In re the Commitment of Lee

The opinion of the court was delivered by

POLOW, J. A. D.

On December 31, 1979, following a commitment review hearing¹ pursuant to State v. Fields, 77 NJ. 282 (1978) the trial judge ordered that defendant “remain committed to the civil section of Trenton Psychiatric Hospital.” Defendant’s application for a new trial was denied on January 30, 1980 for the following reasons:

1. That Robert Lee Newsome continues to suffer from psychosis and organic brain damage;

2. That he constitutes a danger to himself and to society; and

3. That the interests of society, as well as the interests of the defendant can best be served by in-patient supervision at the Trenton Psychiatric Hospital (civil section).

We are thus called upon to determine whether the broad discretionary authority of the trial judge was mistakenly exercised in ordering continued commitment of appellant who had been previously acquitted of criminal charges by reason of insanity. Recognizing the extremely narrow scope of appellate review and according the trial judge’s determination the utmost deference, we nevertheless conclude that the record fails to supply a legitimate justification for continuance of prevailing restraints on the liberty of committee-appellant. Hence, we reverse and remand for further proceedings as indicated below.

When he was approximately 19 years of age, in May 1975, appellant Robert Lee Newsome, was the victim of a brutal mugging whereby he sustained severe head injuries. He was ultimately transferred from East Orange General Hospital to the Essex County Hospital Center and diagnosed as suffering from diffuse encephalopathy. In January 1976 he was discharged to his mother’s care. In June 1977 he was indicted for carnal abuse and impairing the morals of a minor. It is conceded that he engaged in a voluntary and consensual sexual relationship with his 12 year old “girlfriend.”

At a competency hearing, the court found that appellant suffered marked intellectual impairment and memory deficiency for recent and remote events. In addition, Newsome had a history of psychotic symptoms and suffered from chronic brain syndrome with psychosis and mental retardation. The trial judge concluded that defendant was unable to appreciate that his sexual behavior with a 12 year old child was wrong. Hence, appellant was acquitted by reason of insanity and transferred from the Essex County Jail to the Essex County Hospital Center, a psychiatric facility.

Krol² hearings were conducted periodically and as of May 1, 1978, an order was entered for appellant’s conditional discharge from the Essex County Hospital Center to an out-patient residential treatment program known as Project Right-On, operated by the Mount Carmel Guild in Newark. Although he eventually left the program in violation of the court’s order, he did return on occasion to collect his mail and “see how things are going.” He lived with members of his family and there is no evidence of any incident or problems involving appellant during the several months following his leaving the Right-On project until he was committed to Trenton Psychiatric Hospital on execution of a bench warrant issued by the court in November 1979.

At a hearing on December 20, 1979 two psychiatrists offered their opinions that Newsome was not dangerous to himself or others. Both concluded that there was no need for continued hospitalization although appellant continued to suffer from chronic organic brain syndrome and functioned at a mildly retarded level. He required medication to control a convulsive disorder resulting from his head injuries.

Both doctors were of the opinion that his mother could provide the committee with suitable structure and supervision, especially that necessary to insure his receiving regular medication.

Although counsel for the State agreed with the applicant that continued hospitalization was no longer necessary, by order of December 31, 1979 the court directed continued commitment to the civil section of Trenton Psychiatric Hospital. On this appeal, the State concedes that “in light of all of the information presently available with respect to appellant’s condition, his continuing in-patient status is no longer required.”

After the United States Supreme Court announced that the standard of involuntary commitment must “bear some reasonable relation to the purpose for which the individual is committed,” Jackson v. Indiana, 406 U.S. 715, 738, 92 S.Ct. 1845, 1858, 32 L.Ed.2d 435 (1972), the New Jersey statutory provision, N.J.S.A. 2A:163-3, was held unconstitutional because it permitted continued commitment of individuals suffering from slight mental illness. State v. Krol, 68 N.J. 236, 246-247 (1975). Nevertheless, the ultimate issue of “dangerousness,” although it involves medical considerations, is a legal question for decision by the judge.

[W]hile courts in determining dangerousness should take full advantage of expert testimony presented by the State and by defendant, the decision is not one that can be left wholly to the technical expertise of the psychiatrists and psychologists. The determination of dangerousness involves a delicate balancing of society’s interest in protection from harmful conduct against the individual’s interest in personal liberty and autonomy. [Id at 261 ]

Once the degrees of mental illness and “dangerousness” are determined, the judge is required to formulate an appropriate order providing for the least restrictive restraints found to be consistent with the safety of the community and the individual.

The object of the order is to impose that degree of restraint upon defendant necessary to reduce the risk of danger which he poses to an acceptable level. Doubts must be resolved in favor of protecting the public, but the court should not, by its order, infringe upon defendant’s liberty or autonomy any more than appears reasonably necessary to accomplish this goal. [Id at 261-262 ]

Such an order is subject to modification if the defendant has become more or less dangerous than he was previously, or it may be terminated upon a determination that the defendant is no longer mentally ill or dangerous at all. Id. at 263.

