Opinion
AC 44043
02-07-2023
STATE of Connecticut v. Franklin FOSTER
Richard E. Condon, Jr., senior assistant public defender, for the appellant (acquittee). James M. Ralls, special assistant state's attorney, with whom, on the brief, were Paul J. Ferencek, state's attorney, and Maureen Ornousky, supervisory assistant state's attorney, for the appellee (state).
Richard E. Condon, Jr., senior assistant public defender, for the appellant (acquittee).
James M. Ralls, special assistant state's attorney, with whom, on the brief, were Paul J. Ferencek, state's attorney, and Maureen Ornousky, supervisory assistant state's attorney, for the appellee (state).
Cradle, Suarez and Seeley, Js.
SUAREZ, J. The acquittee, Franklin Foster, appeals from the judgment of the trial court granting the state's petition seeking his continued commitment to the jurisdiction of the Psychiatric Security Review Board (board) pursuant to General Statutes § 17a-593. The acquittee claims that the court improperly (1) found that the state had proven by clear and convincing evidence that he suffered from a mental illness resulting in his being a danger to himself or others and (2) rejected his claim that § 17a-593, as applied to him, violates his right to equal protection guaranteed by the federal constitution. We affirm the judgment of the trial court.
The following undisputed facts and procedural history underlie the present appeal. In 2002, following a trial before the court, Hon. William F. Hickey, Jr. , judge trial referee, the acquittee was found not guilty by reason of mental disease or defect under General Statutes § 53a-13 with respect to the following offenses: burglary in the first degree in violation of General Statutes (Rev. to 2001) § 53a-101 (a) (2); risk of injury to a minor in violation of General Statutes § 53-21 (a) (1) ; two counts of assault in the third degree in violation of General Statutes § 53a-61 (a) (1) ; and two counts of possession of a weapon on school grounds in violation of General Statutes § 53a-217b (a) (1). The facts underlying the offenses are not in dispute. On January 16, 2001, the acquittee, then twenty-four years old, entered a Greenwich middle school while in possession of two knives. In a school hallway, the acquittee slapped, punched, and kicked a male sixth grade student, and he lifted a female sixth grade student over his head. The acquittee was on school grounds without permission and his violent conduct was unprovoked. When the acquittee was asked by the police why he was at the school, he responded, "I'm here to fight the first person I see. Both of us were in the wrong place at the wrong time." On April 2, 2003, the court committed the acquittee to the jurisdiction of the board for a period of time not to exceed ten years, and the acquittee was subsequently admitted to a psychiatric hospital. By agreement of the parties, the acquittee's commitment was continued by the court for one year in 2013, two years in 2014, two years in 2016, and one year in 2018. On July 24, 2018, the acquittee was granted conditional release, at which time he was discharged from the hospital and began living in the community. His release in the community was conditioned upon his compliance with several requirements pertaining to his ongoing mental health treatment.
Later, the board determined that, during the incident at issue, the acquittee was responding to "command auditory hallucinations that told him to assault a minor."
On July 9, 2019, the state filed a petition for continued commitment pursuant to § 17a-593. Therein, it alleged that "[t]he state is of the opinion that reasonable cause exists to believe that the acquittee continues to be a danger to himself or others if discharged" and that "without continued supervision by the board, [the acquittee] would quickly decompensate and become a risk." Thereafter, the acquittee filed a motion to dismiss the petition as well as an accompanying memorandum of law in which he relied on equal protection grounds. In broad terms, the acquittee argued that the recommitment procedure that applies to him as a committed acquittee pursuant to § 17a-593 differs from the recommitment procedure that applies to civilly committed inmates pursuant to General Statutes § 17a-515. Although the acquittee does not define the term "civilly committed inmates" with specificity, courts in prior cases have defined such persons as "mentally ill, convicted defendants who were transferred, pursuant to General Statutes §§ 17a-498 and 17a-515, to a psychiatric facility while they were serving their sentences, and whom the state seeks to commit to a similar institution after their sentences end." (Footnote omitted.) State v. Dyous , 307 Conn. 299, 301, 53 A.3d 153 (2012) ; see also State v. Long , 268 Conn. 508, 514, 847 A.2d 862 (defining "civilly committed inmates" as "convicted prisoners who subsequently are civilly committed to a mental hospital at some point after they have been incarcerated"), cert. denied, 543 U.S. 969, 125 S. Ct. 424, 160 L. Ed. 2d 340 (2004). The acquittee also argued that such disparate treatment of similarly situated persons cannot withstand intermediate scrutiny under the equal protection clause of the federal constitution. On August 27, 2019, the board filed with the court a report in which it recommended that the acquittee's commitment be extended for a period of time not to exceed five years. On November 12, 2019, the acquittee filed a motion to strike the portion of the board's report filed with the court that recommended that the acquittee's commitment be extended for five years, and he referred to arguments that he made in his memorandum of law he filed in support of his motion to dismiss.
Pursuant to § 17a-515, General Statutes § 17a-498, which codifies the involuntary civil commitment procedure, is made applicable to any person in the custody of the Commissioner of Correction. Our Supreme Court has explained that "[t]he procedure for extending an insanity acquittee's term of commitment to the [board] imposes greater burdens on individual liberty than does the civil commitment procedure applicable to civilly committed inmates, that is, mentally ill, convicted defendants who were transferred, pursuant to §§ 17a-498 and 17a-515, to a psychiatric facility while they were serving their sentences, and whom the state seeks to commit to a similar institution after their sentences end. Among other disparities between the two commitment schemes, the procedure for recommitting insanity acquittees directs the finder of fact to ‘[consider] that its primary concern is the protection of society’; General Statutes [Rev. to 2011] § 17a-593 (g) ; whereas the procedure for recommitting civilly committed inmates directs the finder of fact to ‘[consider] whether ... a less restrictive placement is available ....’ General Statutes § 17a-498 (c)." (Footnotes omitted.) State v. Dyous , 307 Conn. 299, 301, 53 A.3d 153 (2012).
In December, 2019, the court, Hon. Richard F. Comerford, Jr., judge trial referee, held a hearing related to the acquittee's motions and the state's petition. In oral rulings, the court denied the motion to dismiss the petition and the motion to strike the board's recommendation. On December 18, 2019, the court issued a memorandum of decision granting the state's petition to extend the acquittee's commitment, for a period of two years, until December 23, 2021.
On March 16, 2020, the acquittee filed the present appeal. On May 5, 2020, the acquittee filed a motion for rectification in which he argued that, in its memorandum of decision, the court mistakenly stated that he had been acquitted of two counts of possession of a firearm on school grounds, rather than two counts of possession of a weapon on school grounds. On September 30, 2020, the court held a rectification hearing, during which it stated that the acquittee's request for rectification was appropriate.
On March 26, 2021, the court, White, J ., issued a corrected memorandum of decision in which it reiterated the findings and conclusions that had been set forth in Judge Comerford's original memorandum of decision, thereby granting the petition for a period of two years. In the corrected memorandum of decision, however, the court addressed the grounds for the acquittee's motion for rectification by stating that the acquittee had been acquitted of two counts of possession of a weapon on school grounds. The court also incorporated by reference statements made by Judge Comerford during the rectification hearing. Additional facts and procedural history will be discussed as necessary.
The state represents, and the acquittee does not dispute, that, on October 18, 2021, the court, with the agreement of the parties, extended the acquittee's commitment until March 21, 2023.
I
First, the acquittee claims that the court improperly found that the state had proven by clear and convincing evidence that he suffered from a mental illness resulting in his being a danger to himself or others. Specifically, he claims that the state was required, but failed, to establish by clear and convincing evidence that he posed a risk of imminent physical injury to himself or others, meaning a risk that physical injury is "ready to take place" or is "hanging threateningly over one's head." (Internal quotation marks omitted.) We are not persuaded.
In its corrected memorandum of decision, the court stated: "The court finds that the state has established by clear and convincing evidence that ... [the acquittee] suffers from a psychiatric illness diagnosed as: schizoaffective disorder bi-polar type ... borderline intellectual functioning ... inappropriate and impulsive behaviors especially toward females ... [and] frustration difficulties.
"While the record indicates progress, his current release into the community is stable because of substantial supervision and support. These mandated safeguards and supervision, including a required pharmaceutical regime, are necessary to avoid increasing his risk to himself and the community. While [the acquittee] has expressed [to his conditional release supervisor, Madeline Rodriguez] an intent ... to voluntarily comply with mandated safeguards, a sufficient period of time in conditional release status has not passed for the court to give great weight to any such self-represented intent. Based on the reliable and probative evidence, the significant nature of the underlying criminal behavior, and the history of [the acquittee], the court finds that he cannot reside in the community without [the board's] continued oversight and support. ...
"[The acquittee] remains an individual with psychiatric disabilities and he would constitute a danger to himself or others if discharged from [the board's] jurisdiction."
In its decision, the court also stated that it "incorporates by reference its oral remarks regarding the rationale involved in the court's ultimate decisions on the motion to dismiss, motion to strike, and the state's petition, made at the hearing on [the acquittee's] motion for rectification on September 30, 2021 ...." At the rectification hearing, the court explained: "[M]y interest is in the protection of schoolchildren, number one. And number two, the secondary rationale .... I'm concerned about the security of women and their person. Irrespective of what the cause is, I am concerned ... that ... women in [our] society be protected from any kind of irrational behavior or inappropriate behavior. And certainly, I'm concerned with the safety and welfare of our schoolchildren here today."
Having discussed the court's findings, we set forth the applicable legal principles and our standard of review. The court's authority to continue an acquittee's commitment to the board is governed by § 17a-593. "When a criminal defendant is found not guilty by reason of mental disease or defect; see General Statutes § 53a-13 ; the court holds a hearing to assess that individual's mental status and to determine whether confinement or release is appropriate. ... If the acquittee fails to meet his burden of proof that he should be discharged, the court must commit the acquittee to the jurisdiction of the board for a term not exceeding the maximum sentence that could have been imposed had there been a criminal conviction. ... The board determines where to confine the acquittee and holds hearings and periodically reviews the progress of the acquittee to determine whether conditional release or discharge is warranted. ... The acquittee also may apply periodically to be discharged from the board's jurisdiction. ... This confinement, although resulting initially from an adjudication in the criminal justice system, does not constitute a punishment; rather, it serves the purposes of treating the acquittee's mental illness and protecting the acquittee and society. ... The committed acquittee is entitled to release when he has recovered his sanity or is no longer dangerous. ... As he was not convicted, he may not be punished. His confinement rests on his continuing illness and dangerousness. ...
General Statutes § 17a-593 provides in relevant part: "(c) If reasonable cause exists to believe that the acquittee remains a person with psychiatric disabilities or a person with intellectual disability to the extent that his discharge at the expiration of his maximum term of commitment would constitute a danger to himself or others, the state's attorney, at least one hundred thirty-five days prior to such expiration, may petition the court for an order of continued commitment of the acquittee.
"(d) The court shall forward any application for discharge received from the acquittee and any petition for continued commitment of the acquittee to the board. The board shall, within ninety days of its receipt of the application or petition, file a report with the court, and send a copy thereof to the state's attorney and counsel for the acquittee, setting forth its findings and conclusions as to whether the acquittee is a person who should be discharged. The board may hold a hearing or take other action appropriate to assist it in preparing its report.
"(e) Within ten days of receipt of a recommendation for discharge filed by the board under subsection (a) of this section or receipt of the board's report filed under subsection (d) of this section, either the state's attorney or counsel for the acquittee may file notice of intent to perform a separate examination of the acquittee. An examination conducted on behalf of the acquittee may be performed by a psychiatrist or psychologist of the acquittee's own choice and shall be performed at the expense of the acquittee unless he is indigent. If the acquittee is indigent, the court shall provide him with the services of a psychiatrist or psychologist to perform the examination at the expense of the state. Any such separate examination report shall be filed with the court within thirty days of the notice of intent to perform the examination. To facilitate examinations of the acquittee, the court may order him placed in the temporary custody of any hospital for psychiatric disabilities or other suitable facility or placed with the Commissioner of Developmental Services.
