with whom NEWMAN, Chief Judge, and MACK, Associate Judge, join, dissenting:
I continue to subscribe to our division opinion on rehearing, 411 A.2d 624 (1980), vacating 396 A.2d 183 (1978).
I.
Under the civil commitment process, D.C. Code 1973, §§ 21-541 to -545, the government has the burden of proving a person is mentally ill and dangerous to self or others — and proving it to a jury if the potential committee so demands. Id. § 21-544. In contrast, under the “insane criminal” commitment process, D.C.Code 1973, §§ 24-301 to -303, a defendant acquitted by reason of insanity has the burden of proving he or she no longer is mentally ill or dangerous — without the right to a jury. Id. § 24-301(d)(2).
Our colleagues in the majority conclude that these differences in treatment of two classes of institutionalized persons — com*377mittees and acquittees — do not violate the acquittee’s constitutional right to equal protection of the laws. In response to the allegation that the procedural shortcuts in § 24-301 reflect a punitive purpose, in contrast with a wholly therapeutic purpose underlying the civil commitment process, the majority concludes “that there is no basis for finding § 301(d) punitive in any respect.” Ante at 368.1
I do not understand the majority to disagree with the proposition that if § 24-301(d) imposes punishment in any respect, the analysis in our division opinion is constitutionally sound.2 It would follow that, “because the maximum possible prison term for which appellant Michael Jones could have been incarcerated has expired, he is entitled to release from St. Elizabeths Hospital, subject to the government’s right to seek civil commitment.” 411 A.2d at 630.
I therefore propose to discuss in greater detail the determinative issue: whether § 24-301(d) is, to some extent, punitive.
II.
The Supreme Court has identified several factors for use in determining whether a statute is punitive. A court first should look for “objective manifestations of congressional purpose.” Kennedy v. Mendoza-Martinez, 372 U.S. 144, 169, 83 S.Ct. 554, 568, 9 L.Ed.2d 644 (1963). Accord, Bell v. Wolfish, 441 U.S. 520, 538, 99 S.Ct. 1861, 1873, 60 L.Ed.2d 447 (1979). Where it is not clear on the face of the statute whether Congress had a punitive intent, a court must consider a variety of other factors:
*378Whether the sanction involves an affirmative disability or restraint, whether it has historically been regarded as a punishment, whether it comes into play only on a finding of scienter, whether its operation will promote the traditional aims of punishment — retribution and deterrence, whether the behavior to which it applies is already a crime, whether an alternative purpose to which it may rationally be connected is assignable for it, and whether it appears excessive in relation to the alternative purpose assigned are all relevant to the inquiry, and may often point in differing directions. [Kennedy, supra 372 U.S. at 168-69, 83 S.Ct. at 567-68 (footnotes omitted).]
Accord, Bell, supra, 441 U.S. at 537-38, 99 S.Ct. at 1873. In the present case, we confront a statute for which Congress clearly had a punitive purpose.
A. The Previous Statute and Judicial Construction
Analysis begins with the previous statute. See, Kennedy, supra at 170, 83 S.Ct. at 568. Under D.C.Code 1967, § 24-301(d), a defendant who successfully interposed the insanity defense was committed automatically — and indefinitely — to a mental institution. However, in Bolton v. Harris, 130 U.S.App.D.C. 1, 395 F.2d 642 (1968), the United States Court of Appeals for the District of Columbia Circuit held that automatic commitment of acquittees was unconstitutional — a denial of equal protection visa-vis committees. The court accordingly required that, upon a finding of not guilty by reason of insanity, an acquittee was constitutionally entitled to the equivalent of a civil commitment proceeding, which came to be known as the “Bolton hearing.”3 Five years later, in United States v. Brown, 155 U.S.App.D.C. 402, 408, 478 F.2d 606, 612 (1973), the court held that even after a “Bolton” hearing the disparities of treatment were such that “insane criminal” commitment under D.C.Code 1967, § 24-301, having a partially punitive purpose, must be limited to the hypothetical maximum sentence (less mandatory release time), after which the acquittee would be entitled either to release or to a civil commitment proceeding. Accord, Waite v. Jacobs, 154 U.S.App.D.C. 281, 284-85, 475 F.2d 392, 395-96 (1973).
