State v. Topolski

IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

STATE OF DELAWARE, )
)
v. ) I.D. Nos. 1906017002
) & 1906016532
JUSTIN M. TOPOLSKI, )
)
Defendant. )
)

Submitted: March 16, 2023
Decided: June 27, 2023
Corrected: June 28, 2023

OPINION

Upon Defendant’s Motion for a Writ of Habeas Corpus
DEFENDANT IS ENTITLED TO RELIEF—SUPPLEMENTAL BRIEFING
ORDERED REGARDING APPROPRIATE RELIEF

Stephen Welch, Jr., Deputy Attorney General, Department of Justice, Dover,
Delaware, for the State.

John R. Garey, Esquire, John R. Garey, PA, Dover, Delaware, for Defendant.

Primos, J.
 INTRODUCTION
Defendant Justin Topolski (hereinafter “Mr. Topolski”) has been in state
custody for over four years, i.e., since June 25, 2019.1 For most of that time, he has
been held at the Delaware Psychiatric Center (hereinafter the “DPC”) pending
efforts to restore his competency to stand trial. For the reasons set forth in the
Court’s Memorandum Opinion and Order dated February 7, 2023, it appears
unlikely that he will become competent to stand trial in the foreseeable future, if
ever.2 The question now before this Court is whether Mr. Topolski’s continued
detention is authorized by Delaware law, and if so, whether such detention is
consistent with the Due Process and Equal Protection Clauses of the Fourteenth
Amendment to the United States Constitution, as interpreted by the U.S. Supreme
Court in Jackson v. Indiana.3 For the reasons that follow, the Court concludes that
Mr. Topolski’s continued detention is authorized by Delaware statute until the Court
“is satisfied that the public safety will not be endangered” by his release.4
Nevertheless, indefinite detention under that standard violates Mr. Topolski’s right
to equal protection of the law by denying him the procedural protections, and
burden-of-proof benefits, of a civil commitment proceeding. Having found this
continued detention unconstitutional, the Court requires expedited
supplemental briefing on the next procedural steps to bring about Mr.
Topolski’s release from custody.

1
Def.’s Suppl. Br. at 1.
2
State v. Topolski, 2023 WL 1816351, at *9 (Del. Super. Feb. 7, 2023).
3
406 U.S. 715 (1972).
4
11 Del. C. § 403(b).
2
 BACKGROUND
I. Statutory Background
In 1972, as part of a broader revision to the Delaware criminal code, the
General Assembly enacted the original versions of the statutory provisions
governing Mr. Topolski’s commitment—11 Del. C. §§ 403 and 404. In its initial
form, 11 Del. C. § 403 applied only to people found not guilty by reason of insanity
(hereinafter “insanity acquittees”). It provided that upon such acquittal, an insanity
acquittee “shall forthwith be committed to the Delaware State Hospital” and kept
there “until the Superior Court of the county wherein the case was tried is satisfied
that the public safety will not be endangered by his release.”5
At the same time, the General Assembly enacted the original 11 Del. C. § 404
to govern pre-trial procedure for criminal defendants who are found incompetent to
stand trial.6 It provided that “the Court may order the accused person to be confined
and treated in the Delaware State Hospital until he is capable of standing trail [sic].”7
However, the legislature enacted one mechanism for an accused to avoid continued
detention absent restoration to competency—the defendant could move the Court to
“conduct a hearing to determine whether the State can make out a prima facie case
against the defendant, and if the State fails to present sufficient evidence to constitute
a prima facie case, the Court shall dismiss the charge.”8
Just under a month before the General Assembly enacted these provisions, the
U.S. Supreme Court decided a constitutional challenge to the indefinite pre-trial
commitment of an incompetent defendant in Jackson v. Indiana.9 The Indiana

5
58 Del. Laws ch. 497, § 1 (1972) (enacting 11 Del. C. § 403).
6
Id. (enacting 11 Del. C. § 404).
7
Id.
8
Id. “Prima facie case” was defined to mean “some credible evidence tending to prove the
existence of each element of the offense.” Id. (enacting 11 Del. C. § 301).
9
406 U.S. 715 (1972).
3
statute at issue permitted the state to hold a defendant in custody indefinitely solely
on the basis of his incompetency to stand trial, even though that defendant had been
found to have very dim prospects of competency restoration.10 The Supreme Court
found both an equal protection and a due process violation, holding that “a person
charged by a State with a criminal offense who is committed solely on account of
his incapacity to proceed to trial cannot be held more than the reasonable period of
time necessary to determine whether there is a substantial probability that he will
attain that capacity in the foreseeable future.”11 Otherwise, “the State must either
institute the customary civil commitment proceeding that would be required to
commit indefinitely any other citizen, or release the defendant.”12 Most states have
since updated their statutes or court rules authorizing detention of incompetent
defendants to institute time limits for detention, periodic review of the individual’s
prognosis for competency restoration, or other limiting features consistent with the
holding in Jackson.13

10
Id. at 718–19.
11
Id. at 738.
12
Id.
13
See Nicholas Rosinia, Note, How ‘Reasonable’ Has Become Unreasonable: A Proposal for
Rewriting the Lasting Legacy of Jackson v. Indiana, 89 Wash. U.L. Rev. 673, 681–91 (2012)
(discussing and categorizing different states’ responses to Jackson); see also, e.g., State v.
Rotherham, 923 P.2d 1131, 1138 (N.M. 1996) (“After Jackson was decided, New Mexico revised
its statutes governing the confinement and treatment of persons found to be incompetent to stand
trial. . . . If the court determines the defendant is still incompetent and is not making progress
toward competency such that there is no substantial probability he will attain competency within
one year, the court may either release defendant and dismiss the case with prejudice, Section 31–
9–1.4(B), dismiss the case with prejudice and refer the defendant to the district attorney for civil
commitment under the MHDDC, Section 31–9–1.4(C), or pursue criminal commitment, Section
31–9–1.4(A).”); In re Snyder, 422 P.3d 1152, 1157 (Kan. 2018) (“But soon after Jackson, the
Legislature revamped the competency statutes in an apparent effort to comply with that decision.
To this end, the Legislature imposed statutory deadlines that serve as benchmarks to determine
whether a reasonable time to restore a defendant’s competency under Jackson has expired.”
(internal citations omitted)).
4
 In 1979, an insanity acquittee challenged his commitment under 11 Del. C. §
403, citing Jackson to argue that such commitment, without the procedural steps
required by Delaware’s generally applicable civil commitment statute, violated his
right to equal protection.14 The Delaware Supreme Court rejected this argument,
explaining that
insanity acquitees have performed acts which, but for the existence of
a mental disease or defect that [sic] the time of the acts, would
otherwise have subjected them to criminal sanctions. These past
criminal acts are sufficient to justify the procedural differences in initial
commitment between the two groups.15
Moreover, the Delaware Supreme Court rejected the analogy to Jackson, noting that
the U.S. Supreme Court had not addressed “the constitutional validity of procedures
for initial commitment of an insanity acquitee.”16 In addition to upholding the
acquittee’s initial commitment, the court found no equal protection violation in
denying insanity acquittees the same “administrative release procedure” afforded to
people civilly committed to the Delaware State Hospital.17
In 1985, several years after Lewis was decided, the General Assembly
amended 11 Del. C. § 403(b) by adding a cross-reference to Section 404 (among
other provisions).18 As a result of the cross-reference, Section 403’s standard of
release applies to incompetent defendants confined at the DPC, providing a potential
avenue for release separate from the prima facie hearing provided under Section
404(a). To the Court’s knowledge, for reasons unknown, no release hearing has ever

14
In re Lewis, 403 A.2d 1115, 1117–18 (Del. 1979).
15
Id. at 1118.
16
Id.
17
Id. at 1120.
18
65 Del. Laws ch. 90, § 1 (1985). The amended Section 403 also cross-references Section 405
(defendants becoming incompetent after conviction but before sentencing), Section 406 (prisoners
developing mental illness), and Section 408 (defendants found guilty but mentally ill).
5
been held pursuant to Section 403 to test the appropriateness of continued
confinement of an incompetent defendant.
In operation, Sections 403 and 404 have remained largely the same since
1985. Thus, at present, Section 404(a) provides that an incompetent criminal
defendant may “be confined and treated in the Delaware Psychiatric Center until the
accused person is capable of standing trial.”19 Upon the defendant’s motion, the
court may conduct a hearing “to determine whether the State can make out a prima
facie case against the defendant, and if the State fails to present sufficient evidence
to constitute a prima facie case, the court shall dismiss the charge.”20 Otherwise, an
incompetent person remains at the DPC unless eligible for release pursuant to
Section 403(b), i.e., unless the Court “is satisfied that the public safety will not be
endangered by the patient’s release.”21 Despite the holding in Jackson, both statutes

19
11 Del. C. § 404(a). The subsection provides in full that:
Whenever the court is satisfied, after hearing, that an accused person, because of
mental illness or serious mental disorder, is unable to understand the nature of the
proceedings against the accused, or to give evidence in the accused’s own defense
or to instruct counsel on the accused’s own behalf, the court may order the accused
person to be confined and treated in the Delaware Psychiatric Center until the
accused person is capable of standing trial. However, upon motion of the defendant,
the court may conduct a hearing to determine whether the State can make out a
prima facie case against the defendant, and if the State fails to present sufficient
evidence to constitute a prima facie case, the court shall dismiss the charge. This
dismissal shall have the same effect as a judgment of acquittal.
20
Id.
21
Id. § 403(b). The subsection provides in full that:
Except as provided in subsection (c) of this section below, a person committed,
confined or transferred to the Delaware Psychiatric Center in accordance with
subsection (a) of this section, § 404, § 405, § 406 or § 408 of this title (referred to
herein as “the patient”) shall be kept there at all times in a secured building until
the Superior Court of the county wherein the case would be tried or was tried is
satisfied that the public safety will not be endangered by the patient’s release. The
Superior Court shall without special motion reconsider the necessity of continued
detention of a patient thus committed after the patient has been detained for 1 year.
The Court shall thereafter reconsider the patient’s detention upon petition on the
patient’s behalf or whenever advised by the Psychiatric Center that the public safety
will not be endangered by the patient’s release.
6
remain silent regarding defendants who appear unlikely to be restored to competency
in the foreseeable future.
II. Civil Commitment in Delaware
Like most states, Delaware provides a mechanism for the involuntary
commitment of mentally ill individuals who pose a danger to themselves or to others,
without the involvement of the criminal justice system. The requirements and
procedure for civil commitment are set forth in 16 Del. C. ch. 50. Specifically, 16
Del. C. § 5011 requires the State to prove by clear and convincing evidence that (1)
the individual is a person with a “mental condition”;22 (2) based upon manifest
indications, the individual is “dangerous to self” or “dangerous to others”; (3) any
less restrictive alternatives “have been considered and determined to be clinically
inappropriate”; and (4) the individual “has declined voluntarily inpatient treatment,
or lacks the capacity to knowingly and voluntarily consent to inpatient treatment.”23
A person is considered “dangerous to others” when “by reason of mental condition
there is a substantial likelihood that the person will inflict serious bodily harm upon
another person within the immediate future.”24 “Serious bodily harm” is defined as
“physical injury which creates a substantial risk of death, significant and prolonged
disfigurement, significant impairment of health, or significant impairment of the
function of any bodily organ.”25