"(f) After receipt of the board's report and any separate examination reports, the court shall promptly commence a hearing on the recommendation or application for discharge or petition for continued commitment. At the hearing, the acquittee shall have the burden of proving by a preponderance of the evidence that the acquittee is a person who should be discharged.
"(g) The court shall make a finding as to the mental condition of the acquittee and, considering that its primary concern is the protection of society and its secondary concern is the safety and well-being of the acquittee, make one of the following orders: (1) If the court finds that the acquittee is not a person who should be discharged, the court shall order the recommendation or application for discharge be dismissed; or (2) if the court finds that the acquittee is a person who should be discharged, the court shall order the acquittee discharged from custody. The court shall send a copy of such finding and order to the board."
The legislature amended subsection (g) of § 17a-593 since the events underlying the present appeal to add the phrase "and its secondary concern is the safety and well-being of the acquittee." See Public Acts 2022, No. 22-45, § 5. All references herein to § 17a-593 are to the current revision of the statute unless otherwise indicated.
"At the conclusion of the commitment period, the state has the option to seek an extension. When an acquittee reaches the end of the definite term of commitment set by the court, the state may submit a petition for continued commitment if reasonable cause exists to believe that the acquittee remains a person with psychiatric disabilities ... to the extent that his discharge at the expiration of his maximum term of commitment would constitute a danger to himself or others .... After the state files its petition, the board is required, by statute, to submit a report to the court setting forth the board's findings and conclusions as to whether discharge is warranted. ... When making its decision, the Superior Court is not bound by the board's recommendation, but considers the board's report in addition to other evidence presented by both parties and makes its own finding as to the mental condition of the acquittee .... At this proceeding, the state must prove the need for continued commitment by demonstrating, under the clear and convincing evidence standard, that the acquittee is currently mentally ill and dangerous to himself or herself [or others] .... At this proceeding, however, the court's primary concern is the protection of society. ...
"The determination as to whether an acquittee is currently mentally ill to the extent that he would pose a danger to himself or the community if discharged is a question of fact and, therefore, our review of this finding is governed by the clearly erroneous standard. ... A finding of fact is clearly erroneous when there is no evidence in the record to support it ... or when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed .... Conclusions are not erroneous unless they violate law, logic or reason or are inconsistent with the subordinate facts. The court's conclusions are to be tested by the findings and not the evidence. ... Conclusions logically supported by the finding must stand." (Citations omitted; footnotes omitted; internal quotation marks omitted.) State v. Dyous , 198 Conn. App. 253, 261–65, 233 A.3d 1138, cert. denied, 335 Conn. 948, 238 A.3d 17 (2020). "In applying the clearly erroneous standard to the findings of a trial court, we keep constantly in mind that our function is not to decide factual issues de novo. Our authority ... is circumscribed by the deference we must give to [the] decisions of the [trial court], who is usually in a superior position to appraise and weigh the evidence." (Internal quotation marks omitted.) Id., at 272, 233 A.3d 1138.
Moreover, we recognize that "our decisional law characterizes as difficult the task of the trial court in evaluating an acquittee's mental state and evaluating his dangerousness. It is, of course, not easy to predict future behavior. ... Predictions of future dangerousness are difficult for both psychiatrists and the courts to make because of the inherent vagueness of the concept itself, and such determinations must be dealt with by trial courts to a considerable extent on a case-by-case basis." (Internal quotation marks omitted.) State v. Warren , 100 Conn. App. 407, 423 n.2, 919 A.2d 465 (2007).
The acquittee does not challenge the court's finding that he suffers from a mental illness. Instead, he challenges the court's finding that he continues to pose a danger to himself or others in the community. The acquittee focuses on the statements made by the court during the rectification hearing, set forth above, in which it expressed its concern for the welfare of schoolchildren and women. The acquittee argues that, to the extent that the court granted the state's petition because it presumed that he posed a threat to schoolchildren, it improperly presumed dangerousness from the underlying offense, not on the basis of any evidence that he acted inappropriately toward one or more schoolchildren since the 2001 event that led to his arrest. According to the acquittee, "[t]he record shows that he has been clinically stable while consistently taking his prescribed medicine for approximately a decade. It is purely speculative to presume that, if for some reason, [he] discontinued his psychiatric medication regime and became psychotic, that he would experience the same florid psychosis and command hallucinations that compelled him to commit the index offense. Similarly, the sequence of events required for the reoccurrence of such an incident is not only speculative, but also does not constitute the requisite risk of imminent danger to schoolchildren because it requires that, at some point, [he] discontinue his psychiatric medication, thereafter suffer a decompensation, ultimately become psychotic and then experience command hallucinations to harm a child in school." (Emphasis omitted; footnote added.) The acquittee argues that, to the extent that the court granted the state's petition based on a finding that he posed a danger to women, there was no evidence that, he "harmed, threatened, or posed a risk of imminent danger to a woman." The acquittee acknowledges, nonetheless, that he has exhibited "inappropriate" behavior toward women during the course of his commitment to the board.
The psychiatric profession refers to the offenses that led to an acquittee's arrest as "index offenses." See, e.g., State v. Torell , Superior Court, judicial district of New Haven, Docket No. 03-0217045, 2018 WL 1384906 (February 21, 2018).
As a preliminary matter, we disagree with the acquittee that the court improperly presumed dangerousness based on the offenses that led to his arrest. We are persuaded that, to the extent that the court referred in its decision to these offenses, it did so as part of a proper consideration of the factual issues before it. "In reaching its difficult decision [as to an acquittee's dangerousness], the court may and should consider the entire record available to it, including the [acquittee's] history of mental illness, his present and past diagnoses, his past violent behavior, the nature of the offense for which he was prosecuted, the need for continued medication and therapy, and the prospects for supervision if released." State v. Putnoki , 200 Conn. 208, 221, 510 A.2d 1329 (1986).
The acquittee also argues that it was improper for the court to focus on the safety of schoolchildren and women, for there was no evidence that he physically harmed either a schoolchild or a woman since the time of his commitment to the board. We note that the state did not bear the burden of proving that the acquittee had engaged in any type of physical violence during his commitment. It was sufficient for the state to prove by clear and convincing evidence that the acquittee continues to pose a danger to himself or to others in the community. The court's reference to the well-being of schoolchildren is logically linked to the offenses for which he was prosecuted, but the court did not suggest, let alone explicitly state, that the acquittee had engaged in subsequent acts of violence toward a schoolchild. We further note that the record does not reflect that, during his lengthy confinement at Whiting Forensic Hospital and Connecticut Valley Hospital and, later, while he was subject to the restrictions on his liberty that were incident to his temporary leave or conditional release statuses while under the jurisdiction of the board, the acquittee has had an opportunity to encounter a schoolchild.
Moreover, the court's reference to the well-being of women logically is related to the records of the acquittee's confinement that were submitted in evidence. Although those records do not describe acts of violence committed by the acquittee against women, they nonetheless reflect that the acquittee's treatment history during his commitment includes several instances in which he intimidated, inappropriately touched, and made socially inappropriate statements, often of a sexual nature, to female staff members. Such inappropriate conduct is noted to be a continued concern up through the latest report that the board filed with the court dated August 27, 2019. Even though there was no evidence that the acquittee has ever harmed a woman physically, the fact that there are several instances of this type of conduct in his treatment records supports the court's concern for the safety and well-being of women. This concern naturally follows from the court's obligation under § 17a-593 (c) to consider whether the acquittee's discharge would pose a threat to others.
The court had before it reports prepared by the board dated January 16, 2013, July 2, 2014, January 29, 2016, July 24, 2018, and August 27, 2019. The court also had before it progress and risk assessment reports prepared for the board by a licensed clinical social worker dated January 24, 2019, and July 3, 2019, as well as conditional release progress reports prepared for the board by the acquittee's clinical release supervisor dated May 2, 2019, August 1, 2019, and November 1, 2019. Also in evidence were transcripts of proceedings before the board on December 7, 2012, May 16, 2014, January 8, 2016, June 2, 2017, September 15, 2017, and June 29, 2018.
For example, there was evidence before the court that, on July 18, 2016, the acquittee approached a female staff member in a restricted storage room secured by a door that automatically closed. The staff member instructed the acquittee to back out of the room. Although the acquittee complied, he nonetheless remained close to the door, causing the staff member to feel threatened or barricaded in the room. Later, the acquittee remarked to the female staff member that he was "out to get" her.
There was evidence that, in 2012, the acquittee was "occasionally inappropriate with female staff [members]." Specifically, he had referred to some of the female staff as "baby" and had requested hugs from female staff members.
The board's report filed with the court dated January 16, 2013, reflects that, in August, 2009, "[the acquittee] displayed socially inappropriate behavior, touching staff and making inappropriate comments to female staff." The report also noted that, in August, 2011, the acquittee "episodically lost his privileges due to inappropriate, often impulsive and self-defeating behaviors, including not respecting other people's boundaries, making inappropriate statements towards staff, and engaging in disrespectful and occasionally threatening behaviors toward others." The board found that the acquittee "continues to exhibit inappropriate social behavior, preventing his transition to the community. Though he is clinically stable with only intermittent episodes of threatening behavior in his highly structured setting, he has yet to demonstrate clinical stability and behavioral control outside that setting."
The board's report filed with the court dated July 2, 2014, reflected that, in December, 2013, the acquittee's temporary leave privileges were suspended after he had exhibited "inappropriate and impulsive behavior" while in the community and he insisted on returning to hospital care.
In the latest report filed with the court, dated August 27, 2019, the board noted that the acquittee "has a longstanding pattern of inappropriate and impulsive behaviors, which he usually exhibited when frustrated." In particular, it is noted that the acquittee has a history of "inappropriate" behavior with women.
The acquittee argues that a finding that he posed an imminent threat of physical harm to himself or others in the community, particularly women, was clearly erroneous. This court has observed that, "[t]he determination of dangerousness in the context of a mental status hearing reflects a societal rather than a medical judgment, in which the rights and needs of the defendant must be balanced against the security interests of society. ... [The court's] ... inquiry should focus on whether the person is a danger to himself or others, whether he presents ... the risk of imminent physical injury to others or self .... [T]he ultimate determination of mental illness and dangerousness is a legal decision ... in which the court may and should consider the entire record available to it, including the defendant's history of mental illness, his present and past diagnoses, his past violent behavior, the nature of the offense for which he was prosecuted, the need for continued medication and therapy, and the prospects for supervision if released." (Citations omitted; footnote omitted; internal quotation marks omitted.) State v. Damone , 148 Conn. App. 137, 170–71, 83 A.3d 1227, cert. denied, 311 Conn. 936, 88 A.3d 550 (2014) ; see also State v. March , 265 Conn. 697, 711–12, 830 A.2d 212 (2003).