Apropos of Brown, the en banc majority concedes in the present case that the prior statute had “punitive aspects,” a quality that Bolton was necessary to “undo.” Ante at 369. And yet in the same paragraph the majority states that “[t]he 1970 amendments to § 301(d), enacted in response to” Bolton, “have not altered its original purpose,” ante at 369, which the majority — in a nonsequitur — characterizes as nonpunitive by reference to Hough v. United States, 106 U.S.App.D.C. 192, 271 F.2d 458 (1959) and other pre-Bolton circuit court decisions. The majority, therefore, is inherently inconsistent. If, as the majority concedes, the pre-Bolton statute was punitive, to the point that Bolton was necessary to correct its unconstitutional impact, I do not see how statutory amendments “in response to Bolton,” providing lesser protections, can be said automatically to remove the original, “punitive aspects” of that statute. The question remains: do the 1970 amendments modifying Bolton erase the punitive purpose of the previous statute?
B. The Present Statute and Its Construction
1. Legislative history confirms that, in amending § 24-301(d) in 1970, Congress held on to its original intent to punish the criminal offender, if not by conviction and imprisonment then by indefinite confinement in a mental institution. The overriding concern of the House of Representa*379tives was that Bolton “permits dangerous criminals ... ‘to have it both ways’ — to escape both conviction and commitment to a hospital.” House Comm, on The District of Columbia, District of Columbia Court Reform and Criminal Procedure Act of 1970, Section 207 — Insane Criminals, at 74, H.R.Rep.No. 91-907, 91st Cong., 2d Sess. (emphasis added) (quoting Overholser v. O’Beirne, 112 U.S.App.D.C. 267, 276, 302 F.2d 852, 861 (1961)). The House considered the possibility that a criminal offender could get off without being either convicted or hospitalized “intolerable.” Id. See United States v. Jackson, 179 U.S.App.D.C. 375, 381-82, 553 F.2d 109, 115-16 (1976).
The congressional intention in drafting the present § 24-301(d), therefore, was “to meet the objections of the Bolton court while preserving the principle of the mandatory commitment of those who escape criminal responsibility on the ground of mental abnormality.” Bethea v. United States, D.C.App., 365 A.2d 64, 92 n.62 (1976), cert. denied, 433 U.S. 911, 97 S.Ct. 2979, 53 L.Ed.2d 1095 (1977) (emphasis added). Congress wanted to confront the criminal defendant with a choice: conviction or “the very real possibility of prolonged therapeutic confinement.” Id. at 90 (footnote omitted). Because “the prospect of commitment to a mental institution for an indefinite period is much less desirable than a fixed term in prison,” United States v. Freeman, 357 F.2d 606, 626 n.60 (2d Cir. 1966), Congress intended the substantial likelihood of indefinite confinement to provide an effective deterrent to those tempted to misuse the insanity defense to avoid criminal incarceration. In short, the legislative history of the 1970 amendments provides strong evidence that Congress, in overruling Bolton, intended to restore as much punishment under § 24-301(d), as constitutionally would pass muster.
2. More than the legislative history, the legislative result — the statute itself — reveals that Congress maintained its punishment objective.
