a release based on nonillness or nondangerousness, but as indicated in the text, we twice announced the outside limits on the detention of insanity acquittees. The Justice would “wish” away this aspect of Jones, but that case merely reflected the essence of our prior decisions. Justice Thomas’ dissent firmly embraces the view that the State may indefinitely hold an insanity acquittee who is found by a court to have been cured of his mental illness and who is unable to prove that he would not be dangerous. This would be so even though, as in this case, the court’s finding of dangerousness is based solely on the detainee’s antisocial personality that apparently has caused him to engage in altercations from time to time. Justice Thomas, however, does not challenge the holding of our cases that a convicted criminal may not be held as a mentally ill person without following the requirements for civil commitment, which would not permit further detention based on dangerousness alone. Yet it is surely strange to release sane but very likely dangerous persons who have committed a crime knowing precisely what they were doing but continue to hold indefinitely an insanity detainee who committed a criminal act at a time when, as found by a court, he did not know right from wrong. Justice Thomas’ rationale for continuing to hold the insanity acquittee would surely justify treating the convicted felon in the same way, and if put to it, it appears that he would permit it. But as indicated in the text, this is not consistent with our present system of justice. Justice Thomas relies heavily on the American Law Institute’s (ALI) Model Penal Code and Commentary. However, his reliance on the Model Code is misplaced and his quotation from the Commentary is importantly incomplete. Justice Thomas argues that the Louisiana statute follows “the current provisions” of the Model Penal Code, but he fails to mention that § 4.08 is “current” only in the sense that the Model Code has not been amended since its approval in 1962, and therefore fails to incorporate or reflect substantial developments in the relevant decisional law during the intervening three decades. Thus, although this is nowhere noted in the dissent, the Explanatory Notes expressly concede that related and similarly “current” provisions of Article 4 are unconstitutional. See, e. g., ALI, Model Penal Code §4.06(2), Explanatory Note (1985) (noting that § 4.06(2), permitting indefinite commitment of a mentally incompetent defendant without the finding required for civil commitment, is unconstitutional in light of Jackson v. Indiana, 406 U. S. 715 (1972), and other decisions of this Court). Nor indeed does Justice Thomas advert to the 1985 Explanatory Note to § 4.08 itself, even though that note directly questions the constitutionality of the provision that he so heavily relies on; it acknowledges, as Justice Thomas does not, that “it is now questionable whether a state may use the single criterion of dangerousness to grant discharge if it employs a different standard for release of persons civilly committed.” Justice Thomas also recites from the Commentary regarding §4.08. However, the introductory passage that Justice Thomas quotes prefaces a more important passage that he omits. After explaining the rationale for the questionable provision, the Commentary states: “Constitutional doubts ... exist about the criterion of dangerousness. If a person committed civilly must be released when he is no longer suffering mental illness, it is questionable whether a person acquitted on grounds of mental disease or defect excluding responsibility can be kept in custody solely on the ground that he continues to be dangerous.” Id., § 4.08, Comment 3, p. 260. Thus, while Justice Thomas argues that the Louisiana statute is not a relic of a bygone age, his principal support for this assertion is a 30-year-old provision of the Model Penal Code whose constitutionality has since been openly questioned by the ALI reporters themselves. Similarly unpersuasive is Justice Thomas’ claim regarding the number of States that allow confinement based on dangerousness alone. First, this assertion carries with it an obvious but unacknowledged corollary— the vast majority of States do not allow confinement based on dangerousness alone. Second, Justice Thomas’ description of these state statutes also is importantly incomplete. Even as he argues that a scheme of confinement based on dangerousness alone is not a relic of a bygone age, Justice Thomas neglects to mention that two of the statutes he relies on have been amended, as Justice O’Connor notes. Nor does Justice Thomas acknowledge that at least two of the other statutes he lists as permitting confinement based on dangerousness alone have been given a contrary construction by highest state courts, which have found that the interpretation for which Justice Thomas cites them would be impermissible. See State v. Fields, 77 N. J. 282, 390 A. 2d 574 (1978); In re Lewis, 403 A. 