22
“Mental condition” is defined as “a current, substantial disturbance of thought, mood, perception
or orientation which significantly impairs judgment, capacity to control behavior, or capacity to
recognize reality.” 16 Del. C. § 5001(13).
23
Id. § 5011(a). In addition to the statutory requirement, proof by clear and convincing evidence
in a typical civil commitment proceeding is a constitutional requirement. See Addington v. Texas,
441 U.S. 418, 433 (1979).
24
16 Del. C. § 5001(3). “Dangerous to self” means that “by reason of mental condition there is a
substantial likelihood that the person will imminently sustain serious bodily harm to oneself.” Id.
§ 5001(4). Both of these determinations “shall take into account a person’s history, recent
behavior, and any recent act or threat.” Id. § 5001(3) and (4).
25
Id. § 5001(17).
7
 A person involuntarily committed is entitled to written notice, a judicial
hearing, representation by counsel, discovery, a full record of the proceedings, and
a right to appeal.26 A court order for involuntary commitment cannot exceed three
months, at which point a new hearing with all the same procedural protections is
required in order to justify continued commitment.27 Moreover, whenever “the
hospital determines that the involuntary patient no longer meets the criteria for
provisional admission or involuntary inpatient commitment, the hospital shall so
certify in writing and immediately discharge the person and advise the court of its
determination and the discharge.”28 In other words, the DPC staff may discharge an
involuntary civil committee based on their professional judgment, without further
court involvement.29
III. Commitment Under Section 403
On its face, the operative phrase “the public safety will not be endangered by
the patient’s release” sheds little light on the substantive standard for release under
Section 403. Case law construing this provision in the not-guilty-by-reason-of-
insanity context, however, clarifies the meaning of this standard.
First, the Delaware Supreme Court in Lewis looked to the definitions in the
involuntary commitment statute for guidance in construing the public safety
standard.30 At the time, the court construed the phrase to mean “that such person is
(not) likely to commit . . . serious harm to . . . others or to property . . . .”31 The civil
commitment statute has since been amended, however, and the definition on which
the Lewis court relied is no longer included. In light of that change, this Court

26
Id. § 5007.
27
Id. § 5011(c) and (d).
28
Id. § 5010.
29
This is similar to the administrative release procedure addressed by the Delaware Supreme Court
in Lewis. See supra note 17 and accompanying text.
30
Lewis, 403 A.2d at 1121.
31
Id. (alterations in original).
8
concludes that the release standard should be construed with respect to the current
definition of “dangerous to others” found in 16 Del. C. § 5001(3). In other words, a
person confined to the DPC pursuant to Section 403 shall be kept there until the
Court is satisfied that there is not “a substantial likelihood that the person will inflict
serious bodily harm upon another person within the immediate future” by reason of
the person’s mental condition.
Lewis also held that “the danger referred to must be construed to relate to
mental illness” because “dangerousness without mental illness could not be a valid
basis for indeterminate confinement in the State Hospital.”32 Two decisions of this
Court are instructive in this regard. First, State v. Tarbutton held that the
dangerousness justifying the person’s detention “must arise from factors directly
related to the mental illness for which the insanity acquittee was initially confined.”33
Second, State v. Witherup addressed the critical issue of burden of proof, holding
that an insanity acquittee seeking release under Section 403 “bears the burden of
proving ‘by a preponderance of the evidence freedom from such mental illness and
dangerous propensities.’”34
Finally, as to the timing of the hearing, the Court is required to “reconsider
the necessity of continued detention of a patient thus committed after the patient has
been detained for 1 year.”35 After that, the Court shall “reconsider the patient’s
detention upon petition on the patient’s behalf or whenever advised by the
Psychiatric Center that the public safety will not be endangered by the patient’s
release.”36

32
Id. (quoting Mills v. State, 256 A.2d 752, 757 n.4 (Del. 1969)).
33
407 A.2d 538, 542 (Del. Super. 1979).
34
1996 WL 527284, at *3 (Del. Super. July 3, 1996) (quoting Mills, 256 A.2d at 758).
35
11 Del. C. § 403(b).
36
Id.
9
IV. Factual and Procedural History
The Court and the parties are well acquainted with the facts of this case, and
the Court incorporates by reference the Factual and Procedural Background in its
previous Memorandum Opinion and Order.37 As pertinent here, Mr. Topolski stands
charged with nine separate criminal counts, including attempted murder in the first
degree, stemming from an incident in 2019 during which he allegedly pushed his
mother to the ground while holding a knife, threatened to cut her head off, and fired
a rifle in the direction of responding officers, striking their vehicle. In May of 2021,
the Court held a competency hearing and later found Mr. Topolski incompetent to
stand trial due in large part to his delusional beliefs about the facts underlying the
charges. At an evidentiary hearing held on September 15, 2022, the Court held that
the State had established a prima facie case for each charge against Mr. Topolski.
Mr. Topolski remains committed to the DPC pursuant to 11 Del. C. § 404(a).
On September 27, 2022, Mr. Topolski filed a motion for a writ of habeas
corpus on equal protection and due process grounds.38 The State filed a response on
December 5, 2022, and Mr. Topolski filed a reply on December 19, 2022. The Court
issued a Memorandum Opinion and Order on February 7, 2023, concluding that
“there is not a substantial probability that Mr. Topolski will attain competency in the
foreseeable future, and a reasonable period of time to so determine has expired.”39
Under Jackson v. Indiana, this ruling means that Mr. Topolski may no longer be
held solely on account of pending criminal charges and his incompetency to stand

37
Topolski, 2023 WL 1816351, at *1–3.
38
Mr. Topolski also moved for dismissal of the charges against him on speedy trial grounds. The
Court denied this motion without prejudice for the reasons previously stated in its Memorandum
Opinion and Order. See id. at *4–6.
39
Id. at *9. A supplemental report filed by the DPC on May 3, 2023, indicates that Mr. Topolski’s
prognosis has not improved and that he has become generally uncooperative with competency
restoration efforts.
10
trial.40 However, the Court deferred decision on Mr. Topolski’s habeas petition and
ordered supplemental briefing on whether the continued detention of Mr. Topolski
is constitutional in light of the release procedure available to him in 11 Del. C. §
403(b). Mr. Topolski and the State filed their supplemental briefs on February 27,
2023, and February 28, 2023, respectively. Mr. Topolski filed a response to the
State’s supplemental brief on March 9, 2023, and the matter was submitted for
decision on March 16, 2023.41
LEGAL PRINCIPLES
Mr. Topolski raises his constitutional arguments via a petition for a writ of
habeas corpus.42 On a petition for a writ of habeas corpus,43 the Court’s review is
typically limited to ascertaining “the jurisdiction of the court ordering the
commitment” and whether the commitment is “valid on its face.”44 However, “there
must be an adequate procedure to give a person deprived of his freedom the
opportunity to have the intrinsic fairness of the criminal process under which he is
committed examined into, even though it appears proper and regular on its face.”45

40
Topolski, 2023 WL 1816351, at *9 (“[Mr. Topolski] can no longer be held solely on the basis
of his criminal charges, and incompetency to be tried for them, consistent with the Due Process
Clause.”).
41
The State filed a letter on this date to notify the Court that it was waiving the opportunity to
respond to Mr. Topolski’s last submission and that it intended to rest on its earlier submissions.
42
Although filed and briefed on the criminal docket, a habeas proceeding is civil in nature. See In
re Dean, 251 A.2d 347, 349 (Del. 1969) (“Even when a petition is filed by a prisoner, the
proceeding remains civil in nature; it does not change character by reason of the status of the
petitioner. The purpose of the writ is not to determine guilt or innocence but the legality of the
detention.”).
43
The Superior Court’s statutory authority to grant writs of habeas corpus is codified at 10 Del. C.
§§ 6901–6918. The Court notes that the State has not challenged Mr. Topolski’s right to raise
his constitutional arguments via a habeas petition. In addition, the Court notes that a patient
involuntarily committed to the DPC pursuant to 16 Del. C. ch. 50 is explicitly authorized to
challenge continued confinement or the legality of the patient’s commitment proceedings via
habeas petition. 16 Del. C. § 5014(b).
44
In re Pitt, 541 A.2d 554, 557 (Del. 1988).
45
Id.; Curran v. Woolley, 104 A.2d 771, 774 (Del. 1954).
11
Thus, the question before the Court is whether the statutory remedy provided by
Section 403(b) is constitutionally adequate to test the legality of Mr. Topolski’s
continued detention.46
“Enactments of the Delaware General Assembly are presumed to be
constitutional.”47 The party challenging the constitutionality of a statute bears the
high burden of rebutting that presumption,48 and “[a]ll reasonable doubts as to the
validity of a law must be resolved in favor of the constitutionality of the
legislation.”49 A corollary to this presumption is the requirement that, when
interpreting a statute, the Court “should strive to construe the legislative intent so as
to avoid unnecessary constitutional infirmities.”50 Nevertheless, “when such a
construction discerns a conflict between the Constitution and a statute, the
Constitution will prevail.”51
ANALYSIS
The question before the Court is whether an incompetent criminal defendant,
against whom the State has made out a prima facie case, but who is unlikely to be
restored to competency in the foreseeable future, may be confined at the DPC until
the Court is satisfied that the defendant’s release would not endanger public safety.