First, the authorized procedures by which an acquittee may challenge confinement in a mental institution, D.C.Code 1973, §§ 24— 301(d)(2), -(k)(l) through (6), do nothing more than institutionalize the habeas corpus procedure that already was available at the time of Bolton. See Miller v. Cameron, 118 U.S.App.D.C. 323, 324, 335 F.2d 986, 987 (1964); O’Beirne, supra at, 275, 302 F.2d at 860; Ragsdale v. Overholser, 108 U.S.App.D.C. 308, 313-14, 281 F.2d 943, 948-49 (1960); D.C.Code 1967, § 24-301(g). Procedurally, therefore, the acquittee is no better off under § 24 — 301 today than he or she was under the same statute before 1970. Unless the acquittee can prove he or she is not mentally ill or dangerous, confinement under § 24-301 is both automatic and indefinite.4
*380Second, upon confinement, acquittees are not necessarily treated the same as committees. In this jurisdiction, an individual is found not guilty by reason of insanity if “as a result of a mental disease or defect he lacked substantial capacity either to recognize the wrongfulness of his conduct or to conform his conduct to the requirements of law.” Bethea, supra at 79 (emphasis added). Ordinarily, this jurisdiction treats individuals suffering from a mental “defect” (i. e., mental retardation) differently from the way it treats individuals suffering from a mental illness. Under civil commitment procedures, a mentally defective individual who is “not insane nor of unsound mind to such an extent to require his commitment to a hospital for the mentally ill” is committed to Forest Haven, a facility for retarded persons. D.C.Code 1973, §§ 21-1101, 32-601. In contrast, an acquittee, even if only suffering from a mental defect, is committed to a hospital for the mentally ill, Saint Elizabeths. Id., § 24-301(d).
In United States v. Jackson, supra, the court upheld this distinction in treatment precisely because it recognized that Congress “intended that all defendants acquitted by reason of insanity should be distinguished from all other persons, including persons civilly committed for mental diseases or retardation.” Id. at 381, 553 F.2d at 115 (emphasis in original). In Jackson, the court justified this difference in treatment on the basis that acquittees, but for their insanity plea, had been found guilty of crimes against society. Id. at 387, 553 F.2d at 121. Apropos of Jackson, this difference in treatment of certain acquittees cannot possibly be justified merely on the basis of an evidentiary presumption concerning the continuing mental condition of the acquit-tee. See note 1 supra. Rather, it is an express statutory provision, justified by reference to the criminality of the acquittee’s prior conduct.
Third, and perhaps most telling, is another example of differing possibilities for release of acquittees and committees after confinement. When the superintendent of Saint Elizabeths Hospital certifies that a committee is cured, the individual is discharged from the hospital. D.C.Code 1973, § 21-590. In contrast, when the hospital superintendent certifies that an acquittee has recovered, the government may demand a hearing. At this hearing, if the court is not convinced that the acquittee has recovered, the court may order his or her return to the hospital even though the authorities there consider the individual well enough for release. D.C.Code 1973, § 24-301(e).
In United States v. Ecker, 177 U.S.App.D.C. 31, 543 F.2d 178 (1976), cert. denied, 429 U.S. 1063, 97 S.Ct. 788, 50 L.Ed.2d 779 (1977), an acquittee challenged the constitutional validity of this added hurdle — court approval — before release. Five years after a jury had found the defendant not guilty of rape and murder by reason of insanity, the superintendent of Saint Elizabeths recommended conditional release. After a hearing, despite the recommendation of the examining psychiatrists, the trial court denied the hospital’s request and ordered continued hospital confinement. In upholding the statute and the trial court’s decision, the federal circuit court expressly relied on the fact that Ecker had committed a violent criminal act.5 Id. at 52, 543 F.2d at 199. Whether or not the hospital psychiatrists thought Ecker should be released, the trial court had a duty to protect “the public against whom the acquittee has already been shown to have committed one or more criminal acts, thus differentiating himself from the civil committee.” Id. at 51, 543 F.2d at 198. “More importantly,” the court rejected Ecker’s equal protection argument based on Jackson v. Indiana, 406 U.S. 715, 92 S.Ct. 1845, 32 L.Ed.2d 435 (1972), Baxstrom v. Herold, 383 U.S. 107, 86 S.Ct. 760, 15 L.Ed.2d 620 (1966), and Humphrey v. *381Cady, 405 U.S. 504, 92 S.Ct. 1048, 31 L.Ed.2d 394 (1972), reasoning “that the criminal conviction may justify some differences in procedural safeguards if the differences are ‘limited by the nature of the defendant’s crime or the maximum sentence authorized for that crime’ ” Id. at 51-52, 543 F.2d at 198-99 (quoting Humphrey, supra at 511, 92 S.Ct. at 1053) (emphasis added). Because Ecker could have been incarcerated, however, for a life sentence if not acquitted by reason of insanity, the differences in release procedures (between acquittees and committees) were therefore justifiable. Finally, the court rejected the hospital recommendation by saying that even if the hospital were correct “that a step-by-step reentry into the community [was] essential to Ecker’s continued improvement,” an acquittee “who has committed violent criminal acts” has “no right to treatment at the community’s peril.” Id. at 52-53, 543 F.2d 199-200.
