State v. Anderson ( 2015 )

******************************************************
The ‘‘officially released’’ date that appears near the
beginning of each opinion is the date the opinion will
be published in the Connecticut Law Journal or the
date it was released as a slip opinion. The operative
date for the beginning of all time periods for filing
postopinion motions and petitions for certification is
the ‘‘officially released’’ date appearing in the opinion.
In no event will any such motions be accepted before
the ‘‘officially released’’ date.
All opinions are subject to modification and technical
correction prior to official publication in the Connecti-
cut Reports and Connecticut Appellate Reports. In the
event of discrepancies between the electronic version
of an opinion and the print version appearing in the
Connecticut Law Journal and subsequently in the Con-
necticut Reports or Connecticut Appellate Reports, the
latest print version is to be considered authoritative.
The syllabus and procedural history accompanying
the opinion as it appears on the Commission on Official
Legal Publications Electronic Bulletin Board Service
and in the Connecticut Law Journal and bound volumes
of official reports are copyrighted by the Secretary of
the State, State of Connecticut, and may not be repro-
duced and distributed without the express written per-
mission of the Commission on Official Legal
Publications, Judicial Branch, State of Connecticut.
******************************************************
STATE OF CONNECTICUT v. FRANCIS ANDERSON
(SC 19399)
Rogers, C. J., and Palmer, Zarella, Eveleigh, McDonald,
Espinosa and Robinson, Js.
Argued January 15—officially released November 3, 2015
Monte P. Radler, public defender, with whom was
Cynthia Love, assistant public defender, for the appel-
lant (defendant).
Nancy L. Walker, deputy assistant state’s attorney,
with whom, on the brief, were Peter A. McShane, state’s
attorney, Jeffrey Doskos, senior assistant state’s attor-
ney, and Alanna D. Tynan, deputy assistant state’s
attorney, for the appellee (state).
Nancy B. Alisberg filed a brief for the Office of Pro-
tection and Advocacy for Persons with Disabilities as
amicus curiae.
Proloy K. Das filed a brief for the National Crime
Victim Law Institute as amicus curiae.
Opinion
ZARELLA, J. This case raises the questions of
whether a trial court may set a monetary bond as a
condition of release when an insanity acquittee is
charged with committing new, violent crimes while
housed at a maximum security psychiatric facility and,
if the acquittee cannot post that bond, whether he may
be held in the custody of the Commissioner of Correc-
tion at a prison while awaiting trial on the new charges.
After concluding that this matter presented issues of
substantial public interest and that further delay may
work a substantial injustice, the Chief Justice granted
the request of the defendant, Francis Anderson, to file
an expedited, interlocutory appeal pursuant to General
Statutes § 52-265a.1 The defendant thereafter appealed
from the trial court’s order requiring, as a pretrial condi-
tion of his release, that he post a $100,000 cash or surety
bond. He claims that, under the circumstances of this
case, the trial court’s imposition of a monetary bond
and, after he was unable to post that bond, his subse-
quent transfer to the custody of the Commissioner of
Correction, amounted to violations of his constitutional
rights to (1) bail, pursuant to article first, § 8, of the
constitution of Connecticut,2 and (2) procedural due
process, pursuant to the fourteenth amendment to the
United States constitution.3 We disagree with each of
the defendant’s claims and, accordingly, affirm the trial
court’s order setting a monetary bond as a condition
of his release.
The following undisputed facts and procedural his-
tory are relevant to this appeal. The defendant, who is
forty-six years old, has an extensive history of psychiat-
ric problems and involvement with the criminal justice
system. He has spent much of his adult life either incar-
cerated or in other institutionalized settings.4 Following
an incident that occurred on or about July 6, 2012, the
defendant was charged with assault of a correction
officer, breach of the peace and failure to submit to
fingerprinting.5 The defendant subsequently was found
not guilty of these charges by reason of mental disease
or defect.6 On August 15, 2013, the trial court, McMahon,
J., committed the defendant to the custody of the Com-
missioner of Mental Health and Addiction Services. The
defendant was transferred to the Whiting Forensic Divi-
sion of Connecticut Valley Hospital (hospital), where he
received a psychiatric evaluation pursuant to General
Statutes § 17a-582.7 The October 23, 2013 report
resulting from that evaluation recommended that the
defendant be returned to prison. On November 18, 2013,
Judge McMahon disagreed with the hospital’s recom-
mendation and, consistent with the contrary recom-
mendation of an independent evaluator sought by the
defendant pursuant to § 17a-582 (c),8 ordered that the
defendant be committed to the custody of the Psychiat-
ric Security Review Board (board) and confined at the
hospital for a period not exceeding ten years.9 On Febru-
ary 7, 2014, the board held the defendant’s initial com-
mitment hearing, after which it concluded that he had
a psychiatric illness that required care, custody and
treatment. It concluded further that he had a psychiatric
disability to the extent that his discharge would consti-
tute a danger to himself or others, and that he required
confinement in a maximum security setting. Accord-
ingly, the board ordered that the defendant remain con-
fined at the hospital under maximum security condi-
tions.10
Upon arriving at the hospital, the defendant allegedly
commenced a pattern of assaulting other patients and
hospital staff. As a result of his conduct on various
dates from October, 2013, through February, 2014, he
was charged with several misdemeanors.11 Thereafter,
in April, 2014, he was charged with, inter alia, two
counts of assault of health-care personnel, a class C
felony. See General Statutes § 53a-167c. In connection
with all but one of these charges, the defendant was
released on a promise to appear and ordered returned
to the hospital.12 Also, in April, 2014, the state filed a
motion for bond review, in which it requested that the
trial court modify the defendant’s existing conditions
of release and impose an ‘‘appropriate’’ monetary bond.
The defendant filed an opposition to the state’s motion
and an accompanying memorandum of law, arguing
therein that the court lacked the authority to impose a
monetary bond under the circumstances of this case.
