OPINION OF THE COURT
Before GOLDBERG, Circuit Judge, and HUGHES and MAHON, District Judges.
PER CURIAM:
Petitioner Perry Wayne Reynolds filed a petition for a writ of habeas corpus in Texas state criminal district court on October 11, 1972. He alleged denial of both due process and equal protection in several aspects of his con
finement at Rusk State Mental Hospital following acquittal of criminal charges pending against him.
The petition was denied, and the denial affirmed by the Court of Criminal Appeals of Texas. He then filed the petition in federal district court, alleging claims for relief on the basis of 28 U.S.C. § 2241 et seq., 42 U.S.C. § 1983, and 28 U.S.C. § 2201. A three judge court was also requested pursuant to 28 U.S.C. § 2281.
In a pre-trial order dated April 18, 1974, the issue of the constitutionality of Article 46.02 of the Vernon’s Ann. Texas Code of Criminal Procedure was severed from the other issues in the case, and a three judge court was convened to decide the issue. Arguments were heard on June 7th, 1974.
Perry Wayne Reynolds was indicted by a grand jury in Dallas County on the charge of murder with malice on March 29th, 1968. In May of that year, Reynolds entered an affidavit alleging insanity at the time of the commission of the offense, and further stated that he was insane at the time of trial. The affidavit was accompanied by a motion to try the issue of Reynold’s sanity prior to the trial on the merits. With the approval of the State’s Attorney this was done, and the jury found that the defendant was both insane at the time the criminal act was committed, and that he was insane at the time of trial. The jury recommended his commitment to a mental hospital until he became sane.
Since that time, Reynolds has been confined at Rusk State Mental Hospital, the only place in the state of Texas where persons acquitted of crimes are placed upon determination of present mental insanity. It is stated by Petitioner, and not disputed by Respondent, that Reynolds has little chance of making substantial progress in reaching a level of sanity as prescribed by the jury to be the condition for his release.
At issue in this case are the standards for commitment, treatment, and release as set out under Article 46.02 of the Texas Code of Criminal Procedure. This is the statute which provides for the procedure by which a defendant in a criminal case may have his present sanity tried either in advance of a trial on the merits, or during such trial. The defense in bar of insanity at the. time of offense may also be tried under this statute. Petitioner compares the procedures and standards of Art. 46.02 to those which apply to civilly committed persons under Vernon’s Ann.Civ.St. Texas Mental Health Code, Article 5547, and to facilitate discussion of Petitioner’s allegations, the procedures and standards under each of these statutes must be explained. Pertinent portions of the statutes are set out in the footnotes, and direct cites will be omitted in the text.
By the terms of Art. 46.02, a defendant may have the issue of present sanity tried in advance of the trial upon written request. Alternatively, during the trial on the merits, the court must hear evidence on the issue of present sanity on written request therefore, accompanied by a request for mistrial by reason of present insanity. The standard which must be used by the jury to determine present sanity is whether or ■ not the defendant is presently incapable of making a rational defense,
if the jury finds the defendant presently insane and there has been competent medical or psychiatric testimony to
that effect, the jury then considers whether or not the defendant requires hospitalization in a mental hospital for his own welfare and protection or the protection of others. Where present insanity is found, no consideration on the merits can be made; further deliberations are confined to the need for commitment (as described above), and whether or not the defendant was sane or insane at the time of the alleged offense. It is apparent from the wording of the statute that a determination of present insanity must be followed by a determination of past sanity at the time of the alleged offense if any competent evidence is introduced by the defendant in reference to his past sanity. The choice as to whether or not to bring up the matter of past sanity as a defense is entirely that of the defendant, and the burden is on him to prove his insanity at the time of the offense by a preponderance of the evidence. Burton v. State, 471 S.W.2d 817 (Tex.Cr.App.1971). In deliberating past sanity, the usual standard for responsibility for criminal acts is followed — the ability to know right from wrong and the nature of one’s acts at the time of the offense. Wilkerson v. State, 423 S.W.2d 311 (Tex.Cr.App. 1968). If the defendant is found to have been insane at the time of the offense, he stands acquitted of the crime for which he was charged, and is in no sense a person charged with a crime.
Where a defendant is found insane at the time of trial and insane at the time of the offense (thereby becoming a member of the class of the “insane insane”)
and a determination is made that the former defendant (now an acquittee) is in need of hospitalization, he is confined to Rusk State Mental Hospital.