2d 1115, 1121 (Del. 1979), quoting Mills v. State, 256 A. 2d 752, 757, n. 4 (Del. 1969) (“By necessary implication, the danger referred to must be construed to relate to mental illness for the reason that dangerousness without mental illness could not be a valid basis for indeterminate confinement in the State hospital”). See also ALI, Model Penal Code, supra, at 260 (although provisions may on their face allow for confinement based on dangerousness alone, in virtually all actual cases the questions of dangerousness and continued mental disease are likely to be closely linked). As the widespread rejection of the standard for confinement that Justice Thomas and Justice Kennedy argue for demonstrates, States are able to protect both the safety of the public and the rights of the accused without challenging foundational principles of American criminal justice and constitutional law.
Justice O’Connor, concurring in part and concurring in the judgment. Louisiana asserts that it may indefinitely confine Terry Foucha in a mental facility because, although not mentally ill, he might be dangerous to himself or to others if released. For the reasons given in Part II of the Court’s opinion, this contention should be rejected. I write separately, however, to emphasize that the Court’s opinion addresses only the specific statutory scheme before us, which broadly permits indefinite confinement of sane insanity acquittees in psychiatric facilities. This case does not require us to pass judgment on more narrowly drawn laws that provide for detention of insanity acquittees, or on statutes that provide for punishment of persons who commit crimes while mentally ill. I do not understand the Court to hold that Louisiana may never confine dangerous insanity acquittees after they regain mental health. Under Louisiana law, defendants who carry the burden of proving insanity by a preponderance of the evidence will “escape punishment,” but this affirmative defense becomes relevant only after the prosecution establishes beyond a reasonable doubt that the defendant committed criminal acts with the required level of criminal intent. State v. Marmillion, 339 So. 2d 788, 796 (La. 1976). Although insanity acquittees may not be incarcerated as criminals or penalized for asserting the insanity defense, see Jones v. United States, 463 U. S. 354, 368-369, and n. 18 (1983), this finding of criminal conduct sets them apart from ordinary citizens. We noted in Jones that a judicial determination of criminal conduct provides “concrete evidence” of dangerousness. Id., at 364. By contrast, “ ‘[t]he only certain thing that can be said about the present state of knowledge and therapy regarding mental disease is that science has not reached finality of judgment-’ ” Id., at 365, n. 13 (quoting Greenwood v. United States, 350 U. S. 366, 375 (1956)). Given this uncertainty, “courts should pay particular deference to reasonable legislative judgments” about the relationship between dangerous behavior and mental illness. Jones, swpm, at 365, n. 13. Louisiana evidently has determined that the inference of dangerousness drawn from a verdict of not guilty by reason of insanity continues even after a clinical finding of sanity, and that judgment merits judicial deference. It might therefore be permissible for Louisiana to confine an insanity acquittee who has regained sanity if, unlike the situation in this case, the nature and duration of detention were tailored to reflect pressing public safety concerns related to the acquittee’s continuing dangerousness. See United States v. Salerno, 481 U. S. 739, 747-751 (1987); Schall v. Martin, 467 U. S. 253, 264-271 (1984); Jackson v. Indiana, 406 U. S. 715, 738 (1972). Although the dissenters apparently disagree, see post, at 100 (opinion of Kennedy, J.); post, at 125 (opinion of Thomas, J.), I think it clear that acquittees could not be confined as mental patients absent some medical justification for doing so; in such a case the necessary connection between the nature and purposes of confinement would be absent. See Vitek v. Jones, 445 U. S. 480, 491-494 (1980) (discussing infringements upon liberty unique to commitment to a mental hospital); Jones, supra, at 384-385 (Brennan, J., dissenting) (same). Nor would it be permissible to treat all acquittees alike, without regard for their particular crimes. For example, the strong interest in liberty of a person acquitted by reason of insanity but later found sane might well outweigh the governmental interest in detention where the only evidence of dangerousness is that the acquittee committed a nonviolent or relatively minor crime. Cf. Salerno, supra, at 750 (interest in pretrial detention is “overwhelming” where only individuals arrested for “a specific category of extremely serious offenses” are detained and “Congress specifically found that these individuals are far more likely to be responsible for dangerous acts in the community after arrest”). Equal protection principles may set