46
See Mills v. State, 256 A.2d 752, 758 (Del. 1969) (“A writ of habeas corpus is not available to
the appellant because, as we have held, his commitment under s 4702(a) was valid; and because
the statutory remedy provided by s 4702(c), as herein construed, is adequate and available to the
appellant to test the legality of his continued detention.” (citing Curran)).
47
Hoover v. State, 958 A.2d 816, 821 (Del. 2008); see also Sierra v. Dep’t of Servs. for Children,
Youth & their Families, 238 A.3d 142, 155–56 (Del. 2020) (explaining that Delaware courts
“presume statutes are constitutional unless there is clear and convincing evidence of
unconstitutionality”); Justice v. Gatchell, 325 A.2d 97, 102 (Del. 1974) (explaining that Delaware
courts should be “mindful of the traditional self-restraint” when “engaged in testing the
constitutionality of an act of the General Assembly”).
48
Gatchell, 325 A.2d at 102 (“One who challenges the constitutionality of a statute has the burden
of overcoming the presumption of its validity.”).
49
McDade v. State, 693 A.2d 1062, 1065 (Del. 1997).
50
Terex Corp. v. S. Track & Pump, Inc., 117 A.3d 537, 549 (Del. 2015) (quoting Richardson v.
Wile, 535 A.2d 1346, 1350 (Del. 1988)).
51
Albence v. Higgin, 2022 WL 17591864, at *19 (Del. Dec. 13, 2022).
12
While several Delaware decisions have addressed Jackson’s implications for long-
term or indefinite confinement under Section 404, none have addressed Section 403
and dangerousness as an alternative basis for confinement.52 Thus, this is a question
of first impression in Delaware.53 Mr. Topolski argues first that 11 Del. C. §§ 403(b)
and 404(a) no longer authorize his detention given the Court’s previous ruling that
he is unlikely to be restored to competency. Second, he argues that Delaware’s
commitment statutes violate the Due Process and Equal Protection Clauses of the
Fourteenth Amendment insofar as they authorize his continued detention without the
procedural protections afforded in the civil commitment process.
As to the issue of statutory construction, the Court concludes that, absent
competency restoration, the plain terms of the statutes provide for Mr. Topolski’s
release only upon proof by a preponderance of the evidence that the public safety
would not be endangered by his release. However, continued detention under
Sections 403 and 404, without the procedural protections and mechanisms for
release provided in the civil commitment process, violates his federal constitutional
right to equal protection of the law. The Court discerns no rational basis for treating

52
See State v. Goldsberry, 2000 WL 710090, at *2–3 (Del. Super. Apr. 26, 2000); Hampton v.
State, 2000 WL 33115720, at *1–2 (Del. Super. Sept. 29, 2000); State v. Hinton, 2018 WL 366971,
at *2–3 (Del. Super. Jan. 11, 2018); State v. Draughn, 2016 WL 7105933, at *4 (Del. Super. Nov.
29, 2016); State v. Williamson, 2020 WL 2790488, at *8–9 (Del. Super. May 29, 2020).
53
After Lewis was decided, Jackson v. Indiana was not cited in a published Delaware court
decision again until 2000. In that year, this Court addressed two separate challenges to
confinement under 11 Del. C. § 404. Both of these decisions are discussed at greater length in the
Court’s previous decision in this case. See Topolski, 2023 WL 1816351, at *8. In Goldsberry, the
Court read Jackson as placing a limit on detention under Section 404 but, as further explained
infra, concluded on the facts before it that “a reasonable period of time necessary to determine
whether there is a substantial probability that Goldsberry will attain the capacity to stand trial in
the foreseeable future has not elapsed.” 2000 WL 710090, at *2–3. In Hampton, the Court noted
that Delaware’s statute differed from the Indiana statute at issue in Jackson because it provided
for a prima facie hearing that could result in dismissal of the charges and held that the defendant’s
habeas petition was unripe because a prima facie hearing had not yet been requested. 2000 WL
33115720, at *2. Neither case referenced 11 Del. C. § 403 or the public safety requirement for
release. Subsequent cases have cited Goldsberry as establishing the standard under Delaware law.
13
an incompetent defendant like Mr. Topolski as though he is an insanity acquittee and
thus denying him the key procedural protections afforded to similarly situated civil
committees—like Mr. Topolski—who have not been tried or otherwise adjudicated
on criminal charges. In light of this conclusion, the Court will briefly address but
need not decide the closer constitutional question of whether there is a separate due
process violation.
I. Statutory Construction
In his supplemental briefing, Mr. Topolski argues that 11 Del. C. §§ 404(a)
and 403(b) do not apply to him any longer because there is an implicit exception for
defendants who have been found unlikely to be restored to competency in the
foreseeable future. The Court concludes in this section that the statutes are
unambiguous in authorizing continued detention, and as a result are unconstitutional
as applied for the reasons set forth in the remainder of this opinion.
When called upon to interpret statutory provisions, the Court follows
Delaware’s well-settled principles of statutory construction. First, the Court will
apply the plain meaning of an unambiguous statute.54 If, however, statutory
language is “reasonably susceptible to different conclusions or interpretations,” it is
ambiguous,55 and the Court may consider canons of statutory construction and
legislative history.56 As relevant here, Delaware courts recognize the constitutional
avoidance canon of statutory construction, which provides that “courts should avoid
interpretations that would render a statute unconstitutional, if that can be done

54
See Noranda Aluminum Holding Corp. v. XL Ins. Am., Inc., 269 A.3d 974, 977–78 (Del. 2021)
(“If the plain statutory text admits only one reading, we apply it.”).
55
Judicial Watch, Inc. v. Univ. of Delaware, 267 A.3d 996, 1004 (Del. 2021).
56
Noranda, 269 A.3d at 978 (“If there is a legitimate ambiguity, we consult the canons of statutory
construction and may consider legislative history.”).
14
without impairing the legislature’s purpose.”57 That canon, however, only applies
where the statutory language is ambiguous.58
First, 11 Del. C. § 404(a) governs the initial commitment of an incompetent
defendant to the DPC, providing that the Court may order “the accused person to be
confined and treated in the Delaware Psychiatric Center until the accused person is
capable of standing trial.”59 Mr. Topolski argues that this language does not
authorize his continued detention because the statute “does not address the obvious
possibility of the ‘until’ never occurring, i.e., the person being found to never be
likely to regain competence to stand trial.”60 As this Court explained in Hampton,
11 Del. C. § 404(a) “does not provide for any scenario that ever results in the
defendant being released if the State meets its [prima facie] burden and if he never
becomes competent to stand trial.”61 The Court agrees with Mr. Topolski that this
is a problematic gap in the statute, especially in light of its constitutional
implications. It does not follow, however, that the Court can step in to fill that gap
by rewriting the statute to create a third avenue for release (in addition to the prima
facie hearing in Section 404(a) and the public safety inquiry in Section 403(b)) not

57
Hazout v. Tsang Mun Ting, 134 A.3d 274, 286 (Del. 2016); see also State v. Herbert, 2022 WL
811175, at *2 (Del. Super. Mar. 17, 2022) (“Delaware courts practice constitutional avoidance.”);
Mills, 256 A.2d at 758 (“If this appears to be a strained construction of s 4702(c), it is to be
remembered that a strained construction of a statute is permissible to save it against constitutional
attack so long as the construction is not carried ‘to the point of [perverting] the purpose’ of the
statute.” (quoting Scales v. United States, 367 U.S. 203, 211 (1961))).
58
See Clark v. Martinez, 543 U.S. 371, 385 (2005) (“The canon of constitutional avoidance comes
into play only when, after the application of ordinary textual analysis, the statute is found to be
susceptible of more than one construction; and the canon functions as a means of choosing between
them.”); Wells Fargo Bank, N.A. v. Estate of Malkin, 278 A.3d 53, 64–65 (Del. 2022) (explaining
that an ambiguous statute should be construed consistently with pre-existing common law and to
“avoid constitutional questionability and patent absurdity” (quoting Sturgill v. M & M, Inc., 329
A.2d 360, 362 (Del. 1974))).
59
11 Del. C. § 404(a).
60
Def.’s Suppl. Br. at 5.
61
2000 WL 33115720, at *1. Hampton’s inquiry was limited to Section 404(a) and did not address
the potential avenue for release created by Section 403(b).
15
provided for by the legislature.62 Moreover, a comparison to 11 Del. C. § 403(b)
demonstrates the flaw in Mr. Topolski’s argument. When Section 403 says that a
confined person, or “patient,” shall be held “until . . . the public safety will not be
endangered by the patient’s release,” it is clear—and unambiguous—that the patient
will be held until he or she can be safely released, and not that the patient must be
released upon a showing that he or she can never be safely released.
While not cited by Mr. Topolski, there is language in the State v. Goldsberry
decision that can be read to suggest that he must be released on statutory (as opposed
to constitutional) grounds. Specifically, the Court wrote that while the “statute is
silent as to the length of time the State may hold an incompetent defendant[,] . . .
surely such silence was not intended by the Legislature as bestowing authority on
the State to hold an unconvicted criminal defendant in an institution for what could
amount to be a life sentence.” 63 The Court later concluded that “11 Del.C. § 404(a)
does not permit an incompetent criminal defendant to be held indefinitely while
awaiting a return to competency.”64 However, Goldsberry ultimately did not rely on
any statutory language to decide the issue before it—rather, it applied nearly
verbatim the constitutional rule articulated in Jackson. As the Court explained, “the
Jackson holding is just as applicable to Goldsberry as it was to Jackson. The question

