dissenting: I respectfully dissent from the majority’s determination that David Proctor is not subject to the mandatory commitment provision of K.S.A. 1997 Supp. 22-3428.
On August 8,1996, Proctor checked himself into the Hutchinson Hospital psychiatric unit. The next day, he severely beat an orderly with a metal bar. On August 10,1996, Proctor was civilly committed by the district court to Lamed State Hospital under K.S.A. 1997 Supp. 59-2945 et seq., the Care and Treatment Act for Mentally 111 Persons as a “psychiatric emergency.” If Proctor had been charged with a crime at this point, he would have been sent to Lamed State Security Hospital, which is situated on the same grounds as Lamed State Hospital, for evaluation. K.S.A. 22-3303. After Proctor was medicated and then civilly evaluated at Lamed *814State Hospital, he was returned to the district court. Lamed State Hospital had no further contact with Proctor.
On August 26, 1996, based on the evaluation by Lamed State Hospital, the district court determined that Proctor “[was] mentally ill and [lacked] capacity to make decisions regarding treatment and placement.” The judge ordered Proctor to commence outpatient care at a private mental health center, Horizons Mental Health Center, in Hutchinson, Kansas. Under the civil order, Proctor was treated by Dr. Eve Hohly, a private psychiatrist, and Janice Beougher, who has a Master’s degree in clinical psychology.
On September 19, 1996, a complaint was issued charging Proctor with aggravated battery. Proctor was arrested. Proctor waived his right to a preliminary examination and his right to a jury trial, and filed notice of the insanity defense. On January 22,1997, Proctor went to trial. The only evidence as to Proctor’s insanity both at the time of the offense and at the time of his conditional release by Judge Becker was the testimony of Dr. Eve Hohly, who saw Proctor about once a month, and Janice Beougher.
Proctor was found not guilty by reason of insanity. In its petition for writ of mandamus, the State asserts that Judge Becker had no authority to conditionally release Proctor because K.S.A. 1997 Supp. 22-3428(l)(a) mandates that a criminal defendant who has been acquitted on the basis of a mental defect or disease under K.S.A. 22-3221 be committed to the state security hospital for safekeeping and treatment. The State requested that the judge order the defendant committed to the state security hospital for safekeeping and treatment as mandated by 22-3428(1).
When interpreting 22-3428(1), the fundamental rule is that the intent of the legislature, where it can be ascertained, governs the construction of a statute. The legislature is presumed to have expressed its intent through the language of the statutory scheme it enacted. Stated another way, when a statute is plain and unambiguous, the court must give effect to the intention of the legislature as expressed, rather than determine what the law should or should not be. The court will not read into a statute that which the legislature has plainly excluded. Brown v. U.S.D. No. 333, 261 Kan. 134, 141-42, 928 P.2d 57 (1996).
*815K.S.A. 1997 Supp. 22-3428(1) provides:
“(a) When a defendant is acquitted and the jury answers in the affirmative to the special question asked pursuant to K.S.A. 22-3221 and amendments thereto, the defendant shall be committed to the state security hospital for safekeeping and treatment. A finding of not guilty and the jury answering in the affirmative to the special question asked pursuant to K.S.A. 22-3221 and amendments thereto shall be prima facie evidence that the acquitted defendant is presently likely to cause harm to self or others.
“(b) Within 90 days of the defendant’s admission, the chief medical officer of the state security hospital shall send to the court a written evaluation report. Upon receipt of the report, the court shall set a hearing to determine whether or not the defendant is currently a mentally ill person. The heating shall be held within 30 days after the receipt by the court of the chief medical officer’s report.
“(c) The court shall give notice of the hearing to the chief medical officer of the state security hospital, the district or county attorney, the defendant and the defendant’s attorney. The court shall inform the defendant that such defendant is entitled to counsel and that counsel will be appointed to represent the defendant if the defendant is not financially able to employ an attorney as provided in K.S.A. 22-4503 et seq. and amendments thereto. The defendant shall remain at the state security hospital pending the hearing.
“(d) At the hearing, the defendant shall have the right to present evidence and cross-examine witnesses. At the conclusion of the hearing, if the court finds by clear and convincing evidence that the defendant is not currently a mentally ill person, the court shall dismiss the criminal proceeding and discharge the defendant, otherwise the court may commit the defendant to the state security hospital for treatment or may place the defendant on conditional release pursuant to subsection (4).” (Emphasis added.)
In an effort to explain why David Proctor is not subject to mandatory commitment under these circumstances, even though commitment is statutorily required, the majority cites Foucha v. Louisiana, 504 U.S. 71, 118 L. Ed. 2d 437, 112 S. Ct. 1780 (1992), and In re Jones, 228 Kan. 90, 612 P.2d 1211 (1980). A review of these two cases reveals that the majority’s reliance on them is misplaced.