additional limits on the confinement of sane but dangerous acquittees. Although I think it unnecessary to reach equal protection issues on the facts before us, the permissibility of holding an acquittee who is not mentally ill longer than a person convicted of the same crimes could be imprisoned is open to serious question. The second point to be made about the Court’s holding is that it places no new restriction on the States’ freedom to determine whether, and to what extent, mental illness should excuse criminal behavior. The Court does not indicate that States must make the insanity defense available. See Idaho Code §18-207(a) (1987) (mental condition not a defense to criminal charges); Mont. Code Ann. §46-14-102 (1991) (evidence of mental illness admissible to prove absence of state of mind that is an element of the offense). It likewise casts no doubt on laws providing for prison terms after verdicts of “guilty but mentally ill.” See, e. g., Del. Code Ann., Tit. 11, § 408(b) (1987); Ill. Rev. Stat., ch. 38, ¶ 1005-2-6 (1989); Ind. Code § 35-36-2-5 (Supp. 1991). If a State concludes that mental illness is best considered in the context of criminal sentencing, the holding of this case erects no bar to implementing that judgment. Finally, it should be noted that the great majority of States have adopted policies consistent with the Court’s holding. Justice Thomas claims that 11 States have laws comparable to Louisiana’s, see post, at 112-113, n. 9, but even this number overstates the case. Two of the States Justice Thomas mentions have already amended their laws to provide for the release of acquittees who do not suffer from mental illness but may be dangerous. See Cal. Penal Code Ann. § 1026.2 (West Supp. 1992) (effective Jan. 1, 1994); Va. Code Ann. § 19.2-182.5 (Supp. 1991) (effective July 1, 1992). Three others limit the maximum duration of criminal commitment to reflect the acquittee’s specific crimes and hold acquittees in facilities appropriate to their mental condition. See N. J. Stat. Ann. §§2C:4-8(b)(3) (West 1982), 30:4-24.2 (West 1981); Wash. Rev. Code §§10.77.020(3), 10.77.110(1) (1990); Wis. Stat. §§971.17(1), (3)(c) (Supp. 1991). I do not understand the Court’s opinion to render such laws necessarily invalid. Of the remaining six States, two do not condition commitment upon proof of every element of a crime. Kan. Stat. Ann. §22-3428(1) (Supp. 1990) (“A finding of not guilty by reason of insanity shall constitute a finding that the acquitted person committed an act constituting the offense charged . . . , except that the person did not possess the requisite criminal intent”); Mont. Code Ann. §46-14-301(1) (1991) (allowing commitment of persons “found not guilty for the reason that due to a mental disease or defect the defendant could not have a particular state of mind that is an essential element of the offense charged”). Such laws might well fail even under the dissenters’ theories. See post, at 91-94 (Kennedy, J., dissenting); post, at 103 (Thomas, J., dissenting). Today’s holding follows directly from our precedents and leaves the States appropriate latitude to care for insanity acquittees in a way consistent with public welfare. Accordingly, I concur in Parts I and II of the Court’s opinion and in the judgment of the Court.
Justice Kennedy, with whom The Chief Justice joins, dissenting. As incarceration of persons is the most common and one of the most feared instruments of state oppression and state indifference, we ought to acknowledge at the outset that freedom from this restraint is essential to the basic definition of liberty in the Fifth and Fourteenth Amendments of the Constitution. I agree with the Court’s reaffirmation of this first premise. But I submit with all respect that the majority errs in its failure to recognize that the conditions for incarceration imposed by the State in this case are in accord with legitimate and traditional state interests, vindicated after full and fair procedures. The error results from the majority’s primary reliance on cases, such as O’Connor v. Donaldson, 422 U. S. 563 (1975), and Addington v. Texas, 441 U. S. 418 (1979), which define the due process limits for involuntary civil commitment. The majority relies on these civil cases while overruling without mention one of the holdings of our most recent and significant precedent from the criminal context, Jones v. United States, 463 U. S. 354 (1983). This is a criminal case. It began one day when petitioner, brandishing a .357 revolver, entered the home of a married couple, intending to steal. Brief for Respondent 1. He chased them out of their home and fired on police officers who confronted him as he fled. Id., at 1-2. Petitioner was apprehended and charged with aggravated burglary and the illegal use of a weapon in violation of La. Rev. Stat. Ann. §§ 14:60 and 14:94 (West 1986). 