State v. Foster

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State v. Foster

STATE OF CONNECTICUT v. FRANKLIN FOSTER

(SC 20829)

Mullins, C. J., and McDonald, D’Auria, Ecker,

Alexander and Dannehy, Js.

Syllabus

The acquittee, who had been found not guilty by reason of mental disease

or defect of first degree burglary, risk of injury to a child, third degree

assault, and possession of a weapon on school grounds, was committed to

the jurisdiction of the Psychiatric Security Review Board in 2003, for a

period not to exceed ten years. The acquittee’s commitment was extended

multiple times by agreement of the parties, but, in 2018, he was granted

conditional release and began living in the community, subject to his compliance with certain conditions relating to his ongoing mental health treatment.

Thereafter, in 2019, the state filed a petition for an order to extend the

acquittee’s commitment pursuant to the statute (§ 17a-593 (c)) that permits

recommitment when there is reasonable cause 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 . . . .’’ The acquittee moved to

dismiss the state’s petition on the ground that the recommitment procedure

set forth in § 17a-593 (c) violated his right to equal protection under the

United States constitution, but the trial court denied the acquittee’s motion

to dismiss, granted the state’s petition, and extended the acquittee’s commitment. In affirming the trial court’s order extending commitment, the Appellate Court rejected the acquittee’s claim that the recommitment procedure

set forth in § 17a-593 (c) violated his right to equal protection and upheld

the trial court’s finding that the state had proven by clear and convincing

evidence that the acquittee suffered from a mental illness that resulted in

his being a danger to himself or others. On the granting of certification, the

acquittee appealed to this court. Held:

The Appellate Court correctly concluded that the recommitment scheme

contemplated by § 17a-593 (c) did not violate the acquittee’s right to equal

protection under the federal constitution.

The acquittee’s equal protection claim was premised on the argument that,

even though he is similarly situated to convicted inmates who, while already

incarcerated, develop psychiatric conditions and are subsequently committed to mental health facilities pursuant to the statutes (§§ 17a-498 (c) and

17a-515) governing civil commitment, the recommitment procedure set forth

in § 17a-593 (c) is applied more conservatively than the nominally identical

procedure that applies to civilly committed inmates and that such disparate

treatment did not withstand intermediate scrutiny.

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The acquittee’s equal protection claim failed because individuals, such as

the acquittee, who are found not guilty by reason of mental disease or defect

(insanity acquittees) and who have reached the end of their initial, maximum

terms of commitment, are not similarly situated to civilly committed inmates

for purposes of commitment.

Specifically, an insanity acquittee’s commitment is the product of a judicial

determination that the criminal acts that resulted in his commitment were

the result of his mental illness, whereas a civilly committed inmate has not

acknowledged that he suffers from a mental illness that caused him to

engage in criminal conduct, and there is no connection between the civilly

committed inmate’s criminal behavior and his civil commitment, insofar as

the inmate’s mental illness and the associated danger to himself or others

may develop years after the commencement of the inmate’s sentence for

his prior criminal behavior.

The Appellate Court properly upheld the trial court’s finding under § 17a593 (c) that there was reasonable cause to believe that the acquittee’s

discharge would constitute a danger to himself or others, as that finding

was not clearly erroneous.

The offenses that led to the acquittee’s prosecution, which involved the

physical assault of two schoolchildren while the acquittee was experiencing

auditory hallucinations, were violent in nature and indicated that his psychotic disorder could seriously endanger the safety of other people, it was

appropriate for the trial court to consider the acquittee’s offenses in making

its determination of dangerousness, even though they occurred more than

eighteen years before the state filed its petition for continued commitment

in 2019, and, during his nearly two decades of commitment, the acquittee

experienced numerous difficulties and forfeited various privileges as a result

of engaging in inappropriate and impulsive behavior.

In light of the length of the acquittee’s commitment, this court placed particular emphasis on the acquittee’s mental health status at or around the time

that the state filed the 2019 petition, and, although the acquittee had demonstrated some progress toward recovery and had been granted conditional

release during that time period, various medical professionals had expressed

concern with the acquittee’s discharge, given the short period of time during

which he had demonstrated compliance while under supervised release,

and the trial court properly credited the testimony of those professionals.

Moreover, the Psychiatric Security Review Board had noted that the

acquittee continued to require substantial supervision while on conditional

release, and it was appropriate for the trial court, in determining whether

the acquittee posed a risk of danger, to consider the degree to which the

acquittee’s progress was the product of the services, structure, and support

that he was receiving and what could potentially happen when the acquittee

is no longer required to take medication, to attend counseling, or to have

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State v. Foster

(One justice concurring separately)

Argued December 4, 2024—officially released August 19, 2025

Procedural History

Petition for an order extending the acquittee’s commitment to the Psychiatric Security Review Board,

brought to the Superior Court in the judicial district

of Stamford-Norwalk, geographical area number one,

where the court, Hon. Richard F. Comerford, Jr., judge

trial referee, denied the acquittee’s motions to dismiss

and to strike; thereafter, the case was tried to the court,

Hon. Richard F. Comerford, Jr., judge trial referee,

who, exercising the powers of the Superior Court, rendered judgment granting the petition, from which the

acquittee appealed to the Appellate Court, Cradle and

Suarez, Js., with Seeley, J., concurring, which affirmed

the trial court’s judgment, and the acquittee, on the

granting of certification, appealed to this court. Affirmed.

Monte P. Radler, with whom was Kevin Semataska,

assistant public defender, for the appellant (acquittee).

Jonathan M. Sousa, assistant state’s attorney, with

whom, on the brief, were Paul J. Ferencek, state’s attorney, and Elizabeth K. Moran, assistant state’s attorney,

for the appellee (state).

Deborah A. Dorfman filed a brief for Disability Rights

Connecticut as amicus curiae.

Opinion

MULLINS, C. J. The principal issue in this certified

appeal is whether, for purposes of an equal protection

challenge, an insanity acquittee1 who is subject to a

‘‘An insanity acquittee is any person found not guilty by reason of mental

1

disease or defect . . . .’’ (Internal quotation marks omitted.) State v. Dyous,

307 Conn. 299, 301 n.1, 53 A.3d 153 (2012); see also General Statutes § 17a580 (1).

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petition under General Statutes § 17a-5932 for continued

commitment to the custody of the Psychiatric Security

Review Board (board) following the expiration of the

maximum period of commitment is similarly situated

to a mentally ill prison inmate who is the subject of

a petition for civil commitment pursuant to General

Statutes §§ 17a-498 (c) and 17a-515 (civilly committed

inmate). We conclude that an insanity acquittee who is

subject to a petition for continued commitment, regardless of his clinical progress, is not similarly situated to

a civilly committed inmate for purposes of the equal

protection guarantees under the fourteenth amendment

to the United States constitution.

The acquittee, Franklin Foster, appeals, upon our

grant of his petition for certification,3 from the judgment

of the Appellate Court, which affirmed the judgment

of the trial court granting the state’s petition to extend

his commitment to the custody of the board. See State

v. Foster, 217 Conn. App. 476, 478, 506, 289 A.3d 191

(2023). On appeal, the acquittee claims, among other

things, that the Appellate Court incorrectly concluded

that (1) as an insanity acquittee, he was not similarly

situated to a civilly committed inmate for purposes of

2

The legislature amended subsection (g) of § 17a-593 since the events

underlying this appeal. See Public Acts 2022, No. 22-45, § 5; see also part I

A of this opinion. All references herein to § 17a-593 are to the current revision

of the statute unless otherwise indicated.

3

This court granted the acquittee’s petition for certification to appeal,

limited to the following issues: (1) ‘‘Did the Appellate Court correctly conclude that the trial court’s factual finding that the acquittee poses a continued

risk of danger to himself or to others was supported by clear and convincing

evidence?’’ (2) ‘‘Did the Appellate Court correctly conclude that the acquittee

was not similarly situated to civilly committed inmates for the purpose of

deciding whether . . . § 17a-593, as applied to the acquittee, violated his

right to equal protection under the fourteenth amendment to the United

States constitution?’’ And (3) ‘‘[i]f the answer to the second question is ‘no,’

is § 17a-593 subject to rational basis review or to intermediate scrutiny?’’

State v. Foster, 346 Conn. 920, 291 A.3d 1041 (2023).

Because we conclude that the answer to question two is ‘‘yes,’’ we do

not address the third certified issue.

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a challenge to § 17a-593 under the equal protection

clause of the fourteenth amendment to the United

States constitution, and (2) the trial court’s finding,

pursuant to § 17a-593 (c), that he was mentally ill and

dangerous was supported by clear and convincing evidence.4 We disagree and affirm the judgment of the

Appellate Court.

The record reveals the following relevant facts and

procedural history, many of which are aptly set forth

in greater detail in the opinion of the Appellate Court.

