NO. 1391]_
IN'I‘IIESIJPREIV[EICOUR'I‘OF'I'HESTA'I'EOFIVIONI‘ANA
1978
IN 'I'HE MA'I'I'ER OF THE APPLICATION OF
JAMES W. ZION,
Petitioner,
for a writ of Habeas Corpus to inquire into
the cause of Detention of RITA STRAI'I'ON,
HARRY C. XAN'I'HOPOUIDS, Sllperintendent,
Warm Springs State Hospital,
Respondent .
ORIGINAL PHJCEIEDI!\B:
COunSel of ReCOrd:
For Petitioner:
James Zion argued, Helena, D/bntana
For Respondent:
Hon. Mike Greely, Attorney General, Helena, Nbntana
Mary B. Troland argued, Assistant Attorney Ge.neral, Helena,
Nbntana
Robert J. Brooks, County Attorney, Broadus, Nbntana
Suhnitted: Septernber 20, 1978
Decided,_r:,g"l;'~ ) " `~‘3?8
Filed :
Clerk
Mr. Justice Gene B. Daly delivered the Opinion of the Court.
James Zion, petitioner and attorney for Rita Straiton,
filed a petition for a writ of habeas corpus to inquire into
the detention of Straiton with this Court on August 3, l977.
Following a hearing on Zion's authority and standing to
appear this Court remanded the cause to the District Court
of the Sixteenth Judicial District sitting in Powder River
County for findings of fact and conclusions of law as to the
condition of Rita Straiton who had been committed to Warm
Springs State Hospital (Warm Springs) in l973 following her
acquittal on a charge of murder on the ground of mental
disease or defect excluding responsibility. Following a
hearing on Straiton's condition the District Court ordered
her release from Warm Springs with certain conditions. The
case is now before this Court for review of conditions of
release imposed by the District Court.
Subsequent to entering its findings and conclusions,
the District Court allegedly granted §§ parte a motion by
the county attorney to assess medical and witness fees and
costs against Straiton's estate. Although the District
Court record on this matter was not transmitted to the
Court, petitioner seeks a reversal of this order. Petitioner
James W. Zion, the petitioner herein, has filed an additional
petition, dated October ll, l978, with the Court requesting
immediate release of Straiton and the same is considered
herein.
In l973, Rita Straiton was committed to Warm Springs
following her acquittal by reason of insanity on a charge of
murdering her father. In l977 she petitioned for release
from custody. The District Court agreed that she was suitable
for release and imposed six conditions for her release "[t]o
insure that the defendant's release and return to society
does not trigger a regression which might make her a danger
to herself or others." Among these conditions are the
following to which petitioner objects:
"(e) Defendant must be willing to accept super-
vision by the Parole Division of the Montana
Department of Institutions for a period of not
less than five (5) years following her release
from the State Hospital at Warm Springs so as
to insure the following:
"l. Defendant does not change her place of
residence without approval of the parole officer.
"2. That the parole officer know defendant's
place of residence and her place of employment
at all times.
"3. That defendant continue her consultations
at the mental health facility and continue taking
such medications as are prescribed.
"4. That defendant continue to be employed and
to have income so that she can pay her living
expenses.
"5. That defendant maintain her behavior so that
she is not a danger to herself or to others.
"6. That defendant abide by all of the condi-
tions prescribed in her release order.
"7. That defendant suffers from no regression in
her mental condition which require that she be
returned to the State Hospital at Warm Springs.
"8. That defendant obey all municipal, state and
federal laws.
"9. That defendant comply with the rules and
regulations of the Department of Institutions,
Parole Division, and that she report regularly to
her parole officer as required by him."
The determination of the propriety of the imposition of
Parole Division supervision in this case depends on the
evaluation of two factors: (a) Straiton's status as one
acquitted of a crime by reason of insanity; and (b) the
extent of the authority of the District Court to impose
conditions on the release from Warm Springs of one acquitted
of crime by reason of insanity.
Straiton was found not guilty of the crime charged by
reason of insanity. This means she was not legally responsi-
ble for the act committed and she is not regarded as a
convicted criminal. Scheidt v. Meredith (D. Colo. l970), 307
F.Supp. 63, 65; State ex rel. D0rothea Dix Hospital v. Davis
(l977), 292 N.C. l47, 232 S.E.2d 698, 703. By reason of her
acquittal she became one of what has been described as an
"exceptional class" of people held blameless and free from
imprisonment for an act otherwise subject to penal sanctions.