The Krol standards were further refined in Fields. The Fields court determined that a defendant acquitted by reason of insanity has the same right to periodic review as a civil committee. Fields, supra, 77 N.J. at 294. It was further noted that the burden of proof is imposed upon the State of justify continued restrictions. Id. at 299-300.

The burden should not be placed on the civilly committed patient to justify his right to liberty. Freedom from involuntary confinement for those who have committed no crime is the natural state of individuals in this country. The burden must be placed on the state to prove the necessity of stripping the citizen of one of his most fundamental rights, and the risk of error must rest on the state. Since the state has no greater right to confine a patient after the validity of the original commitment has expired than it does to commit him in the first place, the state must bear the burden of proving the necessity of recommitment, just as it bears the burden of proving the necessity for commitment. [Id. at 300, citing Fasulo v. Arafeh, 173 Conn. 473, 378 A.2d 553, 557 (Sup.Ct.1977).]

A recent United States Supreme Court decision has increased the burden imposed upon the state. In Addington v. Texas, 441 U.S. 418, 99 S.Ct. 1804, 60 L.Ed.2d 323 (1979) the court, in the .context of a civil commitment proceeding, held,

To meet due process demands, the standard has to inform the factfinder that the proof must be greater than the preponderance of the evidence standard applicable to other categories of civil cases.

We noted earlier that the trial court employed the standard of ‘clear, unequivocal and convincing’ evidence in appellant’s commitment hearing before a jury. That instruction was constitutionally adequate, [id. at 432-433, 99 S.Ct. at 1806],

More recently, we ordered a rehearing for application of the “clear and convincing evidence” standard rather than the “preponderance of the evidence” test previously applied. In re Scelfo, 170 N.J.Super. 394, 397 (App.Div.1979).

The trial judge’s conclusion that Newsome still constituted a danger to himself and to society and “that his behavior clearly indicated that he should not be released or the restraints in any way removed” was substantially based upon his concern about potential ill effects should appellant fail to take his medication regularly. There was no evidence that Newsome ever committed violent acts or demonstrated violent tendencies. His antisocial sexual behavior in 1977 involved no use of force. Although he was found at that time to be incapable of understanding “the age of consent” concept, there was evidence that he now understands it is wrong. Furthermore, during the four months residency with his family before the bench warrant was executed in November 1979, there is no evidence of misbehavior or offense of any kind on Newsome’s part. There is no factual support based upon past actions of the patient and no medical prognosis based upon his present condition to justify a finding of likelihood of dangerous conduct which either society or appellant must be guarded against. In re Matter of R.B., 158 N.J.Super. 542, 546 (App.Div.1978). Hence, we must conclude that the trial judge’s findings were so clearly erroneous “and so plainly unwarranted that the interests of justice demand intervention and correction.” State v. Johnson, 42 N.J. 146, 162 (1964).

Although we must reverse, a further plenary hearing will be required. Hence, we cannot comply with the Public Advocate’s request that we exercise original jurisdiction to establish conditions of release. The policy enunciated in State v. Maik, 60 N.J. 203, 218 (1972), that an offender is not “restored to reason” sufficient to justify release “unless he is so freed of the underlying illness that his ‘reason’ can be expected to prevail,” has been superseded by the concept of “conditional release.”

The value of conditional release as a.therapeutic measure is to be considered against the background of the Legislature’s intent to provide ‘humane care and treatment.’ Surely there is a point reached where a patient can no longer benefit from confinement in the artificial and protected environment afforded by a mental institution. Perhaps even more compelling is the harm which could occur to patients confined in institutions when contact with the outside world would stimulate them to recovery or prevent deterioration into more harmful states. [State v. Carter, 64 N.J. 382, 395 (1974) (footnote omitted)].

In formulating an appropriate order for conditional release, the trial judge must bear in mind the need for gradual relaxation of restraints.

It cannot be emphasized too strongly that the relaxation of the restraints on the committee’s liberty must proceed in gradual stages. As the level of dangerousness posed by the committee decreases, he should be afforded the opportunity to demonstrate his ability to cope responsibly with the stresses of normal everyday life with diminishing degrees of supervision. Only after the committee has progressed to the point where'he has proven that he can function in normal society with minimal supervision should consideration be given to unconditional release. This process of gradual de-escalation will substantially minimize the risk of erroneous determinations of non-dangerousness and will thus protect the State’s compelling interest in maintaining the safety and security of its citizens. [State v. Fields, 77 N.J. at 303 ].

We conclude, therefore, that the trial judge is in the best position to determine appropriate conditions, to obtain such additional information as may be necessary by way of testimony and medical reports, to determine what out-patient treatment may be required, to ascertain what facilities are available for such treatment and to impose appropriate requirements for supervision and review. A plenary hearing to establish release conditions shall be conducted within thirty days hereof.

Reversed and remanded.

1 The hearing was precipitated by the execution of a bench warrant issued when defendant violated conditions of a previous order. It was, nevertheless, dealt with by the court as a commitment review hearing.

2 State v. Krol, 68 N.J. 236 (1975).