The acquittee urges us to conclude that a finding that he posed a risk of imminent physical injury to himself or others was not supported by the evidence because such a risk would depend on him, outside of his current supervised environment, failing to take necessary psychiatric medications, decompensating, becoming psychotic and, ultimately experiencing command hallucinations that would lead to him posing such a risk. The acquittee relies on evidence that he has been clinically stable while under the board's supervision, while consistently taking his prescribed medicine for nearly one decade. We disagree with the acquittee that the court could not have found that, although under his current level of board supervision he does not pose an imminent risk of physical injury to himself or others, it is likely that he would pose an imminent risk of physical injury to himself or others if he were to be released from the board's supervision entirely. This is because the evidence before the court logically supported a finding that, if he were to be released from the board's supervision entirely, he would risk relapse once outside of his present controlled environment and present an imminent danger to himself or to others. See State v. Damone , supra, 148 Conn. App. at 175, 83 A.3d 1227 ; see also State v. Warren , supra, 100 Conn. App. at 435, 919 A.2d 465 (fact that acquittee responded adequately to treatment while under board supervision did not undermine court's conclusion that continued commitment was justified); State v. Coor , 87 Conn. App. 717, 727, 733, 867 A.2d 124 (evidence supported finding of high likelihood that acquittee, who was in remission while under board's supervision, would become dangerous to himself or others if he stopped taking his medication), cert. denied, 273 Conn. 929, 873 A.2d 998 (2005) ; State v. Jacob , 69 Conn. App. 666, 685, 798 A.2d 974 (2002) (fact that acquittee had made progress was due, in part, to his confinement, supervision and ongoing treatment and did not undermine court's ultimate finding that he posed risk of danger to himself or others if released from board's supervision).
We note that there was evidence before the court that, following the acquittee's commitment to the board, he used physical violence toward other patients, he challenged another patient to engage in a physical alter-cation, and he engaged in otherwise threatening behavior toward others. In its 2019 report filed with the court, the board stated that the acquittee suffers from schizoaffective disorder, bipolar type; borderline intellectual functioning; cannabis use disorder; and tobacco use disorder. The board also stated: "[The acquittee] has a history of treatment noncompliance, including periodic noncompliance with prescribed medication in a hospital setting. He also has a longstanding pattern of inappropriate and impulsive behaviors, which he usually exhibited when frustrated. For many years, [the acquittee's] cognitive limitations, psychiatric illness and chronic impulsive behaviors repeatedly delayed his transition to the community. However, he was eventually able to transition to overnights in the community in September, 2017, following a concerted effort by his treatment team to address his poor social skills and improve his frustration tolerance."
The board also stated that the acquittee had been granted conditional release since its last report to the court dated July 24, 2018, at which time he was discharged from the hospital and began living in the community, albeit with significant limitations that were linked to his ongoing treatment for mental illness. The board stated, however, that "[the acquittee's] experience living in the community remains limited and he is stable only because of substantial supervision and support, including daily monitored medication; a structured residential program with [forty] hours of mandated programming a week; limited travel in his own custody; in [six] hour increments; and weekly meetings with an individual therapist and [c]onditional [r]elease supervisor. Without these mandated safeguards, which his treaters continue to believe are required to address his risk, he is likely to become noncompliant with treatment and medication, increasing his risk to himself and the community. Given that he would no longer be subject to the safeguards if discharged from the board and that he was only released from hospital confinement during the past year and had not before that resided independently in the community since 2001, the board finds that he continues to require substantial supervision and that he cannot reside safely in the community without the board's continued oversight and support."
The court found that, during his commitment to the board, the acquittee had made progress and that the current level of his release into the community is "stable" only because of mandated safeguards imposed by the board. The court noted that the acquittee had expressed his intent, if discharged from the board's jurisdiction, to voluntarily comply with mandated safeguards. The acquittee, however, is unable to demonstrate that the court erred in determining, based on the board's report filed with the court, that he has not had a sufficient history of being in a conditional release status to support a conclusion that he can live in the community without board oversight. As we discussed previously in this opinion, it was reasonable for the court to base its determination not on whether the acquittee presented a risk of imminent harm to himself or others while under the board's supervision, but, whether, if he were to be released from the board's supervision entirely, he posed a risk of imminent harm to himself or others. The board's findings squarely addressed this issue, and they support the court's decision.
Having reviewed the evidence presented to the court, we are persuaded that the court did not err in finding that the state met its burden, under § 17a-593, of establishing by clear and convincing evidence that the acquittee currently is mentally ill and poses a risk of imminent harm to himself or others. We conclude that the court's findings with respect to the danger that the acquittee continues to pose to the community and the need for significant and continued safeguards imposed by the board are not clearly erroneous.
II
Next, the acquittee claims that the court improperly rejected his claim that § 17a-593, as applied to him, violates his right to equal protection guaranteed by the federal constitution. We are not persuaded.
The following additional facts are related to this claim. As we stated previously in this opinion, in connection with his motion to dismiss the state's petition to extend his commitment, the acquittee argued that his right to equal protection under the federal constitution was violated by the recommitment procedure to which he is subjected under § 17a-593, which implicates his right to individual liberty. He argued that the recommitment procedure that governs acquittees under § 17a-593 is applied more conservatively than the nominally identical commitment procedure that applies to civil committees under § 17a-515, that acquittees are similarly situated to civilly committed inmates for purposes of equal protection analysis, that an intermediate level of scrutiny should be utilized in an equal protection analysis of § 17a-593, and that § 17a-593 cannot withstand such scrutiny. The court, in an oral ruling, declined the acquittee's invitation to apply an intermediate standard of scrutiny and denied his motion to dismiss.
On appeal, the acquittee does not argue that § 17a-593 is facially discriminatory, but that it is discriminatory as applied to him. The acquittee argues that he is similarly situated to civilly committed inmates because his maximum term of commitment has expired, he has been discharged and afforded conditional release status, and he has largely demonstrated sustained progress in his mental health treatment. The state disagrees that the acquittee is similarly situated to civilly committed inmates. The state argues that there is a nexus between the acquittee's mental illness and the violent criminal conduct in which he engaged at a public school. In contrast, the state argues, civilly committed inmates have a prior felony or misdemeanor conviction, but there need not be a connection between the criminal conduct underlying that conviction and the mental illness underlying their civil commitment. Although the acquittee focuses his argument on inmates who have been civilly committed, the state also notes that the civil commitment scheme applies to both inmates and civilians and, thus, civilly committed persons need not have committed any crime nor have been incarcerated.
We set forth our standard of review and relevant legal principles. A lower court's ruling on an equal protection claim presents this court with an issue of law to which we afford plenary review. See, e.g., State v. Yury G ., 207 Conn. App. 686, 695, 262 A.3d 981, cert. denied, 340 Conn. 909, 264 A.3d 95 (2021). "[T]he concept of equal protection [under the federal constitution] has been traditionally viewed as requiring the uniform treatment of persons standing in the same relation to the governmental action questioned or challenged. ... Conversely, the equal protection clause places no restrictions on the state's authority to treat dissimilar persons in a dissimilar manner. ... Thus, [t]o implicate the equal protection [clause] ... it is necessary that the state statute ... in question, either on its face or in practice, treat persons standing in the same relation to it differently. ... [Accordingly], the analytical predicate [of an equal protection claim] is a determination of who are the persons [purporting to be] similarly situated. ... The similarly situated inquiry focuses on whether the [challenger is] similarly situated to another group for purposes of the challenged government action. ... Thus, [t]his initial inquiry is not whether persons are similarly situated for all purposes, but whether they are similarly situated for purposes of the law challenged. ... Entities are situated similarly in all relevant aspects if a prudent person, looking objectively at the incidents, would [deem] them roughly equivalent and the protagonists similarly situated. Much as in the lawyer's art of distinguishing cases, the relevant aspects are those factual elements which determine whether reasoned analogy supports, or demands, a like result. Exact correlation is neither likely nor necessary, but the cases must be fair congeners. In other words, apples should be compared to apples. ... "When a court analyzes a law under the equal protection clause, it must employ a particular standard of review. The most deferential standard is rational basis review, which applies in areas of social and economic policy that neither proceed along suspect lines nor infringe fundamental constitutional rights .... Rational basis review demands only that the challenged classification be rationally related to a legitimate government interest. ... A party challenging a law under rational basis review bears the burden of proving that the law's class-based distinctions are wholly irrational. ...
"The least deferential standard of review is strict scrutiny, which applies both to laws that discriminate on the basis of a person's membership in a suspect class and to laws that burden a person's exercise of a fundamental right. ... Under strict scrutiny, the state bears the burden of demonstrating that the challenged discriminatory means are necessary to the achievement of a compelling state interest. ...
"Lying between the extremes of strict scrutiny and rational basis review is intermediate scrutiny, which typically applies to discriminatory classifications based on gender or illegitimacy. ... Intermediate scrutiny also sometimes applies to laws that affect an important, though not constitutional, right. ... Under intermediate scrutiny, the state bears the burden of establishing that the challenged discriminatory means are substantially related to an important governmental interest." (Citations omitted; footnote omitted; internal quotation marks omitted.) State v. Dyous , supra, 307 Conn. at 315–18, 53 A.3d 153.
We begin by addressing whether the acquittee has established the necessary premise for his equal protection claim, that he is similarly situated to civilly committed inmates. Our decisional law has referred to the initial inquiry that the entities at issue be similarly situated as "[an] analytical predicate" to an equal protection claim; (internal quotation marks omitted) id., at 315, 53 A.3d 153 ; as well as "[a] threshold issue" to be considered in evaluating such a claim. Keane v. Fischetti , 300 Conn. 395, 403, 13 A.3d 1089 (2011). This is because, if the entities at issue are not similarly situated in the first instance, the claim at issue does not truly implicate the equal protection clause, and it becomes unnecessary for the court to decide the constitutional issue of whether the challenged state action violates the equal protection clause. See Stuart v. Commissioner of Correction , 266 Conn. 596, 602, 834 A.2d 52 (2003).
As the parties observe, in prior opinions, both this court and our Supreme Court have addressed constitutional challenges to § 17a-593. Several of these cases are instructive. In State v. Metz , 230 Conn. 400, 402, 645 A.2d 965 (1994), our Supreme Court addressed a challenge, brought on due process and equal protection grounds, with respect to which party bears the burden of proof under § 17-593 (c). Our Supreme Court concluded that the statute must be construed such that the state bears the burden of proving "the need for a period of continued commitment of an acquittee after the expiration of the maximum term specified by [General Statutes] § 17a-582 (e) (1) (A)." Id., at 408, 645 A.2d 965. In its analysis, our Supreme Court observed that "[f]ederal law has ... recognized that insanity acquittees are a special class that should be treated differently from other candidates for commitment .... Thus, when a criminal defendant establishes by a preponderance of the evidence that he is not guilty of a crime by reason of insanity, the [c]onstitution permits the [g]overnment, 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. ... For an insanity acquittee, the state may adopt procedures that presume the acquittee's continued dangerousness and that envisage a diminished risk that a person will be committed who is not mentally ill." (Citations omitted; internal quotation marks omitted.) Id., at 414, 645 A.2d 965.
Our Supreme Court in Metz also observed that disparities in laws that distinguish between civilly committed persons and acquittees are constitutionally justified "because of the unique status of persons acquitted by reason of insanity. ... We have acknowledged that the obvious difference between insanity acquittees and other persons facing commitment is the fact that the former have been found, beyond a reasonable doubt, to have committed a criminal act. ... While the acquittee therefore may be deprived erroneously of his liberty in the commitment process, the liberty he loses is likely to be liberty which society mistakenly had permitted him to retain in the criminal process. ...
"In contrast to an acquittee's differentiated status at an initial commitment hearing, our state law has, for certain purposes, likened acquittees to prisoners who have been transferred to a mental hospital during the pendency of their jail sentence. We have noted that both classes of hospital inmates are being deprived of their liberty primarily for the protection of society; both have the same financial resources; and both have the same need for treatment. ... Thus, this court has held that equal protection of the laws mandates that an acquittee, like a prisoner under our statutes, should not bear the costs of his commitment." (Citations omitted; internal quotation marks omitted.) Id., at 417, 645 A.2d 965.