See id., 478–82. In 2001, when he was twenty-four years

4

In his brief to this court, the acquittee also asserts two other constitutional claims. First, as a corollary to his claim that the Appellate Court

improperly upheld the trial court’s finding of dangerousness, the acquittee

contends that § 17a-593 is unconstitutionally vague under the Connecticut

constitution because the statutory scheme does not provide concrete standards for assessing an insanity acquittee’s future dangerousness. Second,

the acquittee claims that § 17a-593 violates his equal protection rights under

the Connecticut constitution and provides an independent analysis under

State v. Geisler, 222 Conn. 672, 684–86, 610 A.2d 1225 (1992), in support of

his argument that the state constitution provides him with greater protection

than the federal constitution.

We decline to address these state constitutional claims because, as the

state points out, the acquittee abandoned them by not raising them before

the Appellate Court, which never decided the issues, and because they are

outside the scope of the certified issues, limiting our review of the Appellate

Court’s decision. See, e.g., Dept. of Public Health v. Estrada, 349 Conn. 223,

250, 315 A.3d 1081 (2024); see also, e.g., Practice Book (2023) § 84-9 (limiting

issues appellant can present on appeal to ‘‘those set forth in the petition

for certification, except where the issues are further limited by the order

granting certification’’); State v. Saucier, 283 Conn. 207, 223, 926 A.2d 633

(2007) (‘‘a claim that has been abandoned during the initial appeal to the

Appellate Court cannot subsequently be resurrected by the taking of a

certified appeal to this court’’ (internal quotation marks omitted)). Further,

we disagree with the acquittee’s argument that the present case presents

considerations of judicial economy similar to those present in State v. Andres

C., 349 Conn. 300, 315 A.3d 1014, cert. denied, U.S. , 145 S. Ct. 602,

220 L. Ed. 2d 236 (2024), a certified appeal in which we exercised our

discretion to review the state’s unpreserved, alternative ground for

affirmance. See id., 305–306, 315–18 (considering whether sexual assault

victim’s journals were disclosable statements under rules of practice

because, if defendant prevailed in certified appeal and obtained remand for

further proceedings, state could raise that claim at that time).

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old, the acquittee entered a Greenwich middle school

without permission. Id., 478–79. The acquittee possessed two knives; unprovoked, he punched, slapped

and kicked a male student and lifted a female student

over his head. Id. When apprehended, the acquittee told

the police: ‘‘I’m here to fight the first person I see. Both

of us were in the wrong place at the wrong time.’’

(Internal quotation marks omitted.) Id., 479. ‘‘[D]uring

the incident at issue, the acquittee was responding to

command auditory hallucinations that told him to

assault a minor.’’ (Internal quotation marks omitted.)

Id., 479 n.1. The acquittee was found not guilty by reason

of a mental disease or defect of several index offenses,5

namely, burglary in the first degree, risk of injury to a

child, assault in the third degree, and possession of a

weapon on school grounds. Id., 478. The acquittee was

subsequently diagnosed with, and continues to experience, schizophrenia or bipolar schizoaffective disorder,

as well as borderline intellectual functioning.

Following his insanity acquittal, the acquittee was

initially committed in 2003 ‘‘to the jurisdiction of the

board for a period of time not to exceed ten years,

and [he] was subsequently admitted to a psychiatric

hospital. By agreement of the parties, the acquittee’s

commitment was continued by the [trial] court for one

year in 2013, two years in 2014, two years in 2016, and

one year in 2018.’’ Id., 479.

With respect to the nature of his commitment, the

acquittee was initially confined under maximum security conditions for four years at what was then the

5

As the Appellate Court observed, ‘‘[t]he psychiatric profession refers to

the offenses that led to an acquittee’s arrest as ‘index offenses.’ ’’ State v.

Foster, supra, 217 Conn. App. 487 n.5; see, e.g., M. Kaggwa et al., ‘‘Weapon

Use During the Index Offense: A Study Among Forensic Psychiatry Patients

in Ontario, Canada,’’ 11 Inj. Epidemiology, December 18, 2024, p. 2, available

at https://link.springer.com/content/pdf/10.1186/s40621-024-00551-z.pdf (last

visited August 13, 2025).

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Whiting Forensic Division of the Connecticut Valley

Hospital (hospital) in Middletown, from June, 2003,

until August, 2007. In August, 2007, the board approved

the transfer of the acquittee to the hospital’s less restrictive Dutcher Enhanced Security Service (Dutcher). The

acquittee began to attend day treatment services in

Bridgeport in March, 2012, but resided at the hospital

until August, 2013. He then moved to a community

outpatient setting until December, 2013, when he was

required to return to the hospital because of ‘‘inappropriate behavior.’’

In May, 2014, the board terminated the acquittee’s

overnight leave but continued to permit him to attend

day treatment in the community while residing at Dutcher.

That privilege was suspended briefly after the acquittee

assaulted another patient in November, 2014, injuring

himself but not the other patient.

In 2015, the acquittee underwent neuropsychological

testing, which revealed ‘‘poor frustration tolerance’’ and

impulsivity. Kevin Trueblood, a forensic psychiatrist,

described him as ‘‘angry and rigid’’ in response to clinical staff, particularly female staff who exercised authority over him. Trueblood reported that the acquittee had

exhibited some insight into his index offenses and mental illnesses but was ‘‘not likely to make much more

improvement’’ in that respect. In a 2016 report, the

board indicated that it agreed with Trueblood’s concern

that, if discharged, the acquittee would become noncompliant with treatment and dangerous.

In 2016 and 2017, the acquittee threatened female

hospital staff on multiple occasions, which resulted in

the board’s decreasing his leave privileges. On one of

those occasions, the acquittee blocked a female staff

member from exiting a small storage room in a way

that left her feeling ‘‘barricaded’’ in that space. On a

second occasion, after a staff member tried to ‘‘redirect’’

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the acquittee following an incident with another patient

in the dining room, he called that staff member ‘‘a derogatory curse word.’’ He then disobeyed staff direction

to remain where he was and told a female member that

he should ‘‘ ‘slap her for being a snitch.’ ’’ On a third

occasion, the acquittee told the same female staff member from the storage room incident that he was ‘‘out

to get [her].’’

In September, 2017, the acquittee began to show progress, and the board granted him temporary leave to

transition to a residential program in Bridgeport. Trueblood

testified that, by that time, the acquittee had denied

experiencing any hallucinations or thoughts of harming

himself or others and that ‘‘[h]is thinking appeared to

be organized and goal-directed.’’ As a result, the board

granted the acquittee overnight stays at the transitional

living center. At the center, the acquittee demonstrated

progress, which the board attributed to ‘‘a high degree

of supervision and support.’’

After nearly one year of clinical stability and compliance with taking his medication, in the summer of 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 [on] his compliance with several

requirements pertaining to his ongoing mental health

treatment.’’ State v. Foster, supra, 217 Conn. App. 479.

He has continued living in Bridgeport following his transition to conditional release.

The state filed the petition for continued commitment

at issue in this certified appeal in July, 2019. Id. In

August, 2019, the board filed a report pursuant to § 17a593 (d), recommending that the trial court extend the

acquittee’s commitment for a period of time not to

exceed five years. See id., 480. In making this recommendation, the board emphasized that the acquittee had

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‘‘a long-standing pattern of inappropriate and impulsive

behaviors, which he usually exhibited when frustrated,’’

along with a history of noncompliance with taking his

medication. The board noted that, as recently as June

29, 2018, Alexander Westphal, a consulting forensic psychiatrist, had testified in favor of conditionally releasing

the acquittee from the hospital to the community. Westphal acknowledged, however, that the acquittee ‘‘would

pose a risk to himself or others without the substantial

conditions proposed for his release.’’

Given that the acquittee had been on conditional

release status for only approximately one year when

the state filed its petition for continued commitment,

the board emphasized that his ‘‘experience living in the

community remain[ed] limited and [that] he [was] 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 conditional release supervisor.

Without these mandated safeguards, which his treaters

continue[d] to believe [were] required to address his

risk, he [was] 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 [found] that he continue[d] to require substantial

supervision and that he [could not] reside safely in

the community without the board’s continued oversight

and support.’’

The acquittee moved to dismiss the state’s petition

for continued commitment on the ground that the

recommitment procedure under § 17a-593 violated his

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equal protection rights under the United States constitution, and he later moved to strike the portion of the

board’s report recommending the extension of his commitment. See State v. Foster, supra, 217 Conn. App.

479–81.

The trial court held a hearing on the motions and

the petition. Id., 481. The court denied the acquittee’s

motions and subsequently issued a memorandum of

decision, granting the state’s petition and extending the

acquittee’s commitment for two years. Id. The court

found that the state had established by clear and convincing evidence that the acquittee continues to suffer

from (1) ‘‘a psychiatric illness diagnosed as schizoaffective disorder, bipolar type,’’ (2) ‘‘borderline intellectual

functioning,’’ (3) ‘‘inappropriate and impulsive behaviors, especially toward females,’’ and (4) ‘‘frustration

difficulties.’’

The trial court further found that, although the

acquittee’s ‘‘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. [Although the acquittee]

has expressed . . . to [his conditional release supervisor, Madeline Rodriguez, who is a licensed clinical

social worker, an intent] to voluntarily comply with

mandated safeguards, a sufficient period of time in conditional release status has not passed for the [trial]

court to give great weight to any such self-represented

intent. [On the basis of] 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

trial court later extended that two year commitment to

December 1, 2025. See footnote 7 of this opinion.

