Cite as: 504 U. S. 71 (1992)
Thomas, J., dissenting
The Court suggests an alternative "procedural" due process theory that is, if anything, even less persuasive than its principal theory. "[K]eeping Foucha against his will in a mental institution is improper absent a determination in civil commitment proceedings of current mental illness and dangerousness." Ante, at 78 (emphasis added). The Court cites Vitek v. Jones, 445 U. S. 480 (1980), as support. There are two problems with this theory. First, it is illogical: Louisiana cannot possibly extend Foucha's incarceration by adding the procedures afforded to civil committees, since it is impossible to civilly commit someone who is not presently
N. J. Stat. Ann. § 2C:4-9 (West 1982) (insanity acquittee not entitled to release or discharge until court satisfied that he is not "danger to himself or others"); N. C. Gen. Stat. § 122C-268.1(i) (Supp. 1991) (insanity acquit-tee not entitled to release until he "prove[s] by a preponderance of the evidence that he is no longer dangerous to others"); Va. Code Ann. § 19.2- 181(3) (1990) (insanity acquittee not entitled to release until he proves "that he is not insane or mentally retarded and that his discharge would not be dangerous to the public peace and safety or to himself" (emphasis added)); Wash. Rev. Code § 10.77.200(2) (1990) ("The burden of proof [at a release hearing] shall be upon the [insanity acquittee] to show by a preponderance of the evidence that [he] may be finally discharged without substantial danger to other persons, and without presenting a substantial likelihood of committing felonious acts jeopardizing public safety or security"); Wis. Stat. § 971.17(4) (Supp. 1991) (insanity acquittee not entitled to release where court "finds by clear and convincing evidence that the [acquit-tee] would pose a significant risk of bodily harm to himself or herself or to others of serious property damage if conditionally released").
The Court and the concurrence dispute this list of statutes. Ante, at 84-85, n. 6; ante, at 89 (O'Connor, J., concurring in part and concurring in judgment). They note that two of the States have enacted new laws, not yet effective, modifying their current absolute prohibitions on the release of dangerous insanity acquittees; that courts in two other States have apparently held that mental illness is a prerequisite to confinement; and that three of the States place caps of some sort on the duration of the confinement of insanity acquittees. Those criticisms miss my point. I cite the 11 state statutes above only to show that the legislative judgments underlying Louisiana's scheme are far from unique or freakish, and that there is no well-established practice in our society, either past or present, of automatically releasing sane-but-dangerous insanity acquittees.
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