dissenting:
The majority opinion acknowledges that recent Supreme Court decisions1 may well require a higher standard of proof in ordinary civil commitment proceedings than “preponderance of the evidence.” 2 I agree. But the majority holds that such a higher standard need not apply in proceedings to commit a person who has been found not guilty by reason of insanity. I believe the disparity in treatment sanctioned by the majority is logically untenable, rests on unsupportable policy grounds, and is in conflict with prior decisions of this court and the Supreme Court. Therefore, I respectfully dissent.
*613In Bolton v. Harris, 130 U.S.App.D.C. 1, 10, 395 F.2d 642, 651 (1968), this court held that persons acquitted of criminal charges by reason of insanity could not be civilly committed under 24 D.C.Code § 301(d) (1967) without being provided a judicial hearing with procedures “substantially similar” to those in ordinary civil commitment proceedings. These safeguards included a right to a judicial hearing on the issue of whether the defendant was presently dangerous as a result of mental illness, imposition of the burden of proof on the Government, trial by jury, and a right to counsel. Bolton relied heavily on this court’s earlier decision in Cameron v. Mullen, 128 U.S.App.D.C. 235, 243, 387 F.2d 193, 201 (1967), where we said that “while prior criminal conduct is relevant to the determination whether a person is mentally ill and dangerous, it cannot justify denial of procedural safeguards for that determination.”
Both Bolton and Mullen were based on Baxstrom v. Herold, 383 U.S. 107, 86 S.Ct. 760, 15 L.Ed.2d 620 (1966), where the Supreme Court held that New York’s statutory procedure permitting civil commitment of persons at the end of jail sentences without the jury trial safeguard afforded persons subject to ordinary civil commitment violated equal protection. The Court held that the fact of past criminal conduct lacked a sufficient connection with current mental illness to justify lesser procedural safeguards. “Classification of mentally ill persons as either insane or dangerously insane of course may be a reasonable distinction for purposes of determining the type of custodial or medical care to be given, but it has no relevance whatever in the context of the opportunity to show whether a person is mentally ill at all.” Id. at 111, 86 S.Ct. at 763. (Emphasis in original.) The Court in Baxstrom further stated that “[a] person with a past criminal record is presently entitled to a hearing on the question whether he is dangerously mentally ill so long as he is not in prison at the time civil commitment proceedings are instituted. Given this distinction, all gemblance of rationality of the classification, purportedly based upon criminal propensities, disappears.”3 Id. at 115, 86 S.Ct. at 764.
Bolton and Baxstrom stand for a basic proposition that a proven history of past dangerousness or illness, while certainly admissible in evidence, may not be used as an excuse to abrogate or change well recognized safeguards, including burden of proof, in civil commitment proceedings, or their equivalent, to determine present dangerousness or illness. The majority ignores this teaching of Bax-strom and Bolton. Moreover, my brethren fail to appreciate that acquittal by reason of insanity says precious little on the question whether a person presently suffers from mental illness. At most, an insanity acquittal means that at the time the charged crime was committed, which ordinarily would be months or sometimes years before the Section 301(d) hearing, there was a reasonable doubt that the defendant was free of such ah illness. Since a reasonable doubt as to sanity is hardly tantamount to a conclusion of mental illness, there may well be only the flimsiest relation between the Government’s failure to prove past capacity and current incapacity.4 Thus it can hardly be argued that the-prior acquittal, standing alone, has any necessary bearing as a *614factual matter on the mental illness finding to be made in the Section 301(d) hearing.
Yet the thrust of the majority opinion is that appellant Brown’s prior acquittal must somehow skew the factual determination to be made in the current Section 301(d) hearing. As I have always understood the issue of burden of proof, the standard we adopt reflects our view as to the risk of error we are willing ¿to accept in our judgments.5 A heavy burden of proof in criminal cases, for example, reflects our belief that, given the consequences of conviction, only a minimal chance of error will be tolerated, that it is better to risk letting culpable defendants go free as the price of ensuring that those not culpable will be acquitted to the greatest extent possible. In civil commitment cases the majority seems prepared to concede that this logic —basically, our abhorrence of wrongful incarceration — dictates a greater burden of proof than “preponderance of evidence” as to the relevant issues of illness and dangerousness. But with respect to those acquitted of criminal charges by reason of insanity, my brethren pull back. They do this notwithstanding the teaching of Baxstrom and Bolton and in spite of the fact that the prior judgment of acquittal speaks in muted tones at best to the central question of current illness.
The majority’s central proposition is that Brown should be treated differently because he has already been found to have committed a series of indisputably dangerous felonies. These acts are said to dictate lesser solicitude for his rights —as expressed through a burden of proof —than if he were sought to be committed before he was found to have committed such acts. But it should be obvious that these acts, standing alone, go only to the civil commitment standard of dangerousness, which Brown’s counsel has stipulated is not at issue, and not to the additional, central, question of mental illness. Yet the majority opinion is willing to accept the non sequitur that the admitted fact of dangerousness in the past must have a necessary bearing on the court’s finding on the question of illness in the present.
The underlying justification for the majority’s acceptance of this illogic seems to be its fear that strengthening the burden of proof in Section 301(d) proceedings will cause wholesale release of persons acquitted of crimes by reason of insanity. This possibility, coupled with the fact that persons with “meaningful elements of responsibility” may be acquitted by reason of insanity, is said to raise the spectre that the insanity defense may be abused. While this argument has a superficial appeal, it clearly proves too much. For its logical import — a policy of relaxing constitutional safeguards in incarcerating those acquitted by reason of insanity — was rejected in Bolton where we held that mandatory civil commitment following a successful insanity defense was constitutionally unjustifiable and that the procedural safeguards used in ordinary civil commitment proceedings were required. No one will disagree that the imposition of the safeguards required by Bolton reduces the probability that all those acquitted by reason of insanity will be incarcerated. But in my judgment, Bax-strom precludes this court from overruling Bolton, even if a majority of its members were so inclined.