563 So. 2d 1138, 1138-1139 (La. 1990). There is no question that petitioner committed the criminal acts charged. Petitioner’s response was to deny criminal responsibility based on his mental illness when he committed the acts. He contended his mental illness prevented him from distinguishing between right and wrong with regard to the conduct in question. Mental illness may bear upon criminal responsibility, as a general rule, in either of two ways: First, it may preclude the formation of mens rea, if the disturbance is so profound that it prevents the defendant from forming the requisite intent as defined by state law; second, it may support an affirmative plea of legal insanity. See W. LaFave & A. Scott, Jr., 1 Substantive Criminal Law § 4.1(b), pp. 429-430 (1986) (hereinafter LaFave & Scott). Depending on the content of state law, the first possibility may implicate the State’s initial burden, under In re Winship, 397 U. S. 358, 364 (1970), to prove every element of the offense beyond a reasonable doubt, while the second possibility does not. Patterson v. New York, 432 U. S. 197, 206 (1977); Leland v. Oregon, 343 U. S. 790, 795-796 (1952). The power of the States to determine the existence of criminal insanity following the establishment of the underlying offense is well established. In Leland v. Oregon, we upheld a state law that required the defendant to prove insanity beyond a reasonable doubt, observing that this burden had no effect on the State’s initial burden to prove every element of the underlying criminal offense. “[T]he burden of proof of guilt, and of all the necessary elements of guilt, was placed squarely upon the State. As the jury was told, this burden did not shift, but rested upon the State throughout the trial, just as, according to the instructions, appellant was presumed to be innocent until the jury was convinced beyond a reasonable doubt that he was guilty. The jurors were to consider separately the issue of legal sanity per se — an issue set apart from the crime charged, to be introduced by a special plea and decided by a special verdict.” Id., at 795-796 (footnotes omitted). As then-Justice Rehnquist explained the reasoning of Leland, “the existence or nonexistence of legal insanity bears no necessary relationship to the existence or nonexistence of the required mental elements of the crime.” Mullaney v. Wilbur, 421 U. S. 684, 706 (1975) (concurring opinion); see also Patterson v. New York, supra, at 206 (defense of insanity considered only after the facts constituting the crime have been proved beyond a reasonable doubt); Rivera v. Delaware, 429 U. S. 877 (1976) (dismissing challenge to a Leland instruction for want of a substantial federal question). Louisiana law follows the pattern in Leland with clarity and precision. Pursuant to La. Code Crim. Proc. Ann., Art. 552 (West 1981), the petitioner entered a dual plea of not guilty and not guilty by reason of insanity. The dual plea, which the majority does not discuss or even mention, ensures that the Winship burden remains on the State to prove all the elements of the crime. The Louisiana Supreme Court confirms this in a recent case approving the following jury instruction on the defense of insanity: “Tn this case the accused has entered a dual plea of not guilty and not guilty by reason of insanity. As a consequence of such a plea, you must first determine whether or not the accused committed a crime [on which you have been instructed]. If you are convinced beyond a reasonable doubt that the accused did commit any of these crimes, any one of these crimes, then you must proceed to a determination of whether he was sane at the time the crime was committed and thereby criminally responsible for committing it.’ ” State v. Marmillion, 339 So. 2d 788, 796 (1976). The State’s burden is unaffected by an adjudication without trial, such as occurred here, because state law requires the trial court to determine, before accepting the plea, that there is a factual basis for it. La. Code Crim. Proc. Ann., Art. 568.1 (West Supp. 1992). There is no dispute that the trial court complied with state law and made the requisite findings. Compliance with the standard of proof beyond a reasonable doubt is the defining, central feature in criminal adjudication, unique to the criminal law. Addington, 441 U. S., at 428. Its effect is at once both symbolic and practical, as a statement of values about respect and confidence in the criminal law, Winship, 397 U. S., at 364, and an apportionment of risk in favor of the accused, id., at 369-372 (Harlan, J., concurring). We have often subjected to heightened due process scrutiny, with regard to both purpose and duration, deprivations of physical liberty imposed before a judgment is rendered under this standard. See, e. g., United States v. Salerno, 481 U. S. 739, 750-751 (1987); Jackson v. Indiana, 406 U. S. 715, 738 (1972); cf. Jones v. United States, 463 U. S., at 363-364, and n. 12 (“The proof beyond a reasonable doubt that the acquittee committed a criminal act distinguishes this case from Jackson v. Indiana, 406 U. S. 715 (1972).... In Jackson there