In Metz , the court also stated that, "[a]fter the expiration of a maximum term of confinement, it is difficult to find a constitutional justification for a categorical distinction between an insanity acquittee and an incarcerated prisoner who was transferred to a mental hospital while he was serving his criminal sentence. In each instance, the purpose of commitment is to treat the individual's mental illness and protect him and society from his potential dangerousness .... In each instance, furthermore, the qualitative character of the liberty deprivation is the same, irrespective of the fact that the Superior Court rather that the Probate Court retains jurisdiction over the propriety of an acquittee's continued commitment." (Citations omitted; internal quotation marks omitted.) Id., at 424–25, 645 A.2d 965.
In State v. Long , supra, 268 Conn. at 510, 847 A.2d 862, the state appealed from a judgment of dismissal rendered by the trial court after it granted an acquittee's motion to dismiss a petition for an order of continued commitment of the acquittee pursuant to § 17a-593 (c). In Long , the trial court concluded that § 17a-593 (c) violated the acquittee's right to equal protection under the federal constitution in that "it treats acquittees ... differently from convicted prisoners who subsequently are civilly committed to a mental hospital at some point after they have been incarcerated ...." Id., at 514, 847 A.2d 862. Beyond challenging the acquittee's standing to raise an equal protection challenge, the state argued on appeal that the statute did not violate his equal protection rights because it discriminated against persons with psychiatric or intellectual disabilities on the basis of their proven criminal acts, not their mental disability, and, thus, it survives rational basis scrutiny. Id., at 528, 847 A.2d 862. In analyzing the equal protection claim, our Supreme Court noted that it "assume[d] arguendo, without deciding, that acquittees are similarly situated to civilly committed inmates." Id., at 535, 847 A.2d 862. The court thereafter concluded that § 17a-593 (c) survived rational basis review, reversed the judgment of the trial court, and remanded the case to the trial court for further proceedings. Id., at 537, 541, 847 A.2d 862.
In State v. Lindo , 110 Conn. App. 418, 419, 955 A.2d 576, cert. denied, 289 Conn. 948, 960 A.2d 1038 (2008), an acquittee appealed from a trial court's judgment granting the state's petition for an order of continued commitment. The acquittee claimed that § 17a-593 (c), as applied to him, violated his right to equal protection under the federal constitution because, "at the time of the recommitment hearing ... he was an inmate and therefore should have been afforded the more stringent procedural protections applicable when the state seeks to commit mentally ill prisoners pursuant to [the civil commitment procedure made applicable to inmates] pursuant to ... § 17a-515." Id., at 422, 955 A.2d 576. In analyzing and ultimately rejecting the merits of the acquittee's equal protection claim, this court, following Long , assumed, without deciding, that acquittees are similarly situated to mentally ill inmates. Id., at 426, 955 A.2d 576.
Finally, in State v. Dyous , supra, 307 Conn. at 302, 53 A.3d 153, an acquittee appealed from a trial court's judgment granting the state's petition for an order of continued commitment pursuant to § 17a-593 (c). The acquittee claimed that § 17a-593, both on its face and as applied to him, violated his right to equal protection under the federal constitution; id., at 315, 53 A.3d 153 ; because it subjects "insanity acquittees to a recommitment procedure that imposes greater burdens on individual liberty than does the procedure for obtaining an order of civil commitment set forth in § 17a-498, which applies to similarly situated civilly committed inmates, [and that the disparate treatment of these two classes of inmates] does not substantially relate to the achievement of an important governmental interest." Id., at 303, 53 A.3d 153.
Our Supreme Court in Dyous first addressed the acquittee's burden of demonstrating that he and other insanity acquittees who face the prospect of continued commitment are similarly situated to civilly committed inmates. The court reasoned: "Both groups have been proven beyond a reasonable doubt to have engaged in criminal conduct, both are currently mentally ill, both require treatment, and both present a potential danger to society, yet civilly committed inmates are subject to the statutory scheme governing civil commitment set forth in § 17a-498 et seq., whereas insanity acquittees who have reached the end of their terms of commitment are subject to the wholly separate statutory scheme including § 17a-593 (c) and related provisions. Although we acknowledge that there is some persuasive force to the state's contention that the two groups actually are not similarly situated—only insanity acquittees necessarily were mentally ill at the time of their prior criminal conduct, for example, and only insanity acquittees were proven to have engaged in such conduct because they were mentally ill—we assume, arguendo , that the two groups are similarly situated and that § 17a-593 accordingly may be analyzed under the equal protection clause." (Emphasis altered.) Id., at 316, 53 A.3d 153. Although it chose not to resolve the issue of whether insanity acquittees and civilly committed inmates are similarly situated for equal protection purposes, the court nonetheless observed that "the issue is ... [not] clear cut in light of the important features that the two groups have in common." Id., at 316 n.11, 53 A.3d 153.
The court's observation was made in response to a concurring opinion in which a concurring justice stated: "Although this court often assumes that two groups are similarly situated for the purpose of conducting a more comprehensive equal protection analysis ... I believe that insanity acquittees and those who are civilly committed are distinguishable on such a fundamental level that there is no reason to apply the presumption in the present case. As this court explained in Long , ‘[w]hat differentiates these two groups for the purposes of recommitment procedures is the acquittee's proven criminal offense, which has been adjudicated to be the product of mental illness. A verdict of not guilty by reason of mental disease or defect establishes two facts: (1) the person committed an act that constitutes a criminal offense; and (2) he committed the act because of mental illness. ... Thus, unlike a civilly committed inmate, an acquittee has proven to the fact finder that his mental disease or defect caused him to commit a crime, thereby establishing a legal nexus between the acquittee's mental illness and the criminal act.’ ... State v. Long , supra, 268 Conn. at 539–40, 847 A.2d 862." (Citations omitted.) State v. Dyous , supra, 307 Conn. at 337–38, 53 A.3d 153 (Zarella, J ., concurring). In his concurrence, the justice further stated: "The discharge of an insanity acquittee, whose status indicates that he or she has been declared dangerous to society due to the commission of a criminal act, raises the specter that the danger to society will recur if the mental disease recurs, which is not the case with a civilly committed inmate whose mental disease or defect was not accompanied by a criminal act. Accordingly, although insanity acquittees and civilly committed inmates share certain other characteristics, I would conclude that they cannot be considered similarly situated for the purpose of an equal protection challenge to § 17a-593." (Footnote omitted.) Id., at 339, 53 A.3d 153 (Zarella, J ., concurring).
The court also stated that, "to the extent that ... Metz stands for the ... proposition that, after the expiration of a maximum term of commitment, the equal protection clause requires the state to treat an insanity acquittee exactly as it would treat a civilly committed inmate, we reject that proposition as unfounded. However preferable it may be as a matter of policy for the state to treat insanity acquittees, following the expiration of their maximum term of commitment, in exactly the same manner as it treats civilly committed inmates ... the equal protection clause simply does not require that the state treat these two groups identically. The special public safety concern that is raised by the prospective release of a person like [the acquittee in Dyous ] does not evaporate the moment such a person reaches the end of his maximum term of commitment. An acquittee's maximum term of commitment bears no necessary relation to public safety: the maximum allowable term of commitment is equal to the maximum sentence that could have been imposed if the acquittee had been convicted of the offense ... and [t]here simply is no necessary correlation between severity of the offense and the length of time necessary for recovery." (Citations omitted; emphasis omitted; internal quotation marks omitted.) Id., at 331–32 n.18, 53 A.3d 153. The court in Dyous went on to conclude, however, that § 17a-593 was constitutional as applied to the acquittee and, consequently, that the statute was constitutional on its face. Id., at 334, 53 A.3d 153.
Neither party suggests that we are bound by precedent to presume, as courts in prior cases have, that the acquittee is similarly situated to civilly committed inmates. Rather, we conclude that he is not. "The [e]qual [p]rotection [c]lause of the [f]ourteenth [a]mendment to the United States [c]onstitution is essentially a direction that all persons similarly situated should be treated alike." (Internal quotation marks omitted.) Thomas v. West Haven , 249 Conn. 385, 392, 734 A.2d 535 (1999), cert. denied, 528 U.S. 1187, 120 S. Ct. 1239, 146 L. Ed. 2d 99 (2000). As we have discussed previously in this opinion, in discussing what constitutes similarly situated entities, our Supreme Court has stated that entities need not be identical to be similarly situated, but they must be roughly equivalent. State v. Dyous , supra, 307 Conn. at 316, 53 A.3d 153, citing Kelo v. New London , 268 Conn. 1, 104 n.98, 843 A.2d 500 (2004), aff'd, 545 U.S. 469, 125 S. Ct. 2655, 162 L. Ed. 2d 439 (2005).
Before this court, the acquittee argues that, in Dyous , our Supreme Court "rejected" the argument that acquittees that share his characteristics are not similarly situated to civilly committed inmates. As our previous discussion of Dyous unambiguously reflects, however, the court did not reach such a conclusion; it chose to presume, without deciding, that the groups in Dyous were similarly situated. See State v. Dyous , supra, 307 Conn. at 316, 53 A.3d 153. In an attempt to demonstrate that he is similarly situated to civilly committed inmates, the acquittee observes, accurately, that the state seeks his commitment beyond his maximum allowable term of commitment, he has "largely demonstrated sustained progress" in his treatment and, in fact, has been afforded conditional release status. He also relies on language from Dyous stating that acquittees as a class, like civilly committed inmates, have been proven beyond a reasonable doubt to have engaged in criminal conduct, are mentally ill, require treatment, and pose a potential danger to society. See State v. Dyous , supra, at 316, 233 A.3d 1138. We are persuaded by the state's arguments that the acquittee is not similarly situated to civilly committed inmates. As the state correctly observes, for the acquittee to have prevailed at his criminal trial on his insanity defense, he had to prove that there was a nexus between his mental illness and his violent criminal conduct. This nexus existed either in terms of his being unable to appreciate the wrongfulness of his conduct or in terms of his being unable to control his conduct. Section 53a-13 (a) provides: "In any prosecution for an offense, it shall be an affirmative defense that the defendant, at the time the defendant committed the proscribed act or acts, lacked substantial capacity, as a result of mental disease or defect, either to appreciate the wrongfulness of his conduct or to control his conduct within the requirements of the law." In the civil commitment process, such a proven correlation between mental illness and criminal conduct simply need not exist.
The acquittee does not satisfactorily address the difference in the circumstances that, on the one hand, gave rise to his commitment as a person who committed a violent offense due to mental illness and, on the other hand, gave rise to the commitment of an inmate who is civilly committed pursuant to § 17a-515 for a psychiatric disability. More importantly, we are not persuaded that, in light of the continued danger that he poses to others due to his mental illness; see part I of this opinion; his progress in treatment or the fact that he has reached the end of his maximum term of confinement should lead us to now conclude that he is similarly situated to inmates whose mental illness has not manifested in criminal conduct. At the time of his criminal trial, it was proven that the acquittee's mental disease or defect caused him to engage in acts that constituted criminal offenses. In contrast, a civilly committed inmate has been proven to suffer from a psychiatric disability, regardless of whether his or her mental illness has manifested cognitive and/or volitional effects that resulted in the commission of criminal conduct.
Simply put, the acquittee's focus on the fact that he has reached his maximum term of commitment and the sustained progress in his treatment leading to his conditional release status does not alter the significance of the circumstances that led to his commitment, let alone undermine the fact that his mental illness continues to pose a danger to society. We recognize, as our Supreme Court has observed, that the issue of whether acquittees, as a general class, and civilly committed inmates are similarly situated for equal protection purposes is not necessarily clear-cut. Yet, despite the fact that the acquittee and civilly committed inmates undoubtedly share other characteristics, the significant difference in the circumstances giving rise to the acquittee's commitment leads us to conclude that he is dissimilar to civilly committed inmates for equal protection purposes. Accordingly, we reject the acquittee's equal protection claim.