After confinement, the head of the hospital may at any time notify the committing court that the acquittee is now sane. No standard is set out as a prerequisite for release other than present sanity. A jury is impaneled if the judge finds that the request has merit in order to decide the patient’s present sanity, and if he is found sane, he is released. If found insane, he must be returned to Rusk for at least 180 days before another recommendation for release may be made. The acquittee, after a year of confinement, and each year thereafter, may initiate a judicial hearing for a sanity determination independent of the head of the hospital.
One portion of the statute which affords additional rights to those held to be incompetent to stand trial is Section 11. It provides that where a defendant is found to be insane and in need of hospitalization, where there is competent medical testimony that such person is a mentally retarded person, the court may commit him to a state school for the mentally retarded. The other provisions of the statute then apply.
By contrast, the Texas Mental Health Code, Article 5547, provides for the following actions in order to indefinitely commit a person civilly.
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OPINION OF THE COURT
Before GOLDBERG, Circuit Judge, and HUGHES and MAHON, District Judges.
PER CURIAM:
Petitioner Perry Wayne Reynolds filed a petition for a writ of habeas corpus in Texas state criminal district court on October 11, 1972. He alleged denial of both due process and equal protection in several aspects of his con
finement at Rusk State Mental Hospital following acquittal of criminal charges pending against him.
The petition was denied, and the denial affirmed by the Court of Criminal Appeals of Texas. He then filed the petition in federal district court, alleging claims for relief on the basis of 28 U.S.C. § 2241 et seq., 42 U.S.C. § 1983, and 28 U.S.C. § 2201. A three judge court was also requested pursuant to 28 U.S.C. § 2281.
In a pre-trial order dated April 18, 1974, the issue of the constitutionality of Article 46.02 of the Vernon’s Ann. Texas Code of Criminal Procedure was severed from the other issues in the case, and a three judge court was convened to decide the issue. Arguments were heard on June 7th, 1974.
Perry Wayne Reynolds was indicted by a grand jury in Dallas County on the charge of murder with malice on March 29th, 1968. In May of that year, Reynolds entered an affidavit alleging insanity at the time of the commission of the offense, and further stated that he was insane at the time of trial. The affidavit was accompanied by a motion to try the issue of Reynold’s sanity prior to the trial on the merits. With the approval of the State’s Attorney this was done, and the jury found that the defendant was both insane at the time the criminal act was committed, and that he was insane at the time of trial. The jury recommended his commitment to a mental hospital until he became sane.
Since that time, Reynolds has been confined at Rusk State Mental Hospital, the only place in the state of Texas where persons acquitted of crimes are placed upon determination of present mental insanity. It is stated by Petitioner, and not disputed by Respondent, that Reynolds has little chance of making substantial progress in reaching a level of sanity as prescribed by the jury to be the condition for his release.
At issue in this case are the standards for commitment, treatment, and release as set out under Article 46.02 of the Texas Code of Criminal Procedure. This is the statute which provides for the procedure by which a defendant in a criminal case may have his present sanity tried either in advance of a trial on the merits, or during such trial. The defense in bar of insanity at the. time of offense may also be tried under this statute. Petitioner compares the procedures and standards of Art. 46.02 to those which apply to civilly committed persons under Vernon’s Ann.Civ.St. Texas Mental Health Code, Article 5547, and to facilitate discussion of Petitioner’s allegations, the procedures and standards under each of these statutes must be explained. Pertinent portions of the statutes are set out in the footnotes, and direct cites will be omitted in the text.
By the terms of Art. 46.02, a defendant may have the issue of present sanity tried in advance of the trial upon written request. Alternatively, during the trial on the merits, the court must hear evidence on the issue of present sanity on written request therefore, accompanied by a request for mistrial by reason of present insanity. The standard which must be used by the jury to determine present sanity is whether or ■ not the defendant is presently incapable of making a rational defense,
if the jury finds the defendant presently insane and there has been competent medical or psychiatric testimony to
that effect, the jury then considers whether or not the defendant requires hospitalization in a mental hospital for his own welfare and protection or the protection of others. Where present insanity is found, no consideration on the merits can be made; further deliberations are confined to the need for commitment (as described above), and whether or not the defendant was sane or insane at the time of the alleged offense. It is apparent from the wording of the statute that a determination of present insanity must be followed by a determination of past sanity at the time of the alleged offense if any competent evidence is introduced by the defendant in reference to his past sanity. The choice as to whether or not to bring up the matter of past sanity as a defense is entirely that of the defendant, and the burden is on him to prove his insanity at the time of the offense by a preponderance of the evidence. Burton v. State, 471 S.W.2d 817 (Tex.Cr.App.1971). In deliberating past sanity, the usual standard for responsibility for criminal acts is followed — the ability to know right from wrong and the nature of one’s acts at the time of the offense. Wilkerson v. State, 423 S.W.2d 311 (Tex.Cr.App. 1968). If the defendant is found to have been insane at the time of the offense, he stands acquitted of the crime for which he was charged, and is in no sense a person charged with a crime.