never was any affirmative proof that the accused had committed criminal acts ...”). The same heightened due process scrutiny does not obtain, though, once the State has met its burden of proof and obtained an adjudication. It is well settled that upon compliance with In re Winship, the State may incarcerate on any reasonable basis. Chapman v.. United States, 500 U. S. 453, 465 (1991); Williams v. Illinois, 399 U. S. 235, 243 (1970). As Justice Thomas observes in his dissent, the majority errs by attaching “talismanic significance” to the fact that petitioner has been adjudicated “not guilty by reason of insanity. ” Post, at 118,n. 13. A verdict of not guilty by reason of insanity is neither equivalent nor comparable to a verdict of not guilty standing alone. We would not allow a State to evade its burden of proof by replacing its criminal law with a civil system in which there is no presumption of innocence and the defendant has the burden of proof. Nor should we entertain the proposition that this case differs from a conviction of guilty because petitioner has been adjudged “not guilty by reason of insanity,” rather than “guilty but insane.” Petitioner has suggested no grounds on which to distinguish the liberty interests involved or procedural protections afforded as a consequence of the State’s ultimate choice of nomenclature. The due process implications ought not to vary under these circumstances. This is a criminal case in which the State has complied with the rigorous demands of In re Winship. The majority’s failure to recognize the criminal character of these proceedings and its concomitant standards of proof leads it to conflate the standards for civil and criminal commitment in a manner not permitted by our precedents. O’Connor v. Donaldson, 422 U. S. 563 (1975), and Addington v. Texas, supra, define the due process limits of involuntary civil commitment. Together they stand for the proposition that in civil proceedings the Due Process Clause requires the State to prove both insanity and dangerousness by clear and convincing evidence. See O’Connor, supra, at 575; Addington, supra, at 433. Their precedential value in the civil context is beyond question. But it is an error to apply these precedents, as the majority does today, to criminal proceedings. By treating this criminal case as a civil one, the majority overrules a principal holding in Jones v. United States, 463 U. S., at 354. In Jones we considered the system of criminal commitment enacted by Congress for the District of Columbia. Id., at 356-358. Congress provided for acquittal by reason of insanity only after the Government had shown, beyond a reasonable doubt, that the defendant had committed the crimes charged. Id., at 363-364, and n. 12. In cases of acquittal by reason of insanity, District law provided for automatic commitment followed by periodic hearings, where the insanity acquittee was given the opportunity to prove that he was no longer insane or dangerous. Id., at 357-358, and n. 3. Petitioner in Jones contended that Addington and O’Connor applied to criminal proceedings as well as civil, requiring the Government to prove insanity and dangerousness by clear and convincing evidence before commitment. We rejected that contention. In Jones we distinguished criminal from civil commitment, holding that the Due Process Clause permits automatic incarceration after a criminal adjudication and without further process. Id., at 366. The majority today in effect overrules that holding. It holds that “keeping Foucha against his will in a mental institution is improper absent a determination in civil commitment proceedings of current mental illness and dangerousness.” Ante, at 78; see also ante, at 80, 85-86. Our holding in Jones was clear and to the contrary. We should not so disregard controlling precedent. Our respect for the Court’s opinion in Jones should be informed by the recognition that its distinction between civil and criminal commitment is both sound and consistent with long-established precedent. First, as described above, the procedural protections afforded in a criminal commitment surpass those in a civil commitment; indeed, these procedural protections are the most stringent known to our law. Second, proof of criminal conduct in accordance with In re Winship eliminates the risk of incarceration “for mere ‘idiosyncratic behavior,’ [because a] criminal act by definition is not ‘within a range of conduct that is generally acceptable.’ ” Jones, supra, at 367, quoting Addington, supra, at 426-427, The criminal law defines a discrete category of conduct for which society has reserved its greatest opprobrium and strictest sanctions; past or future dangerousness, as ascertained or predicted in civil proceedings, is different in kind. Third, the State presents distinct rationales for these differing forms of commitment: In the civil context, the State acts in large part on the basis of its parens patriae power to protect and provide for an ill individual, while in the criminal context, the State acts to ensure the public safety. See Addington, 441 U. S., at 426; S. Brakel, J. Parry, & B. Weiner, The Mentally Disabled and the Law 24-25 (3d ed. 1985). A dismissive footnote, see ante, at 76-77, n. 4, cannot overcome these fundamental defects in the majority’s opinion. The majority’s opinion is troubling at a further level, because it fails to recognize or account for profound differences between clinical insanity and state-law definitions of criminal insanity. It is by now well established that insanity as defined by the criminal law has no direct analog in medicine or science. “[T]he divergence between law and psychiatry is caused in part by the legal fiction represented by the words ‘insanity’ or ‘insane,’ which are a kind of lawyer’s catchall and have no clinical meaning.” J. Biggs, The Guilty Mind 117 (1955); see also 2 J. Bouvier, Law Dictionary 1590 (8th ed. 1914) (“The legal and the medical ideas of insanity are essentially different, and the difference is one of substance”). Consistent with the general rule that the definition of both crimes and defenses is a matter of state law, see Patterson v. New York, 432 U. S., at 210, the States are free to recognize and define the insanity defense as they see fit. “Nothing could be less fruitful than for this Court to be impelled into defining some sort of insanity test in constitutional terms.... It is simply not yet the time to write into the Constitution formulas cast in terms whose meaning, let alone relevance, is not yet clear either to doctors or to lawyers.” Powell v. Texas, 392 U. S. 514, 536-537 (1968) (plurality opinion). See also id., at 545 (the Constitution does not impose on the States any particular test of criminal responsibility) (Black, J., concurring). As provided by Louisiana law, and consistent with both federal criminal law and the law of a majority of the States, petitioner was found not guilty by reason of insanity under the traditional M’Naghten test. See La. Rev. Stat. Ann. § 14:14 (West 1986); 18 U. S. C. § 17; M’Naghten’s Case, 10 Cl. & Fin. 200, 8 Eng. Rep. 718 (1843); 1 LaFave & Scott § 4.2, at 436. Louisiana law provides a traditional statement of this test: “If the circumstances indicate that because of a mental disease or mental defect the offender was incapable of distinguishing between right and wrong with reference to the conduct in question, the offender shall be exempt from criminal responsibility.” La. Rev. Stat. Ann. § 14:14 (West 1986). Because the M’Naghten test for insanity turns on a finding of criminal irresponsibility at the time of the offense, it is quite wrong to place reliance on the fact, as the majority does, that Louisiana does not contend that petitioner is now insane. See ante, at 78. This circumstance should come as no surprise, since petitioner was competent at the time of his plea, 563 So. 2d, at 1139, and indeed could not have entered a plea otherwise, see Drope v. Missouri, 420 U. S. 162, 171 (1975). Present sanity would have relevance if petitioner had been committed as a consequence of civil proceedings, in which dangerous conduct in the past was used to predict similar conduct in the future. It has no relevance here, however. Petitioner has not been confined based on predictions about future behavior but rather for past criminal conduct. Unlike civil commitment proceedings, which attempt to divine the future from the past, in a criminal trial whose outcome turns on M’Naghten, findings of past insanity and past criminal conduct possess intrinsic and ultimate significance. The system here described is not employed in all jurisdictions. Some have supplemented the traditional M’Naghten test with the so-called “irresistible impulse” test, see 1 La-Fave & Scott §4.1, at 427-428; others have adopted a test proposed as part of the Model Penal Code, see ibid.; and still others have abolished the defense altogether, see Idaho Code § 18-207(a) (1987); Mont. Code Ann. §46-14-102 (1992). Since it is well accepted that the States may define their own crimes and defenses, see supra, at 96, the point would not warrant further mention, but for the fact that the majority loses sight of it. In describing our decision in Jones, the majority relies on our statement that a verdict of not guilty by reason of insanity establishes that the defendant “ ‘committed the act because of mental illness/” Ante, at 76, quoting Jones, 463 U. S., at 363. That was an accurate statement in Jones but not here. The defendant in Jones was acquitted under the Durham test for insanity, which excludes from punishment criminal conduct that is the product of a mental disease or defect. See Bethea v. United States, 366 A. 2d 64, 69, n. 11 (1976); see also Durham v. United States, 94 U. S. App. D. C. 228, 240-241, 214 F. 2d 862, 874-875 (1954). In a Durham jurisdiction, it would be fair to say, as the Court did in Jones, that a defendant acquitted by reason of insanity “committed the act because of mental