¶57 The majority holds that Tina Klein is not entitled to release under RCW 10.77.200 because she is dangerous as a result of the "mental disease" of "polysubstance dependence." In short, because she is a drug addict. I disagree. Drug addiction is not a mental disease. And the State cannot hold Klein unless she suffers from a mental disease or defect. Therefore, she is entitled to release.
I. BACKGROUND
¶58 Klein is a longtime drug addict. On April 20, 1993, she stabbed her infant nephew with a butcher knife and was charged with assault of a child in the first degree. On August 12, 1993, the trial court acquitted Klein by reason of insanity, finding a "psychoactive substance induced organic mental disorder," and conditionally released her. Clerk's Papers (CP) at 35. But after repeated violations, the trial court revoked the conditional release and placed Klein in state custody.
¶59 On April 11, 2003, Klein petitioned for full release. The trial court denied her petition, holding that she "remains a substantial danger to others and presents a substantial likelihood of committing criminal acts jeopardizing the public safety" because she suffered from the "mental disease" of "[p]olysubstance [d]ependence." CP at 40-41, 22. In other words, she used several different drugs several times. On appeal, Klein argued, inter alia, that polysubstance dependence is not a "mental disease or defect" under RCW 10.77.200. The Court of Appeals held that it was. See State v. Klein, noted at 122 Wn. App. 1002 (2004).
II. KLEIN IS ENTITLED TO RELEASE BECAUSE "POLYSUBSTANCE DEPENDENCE" IS NOT A "MENTAL DISEASE OR DEFECT" UNDER RCW 10.77.200
¶60 Washington law codifies the venerable M'Naghten insanity defense (M'Naghten's Case, 10 Clark Fin. 200, 8 Eng. Rep. 718 (H.L. 1843)). Defendants asserting it must *Page 125 prove that "as a result of mental disease or defect" they were unable either "to perceive the nature and quality of the act" or "to tell right from wrong with reference to the particular act." RCW 9A.12.010; 10.77.080. Success results in acquittal because the defendant lacked the mens rea for the crime. See State v.Reid, 144 Wn.2d 621, 627 n. 2, 30 P.3d 465 (2001) (citingFoucha v. Louisiana, 504 U.S. 71, 76 n. 4, 112 S. Ct. 1780,118 L. Ed. 2d 437 (1992)).
A. Insanity Acquittees Who Do Not Suffer From a "Mental Disease or Defect" Are Entitled to Release
¶61 Insanity acquittees are subject to state custody if "as a result of a mental disease or defect" they present "a substantial danger to other persons" or "a substantial likelihood of committing criminal acts jeopardizing public safety or security." RCW 10.77.200(3). But they may petition the court for full release at any time. Id. And if they no longer suffer from a "mental disease or defect," they are entitled to release. "When an insanity acquittee demonstrates he has regained his sanity, the basis for his confinement in a mental institution vanishes and he must be released." Reid, 144 Wn.2d at 631 (construing RCW 10.77.200) (holding insanity acquittee subject to state custody "so long as he is both mentally ill and dangerous as a result of that mental illness, but no longer"). See alsoFoucha, 504 U.S. at 77 (holding insanity acquittee "may be held as long as he is both mentally ill and dangerous, but no longer").
B. The Majority Errs by Deferring to the DSM-IV[10] Definition of Mental Illness
¶62 The majority correctly recognizes that an insanity acquittee petitioning for release "must be discharged if it is demonstrated that he or she no longer suffers from a `mental disease or defect.'" Majority at 114. And it correctly recognizes that we must not "conflate the factual determination *Page 126 of polysubstance dependence and personality disorder with thelegal conclusion of mental disease or defect under the statute." Majority at 114 n. 7. But unaccountably, it does just that.
¶63 Despite protestations to the contrary, the majority effectively assumes that "polysubstance dependence" is a "mental disease or defect" simply because it appears in the DSM-IV. See majority at 117. It concedes that some disorders defined in the DSM-IV will not "rise to the status of `disease or defect' under our statutes." Majority at 117. But it concludes that "polysubstance dependence" qualifies, without explanation. Essentially, its "legal conclusion" relies entirely on the trial court's finding that Klein suffers from a "mental disease or defect." But unfortunately, the majority fails to examine the substance of that finding.
