dissenting:
The majority holds that a trial court may use recidivism as an aggravating factor in committing an insanity acquittee to an extended involuntary commitment period. The majority concludes that such use of recidivism "depends entirely on objective, historical criteria — the defendant’s record of criminal convictions — and makes no reference to the defendant’s mental state or intent, or any other subjective matter that might be considered to conflict with an insanity finding.” 164 Ill. 2d at 198.
I disagree with this conclusion and its underlying reasoning. Accordingly, I dissent.
BACKGROUND
If a trial court finds that an insanity acquittee is subject to involuntary admission, the court must commit the acquittee to the Department of Mental Health and Developmental Disabilities (Department) for an indefinite period. The court must set a maximum period of involuntary commitment. This maximum commitment period equals the maximum sentence that could have been imposed upon a conviction for the most serious crime for which the defendant had been acquitted by reason of insanity. Ill. Rev. Stat. 1991, ch. 38, par. 1005 — 2—4(b).
The trial court determines this maximum commitment period by referring to the existing sentencing scheme. This maximum is the outer limit of the insanity acquittee’s possible commitment; he or she cannot be held beyond this maximum. The commitment is considered indefinite because the insanity acquittee may be released at any time he or she is determined to be sane. (Ill. Rev. Stat. 1991, ch. 38, par. 1005 — 2—4(b); People v. Tanzy (1983), 99 Ill. 2d 19, 21.) If the insanity acquittee has not recovered from his or her mental illness by the end of the maximum commitment period, the acquittee is subject to civil commitment proceedings. Ill. Rev. Stat. 1991, ch. 38, par. 1005 — 2—4(b) et seq.; People v. Palmer (1992), 148 Ill. 2d 70, 94.
Clearly, to determine the maximum commitment term, a trial court may refer to Unified Code of Corrections section 5 — 8—1, which prescribes sentences for felonies. (Ill. Rev. Stat. 1991, ch. 38, par. 1005 — 8—1.) However, to commit an insanity acquittee to an extended commitment period, the court must first satisfy the requirements of the extended-term statute, section 5 — 8—2(a) (Ill. Rev. Stat. 1991, ch. 38, par. 1005 — 8— 2(a)).
The extended-term statute in turn refers to the several aggravating factors listed in section 5 — 5—3.2(b). (Ill. Rev. Stat. 1991, ch. 38, pars. 1005 — 5—3.2(b)(1) through (b)(7).) Subsection (b)(2) allows an extended prison term when "the offense was accompanied by exceptionally brutal or heinous behavior indicative of wanton cruelty.” (Ill. Rev. Stat. 1991, ch. 38, par. 1005— 5 — 3.2(b)(2).) Subsection (b)(1) allows an extended prison term when the offense was committed within 10 years after a prior conviction for a felony of the same or greater class. Ill. Rev. Stat. 1991, ch. 38, par. 1005 — 5— 3.2(b)(1).
This court agreed with the defendants in Palmer that "given the nature of the insanity defense, an insanity acquittee’s conduct may not be evaluated in terms of wanton cruelty,” and that "an insanity acquittee cannot be considered to have consciously chosen to inflict pain or suffering, or to have been capable of consciously realizing that such infliction was wrong.” (Palmer, 148 Ill. 2d at 88.) Thus, subsection (b)(2) could not be used as an aggravating factor in determining an extended commitment period.
DISCUSSION
In the present case, I agree with defendants that this court’s reasoning in Palmer readily applies here. As the majority acknowledges, the purpose of a recidivist statute is to impose harsher sentences on offenders "whose repeated convictions have shown their resistance to correction” (emphasis added) (People v. Robinson (1982), 89 Ill. 2d 469, 476), or who have exhibited "an unwillingness to rehabilitate themselves” (emphasis added) (People v. Baker (1983), 114 Ill. App. 3d 803, 810).
This is exactly the point. It should be obvious that an insanity acquittee does not resist correction, or is not unwilling to rehabilitate. Rather, the insanity acquittee cannot be deterred or rehabilitated through criminal punishment. (1 W. LaFave & A. Scott, Substantive Criminal Law § 4.1, at 430-31 (1986); B. Weiner, Not Guilty By Reason of Insanity: A Sane Approach, 56 Chi.-Kent L. Rev. 1057, 1058 (1980).) That is why that person was acquitted by reason of insanity. " '[T]he insanity defense exculpates a person whose volition is so impaired *** that he is substantially incapable of conforming his conduct to the law.’ ” (Emphasis added.) (Palmer, 148 Ill. 2d at 88, quoting People v. Grant (1978), 71 Ill. 2d 551, 558.) As with the wanton cruelty aggravating factor, an insanity acquittee’s conduct simply cannot be evaluated in terms of recidivism. See Palmer, 148 Ill. 2d at 88.
The majority’s attempt to avoid this reasoning and its necessary conclusion fails. The majority justifies this inappropriate use of recidivism as an aggravating factor by simply stating that it "is not being applied for deterrent or punitive purposes.” Rather, "the extended-term statute simply provides the rod by which the maximum commitment period is measured.” 164 Ill. 2d at 196-97.
This reasoning is a non sequitur at best. The majority approves the use of recidivism as an aggravating factor solely to commit an insanity acquittee for as long as possible. However, that goal has nothing to do with the purposes of recidivist statutes and their inapplicability to insanity acquittees.
Criminal incarceration differs from the commitment of an insanity acquittee. Criminal incarceration necessarily involves factors including retribution, deterrence, and rehabilitation. In contrast, the purpose of commitment following an insanity acquittal is the treatment of the acquittee’s mental illness, as well as the protection of both the acquittee and society from the acquittee’s potential dangerousness. Since the acquittee was not convicted, he or she may not be punished. There is no correlation between the length of time necessary for the acquittee’s recovery and the length of the acquittee’s hypothetical criminal sentence. Jones v. United States (1983), 463 U.S. 354, 368-69, 77 L. Ed. 2d 694, 708, 103 S. Ct. 3043, 3051-52; People v. Hampton (1983), 121 Ill. App. 3d 273, 276-77.
A court may refer to the criminal sentencing statutes in determining the maximum commitment period for an insanity acquittee. However, the court must not senselessly use the criminal law to extend a commitment period. Rather, if the insanity acquittee fails to recover at the end of an appropriate commitment period, recourse should be had to civil commitment proceedings. A noted scholar warns:
"Punishment is the consequence of the violation of a criminal law. But when punishment cannot achieve its aims of deterrence and rehabilitation, justice requires that the offender not be punished, for otherwise, punishment will serve only as a retributive and vengeful tool without social purpose. Public order is aimed at the preservation of social interests and values, and when the aims of this protection are not attained, the coercive tools of criminal law are only vindictive and purposeless.” M. Bassiouni, Substantive Criminal Law § 10, at 487 (1978).
I believe that a court may not use recidivism as an aggravating factor in committing an insanity acquittee to an extended involuntary commitment period. The appellate court correctly applied Palmer to the facts of each case. Accordingly, I dissent.
JUSTICE HARRISON joins in this dissent.