The judgment is affirmed.
In this opinion CRADLE, J., concurred.
SEELEY, J., concurring. I agree with my colleagues that the judgment of the trial court granting the petition to continue the commitment of the acquittee, Franklin Foster, to the jurisdiction of the Psychiatric Security Review Board (board) should be affirmed. I join part I of the majority opinion and its conclusion that the court properly found that the state had proven, by clear and convincing evidence, that the acquittee suffered from a mental illness resulting in his being a danger to himself or others. With respect to the acquittee's claim that General Statutes § 17a-593 (c), as applied to him, violated his right to equal protection guaranteed by the federal constitution, I am not persuaded that the acquittee is not similarly situated to civilly committed inmates. Instead, I follow the well traveled analytical path established by prior decisions of our Supreme Court and this court and assume, without deciding, that the acquittee is similarly situated to civilly committed inmates for purposes of the equal protection analysis. I further conclude that rational basis review, not intermediate scrutiny, applies and that the acquittee failed to challenge the constitutionality of § 17a-593 (c) pursuant to this standard of review. Accordingly, the acquittee has not established that the court improperly denied his equal protection claim. I therefore respectfully concur in the judgment.
After an acquittee has proven the defense of mental disease or defect, he or she may be committed to the jurisdiction of the board for a maximum term of commitment not to exceed the maximum sentence that could have been imposed had that individual been convicted. See General Statutes § 17a-582 ; see also State v. Long , 268 Conn. 508, 519, 847 A.2d 862, cert. denied, 543 U.S. 969, 125 S. Ct. 424, 160 L. Ed. 2d 340 (2004). The board is an administrative body consisting of six members, a psychiatrist, a psychologist, a probation expert, a layperson, an attorney who is a member of the state bar, and a layperson with experience in victim advocacy. General Statutes § 17a-581 (b). "The purpose of the board is to manage, monitor and review the status of each acquittee to ensure the protection of the general public." State v. Long , supra, at 520, 847 A.2d 862 ; see also General Statutes § 17a-584. The state may file a petition to extend the maximum term of commitment if reasonable cause exists to believe that the acquittee remains a person with psychiatric disabilities and would constitute a danger to others or himself or herself. State v. Long , supra, at 520, 847 A.2d 862 ; see also General Statutes § 17a-593 (c).
General Statutes § 17a-593 (c) provides: "If reasonable cause exists to believe that the acquittee remains a person with psychiatric disabilities or a person with intellectual disability to the extent that his discharge at the expiration of his maximum term of commitment would constitute a danger to himself or others, the state's attorney, at least one hundred thirty-five days prior to such expiration, may petition the court for an order of continued commitment of the acquittee." See also State v. Dyous , 307 Conn. 299, 307, 53 A.3d 153 (2012).
The fourteenth amendment to the United States constitution provides in relevant part that "[n]o State shall ... deny to any person within its jurisdiction the equal protection of the laws." U.S. Const., amend. XIV, § 1.
In his reply brief, the acquittee asserts that he relied on the following definition of civilly committed inmates from State v. Dyous , 307 Conn. 299, 301, 53 A.3d 153 (2012) : "[M]entally ill, convicted defendants who were transferred, pursuant to General Statutes §§ 17a-498 and 17a-515, to a psychiatric facility while they were serving their sentences, and whom the state seeks to commit to a similar institution after their sentences end." (Footnote omitted.) "[C]ivil commitment generally is an involuntary process, initiated by someone other than the committee" and "any person may file an application for the civil commitment of an individual with the Probate Court ...." State v. Long , 268 Conn. 508, 528–29, 847 A.2d 862, cert. denied, 543 U.S. 969, 125 S. Ct. 424, 160 L. Ed. 2d 340 (2004) ; see also General Statutes § 17a-497 (a). Furthermore, after civil commitment proceedings are commenced, the individual who is the subject of the proceedings, including an inmate in the prison system, has a right to a hearing on the merits before the Probate Court. General Statutes § 17a-498 (a).
General Statutes § 17a-498 (c) (3) provides in relevant part: "If the [Probate] [C]ourt finds by clear and convincing evidence that the respondent has psychiatric disabilities and is dangerous to himself or herself or others or gravely disabled, the court shall make an order for his or her commitment, considering whether or not a less restrictive placement is available, to a hospital for psychiatric disabilities to be named in such order, there to be confined for the period of the duration of such psychiatric disabilities or until he or she is discharged or converted to voluntary status pursuant to section 17a-506 in due course of law. ..."
General Statutes § 17a-515 provides: "The provisions of section 17a-498 shall apply to any person regarding whom proceedings for commitment are being instituted under section 17a-513 or 17a-514, and to any other person in the custody of the Commissioner of Correction, except that if the [Probate] [C]ourt revokes the order of commitment, the person shall be returned to any institution administered by the Department of Correction as the Commissioner of Correction shall designate, unless his custody in the Commissioner of Correction has terminated, in which case he shall be discharged."
I begin by setting forth the background of the acquittee's constitutional claim. "[T]he concept of equal protection [under both the state and federal constitutions] has been traditionally viewed as requiring the uniform treatment of persons standing in the same relation to the governmental action questioned or challenged. ... Conversely, the equal protection clause places no restrictions on the state's authority to treat dissimilar persons in a dissimilar manner. ... Thus, [t]o implicate the equal protection [clause] ... it is necessary that the state statute ... in question, either on its face or in practice, treat persons standing in the same relation to it differently. ... [Accordingly ], the analytical predicate [of an equal protection claim ] is a determination of who are the persons [purporting to be ] similarly situated .... The similarly situated inquiry focuses on whether the [plaintiff is] similarly situated to another group for purposes of the challenged government action. ... Thus, [t]his initial inquiry is not whether persons are similarly situated for all purposes, but whether they are similarly situated for purposes of the law challenged." (Citations omitted; emphasis added; internal quotation marks omitted.) Kerrigan v. Commissioner of Public Health , 289 Conn. 135, 157–58, 957 A.2d 407 (2008) ; see also In re Taijha H.-B. , 333 Conn. 297, 312–13, 216 A.3d 601 (2019). If the court determines that the two groups are similarly situated, it then must apply the appropriate standard of review; rational basis, intermediate scrutiny, or strict scrutiny; to determine whether the challenged statute is constitutional. State v. Dyous , 307 Conn. 299, 316–18, 53 A.3d 153 (2012).
Rational basis review is the most deferential standard. State v. Dyous , 307 Conn. 299, 317, 53 A.3d 153 (2012). "[Our Supreme Court] has held, in accordance with the federal constitutional framework of analysis, that in areas of social and economic policy that neither proceed along suspect lines nor infringe fundamental constitutional rights, the [e]qual [p]rotection [c]lause is satisfied [as] long as there is a plausible policy reason for the classification ... the legislative facts on which the classification is apparently based rationally may have been considered to be true by the governmental decisionmaker ... and the relationship of the classification to its goal is not so attenuated as to render the distinction arbitrary or irrational ...." (Citations omitted; internal quotation marks omitted.) Kerrigan v. Commissioner of Public Health , supra, 289 Conn. at 158–59, 957 A.2d 407. "A party challenging a law under rational basis review bears the burden of proving that the law's class-based distinctions are wholly irrational." State v. Dyous , supra, at 317, 53 A.3d 153.
"[F]or purposes of federal equal protection analysis, the United States Supreme Court also has developed an intermediate level of scrutiny that lies [b]etween [the] extremes of rational basis review and strict scrutiny. ... Intermediate scrutiny typically is used to review laws that employ quasi-suspect classifications ... such as gender ... or [il]legitimacy .... On occasion intermediate scrutiny has been applied to review of a law that affects an important, though not constitutional, right. ... Under intermediate scrutiny, the government must show that the challenged legislative enactment is substantially related to an important governmental interest." (Citations omitted; internal quotation marks omitted.) Kerrigan v. Commissioner of Public Health , supra, 289 Conn. at 160, 957 A.2d 407.
"The least deferential standard of review is strict scrutiny, which applies both to laws that discriminate on the basis of a person's membership in a suspect class and to laws that burden a person's exercise of a fundamental right." State v. Dyous , 307 Conn. 299, 317, 53 A.3d 153 (2012). "Under that heightened standard, the state must demonstrate that the challenged statute is necessary to the achievement of a compelling state interest." (Internal quotation marks omitted.) Kerrigan v. Commissioner of Public Health , supra, 289 Conn. at 159, 957 A.2d 407.
As noted by the majority, the acquittee, in his motion to dismiss the state's petition for continued commitment, argued that the recommitment procedure applicable to acquittees violated his right to equal protection. The trial court denied the acquittee's motion to dismiss but did not address specifically whether the two classes were similarly situated. It also rejected the acquittee's assertion that intermediate scrutiny was the applicable standard for his claim. On appeal, the acquittee challenged, inter alia, "whether applying § 17a-593, authorizing continued commitment, to [the acquittee's] unique factual and legal posture, passes constitutional muster for federal equal protection purposes." Specifically, the acquittee contends that he was on conditional release for eighteen months, when a similarly situated class of civilly committed inmates would have been released by operation of law. With regard to the initial determination of whether acquittees who have reached the maximum term of commitment are similarly situated to civilly committed inmates, the acquittee argues that these two groups have common features that render them similar with respect to § 17a-593 and that a prudent person would deem them to be roughly equivalent. Finally, the acquittee claims that intermediate scrutiny, not rational basis review, is the appropriate standard, and that, under intermediate scrutiny, the mandates of § 17a-593, as applied to him, do not bear a substantial relationship to an important government interest.
In State v. Dyous , supra, 307 Conn. at 301, 53 A.3d 153, our Supreme Court explained that "[t]he procedure for extending an insanity acquittee's term of commitment to the [board] imposes greater burdens on individual liberty than does the civil commitment procedure appliable to civilly committed inmates ...." (Footnote omitted.) In its opinion, the court reviewed "the key disparities between the system applicable to insanity acquittees and the system applicable to civilly committed inmates. These disparities cause the system applicable to insanity acquittees to tilt more strongly toward confinement. In the most general terms, the system applicable to insanity acquittees, which is administered by the board and the Superior Court, operates such that its primary purpose is to protect the public, whereas the system applicable to civilly committed inmates, which is administered by mental health facilities and the Probate Court, operates such that a paramount concern is to protect a defendant's liberty.
"This difference in fundamental purpose yields specific disparities in standards, procedures and treatment conditions. Foremost among them is the fact that the legal standard for recommitting an insanity acquittee to the jurisdiction of the board is generally interpreted and applied more conservatively than is the legal standard for recommitting a civilly committed inmate, even though the two standards nominally are identical. This disparity is on display in the present case, the parties having stipulated at the defendant's recommitment hearing that, absent objection, the board's consulting psychiatrist and the defendant's retained psychiatrist both would have testified that the defendant did not meet the standard for involuntary civil commitment." Id., at 322–23, 53 A.3d 153.
The court further reasoned that the legislature imposed different mandates on the two systems. Id., at 323, 53 A.3d 153. With respect to acquittees, the primary concern for the board is consideration of public safety. Id. As to civilly committed inmates, physicians providing opinions to the Probate Court must consider whether a less restrictive placement should be recommended and is available. Id.