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In March, 2020, the acquittee appealed from the judgment of the trial court to the Appellate Court. State v.

Foster, supra, 217 Conn. App. 481. He first claimed that

the trial 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.’’ Id., 482. The Appellate

Court rejected this claim. See id. The Appellate Court

concluded that the trial court’s finding of dangerousness was not clearly erroneous because (1) ‘‘during

his commitment to the board, the acquittee had made

progress and . . . the current level of his release into

the community is ‘stable’ only because of mandated

safeguards imposed by the board’’; id., 493; and (2)

despite the acquittee’s expressed intention ‘‘to voluntarily comply with mandated safeguards,’’ the record did

not establish ‘‘a sufficient history of [the acquittee]

being in a conditional release status to support a conclusion that he can live in the community without board

oversight.’’ Id., 494.

The acquittee’s second claim on appeal was that

‘‘§ 17a-593, as applied to him, violates his right to equal

protection [as] guaranteed by the federal constitution.’’

Id. He contended that ‘‘the recommitment procedure

that governs acquittees under § 17a-593 is applied more

conservatively than the nominally identical commitment procedure that applies to [civilly committed

inmates] 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.’’ Id., 495. After conducting a comprehensive review of prior decisions from appellate courts

that have considered constitutional challenges to § 17a593, including this court’s decisions in State v. Dyous,

307 Conn. 299, 53 A.3d 153 (2012), and State v. Metz,

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230 Conn. 400, 645 A.2d 965 (1994), the Appellate Court

rejected the acquittee’s equal protection claim, concluding that he could not establish as a threshold matter

that, as an insanity acquittee, he was similarly situated

to civilly committed inmates.6 See State v. Foster, supra,

217 Conn. App. 498–506. Accordingly, the Appellate

Court affirmed the judgment of the trial court. Id., 506.

This certified appeal followed.7

I

We begin with the principal issue in this appeal, which

is the acquittee’s claim that the recommitment scheme

under § 17a-593 violates his equal protection rights

under the United States constitution. He first contends

that the Appellate Court incorrectly concluded that, as

an insanity acquittee who is subject to recommitment

following the completion of his initial maximum term

of commitment pursuant to State v. Metz, supra, 230

Conn. 424–25, he is not similarly situated to a civilly

6

Judge Seeley authored a concurring opinion, stating that she would have

resolved the acquittee’s equal protection claims by ‘‘follow[ing] the [welltraveled] analytical path established by prior decisions of [this court] and [the

Appellate Court] and [by] assum[ing], without deciding, that the acquittee

is similarly situated to civilly committed inmates for purposes of the equal

protection analysis.’’ State v. Foster, supra, 217 Conn. App. 507–508 (Seeley,

J., concurring); see, e.g., State v. Dyous, supra, 307 Conn. 316 and n.11.

Judge Seeley also concluded that she was bound by this court’s decision

in State v. Long, 268 Conn. 508, 535–36, 539–40, 847 A.2d 862, cert. denied,

543 U.S. 969, 125 S. Ct. 424, 160 L. Ed. 2d 340 (2004), ‘‘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.’’ State v. Foster, supra, 528 (Seeley, J., concurring). She ultimately

concluded that the acquittee’s claim failed because he did not ‘‘adequately

brief the claim that his right to equal protection had been violated under

rational basis review.’’ Id., 528–29 (Seeley, J., concurring).

7

The acquittee’s two year commitment, which would have expired on

December 23, 2021, has been extended several times, with the agreement

of the parties, throughout the course of these appeals: first to March 21,

2023, then to September 1, 2025, and, finally, to December 1, 2025. The

acquittee continues to reside in Bridgeport on conditional release pending

a decision from this court.

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committed inmate. The acquittee argues that he is ‘‘even

better situated’’ than a civilly committed inmate because

he has had ‘‘years of medication, treatment, and successful community integration’’ and that he should not

be perpetually saddled with his index offenses, which

‘‘reflected his mental state at its worst moment.’’ The

acquittee further claims that § 17a-593 is subject to

intermediate scrutiny for purposes of analysis under

the equal protection clause and that the statute fails

under that standard because the differential treatment

is not substantially related to an important governmental interest. See, e.g., State v. Dyous, supra, 307 Conn.

318; see also, e.g., Craig v. Boren, 429 U.S. 190, 197, 97

S. Ct. 451, 50 L. Ed. 2d 397 (1976).

We conclude that the acquittee’s equal protection

claim fails because, as an insanity acquittee, even one

whose initial maximum term of commitment has expired,

he is not similarly situated to a civilly committed inmate.

Primarily, there is a fundamental distinction between

the two classes because, in contrast to a civilly committed inmate’s commitment, an insanity acquittee’s commitment is the product of a judicially determined

connection between the index offense and the insanity

acquittee’s mental illness.

A

Review of Governing Statutory Scheme

An overview of Connecticut’s statutory scheme governing the recommitment of insanity acquittees, along

with a comparison to that governing civil commitment,

provides context for understanding the acquittee’s

claims on appeal. This court’s decision in State v. Dyous,

supra, 307 Conn. 299, explains the two statutory schemes.

There are ‘‘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

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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.’’

Id., 322–23.

‘‘[T]he most obvious reason why divergent outcomes

of this sort are possible is that the legislature has

imposed different mandates on the two commitment

systems.’’ Id., 323. ‘‘[F]or acquittees, the legislature has

directed the board, in making decisions regarding conditional release, and the Superior Court, in making decisions regarding discharge, to consider that [the] primary

concern is the protection of society . . . . General

Statutes §§ [17a-584] and 17a-593 (g). In civil commitment proceedings, however, the legislature has directed

physicians providing opinions to the Probate Court to

consider whether . . . less restrictive placement is

recommended and available; General Statutes § 17a-498

(c); and similarly has required the Probate Court to

consider whether . . . a less restrictive placement is

available . . . . General Statutes § 17a-498 (c).’’ (Internal quotation marks omitted.) State v. Dyous, supra,

307 Conn. 323; see also, e.g., State v. Harris, 277 Conn.

378, 382–85, 890 A.2d 559 (2006) (contrasting civil commitment and insanity acquittee recommittal procedures). Finally, in 2022, the legislature amended § 17a593 (g) to make clear that the trial court’s ‘‘secondary

concern is the safety and well-being of the acquittee

. . . .’’ Public Acts 2022, No. 22-45, § 5 (P.A. 22-45).

This court’s 1994 decision in State v. Metz, supra, 230

Conn. 400, clarified the burden of proof applicable in

acquittees’ recommitment proceedings. In Metz, this

court ‘‘conclude[d] that § 17a-593 (c) impliedly imposes

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the same burden [of proof] on the state at a hearing

for the continued commitment of an acquittee beyond

his [or her] current definite period of commitment as

is imposed in a civil commitment hearing under § 17a498 (c); namely, to show by clear and convincing evidence that the acquittee is currently mentally ill and

dangerous to himself or herself or others or gravely

disabled.’’ Id., 425.

B

General Equal Protection Principles

The following well established principles govern our

review of the acquittee’s federal equal protection claims,

which present ‘‘a question of law over which our review

is plenary. . . . [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.’’ (Citation omitted; internal

quotation marks omitted.) State v. Dyous, supra, 307

Conn. 315.

‘‘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 rele0, 0 CONNECTICUT LAW JOURNAL Page 15

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vant 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 [that] 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., 315–16; see also, e.g.,

Kerrigan v. Commissioner of Public Health, 289 Conn.

135, 140, 157–58, 957 A.2d 407 (2008) (applying equal

protection analysis to state constitutional claim).

Establishing that the entities or individuals at issue

are similarly situated is a ‘‘threshold requirement’’; (internal quotation marks omitted) Keane v. Fischetti, 300

Conn. 395, 403, 13 A.3d 1089 (2011); or ‘‘analytical predicate’’ to the equal protection analysis that we apply

under both the federal and state constitutions. (Internal

quotation marks omitted.) State v. Wright, 246 Conn.

132, 139, 716 A.2d 870 (1998); see, e.g., Ramos v. Vernon,

254 Conn. 799, 826, 761 A.2d 705 (2000); see also, e.g.,

Darak v. Darak, 210 Conn. 462, 473, 556 A.2d 145 (1989)

(seminal Connecticut case on similarly situated analysis). Only after concluding that the entities or persons

at issue are similarly situated does the court go on to

determine the standard of review applicable to the equal

protection analysis. See, e.g., Keane v. Fischetti, supra,

403–406; see also, e.g., State v. Angel C., 245 Conn.

93, 126 and n.37, 715 A.2d 652 (1998). The three well

established equal protection standards of review, ranging from most to least deferential to a challenged classification, are rational basis, intermediate scrutiny, and

strict scrutiny. See, e.g., State v. Dyous, supra, 307

Conn. 317–18.