State v. Taylor (l97l), l58 Mont. 323, 33l, 49l P.2d 877,
88l; State v. Carter (l973), 64 N.J. 382, 316 A.2d 449, 458.
The status of one entering this "exceptional class" was
further described by Justice John Harrison in Taylor:
". . . [W]hen one enters this exceptional class,
the reasonable and humane thing to do is to com-
mit him to a mental hospital where he can undergo
treatment which will, hopefully, enable him to
return to society as a useful member, posing no
threat to either his or the general public's
safety. However, the public acquires a special
interest in his confinement and release, which
interest must be considered by the court. When
consideration is being given to his release, that
public interest must be weighed against his claimed
right to be set free." 158 Mont. at 33l, 491 P.2d
at 88l.
See also State v. Carter, supra, 316 A.2d at 459; In re Lee
(l974), 46 A.D.2d 999, 362 N.Y.S. 635, 637.
Persons in this class are not regarded as criminal.
This is further illustrated by the fact that all of the
provisions governing release from Warm Springs after this
kind of commitment are deemed "civil" in nature. See sec-
tion 95-508(l), (3), R.C.M. l947. She must prove that she
may be safely released only by a preponderance of the evi-
dence, section 95-508(3), not beyond a reasonable doubt as
required in criminal proceedings. Cf. State v. Taylor, 158
Mont. at 333, 491 P.2d at 882 (opinion written before statute
amended).
Section 95-508, R.C.M. l947, governs the release from
custody of persons acquitted of crime by reason of insanity.
According to that statute the District Court which originally
committed the person is charged with weighing the public
interest in protection from dangerous persons against the
defendant's claimed right to be free as described in Taylor.
The District Court is given wide discretion to prescribe
release "on conditions which the court determines to be
necessary." Section 95-508(l),(3). This discretion is not
unlimited and cannot encompass a condition which as applied
to this person to be released would be unconstitutional.
Furthermore, imposition of a condition designed for punish-
ment or retribution is inapposite in dealing with an indi-
vidual who has been acquitted of the crime charged. Hough
v. United States (D.C. Cir. l959), 271 F.2d 458, 462; State
v. Carter, 316 A.2d at 456.
"Probation" for purposes of our criminal laws is defined
in Montana's statutes as "the release by the court without
imprisonment except as otherwise provided by law, of §
defendant found guilty of § crime. . . " Section 95-330l(3),
R.C.M. l947. (Emphasis added.) "Parole" is defined as "the
release to the community of a prisoner . . . prior to the
expiration of his term." Section 95-330l(4), R.C.M. l947.
"Prisoner" in turn is defined as "a person sentenced by a
district court to a term of confinement in the state prison."
Section 95-22l8(4), R.C.M. l947.
Straiton, who has not been convicted of a crime and who
was not sentenced to the state prison does not fall within
either class of person to whom the criminal probation or
parole provisions could apply. That such a person may not
be constitutionally subject to such conditions is equally
c1ear. Scheidt v. Meredith, supra; Holderbaum v. Watkins
(1975), 42 Ohio St. 2d 372, 328 N.E.2d 814, 8l5, aff;g 44
Ohio App. 2d 253, 337 N.E.2d 800.
In Scheidt, the federal district court described that
which a court may do in regard to one in Straiton's place as
to both the original commitment and subsequent conditional
releases
"Petitioner was found not guilty of the crimes
charged by reason of insanity. . . The judgment
was not, it is true, a clean bill of health, but
was a judgment of so-called limited responsi-
bility. It is not to be denied that one so ad-
judged can be committed to a hospital for treat-
ment and custody until he regains his 'sanity.'
This is not, however, punishment and indeed the
state may not constitutionally impose criminal
sanctions against persons who have committed no
crime. §§e Powell v. State of Texas, 392 U.S.