illness.” Jones, supra, at 363. The same cannot be said here, where insanity under M’Naghten proves only that the defendant could not have distinguished between right and wrong. It is no small irony that the aspect of Jones on which the majority places greatest reliance, and indeed cites as an example of its adherence to Jones, has no bearing on the Louisiana statute at issue here. See ante, at 76, and n. 4. The establishment of a criminal act and of insanity under the M’Naghten regime provides a legitimate basis for confinement. Although Louisiana has chosen not to punish insanity acquittees, the State has not surrendered its interest in incapacitative incarceration. The Constitution does not require any particular model for criminal confinement, Harmelin v. Michigan, 601 U. S. 967, 999 (1991) (Kennedy, J., concurring in judgment) (“The federal and state criminal systems have accorded different weights at different times to the penological goals of retribution, deterrence, incapacitation, and rehabilitation”); Williams v. New York, 337 U. S. 241, 246 (1949), and upon compliance with In re Winship, the State may incarcerate on any reasonable basis, see supra, at 93. Incapacitation for the protection of society is not an unusual ground for incarceration. “[Isolation of the dangerous has always been considered an important function of the criminal law,” Powell v. Texas, 392 U. S. 514, 539 (1968) (Black, J., concurring), and insanity acquittees are a special class of offenders proved dangerous beyond their own ability to comprehend. The wisdom of incarceration under these circumstances is demonstrated by its high level of acceptance. Every State provides for discretionary or mandatory incarceration of insanity acquittees, 1 LaFave & Scott § 4.6(a), at 510, and as Justice Thomas observes in his dissent, provisions like those in Louisiana, predicated on dangerousness alone, have been endorsed by the Model Penal Code and adopted by the legislatures of no fewer than 11 other States. See post, at 111-112, and nn. 8 and 9. It remains to be seen whether the majority, by questioning the legitimacy of incapacitative incarceration, puts in doubt the confinement of persons other than insanity acquittees. Parole release provisions often place the burden of proof on the prisoner to prove his lack of dangerousness. To use a familiar example, under the federal parole system in place until the enactment of the Sentencing Guidelines, an inmate could not be released on parole unless he established that his “release would not jeopardize the public welfare.” 18 U. S. C. § 4206(a)(2) (1982 ed.), repealed 98 Stat. 2027; see also 28 CFR §2.18 (1991). This requirement reflected “the inca-pacitative aspect of the use of imprisonment which has the effect of denying the opportunity for future criminality, at least for a time.” U. S. Dept. of Justice, United States Parole Commission Rules and Procedures Manual 69 (July 24, 1989). This purpose is consistent with the parole release provisions of Alabama, Colorado, Hawaii, Massachusetts, Michigan, New York, and the District of Columbia, to name just a few. See N. Cohen & J. Gobert, Law of Probation and Parole § 3.05, p. 109, and n. 103 (1983). It is difficult for me to reconcile the rationale of incapacitative incarceration, which underlies these regimes, with the opinion of the majority, which discounts its legitimacy. I also have difficulty with the majority’s emphasis on the conditions of petitioner’s confinement. In line with Justice O’Connor’s concurring opinion, see ante, at 87-88, the majority emphasizes the fact that petitioner has been confined in a mental institution, see ante, at 77-78, 78-79, 82, suggesting that his incarceration might not be unconstitutional if undertaken elsewhere. The majority offers no authority for its suggestion, while Justice O’Connor relies on a reading of Vitek v. Jones, 445 U. S. 480 (1980), which was rejected by the Court in Jones v. United States. See ante, at 87-88, citing Jones v. United States, supra, at 384-385 (Brennan, J., dissenting). The petitioner did not rely on this argument at any point in the proceedings, and we have not the authority to make the assumption, as a matter of law, that the conditions of petitioner’s confinement are in any way infirm. Ours is not a case, as in Vitek v. Jones, where the State has stigmatized petitioner by placing him in a mental institution when he should have been placed elsewhere. Jones v. United States is explicit on this point: “A criminal defendant who successfully raises the insanity defense necessarily is stigmatized by the verdict itself, and thus the commitment causes little additional harm in this respect.” 463 U. S., at 367, n. 16. Nor is this a case, as in Washington v. Harper, 494 U. S. 210 (1990), in which petitioner has suffered some further deprivation of liberty to which independent due process protections might attach. Both the fact and conditions of confinement here are attributable to petitioner’s criminal c