The statutory classification by itself cannot serve as

the defining difference between the classes, i.e., that

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one group is named ‘‘acquittees’’ and the other ‘‘civil

committees,’’ with respect to establishing whether they

are similarly situated. Factual differences, not just statutory distinctions, must exist to render the two groups

not similarly situated. See, e.g., Kerrigan v. Commissioner of Public Health, supra, 289 Conn. 162–63 (rejecting

argument that gay persons are not similarly situated under

state constitution to ‘‘persons who choose to marry a

person of the opposite sex insofar as each of the plaintiffs [sought] to marry a person of the same sex,’’ as

‘‘the plaintiffs [could] meet the same statutory eligibility

requirements applicable to persons who seek to marry’’

person of opposite sex and had ‘‘multitude of characteristics’’ in common with opposite sex couples with

respect to desire for marriage). In the present case, the

threshold question that we must resolve is whether

an insanity acquittee is similarly situated to a civilly

committed inmate for purposes of considering an extension of commitment.

C

Similarly Situated Analysis

Highlighting his therapeutic progress during his term

of commitment to the custody of the board, the

acquittee seeks to classify himself as similarly situated

to a civilly committed inmate because he is now subject

to extensions of his since expired initial commitment

pursuant to § 17a-593 (c), under the scheme set forth

by State v. Metz, supra, 230 Conn. 424–25. We understand the class implicated by the acquittee’s claim to

include all of those insanity acquittees who benefit from

the construction of § 17a-593 under Metz because their

initial term of confinement has expired.8 Although the

8

The acquittee’s framing of the classes involved is not entirely clear. On

the one hand, in his brief to this court, he refers to himself broadly as a

‘‘Metz acquittee’’ throughout the analysis and relies heavily on that decision’s

treatment of the limited initial term of commitment for purposes of the

allocation of the burden of proof in recommitment proceedings. See State

v. Metz, supra, 230 Conn. 424–26. On the other hand, he emphasizes his

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acquittee casts this claim as an as applied challenge,

this case presents a facial challenge to § 17a-593 as

construed by Metz ‘‘because a determination in his favor

necessarily would apply to the continued commitment

of all other acquittees’’ of similar commitment status.

State v. Long, 301 Conn. 216, 244, 19 A.3d 1242, cert.

denied, 565 U.S. 1084, 132 S. Ct. 827, 181 L. Ed. 2d

535 (2011) (Long II); see also, e.g., id., 244 n.20 (‘‘the

distinction between as applied and facial challenges has

perplexed litigants, courts and commentators’’ because,

‘‘[o]n one hand, it can refer to the relief sought; on the

other hand, it can distinguish the source of the disparate

treatment—the text of the statute or those who interpret and apply that text’’).

individual clinical progress and distinguishes himself factually from the

insanity acquittee in this court’s leading decision in State v. Dyous, supra,

307 Conn. 299. In Dyous, the insanity acquittee’s clinical progress was less

than that of the acquittee in this appeal, insofar as the acquittee in Dyous

had absconded from two hospitals and had continued to experience hallucinations and delusions and to exhibit violent behavior and a general reluctance to take his prescribed medication. See id., 304–307. Indeed, the

acquittee in the present case points out that the insanity acquittee in Dyous

did not challenge the dangerousness finding in that case. See id., 314.

Given the innumerable variations in treatment progress by Metz acquittees,

with some experiencing minimal or no clinical improvement, others experiencing clinical improvement over a relatively short period of time, and

others experiencing a great deal of success over an extended period of time,

we view any attempt to define a class based on an insanity acquittee’s

underlying clinical progress to suffer from fatal unworkability with respect

to its identification. See, e.g., Corey Airport Services, Inc. v. Clear Channel

Outdoor, Inc., 682 F.3d 1293, 1297–98 (11th Cir. 2012) (discussing need for

‘‘strongly defined groupings,’’ like race or gender, and noting that, ‘‘[f]or a

group to qualify properly as identifiable for the purposes of an [e]qual

[p]rotection [c]lause claim, substantive group characteristics must pop out

that allow [the court] to separate readily entities or people into discrete

groupings and clearly identify those persons [who] suffered the alleged

discrimination and those persons [who] did not’’). As discussed in part II

of this opinion, the difficulty of this analysis is further compounded by the

difficulty in teasing out the extent to which an acquittee’s success is a

product of the support and conditions that the acquittee receives because

of his commitment to the custody of the board. Accordingly, our treatment

of this claim encompasses all insanity acquittees who are subject to recommitment under Metz.

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Whether an insanity acquittee who has reached the

end of his initial term of commitment is similarly situated to a civilly committed inmate for purposes of equal

protection challenges under the United States constitution presents an issue of first impression for this court.

When Connecticut’s appellate courts have considered

equal protection challenges to § 17a-593, they have generally assumed, without deciding, that insanity acquittees

and civilly committed inmates are similarly situated and

have then resolved the case on the merits under varying

standards of review. See, e.g., State v. Dyous, supra,

307 Conn. 316 and n.11, 321–22; State v. Long, 268 Conn.

508, 535, 847 A.2d 862, cert. denied, 543 U.S. 969, 125

S. Ct. 424, 160 L. Ed. 2d 340 (2004) (Long I); State v.

Lindo, 110 Conn. App. 418, 426–27, 955 A.2d 576, cert.

denied, 289 Conn. 948, 960 A.2d 1038 (2008). But see

State v. Dyous, supra, 336–39 (Zarella, J., concurring)

(resolving equal protection claim by concluding that

insanity acquittees are not similarly situated to civilly

committed inmates because, as explained by Jones v.

United States, 463 U.S. 354, 367, 103 S. Ct. 3043, 77 L.

Ed. 2d 694 (1983), ‘‘insanity acquittees and those who

are civilly committed are distinguishable on . . . a fundamental level,’’ given fact that insanity acquittee ‘‘has

been declared dangerous to society due to the commission of a criminal act . . . which is not the case with

a civilly committed inmate whose mental disease or

defect was not accompanied by a criminal act’’).9

9

The majority in Dyous responded to Justice Zarella’s concurrence in a

footnote, describing the similarly situated issue as not ‘‘nearly so [clear-cut]

in light of the important features that the two groups have in common.’’

State v. Dyous, supra, 307 Conn. 316 n.11. The Dyous majority believed that

Jones v. United States, supra, 463 U.S. 370, did not ‘‘[provide] guidance

with respect to this issue,’’ describing it as ‘‘merely determin[ing] that the

distinctions between the two classes were sufficient to warrant differential

treatment . . . .’’ (Citation omitted.) State v. Dyous, supra, 316 n.11. The

majority observed that ‘‘[i]t may be argued, therefore, that Jones supports

the view that the two classes are similarly situated for equal protection

purposes’’ but stated that it did ‘‘not believe . . . that Jones sheds any real

light on the issue.’’ (Emphasis in original.) Id., 317 n.11. The majority did, 0, 0 CONNECTICUT LAW JOURNAL Page 19

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State v. Foster

‘‘The similarly situated analysis is not a precise formula, but . . . what is clear is that similarly situated

[comparators] must be very similar indeed. . . . This

is true because the [e]qual [p]rotection [c]lause does

not require things which are different in fact or opinion

to be treated in law as though they [are] the same.’’

(Citations omitted; internal quotation marks omitted.)

Monarch Beverage Co. v. Grubb, 138 F. Supp. 3d 1002,

1008 (S.D. Ind. 2015), aff’d sub nom. Monarch Beverage

Co. v. Cook, 861 F.3d 678 (7th Cir. 2017).

In turning to state and federal case law that has considered whether insanity acquittees and those who are

committed under civil proceedings—including civilly

committed inmates—are similarly situated, we begin

with the broad language in the United States Supreme

Court’s decision in Jones v. United States, supra, 463

U.S. 354. In Jones, the court considered whether an

insanity acquittee ‘‘must be released because he has

been hospitalized for a period longer than he might

have served in prison had he been convicted.’’ Id., 356.

This question arose in the context of a statutory scheme

providing for indefinite and automatic commitment of

insanity acquittees, with hearings to consider release

held every six months thereafter. See id., 356–58 and

n.2, 361.

In rejecting the challenge, the United States Supreme

Court held broadly that, ‘‘when a criminal defendant

establishes by a preponderance of the evidence that he

is not guilty of a crime by reason of insanity, the [federal]

[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

however, ‘‘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 . . . .’’

(Emphasis in original.) Id., 316.

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or is no longer a danger to himself or society. This

holding accords with the widely and reasonably held

view that insanity acquittees constitute a special class

that should be treated differently from other candidates

for commitment.’’10 (Emphasis added.) Id., 370; see id.,

368 (‘‘[t]he committed acquittee is entitled to release

when he has recovered his sanity or is no longer dangerous’’); see also Foucha v. Louisiana, 504 U.S. 71, 85–86,

112 S. Ct. 1780, 118 L. Ed. 2d 437 (1992) (concluding

that insanity acquittee who state conceded was not

mentally ill was entitled to release because ‘‘Jones

established that insanity acquittees may be treated differently in some respects from those persons subject

to civil commitment’’).

