Dangerousness Standards for Insanity Acquittee
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* J. Christopher Buckley
* Brannon Wiedemann
* D. Clay Kelly

## The Fifth Circuit Court of Appeals Denies *Habeas* Relief and Allows Continued Confinement of an Insanity Acquittee Based on “Potential” Dangerousness

In *Poree v. Collins*, 866 F.3d 235 (5th Cir. 2017), Carlos Poree sought federal *habeas* relief under 28 U.S.C. § 2254 after a district court's denial of his petition for conditional release to the community and subsequent appealability denials within the Louisiana court system. He then filed for a federal writ of *habeas corpus* challenging the “fact” of his confinement. A federal district court denied his appeal. Mr. Poree appealed to the United States Court of Appeals for the Fifth Circuit. The Fifth Circuit Court of Appeals accepted his *writ* and considered whether the state district court had erred in denying the petition for conditional release.

#### Facts of the Case

On November 7, 1977, Mr. Poree embarked on a shooting spree that resulted in one fatality and nine others wounded. According to court documents, he began displaying bizarre behavior and symptoms of paranoia five months before the shootings and was eventually given a diagnosis of schizophrenia. He was ultimately adjudicated not guilty by reason of insanity and committed to the Eastern Louisiana Mental Health System (ELMHS) in 1999. While in custody at ELMHS, the district court reviewed multiple petitions recommending that Mr. Poree be transferred to a less restrictive setting. For a patient to be considered for release or placement in a less restrictive setting, a hospital review panel is appointed to assess whether the patient is an appropriate candidate.

On October 11, 2010, an ELMHS Forensic Review Panel consisting of two psychiatrists and one psychologist completed an evaluation of Mr. Poree's status and recommended he be conditionally released to a group home. At the time, Mr. Poree was 68 years old. The review panel acknowledged Mr. Poree's diagnosis of schizophrenia and noted that his symptoms were stable on his current psychotropic medication regimen. The panel reported that Mr. Poree remained fully compliant with his treatment, expressed awareness of the nature of his violent crime, demonstrated the ability to conform his conduct to the law, and possessed “sufficient moral cognitive judgment to distinguish between right and wrong” (*Poree*, p 239). The review panel stated that he had mental illness that was in stable remission and that he was not dangerous to himself or others, provided that he was adequately supervised. The panel recommended that he be conditionally released to a group home and be subject to return to ELMHS should he violate any of the outlined stipulations.

A contradictory hearing was held in January 2011. All four expert witnesses supported Mr. Poree's transfer to a less restrictive setting. The district court judge denied conditional release, relating that the court had not been satisfied that Mr. Poree did not present a “potential” danger to himself and others. The court described the danger as “inherent in the activity and the conduct” of his index offense. The judge related that even though Mr. Poree was “asymptomatic,” this did not “negate the *potential* that Mr. Poree, should he transition into a less restrictive setting, would not manifest or relapse into the delusions and/or the behavior that presented itself through the years” (*Poree*, p 242, emphasis in original). The district court ordered that he remain at ELMHS with a review to be conducted annually.

Mr. Poree challenged the state district court's ruling, but his appeals were denied by the Louisiana appellate court system. He then filed for federal *habeas* relief challenging the fact of his confinement at ELMHS. A federal district court denied his appeal. He then appealed to the United States Court of Appeals for the Fifth Circuit.

#### Ruling and Reasoning

The United States Court of Appeals for the Fifth Circuit affirmed the state court's denial of *habeas* relief, holding that the state court's decision was not contrary to clearly established federal law. The circuit court relied on *Jones v. United States*, 463 U.S. 454 (1983) and *Foucha v. Louisiana*, 504 U.S. 71 (1992), in its delineation of “clearly established federal law”. The court held that “the governing legal principle derived from *Foucha* and *Jones* is that a state may continue to confine an insanity acquittee only as long as the acquittee is both mentally ill and dangerous” (*Poree*, p 248). In *Foucha*, the Court ruled that there was no basis to continue the confinement of an insanity acquittee who was once dangerous but no longer has mental illness. The circuit court emphasized that both criteria must be met simultaneously for continued confinement.

The question in *Poree* was how a state makes its dangerousness determination. The state district court had held that potential danger, based on prior conduct, and regardless of how temporally remote, was adequate to satisfy the dangerousness prong of *Jones* and *Foucha*. Concluding that Mr. Poree presented a potential danger to himself and others, the state court denied his release. Mr. Poree argued that the state court's standard of potential dangerousness was too broad and asserted that the preconditions of mental illness and dangerousness have a temporal component based on the language in *Foucha*, which held that continued confinement “is improper absent a determination in civil commitment proceedings of *current* mental illness and dangerousness” (*Foucha*, p 78, emphasis in original). The circuit court noted that the Supreme Court did not specify how a state must make its dangerousness determination but held that the state court's decision to continue Mr. Poree's civil confinement on the basis of potential dangerousness did not conflict with clearly established Supreme Court precedent.

However, the circuit court pointed out that the state court's dangerousness standard appeared to be inconsistent with Louisiana state code, which states that the court must determine “whether the committed person is no longer mentally ill…and can be discharged, or can be released on probation, without danger to others or to himself” (*La. Code Crim. Proc. Ann.* art. 657 (1991)). Louisiana defines “dangerous to others” as “the condition of a person whose behavior or significant threats support a reasonable expectation that there is a substantial risk that he will inflict harm upon another person in the near future” (*La. Rev. Stat. Ann.* § 28:2(3) – (4)(1986)); but as the circuit court's review concerned federal law, it held that the “remedy lies in Louisiana state courts, not federal habeas proceedings” (*Poree*, p 250).

#### Dissent

In a dissenting opinion, one of the justices asserted that the district court was not simply in conflict with its own state code but was also “contrary to clearly established Supreme Court law” (*Poree*, p 254). The dissenting opinion said that the “state court made no finding of dangerousness” (*Poree*, p 252) and that the difference between “dangerousness” and “potential dangerousness” is not merely “semantic.” Rather, the district court's use of a “potential dangerousness” standard rendered “the Supreme Court's dangerousness requirement meaningless” (*Poree*, p 252). The dissent related that because “it is possible for every insanity acquittee to become dangerous, the state court's standard lacks any limit” (*Poree*, p 252) and “strips the dangerousness precondition of meaning” (*Poree*, p 254). In closing, the dissent asserted that: Civil confinement is not punitive. It may not be used to accomplish what the criminal system could not—here, a life sentence. The systems are distinct in both justification and operation. They will remain so only if courts are faithful to the requirements of continued civil confinement (*Poree*, p 254).

#### Discussion

The district court's use of a “potential” dangerousness standard would seem to greatly reduce the import of expert opinion as to the appropriateness of release of insanity acquittees to less restrictive settings. If “dangerousness” is deemed “inherent” in the index offense, then the criminal court might just ignore expert opinion recommending release, and justify indefinite confinement, based solely on the “inherent” seriousness of the index offense.

It is important for forensic evaluators to recognize Louisiana's broad interpretation of dangerousness. Future decisions may help to clarify the bounds of potential dangerousness.

## Footnotes

*   Disclosures of financial or other potential conflicts of interest: None.

*   © 2018 American Academy of Psychiatry and the Law