(dissenting).
I respectfully dissent from the majority’s conclusion that permitting the State to confine, in a hospital for the mentally ill, an individual who is not mentally ill, is constitutional. Because the discharge criteria appear to authorize continued confinement of a patient who remains dangerous to the public, even though capable of adjusting to open society and no longer in need of inpatient treatment and supervision, I conclude Minn.Stat. § 253B.18, subd. 15 is unconstitutional.
No one has challenged the findings of the appeal panel, which concluded Reome is not mentally ill, he is capable of making an acceptable adjustment to open society, he will likely engage in criminal behavior, and he does not require inpatient treatment and supervision. See Minn.Stat. § 253B.18, subd. 15 (1984). All parties apparently concede Reome could not currently be committed, since he is not mentally ill. See Minn. Stat. § 253B.02, subds. 13 and 17.
Psychiatrist Brian Gottlieb is the medical director of the security hospital. He told the appeal panel in January 1984 that Reome was not mentally ill, even when originally committed in November 1982 as a mentally ill and dangerous person. However, we need not review Reome’s original commitment. It is not enough that his “original confinement was founded upon a constitutionally adequate basis, if in fact it was, because even if his involuntary confinement was initially permissible, it could not constitutionally continue after that basis no longer existed.” O’Connor v. Donaldson, 422 U.S. 563, 574-75, 95 S.Ct. 2486, 2492-93, 45 L.Ed.2d 396 (1975).
Due process requires consideration of the private interest at stake and the governmental interest. Mathews v. Eldridge, 424 U.S. 319, 335, 96 S.Ct. 893, 903, 47 L.Ed.2d 18 (1976). The committed person has an “unquestioned constitutional right not to be confined without due process of law.” O’Connor v. Donaldson, 422 U.S. at 587-88, 95 S.Ct. at 2500 (Burger, C.J., concurring). As our supreme court has acknowledged, the governmental interest “is not punitive, but rather is related to the patient’s continuing illness and dangerousness. Once the patient no longer requires treatment or is no longer dangerous to society, due process demands his release.” Enebak v. Noot, 353 N.W.2d 544, 547 (Minn.1984).
Unlike Enebak, Reome is no longer in need of inpatient treatment and supervision. The majority does not address the inherent violation of Reome’s right as a patient “to receive proper care and treatment, best adapted, according to contemporary professional standards, to rendering further custody, institutionalization, or other services unnecessary.” Minn.Stat. § 253B.03, subd. 7. The legislature has determined that every committed person has a right to treatment, which further emphasizes the fact that the governmental purpose behind commitment is treatment directed to the eventual discharge of the patient. Reome is not mentally ill and cannot be treated. The record indicates the only effective change in his dangerous behavior and antisocial personality will occur as a result of the normal aging process.
Due process entitles the patient “to release when he has recovered his sanity or is no longer dangerous.” Jones v. United States, 463 U.S. 354, 368, 103 S.Ct. 3043, *2133051, 77 L.Ed.2d 694 (1983) (emphasis added). Any interpretation of the discharge criteria which requires a patient to show the absence of both mental illness and dangerousness clearly violates due process.
Additionally, the criteria appear to violate constitutional guarantees of Equal Protection. If another person had been sentenced for behavior identical to that which formed the basis of the committing court’s finding that Reome was dangerous, that person would have been released at the completion of a definite prison term, regardless of the likelihood of repeat offenses. By contrast, Reome will be deprived of his liberty indefinitely, until he can demonstrate he is no longer dangerous. In the meantime, Reome is confined to a hospital for the mentally ill, even though he is not mentally ill.
The criminal corrections system is designed to protect the public and the commitment system is' designed to treat patients. Detention of a dangerous person, such as Reome, who is not mentally ill should be left to the corrections system.