The parties attached exhibits to these filings, including
the hospital’s October 23, 2013 report concerning its
psychiatric evaluation of the defendant, several reports
from the defendant’s independent psychiatric evalua-
tor, the transcript of the commitment hearing before
the board and the board’s report recommending that the
defendant be confined in a maximum security setting.
On June 18, 2014, the trial court, Gold, J.,13 concluded
that, although the defendant was a confined insanity
acquittee, the court retained the authority, conferred
by General Statutes § 54-64a14 and Practice Book § 38-
4,15 to set a monetary bond upon his commission of
new offenses in the hospital setting, particularly for the
purpose of ensuring the safety of other persons. The
court then scheduled an evidentiary hearing on the
state’s motion for bond review to consider whether the
defendant’s existing conditions of release should be
modified. Before that hearing could occur, however,
the defendant was charged with another felony count
of assault of health-care personnel, as well as three
additional misdemeanors. On August 25, 2014, at the
defendant’s arraignment on those charges, the court
set a bond in the amount of $100,000, cash or surety.
Because the defendant was unable to post that bond,
he was transferred to the custody of the Commissioner
of Correction.16 See General Statutes § 54-64a (d). The
court directed that the mittimus reflect that the defen-
dant required mental health treatment and that he
should be housed and monitored in a way to ensure,
to the extent possible, the safety of other inmates and
correction personnel. The defendant’s appeal to this
court, pursuant to certification by the Chief Justice,
ultimately followed.17
At a subsequent hearing to address the defendant’s
motion for stay of the trial court’s order setting a mone-
tary bond pending disposition of this appeal,18 the court
elaborated on its reasons for that order. It reiterated
its belief that it ‘‘retain[ed] the inherent authority to set
bond and to establish conditions of release, including
financial conditions, even as to insanity acquittees who
are alleged to have committed new crimes during their
period of insanity commitment.’’ The court reasoned
further that a rule to the contrary ‘‘would effectively
deprive the court of its right—in fact, its obligation—
to set conditions of release that are necessary to ensure
that the safety of other persons will not be endangered.’’
Moreover, according to the court, such a rule ‘‘would
mean that an insanity acquittee, regardless of the fre-
quency and seriousness of his . . . new crimes com-
mitted during the commitment period, would be free
to commit those crimes, confident that he would be
ultimately returned to the same facility to be placed,
again, among the same staff and same patients that [he
allegedly] victimized in the first instance.’’ The court
observed that the defendant allegedly committed seven
assaults on seven separate people at seven different
times.
The trial court further explained that, as authorized
by Practice Book § 38-4 (b), it had considered the defen-
dant’s history of violence and the risk posed to the
physical safety of the staff and other patients at the
hospital, and had concluded that financial conditions of
release were necessary to ensure their safety. Moreover,
the court indicated that it had considered the rights of
victims afforded by the state constitution, particularly
their right to be protected from an accused.19 Addition-
ally, the court reasoned that, even if the defendant had
a right to psychiatric treatment, it was not an unquali-
fied and inalienable right to a certain type of treatment,
and the nature of the treatment afforded to him had to
be determined with reference to the management issues
that he presented, with his interests weighed against
the interests of other patients who also were entitled
to treatment. Finally, the court noted that, pursuant
to its order, the defendant was to receive psychiatric
treatment while in the custody of the Commissioner of
Correction, and correction officials remained free to
consult with the hospital and the board regarding that
treatment. The defendant’s appeal to this court fol-
lowed.
The defendant claims on appeal that the trial court’s
order setting a monetary bond as a condition of release
and, because he was unable to post that bond, his subse-
quent transfer to the custody of the Commissioner of
Correction were in violation of his constitutional rights,
namely, his right to bail under the state constitution and
his right to procedural due process under the federal
constitution. For the reasons we explain hereinafter, we
disagree with each of these claims. We further conclude
that the defendant’s remedy, if he believes that the
mental health treatment he is receiving while in the
custody of the Commissioner of Correction is constitu-
tionally inadequate, is through an expedited petition
for a writ of habeas corpus challenging the conditions
of his confinement.
I
The defendant claims first that the trial court’s impo-
sition of a monetary bond as a condition of his release
violated his right to bail as guaranteed by article first,
§ 8, of the constitution of Connecticut. According to
the defendant, under the circumstances of this case,
the court’s setting of a monetary bond pursuant to § 54-
64a and Practice Book § 38-4 amounted to impermissi-
ble preventive detention. Specifically, the defendant
contends, the fundamental purpose of bail is to ensure
the subsequent appearance of the accused and not to
protect the public from a dangerous accused. The defen-
dant argues that, because, as a confined insanity acquit-
tee, his appearance in court essentially was assured,
the court’s setting of a monetary bond was not permissi-
ble. We do not agree.20
We begin with the applicable standard of review.
Typically, ‘‘[t]he determination of an appropriate pre-
trial bond is a matter within the sound discretion of the
trial court’’; (internal quotation marks omitted) State v.
McDowell, 241 Conn. 413, 415, 696 A.2d 977 (1997); and
appellate review of an order setting such a bond is
limited to consideration of whether the trial court
abused its discretion. See id. To the extent the defen-
dant’s claim requires us to construe either the meaning
or applicability of constitutional or statutory provisions,
however, our review is plenary. See, e.g., Rodriguez v.
Testa, 296 Conn. 1, 7, 993 A.2d 955 (2010). Additionally,
we conduct our review of the defendant’s claim that
§ 54-64a was unconstitutionally applied to him ‘‘mindful
that legislative enactments carry with them a strong
presumption of constitutionality . . . . Consequently,
a party challenging the constitutionality of a validly
enacted statute bears the heavy burden of proving the
statute unconstitutional beyond a reasonable doubt.’’
(Citation omitted; internal quotation marks omitted.)
Hammond v. Commissioner of Correction, 259 Conn.
855, 876, 792 A.2d 774 (2002).