62
See Williams v. West, 479 A.2d 1253, 1255 (Del. 1984) (“[I]f an otherwise valid statute causes
or leads to an inequitable result, then it is the sole province of the legislature to correct it.”); Legend
Night Club v. Miller, 637 F.3d 291, 301 (4th Cir. 2011) (explaining that “where a statute requires
an amendment to pass constitutional muster,” a court cannot “usurp the legislature’s role and
rewrite it”); King Ranch, Inc. v. United States, 946 F.2d 35, 37 (5th Cir. 1991) (“This Court cannot
rewrite Congressional legislation to cover a situation that Congress may not have foreseen. Absent
some ambiguity in the statute, we must apply it as written.”).
63
Goldsberry, 2000 WL 710090, at *2.
64
Id. at *3; see also Draughn, 2016 WL 7105933, at *4 (“As discussed by this Court in the
Goldsberry decision, section 404(a) certainly ‘does not permit an incompetent criminal defendant
to be held indefinitely while awaiting a return to competency.’”); Williamson, 2020 WL 2790488,
at *9 (“In Goldsberry, the court held that 11 Del. C. § 404(a) ‘does not permit an incompetent
criminal defendant to be held indefinitely while awaiting a return to competency.’”).
16
before this Court is, therefore, whether there is a substantial probability that
Goldsberry will attain the capacity to stand trial in the foreseeable future.”65
Applying that test, the Court found that the defendant’s continued confinement was
reasonable and accordingly did not order release.66 As a result, the Court had no
need to consider precisely whether release, if eventually required, would be
mandated on statutory or on constitutional grounds.
Since Goldsberry did opine on the General Assembly’s intent in dicta, the
Court notes two points with respect to that analysis. First, Goldsberry did not make
any finding that the statute was ambiguous, so as to lay the foundation for applying
the constitutional avoidance canon of construction, nor did it point to any legislative
history or principles of construction to support its inference regarding legislative
intent. Second, Goldsberry did not acknowledge either the prima facie hearing
requirement or, more importantly, the release mechanism provided in 11 Del. C. §
403. Thus, its conclusion about legislative intent was based, in part, on an
incomplete review of the safeguards (albeit limited ones) already explicitly provided
for in the statutory text. In sum, while the Court agrees with Goldsberry that Jackson
is controlling and ultimately that Mr. Topolski is entitled to release on constitutional
grounds, that relief cannot be derived from Section 404’s unambiguous failure to
provide for release in this scenario.
As noted supra, Section 403(b) provides that a “patient” committed to the
DPC pursuant to Section 404(a) “shall be kept there at all times in a secured building
until the Superior Court of the county wherein the case would be tried or was tried
is satisfied that the public safety will not be endangered by the patient’s release.” 67
Mr. Topolski argues that the use of the word “patient” throughout Section 403 shows

65
Goldsberry, 2000 WL 710090, at *2.
66
Id. at *3.
67
11 Del. C. § 403(b).
17
that a person confined at the DPC is “still being actively treated and medically
supported in an effort to bring them back to competency.”68 The Court agrees that
an individual held at the DPC is a “patient” and should be receiving appropriate
treatment and medical support. Moreover, that an individual detained at the DPC is
unlikely to be restored to competency would not justify discontinuation of the
patient’s mental health treatment, or even the discontinuation of competency
restoration efforts (however unlikely success may appear).69 However, there is no
allegation before the Court that the doctors at the DPC have stopped treating Mr.
Topolski’s schizophrenia on account of the unlikelihood of his restoration to
competency,70 nor does this issue have any direct bearing on the question of his
entitlement to release.
Unfortunately, despite the holding in Jackson, there is no provision of
Delaware statutory law providing for the release of incompetent defendants who lack
a substantial likelihood of competency restoration, other than the remedies provided
in Sections 404(a) and 403(b). The Court finds that those two provisions apply, on
their face, to all defendants with pending charges who have not yet been restored to
competency. Accordingly, the Court turns to the question of whether confinement
pursuant to Sections 404(a) and 403(b) is unconstitutional as applied to Mr.
Topolski, a criminal defendant with little chance of being restored to competency in
the foreseeable future.

68
Def.’s Suppl. Br. at 5.
69
See Rotherham, 923 P.2d at 1143 (construing New Mexico’s criminal commitment statute to
require continued treatment “to obtain competency” and “to alleviate the threat of
dangerousness”).
70
To the contrary, the DPC report dated May 3, 2023, see supra note 39, suggests that DPC staff
are still treating Mr. Topolski to the best of their ability.
18
II. Constitutional Limits on Commitment
a. Baxstrom and Jackson
Jackson v. Indiana is the only controlling authority specifically addressing the
long-term pre-trial commitment of incompetent criminal defendants. However, it is
situated within a broader line of U.S. Supreme Court case law developing
constitutional limits on the government’s civil commitment power (i.e., its power to
commit people for reasons other than criminal punishment). As illustrated in
Jackson, the primary limits on that power are derived from the Equal Protection
Clause and the Due Process Clause.
Prior to Jackson, the U.S. Supreme Court in Baxstrom v. Herold invalidated
on equal protection grounds a New York law that allowed a person to be “civilly
committed at the expiration of his penal sentence without the jury review available
to all other persons civilly committed in New York.”71 The Supreme Court found it
“untenable” to classify people with criminal records, specifically those nearing the
end of their prison terms, by statute along with those dangerously insane where “the
State has provided for a judicial proceeding to determine the dangerous propensities
of all others civilly committed . . . .”72 Notably, nothing in Baxstrom indicated that

71
383 U.S. 107, 110 (1966).
72
Id. at 114. Following Baxstrom, the Delaware Supreme Court in Mills found an equal protection
violation where Delaware law afforded a jury trial to civil committees on the issue of present
mental illness but denied that same protection to insanity acquittees petitioning for release. 256
A.2d at 757 (“In the absence of a reasonable basis for distinction, we hold that it is a denial of
equal protection of the laws to deprive a s 4702 patient of the substantial safeguards provided by
s 5126 for a s 5125 patient as to release from the Hospital.”). Instead of reversing the trial court’s
denial of habeas relief, however, the court employed the constitutional avoidance canon and
construed the statute to require a jury trial upon an insanity acquittee’s petition for release. Id. at
758 (“[W]e hold that the appellant was entitled to a jury trial, in accordance with the above
guidelines, upon his application for release under s 4702(c).”). The case was then remanded to the
trial court with leave for the appellant “to renew his application under s 4702(c) as herein
construed.” Id. The code sections construed in Mills were precursors to 11 Del. C. § 403 and 16
Del. C. ch. 50 (and are no longer in effect). Since the civil commitment statute no longer requires
a jury trial, it is the equal protection analysis in Mills, and not the specific holding, that is
instructive in this case.
19
the lack of a jury review violated due process, and no such requirement for civil
commitment is recognized under current due process case law. The jury trial was
required by federal equal protection principles only because it was provided under
New York state law to most civil committees.
Jackson relied in large part on Baxstrom in its equal protection analysis,
reasoning that if “criminal conviction and imposition of sentence are insufficient to
justify less procedural and substantive protection against indefinite commitment
than that generally available to all others, the mere filing of criminal charges surely
cannot suffice.”73 Thus, the court in Jackson found an equal protection violation
because Indiana law subjected an incompetent defendant “to a more lenient
commitment standard and to a more stringent standard of release than those
generally applicable to all others not charged with offenses, and . . . thus
condemn[ed] him in effect to permanent institutionalization without the showing
required for commitment or the opportunity for release afforded by” Indiana’s civil
commitment statute.74
Jackson, however, did not rest its holding exclusively on equal protection
grounds, and went on to analyze Indiana’s statute under the Due Process Clause.
First, the Supreme Court held that “due process requires that the nature and duration
of commitment bear some reasonable relation to the purpose for which the individual
is committed.”75 More specifically, the Supreme Court held that “a person charged
by a State with a criminal offense who is committed solely on account of his
incapacity to proceed to trial cannot be held more than the reasonable period of time

73
Jackson, 406 U.S. at 724.
74
Id. at 730.
75
Id. at 738.
20
necessary to determine whether there is a substantial probability that he will attain
that capacity in the foreseeable future.”76
Taken together, Baxstrom and Jackson indicate that a commitment statute in
the criminal process can run afoul of the federal constitution by either 1) differing
unreasonably from the state’s generally applicable civil commitment statute (equal
protection) or 2) confining people longer than is reasonably justified by the purpose
for which the individual is committed (due process).
b. Jones and Foucha
Two later cases applied these principles specifically to insanity acquittees. In
Jones v. United States, the U.S. Supreme Court held 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 Constitution permits the Government, on the basis of the
insanity judgment, to confine him to a mental institution until such time as he has
regained his sanity or is no longer a danger to himself or society.”77 Applying the
general due process rule from Jackson, the Supreme Court reasoned that
“commitment following an insanity acquittal” had a reasonable relation to its
purpose, which, like civil commitment, is “to treat the individual’s mental illness
and protect him and society from his potential dangerousness.”78 The Court
distinguished Jackson by noting that there has been “proof beyond a reasonable
doubt that the acquittee committed a criminal act,” whereas in Jackson “there never
was any affirmative proof that the accused had committed criminal acts or otherwise
was dangerous.”79 The Supreme Court found the same considerations sufficient to
address any equal protection concerns, stating by way of explanation only that if

76
Id.
77
463 U.S. 354, 370 (1983).
78
Id. at 368.
79
Id. at 364 n.12.
21
“the Due Process Clause does not require that an insanity acquittee be given the
particular procedural safeguards provided in a civil-commitment hearing . . . , then
there necessarily is a rational basis for equal protection purposes for distinguishing
between civil commitment and commitment of insanity acquittees.”80
In Foucha v. Louisiana, however, the U.S. Supreme Court distinguished Jones
and held that once an insanity acquittee’s sanity is restored, further detention based
on dangerousness alone violates due process.81 Once the defendant’s sanity was
restored, “the basis for holding [the acquittee] in a psychiatric facility as an insanity
acquittee has disappeared, and the State is no longer entitled to hold him on that
basis.”82 A plurality of the Court in Foucha would have also found an equal
protection violation,83 but Justice O’Connor, who cast the necessary fifth vote, found
it “unnecessary to reach equal protection issues on the facts” of that case. 84
c. Difference Between Equal Protection and Due Process
In light of the foregoing cases, the relationship between the equal protection
and due process analyses is not perfectly clear, and Jones at least suggested that the
arguments might be interchangeable. However, following Jackson, the closest on-
point authority, this Court treats the equal protection and due process arguments as
separate grounds on which Mr. Topolski can argue for release. The due process
analysis turns on the reasonableness of a person’s commitment and the basis for it
in more absolute terms, whereas the equal protection analysis evaluates the
reasonableness of commitment relative to the civil commitment process as an
alternative, i.e., requiring an analysis of the reasonableness of deviating from the

