dissenting.
I respectfully dissent.
On January 14, 1985, defendant was found not guilty by reason of insanity on charges of attempted first degree murder, criminal mischief, and felony menacing, all occurring on October 4, 1984. Defendant was committed to the State Hospital until such time as he was eligible for release.
“Eligible for release” meant in 1985, and means today, as follows:
As to any person charged with any crime allegedly committed on or after July 1, 1983, the test for determination of a defendant’s sanity for release from commitment, or his eligibility for conditional release, shall be: ‘That the defendant has no abnormal mental condition which Would be likely to cause him to be dangerous either to himself or others or to the community in the reasonably foreseeable future, and is capable of distinguishing right from wrong and has substantial capacity to conform his conduct to requirements of law.’
Section 16-8-120(3), C.R.S. (1986 Repl.Vol. 8A)(emphasis added).
The procedure for release on the recommendation of the hospital is set forth in § 16-8-116(1), C.R.S. (1986 Repl.Vol. 8A) which states, in pertinent part:
When the chief officer of the institution in which a defendant has been committed after a finding of not guilty by reason of insanity determines that the defendant no longer requires hospitalization because he no longer suffers from a mental disease or defect which is likely to cause him to be dangerous to himself, to others, or to the community in the reasonably foreseeable future, such chief officer shall .... (emphasis added)
On August 23,1990, the trial court granted the State Hospital’s request to place defendant on conditional release pursuant to § 16-8-120, C.R.S. (1986 Repl.Vol. 8A), incorporating a recommendation of the Chief Officer of the Colorado State Hospital dated July 30, 1990, which stated in pertinent part:
[Defendant] no longer suffers from an abnormal mental condition which would be likely to cause him to be dangerous either to himself or to others or to the community in the reasonably foreseeable future, and is capable of distinguishing right from wrong and has substantial capacity to conform his conduct to requirements of law.
For my purposes, the "terms, “abnormal mental condition,” “mental illness,” and “mental defect” are synonymous. Kansas v. Hendricks, 521 U.S. 346, 117 S.Ct. 2072, 138 L.Ed.2d 501 (1997)(for substantive due process purposes, the terms “mental illness,” “mental abnormality,” and “personality disorder” are synonymous terms capable of legislative definition without reference to any scientific definition or use). See also People v. Parrish, 879 P.2d 453 (Colo.App.1994).
Defendant’s release was unopposed and was conditioned on terms contained in the chief officer’s letter which were likewise incorporated into the court’s order, requiring, inter alia, that defendant live in Biloxi, Mississippi, participate in outpatient services, refrain from using alcohol and nonprescribed drugs, and submit to random urine screens. The order further provided that the terms would remain in effect for one year and could be modified or terminated only by further court order.
On June 14, 1994, the People filed then-second petition to revoke defendant’s conditional release on the grounds that he had violated the terms of his release, as subsequently amended and agreed to, by virtue of *480three urine analyses that tested positive for drugs on September 10, 1993, and March 2 and April 27,1994.
At the revocation hearing, the court heard testimony by the state psychiatrist who personally evaluated defendant and had followed defendant’s progress while on conditional release by reviewing reports from an outpatient clinic in Mississippi. The psychiatrist testified to defendant’s three positive urine screens, his failure regularly to submit to monthly urine screens, and to an incident in which defendant pretended to shoot people at the Mississippi clinic. The doctor offered his opinion that defendant had a recurrence of his mental illness and as a result ivas a danger to others.
The trial court found that defendant had violated two of the terms of his conditional release by failing to submit to monthly urine screens and by his failure to avoid using drugs, as shown by the three positive urine tests. Upon these findings alone, the trial court ordered defendant’s conditional release revoked and remanded him to the Colorado State Hospital.
Despite having received some evidence, and having permitted argument on the issue, the trial court refused to rule upon whether defendant was suffering from a mental illness and constituted a danger to himself or others. The trial court’s refusal to make findings as to defendant’s current mental condition was premised on the failure of the prosecution to allege his mental condition as a basis for revocation of the conditional release.
The trial court, by placing defendant on conditional release and incorporating the letter of the staff psychiatrist into its order, found that defendant had, in fact, satisfied the conditions of § 16-8-120(3), i.e., the condition precedent to unconditional release. The eligibility standard for conditional release and unconditional release are the same.
If a defendant is unconditionally released, the trial court may impose terms and conditions in the interests of the defendant and the community. Section 16 — S—115(3)(a), C.R.S. (1986 Repl.Vol. 8A). If a defendant is conditionally released, continued treatment is contemplated and the institution is required to provide written terms and conditions for the continued treatment of the defendant and the defendant remains under the supervision of the Department of Institutions. Section 16 — 8—115(3)(b) & (c), C.R.S. (1986 Repl.Vol. 8A).
A conditional release may be revoked by a court pursuant to § 16-8-115.5, C.R.S. (1996 Cum.Supp.), upon a finding based on a preponderance of the evidence that the defendant has become “ineligible to remain on conditional release.” That term is defined in § 16-8-102(4.5), C.R.S. (1986 Repl.Vol. 8A) as follows:
[T]he defendant has violated one or more conditions in his release, or the defendant is suffering from a mental disease or defect which is likely to cause him to be dangerous to himself, to others, or to the community in the reasonably foreseeable future, if he is permitted to remain on conditional release, (emphasis added)
The statute permits revocation in two instances: (1) a violation of the terms of conditional release or (2) a finding that defendant suffers from a mental disease or defect and is dangerous. Either basis for revocation must be shown by a preponderance of the evidence.