The state counters, inter alia, that the two groups are not similarly situated. Specifically, it contends that, although "acquittees and [civilly committed inmates] share similarities, because there is a direct nexus between acquittees’ crimes and their mental illness, and because [acquittees] affirmatively proved not only that they were mentally ill but also that they were unable to understand their own criminality or control their behavior, acquittees are not similarly situated to [civilly committed inmates]. As such, the acquittee cannot satisfy the threshold determination underlying his equal protection claim." In his reply brief, the acquittee responds that acquittees and civilly committed inmates are similarly situated because (1) both groups have been subjected to involuntary commitment, a deprivation of liberty, (2) the purpose of the commitment is to treat the individual's mental illness and to protect the individual and society from his or her potential dangerousness, and (3) both groups have committed a crime beyond a reasonable doubt.
The majority, although acknowledging that this issue is "not necessarily clear cut," accepts the state's argument that the acquittee is not similarly situated to civilly committed inmates. Herein lies my point of deviation from the approach taken by my colleagues. Neither party has persuaded me regarding the initial determination of whether the two groups are similarly situated. Therefore, my approach to resolving the present appeal is to bypass this threshold question for equal protection claims and to follow the analytical path established by several decisions from both our Supreme Court and this court and assume, without deciding, that acquittees are similarly situated to civilly committed inmates. Next, I conclude that, pursuant to the binding precedent of our Supreme Court in State v. Long , 268 Conn. 508, 540, 847 A.2d 862 ( Long I ), cert. denied, 543 U.S. 969, 125 S. Ct. 424, 160 L. Ed. 2d 340 (2004), rational basis review applies to the acquittee's equal protection claim. As a result of the acquittee's failure to adequately brief § 17a-593 (c) under that standard of review, his equal protection claim fails.
Our Supreme Court often has commenced an equal protection analysis "by [a]ssuming arguendo that the two categories of defendants identified by the [acquittee] are similarly situated with respect to the [statutory scheme] ...." (Internal quotation marks omitted.) State v. Wright , 246 Conn. 132, 143, 716 A.2d 870 (1998). More specifically, in equal protection challenges to § 17a-593, the appellate courts of this state repeatedly and consistently have assumed, without deciding, that acquittees are similarly situated to other groups of persons suffering from mental illness. See, e.g., State v. Dyous , supra, 307 Conn. at 316, 53 A.3d 153 ; State v. Long , 301 Conn. 216, 233 n.17, 19 A.3d 1242, cert. denied, 565 U.S. 1084, 132 S. Ct. 827, 181 L. Ed. 2d 535 (2011) ; State v. Long , supra, 268 Conn. at 535, 847 A.2d 862 ; State v. Lindo , 110 Conn. App. 418, 426, 955 A.2d 576, cert. denied, 289 Conn. 948, 960 A.2d 1038 (2008).
Next, I note our Supreme Court's observation that, "[a]s a matter of federal law, [i]t is clear that commitment for any purpose constitutes a significant deprivation of liberty .... The United States Supreme Court has recognized involuntary commitment to a mental institution, in particular, as involving more than a loss of freedom from confinement ... due to its stigmatizing consequences, and the potential exposure to invasive, compulsory medical and psychiatric treatment." (Citations omitted; internal quotation marks omitted.) State v. Metz , 230 Conn. 400, 412–13, 645 A.2d 965 (1994) ; see also State v. Long , supra, 301 Conn. at 238, 19 A.3d 1242 ; S. Caspar & A. Joukov, "Worse than Punishment: How the Involuntary Commitment of Persons with Mental Illness Violates the United States Constitution," 47 Hastings Const. L.Q. 499, 532 (2020) ; A. Tsesis, " Due Process in Civil Commitments," 68 Wash. & Lee L. Rev. 253, 260 (2011).
Our appellate courts have considered equal protection claims to § 17a-593 on several occasions. In State v. Long , supra, 268 Conn. at 510, 847 A.2d 862, the acquittee challenged the constitutionality of statutory procedures pertaining to the recommitment of acquittees past the initial term of their commitment if the discharge would constitute a danger to an acquittee or to others. In Long I , the acquittee had been found not guilty by reason of mental disease or defect pursuant to General Statutes (Rev. to 1985) § 53a-13 (a) of assault in the second degree in violation of General Statutes (Rev. to 1985) § 53a-60. Id., at 511, 847 A.2d 862. The court committed the acquittee to the jurisdiction of the board for a period of five years, which was equal to the maximum sentence of incarceration he could have received had he been convicted. Id., at 512, 847 A.2d 862. The state successfully moved to extend the period of commitment on four occasions, resulting in the acquittee having been in the custody of the board for more than sixteen years at the time of his appeal. Id., at 513, 847 A.2d 862.
At some point in 2001, the acquittee moved to strike the board's report to the court recommending his continued commitment and to dismiss the state's petition for recommitment. Id. Although the court initially denied the acquittee's motions, it sua sponte reconsidered its ruling and ultimately granted the acquittee's motions and vacated its order of commitment. Id., at 513–14, 847 A.2d 862. The trial court concluded, inter alia, that § 17a-593 (c) violated the acquittee's federal constitutional right to equal protection "because [ § 17a-593 (c) ] treats acquittees ... differently from ... civilly committed inmates ...." Id., at 514, 847 A.2d 862.
The trial court also concluded that the acquittee's due process rights under article first, § 8, of the Connecticut constitution had been violated because § 17a-593 (c) failed to provide him with mandatory periodic judicial review of confinement. State v. Long , supra, 268 Conn. at 514, 847 A.2d 862. Our Supreme Court rejected the trial court's conclusion and determined that the "existing statutory procedures, as applied to the [acquittee], did not expose him to an unreasonable risk of erroneous deprivation of his liberty." Id., at 527, 847 A.2d 862. As a result, the acquittee's due process rights under our state constitution were not violated. Id.
Our Supreme Court disagreed with the trial court and explained that, because a rational basis existed for treating acquittees differently from civilly committed inmates, the acquittee's equal protection claim failed. Id., at 516–17, 847 A.2d 862. In its analysis, the court assumed, "without deciding, that acquittees are similarly situated to civilly committed inmates." Id., at 535, 847 A.2d 862. Next, the court expressly held that § 17a-593 (c) neither affected a suspect group nor implicated a fundamental right, and, therefore, rational basis review applied. Id. Finally, the court identified two plausible policy reasons that supported the legislature's different treatment of acquittees and civilly committed inmates. Id., at 536, 847 A.2d 862. "First, under the acquittee statutory scheme, the board has general and specific familiarity with all acquittees beginning with their initial commitment and, therefore, is better equipped than courts to monitor their commitment. By placing oversight of these individuals in a single administrative agency, such as the board, which is comprised of laypersons and experts in relevant areas, including psychiatry, psychology, probation, and victim advocacy, the legislature reasonably could have believed that the board, with its expertise and familiarity with the mental status of each acquittee, would be better equipped than a court to monitor the individuals’ recommitment. This furthers the legislature's legitimate interest in efficiently managing the recommitment of acquittees." Id.
"Second, the state clearly has an interest in ensuring that its citizens are not erroneously committed based on harmless, idiosyncratic behavior. ... The legislature, however, reasonably could have concluded that the risk of erroneous commitment is far less for an acquittee and, therefore, additional mandatory judicial review during the recommitment is unnecessary. Specifically, the legislature could have determined that the likelihood of an erroneous commitment is reduced in the case of an acquittee because an acquittee initiates the commitment process himself by pleading and proving the mental illness that led to his commission of a crime." (Citation omitted.) Id., at 536–37, 847 A.2d 862. The court concluded that rational bases existed for the different treatment of acquittees and civilly committed inmates, and, therefore, the acquittee's right to equal protection was not violated. Id., at 537, 847 A.2d 862.
In State v. Lindo , supra, 110 Conn. App. at 420, 955 A.2d 576, the acquittee, during his commitment, pleaded guilty to stabbing a staff member and was sentenced to a period of two years of incarceration. He was transferred to a correctional institution to serve his sentence, and, during his incarceration, his commitment was extended for a period not to exceed five years. Id., at 420–21, 955 A.2d 576. On appeal, the acquittee argued that " § 17a-593 (c), as applied to him, violated his right to equal protection because at the time of the recommitment hearing ... he was an inmate and therefore should have been afforded the more stringent procedural protections applicable when the state seeks to commit mentally ill prisoners pursuant to General Statutes § 17a-515." Id., at 422, 955 A.2d 576.
This court noted that, in essence, the acquittee presented two claims. Id., at 423, 955 A.2d 576. First, he argued that he was a mentally ill prisoner, rather than an acquittee, at the time of the recommitment hearing, and, as such, civil commitment statutes should have been applied to him. Id. Second, the acquittee contended that, even if he were an acquittee, he was similarly situated to mentally ill prisoners and had been treated in a manner different from that group when § 17a-593 (c) was applied to him instead of the civil commitment statutes applicable to mentally ill prisoners. Id. We rejected the acquittee's first claim, concluding that, pursuant to General Statutes § 17a-582 (h), an acquittee remains under the jurisdiction of the board until discharged. Id., at 424, 955 A.2d 576. As to his second claim, this court assumed, without deciding, that acquittees were similarly situated to civilly committed inmates. Id., at 426, 955 A.2d 576. Applying the reasoning set forth in State v. Long , supra, 268 Conn. at 537, 847 A.2d 862, we concluded that "there are rational bases that justify the disparate treatment afforded acquittees as compared with that afforded mentally ill prisoners," and, thus, his equal protection claim failed. State v. Lindo , supra, 110 Conn. App. at 426–27, 955 A.2d 576.
In State v. Dyous , supra, 307 Conn. at 301–302, 53 A.3d 153, our Supreme Court considered whether the disparities in the procedures for extending an acquittee's term of commitment as compared to the procedures for extending a civilly committed inmate violated the federal equal protection clause. The defendant argued that intermediate scrutiny applied to his equal protection claim. Id., at 303, 53 A.3d 153. Our Supreme Court concluded that it need not determine whether acquittees were similarly situated to civilly committed inmates or the appropriate standard of review because it agreed with the state that " § 17a-593 would withstand intermediate scrutiny if such scrutiny were warranted." Id.
"Among other disparities between the two commitment schemes, the procedure for recommitting insanity acquittees directs the finder of fact to ‘[consider] that its primary concern is the protection of society’; General Statutes [Rev. to 2011] § 17a-593 (g) ; whereas the procedure for recommitting civilly committed inmates directs the finder of fact to ‘[consider] whether ... a less restrictive placement is available ....’ General Statutes § 17a-498 (c)." State v. Dyous , supra, 307 Conn. at 301, 53 A.3d 153.
General Statutes § 17a-593 (g), pertaining to acquittees, provides: "The court shall make a finding as to the mental condition of the acquittee and, considering that its primary concern is the protection of society and its secondary concern is the safety and well-being of the acquittee, make one of the following orders: (1) If the court finds that the acquittee is not a person who should be discharged, the court shall order the recommendation or application for discharge be dismissed; or (2) if the court finds that the acquittee is a person who should be discharged, the court shall order the acquittee discharged from custody. The court shall send a copy of such finding and order to the board."
I note that, in 2022, the legislature added the phrase "and its secondary concern is the safety and well-being of the acquittee" to subsection (g) of § 17a-593. See Public Acts 2022, No. 22-45, § 5.