80
Id. at 362 n.10.
81
504 U.S. 71, 77–78 (1992).
82
Id. at 78.
83
See id. at 84–86.
84
Id. at 88 (O’Connor, J., concurring in part).
22
state’s generally applicable civil commitment statute.85 While Jackson’s equal
protection and due process analyses were “closely related,”86 it is the equal
protection analysis that goes most directly to the question at the core of this case—
not whether Delaware has the power to involuntarily confine a person who is both
mentally ill and dangerous, but instead, whether and to what extent the state can
impose different procedures on an incompetent criminal defendant and on a civil
committee.
III. Equal Protection
a. Standard of Review
“In any equal protection case, the threshold issue is the standard of review to
be applied to the government action in question.”87 In most cases, courts apply
rational basis review, in which case “the person objecting to the state action bears
the burden of proving the lack of rational justification.”88 However, state action
infringing upon a “fundamental right” or “suspect classification” triggers strict
scrutiny, which requires the state to prove that the distinction drawn “is narrowly
tailored to advance a compelling government interest.”89 Between strict scrutiny and
rational basis is intermediate scrutiny, a test generally reserved for quasi-suspect
classifications such as gender or illegitimacy.90

85
For example, neither Baxstrom nor the Delaware Supreme Court’s decision in Mills suggested
that a jury trial is required by due process in civil commitment proceedings, but nevertheless found
equal protection violations when that procedural right was afforded to typical civil committees but
denied to a subclass of individuals involuntarily committed on account of potential dangerousness
and mental illness. While states have discretion as to what procedural protections to afford in their
civil commitment proceedings, they are required, at a minimum, to require proof by clear and
convincing evidence of both mental illness and dangerousness. Addington, 441 U.S. at 433;
Foucha, 504 U.S. at 75–76.
86
Jackson, 406 U.S. at 731.
87
Turnbull v. Fink, 668 A.2d 1370, 1379 (Del. 1995).
88
Id.
89
Id.
90
Id. Some courts, representing a minority view, also apply intermediate scrutiny where an
important but not fundamental right is implicated. See, e.g., James v. Se. Pennsylvania Transp.
23
 The Court indicated in its previous opinion that Mr. Topolski’s equal
protection challenge is subject to rational basis review because “incompetent
criminal defendants have never been identified as a suspect class under equal
protection jurisprudence . . . .”91 Mr. Topolski has not taken issue with that assertion.
However, given the importance of the legal issues posed by this case, and the often-
dispositive nature of the chosen standard of review in equal protection analysis,92
this point warrants further discussion.
In Jackson, the U.S. Supreme Court found an equal protection violation
without explicitly identifying or applying any particular standard of review.
Jackson, however, relied in large part on Baxstrom, which, as discussed supra,
struck down a special commitment procedure for inmates nearing the end of their
prison sentences. Baxstrom employed language indicative of rational basis review,
e.g., that there was no “conceivable basis” for or “semblance of rationality” to
treating prisoners nearing the end of their prison terms differently than similarly
situated civil committees.93 Echoing this language, Jackson also required only a
“reasonable justification” for distinctions drawn between different groups of people
with respect to involuntary commitment standards.94

Auth., 477 A.2d 1302, 1306 (Pa. 1984) (“Finally, in the third type of cases, if ‘important,’ though
not fundamental rights are affected by the classification, or if ‘sensitive’ classifications have been
made, the United States Supreme Court has employed what may be called an intermediate standard
of review, or a heightened standard of review.”); United States v. Coleman, 166 F.3d 428, 431 (2d
Cir. 1999) (“In order to trigger intermediate scrutiny, a challenged law must employ some sort of
‘quasi-suspect classification,’ or implicate an important, though not constitutional, right.” (internal
citation omitted)).
91
Topolski, 2023 WL 1816351, at *10.
92
Connelly v. Steel Valley Sch. Dist., 706 F.3d 209, 213 (3d Cir. 2013) (“[T]he standard of review
(i.e., rational basis review or strict scrutiny) is often outcome determinative.”).
93
383 U.S. at 111, 115 (1966); see also United States v. Timms, 664 F.3d 436, 446 (4th Cir. 2012)
(“[I]n Baxstrom, the Supreme Court concluded that a state’s civil commitment scheme violated
the Equal Protection Clause, but in so doing, it observed there was no ‘semblance of rationality’
for the statute’s distinctions, thus appearing to apply rational basis review.”).
94
Jackson, 406 U.S. at 729.
24
 Overall, the U.S. Supreme Court has never clearly specified which standard
of review applies to equal protection challenges to involuntary commitment laws.95
In light of the lingering uncertainty, some state courts have applied a heightened
standard of review with respect to involuntary commitment, reasoning that such laws
implicate an individual’s fundamental or important right to liberty.96 Most federal
appellate courts considering the issue, however, have found that rational basis is the
appropriate standard of review.97 For example, the Fourth Circuit Court of Appeals
has held that “rational basis review is the appropriate level of judiciary scrutiny” to
apply to equal protection challenges to involuntary commitment statutes (1) because

95
The plurality opinion in Foucha injected some confusion, suggesting that “[f]reedom from
physical restraint being a fundamental right, the State must have a particularly convincing reason”
to justify its “discrimination against insanity acquittees who are no longer mentally ill.” Foucha,
504 U.S. at 86 (plurality opinion). Taken at face value, the “fundamental right” language would
trigger strict scrutiny, while the “particularly convincing reason” test sounds like a heightened
standard higher than rational basis but still less than strict scrutiny. The only mention of strict
scrutiny, however, appeared in the dissent, which noted that the U.S. Supreme Court “has never
applied strict scrutiny to the substance of state laws involving involuntary confinement of the
mentally ill, much less to laws involving the confinement of insanity acquittees.” Id. at 118–19
(Thomas, J., dissenting).
96
See, e.g., Rotherham, 923 P.2d at 1139–40 (applying strict scrutiny to an equal protection
challenge to the involuntary commitment of incompetent and dangerous defendants because such
commitment “impinges on that person’s constitutional guarantee of liberty”); State v. Dyous, 53
A.3d 153, 167 (Conn. 2012) (indicating that “the balance of persuasive authority favors applying
intermediate scrutiny” to an equal protection challenge to commitment procedures for insanity
acquittees because commitment implicates a person’s right to liberty).
97
See, e.g., Varner v. Monohan, 460 F.3d 861, 865 (7th Cir. 2006) (holding that commitment of
people convicted of sex offenses implicates “neither fundamental rights nor suspect classes”);
United States v. Weed, 389 F.3d 1060, 1071 (10th Cir. 2004) (holding that insanity acquittees are
not members of a suspect class, nor is a fundamental right at stake in their civil commitment);
United States v. Jackson, 553 F.2d 109, 120 (D.C. Cir. 1976) (“Neither Jackson nor Baxstrom,
however, leads to the outcome appellant seeks. First, in neither case did the Court hold that strict
scrutiny applies to procedures used for the criminal commitment of mentally ill persons. . . . Thus,
the statute here in issue must be upheld if there is a rational basis for the scheme it creates.”); cf.
Seeboth v. Allenby, 789 F.3d 1099, 1105 (9th Cir. 2015) (concluding on habeas review of state
court proceedings that “state courts reasonably may apply the rational basis test when considering
equal protection challenges to civil commitment laws”); but see Francis S. v. Stone, 221 F.3d 100,
111–12 (2d Cir. 2000) (adopting a heightened standard of review akin to intermediate scrutiny for
constitutional challenges to civil commitment schemes).
25
“the Supreme Court has never required greater than rational basis review,” (2)
because “rational basis review is the generally-applicable standard,” and (3) “in light
of the language in Baxstrom” suggesting that the distinction need only be
reasonable.98 Moreover, rational basis review is consistent with the standard applied
by Delaware courts, including the Delaware Supreme Court, in past challenges to
commitment pursuant to 11 Del. C. § 403 brought by insanity acquittees.99 Since
the weight of controlling, as well as persuasive, authority favors rational basis
review, the Court will conduct its analysis under that framework. However, since
the Court concludes that even the lower standard of rational basis is not met, the
same result would be reached under either level of heightened scrutiny.
b. Differences Between Title 11 Commitment and Civil Commitment
In order to conduct meaningful equal protection review, the Court must first
identify the key differences between the two statutory schemes. Based on the
Court’s review of the two commitment systems, explained supra, there are three key
differences for equal protection purposes: (1) the burden of proof; (2) the frequency
of review; and (3) the administrative release process. Regarding the burden of proof,
Section 403 relieves the State of its higher burden of proof and flips that burden
altogether, requiring the defendant instead to prove his own lack of dangerousness