5l4, 533, 88 S.Ct. 2l45, 2154-2l55, 20 L.Ed.2d
1254 (l968); Powell v. State of Texas, supra,
392 U.S. at 567, 88 S.Ct. at 2l7l (dissenting
opinion); §f. Robinson v. State of California,
370 U.S. 660, 82 S.Ct. l4l7, 8 L.Ed.2d 758 (l962).
"The interests of the community and the indivi-
dual are relevant to the granting of a condi-
tional release. Thus, it would be clearly proper
to require that petitioner accept psychiatric
outpatient care or supervision. However, terms
which were designed to regulate the activities
of convicted criminals, and which are punitive
in nature, cannot be imposed in a case such as
this." 307 F.Supp. at 66.
We concur in this view.
In Holderbaum, the Ohio Court of Appeals summed up the
situation in which Straiton finds herse1f:
"We then have as the petitioner an adult who has
been found sane pursuant to a writ of habeas
corpus, who has not been convicted of any crime
or is not suffering under any disability under
the law, and who is entitled to his release
forthwith from the Lima State Hospital. His
legal situation is equivalent to any other sane
adult not convicted of any crime and not suf-
fering under any legal disability." 337 N.E.2d
at 802.
The intermediate court in Ohio went on to declare that
any condition placed on the defendant's release would deny
him equal protection of the laws, deprive him of liberty
without due process, and deprive him of the right to enjoy
liberty and therefore held the conditional release statute
unconstitutional. On appeal the Ohio Supreme Court felt
this declaration of unconstitutionality was unnecessary and
to that extent overruled the Court of Appeals. Holderbaum,
supra, 328 N.E.2d at 8l5. The petitioner here agrees that
conditional release is proper and is not challenging the
conditional release statute. Therefore, this Court need not
reach the question of the constitutionality of section 95-
508. Neverthe1ess the Court does disapprove the imposition
of improper supervision by the Parole Division as a condi-
tion of the release of Straiton,
The State argues that the imposition of probation as a
condition to Straiton's release is not designed to be puni-
tive but is merely designed as supervisory to insure her
continued mental stability. On reading the probation condi-
tion as imposed by the District Court we are unable to
discern how several of the provisions differ substantially
from the type of conditions imposed on a convicted criminal
on probation. For example Straiton would not be able to
change her address without approval of her parole officer
and would have to comply with the rules and regulations of
the Department of Institutions' Parole Division, which
presumably are drafted with convicted criminal probationers
and parolees in mind. These are impermissible infringements
on the liberty of one who has not been convicted of a crime
and who is not now a danger to herself or others. As stated
in Scheidt, 307 F.Supp. at 66:
"The purpose of modern criminal probation is said
to be rehabilitative and educational, yet such a
program is designed for the guilty and not for
those who are not guilty. An essential require-
ment is an adjudication of guilt. Then the imposi-
tion or execution of sentence is suspended and the
violator is allowed to go into the community on
strict terms and conditions. He is limited in his
freedom of association, mobility and other acti-
vities. These limitations are imposed as a direct
result of the probationer's having been convicted
of some violation of the law. Although probation
may not be primarily punitive in nature, punitive
aspects are clearly involved. Since a person may
not, consistent with the Constitution, be punished
when he has committed no crime (see Powell v. State
of Texas, supra; §f; Robinson v. State of Cali-
fornia, supra) it would be unconstitutional to
impose criminal probation conditions on someone in
petitioner's circumstances. Just as release on
probation may not be weighted with terms and con-
ditions having nothing to do with the purpose or
policy of probation, conditional release of a man
who has been restored to sanity may not be condi-
tioned on terms having no relation to his status."
(Emphasis added.)
This excerpt emphasizes the impropriety of imposing
probation conditions of a criminal or punitive nature. The
imposition of probation conditions having the tone or effect
of being punitive is therefore expressly disapproved.
Because we feel that certain of the conditions contained
within the probation condition as imposed by the District
Court do have this tone or effect we disapprove as imposed
the condition that Straiton submit to supervision by the
Parole Division.
Nevertheless, because of the facts of this and similar
cases which might arise in the future, we are reluctant to
declare flatly for all purposes that some form of overseeing
by the Parole Division would be unacceptable as a condition
of release of an insanity acquitee from Warm Springs.