Where a defendant is found insane at the time of trial and insane at the time of the offense (thereby becoming a member of the class of the “insane insane”)
and a determination is made that the former defendant (now an acquittee) is in need of hospitalization, he is confined to Rusk State Mental Hospital.
After confinement, the head of the hospital may at any time notify the committing court that the acquittee is now sane. No standard is set out as a prerequisite for release other than present sanity. A jury is impaneled if the judge finds that the request has merit in order to decide the patient’s present sanity, and if he is found sane, he is released. If found insane, he must be returned to Rusk for at least 180 days before another recommendation for release may be made. The acquittee, after a year of confinement, and each year thereafter, may initiate a judicial hearing for a sanity determination independent of the head of the hospital.
One portion of the statute which affords additional rights to those held to be incompetent to stand trial is Section 11. It provides that where a defendant is found to be insane and in need of hospitalization, where there is competent medical testimony that such person is a mentally retarded person, the court may commit him to a state school for the mentally retarded. The other provisions of the statute then apply.
By contrast, the Texas Mental Health Code, Article 5547, provides for the following actions in order to indefinitely commit a person civilly. After a 60 day observation period, any adult person may file a petition alleging that the patient is mentally ill and requires hospitalization in a mental hospital for his own welfare and protection or the protection of others. This petition must be accompanied by a certificate of a doctor who concurs in this conclusion. A hearing is set, and an attorney must be appointed for the person whose sanity is being questioned. A jury trial on the issue of sanity may be waived by the patient or his next of kin, and the attorney.
At the hearing itself, the proposed patient need not be present, but at least two physicians must testify at the hearing. Certain findings must be made be
fore the proposed patient may be committed. They are:
1. Whether the proposed patient is mentally ill;
2. Whether he requires hospitalization in a mental hospital for his own welfare and protection or the protection of others, and if so;
3. Whether he is mentally incompetent.
An order for commitment will issue if affirmative answers to both (1) and (2) are found. The incompetence finding is not made specifically relevant for commitment. There is a right of appeal from orders of indefinite commitment.
An examination is required for a person so committed every six months, and the head of the mental hospital may at any time discharge a patient when he feels the patient no longer needs hospitalization. There is no need for a jury hearing.
By specific provision in the Mental Health Code, rules for discharge, furlough, and transfer are made not applicable to a person committed under the Criminal Code of Procedure. Petitioner alleges that his confinement under Art. 46.02 violates both the Equal Protection and Due Process of Law guarantees of the Constitution, and asks for various individual relief on that basis. He also brings a class action on behalf of all persons who have been committed under Art. 46.02 as the “insane insane” and who are currently being treated at Rusk State Mental Hospital under the care of Respondent, Dr. Lex Neill. A denial of Equal Protection of the laws on behalf of the class is alleged, and a three-judge court requested to consider the constitutionality of the standards of Art. 46.02 in so far as they provide for confinement, treatment, and release of those committed under that article. An injunction against respondent and his agents from enforcement of the statute is asked.
We agree with petitioner that the provisions of Article 46.02 deny petitioner Equal Protection of the Law in so far as treatment and release are concerned, but as to provisions relating to commitment we disagree.
COMMITMENT
Discussing first the standards providing for commitment it should be pointed out that Equal Protection does not require that all persons be dealt with identically. What it does require is that any distinctions which are made must have relevance to the purpose for which the classification is made. Baxstrom v. Herold, 383 U.S. 107, 111, 86 S.Ct. 760, 15 L.Ed.2d 620 (1966). Further, not all situations requiring Due Process require the same procedural safeguards. As pointed out in Morrissey v. Brewer, 408 U.S. 471, 481, 92 S. Ct. 2593, 33 L.Ed.2d 484 (1972), the state has a reasonable interest in releasing only those whom the state considers not potentially dangerous to society. Many courts have recently used this weighing process between state and individual interests in the civil and criminal commitment area to justify differences in procedures. While prior alleged criminal conduct cannot justify denial of procedural safeguards in determining mental illness, Cameron v. Mullen, 128 U.S.App.D.C. 235, 387 F.2d 193 (1967), where a person chooses to bring up the issue of past sanity, procedural differences have often been justified. Lindner v. Peterson, 324 F.Supp. 1261, 1264 (W.D.Miss.W.D.1971); Chase v. Kearns, 278 A.2d 129, 132 (Me.1971); People v. Lally, 19 N.Y.2d 27, 277 N.Y.S.2d 654, 224 N.E.2d 87 (1966).