98
Timms, 664 F.3d at 446.
99
See Lewis, 403 A.2d at 1119 (“Unlike the involuntary civil committee who generally denies the
existence of the mental condition for which he is committed, the insanity acquitee has been
provided a judicial hearing at which he has alleged and proven by a preponderance of the evidence
the very mental condition which he has manifested in past criminal action and for which, by reason
of the presumption of continuing mental illness, he is committed. We believe this provides a
rational basis for the insanity acquitee’s immediate commitment.” (emphasis supplied));
Witherup, 1996 WL 527284, at *1–2 (explicitly applying rational basis review to an equal
protection challenge to the release procedures under 11 Del. C. § 403); cf. Mills, 256 A.2d at 757
(“Because we find no rational justification for withholding from a s 4702 patient the
safeguard of jury trial of the issue of present mental illness, we construe s 4702(c) to require
jury trial of that issue.” (emphasis supplied)).
26
by a preponderance of the evidence.100 Second, whereas an individual civilly
committed is entitled to review of the continued necessity of his or her commitment
every three months,101 an individual held under Section 403 is initially entitled to
reconsideration after one year, and after that first year, the Court reconsiders the
necessity of detention only “upon petition on the patient’s behalf or whenever
advised by the Psychiatric Center that the public safety will not be endangered by
the patient’s release.”102 In other words, an incompetent criminal defendant bears
not only the burden of proof but also the burden of going forward. Third and finally,
the process of administrative release, whereby the doctors of the DPC may release
an involuntary patient who no longer meets the requirements for commitment, 103 is
simply not available to a person committed under Section 403.104
c. Incompetence Differs from Insanity
In effect, Delaware law treats (and confines) an incompetent criminal
defendant like Mr. Topolski as though he has been found not guilty by reason of
insanity, rather than as an accused person awaiting trial. The Court concludes, in
light of the principles set forth in Jackson, that such treatment does not satisfy even
rational basis review.
The fundamental flaw in this legislative scheme is that it fails to account for
the differences between an incompetent defendant and an insanity acquittee.105 Both

100
Witherup, 1996 WL 527284, at *1.
101
16 Del. C. §§ 5011(c)–(d) and 5018(a).
102
11 Del. C. § 403(b).
103
16 Del. C. § 5010.
104
See Lewis, 403 A.2d at 1120 (holding that “such administrative release procedure is
inapplicable to insanity acquitees committed to the Delaware State Hospital”).
105
See Medina v. California, 505 U.S. 437, 448 (1992) (“This analogy is not convincing, because
there are significant differences between a claim of incompetence and a plea of not guilty by reason
of insanity.”); see also Jackson, 406 U.S. at 739 (“Petitioner argues that he has already made out
a complete insanity defense. Jackson’s criminal responsibility at the time of the alleged offenses,
however, is a distinct issue from his competency to stand trial.”); Mills, 256 A.2d at 756 (“The
answer lies in the difference between the mental illness which precludes responsibility for crime
27
dispositions involve mental illness, but only an insanity acquittal requires an
affirmative finding that the defendant was mentally ill at the time of the offense.
Specifically, an insanity defense focuses on the defendant’s mental illness at the time
of the charged conduct, whereas incompetency speaks only to the defendant’s mental
illness at the time of the proceedings. A defendant is incompetent to stand trial,
regardless of the underlying charge, if he lacks “a rational as well as factual
understanding of the proceedings against him” or “a sufficient present ability to
consult with his lawyer with a reasonable degree of rational understanding.”106 By
contrast, an insanity acquittal under Delaware law means that “at the time of the
conduct charged, as a result of mental illness or serious mental disorder, the accused
lacked substantial capacity to appreciate the wrongfulness of the accused’s
conduct.”107 Implicit in the insanity acquittal is a presumption that the person
committed acts that would constitute criminal conduct if committed by a person
capable of appreciating the wrongfulness of those acts.
Both the U.S. Supreme Court and the Delaware Supreme Court have upheld
commitment and release procedures for insanity acquittees that differ significantly
from generally applicable civil commitment laws. However, the lynchpin of that
analysis—the presumption of continuing mental illness—has no rational application
in the incompetency context.108 Under the presumption of continuing mental illness,

and the mental illness which precludes trial. While the ability to distinguish between right and
wrong is the test of responsibility for crime, the defendant’s ability to understand the proceedings
against him and properly to assist in his own defense are the test of competency to stand trial.”
(internal citations omitted)).
106
Kostyshyn v. State, 51 A.3d 416, 420 (Del. 2012) (quoting Jermyn v. Horn, 266 F.3d 257, 283
(3d Cir. 2001)).
107
11 Del. C. § 401(a).
108
See Lewis, 403 A.2d at 1117 (“[O]ur conclusion is based in part on the presumption that mental
illness which a defendant has alleged and proven by a preponderance of the evidence to have
existed at the time he performed the criminal acts, continues until such time as the presumption is
satisfactorily rebutted.”); Jones, 463 U.S. at 366 (“Nor can we say that it was unreasonable for
28
an insanity acquittee is presumed (until the acquittee proves otherwise) to continue
to be unable to distinguish right from wrong and thus to pose a danger of future
criminal activity. As the Delaware Supreme Court explained in Mills,
[t]his presumption of continuing mental illness is particularly apposite
in this State by reason of our adherence to the rule that, upon the plea
of mental illness as a defense in a criminal case, the defendant has
the burden of proving his mental illness to the satisfaction of the
jury by a preponderance of the evidence; and that acquittal on the
ground of mental illness may not result from reasonable doubt of mental
condition, as in some jurisdictions, but only from a specific
adjudication by the jury of mental illness at the time of the offense.
....
In this jurisdiction . . . the verdict and judgment of acquittal by
reason of insanity amounts to an actual adjudication of mental
illness at the time of the offense[—]a very solid basis upon which
the presumption of continuing mental illness may rest.109
The only analogous presumption that could be made regarding an incompetent
defendant is that the defendant remains unable to comprehend the proceedings or to
assist in the preparation of a defense. Such a presumption does not raise a rational
inference of future criminality or dangerousness.
As the U.S. Supreme Court explained in Jones, “[a] verdict of not guilty by
reason of insanity establishes two facts: (i) the defendant committed an act that
constitutes a criminal offense, and (ii) he committed the act because of mental
illness.”110 Neither fact has been established with respect to an incompetent
defendant such as Mr. Topolski. First, only a prima facie case of guilt, i.e., some
credible evidence tending to prove each element of the offense, has been established

Congress to determine that the insanity acquittal supports an inference of continuing mental
illness.”).
109
Mills, 256 A.2d at 755 (emphasis supplied).
110
Jones, 463 U.S. at 363 (emphasis supplied).
29
with respect to Mr. Topolski.111 This preliminary showing that the State has
sufficient evidence to maintain a prosecution and thus to confine the defendant for
competency restoration efforts is not, however, a sufficient adjudication of criminal
conduct either to support a presumption of continued dangerousness or to justify
indefinite commitment.112
Moreover, even assuming arguendo that a prima facie case of guilt was
sufficient to establish that the defendant committed a criminal act, no showing
whatsoever has been made that the defendant committed that act on account of
mental illness. An insanity acquittee is required to prove that he or she is no longer

111
The U.S. Supreme Court in Jones reasoned that an insanity acquittee’s alleged criminal conduct
must have been proven beyond a reasonable doubt, 463 U.S. at 364, but this does not appear to be
required under Delaware law. See Sanders v. State, 585 A.2d 117, 131 (Del. 1990) (explaining 1)
that a verdict of guilty but mentally ill requires proof beyond a reasonable doubt of the defendant’s
guilt and 2) that a defendant must prove insanity by a preponderance of the evidence before a
verdict of not guilty by reason of insanity, but saying nothing about the factual showing required
to establish that an insanity acquittee committed criminal acts); cf. Del. Super. Ct. P.J.I. Crim. §
5.31, Mental Illness or Mental Defect (2022) (“If . . . you find that this affirmative defense is
established by a preponderance of the evidence, then you must find the defendant not guilty. Even
if the defendant has not met this burden of proof for this particular affirmative defense, you must
find the defendant not guilty if you find that the State has not met its burden of proving its case
beyond a reasonable doubt.”).
112
Federal statutes governing confinement of incompetent defendants and insanity acquittees
allocate the burden of proof differently for similar reasons, as the Sixth Circuit Court of Appeals
recently explained in United States v. Williams. --- F.4th ----, 2023 WL 3945846, at *5 (6th Cir.
June 12, 2023). Pursuant to 18 U.S.C. § 4243(d), an insanity acquittee in the federal system bears
the burden of proving “that his release would not create a substantial risk of bodily injury to another
person or serious damage of property of another due to a present mental disease or defect.” In
Williams, the court explained that Ҥ 4243 reflects a presumption that individuals acquitted on the
basis of insanity pose a continuing danger to the public until they prove otherwise.” 2023 WL
3945846, at *5. However, it noted that the “opposite presumption . . . applies before a finding of
guilt,” and went on to contrast § 4243 with 18 U.S.C. § 4246. Id. Because § 4246 deals with the
involuntary confinement of federal defendants found incompetent to stand trial, “[t]he government,
it follows, bears the burden of showing that such a person poses a danger, just as it would otherwise
bear the burden of showing guilt.” Id. Accordingly, when a federal defendant is found to be
unlikely to be restored to competency within a reasonable period of time, continued confinement
is authorized by statute only upon a showing by “clear and convincing evidence that the person is
presently suffering from a mental disease or defect as a result of which his release would create a
substantial risk of bodily injury to another person or serious damage to property of another . . . .”
18 U.S.C. § 4246(d).
30
dangerous in order to secure release because the acquittee proved at the outset that
he or she was mentally ill in order to evade criminal punishment.113 By contrast,
neither an incompetent defendant nor the State is required to prove that the defendant
committed a criminal act because of mental illness. In fact, no affirmative proof of
mental illness is required at all, because a defendant will be found incompetent if the
State fails to prove that he or she is competent to stand trial.114
In sum, as a result of an insanity acquittee’s raising and proving the acquittee’s
own mental illness in connection with criminal conduct, the burden shifts from the
State to justify detention to the insanity acquittee to justify release.115 No similar
showing has ever been made with respect to an incompetent defendant, but Delaware
law nonetheless shifts the burden to the defendant to secure release.
d. Unconstitutionality of Different Release Procedures
There is no question that the state has the power to confine an individual who
is both mentally ill and dangerous. The equal protection violation in Jackson,
however, was not just the detention itself—it was “condemning him in effect to
permanent institutionalization without the showing required for commitment or the
opportunity for release.”116 As explained in Jackson, “the State cannot withhold