Besides the express authority contained in section 95-508
for the District Court to impose such conditions as it deems
necessary we are able to find support in the cases for
permitting such supervision. In State v. Carter, supra, for
example, the New Jersey Supreme Court stated what we consider
to be an acceptable form of post-release overseeing by a
probation officer of one in Straiton's position:
"Throughout the period of conditional release, it
is imperative that the trial court maintain fre-
quent contact with the patient and supervising
psychiatrists. §§ facilitate this burden of re-
sponsibility, the trial judge should require __
regular and continuous reports to a court ap-
pointed probation officer both from the psychi-
atrists to whom the patient is reporting and
from the patient himself. The court must retain
jurisdiction over the proceeding. This retention
of jurisdiction is essential to enable the au-
thorities to return the patient to the state
hospital for psychiatric care immediately upon
being notified that some problem has arisen which
jeopardizes the safety and well being of the pa-
tient or those around him. The ability of the
trial judge to immediately recall the patient in
a summary fashion is crucial to the court's ability
to protect the public from harm." 316 A.2d at 463.
(Emphasis added.)
This statement accurately summarizes our view of the proper
balancing of the competing interests at stake in this case.
One other reason may be cited for our reluctance to
forbid the use of Parole Division personnel as a possible
supervising agency in these cases. If we did so, we may be
denying to some residents the possibility of release simply
because the District Court is unable to find any other
satisfactory local agent to oversee the reintroduction of
the patient into community life.
The District Court in this case, charged as described
above with balancing the public's interest in safety against
Straiton's claimed right to be free, has made several find-
ings of fact which indicate a certain "nervousness" on the
court's part regarding Straiton's current mental health,
Specifical1y the District Court in different findings
observed that during her testimony at the hearing on the
petition Straiton "gave the appearance of being tense and
gave the impression that she might explode at any time"
although she did maintain control. The court also quoted
one of the examining psychiatrists recommending her release
as saying that Straiton "demonstrates a marked disregard for
the value of any medication, and indirectly indicated that
in all probability she would not continue taking medication
after leaving the hospital." Cf. Scheidt, 307 F.Supp. at
6465 n. 1 (defendant willing to utilize psychiatric out-
patient services and to continue treatment). The court
further mentioned the absence of any testimony to establish
how defendant's behavior would be affected if she should
fail to take her medication even though the court placed
great weight on the value of the medication in stabilizing
Straiton's emotions.
In summary the District Court found:
"Defendant is mentally ill, but her mental
condition does not make her a present danger to
herself or to others. The improvement in defen-
dant's mental condition over what it was at the
time of her original confinement is probably the
result of her taking of the tranquilizing drug,
Thorazine. Defendant's ability to maintain social
control over her behavior will depend on the de-
gree of stress imposed upon her and upon her con-
tinued use of the tranquilizing drug, Since she
is not a present danger to herself or to others,
she is entitled to be released. However, her
release must be strictly supervised and controlled
to insure that she does not regress to her pre-
vious mental state.
"Defendant should not be released until ade-
quate provision is made for supervision and con-
trol during the time of her release."
On the basis of these findings the District Court
agreed to the release of Straiton under certain conditions
designed to provide the strict supervision and control the
court felt necessary. Today we have disapproved, §§ imposed,
an integral part of these release conditions--supervision by
the Parole Division. At oral argument counsel for Straiton
indicated that a suitable alternative for strict supervision
_10_
by the Parole Division in the form of direct supervision by
a private psychiatrist had been arranged. whether this
alternative is acceptable to the District Court we are not
in a position to say. Neither are we charged under the
release statutes with making that determination. Therefore,
we remand the case to the District Court for further pro-
ceedings on the narrow issues of whether suitably strict
supervision is possible under this alternative and what
limited role the Parole Division may play as defined in this
opinion to insure that strict supervision is maintained.
On remand, there is one other matter which should be
corrected in the subsequent release order. By stipulation
of the State, it is agreed that the condition imposed upon
Straiton's release in regard to her securing full-time
employment should be modified to include the alternative of
schooling or job training. This condition should be re-
written to reflect this agreement between the parties.
The petitioner brings one other matter to our atten-
tion: the alleged ax pa£aa assessment of witness fees and
costs against Straiton by the District Court. This issue is
not properly before this Court at this time as no record of
the District Court's actions on this matter is before us.
See Rule 9, M.R.App.Civ.P. We expressly reserve any judgment
on this issue.
This application is remanded to the District Court for
further proceedings consistent with this opinion.
/ l
w / >%M »1/
Justice V
_ll_
We Concur:
?zBa»4& kg §§;z;qcL#GL;;;
Chief Justice
/Justices b/
/
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