In Foucha, 504 U.S. 71, the defendant was charged with aggravated burglary and illegal discharge of a firearm. Two physicians testified Foucha had been incapable of distinguishing right from wrong at the time of the bad acts. The trial court found Foucha not guilty by reason of insanity and committed him until such time as doctors recommended he be released.
*816Article 654 of the Louisiana Code of Criminal Procedure Annotated provided that a person acquitted by reason of insanity shall be committed. After a person was committed, the court was required to then promptly hold a hearing at which that person had the burden of showing he of she does not pose a danger to society. Under the Louisiana Code, no finding of mental illness was required. The State had no burden whatsoever. This is quite different from 22-3428, which places the burden on the State to show by clear and convincing evidence that a defendant is mentally ill.
Four years later, die superintendent of the facility where Foucha was held recommended that Foucha be discharged. Following the Louisiana procedure for release, the superintendent formed a three-member panel to determine Foucha’s mental condition. Finding no evidence of mental illness since his admission, the panel recommended that Foucha be conditionally released.
Not satisfied, the trial court commissioned a second two-member panel comprised of two of the three members of the original panel. The doctors opined that Foucha probably had suffered a drug-induced psychosis when he was admitted. Although that condition had passed, according to the doctors, Foucha had an antisocial personality. This condition is not a mental disease and is untreatable. They reported that Foucha “is presently in remission from mental illness [but] [w]e cannot certify that he would not constitute a menace to himself or others if released.” 504 U.S. at 74-75. The Louisiana district court, Court of Appeals, and Supreme Court found that Foucha had not carried his burden of showing he was not dangerous and that neither his due process nor equal protection rights were violated.
The United States Supreme Court granted certiorari and overturned the Louisiana state courts, holding:
“Due process requires that the nature of commitment bear some reasonable relation to the purpose for which the individual is committed. [Citations omitted.] Here, according to the testimony given at the hearing in the trial court, Foucha is not suffering from a mental disease or illness. If he is to be held, he should not be held as a mentally ill person. [Citations omitted.]” 504 U.S. at 79.
The Court went on to say that the Louisiana statute does not carefully limit the scheme of confinement. 504 U.S. at 81. Under the *817statute at issue, Foucha was not entitled to an adversarial hearing at which the State must prove by clear and convincing evidence that he presented a danger to the community. In fact, the State had to prove nothing, because the statute required the detainee to prove he or she was not dangerous. Unlike die Louisiana statute, 22-3428(l)(d) requires the State to prove by clear and convincing evidence that a committed defendant is mentally ill. If the State fails to provide such proof, the defendant must be released.
The Foucha court noted that one exception to the civil commitment due process requirements is where a criminal defendant is acquitted by reason of insanity. The Foucha Court held:
“When a person charged with having committed a crime is found not guilty by reason of insanity, however, a State may commit that person without satisfying the Addington [v. Texas, 441 U.S. 418, 60 L. Ed. 2d 323, 99 S. Ct. 1804 (1979),] burden with respect to mental illness and dangerousness. [Citation omitted.] Such a verdict, we observed in Jones [v. United States, 463 U.S. 354, 77 L. Ed. 2d 694, 103 S. Ct. 3043 (1983)], ‘establishes two facts: (i) the defendant committed an act that constitutes a criminal offense, and (ii) he committed the act because of mental illness,’ [citation omitted], an illness that the defendant adequately proved in this context by a preponderance of the evidence. From these two facts, it could be properly inferred that at the time of the verdict, the defendant was still mentally ill and dangerous and hence could be committed.” 504 U.S. at 76.
The 22-3428 mandatory commitment procedure was approved by the Foucha Court, despite the majority’s claims to the contrary.
In In re Jones, 228 Kan. 90, Jones was charged with five counts of embezzlement from a bank and felony theft. Trial of the criminal cases was had on all five counts (arising from two cases). Jones was found not guilty on each count by reason of insanity. After this finding, Jones asserted to the district judge that because he was no longer insane or dangerous, the 22-3428 mandatory commitment procedure did not apply to him. To support this claim, Jones proffered the testimony of Dr. Leonard H. Kapelovitz, Dr. Steve Shelton, and Vernon Nikkei, all of whom would testify that the defendant was not currently dangerous, not in need of safekeeping, and not in need of additional mental treatment. The State argued to the district judge that the provisions of22-3428 were mandatory and that introduction of evidence was irrelevant to the issue of *818commitment to the State security hospital following an acquittal on the grounds of insanity.