Article first, § 8, of the constitution of Connecticut
guarantees certain rights to an accused person in ‘‘all
criminal prosecutions,’’ including the right ‘‘to be
released on bail upon sufficient security, except in capi-
tal offenses, where the proof is evident or the presump-
tion great . . . .’’ This court has interpreted the
constitutional bail provision strictly, concluding that,
‘‘in all cases, even capital cases not falling within the
[stated] exception, bail in a reasonable amount should
be ordered.’’ State v. Menillo, 159 Conn. 264, 269, 268
A.2d 667 (1970); see also State v. Ayala, 222 Conn. 331,
342–43, 610 A.2d 1162 (1992) (‘‘[a criminal] defendant
has a fundamental constitutional right to bail pending
trial in all [cases] but [those involving] certain capital
offenses’’).
Although we indicated in Menillo that the primary
purpose of bail is to secure an accused person’s pres-
ence at trial; State v. Menillo, supra, 159 Conn. 269;
we later acknowledged, after reviewing Connecticut’s
unique constitutional history, the additional customary
purpose of ensuring a defendant’s good behavior during
the pretrial period. See State v. Ayala, supra, 222 Conn.
350–51; cf. State v. Bates, 140 Conn. 326, 330, 99 A.2d 133
(1953) (‘‘ ‘[u]pon admission to bail,’ ’’ accused remains
within constructive custody of law).21
As we explained in Ayala, Connecticut’s constitu-
tional bail provision, which first appeared in the consti-
tution of 1818 in substantially similar form,22 has deep
roots in our preconstitutional history.23 See State v.
Ayala, supra, 222 Conn. 349–50. A right to bail provision
first appeared in a 1672 legislative enactment and, by
1750, was included in our statutory declaration of rights,
where it remained until the creation of a constitutional
declaration of rights in article first of the 1818 constitu-
tion.24 See id., 350–51. The preconstitutional provision
declared that ‘‘no man’s person shall be restrained, or
imprisoned, by any authority whatsoever, before the
law hath sentenced him thereunto, if he can and will
give sufficient security, bail, or mainprize for his appear-
ance and good behaviour in the mean time, unless it
be for capital crimes, contempt in open court, or in
such cases wherein some express law doth allow of,
or order the same.’’ (Emphasis added.) Public Statute
Laws of the State of Connecticut (1808) tit. I, § 4, p.
24. Neither the 1818 constitution nor any subsequent
constitution made any express reference to either
appearance or good behavior as a purpose of bail. State
v. Ayala, supra, 350–51. As we observed in Ayala, how-
ever, there is ‘‘no evidence . . . that the framers of the
1818 constitution intended to abandon the customary
purposes of bail that were in effect at the time of the
adoption of the constitution and had been for at least
145 years’’; id., 351; particularly because the 1818 consti-
tution was intended to enshrine rights already in exis-
tence by virtue of statute and the common law. See id.
In Ayala, we also reviewed Connecticut’s bail stat-
utes following the enactment of the 1818 constitution
and noted that they initially, like the new constitutional
provision, were silent as to the purposes of bail. See id.;
see also Public Statute Laws of the State of Connecticut
(1839) tit. XX, c. I, § 126, p. 173; Public Statute Laws
of the State of Connecticut (1821) tit. 22, § 97, p. 171.
In 1849, however, language was added to provide that
bail was conditioned on a defendant’s appearance in
court, and that language remained in the statutes there-
after. State v. Ayala, supra, 222 Conn. 351;25 see Revised
Statutes of the State of Connecticut (1849) tit. VI, c.
XII, § 163, pp. 259–60. We then referred to the addition
to the General Statutes of nonfinancial conditions of
release in 1981 and concluded that the use of those
conditions, ‘‘in addition to or in lieu of bond,’’ had
‘‘broadened the focus of the purposes of bail to recog-
nize, once again, that bail is a method for ensuring a
defendant’s good behavior while on release,’’ as well
as a method of securing his appearance in court. State
v. Ayala, supra, 351.
Further research into Connecticut’s statutory history
provides additional support for the notion that the impo-
sition of a bond for the purpose of ensuring public
safety is a constitutionally sound practice. Specifically,
both prior to and following the adoption of the 1818
constitution, justices of the peace were statutorily
authorized to require persons accused of certain disrup-
tive or violent behaviors to provide sureties of ‘‘the
peace and good behavior,’’ and to imprison those who
failed to provide the ordered security. Public Statute
Laws of the State of Connecticut (1821) tit. 21, § 36,
pp. 147–48; see also Public Statute Laws of the State
of Connecticut (1808) tit. CXXV, c. I, §§ 4–6, pp. 545–
46.26 The historical notes to the 1808 provision indicate
that statutory authority for sureties of the peace and
good behavior has existed since 1698. Public Statute
Laws of the State of Connecticut (1808) tit. CXXV, c.
I, §§ 4 and 5, p. 546 nn.4 and 5; see also Sturges v.
Sherwood, 15 Conn. 149, 151 (1942). This court has
explained that the ‘‘proceedings authorized [under
these statutory provisions] were intended to prevent
the commission of a crime anticipated, rather than to
punish a crime committed.’’ Sturges v. Sherwood, supra,
151. Provisions for sureties of the peace and good
behavior were carried forward in each subsequent revi-
sion of the General Statutes, and, in fact, statutory
authority for a trial court to order them exists today.