10

The United States Supreme Court in Jones addressed due process principles in rejecting the insanity acquittee’s due process claim that ‘‘indefinite

commitment is unconstitutional because the proof of his insanity was based

only on a preponderance of the evidence, as compared to [the civil commitment] requirement of proof by clear and convincing evidence’’ under Addington v. Texas, 441 U.S. 418, 426–27, 99 S. Ct. 1804, 60 L. Ed. 2d 323 (1979).

Jones v. United States, supra, 463 U.S. 366–68. The court observed that,

‘‘[i]n equating these situations, [the insanity acquittee] ignore[d] important

differences between the class of potential [civil commitment] candidates

and the class of insanity acquittees that justify differing standards of proof.

The [court in] Addington . . . expressed particular concern that members

of the public could be confined on the basis of ‘some abnormal behavior

which might be perceived by some as symptomatic of a mental or emotional

disorder, but which is in fact within a range of conduct that is generally

acceptable.’ . . . In view of this concern, the [c]ourt [in Addington] deemed

it inappropriate to ask the individual ‘to share equally with society the risk

of error.’ . . . But [because] automatic commitment . . . follows only if

the acquittee himself advances insanity as a defense and proves that his

criminal act was a product of his mental illness, there is good reason for

diminished concern as to the risk of error. More important, the proof that [the

acquittee] committed a criminal act as a result of mental illness eliminates

the risk that he is being committed for mere ‘idiosyncratic behavior’ . . . .

A criminal act by definition is not ‘within a range of conduct that is generally

acceptable.’ ’’ (Citations omitted; emphasis in original; footnotes omitted.)

Id., 367. The court concluded that ‘‘concerns critical to [its] decision in

Addington are diminished or absent in the case of insanity acquittees.

Accordingly, there is no reason for adopting the same standard of proof in

both cases.’’ Id.; see id., 368 (‘‘[t]he preponderance of the evidence standard

comports with due process for commitment of insanity acquittees’’).

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Although the court in Jones stated that it was not

considering the constitutionality of the differences

between the release procedures in that case as applicable to insanity acquittees and civilly committed inmates;

see Jones v. United States, supra, 463 U.S. 363 n.11;

numerous state and federal courts have applied Jones’

expansive language in holding that civil committees

and insanity acquittees are not similarly situated for

purposes of release. Notably, in Glatz v. Kort, 807 F.2d

1514 (10th Cir. 1986), the United States Court of Appeals

for the Tenth Circuit rejected a facial challenge to Colorado’s insanity acquittee release statutes, holding that

‘‘[i]nsanity acquittees and involuntary civil committees

are not similarly situated groups for equal protection

purposes.’’ (Emphasis added.) Id., 1522. The court emphasized that ‘‘the insanity acquittee has confessed to committing a criminal act earlier and the grand jury or the

court has found probable cause to believe that he did

in fact commit the act,’’ which renders it ‘‘not unreasonable to conclude that an insanity acquittal supports

an inference of continuing mental illness. . . . These

differences dramatically distinguish the involuntary

civil committee and make an equal protection comparison inappropriate. They provide a rational basis for

distinguishing the criminal committee [that] permits the

state to commit the criminal defendant automatically,

without the right to a [precommitment] hearing, and

permits a different burden and standard of proof for

release.’’ (Citation omitted; emphasis added; internal

quotation marks omitted.) Id.

Numerous other federal and state decisions are consistent with the reasoning of Glatz, holding that the

different origins of their commitments—and particularly the insanity acquittees’ commission of criminal

acts—render insanity acquittees and civilly committed

individuals not similarly situated for purposes of release.

See, e.g., Hartman v. Summers, 878 F. Supp. 1335,

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State v. Foster

1345–47 (C.D. Cal. 1995), aff’d, 120 F.3d 157 (9th Cir.

1997); People v. Wilder, 33 Cal. App. 4th 90, 104–105,

39 Cal. Rptr. 2d 247 (1995); Lidberg v. Steffen, 514

N.W.2d 779, 784 (Minn. 1994); Reiter v. State, 36 P.3d

586, 594–96 (Wyo. 2001); see also, e.g., Ernst J. v. Stone,

452 F.3d 186, 201 (2d Cir. 2006) (observing that, ‘‘[i]n

the absence of any direct guidance from the [United

States] Supreme Court regarding whether its analysis

in Jones extends to recommitment proceedings, one

could argue that because [civilly committed inmates]’’

have not ‘‘acknowledged that they suffer from mental

illness’’ that ‘‘caused them to engage in criminal conduct,’’ they ‘‘are not [similarly situated] to [conditionally

released insanity acquittees] and therefore may be subjected to lower standards of proof in recommitment

proceedings’’); cf. Warren v. Harvey, 632 F.2d 925, 928,

930–32 (2d Cir.) (rejecting due process challenge to

previous Connecticut statute requiring state to prove

dangerousness at insanity acquittee release hearing by

preponderance of evidence because ‘‘[t]he 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’’ and ‘‘have ‘proved’ themselves a danger

to society at one time,’’ whereas nonacquittees ‘‘have

not been found by any [fact finder] to have harmed

society as a result of their mental illness’’), cert. denied,

449 U.S. 902, 101 S. Ct. 273, 66 L. Ed. 2d 133 (1980).

The acquittee contends, however, that the United

States Supreme Court has ‘‘issued three seminal equal

protection rulings regarding involuntary commitment,’’

namely, Jackson v. Indiana, 406 U.S. 715, 92 S. Ct. 1845,

32 L. Ed. 2d 435 (1972), Humphrey v. Cady, 405 U.S.

504, 92 S. Ct. 1048, 31 L. Ed. 2d 394 (1972), and Baxstrom

v. Herold, 383 U.S. 107, 86 S. Ct. 760, 15 L. Ed. 2d

620 (1966). He quotes the decision of the District of

Columbia Circuit Court of Appeals in United States v.

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Ecker, 543 F.2d 178, 197 n.74 (D.C. Cir. 1976), cert.

denied, 429 U.S. 1063, 97 S. Ct. 788, 50 L. Ed. 2d 779

(1977), to argue that the Jackson/Humphrey/Baxstrom

‘‘trio of cases has produced the Baxstrom principle,

which states that the [s]tate cannot withhold from a

few the procedural protections or the substantive

requirements for commitment [or release] that are available to all [other civil committees].’’ (Internal quotation

marks omitted.) Citing footnote 34 in Ecker, the acquittee

also contends that ‘‘[t]he Baxstrom principle applies

equally to acquittees who reach the maximum sentence

for the underlying index offense(s).’’ See United States

v. Ecker, supra, 188 n.34 (‘‘equal protection requires

[that] 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’’).

We disagree with the acquittee’s reading of the Jackson, Humphrey and Baxstrom decisions. As Jones recognized, none of these United States Supreme Court

cases concerned an insanity acquittee. See Jones v.

United States, supra, 463 U.S. 369 n.19. Moreover, all

three decisions, as well as the District of Columbia

Circuit’s decision in Ecker, predated Jones.11 See, e.g.,

11

The acquittee also argues that Jones is not controlling because it was

a due process, rather than an equal protection, case. We disagree. The United

States Supreme Court described the equal protection claim advanced by

the insanity acquittee in the lower court in Jones, that ‘‘it was irrational for

the [g]overnment to deny him a [civil commitment] hearing at which the

[g]overnment bore the burden of proof by clear and convincing evidence,’’

as ‘‘essentially duplicat[ing] [his] due process argument. That is, if the [d]ue

[p]rocess [c]lause does not require that an insanity acquittee be given the

particular procedural safeguards provided in a [civil commitment] hearing

under Addington [v. Texas, 441 U.S. 418, 99 S. Ct. 1804, 60 L. Ed. 2d 323

(1979)], then there necessarily is a rational basis for equal protection purposes for distinguishing between civil commitment and commitment of

insanity acquittees.’’ Jones v. United States, supra, 463 U.S. 362 n.10; see

also Foucha v. Louisiana, supra, 504 U.S. 84–85 (describing equal protection

aspects of Jones).

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State v. Foster

Seeboth v. Allenby, 789 F.3d 1099, 1106 (9th Cir. 2015)

(concluding that, contrary to claim by sexually violent

predator, ‘‘Baxstrom did not sweep so broadly’’ to

establish ‘‘that, in the arena of involuntary civil commitment, a state may not deny a right to one group of

committed persons that it confers on another group of

committed persons’’), cert. denied sub nom. Seeboth v.

Ahlin, 577 U.S. 1147, 136 S. Ct. 1168, 194 L. Ed. 2d 190

(2016); Francis S. v. Stone, 221 F.3d 100, 113 (2d Cir.