Given the legislative history, the differences in treatment of acquittees and committees, and the judicial gloss on the statute by decisions such as Ecker, the majority’s position that the purpose of the statute is solely to “treat[ ] and rehabilitate] mental patients who happen to have been acquitted of crimes by reason of insanity,” ante at 370, is unsupportable. Acquittees are not just mental patients “who happen” to have been acquitted of crimes by reason of insanity. The fact of their criminal conduct continues to play a decisive role in the nature of their treatment and their chances for release after initial commitment. Congress and the courts have justified this harsher treatment precisely because acquit-tees have committed crimes.
C. The Relevance of the Statutory Maximum Sentence
The majority rejects the use of statutory maximum sentences to determine the maximum length of confinement under § 24 — 301 because such máximums have “no relationship to the purposes of mental care and treatment.” Ante at 369. I agree. The majority states that “[t]he notion that the duration of an acquittee’s hospitalization can be established by statute or court order ignores the most basic precepts of medicine and psychiatry . . . .” Ante at 370. Again, I agree. If the acquittee were hospitalized solely for medical reasons, I would be the first to concur that a statutory maximum for confinement based on the nature of the acquittee’s criminal conduct would have no relevance or application. But the problem is — and is so clearly evident in Ecker — that acquittees are not confined to mental institutions for medical reasons alone. They are confined there in part because society is unwilling to allow those who have committed crimes to escape without paying for their crimes. The intent of the statute is partially punitive, and thus the procedures under § 24-301 reflect this added burden on the defendant. Because of this punitive purpose, the maximum statutory period of confinement becomes relevant, for at that point society no longer has a valid interest in continued confinement on the basis of a shortcut procedure. Brown, supra at 408, 478 F.2d at 612; see Waite, supra at 285, 475 F.2d at 396; note 2 supra.6
*382III.
Society’s right to punish Michael Jones for his first offense, a misdemeanor — stealing a coat — has long since expired. As every day passes he is denied equal protection of the laws.7 Michael Jones should be released unless civilly committed.
. The majority maintains that the lesser protections in § 24-301 — burden of proof on the ac-quittee, without right to jury trial — do not alter its equivalence to §§ 21-544 and -545, for the acquittee already has had a right to jury trial on the conduct manifesting insanity, and the shift in burden of proof is justified by a valid evidentiary presumption that the acquittee’s insanity at the time of the offense — which he himself asserted — continues to the time of the release hearing. That hearing, therefore, unlike a civil commitment proceeding, is a procedure to update, not initiate, the inquiry.
In our division opinion on rehearing we rejected that analysis. We noted that the presumption of continuing insanity is questionable, spanning as it does months or even years between the time of the offense and the time of the release hearing. Furthermore, we saw that the courts analyzing criminal and civil commitment schemes in other jurisdictions “typically mix evidentiary and punitive rationales in justifying less comprehensive review of acquittees at ‘release hearings’ than is afforded civil committees at such proceedings.” 411 A.2d at 628-29 (footnote omitted). Differences such as a shift in the burden of proof and withdrawal of the right to a jury are commonly justified, in part, “by the public’s interest in greater protection than it would be likely to receive by subjecting acquittees to the civil commitment process.” Id. at 630. We concluded, therefore, that “the difference[s] between criminal and civil commitment procedures cannot be justified on purely evidentiary grounds.” Id.
. In our division opinion on rehearing, we summarized our analysis:
Assuming the best case for the constitutionality of § 24-301(d), appellant argues that its partially punitive character at least dictates, as a matter of equal protection vis-a-vis civil committees, that acquittees be released (or civilly committed) no later than the end of the maximum prison term they would have received if criminally convicted. We agree.
