108
Thomas, J., dissenting
That being the case, he is entitled to the same treatment as civil committees. "[I]f Foucha can no longer be held as an insanity acquittee," the Court says, "he is entitled to constitutionally adequate procedures [those afforded in civil commitment proceedings] to establish the grounds for his confinement." Ante, at 79 (emphasis added). This, of course, is an equal protection argument (there being no rational distinction between A and B, the State must treat them the same); the Court does not even pretend to examine the fairness of the release procedures the State has provided.
I cannot agree with the Court's conclusion because I believe that there is a real and legitimate distinction between insanity acquittees and civil committees that justifies procedural disparities. Unlike civil committees, who have not been found to have harmed society, insanity acquittees have been found in a judicial proceeding to have committed a criminal act.
That distinction provided the ratio decidendi for our most relevant precedent, Jones v. United States, 463 U. S. 354 (1983). That case involved a man who had been automatically committed to a mental institution after being acquitted of a crime by reason of insanity in the District of Columbia (i. e., he had not been given the procedures afforded to civil committees). We rejected both of his procedural due process challenges to his commitment. First, we held that an insanity acquittal justified automatic commitment of the acquittee (even though he might presently be sane), because Congress was entitled to decide that the verdict provided a reasonable basis for inferring dangerousness and insanity at the time of commitment. Id., at 366. The Government's interest in avoiding a de novo commitment hearing following every insanity acquittal, we said, outweighed the acquittee's interest in avoiding unjustified institutionalization. Ibid. Second, we held that the Constitution did not require, as a predicate for the indefinite commitment of insanity acquit-tees, proof of insanity by "clear and convincing" evidence, as
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