General Statutes § 17a-498 (c), pertaining to civilly committed inmates, provides: "(1) The court shall require the certificates, signed under penalty of false statement, of at least two impartial physicians selected by the court, one of whom shall be a practicing psychiatrist, and each of whom shall be licensed to practice medicine in the state of Connecticut and shall have been a practitioner of medicine for at least one year and shall not be connected with the hospital for psychiatric disabilities to which the application is being made, or related by blood or marriage to the applicant, or to the respondent. Such certificates shall indicate that the physicians have personally examined the respondent not more than ten days prior to such hearing. The court shall appoint such physicians from a list of physicians and psychiatrists provided by the Commissioner of Mental Health and Addiction Services and such appointments shall be made in accordance with regulations promulgated by the Probate Court Administrator in accordance with section 45a-77. Each such physician shall make a report on a separate form provided for that purpose by the Probate Court Administrator and shall answer such questions as may be set forth on such form as fully and completely as reasonably possible. Such form shall include, but not be limited to, questions relating to the specific psychiatric disabilities alleged, whether or not the respondent is dangerous to himself or herself or others, whether or not such illness has resulted or will result in serious disruption of the respondent's mental and behavioral functioning, whether or not hospital treatment is both necessary and available, whether or not less restrictive placement is recommended and available and whether or not the respondent is incapable of understanding the need to accept the recommended treatment on a voluntary basis. Each such physician shall state upon the form the reasons for his or her opinions. Such respondent or his or her counsel shall have the right to present evidence and cross-examine witnesses who testify at any hearing on the application. If such respondent notifies the court not less than three days before the hearing that he or she wishes to cross-examine the examining physicians, the court shall order such physicians to appear.
"(2) The court shall cause a recording of the testimony of such hearing to be made, to be transcribed only in the event of an appeal from the decree rendered under this section. A copy of such transcript shall be furnished without charge to any appellant whom the Probate Court finds unable to pay for such copy. The cost of such transcript shall be paid from funds appropriated to the Judicial Department.
"(3) If the court finds by clear and convincing evidence that the respondent has psychiatric disabilities and is dangerous to himself or herself or others or gravely disabled, the court shall make an order for his or her commitment, considering whether or not a less restrictive placement is available, to a hospital for psychiatric disabilities to be named in such order, there to be confined for the period of the duration of such psychiatric disabilities or until he or she is discharged or converted to voluntary status pursuant to section 17a-506 in due course of law. Such court order shall further command some suitable person to convey such person to such hospital for psychiatric disabilities and deliver him or her, with a copy of such order and of such certificates, to the keeper thereof. In appointing a person to execute such order, the court shall give preference to a near relative or friend of the person with psychiatric disabilities, so far as the court deems it practicable and judicious. Notice of any action taken by the court shall be given to the respondent and his or her attorney, if any, in such manner as the court concludes would be appropriate under the circumstances."
In its analysis, the court first recited the standards for determining if two groups were similarly situated for equal protection purposes: "[T]he concept of equal protection [under the federal constitution] has been traditionally viewed as requiring the uniform treatment of persons standing in the same relation to the governmental action questioned or challenged. ... Conversely, the equal protection clause places no restrictions on the state's authority to treat dissimilar persons in a dissimilar manner. ... [Accordingly], the analytical predicate [of an equal protection claim] is a determination of who are the persons [purporting to be] similarly situated. ... The similarly situated inquiry focuses on whether the [challenger is] similarly situated to another group for purposes of the challenged government action. ... Thus, [t]his initial inquiry is not whether persons are similarly situated for all purposes, but whether they are similarly situated for purposes of the law challenged. ... Entities are situated similarly in all relevant aspects if a prudent person, looking objectively at the incidents, would [deem] them roughly equivalent and the protagonists similarly situated. Much as in the lawyer's art of distinguishing cases, the relevant aspects are those factual elements which determine whether reasoned analogy supports, or demands, a like result. Exact correlation is neither likely nor necessary, but the cases must be fair congeners. In other words, apples should be compared to apples." (Citation omitted; internal quotation marks omitted.) Id., at 315–16, 53 A.3d 153.
The defendant asserted that both acquittees and civilly committed inmates had been proven guilty beyond a reasonable doubt to have engaged in criminal conduct, were currently mentally ill, required treatment, and presented a potential danger to society. Id., at 316, 53 A.3d 153. The court acknowledged that the state's contention that the two groups were not similarly situated because only acquittees were mentally ill at the time of the criminal conduct and had engaged in such conduct because of their mental illness had "some persuasive force ...." Id. It also rejected the conclusion of the concurring opinion that acquittees and civilly committed inmates are not similarly situated, by stating that the initial inquiry of similarly situated was not "nearly so clear cut in light of the important features that the two groups have in common ." (Emphasis added.) Id., at 316, n.11, 53 A.3d 153. Ultimately, the court assumed, without deciding, that the groups were similarly situated. Id., at 316, 53 A.3d 153.
With respect to the issue of the standard of review, our Supreme Court noted that the defendant argued that intermediate scrutiny applied because the recommitment of an acquittee constituted a "massive curtailment of ... liberty"; (internal quotation marks omitted) id., at 318, 53 A.3d 153 ; and that two decisions of the United States Court of Appeals for the Second Circuit had applied that standard in reviewing a New York statute. Id., at 318–20, 53 A.3d 153. Although inclined "to agree with the defendant that the balance of persuasive authority favors applying intermediate scrutiny to § 17a-593," the court ultimately concluded that it need not identify the proper standard of review because the statute withstood intermediate scrutiny. Id., at 321–22, 53 A.3d 153.
See Ernst J. v. Stone , 452 F.3d 186, 200 (2d Cir. 2006) ; Francis S. v. Stone , 221 F.3d 100, 111–12 (2d Cir. 2000).
The court further noted that, because it did not determine the appropriate standard of review, it was unnecessary to consider whether its prior decision in State v. Long , supra, 268 Conn. at 535, 847 A.2d 862, in which the court held that a federal equal protection challenge to § 17a-593 (c) must be analyzed under rational basis review, would preclude the court from determining that § 17a-593 (c) actually warrants intermediate scrutiny. State v. Dyous , supra, 307 Conn. at 322 n.14, 53 A.3d 153.
Prior to applying intermediate scrutiny, our Supreme Court first noted the different statutory goals of the protection of society with respect to General Statutes (Rev. to 2011) § 17a-593 (g) and consideration of the least restrictive placement with respect to General Statutes § 17a-498 (c). Id., at 323, 53 A.3d 153. Next, the court explained that the board, an administrative body composed of individuals from various disciplines and whose purpose is "to manage, monitor and review the status of each acquittee to ensure the protection of the general public," has no civil counterpart. (Internal quotation marks omitted.) Id., at 324, 53 A.3d 153. These disparities served to tip the balance in favor of confinement with respect to acquittees and in favor of protecting the individual liberty of civilly committed inmates. Id., at 325, 53 A.3d 153.
The court then noted the important government interests of protecting society and affording proper psychiatric treatment to acquittees. Id., at 326, 53 A.3d 153. It also determined that the recommitment procedure substantially related to the goal of protecting society. Id., at 327, 53 A.3d 153. As the court explained: "[S]omeone whose mental illness was sufficient to lead him to commit a dangerous crime, and whose mental illness demonstrably has persisted despite years of intensive treatment, is someone whose prospective release raises a special concern for public safety. That concern plainly is not present to the same degree in the case of a civilly committed inmate, a person who (1) might not have been mentally ill when he committed his crime, (2) might not suffer from a long-standing mental illness that has persisted despite years of intensive treatment, and (3) was not legally adjudicated to have committed a crime as a result of his mental illness." (Internal quotation marks omitted.) Id., at 329, 53 A.3d 153. The court also concluded that a logical connection existed between this special concern and the recommitment procedure and that this procedure did not impose too great a burden on the individual liberty of acquittees. Id., at 332–33, 53 A.3d 153.
Additionally, our Supreme Court has determined that acquittees are similarly situated to civilly committed inmates for purposes of paying hospital expenses. State v. Reed , 192 Conn. 520, 529–30, 473 A.2d 775 (1984). "The insanity acquittee does not bear the stigma associated with the conviction of a crime; he is under the jurisdiction of the [C]ommissioner of [M]ental [H]ealth rather than the [C]ommissioner of [C]orrection; and, most importantly, once his mental condition has improved to the extent, as determined by the court, that it would no longer be dangerous to release him, he cannot be denied his freedom. The ordinary prisoner, who is being punished for a crime, must serve the remainder of his term of imprisonment regardless of whether treatment for his mental condition has been successful. These differences, however, have no particular relevance to the propriety of requiring an insanity acquittee to pay for the same services which are provided to an ordinary prisoner without charge, because they are not related to comparative financial ability or need for treatment. During his period of confinement an acquittee has no greater earning capacity than his fellow hospital inmate temporarily removed from prison for treatment. We are not aware of any evidence that his financial prospects upon his court sanctioned release from a mental hospital are any brighter than those of an ordinary prisoner whose term of imprisonment has expired and who has also been treated for mental illness. Neither can we perceive any difference in the relative need for mental treatment between acquittees and other prisoners who have been transferred to an institution for such treatment. In sum, both classes of hospital inmates are being deprived of their liberty primarily for the protection of society; both have the same financial resources; and both have the same need for treatment." Id.
Decisions from the United States Supreme Court have suggested strongly that acquittees are similarly situated to civilly committed inmates. For example, in Baxstrom v. Herold , 383 U.S. 107, 108, 86 S. Ct. 760, 15 L. Ed. 2d 620 (1966), the petitioner was sentenced to a period of incarceration, during which a prison physician certified him as insane. He then was transferred to a facility for the purpose of confining and caring for mentally ill prisoners. Id. The director of this facility filed a petition stating that the petitioner's sentence was about to terminate and requested that he be civilly committed pursuant to New York law. Id. On the date that the petitioner's period of incarceration ended, custody over him shifted from the Department of Correction to the Department of Mental Hygiene, although he remained confined in the same facility for mentally ill prisoners. Id., at 109, 86 S. Ct. 760. The United States Supreme Court held that the petitioner "was denied equal protection of the laws by the statutory procedure under which a person may be civilly committed at the expiration of his penal sentence without the jury review available to all other persons civilly committed in New York. Petitioner was further denied equal protection of the laws by his civil commitment to an institution maintained by the Department of Correction beyond the expiration of his prison term without a judicial determination that he is dangerously mentally ill such as that afforded to all so committed except those ... nearing the expiration of a penal sentence." Id., at 110, 86 S. Ct. 760.
One commentator has indicated that "[w]hether an insanity acquittee's equal protection rights have been violated by state commitment proceedings has never been fully addressed by the [United States] Supreme Court." R. Dallet, note, "Foucha v. Louisiana : The Danger of Commitment Based on Dangerousness," 44 Case W. Res. L. Rev. 157, 163 (1993).
The Supreme Court rejected the respondent's argument that those individuals nearing the end of their criminal sentence who might be mentally ill and in need of being civilly committed were not similarly situated to those not nearing the end of a prison term. Id., at 111–12, 86 S. Ct. 760. "Equal protection does not require that all persons be dealt with identically, but it does require that a distinction made have some relevance to the purpose for which the classification is made." Id., at 111, 86 S. Ct. 760. The court also rejected the respondent's argument that persons such as the petitioner had proven criminal tendencies as shown by their convictions. Id., at 114, 86 S. Ct. 760. "Where the [s]tate has provided for a judicial proceeding to determine the dangerous propensities of all others civilly committed to an institution of the Department of Correction, it may not deny this right to a person in [the petitioner's] position solely on the ground that he was nearing the expiration of a prison term. ... All others receive a judicial hearing on this issue [of whether the petitioner was presently mentally ill and posed such a danger to others as to warrant confinement in Department of Correction facility]. Equal protection demands that [the petitioner] receive the same." (Footnote omitted.) Id., at 114–15, 86 S. Ct. 760.
In Jackson v. Indiana , 406 U.S. 715, 717, 92 S. Ct. 1845, 32 L. Ed. 2d 435 (1972), the petitioner, a "deaf mute with a mental level of a pre-school child," was charged with two separate robberies. He was determined to be incompetent to stand trial and the trial court committed him to the Indiana Department of Mental Health until his competency was restored. Id., at 719, 92 S. Ct. 1845. The petitioner's counsel moved for a new trial, arguing that the court's order amounted to the imposition of a life sentence without ever being convicted of a crime. Id.