See General Statutes § 54-56f.27 The presence of statutes
authorizing sureties of the peace and good behavior
both prior to, and since, the adoption of the 1818 consti-
tution, along with statutes authorizing bail to ensure a
defendant’s appearance, clearly establishes that both
purposes are constitutionally acceptable reasons for a
court to require financial security from an accused indi-
vidual.28
Consistent with these dual purposes, bail reform mea-
sures were undertaken in 1990 and resulted in the
amendment of statutes governing bail and pretrial
release. Specifically, § 54-64a was amended to require
trial courts, when setting nonfinancial and financial
conditions of release for individuals charged with most
felonies, to consider ‘‘what conditions of release will
reasonably assure the appearance of the arrested per-
son in court and that the safety of any other person
will not be endangered . . . .’’ (Emphasis added.) Pub-
lic Acts 1990, No. 90-213, § 51 (P.A. 90-213), codified as
amended at General Statutes (Rev. to 1991) § 54-64a
(b) (2). As part of the same public act, the legislature
added § 54-64f, which, in certain cases, provides for the
revocation of an accused’s pretrial release if there is
an adequate showing that he or she has violated the
conditions previously imposed ‘‘and that the safety of
any other person is endangered while the [accused] is
on release . . . .’’ (Emphasis added.) P.A. 90-213, § 53,
codified at General Statutes (Rev. to 1991) § 54-64f (b).29
In State v. Ayala, supra, 222 Conn. 331, after conclud-
ing that bail in Connecticut historically had served dual
purposes; see id., 349–53; we upheld the application of
§ 54-64f against a challenge under article first, § 8, by
a defendant whose pretrial release had been revoked
upon his arrest for the commission of new, violent
crimes. See id., 333–35, 353. We reasoned, additionally,
that the defendant’s constitutional right to bail had not
been infringed because he initially had been released
on bail, although he ultimately, by virtue of his more
recent criminal behavior, had forfeited his right to be
released.30 Id., 348–49.
In light of the foregoing, we conclude that the defen-
dant’s constitutional challenge must fail. To begin, the
defendant was not actually denied bail but, rather, was
unable to post the bail that the trial court, in its discre-
tion, properly set. Accordingly, as in Ayala, the defen-
dant in this case was afforded the opportunity for
release that constitutionally was required.31 Although
the defendant suggests that the amount of bail that the
trial court set was unreasonable due to his indigence,
it is established that ‘‘a reasonable amount [of bail] is
not necessarily an amount within the power of an
accused to raise’’ but, rather, an amount that is reason-
able under all of the relevant circumstances.32 State v.
Menillo, supra, 159 Conn. 269. Additionally, when set-
ting bail, the trial court properly considered the factors
set forth in § 54-64a (b) (2) and how those factors bore
on the issue of the danger that the defendant posed
to other persons. In other words, the court correctly
considered the need to ensure the safety of others,
regardless of whether the defendant was a potential
flight risk. The defendant was charged with a felony in
connection with his alleged assault of and harm to a
health-care worker after recently accruing a string of
misdemeanor and felony charges for similar conduct
directed at multiple victims on multiple occasions, over
a period of time spanning less than one year. Pursuant
to the statutory directive, and consistent with Ayala, the
court concluded that ‘‘[t]he nature and circumstances of
the offense’’; General Statutes § 54-64a (b) (2) (A); ‘‘the
number and seriousness of charges pending against the
[defendant]’’; General Statutes § 54-64a (b) (2) (H); and
‘‘the [defendant’s] history of violence’’; General Statutes
§ 54-64a (b) (2) (J); suggested that he continued to pose
a serious risk to the safety of staff and patients at the
hospital, particularly the victims of the assaults for
which he had been charged, who constitutionally were
entitled to be protected from him. See Conn. Const.,
amend. XXIX (victim of crime has ‘‘the right to be rea-
sonably protected from the accused throughout the
criminal justice process’’). Accordingly, the trial court
acted within its discretion in requiring a substantial
monetary bond as a condition of the defendant’s
release.
In sum, the trial court properly set a monetary bond
as a condition of the defendant’s release as a means
to ensure the safety of other persons. We conclude,
therefore, that the trial court did not deny the defendant
his right to bail under article first, § 8, of the constitution
of Connecticut. We now turn to the defendant’s
remaining claim on appeal.
II
In his initial brief to this court, the defendant claimed
that his transfer from the hospital to prison, that is,
from the jurisdiction of the board to the custody of the
Commissioner of Correction, violated his rights to both
substantive and procedural due process.33 According to
the defendant, he had certain treatment rights by virtue
of his status as an insanity acquittee, and by virtue of
certain statutes, regulations and case law governing
such persons, and he wrongfully was deprived of those
rights as a result of his transfer to the custody of the
Commissioner of Correction after his alleged commis-
sion of additional crimes and his failure to post bond.
The defendant contended further that the transfer was
effected without appropriate procedural safeguards,
because no explicit statutory mechanism or jurispru-
dential guidance exists to govern the transfer of an
insanity acquittee to a correctional facility on the
ground that he poses a danger to others. He suggested
that, at a minimum, a full evidentiary hearing is neces-
sary, at which there could be consideration of his treat-
ment rights and the hospital’s ability to house him
safely. In his reply brief and at oral argument, however,
the defendant conceded that the treatment rights to
which he had referred were not absolute,34 and he clari-
fied that his challenge was to the procedures that had
been employed to deprive him of those rights. Accord-
ingly, we consider his substantive due process claim to
be abandoned. With respect to the defendant’s proce-
dural due process claim, the state contends that the
defendant has not established any constitutional viola-
tion because, while represented by counsel, he had
multiple hearings, including a bond hearing at which
the relevant factors were considered, and expedited
appellate review, which he pursued, and there were
other procedures available to him through which he
could have contested the necessity of his detention but
did not. We agree with the state.35
We begin with the well settled general principles gov-
erning a procedural due process claim. ‘‘[F]or more
than [one] century the central meaning of procedural
due process has been clear: Parties whose rights are
to be affected are entitled to be heard . . . . Due pro-
cess, unlike some legal rules, is not a technical concep-
tion with a fixed content unrelated to time, place and
circumstances. . . . Instead, due process is a flexible
principle that calls for such procedural protections as
the particular situation demands.’’ (Internal quotation
marks omitted.) Barros v. Barros, 309 Conn. 499, 507–
508, 72 A.3d 367 (2013). For this reason, a due process
analysis is ‘‘inherently fact-bound’’ and focused on the
particular circumstances of the case at hand. (Internal
quotation marks omitted.) State v. Long, 268 Conn. 508,
523, 847 A.2d 862, cert. denied, 543 U.S. 969, 125 S. Ct.
424, 160 L. Ed. 2d 340 (2004).
‘‘Due process analysis begins with the identification
of the life, liberty or property interest at stake.’’ State
v. Campbell, 224 Conn. 168, 181, 617 A.2d 889 (1992),
cert. denied, 508 U.S. 919, 113 S. Ct. 2365, 124 L. Ed.
