State of Washington v. Bao Dinh Dang [Wash. Sup. Ct. No. 87726-2]
The Washington Supreme Court issued a unanimous opinion that held that persons acquitted of a crime by reason of insanity and granted conditional release under medical supervision may only have their conditional release terminated if the court determines they are dangerous. Without a dangerousness finding, a court may not commit an acquitted person into a mental health facility solely on the basis that the person is not abiding by the terms and conditions of release. This should be a welcome decision for mental health advocates seeking to erode the assumption that the mentally ill are inherently dangerous or violent.
Bao Dinh Dang attempted to set a gas station on fire in November 2006. He was charged with attempted arson in the first degree and moved for acquittal on grounds of insanity. The court granted the motion. Though the court found that Dang suffered from a mental disease, it did not find he was a substantial danger to the community. Therefore, the court granted Dang conditional release rather than committing him to a mental health facility.
At some point after summer 2008, the court granted a State motion to involuntarily commit Dang to a mental hospital for evaluation and treatment on the basis of reports that his condition was deteriorating. At a subsequent hearing, the court determined that Dang’s mental disease was no longer in remission and Dang could not be released without presenting a substantial danger to other and a substantial likelihood of committing criminal acts jeopardizing the public safety. Therefore, the court revoked Dang’s conditional release and ordered he remain committed to a hospital.
Dang appealed and the Court of Appeals affirmed the trial court’s revocation order, holding that no dangerousness determination was required – the trial court could revoke Dang’s conditional release solely on the basis of his failure to adhere to the terms and conditions of release. The appellate court further found that the proper evidentiary burden on the State in a conditional release revocation hearing is a preponderance of the evidence and that live hearsay is automatically admissible in revocation hearings.
The Supreme Court unanimously held that a court may only revoke the conditional release of a person acquitted of a crime by reason of insanity if the court finds that person is dangerous. Simple nonadherence to terms and conditions of release may be cured by modifying the terms and conditions, not revoking the conditional release. While the Washington statute on conditional releases could be read to allow commitment for simple nonadherence, the Court held that any statutory interpretation which allowed deprivation of an acquitted person’s liberty without a finding of dangerousness violated constitutional guarantees of liberty. On the facts before it, the Court determined Dang had been found dangerous by the trial court and accordingly affirmed the revocation order.
The Court affirmed the intermediate appellate determination that a preponderance of evidence is the proper evidentiary burden for revocation of an acquittee’s conditional release. The Court reasoned that an acquittee had affirmatively argued that he or she was insane to support the acquittal so the risk of erroneously committing a sane person was not great enough to require a higher evidentiary burden.
Finally, the Court determined that hearsay evidence of any sort is only admissible in revocation hearings for good cause. The Court found no good cause here, but also determined the error to be harmless.
The hoary defense attorney cliché that a client would have to be crazy to plead not guilty by reason of insanity is somewhat less true in Washington after this ruling. The unanimous decision by the Court makes clear that a person on conditional release after being found not guilty by reason of insanity cannot be involuntarily committed simply because he or she stops taking required medications or is otherwise difficult to provide treatment for. This decision is a useful reminder that that individuals subject to conditional release have been acquitted of the crime and are not guilty. They should not be punished, nor should they be subjected to any more liberty restrictions than are required to protect the public safety.
In practice, the power of this ruling probably will be mitigated by the fact that the same court-ordered treatment providers whose instructions are being flouted will provide expert testimony to the court about the patient’s dangerousness. That the Court affirmed the trial court determination notwithstanding serious disagreements with the Court of Appeals reasoning only highlights the flexible underpinning to dangerousness determinations.
Unfortunately, the Court’s second holding that a preponderance of the evidence is the proper standard to make a revocation determination is not well supported by rigorous analysis. The Court acknowledged that civil commitment determinations require the higher clear, cogent and convincing evidentiary burden. The Court distinguished hearings for acquittees because acquittees had necessarily admitted to being mentally ill as part of the not guilty plea. However, the first holding made clear that mental illness isn’t enough to deprive a person of liberty – commitment requires dangerousness.
The plea of not guilty is not an admission that the defendant is dangerous; to the contrary, many such pleas are accompanied by vigorous arguments for conditional release because the defendant is not guilty. There seems to be no principled reason to require less evidence of dangerousness to commit a person who has previously asserted having a mental illness than to commit a person who has never made such an assertion. Unfortunately, the logic here seems to be that a person who admits mental illness is more likely to be dangerous than one who does not – an assertion without support from medical data.
While the evidentiary burden holding appears to buy into stereotypes about the mentally ill, the primary holding that individuals cannot be committed without a finding of dangerousness expressly rejected the automatic linking of violence and mental illness. All in all, this is a welcome opinion that is a positive step towards ending the stigma of violence that burdens the mentally ill both in and out of the criminal justice system.