2000) (concluding that ‘‘Baxstrom [was] not decisive’’

in insanity acquittee case because ‘‘[the petitioner in

Baxstrom] had never been adjudicated mentally ill

based on his own plea; he was a prisoner [who] prison

authorities had administratively determined should be

confined in a prison hospital’’); see also, e.g., T. Hafemeister & J. Petrila, ‘‘Treating the Mentally Disordered

Offender: Society’s Uncertain, Conflicted, and Changing

Views,’’ 21 Fla. St. U. L. Rev. 729, 743–44 (1994) (‘‘Led

by the United States Supreme Court, the courts have

reversed their earlier position which had suggested that

all [mental] patients were equal. Instead, it is now apparent that disparate rules governing the confinement of

[insanity acquittees] are permissible.’’ (Footnote

omitted.)).

As this court concluded in Long I in rejecting a

rational basis challenge, and consistent with federal

case law in the wake of Jones v. United States, supra,

463 U.S. 363, 370, ‘‘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. 540. There is no such inextricable connection

between criminal behavior and civil commitment. In

the case of a civilly committed inmate, the inmate’s

mental illness and the associated danger to himself or

others may develop many years after the commence0, 0 CONNECTICUT LAW JOURNAL Page 25

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State v. Foster

ment of the inmate’s sentence for a criminal conviction

arising from conduct that has no connection at all to

the inmate’s mental illness. In this respect, a civilly

committed inmate is no different from any other civilly

committed individual, other than the role of the Department of Correction in the custody of that individual

before and after his commitment to the custody of the

Commissioner of Mental Health and Addiction Services

for psychiatric treatment. See General Statutes § 17a515 (‘‘[t]he provisions of section 17a-498 shall apply to

any person regarding whom proceedings for commitment are being instituted under section 17a-513 or 17a514, and to any other person in the custody of the

Commissioner of Correction, except that if the court

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’’).

Accordingly, we are persuaded that the distinctions

between insanity acquittees and civilly committed inmates

render these groups not fair congeners. Fundamentally,

the fact that insanity acquittees’ mental illnesses have

been proven to lead to criminal activity sufficiently

distinguishes that group from civilly committed inmates

for purposes of commitment. In other words, because

the groups are postured differently, the law does not

demand that they be treated the same. Thus, we conclude that the acquittee is not similarly situated to a

civilly committed inmate for equal protection purposes.

Although we do not review the acquittee’s state constitutional argument; see footnote 4 of this opinion; we

address his reliance on State v. Metz, supra, 230 Conn.

424–25, to the extent that it bears on our conclusion

that the acquittee is not similarly situated to a civilly

committed inmate. The acquittee asserts that to do othPage 26 CONNECTICUT LAW JOURNAL 0, 0

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State v. Foster

erwise would ‘‘[impose] the never-ending presumption

of dangerousness that Metz forbids.’’ We can see the

surface level appeal of this reliance on Metz, but we

ultimately disagree with the acquittee’s argument.

In considering the equal protection challenge to

§ 17a-593 (c) that was raised in Metz, this court ‘‘construe[d] the statute so as not to place it in constitutional

jeopardy.’’ State v. Metz, supra, 230 Conn. 422–23. In

doing so, the court determined that ‘‘the maximum

period of commitment authorized by [General Statutes]

§ 17a-582 (e) (1) (A) [is] a reasonably identified point

of demarcation beyond which the presumption of dangerousness initially accompanying an acquittee does

not continue.’’ Id., 425. Accordingly, the court ‘‘conclude[d] that § 17a-593 (c) impliedly imposes the same

burden [of proof] on the state at a hearing for the continued commitment of an acquittee beyond his [or her]

current definite period of commitment as is imposed

in a civil commitment hearing under § 17a-498 (c);

namely, to show by clear and convincing evidence that

the acquittee is currently mentally ill and dangerous to

himself or herself or others or gravely disabled.’’ Id.

In dictum, the court in Metz observed that its ‘‘conclusion finds additional support in the equal protection

clause of our state constitution, which forbids discrimination on the ground of mental illness. If the defendant

were not suffering from mental illness, the state could

not constitutionally confine him beyond the maximum

term of his criminal convictions. Although the state

may well have a compelling interest in the continued

commitment of acquittees whose mental illness[es]

[make] them dangerous to themselves or others . . .

that interest arises only when the state has shouldered

the burden of establishing the existence of the underlying facts. . . . Because the underlying criminal conduct may be relatively minor, and indeed need not

involve a crime of violence, the presumption of the

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existence of facts warranting the defendant’s commitment does not survive the expiration of the maximum

term of criminal sanctions.’’ (Citations omitted.) Id.,

425–26.

Although Metz provides some support for the

acquittee’s position, it is a statutory interpretation case

that does not dictate whether insanity acquittees and

civilly committed inmates are similarly situated as a

matter of law, notwithstanding its dictum referring to

the state equal protection clause. See State v. Long, supra,

268 Conn. 537 n.38. First, this court in Metz acknowledged the United States Supreme Court’s recognition

in Jones v. United States, supra, 463 U.S. 370, that

insanity acquittees are ‘‘a special class that should be

treated differently from other candidates for commitment’’; (internal quotation marks omitted) State v. Metz,

supra, 230 Conn. 414; but it did so in the context of

background principles, and it did not squarely consider

whether that observation informs release procedures.

See id., 424–26. Indeed, in Dyous, this court critiqued

Metz as inconsistent with a ‘‘commonsense conclusion

that [insanity acquittees subject to recommitment] raise

a public safety concern that is not raised to the same

extent in the context of civilly committed inmates’’ and

that ‘‘[t]he special public safety concern . . . raised by

the prospective release of [an insanity acquittee] does

not evaporate the moment such a person reaches the

end of his maximum term of commitment.’’ State v.

Dyous, supra, 307 Conn. 331 n.18. Second, the dictum

in Metz relying on the mention of mental disability in

the state equal protection clause is unpersuasive. Metz

was decided prior to Rayhall v. Akim Co., 263 Conn.

328, 819 A.2d 803 (2003), which held that, ‘‘when the

state discriminates amongst members of the protected

class, invidious discrimination cannot necessarily be

presumed.’’ (Emphasis in original.) Id., 344. Accordingly, a legislative classification that differentiates between

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two classes of mentally disabled individuals, namely,

insanity acquittees and civilly committed inmates, does

not automatically receive heightened review, in contrast to those statutes that ‘‘[discriminate] against the

disabled, or a class of the disabled, in favor of the

able-bodied,’’ under which invidious discrimination is

presumed. (Emphasis in original.) Id.; see State v. Long,

supra, 268 Conn. 539–40 (following Rayhall and applying

rational basis review to challenge under state constitution because ‘‘acquittees and civilly committed inmates

are both members of the same class, namely the psychiatrically disabled’’).

Although this court’s conclusion in State v. Metz,

supra, 230 Conn. 425, to apply the same burden of proof

as between the two groups may have mitigated a due

process issue given the liberty interest created by the

maximum term of confinement under § 17a-582 (e) (1)

(A), it does not render them similarly situated as a

matter of law for purposes of a federal equal protection

challenge to § 17a-593 (c).12 The Appellate Court there12

Consistent with the public policy factor of State v. Geisler, 222 Conn.

672, 685, 610 A.2d 1225 (1992), the acquittee relies on scholarly literature,

including articles cited in the amicus curiae brief of Disability Rights Connecticut, and on a legislative task force report to contend that fears of

recidivism among insanity acquittees are inflated. The acquittee emphasizes

that insanity acquittees, like himself, who have been treated with community

support during the protracted reintegration process provided by the conditional release statutes; see General Statutes §§ 17a-588 through 17a-591;

have significantly lower rates of reoffending than both offenders who are

mentally ill and offenders who are not mentally ill. See, e.g., M. Norko et

al., ‘‘Assessing Insanity Acquittee Recidivism in Connecticut,’’ 34 Behav.

Sci. & L. 423, 439–40 (2016); R. Wise & D. Heinrich, ‘‘Toward a More Scientific

Jurisprudence of Insanity,’’ 95 Temp. L. Rev. 45, 70–72 (2022); see also, e.g.,

B. Wendzel, Note, ‘‘Not Guilty, Yet Continuously Confined: Reforming the

Insanity Defense,’’ 57 Am. Crim. L. Rev. 391, 405, 407 (2020). Given our

conclusion that insanity acquittees and civilly committed inmates are not

similarly situated for equal protection purposes, we need not engage in

detail with the acquittee’s public policy arguments, other than to observe

that, following the release of a task force report in 2021; see Final Report

of the Task Force To Review and Evaluate CVH and WFH, the Psychiatric

Security Review Board, and Behavioral Health Care Definitions (December

16, 2021), available at https://www.cga.ct.gov/ph/tfs/20190426 CVH%20Whit0, 0 CONNECTICUT LAW JOURNAL Page 29

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fore correctly determined that the trial court properly

denied the acquittee’s motion to dismiss the state’s petition for continued commitment. See State v. Foster,

supra, 217 Conn. App. 494–95.

II

We next turn to the acquittee’s claim that the Appellate Court incorrectly concluded that the trial court’s

factual finding that the acquittee poses a continued risk

of danger to himself or others was supported by clear

and convincing evidence. See id., 494. The acquittee

claims that there is no evidence of his dangerousness,

rendering the trial court’s finding clearly erroneous.