See generally
50 A.L.R.3rd 144 (1973).
While the criminally committed person must be incapable of making a rational defense and in need of protective custody, the civilly committed person must be found to be mentally ill and in need of protective custody. Under the provisions of Art, 46.02, the defendant himself may put his present and past sanity in issue, and this is in fact what Reynolds did. As to past insanity, once the defendant brings it up as an issue, he then proceeds to prove it himself. In
proving his own recent past mental insanity to relieve himself from the burden of an indictment, the defendant can be said to be voluntarily placing himself in a class which can be treated differently persuant to a legitimate state classification. State ex rel. Schopf v. Schubert, 45 Wis.2d 644, 173 N.W.2d 673, 677 (1970). What the defendant essentially does, then, is to provide the court with evidence of his own recent past mental illness. This serves to make the necessity for a finding of mental illness for those criminally committed moot, and the close equivalence between criminal and civil commitment standards can be seen.
In some instances, the criminally committed person actually receives greater procedural safeguards than does the civilly committed person. Commitment procedures in civil cases may be started by any adult person who has an alleged interest in having the commitment take place, Tex. Mental Health Code Ann. art. 5547-41 (1958), while in a criminal commitment all initiatives are taken either by the defendant or by the court. Tex. Code Crim.Proc. art. 46.02 (Supp.1974). The criminally committed person has a right to have his present sanity tried by a jury, and while a civilly committed person has the same right, it can be waived for him by next of kin. Tex. Mental Health Code Ann. art. 5547-45 (1958). When the element of substantial mental impairment is seen in the light of being proven by the defendant himself, the criminally committed is entitled to three prerequisites before commitment, while for the civilly committed there are only two. All reasonable procedural safeguards, such as absolute right to have counsel, are also afforded the criminally committed. The guarantees and rights afforded the criminally committed certainly do not suffer when compared to those afforded the civilly committed in so far as commitment is concerned.. When the combination of events leading to criminal commitment of the “insane insane” is viewed as a whole (sufficient probable cause for an indictment to issue against the former defendant, recent adjudication of past insanity, and the necessary jury findings), the court finds that the defendant is in fact treated with due regard for Equal Protection, under substantially the same commitment standards for those civilly committed, and where differences may exist, they are reasonably related to legitimate state interests.
TREATMENT
Petitioner in his brief lists a number of instances where criminally and civilly committed persons receive different treatment after confinement.
One of the differences, the requirement involving approval of the committing court for any transfer to take place from Rusk where transfer of a criminally committed person is involved, is mandated by statute. Another difference, the restriction on furlough provileges, comes from an opinion of the Texas State Attorney General. The others ap
pear to be rules developed in line with the differing treatment allowed and even encouraged by the wording of the statutes, particularly Art. 5547-69 of the Mental Health Code.
As to treatment in general, the Mental Health Code, Art. 5547-70, provides that patients committed under the civil commitment procedures shall receive care and treatment in accordance with the highest medical practice, and further that accepted psychiatric treatment and therapy should be provided. The criminal statutes provide no standards or requirements for treatment, and the jury which determines the inability to stand trial and need for protective custody of the defendant provides no recommendations or guidelines on what the committed person should be treated for or what goals his treatment should be oriented towards.
The court finds that for several reasons, the treatment afforded criminally committed persons does not measure up to Constitutional standards. Recent cases have followed the overwhelming professional psychiatric and juridical insistance that treatment of some sort must be afforded those confined for treatment of mental illness.
Further, with a view to the different treatment allowed for civilly and criminally committed persons which continues after a point where any reasonable basis for different treatment exists, there is a denial of equal protection to those criminally committed.
The nature of the commitment of a person confined under Art. 46.02, while certainly not being civil, is still difficult to classify as criminal in a strict sense. The person has been acquitted of criminal responsibility, and is in no sense a person charged with a crime, by the terms of the statute itself.
