110
Thomas, J., dissenting
deference to reasonable legislative judgments." Jones, supra, at 365, n. 13 (quoting Greenwood v. United States, 350 U. S. 366, 375 (1956); citations omitted).
In this very case, the panel that evaluated Foucha in 1988 concluded that there was "never any evidence of mental illness or disease since admission," App. 10; the trial court, of course, concluded that Foucha was "presently insane," id., at 6, at the time it accepted his plea and sent him to Feliciana.
The distinction between civil committees and insanity acquittees, after all, turns not on considerations of present sanity, but instead on the fact that the latter have "already unhappily manifested the reality of anti-social conduct," Dixon v. Jacobs, 138 U. S. App. D. C. 319, 334, 427 F. 2d 589, 604 (1970) (Leventhal, J., concurring). "[T]he prior anti-social conduct of an insanity acquittee justifies treating such a person differently from ones otherwise civilly committed for purposes of deciding whether the patient should be released." Powell v. Florida, 579 F. 2d 324, 333 (CA5 1978) (emphasis added); see also United States v. Ecker, 177 U. S. App. D. C. 31, 50, 543 F. 2d 178, 197 (1976), cert. denied, 429 U. S. 1063 (1977). While a State may renounce a punitive interest by offering an insanity defense, it does not follow that, once the acquittee's sanity is "restored," the State is required to ignore his criminal act, and to renounce all interest in protecting society from him. "The state has a substantial interest in avoiding premature release of insanity acquittees, who have committed acts constituting felonies and have been declared dangerous to society." Hickey v. Morris, 722 F. 2d 543, 548 (CA9 1983).
Furthermore, the Federal Constitution does not require a State to "ignore the danger of 'calculated abuse of the insanity defense.' " Warren v. Harvey, 632 F. 2d 925, 932 (CA2 1980) (quoting United States v. Brown, 155 U. S. App. D. C. 402, 407, 478 F. 2d 606, 611 (1973)). A State that decides to offer its criminal defendants an insanity defense, which the defendant himself is given the choice of invoking, is surely
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