The district court found: (1) the defendant’s proffer as to present sanity was not admissible because it is irrelevant when commitment is mandatory; (2) 22-3428 did not establish a rebuttable presumption as to present insanity, rather, it establishes a procedure for commitment; and (3) 22-3428 is constitutional in that it does not unreasonably deprive a defendant of liberty without due process of law or equal protection. The district judge denied Jones’ motion for a hearing to determine the applicability of 22-3428.
Jones appealed, and the case was ultimately transferred to the Kansas Supreme Court.
Jones contended that his mandatory commitment to the state security hospital pursuant to statute violated his rights to due process of law and equal protection. The basis of his contention was that commitment resulted with no prior due process, unlike persons civilly committed.
The Jones court observed that if the insanity defense is successfully asserted, the subsequent proceedings are governed by K.S.A. 1979 Supp. 22-3428 and K.S.A. 1979 Supp. 22-3428a. The Jones court found: (1) the statute’s mandatoiy commitment provision was reasonably and rationally related to the accomplishment of proper legislative purpose and was not arbitrary or capricious; (2) the legislative scheme constituted a reasonable balance between the public’s right to be protected from a potentially dangerous class of individuals and the rights of the members of the class to be protected from improvident confinement; (3) the classification of insanity acquittees as a class separate and apart from persons subject to civil involuntary commitment procedures was not arbitrary or capricious and was related to proper legislative ends sought to be attained; and (4) the mandatoiy commitment of insanity acquittees did not deny due process or equal protection of the law. 228 Kan. at 109-10.
After reaching this conclusion, the Jones court noted the 1980 amendment to 22-3428 was to be effective upon publication in the statute book. Although Jones was resolved based upon the existing law, K.S.A. 1980 Supp. 22-3428(1) provided:
*819“When a person is acquitted on the ground that such person was insane at the time of the commission of the alleged crime the verdict shall be ‘not guilty because of insanity/ and the person so acquitted shall be committed to the state security hospital for safekeeping and treatment. A finding of not guilty by reason of insanity shall constitute a finding that the acquitted person committed an act constituting the offense charged or an act constituting a lesser included crime, except that the person did not possess the requisite criminal intent. A finding of not guilty because of insanity shall be prima facie evidence that the acquitted person is presently dangerous to the persons self or others or property of others.” (Emphasis indicates amendment.)
The Jones court found that the 1980 amendment was demonstrative of legislative intent of mandatory commitment for an individual found not guilty by reason of insanity and the result reached in Jones was not inconsistent with the 1980 amendment. 228 Kan. at 110. The Jones court then pointed out that extensive psychiatric treatment received by the petitioner should provide valuable data for the state security hospital in its evaluation of the petitioner. 228 Kan. at 112.
The Jones court concluded that in an original habeas corpus proceeding wherein mandatory commitment of insanity acquittees, pursuant to K.S.A. 1979 Supp. 22-3428, is challenged on constitutional grounds, the mandatory commitment did not constitute (1) a denial of equal protection of the law; (2) a denial of due process; or (3) cruel and unusual punishment. 228 Kan. at 111-12.
Unlike the statute held unconstitutional in Foucha, 22-3428 is narrowly tailored. It provides that a criminal defendant found to have committed the act charged, but who is not legally responsible for doing so because the defendant was incapable of forming criminal intent, be committed to the state security hospital. It is the jury’s acquittal of the defendant that provides “primafacie evidence that the acquitted defendant is presently likely to cause harm to self or others” to commit the person found mentally ill to the state security hospital. The defendant is entitled to a hearing within 120 days of the guilty verdict to determine his or her present sanity. The legislature passed this narrowly tailored statute to protect its citizens from someone who has committed criminal acts and has done so because he or she was insane.
*820The majority’s vague references to Foucha and Jones to support the result here are troubling. Neither case calls into question the constitutionality of 22-3428. In fact, Jones expressly approved the mandatory commitment procedure contained in K.S.A. 1979 Supp. 22-3428 and 22-3428a and the 1980 amendment to K.S.A. 1979 Supp. 22-3428(a). In analyzing the 1980 amendment, the majority disregards the finding in Jones and now asserts that the legislature seems to require a precommitment hearing although it does not make this necessary determination to justify the result. The majority instead decided not to overrule Jones, but rather rélied upon the “unique facts” of this case.
There is nothing vague about the statute. It mandates commitment to the state security hospital upon acquittal by reason of insanity. The majority reaches a decision that is wholly unsupported by precedent or law. It is not within the province of this court to ignore an unambiguous statute and precedent to reach the “right result.”