According to Baxstrom [v. Herold, 383 U.S. 107, 111, 86 S.Ct. 760, 762, 15 L.Ed.2d 620 (1966)], “[e]qual protection does not require that all persons be dealt with identically, but it does require that a distinction made have some relevance to the purpose for which the classification is made” (citation omitted). Accord, Bolton [v. Harris, 130 U.S.App.D.C. 1, 10, 395 F.2d 642, 651 (1968)]. On the basis of the partially punitive rationale for the criminal commitment scheme set forth earlier, see text and cases at note 9 supra, the criminal commitment scheme might survive equal protection scrutiny under Baxstrom, supra, even though the procedure for confining civil committees provides greater protection for the individual at the outset (the right to a jury and burden of proof on the government). We agree with appellant, however, that there is no basis confining an acquittee under § 24-301(d) beyond the length of the hypothetical maximum prison term, since that term marks the end of society’s claim on that individual for any kind of punishment. Any longer confinement must depend, constitutionally, on a de novo civil commitment. See Humphrey [v. Cady, 405 U.S. 504, 510-11, 92 S.Ct. 1048, 1052-53, 31 L.Ed.2d 394 (1972)]; Baxstrom [, supra, 383 U.S. at 110-11, 86 S.Ct. at 762]; [United States v. Brown, 155 U.S.App.D.C. 402, 408, 478 F.2d 606, 612 (1973)].
411 A.2d at 630 (footnote omitted).
. In reaching this result, the court relied on Baxstrom v. Herold, 383 U.S. 107, 86 S.Ct. 760, 15 L.Ed.2d 620 (1966), and Specht v. Patterson, 386 U.S. 605, 87 S.Ct. 1209, 18 L.Ed.2d 326 (1967). The circuit court expressly modified its earlier decisions in Overholser v. O’Beirne, 112 U.S.App.D.C. 267, 302 F.2d 852 (1961); Rags-dale v. Overholser, 108 U.S.App.D.C. 308, 281 F.2d 943 (1960); and Overholser v. Leach, 103 U.S.App.D.C. 289, 257 F.2d 667 (1958), cert. denied 359 U.S. 1013, 79 S.Ct. 1152, 3 L.Ed.2d 1038 (1959). Bolton, supra at 12, 395 F.2d at 653.
. My colleagues’ implication that altering the burden of proof and denying acquittees a right to jury trial are minor procedural distinctions from civil commitment, see ante at 372-375, is inconsistent with Congress’ purpose in amending the statute to overrule Bolton. As this court recognized in Bethea, supra, imposing the burden of proof on the acquittee is a significant procedural distinction from civil commitment; it is designed to make it more difficult for the acquittee to gain freedom. Id at 91-92. Indeed, where proof is often difficult to assess, see Addington v. Texas, 441 U.S. 418, 429, 99 S.Ct. 1804, 1811, 60 L.Ed.2d 323 (1979), “the allocation of the burden of proof may be outcome determinative.” Waite supra at 284, 475 F.2d at 395.
The majority’s discounting of the role of the jury when questions of mental capacity are at issue is also in direct conflict with our ruling in Bethea, supra, which emphasized that, despite the impact of psychiatric testimony, it is for the jury, not the psychiatric expert, to decide the accused’s mental state. Id at 82-83. The majority’s emphasis on the factfinder’s reliance on expert testimony in accessing the accused’s mental state (and thus on the lesser need for a jury) was recently rejected by the United States Court of Appeals for the District of Columbia Circuit in United States v. Ecker, 177 U.S.App.D.C. 31, 543 F.2d 178 (1976), cert. denied, 429 U.S. 1063, 97 S.Ct. 788, 50 L.Ed.2d 779 (1977). There, the court upheld the trial court’s refusal to release an acquittee from a mental hospital despite the recommendations of his doctors, stating, “the district court must independently ‘weigh the evidence’ and make a de novo determination that the patient will not in the reasonable future endanger himself or others.” Id. at 40, 543 F.2d at 187 (emphasis in the original).
