112
Thomas, J., dissenting
standard provides a means for the control of the occasional defendant who may be quite dangerous but who successfully feigned mental disease to gain an acquittal." Model Penal Code § 4.08, Comment 3, pp. 259-260 (1985).8
That this is a reasonable legislative judgment is underscored by the fact that it has been made by no fewer than 11 state legislatures, in addition to Louisiana's, which expressly provide that insanity acquittees shall not be released as long as they are dangerous, regardless of sanity.9
8 The relevant provision of the Model Penal Code, strikingly similar to Article 657 of the Louisiana Code of Criminal Procedure, see supra, n. 6, provides in part as follows: "If the Court is satisfied by the report filed pursuant to Subsection (2) of this Section and such testimony of the reporting psychiatrists as the Court deems necessary that the committed person may be discharged or released on condition without danger to himself or others, the Court shall order his discharge or his release on such conditions as the Court determines to be necessary. If the Court is not so satisfied, it shall promptly order a hearing to determine whether such person may safely be discharged or released. Any such hearing shall be deemed a civil proceeding and the burden shall be upon the committed person to prove that he may safely be discharged or released." Model Penal Code § 4.08(3) (Proposed Official Draft 1962).
9 See Cal. Penal Code Ann. § 1026.2(e) (West Supp. 1992) (insanity acquit-tee not entitled to release until court determines that he "will not be a danger to the health and safety of others, including himself"); Del. Code Ann., Tit. 11, § 403(b) (1987) (insanity acquittee shall be kept institutionalized until court "is satisfied that the public safety will not be endangered by his release"); Haw. Rev. Stat. § 704-415 (1985) (insanity acquittee not entitled to release until court satisfied that acquittee "may safely be discharged or released"); Iowa Rule Crim. Proc. 21.8(e) (insanity acquittee not entitled to release as long as "court finds that continued custody and treatment are necessary to protect the safety of the [acquittee's] self or others"); Kan. Stat. Ann. § 22-3428(3) (Supp. 1990) (insanity acquittee not entitled to release until "the court finds by clear and convincing evidence that [he] will not be likely to cause harm to self or others if released or discharged"); Mont. Code Ann. § 46-14-301(3) (1991) (insanity acquittee not entitled to release until he proves that he "may safely be released");
Page: Index Previous 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 NextLast modified: October 4, 2007