The acquittee contends that the trial court’s ‘‘findings

[did] not establish imminent danger and erroneously

task[ed] [him] with establishing [that] he is ready for

discharge,’’ characterizing ‘‘[t]he evidence of potential

dangerousness to children and/or women [as] particularly weak.’’ Emphasizing ‘‘the temporal remoteness of

the index offenses,’’ the acquittee argues that he ‘‘has

had success in his community placement and [has]

made considerable progress toward discharge from the

[board],’’ with ‘‘the record . . . devoid of evidence of

dangerous behavior . . . directed at schoolchildren,

either on hospital grounds or in the community . . . .’’

Criticizing the Appellate Court’s decision as upholding

impermissible speculation, the acquittee describes his

conduct toward women in the hospital, about which

the Appellate Court and trial court were concerned, as

‘‘inappropriate relative to hospital or societal norms,’’

but he contends that evidence of this conduct does not

ing%20Task%20Force/CVH%20Whiting%20Final%20Report.pdf (last visited

August 13, 2025); legislative activity continues in this highly complex area,

with the legislature recently amending § 17a-593 (g) to add the insanity

acquittee’s ‘‘safety and well-being’’ as a secondary consideration in the trial

court’s release decision. P.A. 22-45, § 5; see also, e.g., State v. Lockhart, 298

Conn. 537, 561–62, 4 A.3d 1176 (2010) (legislature is branch of government

best suited to make public policy determinations).

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satisfy ‘‘the [state’s] heavy burden of establishing risk

of imminent physical injury to a woman.’’ We disagree

and conclude that the Appellate Court properly upheld

the trial court’s finding that reasonable cause exists to

believe that the acquittee’s discharge would constitute

a danger to himself or others.

As previously discussed, § 17a-593 governs proceedings to continue the commitment of an insanity

acquittee to the custody of the board. Subsection (c)

of the statute 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.’’ (Emphasis added.) In making

the findings as to the acquittee’s ‘‘mental condition’’

and as to whether his discharge would pose a danger

to himself or others, the court’s ‘‘primary concern is

the protection of society and its secondary concern is

the safety and well-being of the acquittee . . . .’’ General Statutes § 17a-593 (g); see P.A. 22-45, § 5 (amending

§ 17a-593 (g) to add acquittee’s ‘‘safety and well-being’’

as ‘‘secondary concern’’).

Well established standards guide this court in making

its determination under § 17a-593 (c) and (g). ‘‘In [a]

continued commitment proceeding, the state [bears]

the burden of proving by clear and convincing evidence

that the acquittee is currently mentally ill and dangerous

to himself . . . or others or gravely disabled. . . .

‘‘[T]he confinement of insanity acquittees, although

resulting initially from an adjudication in the criminal

justice system, is not punishment for a crime. The purpose of commitment following an insanity acquittal,

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like that of civil commitment, is to treat the individual’s

mental illness and [to] protect him and society from

his potential dangerousness. 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. . . .

‘‘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

. . . .’’ (Citations omitted; footnote omitted; internal

quotation marks omitted.) State v. Damone, 148 Conn.

App. 137, 164–65, 83 A.3d 1227, cert. denied, 311 Conn.

936, 88 A.3d 550 (2014); see also, e.g., State v. March,

265 Conn. 697, 710–11, 830 A.2d 212 (2003); State v.

Metz, supra, 230 Conn. 424–26. The trial court ‘‘properly’’ may ‘‘[credit] the board’s opinion and rel[y] on its

findings’’ in the report rendered pursuant to § 17a-593

(d) in making the dangerousness determination. State

v. March, supra, 712.

As this court held nearly forty years ago in State v.

Putnoki, 200 Conn. 208, 221, 510 A.2d 1329 (1986), ‘‘[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 [acquittee] 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 . . . .

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[T]he ultimate determination of mental illness and dangerousness is a legal decision . . . [and, in making that

determination] 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.’’ (Citations omitted; emphasis added; footnote

omitted; internal quotation marks omitted.) State v.

Damone, supra, 148 Conn. App. 170–71.

This legal determination of dangerousness is inherently predictive in nature, with the definition of ‘‘dangerousness’’ being ‘‘necessarily vague’’ given the difficulty

of the prediction, even with the aid of medical expert

testimony. State v. Putnoki, supra, 200 Conn. 219–20.

Further, in this context, the word ‘‘[i]mminent’’ does

not mean immediate or likely but, rather, simply ‘‘ready

to take place’’ or ‘‘hanging threateningly over one’s head

. . . .’’ (Internal quotation marks omitted.) State v. Harris, supra, 277 Conn. 389, quoting Merriam-Webster’s

Collegiate Dictionary (10th Ed. 1993) p. 580.

It is undisputed that the acquittee has a ‘‘psychiatric

disabilit[y]’’ for purposes of § 17a-593 (c).13 Accordingly,

we turn to the trial court’s finding that the acquittee was

dangerous because he presented the risk of imminent

physical injury to himself or others. The acquittee’s

index offenses of burglary, assault on two schoolchildren, and possession of a weapon on school grounds

are indeed violent crimes. Although these crimes took

place more than eighteen years before the state filed

the operative petition to extend the acquittee’s commitment in this case, they nevertheless indicate that the

13

Specifically, it is undisputed that the acquittee’s bipolar schizoaffective

disorder, along with his cannabis use disorder and his borderline intellectual

functioning, is a mental illness that is a ‘‘psychiatric disabilit[y]’’ for purposes

of § 17a-593 (c).

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acquittee’s psychotic disorder induced delusions—

when he was not compliant with his medicinal regimen—could seriously endanger the safety of other people, which supports the trial court’s finding of

dangerousness. See, e.g., State v. Putnoki, supra, 200

Conn. 221–22 (index offense is part of ‘‘past violent

behavior’’ factor); State v. Maskiell, 100 Conn. App.

507, 509, 523–24, 918 A.2d 293 (considering acquittee’s

sexual assault index offenses and pedophilia in connection with risks posed by release), cert. denied, 282 Conn.

922, 925 A.2d 1104 (2007).

We agree with the acquittee that the index offenses

are an appropriate consideration in the trial court’s

dangerousness assessment but are not determinative,

particularly given the length of his commitment to the

custody of the board. The acquittee has had an approximately two decade commitment that was marked by

some difficult years spanning from 2003 to at least 2017.

The acquittee had difficulty with his transition from

the hospital setting that commenced in 2012, losing

permission for temporary overnight leaves in 2013 and

2014 as a result of noncompliance with rules, including

assaulting another patient. As aptly noted by the Appellate Court, he also engaged in inappropriate and impulsive behavior toward females, including socially

inappropriate comments of a sexual nature, before ultimately transitioning to a residential program in Bridgeport in 2017. See State v. Foster, supra, 217 Conn. App.

489–90 and n.7.

The acquittee has also had some progress intermittently within those years and even more so after 2017,

when the board transitioned him to conditional release

status with increasing amounts of privileges and independence. Although consideration of the acquittee’s

entire history is important, given the length of his commitment, we place particular emphasis on his mental

status in the years closest to the petition at issue, which

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was filed in July, 2019, and which resulted in the board’s

report dated August 27, 2019. Cf. State v. Putnoki, supra,

200 Conn. 223 (‘‘[a]n individual’s mental and emotional

status does not remain static’’).

Most significant, it was not until 2018, just one year

before the state filed the petition for continued commitment that is at issue in this appeal, that the acquittee

reached a level of compliance with taking medication

and progress sufficient to be granted conditional release.

In that approximately one year period during which the

acquittee was on conditional release, the acquittee’s

treaters and evaluators expressed concerns with his

discharge from board custody given the short period

of time during which he had demonstrated compliance

while under supervision on conditional release.

First, Michael Genovese, a licensed clinical social

worker, indicated that the acquittee’s behavior toward

women remained ‘‘inappropriate,’’ although his ‘‘psychiatric symptoms remained controlled with medication

and treatment.’’ Second, Rodriguez, the acquittee’s conditional release supervisor, indicated that the acquittee

remained functional in the conditional release setting

and that he was making progress by doing things such

as taking his first unsupervised bus trip. She also noted,

however, that ‘‘he continued to make inappropriate

comments to females’’ and that he had ‘‘expressed the

belief that bad things happen in the world because of

him’’; Rodriguez stated that the acquittee conveyed to

her his own concern that ‘‘he might be sabotaging his

effort to be released from the board’s jurisdiction.’’ The

trial court properly credited this testimony by medical

providers who treated the acquittee and expressed concerns with discharging him at that time, along with the

board’s recommendation that the acquittee ‘‘continues

to require substantial supervision and that he cannot

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tinued oversight and support.’’ See, e.g., State v. March,

supra, 265 Conn. 712.

We recognize that the present case, which involves

an insanity acquittee who had made progress in his

recovery while on conditional release in the community

during a lengthy commitment in the custody of the

board, presents a circumstance that may well approach

the outer limits of when continued commitment to the

custody of the board is justified.14 Especially given the

inherently predictive nature of the dangerousness determination; see, e.g., State v. Putnoki, supra, 200 Conn.