2d 271 (1993). In order to prevail on a fourteenth amend-
ment procedural due process claim based on the depri-
vation of a liberty interest, a party must establish: ‘‘(1)
[a] liberty interest [that] falls within the protection of
the due process clause; (2) [that] he has been deprived
of that interest; and (3) [that] the deprivation has
occurred without due process of law.’’ Id., 182.
The liberty interest that the defendant claims derives
from provisions of Connecticut statutes governing
insanity acquittees and the hospitalization of mentally
ill persons. Specifically, the defendant cites his right to
be treated at the hospital, a maximum security psychiat-
ric facility, as a result of his acquittal by reason of
mental disease or defect and the board’s subsequent
determinations; see General Statutes § 17a-561 (‘‘[t]he
Whiting Forensic Division of the Connecticut Valley
Hospital shall exist for the care and treatment of [inter
alia, (1)] patients with psychiatric disabilities, confined
in facilities under the control of the Department of
Mental Health and Addiction Services, who require care
and treatment under maximum security conditions’’);
and the statutory bill of rights for psychiatric patients
(patient bill of rights); see General Statutes §§ 17a-540
through 17a-550; which we have held is not applicable to
inmates receiving mental health services in correctional
institutions.36 Wiseman v. Armstrong, 269 Conn. 802,
812, 850 A.2d 114 (2004). But cf. id., 824 (indicating
that §§ 17a-540 through 17a-550 nevertheless would be
applicable to patients receiving treatment in facilities
such as ‘‘Whiting Forensic Division of the Connecticut
Valley Hospital’’).
It is well established that ‘‘[l]iberty interests protected
by the [f]ourteenth [a]mendment may arise from two
sources—the [d]ue [p]rocess [c]lause itself and the laws
of the [s]tates.’’ (Internal quotation marks omitted.)
State v. B.B., 300 Conn. 748, 752, 17 A.3d 30 (2011).
Even when there is no inherent constitutional guarantee
to a particular right, ‘‘[o]nce a state provides its citizens
with certain statutory rights beyond those secured by
the constitution itself, the constitution forbids the state
from depriving individuals of those statutory rights
without due process of law.’’ (Internal quotation marks
omitted.) Id., 753. We agree that, given the defendant’s
status as an insanity acquittee and the determinations
of the board that followed his acquittal, the statutory
provisions he has cited create a right to, or justifiable
expectation in, his treatment at the hospital and certain
protections regarding the contours of that treatment
that may not be available to him during his temporary
period of pretrial detention. Accordingly, he has stated
a cognizable liberty interest, of which he cannot be
deprived without due process of law.37 See, e.g., id.,
754–55; see also Vitek v. Jones, 445 U.S. 480, 488–89,
100 S. Ct. 1254, 63 L. Ed. 2d 552 (1980) (‘‘[o]nce a [s]tate
has granted . . . a liberty interest [via statute] . . .
due process protections are necessary to [e]nsure that
the state-created right is not arbitrarily abrogated’’
[internal quotation marks omitted]).
Once a protected liberty interest is identified, we
must determine the nature and extent of the process
that is due. ‘‘Due process analysis requires balancing
the government’s interest in existing procedures against
the risk of erroneous deprivation of a private interest
inherent in those procedures. . . . All that is necessary
is that the procedures be tailored, in light of the decision
to be made, to the capacities and circumstances of
those who are to be heard . . . to [e]nsure that they
are given a meaningful opportunity to present their
case. . . . Under this analysis, the court must consider
three factors: First, the private interest that will be
affected by the official action; second, the risk of an
erroneous deprivation of such interest through the pro-
cedures used, and the probable value, if any, of addi-
tional or substitute procedural safeguards; and finally,
the [g]overnment’s interest, including the function
involved and the fiscal and administrative burdens that
the additional or substitute procedural requirement
would entail.’’ (Citations omitted; internal quotation
marks omitted.) State v. Patterson, 236 Conn. 561, 571–
72, 674 A.2d 416 (1996); accord Mathews v. Eldridge,
424 U.S. 319, 335, 349, 96 S. Ct. 893, 47 L. Ed. 2d 18 (1976).
We begin with the first Mathews factor, namely, the
private interest of the defendant that was affected by
the trial court’s order. The provisions of the patient bill
of rights, which do not apply to the defendant during
his period of pretrial incarceration, are significant.38
They include not just the protection of a patient’s ‘‘per-
sonal, property [and] civil rights’’; General Statutes
§ 17a-541; rights to communicate by mail and telephone
and to receive visitors; General Statutes §§ 17a-546 and
17a-547; and qualified rights to refuse the administration
of medication and certain treatment; General Statutes
§ 17a-543; but also include a positive, ‘‘meaningful right
to treatment, consistent with the requirements of good
medical practice,’’ in other words, ‘‘not only basic custo-
dial care but also an individualized effort to help each
patient by formulating, administering and monitoring a
specialized treatment plan as expressly mandated by
[General Statutes § 17a-542].’’ (Internal quotation marks
omitted.) Mahoney v. Lensink, 213 Conn. 548, 565, 569
A.2d 518 (1990). In contrast, the medical and psychiatric
treatment rights of a pretrial detainee housed in a cor-
rectional facility generally are governed by federal con-
stitutional standards that bar correction officials from
demonstrating ‘‘deliberate indifference’’ to a detainee’s
‘‘serious medical condition . . . .’’39 Caiozzo v. Kore-
man, 581 F.3d 63, 72 (2d Cir. 2009). Additionally, how-
ever, there is a statutory requirement that the Depart-
ment of Correction provide a person such as the defen-
dant, who has been diagnosed with a mental illness by
a psychiatrist and deemed a danger to himself or others,
with ‘‘individualized, clinically appropriate and cultur-
ally competent mental health services to treat such
[person’s] condition.’’ General Statutes § 18-96a (a).40
In light of the existence of this liberty interest, we
turn next to the question of what process was due
to the defendant before he could be deprived of that
interest. Under the second Mathews factor, we consider
the risk that an unwarranted transfer of the defendant
to the custody of the Commissioner of Correction
occurred under the procedures that were used, and
the probable value, if any, of additional or alternative
safeguards. See State v. Patterson, supra, 236 Conn.