Finally, in my view it is untenable to argue, as does the majority, that this disparity in burdens of proof is justifiable as a means of deterring frivolous insanity defenses. So long as the burden of proof rests on the Government in Section 301(d) proceedings,6 I doubt that *615defense counsel’s criminal trial strategy will be crucially affected by a necessarily speculative evaluation of his post-trial chances of dealing with one or another standard of proof. More important, it seems anomalous, to say the least, that this court, which has given such consistent recognition to the need for a carefully administered insanity defense, see, e. g., United States v. Brawner, 153 U.S.App.D.C. 1, 471 F.2d 969 (1972) (en banc), should suddenly embrace such a roughhewn and very possibly useless means of restraining its use.
It is doubtless true, as the majority suggests, that the insanity defense as it has been administered in this case, when coupled with the Bolton decision, might in theory give rise to a “revolving door” phenomenon whereby persons who have committed dangerous acts may be first acquitted by reason of insanity and next totally freed because of the Government’s inability to meet the standards of proof for civil commitment. But this problem of slippage is not eliminated by the disparity in burdens of proof endorsed by the majority. At best it is only reduced, and at the terrible price of incarcerating persons for a mental illness we are not sure they have.7 Bolton sought to place those acquitted by reason of insanity on the same footing as those haled before the court in ordinary civil commitment proceedings. I would continue to follow its teaching. Indeed, given Baxstrom, in my judgment we have no choice.
I respectfully dissent.
. In re Winship, 397 U.S. 358, 361-368, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970) (due process requires proof beyond a reasonable doubt in criminal and juvenile cases) ; Woodby v. Immigration & Naturalization Service, 385 U.S. 276, 282-286, 87 S.Ct. 483, 17 L.Ed.2d 362 (1966) (due process requires “clear, unequivocal, and convincing evidence” standard of proof in deportation cases).
. This standard has been employed in this jurisdiction in civil commitment proceedings under 21 D.C.Code § 545(b) (1967) and 24 D.C.Code § 301(d) (1967). See Bolton v. Harris, 130 U.S.App.D.C. 1, 10 n. 50, 395 F.2d 642, 651 n. 50 (1968) ; In re Alexander, 125 U.S.App.D.C. 352, 354, 372 F.2d 925, 927 (1967). But the standard has been sharply criticized as too weak. See, e. g., Murel v. Baltimore City Criminal Court, 407 U.S. 355, 359, 92 S.Ct. 2091, 32 L.Ed.2d 791 (1972) (Mr. Justice Douglas, dissenting) ; Note, Civil Commitment of the Mentally 111: Theories and Procedures, 79 Harv.L.Rev. 1288, 1291 (1966). And very recently a 3-judge District Court has ruled that a person may be civilly committed only upon proof beyond a reasonable doubt that he is mentally ill and dangerous. Lessard v. Schmidt, E.D.Wis., 349 F.Supp. 1078 (1972).
. Shortly after Baxstrom, the New York Court of Appeals came to a conclusion similar to this court’s in Bolton. In People v. Dally, 19 N.Y.2d 27, 277 N.Y.S.2d 654, 224 N.E.2d 87 (1966), it held that continuing commitment of persons acquitted by reason of insanity required that the state grant the defendant the benefit of the same procedural' safeguards, jury trial in particular, as were granted all others civilly committed. It said, 19 N.Y.2d at 35, 277 N.Y.S.2d at 660, 224 N.E.2d at 92, that this equivalent procedural protection was required by the “spirit if not the express langu[a]ge of the Baxstrom decision.”
. Bolton v. Harris, supra note 2, 130 U.S.App.D.C. at 8, 395 F.2d at 649.
. See In re Winship, supra note 1, 397 U.S. at 371-372, 90 S.Ct. 1068, 25 L.Ed.2d 368 (Mr. Justice Harlan, concurring) ; Speiser v. Randall, 357 U.S. 513, 525-526, 78 S.Ct. 1332, 2 L.Ed.2d 1460 (1958).
. The changes made in § 301(d) by the D.O. Court Reform & Criminal Procedure Act of 1970, Pub.L. No. 91-358, 84 Stat. 473-668, while not relevant in this case, seriously alter the procedure for treat*615ment of persons acquitted by reason of insanity. Under the new legislation, those acquitted by reason of insanity shall be committed to a hospital for the mentally ill and provided with a hearing within 50 days to determine whether they shall be released. In that hearing, unlike the hearing utilized in this case, the burden of proof is on the person confined to prove that he has recovered his sanity and will not in the reasonable future be dangerous to himself or others. See 24 D.C. Code § 301(d) (l)-(2) & (e) (Supp. V 1972).
. Because of the ambiguous nature of the very concept of mental illness, see Washington v. United States, 129 U.S.App.D.C. 29, 31, 390 F.2d 444, 446 (1967), and its potentially “grab bag” quality, see Boutilier v. Immigration & Naturalization Service, 387 U.S. 118, 131, 87 S.Ct. 1563, 18 L.Ed.2d 661 (1967) (Mr. Justice Douglas, dissenting), it has been repeatedly recognized that endorsing a mild standard of proof in commitment cases can result in grave injustice. See Murel v. Baltimore City Criminal Court, supra note 2, 407 U.S. at 359, 92 S.Ct. 2091, 32 L.Ed.2d 791 (Mr. Justice Douglas, dissenting) ; Note, supra note 2, 79 Harv.L.Rev. at 1291; cf. Lessard v. Schmidt, supra note 2.