219–20; we agree with the Appellate Court that the

degree to which the acquittee’s progress is a product of

the services, structure, and support that he is receiving

while on conditional release is a significant factor in

the dangerousness analysis, insofar as denying the peti14

The acquittee also relies on a few Superior Court decisions, State v.

Ali, Docket No. UWY-CR4-108157, 2023 WL 4881439 (Conn. Super. July 3,

2023), and State v. Salzman, Superior Court, judicial district of Middlesex,

Docket No. MMX-CR9-6156 (July 12, 2001), in support of his argument that

the trial court’s dangerousness finding was nothing more than impermissible

‘‘speculation’’ founded on an ‘‘assumption that the index offense(s) render

an acquittee perpetually dangerous.’’ He argues that the present case is

similar to State v. Dickinson, Docket No. TTD-CR84-0023695, 2006 WL

2053731 (Conn. Super. July 7, 2006), in which the court concluded that the

state had not proven by clear and convincing evidence that the acquittee

was dangerous. Id., *7. The court rejected the board’s conclusion that the

acquittee’s inappropriate flirtations with several female staff members supported a finding that he was dangerous, and it credited the testimony of

four psychiatrists indicating that he was not dangerous. See id., *6–7.

Beyond the deference that we give the trial court’s finding under the clearly

erroneous standard of review, the three cited cases are distinguishable from

the present case. Although both Ali and Salzman involved dangerous index

offenses, arson and attempted murder, respectively, both cases also had

uncontroverted findings of low risk of reoffending, lack of evidence of

noncompliance with taking medication or setbacks, and delays in moving

the acquittees from a hospital setting to community release status that

resulted in case-specific decisions to force discharge. See State v. Ali, supra,

2023 WL 4881439, *1–2; State v. Salzman, supra, Superior Court, Docket

No. MMX-CR9-6156. Moreover, the insanity acquittee in Dickinson no longer

required psychotropic medication for his illness. See State v. Dickinson,

supra, 2006 WL 2053731, *6.

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tion for continued commitment would mean that the

acquittee would no longer be required to take advantage

of that framework. See State v. Foster, supra, 217 Conn.

App. 493–94. In this respect, an acquittee’s willingness

to continue treatment and supervision voluntarily is

relevant but does not otherwise defeat a finding of

dangerousness. See, e.g., State v. Maskiell, supra, 100

Conn. App. 523–24.

Put differently, the imminence aspect of the dangerousness analysis; see, e.g., State v. Harris, supra, 277

Conn. 388–89; requires the trial court to consider what

may readily happen when an insanity acquittee is no

longer required to take medication, to attend counseling, or to have other restrictions in place that may

remove potential stressors or triggers. See, e.g., State

v. Damone, supra, 148 Conn. App. 139–40, 162, 171–75

(upholding trial court’s recommitment of acquittee,

whose index offenses included multiple sexual assaults,

even when his major depressive order was in remission

with medication and when he was able to hold full-time

employment, as acquittee’s stability was preserved by

board’s supervision of treatment and was otherwise at

risk given his occasional self-medication with narcotics); State v. Jacob, 69 Conn. App. 666, 684–85, 798 A.2d

974 (2002) (considering acts of violence that occurred

many years prior to hearing and concluding that acquittee’s

‘‘significant progress toward recovery,’’ including

‘‘extended’’ leaves from hospital and fact that he no

longer ‘‘require[d] any psychotropic medications,’’ did

not undercut trial court’s finding of dangerousness

when lack of recent dangerous conduct was ‘‘due, in

part, to the progress he ha[d] made since the time of

his original commitment and, in part, to the fact that

he ha[d] been confined, supervised and receiving treatment and, therefore, was less likely to [engage in such

conduct]’’). That the acquittee in the present case has

demonstrated significant clinical progress over only a

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relatively short period of his lengthy commitment to the

custody of the board, and only with the aid of significant

support and conditions during his conditional release,

supports the trial court’s dangerousness finding in

this case.

We disagree with the acquittee’s argument that considering an insanity acquittee’s progress over time, and

the extent to which it is the product of the conditions

of his commitment, violates State v. Metz, supra, 230

Conn. 425–26, by shifting the burden of proof from the

state to the acquittee. In considering whether the state

has proven dangerousness by clear and convincing evidence, the trier of fact must consider, in light of § 17a593 (g)’s express focus on public safety, the extent to

which an insanity acquittee’s progress and apparent

lack of danger are a product of the conditions under

which he is committed to the custody of the board, and

what is likely to happen should he lose or no longer

be required to take advantage of that support. It is,

therefore, more difficult for the state to satisfy its burden of proof when an insanity acquittee has demonstrated success with increasing freedoms and reduced

conditions while on conditional release status over a

significant period of time.15 Here, however, the trial

15

We acknowledge the acquittee’s argument that ‘‘[a] prejudicial factor

typically comes into play here,’’ insofar as courts ‘‘may be tempt[ed] to err

on the side of caution and to continue a person’s commitment because you

can never be sure.’’ (Internal quotation marks omitted.) State v. Hitt, 179

Or. App. 563, 573, 41 P.3d 434 (2002). The acquittee argues that this caution

‘‘completely eviscerates [State v. Metz, supra, 230 Conn. 425–26], by effectively thrusting the burden back [on] the acquittee, thereby improperly

realigning the respective interests of the acquittee and the state.’’ We are

unpersuaded.

Metz arose in the case of an acquittee whose continued commitment was

under maximum security conditions at Whiting Forensic Institute. See id.,

405, 408. The court in Metz did not contemplate the extent to which the

trial court, in making its dangerousness determination, must consider less

restrictive alternatives, such as the conditional release setting at issue in

the present case, and how the often lengthy, and often nonlinear, process

of transitioning from hospitalization, to community reintegration, and then

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court could have considered the one year time frame

insufficient, especially in light of the testimony from

medical providers (in particular, that of the psychiatrists, Trueblood and Westphal) who expressed concern

with how the acquittee would fare upon discharge.

The acquittee, however, argues that the board’s concerns are ‘‘overstated’’ because, although his ‘‘conduct

while in the hospital may have been inappropriate relative to hospital or societal norms . . . it does not [satisfy] the heavy burden of establishing risk of imminent

physical injury to a woman.’’ The acquittee relies on

the testimony, before the board, of his individual psychotherapist, Daniel Papapietro, to the effect that the

reported inappropriate touching was ‘‘not sexualized,’’

and, instead, ‘‘[i]t’s touching one on the shoulder, [or]

on their back. It’s a childlike flirtatiousness.’’ Indeed,

Papapietro and Rodriguez testified that they did not

believe that the acquittee would pose a risk were he to

reenter the community without conditions. Rodriguez

also testified as to the acquittee’s intention to continue

his treatment.

The trial court was not obligated to credit the testimony of Papapietro and Rodriguez to this effect. It is

well settled that, although trial courts may ‘‘attach special weight to the testimony of medical experts at a

hearing to determine mental status,’’ that testimony is

not binding because ‘‘psychiatric predictions of future

dangerousness are tentative at best and are frequently

conceded, even within the profession, to be unreliable.’’

State v. Putnoki, supra, 200 Conn. 219–20. The trial

court is free to reject a treating clinician’s testimony

in favor of crediting the board’s determination as to

dangerousness because ‘‘the goals of a treating psychiatrist frequently conflict with the goals of the criminal

seek any modification of Metz in this respect, we leave that question to

another day and, potentially, to legislative action in the meantime.

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justice system. . . . [Whereas] the psychiatrist [is] concerned primarily with therapeutic goals, the court must

give priority to the public safety ramifications of releasing from confinement an individual who has already

shown a propensity for violence.’’ (Citations omitted.)

Id., 220–21. Given the prioritization of public safety

under § 17a-593 (g), we conclude that the trial court

reasonably weighed the fact that Papapietro had testified that the acquittee had in fact refused to take or

had missed doses of medication, which raised the

potential of decompensation and a psychosis recurrence, with the fact that the acquittee had not acted

violently at those discrete points.

Finally, in upholding the trial court’s finding of dangerousness, we emphasize that our opinion is limited

to the record in connection with this petition, which

was filed in July, 2019, more than five years prior to

oral argument before this court, and which reflects only

approximately one year of conditional release—with

Westphal’s recommendation to grant conditional

release status emphasizing that ‘‘substantial conditions’’

were required to keep the acquittee from posing a danger to himself or others. The acquittee’s continued therapeutic progress; see, e.g., State v. Putnoki, supra, 200

Conn. 222–23; and the extent to which the most recent

petition for recommitment has become even further

removed from the index offenses, should inform the

decision on any subsequent petitions for recommitment

under § 17a-593. See footnote 7 of this opinion. Accordingly, we conclude that the Appellate Court correctly

determined that the trial court’s finding of dangerousness, under the circumstances that existed when it was

made, was not clearly erroneous.

The judgment of the Appellate Court is affirmed.

In this opinion McDONALD, D’AURIA, ALEXANDER

and DANNEHY, Js., concurred.