Defendant argues that the portion of § 16-8-115.5, which authorizes revocation solely upon noncompliance with the terms of his release, violates the due process guarantees of the Sixth and Fourteenth Amendments to the U.S. Constitution and Article II, §§ 16, 25 of the Colorado Constitution. Under the circumstances presented here, I agree.
In Addington v. Texas, 441 U.S. 418, 99 S.Ct. 1804, 60 L.Ed.2d 323 (1979), the United States Supreme Court held that a citizen could not be committed to a psychiatric facility in a civil proceeding without a clear and convincing showing that he was mentally ill and that hospitalization was required for his own welfare or the protection of others. In Jones v. United States, 463 U.S. 354, 103 S.Ct. 3043, 77 L.Ed.2d 694 (1983), the court held that a finding of not guilty by reason of insanity in a criminal proceeding satisfied Addington for commitment purposes even though the burden of proof was by a preponderance of the evidence, but the insanity *481acquittee could be held only so long as he was both mentally ill and dangerous, and no longer. Similarly, in O’Connor v. Donaldson, 422 U.S. 563, 95 S.Ct. 2486, 45 L.Ed.2d 396 (1975), the court held that it was unconstitutional to confine a harmless mentally ill person.
In the more recent Foucha v. Louisiana, 504 U.S. 71, 112 S.Ct. 1780, 118 L.Ed.2d 437 (1992), defendant was found not guilty by reason of insanity. Under Louisiana law, an insanity acquittee is committed to a psychiatric hospital unless and until he proves that he is not dangerous, and Foucha was so committed. Subsequently, however, a panel of physicians expressed the opinion that there was no evidence of mental illness and recommended conditional discharge.
The trial court appointed a sanity commission'which opined that Foueha’s mental illness was in remission but declined to certify that he would not be a danger to himself or others if released because he had an antisocial personality which was, in its opinion, untreatable. Based on that opinion, Fou-cha’s conditional release was denied because he remained dangerous to himself and others without any evidence that he was presently mentally ill.
The Louisiana Supreme Court affirmed and a divided United States Supreme Court reversed, holding that the continued hospitalization of Foucha without a finding that he was mentally ill denied him substantive due process.
Most recently, the United States Supreme Court reiterated the necessity of both a “mental illness” and “dangerousness” as necessary predicates to involuntary commitment in Kansas v. Hendricks, supra. While eligibility for consideration for involuntary commitment requires a history of sexually violent acts, the Kansas statute defines “mental abnormality” as, essentially, a predisposition to commit sexually violent acts. The Supreme Court concluded that a “mental abnormality,” so defined, coupled with a propensity to commit “predatory acts of sexual violence” in'the future (dangerousness) was sufficient to support an involuntary civil commitment for an indefinite period. •
While the respondent in Hendricks was diagnosed as a pedophile, -a clinically recognized condition, and he conceded he could not control his behavior the court did not limit the ability of the legislature to define “mental abnormality” to include specific clinically recognized conditions. The Kansas commitment procedure required, inter alia¿. the appointment of experts and counsel at public expense, a jury trial upon request, and proof beyond a reasonable doubt.
Therefore, as I read Addington, Jones, O’Connor, Foucha, and Hendricks, it is a violation of substantive due process to involuntarily commit or recommit a person, even an insanity acquittee, to a psychiatric facility without a finding that he is mentally ill and dangerous.
Here, in contrast, there is no finding that defendant is mentally ill and no finding that he is dangerous. Indeed,, the last judicial finding is precisely to the contrary.
Ignoring for purposes of this discussion the due process implications of: (1) the burden of proof, which is here a preponderance of the evidence and not clear and convincing evidence; (2) the shifting of that burden to the defendant in order for him to gain release; and (3) the fact that this is a criminal and not a civil proceeding, all of which are of considerable independent significance, I conclude the state cannot involuntarily criminally or civilly commit this defendant to a psychiatric facility for an indefinite period without a finding that he is mentally ill and dangerous.
Defendant cannot, as I perceive has happened here, be involuntarily committed for an indefinite period to a psychiatric facility for the failure to submit to, or the failing of, drug screens regardless of the relationship between those drug screens and any mental illness he may have suffered in the past.
The majority relies to a considerable degree on People v. McCoy, 821 P.2d 873 (Colo.App.1991), which involved revocation of a conditional release based solely upon noncompliance with the conditions of release. In McCoy, a division of this court held that a conditional release could be revoked for noncompliance with the conditions because such noncompliance indicated a risk of future dangerousness. McCoy, however, did not discuss the due process implications of its *482holding; was decided before Foucha v. Louisiana, supra and Kansas v. Hendricks, supra; did not discuss the previously decided Addington v. Texas, supra, Jones v. United States, supra, or O’Connor v. Donaldson, supra; and did not consider the due process implications of an immediately prior judicial finding that the defendant did not suffer from any abnormal mental condition, was not dangerous, and could distinguish right from wrong and could adhere to lawful conduct.
In my view, conditional release is not an outpatient treatment program for insanity acquittees, though it bears some markings of such a program. While an outpatient treatment program for insanity acquittees may be highly appropriate, eligibility for such a program should differ from eligibility for unconditional release and not require a finding that the defendant no longer suffers from any mental illness, is no longer dangerous, and can distinguish between right and wrong and can adhere to lawful conduct.
I would reverse and remand with directions to deny the motion to revoke defendant’s conditional release as it fails, in my view, to allege any basis upon which defendant may be recommitted consistent with substantive due process.