572. Specifically, we consider whether the defendant
had an adequate opportunity to contest his transfer as
unnecessary, or whether additional procedures might
have enhanced the accuracy of the court’s determina-
tion that imposition of a bond was warranted to protect
the safety of others at the hospital.
We first examine the procedures used. The defendant
had ample notice that the state intended to seek a bond,
which potentially could cause him to be transferred,
on the basis of the danger that he posed to the hospital
staff and patients, specifically, because of his repeated,
assaultive conduct at the hospital. This is because, in
the months preceding the trial court’s August 25, 2014
order setting a bond, the parties vigorously litigated the
issue of whether, under the circumstances of the case,
the court possessed the authority to do so. After the
defendant had been arraigned on multiple charges in
connection with multiple incidents at the hospital, the
state filed a motion for bond review, pursuant to which
it sought to have a bond imposed in connection with
the new offenses, and the defendant filed two lengthy
memoranda of law in response. Along with these filings,
a great deal of evidence concerning the defendant’s
psychiatric condition and his violent propensities was
submitted to the court in exhibits, much of it presented
by the defendant. That evidence included (1) a report
prepared by the hospital and three reports prepared by
the defendant’s independent psychiatric evaluator in
connection with the defendant’s prior acquittal by rea-
son of mental disease or defect,41 (2) a transcript of the
commitment hearing before the court, McMahon, J., at
which two physicians from the hospital and the defen-
dant’s independent evaluator had testified, (3) a tran-
script of the defendant’s subsequent commitment
hearing before the board, at which the same witnesses
testified,42 and (4) the board’s memorandum of decision
recommending the defendant’s commitment to the hos-
pital.43 On June 18, 2014, the trial court held a hearing
on the state’s motion for bond review, at which the
defendant was represented by two public defenders
who were permitted to present argument.44
A bond hearing was held on August 25, 2014, after
the defendant was charged with new, violent offenses.
At that hearing, the defendant again was represented
by a public defender. Defense counsel explained to the
court the circumstances of the defendant’s most recent
offenses and argued that he should remain at the hospi-
tal. The court noted the defendant’s multiple existing
cases involving his assaults of people at the hospital
and observed that the hospital’s repeated willingness
to accept the defendant back after these incidents
undercut an assertion, made previously by defense
counsel, that hospital staff could accommodate the
defendant but was experiencing ‘‘sour grapes’’ due to
Judge McMahon’s rejection of the hospital’s earlier rec-
ommendation that the defendant be returned to prison.
After noting that the charged felony had resulted in
injuries to a staff member, the court imposed the bond
at issue, which resulted in the defendant’s transfer to
the custody of the Commissioner of Correction.
Following the court’s setting of a bond, the defendant
moved to stay its imposition pending appeal. In connec-
tion with that motion, the defendant submitted another
lengthy memorandum of law and additional evidence
to the court. Specifically, he submitted his treatment
records from the hospital and those postdating his
transfer. Hearings were held on the defendant’s motion
to stay on September 11 and 24, 2014. At those hearings,
two public defenders appeared for the defendant and
were permitted to present extensive argument.
On September 3, 2014, the defendant, while repre-
sented by a public defender, filed a bail review petition
with the Appellate Court. He attached to that petition
most, if not all, of the material that he previously had
presented to the trial court.
Considering the extensive procedures that were
employed, we conclude that the chance of an erroneous
decision, namely, one involving the failure to give due
consideration to the defendant’s treatment rights and
the deprivation of those rights by the setting of a bond
and his subsequent removal from the hospital when
that course of action was unnecessary, was minimal.
Prior to the decision that ultimately resulted in his trans-
fer, the defendant had multiple hearings, was repre-
sented by one or more competent counsel at all times
and was permitted to present whatever argument and
evidence he believed was pertinent. Accordingly, the
trial court was fully aware of the defendant’s status
as an insanity acquittee, his mental health history, his
position that he should remain at the hospital for treat-
ment and his contention that he was being treated
unfairly by being singled out for prosecution. The court
was equally aware of the defendant’s violent behavior
and the harm that he already had caused to others.
Pursuant to § 54-64a, the trial court’s task, in view of
the fact that the defendant had been charged with a
new felony, was to determine the least restrictive condi-
tion of release that would ensure his future appearance
and ‘‘that the safety of any other person [would] not
be endangered . . . .’’ General Statutes § 54-64a (b) (2).
The very focus of the court’s inquiry, therefore, was on
whether the defendant safely could be released to the
hospital again on a promise to appear, or whether per-
mitting him to remain there, without further conditions,
would create an unacceptable risk of danger to others.
In making this determination, the court, pursuant to
the statutory directive, was required to consider a broad
array of factors, including the defendant’s mental
health, the charges pending against him, the strength of
the evidence supporting those charges, the defendant’s
history of violence and previous convictions, and the
likelihood that he would commit another crime if
released. See General Statutes § 54-64a (b) (2).
Also pursuant to statutory directive, the court was
required to state the basis of its decision on the record;
see General Statutes § 54-64a (b) (3); and the defendant
possessed an immediate right to review of that decision
by the Appellate Court. General Statutes § 54-63g. The
trial court further explicated its reasoning in response
to the defendant’s motion to stay at yet another hearing,
and our rules of practice afforded the defendant imme-
diate review, by this court, of the trial court’s denial of
the stay. See Practice Book § 66-6. In sum, the proce-
dures actually employed contained most if not all of
the standard hallmarks of due process.45 See, e.g., Wil-
kinson v. Austin, 545 U.S. 209, 226–27, 125 S. Ct. 2384,
162 L. Ed. 2d 174 (2005) (explaining that fair notice and
opportunity for response are among most important
procedural mechanisms for avoiding erroneous depri-
vations of liberty interests, that multiple levels of review
further reduce chances of erroneous deprivations and
that requiring decision maker to provide statement of
reasons for decision guards against arbitrariness).