. The circuit court, more than once, has relied on the nature of the underlying offense to justify the consequences of confinement under § 24-301(d). In United States v. Jackson, supra, the court emphasized that the defendant had been acquitted by reason of insanity of first degree burglary and rape, in contrast with mere theft of small sums which would “not indicate excessive dangerousness.” Id. at 387, 553 F.2d at 121.
. Although the foregoing discussion is sufficient to demonstrate the congressional purpose underlying D.C.Code 1973, § 24-301, I note briefly that the other Kennedy factors confirm the punitive intent.
By definition, confinement to a mental institution is “an affirmative disability or restraint,” id. 372 U.S. at 168, 83 S.Ct. at 567, even more perhaps than imprisonment, see Vitek v. Jones, 445 U.S. 480, 493-94, 100 S.Ct. 1254, 1263-64, 63 L.Ed.2d 552 (1980), given the indefinite duration and the stigma. See Addington, supra, 441 U.S. at 425-26, 99 S.Ct. at 1809. Despite its use for treatment, moreover, confinement for mental illness and dangerousness as a consequence of a criminal act “has historically been regarded as a punishment,” Kennedy, supra 372 U.S. at 168, 83 S.Ct. at 567, for which the Supreme Court continually has had to write constitutional guidelines. See, e. g., Jackson v. Indiana, supra; Humphrey, supra; Specht, supra; Baxstrom, supra.
Criminal confinement also comes into play “only on a finding of scienter,” Kennedy, supra at 168, 83 S.Ct. at 567; see Bethea, supra at 94 and “the behavior to which it applies is already a crime,” Kennedy, supra at 168, 83 S.Ct. at 567, by virtue of the criminal conviction that precedes it. The statute also “promote[s] the traditional aims of punishment — retribution *382and deterrence,” id., for, as already indicated, Congress and this court have noted a desire to prevent the misuse of the insanity defense by making the consequences more severe than de novo civil commitment. In addition, criminal confinement at w. mental institution serves other goals of punishment, incapacitation and rehabilitation. See United States v. Brown, 381 U.S. 437, 458, 85 S.Ct. 1707, 1720, 14 L.Ed.2d 484 (1965) (“Punishment serves several purpose: retributive, rehabilitative, deterrent — and preventive”). See generally, J. Vorenberg, Criminal Law & Procedure 44-57 (1975).
Finally, for reasons already discussed, I do not believe there is a wholly nonpunitive, “alternative purpose,” Kennedy, supra, 372 U.S. at 168-69, 83 S.Ct. at 567-68, assignable to § 24-301; but even if the purposes assigned by the majority — treatment of the acquittee and protection of society — were altogether nonpun-itive, the indefinite confinement of Michael Jones for stealing a coat is well beyond any public protection gloss on the statute’s purpose. It is one thing to keep an acquittee of murder and rape confined for life, see Ecker, supra, as he would be under appellant’s theory here, for those are life-sentence crimes. But society has no “protection” interest in confining Michael Jones indefinitely for stealing a coat, a misdemeanor punishable by maximum confinement for one year.
. When a court confronts different procedural safeguards afforded to different classes of individuals committed to mental institutions, concerns of equal protection and due process become interrelated. See Jackson v. Indiana, supra 406 U.S. at 731, 92 S.Ct. at 1854; cf. Humphrey, supra, 405 U.S. at 511, 92 S.Ct. at 1053 (1972) (noting with favor the state court’s consideration of Equal Protection Clause as relevant to procedural due process analysis); Specht, supra 386 U.S. at 608, 87 S.Ct. at 1211 (commitment proceedings for sex offenders subject both to Equal Protection and Due Process Clauses). In evaluating equal protection for the acquittee, I have not reached the question of due process as an independent concern, although there is a serious question here. I note, moreover, that any effort to reduce the procedural safeguards afforded to civil committees, while possibly resolving equal protection problems, would raise serious questions of due process for that class of individuals.