¶64 Whether or not Klein continues to suffer from a "mental disease or defect" is indeed a question of fact. See majority at 115. But it is a question of fact the trial court neither asked nor answered. The trial court purported to find the legal fact that Klein "continues to suffer from mental disease or defect." CP at 40. But it actually found only the fact that Klein suffers from "polysubstance dependence." CP at 40, 22.11 And it simply assumed that because "polysubstance dependence" is a disorder listed in the DSM-IV, it is a "mental disease or defect" under RCW 10.77.200.12 But it was wrong.
C. A Medical Diagnosis of Mental Illness Does Not Necessarily Support a Legal Finding of "Mental Disease or Defect"
¶65 Whether or not an insanity acquittee suffers from a "mental disease or defect" is a question of fact. But whether *Page 127 or not "polysubstance dependence" — or any other disorder listed in the DSM-IV — constitutes a "mental disease or defect" is a question of law. "The crux of the issue, then, is not whether the acquittee must be ill in the medical sense, but whether his mental state fits a constitutionally valid legal definition."Parrish v. Colorado, 78 F.3d 1473, 1477 (10th Cir. 1996). Seealso Bruce J. Winick, Ambiguities in the Legal Meaning andSignificance of Mental Illness, 1 PSYCH. PUB. POL. L. 534, 557 (under Foucha, "what constitutes mental illness for purposes of involuntary hospitalization is a legal rather than a medical question"). Courts must "identify those mental illnesses of the health professionals that have the characteristics of `illness' that society views as essential to the legal processes." Jules B. Gerard, The Usefulness of the Medical Model to the LegalSystem, 39 RUTGERS L.REV. 377, 396 (1986).
¶66 The DSM-IV is a diagnostic tool, not a legal treatise. "In most situations, the clinical diagnosis of a DSM-IV mental disorder is not sufficient to establish the existence for legal purposes of a `mental disorder,' `mental disability,' `mental disease,' or `mental defect.'" DSM-IV-TR13 at xxxiii. Many of the 374 disorders listed in the DSM-IV are not `mental diseases or defects" in a legal sense. In fact, many are not "illnesses" at all. See Gerard, supra, at 386 (noting that a diagnosis is not "an `illness' just because psychiatrists attempt to treat the condition"). See also Ake v. Oklahoma,470 U.S. 68, 81, 105 S. Ct. 1087, 84 L. Ed. 2d 53 (1985) (noting that "psychiatrists disagree widely and frequently on what constitutes mental illness").
¶67 Courts may find the DSM-IV helpful in construing legal terms like "mental disease or defect." But they must respect the "imperfect fit between the questions of ultimate concern to the law" and the disorders it catalogues. DSM-IV-TR at xxxiii. Seealso Kansas v. Hendricks, 521 U.S. 346, 359, 117 S. Ct. 2072,138 L. Ed. 2d 501 (1997) ("The legal definitions of `insanity' and `competency' . . . vary substantially *Page 128 from their psychiatric counterparts.") and Gerard, supra, at 393 ("An illness for mental health purposes need not be an illness for legal purposes."). Psychiatry "informs but does not control ultimate legal determinations," Kansas v. Crane,534 U.S. 407, 413, 122 S. Ct. 867, 151 L. Ed. 2d 856 (2002), and the term "`mental illness'" as used in the DSM-IV "is devoid of any talismanic significance." Hendricks, 521 U.S. at 359. Because "mental disease or defect" is a legal, not a medical term, "what definition of `mental disease or defect' is to be employed by courts enforcing the criminal law is, in the final analysis, a question of legal, moral and policy — not of medical — judgment."United States v. Lyons, 731 F.2d 243, 246 (5th Cir. 1984).
¶68 Inexplicably, the majority suggests that construing the term "mental disease or defect" would "unduly encroach upon the legislative function." Majority at 117. On the contrary, it is our responsibility. Courts should consult medical experts and the DSM-IV when determining whether an insanity acquittee suffers from a "mental disease or defect." But they must independently evaluate whether a medical diagnosis of mental illness constitutes a legal "mental disease or defect."
¶69 The majority would allow psychologists to determine "whom to excuse from the consequences of criminal behavior and whom to hospitalize involuntarily" to mental health professionals. Gerard, supra, at 393. But the legislature and the legal system should determine the threshold requirements for the civil commitment of insanity acquittees, not medical psychological experts. "If society, through the civil commitment procedure, is to have the power to deprive an innocent person of freedom, it has a resultant compelling interest in limiting the numbers and types of people who will be subject to the process." Id. at 395.