The defendant contends that a more extensive, more
adversarial hearing, perhaps with a greater burden on
the state, was necessary and would have lessened the
chance of an unnecessary loss of his treatment rights.
Although we doubt that this is the case, we note that,
under existing statutory procedures, the defendant had
an additional avenue available to him that he did not
pursue, one that could have afforded him a full eviden-
tiary hearing. Specifically, at any time following his
transfer, the defendant could have filed a motion to
modify the conditions of his release pursuant to General
Statutes § 54-69 (a). In accordance with that provision,
whenever any accused person believes that the amount
of a bond imposed is excessive in relation to its purpose,
he may apply to the trial court and receive a hearing
at which he has the opportunity to prove such exces-
siveness. See General Statutes § 54-69 (a). If the trial
court agrees, it is authorized to modify the bond and/
or impose different conditions of release. See General
Statutes § 54-69 (a). Consequently, if the defendant had
any evidence that the hospital could house him in a
way that ensured the safety of others but, for whatever
reason, was refusing to do so, he clearly had the oppor-
tunity to present that evidence to the court.
Finally, under the third Mathews factor, we consider
the state’s interest, including any burdens that the impo-
sition of additional procedural requirements would
entail. State v. Patterson, supra, 236 Conn. 572. As a
general matter, the state’s interest in protecting its citi-
zens is well established and is particularly acute in the
case of institutionalized individuals in its custody, who
are entitled to the same treatment as the defendant, in
addition to being safe and secure. See, e.g., Youngberg
v. Romeo ex rel. Romeo, 457 U.S. 307, 324, 102 S. Ct.
2452, 73 L. Ed. 2d 28 (1982) (involuntarily committed
persons have ‘‘constitutionally protected interests in
conditions of reasonable care and safety’’); cf. Wilkin-
son v. Austin, supra, 545 U.S. 227 (in prison context,
‘‘[t]he [s]tate’s first obligation must be to ensure the
safety of guards and prison personnel, the public, and
the prisoners themselves’’). Moreover, the state has a
constitutional obligation to protect crime victims from
accused persons. See Conn. Const., amend. XXIX. At
the time of the defendant’s transfer from the hospital
to the custody of the Commissioner of Correction, he
stood accused of multiple, violent crimes against other
patients and staff at the hospital. All of the incidents
underlying the charges against the defendant had
occurred within a relatively short period of time and
had commenced shortly after his arrival at the hospital.
See footnote 11 of this opinion. Furthermore, at the
time of the incident that resulted in the final charges
against the defendant and the court’s imposition of a
bond, a second hearing on the state’s previous motion
for bond review had been scheduled and then post-
poned at the defendant’s request. These circumstances
suggest that any delay attendant to the imposition of
additional procedural requirements or placement of a
higher evidentiary burden on the state would create a
substantial risk of additional injuries to innocent per-
sons.
A balance of the three relevant factors leads us to
conclude that the procedures employed before the
defendant was transferred from the hospital to the cus-
tody of the Commissioner of Correction were adequate
and that the defendant was not deprived of procedural
due process. We are not persuaded that any benefits
that might have accrued from additional procedural
requirements justify a conclusion that those require-
ments were constitutionally required. In fact, the palpa-
ble risk of harm to third parties counsels against them.
The only case of which we are aware that involves
a similar factual pattern lends further support to our
conclusion. In Romero v. Schauer, 386 F. Supp. 851 (D.
Colo. 1974), the United States District Court for the
District of Colorado evaluated the constitutionality of
the procedures employed to transfer patients confined
at a ‘‘[s]tate [h]ospital’’ to a state penitentiary, pursuant
to a statute that authorized such a transfer when a
patient is ‘‘so dangerous that he cannot be safely con-
fined in any institution for the care and treatment of
the mentally ill . . . .’’ (Internal quotation marks omit-
ted.) Id., 854, quoting Colo. Rev. Stat. § 71-2-4 (3) (Cum.
Supp. 1967). One of the patients whose transfer was at
issue was committed as a result of a civil proceeding,
whereas the other, like the defendant in the present
case, was an insanity acquittee. Romero v. Schauer,
supra, 853. The court concluded that the existing proce-
dures, which were highly informal and conducted
entirely by hospital personnel, violated the patients’ due
process rights; id., 855–56; and mandated a more formal
procedure requiring that a potential transferee receive
the assistance of counsel, notice of the basis of the
allegations of dangerousness, a hearing before an
impartial decision maker, a qualified opportunity to pre-
sent witnesses and documentary evidence, and a writ-
ten statement by the decision maker explaining the
evidence relied on and the reasons for the transfer
decision. Id., 858, 862.
Romero is not truly on point in that the patients
subject to transfer, unlike the defendant in the present
case, had not been charged with committing multiple,
violent crimes against other patients and staff while
institutionalized. See id., 857. Moreover, the transfers
at issue in Romero were not, by their nature, limited
in duration; see id.; as is the defendant’s temporary
period of pretrial detention. Because of those differ-
ences, it is safe to conclude that less vigorous proce-
dural protections than those afforded to the patients
in Romero would suffice in the present case. Neverthe-
less, as we previously noted, the protections that the
defendant received essentially were commensurate
with those held to be constitutionally required in
Romero. In sum, the defendant received all of the pro-
cess that was required, and likely more.
As a final matter, we reemphasize that the defendant,
although temporarily in the custody of the Commis-
sioner of Correction, still possesses a right to some
level of psychiatric treatment, even if that treatment is
less than that to which he has become accustomed
during his time at the hospital. See footnotes 35 and 36
of this opinion. Contrary to the defendant’s suggestion,
there is nothing in the record to indicate that he is not
receiving the care to which he, as a pretrial detainee, is
entitled. If, however, at any time, the defendant believes
that the treatment he is receiving is inadequate, he may
pursue an expedited petition for a writ of habeas corpus
challenging the conditions of his confinement. See, e.g.,
Jolley v. Commissioner of Correction, 98 Conn. App.