On appeal to the United States Supreme Court, the petitioner claimed that he had been denied equal protection because, in the absence of the criminal charges pending against him, the state would have been required to utilize "either the commitment procedures for feebleminded persons, or those for mentally ill persons." Id., at 723, 92 S. Ct. 1845. The petitioner argued that "under [the] statutes [that provided for such commitment procedures] (1) the decision whether to commit would have been made according to a different standard, (2) if commitment were warranted, applicable standards for release would have been more lenient, (3) if committed under [one of the statutes], he could have been assigned to a special institution affording appropriate care, and (4) he would then have been entitled to certain privileges not now available to him." Id.
The Supreme Court first reviewed its decision in Baxstrom v. Herold , supra, 383 U.S. 107, 86 S.Ct. 760, and noted that, if a criminal conviction and the imposition of a sentence were insufficient to justify less substantive and procedural protections against indefinite commitment than those generally available, the filing of criminal charges also could not suffice. Jackson v. Indiana , supra, 406 U.S. at 724, 92 S.Ct. 1845. It expressly noted that the "Baxstrom principle also has been extended to commitment following an insanity acquittal ...." (Citations omitted; emphasis added.) Id., at 724–25, 92 S. Ct. 1845. Later, it explained that Baxstrom "held that the [s]tate cannot withhold from a few the procedural protections or the substantive requirements for commitment that are available to all others." Id., at 727, 92 S. Ct. 1845 ; see, e.g., B. Wendzel, note, " Not Guilty, Yet Continuously Confined: Reforming the Insanity Defense," 57 Am. Crim. L. Rev. 391, 397–98 (2020) (discussing "Baxstrom -Jackson equal protection doctrine"). Ultimately, the court concluded that subjecting the acquittee "to a more lenient commitment standard and to a more stringent standard of release than those generally applicable to all others not charged with offenses ... deprived [him] of equal protection of the laws under the [f]ourteenth [a]mendment." Jackson v. Indiana , supra, at 730, 92 S.Ct. 1845 ; cf. Jones v. United States , 463 U.S. 354, 368–70, 103 S. Ct. 3043, 77 L. Ed. 2d 694 (1983) (noting that purpose of commitment following insanity acquittal is treatment and protection of society, not punishment of acquittee, in contrast to sentence of incarceration, which is based on considerations such as retribution, deterrence and rehabilitation, and no correlation exists between severity of offense and length of time necessary for recovery of acquittee; therefore, due process clause permits government to confine acquittee to mental institution until such time as he or she has regained sanity or is no longer danger to himself or herself or society). As demonstrated by these cases, the issue of whether acquittees are similarly situated to civilly committed inmates presents a complicated inquiry that courts often bypass in order to address the merits of an equal protection claim.
See, e.g., United States v. Ecker , 543 F.2d 178, 188 n.34 (D.C. Cir. 1976) ("we recognize that equal protection requires the standards governing the release of criminal acquittees, who have been confined for a period equal to the maximum sentence authorized for their crimes, to be substantially the same as the standards applicable to civil committees"), cert. denied, 429 U.S. 1063, 97 S. Ct. 788, 50 L. Ed. 2d 779 (1977) ; Bolton v. Harris , 395 F.2d 642, 649 (D.C. Cir. 1968) ("[i]t follows that there is no reasonable basis for distinction for commitment purposes between those who plead insanity and those who have the defense thrust upon them"); Cameron v. Mullen , 387 F.2d 193, 201 (D.C. Cir. 1967) ("Baxstrom thus might be said to require the conclusion that, while prior criminal conduct is relevant to the determination whether a person is mentally ill and dangerous, it cannot justify denial of procedural safeguards for that determination"); People v. Lally , 19 N.Y.2d 27, 35, 224 N.E.2d 87, 277 N.Y.S.2d 654 (1966) (to comply with spirit, if not express language of Baxstrom , acquittee must be afforded all protections afforded to civilly committed individuals). Simply stated, it has been recognized that "after the expiration of the period for which an acquittee might have been incarcerated had he been convicted, it may be irrational, within the meaning of equal protection doctrine, to distinguish between an acquittee and a committee. Acquittees who have been confined for that period, therefore, may be entitled to treatment no different from that afforded committees." (Emphasis added.) Waite v. Jacobs , 475 F.2d 392, 395 (D.C. Cir. 1973) ; see also B. Wendzel, note, "Not Guilty, Yet Continuously Confined: Reforming the Insanity Defense," 57 Am. Crim. L. Rev. 391, 404 (2020) (disparity in procedural protections for acquittees as compared to those for civil commitments is less justifiable once acquittee has "served their penal sentence").
In State v. Dyous , supra, 307 Conn. at 316–17 n.11, 53 A.3d 153, the majority specifically distinguished the due process analysis set forth in Jones v. United States , supra, 463 U.S. 354, 103 S.Ct. 3043, from its equal protection analysis. "The court in Jones merely determined that the distinctions between the two classes were sufficient to warrant differential treatment ... the very same conclusion that we reach in the present case. Moreover, in Jones , the court expressly observed that its due process analysis was dispositive of the equal protection claims that the petitioner had raised at an earlier stage of the proceedings, without suggesting that those claims failed to establish the threshold requirement that the classes must be similarly situated. ... Indeed, with respect to the one equal protection argument that the petitioner did raise in Jones , the court addressed and rejected it on the merits, apparently assuming that the two classes are similarly situated. ... It may be argued, therefore, that Jones supports the view that the two classes are similarly situated for equal protection purposes. We do not believe, however, that Jones sheds any real light on the issue ." (Citations omitted; emphasis altered.) State v. Dyous , supra, at 316–17 n.11, 53 A.3d 153.
The state argues that the existence of a nexus between the acquittee's mental illness and his criminal conduct, and the requirement that an acquittee affirmatively prove the defense of not guilty by reason of mental disease or defect, establishes that he is not similarly situated to civilly committed inmates. These arguments, although not without some persuasive force, do not convince me that we should reach a conclusive determination regarding this issue. Given the existing case law from both our state and federal courts, and my concern for the rights of individuals such as the acquittee, who has been committed to the custody of the board since April 2, 2003, approximately twenty years, which is twice as long as his ten year maximum period of incarceration, I would follow the lead of our Supreme Court, and a panel of this court, and continue to assume, without deciding, that the acquittee is similarly situated to civilly committed inmates to consider the merits of his equal protection claim.
As our Supreme Court has noted, although the purpose of an order of commitment differs significantly from the imposition of a criminal sentence, the effect of commitment is no less a deprivation of liberty. Connelly v. Commissioner of Correction , 258 Conn. 394, 405, 780 A.2d 903 (2001).
With respect to the applicable standard of review, "[i]t is axiomatic that, as an intermediate appellate tribunal, this court is not free to depart from or modify the precedent of our Supreme Court." Davis v. Davis-Henriques , 163 Conn. App. 301, 312, 135 A.3d 1247 (2016) ; see also State v. Gonzalez , 214 Conn. App. 511, 522–23 n.10, 281 A.3d 501 (This court noted: "[W]e are not at liberty to overrule or discard the decisions of our Supreme Court but are bound by them. ... [I]t is not within our province to reevaluate or replace those decisions." (Internal quotation marks omitted.)), cert. denied, 345 Conn. 967, 285 A.3d 736 (2022). In State v. Long , supra, 268 Conn. at 535, 847 A.2d 862, our Supreme Court expressly held that rational basis review applied to an equal protection challenge to § 17a-593 (c). See also State v. Long , supra, 301 Conn. at 243, 19 A.3d 1242 (issue of whether intermediate scrutiny applies to equal protection challenge to § 17a-593 (c) may be revisited at some point).
Furthermore, it is well established that "one panel of this court cannot overrule the precedent established by a previous panel's holding. ... As we have often stated, this court's policy dictates that one panel should not, on its own, [overrule] the ruling of a previous panel. [That] may be accomplished only if the appeal is heard en banc. ... Prudence, then, dictates that this panel decline to revisit such requests." (Internal quotation marks omitted.) State v. Gonzalez , supra, 214 Conn. App. at 524, 281 A.3d 501. In State v. Lindo , supra, 110 Conn. App. at 425, 955 A.2d 576, this court specifically rejected the claim that intermediate scrutiny applied to an equal protection challenge to § 17a-593 (c). Our precedent makes clear that § 17a-593 (c) must be analyzed under rational basis review. The acquittee argues in his appellate brief that the court erred in refusing to apply intermediate scrutiny to the acquittee's claim of disparate treatment in statutory recommitment procedures for acquittees as compared to civilly committed inmates. He then provides a lengthy analysis that focuses on whether the relevant statutory framework passes constitutional muster under the lens of intermediate scrutiny. I am not persuaded by the acquittee's efforts to distinguish the present case from State v. Long , supra, 268 Conn. at 535–36, 847 A.2d 862. Instead, I am bound to apply rational basis review to the acquittee's claim of disparate treatment in statutory recommitment procedures for acquittees as compared to civilly committed inmates. An intermediate court must follow the precedent of our Supreme Court, which presently requires § 17a-593 (c), for purposes of a federal equal protection challenge, to be "analyzed under rational basis review." State v. Long , supra, 268 Conn. at 535, 847 A.2d 862.
I note that, in State v. Long , supra, 301 Conn. at 235, 19 A.3d 1242, the acquittee conceded that rational basis review applied to his federal equal protection claim in his prior appeal. There was no such concession in State v. Lindo , supra, 110 Conn. App. at 425, 955 A.2d 576.
In State v. Dyous , supra, 307 Conn. at 322, 53 A.3d 153, our Supreme Court indicated that "the balance of persuasive authority favors applying intermediate scrutiny to § 17a-593 ...." Furthermore, the Dyous court signaled that it was critical of the application of rational basis review in Long I . The court stated: "Because we do not determine the appropriate standard of review, we need not consider whether our use of rational basis review in Long I , in which we stated conclusorily that ‘§ 17a-593 (c) neither affects a suspect group nor implicates a fundamental right for ... purposes of the federal equal protection clause’ and, therefore, ‘must be analyzed under rational basis review’; State v. Long , supra, 268 Conn. at 535, 847 A.2d 862 ; would preclude us from determining that § 17a-593 actually warrants intermediate scrutiny." State v. Dyous , supra, at 322 n.14, 53 A.3d 153.
The acquittee, however, has failed to adequately brief the claim that his right to equal protection had been violated under rational basis review. As noted, his appellate brief focuses on why § 17a-593 (c), as applied to him, does not survive intermediate scrutiny. There is, however, no cogent analysis or discussion of whether § 17a-593 (c) passes review under the rational basis standard. "[W]e are not required to review claims that are inadequately briefed. ... We consistently have held that [a]nalysis, rather than mere abstract assertion, is required in order to avoid abandoning an issue by failure to brief the issue properly. ... [F]or this court judiciously and efficiently to consider claims of error raised on appeal ... the parties must clearly and fully set forth their arguments in their briefs. We do not reverse the judgment of a trial court on the basis of challenges to its rulings that have not been adequately briefed. ... The parties may not merely cite a legal principle without analyzing the relationship between the facts of the case and the law cited. ... It is not enough merely to mention a possible argument in the most skeletal way, leaving the court to do counsel's work, create the ossature for the argument, and put flesh on its bones." (Internal quotation marks omitted.) State v. Fetscher , 162 Conn. App. 145, 155–56, 130 A.3d 892 (2015), cert. denied, 321 Conn. 904, 138 A.3d 280 (2016). As a result, his equal protection claim raised before this court must fail.
For the foregoing reasons, I respectfully concur.