D. "Polysubstance Dependence" is Not a "Mental Disease or Defect"
¶70 An expert's diagnosis of mental illness alone is insufficient to support a legal finding that an insanity *Page 129 acquittee suffers from a "mental disease or defect." See Statev. Sommerville, 86 Wn. App. 700, 711, 937 P.2d 1317 (1997). When considering whether a mental illness diagnosed by an expert constitutes a legal "mental disease or defect," courts must look to the substance of the diagnosis, not merely to its form. The DSM-IV defines "polysubstance dependence" as repeated use of three or more drugs over the course of a year. DSM-IV-TR at 293. Essentially, "polysubstance dependence" means "drug addiction."See Herbert Fingarette, Addiction and CriminalResponsibility, 84 YALE L.J. 413, 421 n. 42 (1975) (noting that experts "now avoid the term `addiction'" in favor of "dependence").
¶71 So the majority holds that Klein is not entitled to release because she is a drug addict. But it is well-settled that drug addiction is not a legal "mental disease or defect." SeeState v. Wicks, 98 Wn.2d 620, 622, 657 P.2d 781 (1983) (holding "chronic addiction to alcohol does not, itself, constitute insanity"). And see, e.g., United States v. Lyons,731 F.2d 243, 245 (5th Cir. 1984); United States v. Coffman,567 F.2d 960, 963 (10th Cir. 1977); United States v. Moore, 158 U.S. App. D.C. 375, 486 F.2d 1139, 1181 (D.C. Cir. 1973) (en banc);United States v. Stevens, 461 F.2d 317, 321 (7th Cir. 1972);United States v. Freeman, 357 F.2d 606, 625 (2d Cir. 1966).See also In re Stokes, 546 A.2d 356, 363 (D.C. 1988); In reMarquardt, 100 Ill. App. 3d 741, 427 N.E.2d 411,56 Ill. Dec. 331 (1981); and Murphy v. State, 265 Ind. 116, 126,352 N.E.2d 479 (1976). See also Fingarette, supra, at 424-25 (noting that "there is no consensus in the medical profession that addiction is a mental disease"). And if Klein doesn't suffer from a "mental disease or defect," she is entitled to release.
E. Klein is Entitled to Release Because She Does Not Suffer From a "Mental Disease or Defect"
¶72 The legally relevant facts of this case are identical to those of Reid. Both Klein and Reid took drugs, experienced a drug-induced psychotic episode, and committed the actus *Page 130 reus of a crime. Usually, voluntary intoxication cannot support an insanity defense. Gerard, supra, at 397. But Klein and Reid both suffered an unexpected drug-induced psychotic episode. And both are likely to experience another psychotic episode upon taking drugs again. We found that Reid no longer suffered from a "mental disease or defect" because he was only likely to suffer another psychotic episode if he took drugs. Reid,144 Wn.2d at 626. Similarly, the trial court here denied Klein's petition for release because of the likelihood she would suffer another psychotic episode upon taking drugs. Klein differs from Reid in only one respect: she's a drug addict. So she's more likely to take drugs and more likely to suffer another psychotic episode.
¶73 But that doesn't make Klein's drug addiction a "mental disease or defect." Drug addicts know what they're doing and the difference between right and wrong. They just don't care. Cf.Foucha, 504 U.S. at 74-75 (holding that state must release insanity acquittee who suffered "drug induced psychosis" because "antisocial personality" that makes him dangerous is not a mental disease). Tellingly, if Klein takes drugs and suffers another psychotic episode, she cannot assert an insanity defense because she knows that drug use may trigger a psychotic episode. See Adam J. Falk, Note, Sex Offenders, Mental Illness and CriminalResponsibility: The Constitutional Boundaries of Civil Commitmentafter Kansas v. Hendricks, 25 Am. J.L. MED. 117, 143 (1999) (recommending "that civil commitment be limited to individuals . . . who could not be found criminally responsible"). Klein may well be dangerous, but she isn't insane. And insanity acquittees are entitled to release when they regain their sanity, whether or not they're dangerous. See Reid, 144 Wn.2d at 627 n. 2 (citing Foucha, 504 U.S. at 76 n. 4). And see Parrish, 78 F.3d at 1477 (holding that "unless an acquittee has an identifiable mental condition, he cannot be held by the state merely because he is dangerous"). *Page 131
III. CONCLUSION
¶74 Klein isn't insane. She's a drug addict. And because drug addiction isn't a "mental disease or defect," she is entitled to full release under RCW 10.77.200.
¶75 Accordingly, I dissent.
ALEXANDER, C.J., and MADSEN, J., concur with SANDERS, J.