113
See Lewis, 403 A.2d at 1119 (“Unlike the involuntary civil committee who generally denies the
existence of the mental condition for which he is committed, the insanity acquitee has been
provided a judicial hearing at which he has alleged and proven by a preponderance of the evidence
the very mental condition which he has manifested in past criminal action and for which, by reason
of the presumption of continuing mental illness, he is committed.”).
114
See Smith v. State, 918 A.2d 1144, 1148 (Del. 2007) (“The prosecution bears the burden of
proving a defendant’s legal competency by a preponderance of the evidence.” (quoting Randolph
v. State, 878 A.2d 461, 2005 WL 1653635, at *1 (Del. 2005) (TABLE))).
115
See United States v. Mikulich, 732 F.3d 692, 700 (6th Cir. 2013) (“A finding of insanity shifts
the burden from the Government to the insanity acquittee, who must prove that he is not dangerous
before he may be released.”).
116
Jackson, 406 U.S. at 730 (emphasis supplied); cf. Mills, 256 A.2d at 757–58 (finding no equal
protection violation in an insanity acquittee’s initial commitment but holding that denial of a jury
trial on the insanity acquittee’s eligibility for release violated equal protection); Jones, 463 U.S. at
363 n.11 (noting that it was addressing only the constitutionality of commitment and not the release
procedures).
31
from a few the procedural protections or the substantive requirements for
commitment that are available to all others.”117 “The harm to the individual is just
as great if the State, without reasonable justification, can apply standards making his
commitment a permanent one when standards generally applicable to all others
afford him a substantial opportunity for early release.”118
The Third Circuit’s decision in Doe v. Pennsylvania Board of Probation and
Parole is instructive on this point.119 In Doe, the plaintiff challenged a Pennsylvania
law that subjected sex offenders from out of state to automatic community
notification requirements, but provided a civil hearing to those with in-state offenses
to determine the person’s risk of re-offending.120 The court of appeals applied
rational basis review.121 While the court “readily agree[d] that protecting its citizens
from sex offenses committed by repeat offenders is a legitimate state interest,” it
nevertheless rejected Pennsylvania’s contention that “denial of equivalent process to
both in-state and out-of[-]state parolees is rationally related to its security
concerns.”122 In other words, the government cannot arbitrarily deprive a subclass
of dangerous individuals certain procedural protections while affording them to
others. Likewise, in this case, there is no question that protecting citizens from
dangerous, mentally ill individuals is an important state interest—rather, the
procedural disparity is the gravamen of the equal protection claim.
The State argues that a charge and prima facie case for a violent offense
together provide “a rational basis for somewhat different treatment” and that “a

117
Jackson, 406 U.S. at 727.
118
Id. at 729.
119
513 F.3d 95 (3d Cir. 2008).
120
Id. at 99–100.
121
See id. at 107 (declining to reach the issue of whether a higher standard of review should apply
because “the Commonwealth’s restrictions would not survive the lower threshold of rational basis
review”).
122
Id. at 108.
32
criminal defendant who has actually been charged with a crime seems more
obviously a threat to the public than someone who has simply been deemed to have
the potential to become violent.”123 In other words, the State argues that the
distinction is rational because someone against whom a prima facie case of a crime
has been made (especially a violent crime) is more likely to be dangerous. First, the
Court notes that a person subject to involuntary commitment is someone who
“[b]ased upon manifest indications” poses a danger to oneself or others.124 This must
be proven by clear and convincing evidence,125 taking into account the “person’s
history, recent behavior and any recent act or threat.”126 Thus, the General Assembly
has already seen fit to provide certain procedural protections to very dangerous
people, including those who have exhibited signs of dangerous conduct in the past.
If a person is “obviously” mentally ill and presently dangerous on account of past
criminal conduct, charged or uncharged, it is far from clear why the state should
have any difficulty meeting the clear and convincing evidence standard for civil
commitment.
Second, the Court need not and does not hold, as Mr. Topolski suggests it
should, that an incompetent defendant must be held to precisely the same standards
of commitment and release as civil committees.127 However, the combined effect of
the distinctions here—the flipped burden of proof, the burden of going forward, the
infrequency of review, and the unavailability of administrative release—is a starkly
different procedural framework for the incompetent defendant as compared to the
civil committee. While this difference has passed constitutional muster with respect

123
State’s Suppl. Br. at 3.
124
16 Del. C. § 5011(a).
125
Id.
126
Id. § 5001(3).
127
See Commonwealth v. Burgess, 878 N.E.2d 921, 930 (Mass. 2008) (“The Commonwealth need
only provide substantially similar, and not identical, procedural safeguards.”).
33
to insanity acquittees, no case law that the Court can identify has upheld such vastly
different treatment based on incompetency to stand trial.
The State cites State v. Rotherham,128 an opinion of the Supreme Court of New
Mexico, as “authority for the proposition that a rational statutory scheme for
‘criminal commitment’ of dangerous criminal defendants can pass constitutional
muster under Jackson if the State can establish that there is a valid factual basis for
the criminal charges by means of a hearing.”129 In Rotherham, the court dealt with
an equal protection challenge to New Mexico’s “criminal commitment” of
incompetent defendants found not to have a substantial probability of obtaining
competency within one year.130 That procedure required a showing of 1) “clear and
convincing evidence that the defendant committed the criminal act charged”; and 2)
that the defendant “is dangerous.”131 Both the findings of incompetence and
dangerousness were to be reviewed every two years, and the defendant could not be
detained longer than the maximum sentence that would have been available had the
defendant been convicted.132 The Supreme Court of New Mexico found that this
statutory scheme withstood not just rational basis review but strict scrutiny, noting
first that “[t]he State has an interest in rendering a defendant competent to stand trial,
and, as long as they remain dangerous, the State has an interest in committing them
to protect the defendants and the public.”133 It went on to explain that, under New
Mexico law, “there are various steps at which the State cannot continue to confine
an incompetent defendant and must either release, civilly commit, or prosecute

128
923 P.2d 1131 (N.M. 1996).
129
State’s Suppl. Br. at 4.
130
923 P.2d at 1138.
131
Id.
132
Id. at 1138–39.
133
Id. at 1140.
34
him.”134 Accordingly, the statutes “do not permit the type of permanent
institutionalization proscribed by Jackson.”135
However, Rotherham, as the State concedes,136 is far from directly on point,
as the statute at issue in that case provided significantly greater procedural
protections than the statutes at issue here. Specifically, it 1) required clear and
convincing evidence by the state of the defendant’s criminal guilt and
dangerousness;137 and 2) provided for review of a defendant’s incompetency and
dangerousness every two years. The procedural protections afforded to an
incompetent defendant under Delaware law are conspicuously minimal in
comparison. Once the State establishes a prima facie case of guilt and the Court
finds that the defendant is dangerous, that defendant could plausibly sit in custody
indefinitely without further review of the necessity of detention—and as to the
finding of dangerousness, the defendant bears the burden of showing that “the public
safety will not be endangered by the patient’s release.”138 In other words, the result

134
Id. at 1141.
135
Id.
136
See State’s Suppl. Br. at 4 (“The Delaware statutes applicable to Mr. Topolski’s case are in
some ways similar to the New Mexico statutes at issue in Rotherham, although they are not
identical.”).
137
While not entirely clear from the statute itself, the Supreme Court of New Mexico appears to
have read the clear and convincing standard as applying to both the finding of criminal conduct
and to the finding of dangerousness. Rotherham, 923 P.2d at 1144 (“Under the NMMIC, a
defendant may be criminally committed if, by clear and convincing evidence, he or she committed
the act or acts underlying the crime or crimes charged and is dangerous.”). Even if a lower burden
of proof applied to dangerousness, the New Mexico scheme is distinguishable from Delaware’s in
several ways, e.g., placing the burden of proof on the state, requiring proof by clear and convincing
evidence of the charged conduct, and providing for automatic review of commitment at least every
two years.
138
11 Del. C. § 403(b). While the State correctly points out that the defendant may petition for
release at any time, State’s Suppl. Br. at 3, the Court finds it significant that the burden of going
forward with such a proceeding is placed on the institutionalized and mentally ill defendant rather
than on the State.
35
is disturbingly similar to the “permanent institutionalization” held unconstitutional
in Jackson.
The Court is, of course, mindful that rational basis review is highly deferential
to enactments of the legislature and is not “a license for courts to judge the wisdom,
fairness, or logic of legislative choices.”139 Moreover, rational basis review does not
“require specific facts to justify the government’s legitimate purpose; all it asks is
whether a policy is rational based on ‘any reasonably conceivable state of facts.’”140
However, rational basis review, while highly deferential, is still substantive review.
The Third Circuit, for example, has “repeatedly warned that rational basis review is
by no means ‘toothless’—‘[a] necessary corollary to and implication of rationality
as a test is that there will be situations where proffered reasons are not rational.’”141
Finally, the Court must reconcile this deferential standard with the U.S. Supreme
Court’s equal protection analysis in Jackson. Accordingly, the Court holds that Mr.
Topolski’s continued detention under Section 403 violates his right to equal
protection. At the very least, the State must prove Mr. Topolski’s dangerousness by
clear and convincing evidence, as provided for in 16 Del. C. § 5011.
IV. Due Process142
While the equal protection violation is alone sufficient to warrant relief, the
U.S. Supreme Court in Jackson separately held that due process “requires that the