The confinement may be termed to have taken place under the state’s police, depending on the exact basis for the finding of the jury on the matter of need for commitment. But what is important is not the exact basis for commitment, but rather what the ultimate goal of the confinement ought to be, i. e., the rehabilitation of the individual as a functioning and productive member of society. The purpose of involuntary criminal commitment should be treatment, not punishment. Rouse v. Cameron, 125 U.S.App.D.C. 366, 373 F.2d 451, 452 (1966). The court there stated that “[ajbsent treatment, the hospital is ‘transform (ed) . . . into a penitentiary where one could be held indefinitely for no convicted offense . . .
quoting
Ragsdale v. Overholser, 108 U. S.App.D.C. 308, 281 F.2d 943, 950 (1960). This would certainly be a situation most contrary to basic constitutional principles.
While we are not here dealing with an absence of treatment, the court is faced with a situation where the circumstances under which a person is confined are not suitable to the ends of the confinement. Not only does Art. 46.02 itself lack any mandate or standards for treatment; a comparison with treatment afforded whose who are civilly
committed shows that other serious failures exist.
The unjustified restriction on transfer provided for in 46.02, and the other striking differences in treatment provided for criminally and civilly committed persons create a denial of due process and equal protection in that treatment is unreasonably withheld from one group of persons whose treatment goals are the same as another group which is allowed treatment and rehabilitative help.. There is no aspect of punishment in either commitment, and it hardly seems possible that the state can justify failing to help the criminally committed reach release goals.
Such a failure to provide assistance in achieving release goals in essence may provide for commitment of an indefinite duration for those criminally committed. As stated in Jackson v. Indiana, infra, 406 U.S. at 738, 92 S.Ct. at 1858, where no inquiry was made into whether or not the state could even help a criminally committed person achieve the set release criteria,
“At the least, due process requires that the nature ... of commitment bear some reasonable relation to the purpose for which the individual is committed.”
Where there is a failure of sufficient affirmative action by the state to help a committed person attain the standard set for release, under circumstances where the person is one who is not convicted of a crime, such lack of treatment is unconstitutional. At least to the extent that civilly committed persons are afforded treatment helpful to release goals, and such treatment is withheld from criminally committed persons, there exists a denial of equal protection absent a compelling state interest in withholding the treatment.
RELEASE
The differences in the release procedures for civilly and criminally committed persons have previously been pointed out. Briefly, under Art. 46.02, a confined person may not be released without approval of the committing court, and a jury determination that the committed person is no longer in need of protective confinement is necessary for release. Application for release can only come at 180 day intervals if from the head of the hospital, and one year intervals if from the patient himself. A civilly committed person, under the Mental Health Code, may be released at any time the head of the hospital feels the patient no longer needs hospitalization, with no standard set for release. The court finds that the reasonable state interests which justify differences in commitment standards and procedures do not carry over so as to justify the differing release standards and procedures.
In viewing the reasoning of the Supreme Court in Baxstrom v. Herold, 383 U.S. 107, 86 S.Ct. 760, 15 L.Ed.2d 620 (1966) and Jackson v. Indiana, 406 U.S. 715, 92 S.Ct. 1845, 32 L.Ed.2d 435 (1972), it can be seen that there is an increasing concern for the criminally confined person who may not be able to benefit from further confinement, but who cannot meet the stricter standard of release generally required under criminal release statutes. Although the state may have an interest at the time of commitment in assuring that one who has recently plead and'proved his insanity is not still insane or dangerous, and thereby commit him on different standards than those used for civil commitment, this state interest dissolves once it may be determined that such person is not dangerous. The state interest becomes even more tenuous when it becomes evident that the confined person cannot benefit from further confinement. Jackson v. Indiana,
supra,',
Baxstrom v. Herold, supra; Greenwood v. United States, 350 U.S. 366, 76 S.Ct. 410, 100 L.Ed. 412 (1956).
Where a civilly committed person could be instantly released under many circumstances, the criminally committed person would still have to prove his sanity before a jury. As shown in Hefley v. State, 480 S.W.2d 810, (Ft.
Worth — Civ.App.1972), even where several qualified medical personnel believe a former defendant to be suitable for release, he may be frustrated in gaining his liberty by a jury which can believe other evidence. Where the state is willing to allow the head of a mental hospital to decide the issue of release for a civilly committed person, it must not impose unreasonable burdens for release on a person who has been criminally committed. Any distinctions which were relevant for the purposes of commitment, such as the proving by the former defendant of his recent past insanity, have disappeared, and the differences which exist in release standards and procedures must be adjusted to reflect the equal footing on which civilly committed persons and the “insane insane” stand after those differences have disappeared.
The state of Texas is hereby enjoined from initiating or continuing treatment promulgated or mandated under Art. 46.02 of the Texas Code of Criminal Procedure. The state is further enjoined from using the release standards set out under Art. 46.02.