139
Heller v. Doe, 509 U.S. 312, 319 (1993) (quoting FCC v. Beach Communications, Inc., 508
U.S. 307, 313 (1993)).
140
Stradford v. Sec’y Pennsylvania Dep’t of Corr., 53 F.4th 67, 79 (3d Cir. 2022) (quoting Beach
Commc’ns, 508 U.S. at 313).
141
Heffner v. Murphy, 745 F.3d 56, 79 (3d Cir. 2014) (quoting Doe, 513 F.3d at 112 n.9); see also
Doe, 513 F.3d at 112 n.9 (“An undercurrent to our dissenting colleague’s argument is that under
rational basis review, the government always wins. That, quite simply, cannot be so. In fact, were
that the case, our review of issues under this standard would be equivalent to no review at all.”).
142
This is best characterized as a claim of substantive due process, which “bars certain arbitrary,
wrongful government actions ‘regardless of the fairness of the procedures used to implement
them.’” Foucha, 504 U.S. at 80 (quoting Zinermon v. Burch, 494 U.S. 113, 125 (1990)).
36
nature and duration of commitment bear some reasonable relation to the purpose for
which the individual is committed.”143 Applying this principle to defendants held
solely on account of incompetency to stand trial, the Supreme Court held that such
a person “cannot be held more than the reasonable period of time necessary to
determine whether there is a substantial probability that he will attain that capacity
in the foreseeable future.”144 That holding clearly applies when the only basis for
commitment is the defendant’s incompetency, in which case the sole purpose of
confinement is competency restoration. However, Delaware’s statutory scheme
poses a more difficult question on the due process issue because Section 403(b)
implicates another purpose for commitment, i.e., public safety.145
This public safety concern is particularly relevant to the due process question
in light of Jackson’s discussion of a prior U.S. Supreme Court case, Greenwood v.
United States.146 In Greenwood, the Supreme Court upheld a federal district court’s
commitment of an incompetent defendant, “even though there was little likelihood
that he would ever become competent to stand trial,” after the district court had
“found specifically that Greenwood would be dangerous if not committed.”147
Jackson discussed Greenwood only briefly in its equal protection analysis, noting
that “[n]o issue of equal protection was raised or decided” in that case.148 However,
the Jackson Court went to greater lengths to distinguish Greenwood in its due
process analysis, explaining that Greenwood “upheld only the initial commitment
without considering directly its duration or the standards for release” and “sustained

143
Jackson, 406 U.S. at 738.
144
Id.
145
While decision on the due process question is not necessary in light of the equal protection
holding, the Court writes briefly on the issue in the interest of a full discussion of Jackson’s
implications for Delaware’s statutory scheme and to explain why, as between the two
constitutional grounds raised in Jackson, the Court rests its holding on the equal protection ground.
146
350 U.S. 366 (1956).
147
Jackson, 406 U.S. at 732.
148
Id. at 726.
37
commitment only upon the finding of dangerousness.”149 Jackson nevertheless
implied that the permissible duration of an incompetent defendant’s confinement can
be extended by an explicit finding of dangerousness.150
In the insanity context, the U.S. Supreme Court explained in Jones that
“[d]ifferent considerations underlie commitment of an insanity acquittee. As he was
not convicted, he may not be punished. His confinement rests on his continuing
illness and dangerousness.”151 In Foucha, however, the Supreme Court
distinguished Jones and held that once an insanity acquittee’s sanity is restored,
further detention based on dangerousness alone violates due process.152 The Court
went on to hold, citing Jackson, that once an individual “can no longer be held as an
insanity acquittee in a mental hospital, he is entitled to constitutionally adequate
procedures to establish the grounds for his confinement.”153 Foucha also
emphasized that in a civil commitment proceeding, “the State is required by the Due
Process Clause to prove by clear and convincing evidence the two statutory
preconditions to commitment: that the person sought to be committed is mentally ill
and that he requires hospitalization for his own welfare and protection of others.”154
While Foucha did not reference Jackson’s discussion of a finding of dangerousness,
it characterized Jackson as holding that to confine an incompetent defendant longer

149
Id. at 736.
150
Id. at 733 (explaining that under the federal statute, after Greenwood, “[w]ithout a finding of
dangerousness, one committed thereunder can be held only for a ‘reasonable period of time’
necessary to determine whether there is a substantial chance of his attaining the capacity to stand
trial in the foreseeable future”); see also United States v. Sahhar, 917 F.2d 1197, 1207 (9th Cir.
1990) (“Consistent with the requirements of due process, section 4246 requires the government to
prove by clear and convincing evidence that an incompetent defendant presents a substantial risk
of bodily injury or serious property damage.”).
151
Jones, 463 U.S. at 369 (internal citation omitted).
152
504 U.S. at 77–78 (explaining that once the acquittee’s sanity was restored, “the basis for
holding [the acquittee] in a psychiatric facility as an insanity acquittee has disappeared, and the
State is no longer entitled to hold him on that basis”).
153
Id. at 79.
154
Id. at 75–76.
38
than is justified for competency restoration efforts, “the State was required to afford
the protections constitutionally required in a civil commitment proceeding.”155
Based on Foucha, there is certainly an argument to be made that once a defendant
confined for purposes of competency restoration is unlikely to be restored to
competency, that defendant is similarly situated to the now-sane insanity acquittee
in Foucha in that continued detention is based on dangerousness alone,156 which in
a civil commitment proceeding must be proven by the state by clear and convincing
evidence.157 However, the Court need not reach the question of whether, like the
Louisiana statute at issue in Foucha, Section 403(b) violates Mr. Topolski’s due
process rights by placing “the burden on the detainee to prove that he is not
dangerous.”158 It is enough, as explained above, to conclude that the procedural
disparity between Section 403(b) and the statutory requirements for civil
commitment warrants relief on equal protection grounds.
RELIEF
Detention pursuant to 11 Del. C. §§ 403 and 404, instead of under generally
applicable civil commitment procedures, violates Mr. Topolski’s right to equal
protection of the law, and those statutes are therefore unconstitutional as applied to

155
Id. at 79.
156
See State v. Ray, 57 A.3d 444, 456 (Md. 2012) (“Indeed, if there is no substantial probability
that the IST commitment will result in the defendant’s gaining competence in the foreseeable
future, the purpose of the commitment is no longer making the defendant competent but rather
punishing him for a crime of which he has not been convicted or protecting public safety without
going through the civil commitment process.” (internal citations omitted) (emphasis supplied)).
157
Foucha, 504 U.S. at 75–76.
158
Id. at 81–82. In contrast to Delaware law, under the current federal statutory scheme, once an
incompetent defendant is found to lack a substantial probability of obtaining capacity to stand trial
in the foreseeable future, the defendant may be civilly committed upon a showing by clear and
convincing evidence by the government “that the person is presently suffering from a mental
disease or defect as a result of which his release would create a substantial risk of bodily injury to
another person or serious damage to property of another . . . .” 18 U.S.C. §§ 4241(d) and 4246(d).
Only after that initial commitment, supported by clear and convincing evidence, is the defendant
required to prove the defendant’s nondangerousness by a preponderance of the evidence in order
to secure release. Id. § 4246(e).
39
defendants without a substantial likelihood of competency restoration in the
foreseeable future. Since the Section 403(b) release procedure is constitutionally
inadequate to test the legality of his continued confinement, Mr. Topolski is entitled
to relief under the principle articulated in Curran, and applied in Mills, that the state
“must provide an adequate procedure to give a person deprived of his freedom the
opportunity to have the intrinsic fairness of the criminal process under which he is
committed examined into . . . .”159
As noted supra, the relief granted in Mills was not a writ of habeas corpus,
but rather a construction of the statute intended to save it from unconstitutionality
and a new hearing under the statute as construed.160 The Court has considered
whether Section 403(b) could be saved by construing it to place the burden of proof
on the State to prove dangerousness. However, even assuming such a construction
would render it constitutional (despite other major differences from the civil
commitment statute), the plain language of Section 403 requires that the Court be
“satisfied that the public safety will not be endangered by the patient’s release,” or,
as explained supra, that there is not “a substantial likelihood that the person will
inflict serious bodily harm upon another person within the immediate future” by
reason of the person’s mental condition. Regardless of the phrasing, the statute
clearly requires proof to the Court’s satisfaction that the patient is not dangerous. It
would strain the statute beyond recognition to require the Court to declare itself
“satisfied” that the patient is safe to release whenever the State cannot prove the
inverse (i.e., that the patient is dangerous) by clear and convincing evidence.
Moreover, such a construction, if adopted solely for purposes of constitutional
avoidance, would only apply in the unusual case of an incompetent defendant who

159
Curran, 104 A.2d at 387; see Mills, 256 A.2d at 758.
160
See supra note 72.
40
cannot be restored to competency in the foreseeable future, whilst leaving the burden
of proof on the patient in all other cases.
Since no plausible or workable construction would render a Section 403
hearing constitutionally adequate, the Court sees no value in requiring Mr. Topolski
to go through such a hearing prior to obtaining relief by other means. The only
constitutionally adequate procedure to justify continued commitment currently
authorized by statute in Delaware is an involuntary civil commitment pursuant to 16
Del. C. ch. 50. This Court’s authority on a petition for a writ of habeas corpus,
however, is limited to granting prompt release. In light of the lack of precedent for
this step, the Court requires supplemental briefing on an expedited schedule
addressing the procedural steps necessary to implement the Court’s holding in this
Opinion. The parties’ submissions should address the procedural requirements
under Delaware habeas corpus law and any logistical issues necessary to implement
this decision and ensure Mr. Topolski’s timely release from custody.
CONCLUSION
For the foregoing reasons, the Court concludes that indefinite detention
pursuant to 11 Del. C. §§ 403 and 404 is unconstitutional as applied to incompetent
defendants who are unlikely to be restored to competency in the foreseeable
future.161 Relatedly, the Court holds that the statutory remedy provided by 11 Del.
C. § 403(b) is not an adequate mechanism to test the legality of Mr. Topolski’s
continued confinement. The parties are directed to submit supplemental

161
Since this is an as-applied challenge to the statutory scheme, this holding is limited to the
specific scenario presented here—an incompetent defendant without a substantial likelihood of
competency restoration in the foreseeable future. See Delaware Bd. of Med. Licensure &
Discipline v. Grossinger, 224 A.3d 939, 956 (Del. 2020) (“A facial challenge alleges that a statute
or regulation is not valid under any set of circumstances; an as-applied challenge alleges that a
statute or regulation is not valid in the particular circumstances of the case.”). In most cases,
confinement pursuant to 11 Del. C. § 404 for competency restoration purposes is not vulnerable to
an equal protection or due process challenge because such confinement is rationally related to the
state’s interest in competency restoration and serves a distinct purpose from civil commitment.
41
briefing, including citation to relevant legal authority, on or before July 7, 2023,
stating their positions on the next appropriate steps to implement Mr.
Topolski’s release from custody. Responses to these submissions, if any, must
be filed on or before July 14, 2023. Since the Court has already ruled on the
substantive merits of the statutory and constitutional arguments presented, the
submissions should be limited to matters of procedure. As with the parties’
previous supplemental submissions following the February 7, 2023, Memorandum
Opinion and Order, the briefing may be in letter form. The submissions should not
exceed six pages, single-spaced.

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