597, 597–98, 910 A.2d 982 (2006), cert. denied, 282 Conn.
904, 920 A.2d 308 (2007).
The order imposing a monetary bond as a condition
of the defendant’s release is affirmed.
In this opinion EVELEIGH, ESPINOSA and ROB-
INSON, Js., concurred.
1
General Statutes § 52-265a, which allows for expedited, interlocutory
appeals when certain, special circumstances are shown to exist, provides
in relevant part: ‘‘(a) Notwithstanding the provisions of sections 52-264 and
52-265 [governing appeals and writs of error], any party to an action who
is aggrieved by an order or decision of the Superior Court in an action
which involves a matter of substantial public interest and in which delay
may work a substantial injustice, may appeal under this section from the
order or decision to the Supreme Court within two weeks from the date of
the issuance of the order or decision. The appeal shall state the question
of law on which it is based.
‘‘(b) The Chief Justice shall, within one week of receipt of the appeal,
rule whether the issue involves a substantial public interest and whether
delay may work a substantial injustice.
‘‘(c) Upon certification by the Chief Justice that a substantial public
interest is involved and that delay may work a substantial injustice, the trial
judge shall immediately transmit a certificate of his decision, together with
a proper finding of fact, to the Chief Justice, who shall thereupon call a
special session of the Supreme Court for the purpose of an immediate
hearing upon the appeal. . . .’’
Subsequent to the Chief Justice’s granting of the defendant’s application
to appeal pursuant to § 52-265a, we granted the petitions of the Office of
Protection and Advocacy for Persons with Disabilities and the National
Crime Victim Law Institute to appear as amici curiae.
2
Article first, § 8, of the constitution of Connecticut provides in relevant
part: ‘‘In all criminal prosecutions, the accused shall have a right . . . to
be released on bail upon sufficient security, except in capital offenses, where
the proof is evident or the presumption great . . . .’’
3
The fourteenth amendment to the United States constitution, § 1, pro-
vides in relevant part: ‘‘No State shall . . . deprive any person of life, liberty
or property, without due process of law . . . .’’
4
With the exception of a five day period, the defendant had been incarcer-
ated in correctional facilities from age seventeen to age thirty-five. He spent
approximately the next three years in either an inpatient hospital setting
or the community, then was reincarcerated in 2007. He remained incarcer-
ated until the occurrence of the events described hereinafter.
5
At the time of the incident, the defendant was serving a sentence for an
earlier conviction for assault of a correction officer.
6
General Statutes § 53a-13 provides in relevant part: ‘‘(a) In any prosecu-
tion for an offense, it shall be an affirmative defense that the defendant, at
the time he committed the proscribed act or acts, lacked substantial capacity,
as a result of mental disease or defect, either to appreciate the wrongfulness
of his conduct or to control his conduct within the requirements of the
law. . . .’’
7
General Statutes § 17a-582 provides in relevant part: ‘‘(a) When any
person charged with an offense is found not guilty by reason of mental
disease or defect pursuant to section 53a-13, the court shall order such
acquittee committed to the custody of the Commissioner of Mental Health
and Addiction Services who shall cause such acquittee to be confined,
pending an order of the court pursuant to subsection (e) of this section, in
any of the state hospitals for psychiatric disabilities . . . .
‘‘(b) Not later than sixty days after the order of commitment pursuant to
subsection (a) of this section, the superintendent of such hospital . . . shall
cause the acquittee to be examined and file a report of the examination
with the court, and shall send a copy thereof to the state’s attorney and
counsel for the acquittee, setting forth the superintendent’s . . . findings
and conclusions as to whether the acquittee is a person who should be
discharged. . . .’’
8
Pursuant to § 17a-582 (c), following receipt of the hospital’s report,
counsel for the acquittee may seek a separate examination of the acquittee
by a psychologist or psychiatrist of the acquittee’s choice, and any resulting
report from such examination must be filed with the trial court within thirty
days of the filing of the hospital’s report.
9
Pursuant to § 17a-582 (d), the trial court, after receiving the results of
a hospital evaluation conducted pursuant to § 17a-582 (b) and, if the acquittee
requests it, a separate evaluation conducted by a psychologist or psychiatrist
of the acquittee’s choice pursuant to § 17a-582 (c), must conduct a hearing.
After that hearing, the court may find that the acquittee should be either
discharged, conditionally released or confined. See General Statutes § 17a-
582 (e) (1) and (2). ‘‘If the court finds that the acquittee is a person who
should be confined . . . the court shall order the acquittee committed to
the jurisdiction of the board and . . . confined in a hospital for psychiatric
disabilities . . . for custody, care and treatment pending a hearing before
the board pursuant to section 17a-583; provided (A) the court shall fix a
maximum term of commitment, not to exceed the maximum sentence that
could have been imposed if the acquittee had been convicted of the offense
. . . .’’ General Statutes § 17a-582 (e) (1).
10
Pursuant to § 17a-583 (a), ‘‘[t]he board shall conduct a hearing to review
the status of [an insanity] acquittee within ninety days of an order committing
the acquittee to the jurisdiction of the board,’’ and, pursuant to § 17a-583
(b), at that hearing, ‘‘the board shall make a finding and act pursuant to
section 17a-584.’’
General Statutes § 17a-584 directs the board, at the hearing held pursuant
to § 17a-583 (a), to ‘‘make a finding as to the mental condition of the acquittee
. . . considering that its primary concern is the protection of society . . . .’’
It further authorizes the board to find that the acquittee either should be
discharged, conditionally released or confined. See General Statutes § 17a-
584 (1) through (3). ‘‘If the board finds that the acquittee is a person who
should be confined, the board shall order the person confined in a hospital
for psychiatric disabilities . . . for custody, care and treatment.’’ General
Statutes § 17a-584 (3).
General Statutes § 17a-599 provides in relevant part that, ‘‘[a]t any time
the court or the board determines that the acquittee is a person who should
be confined, it shall make a further determination of whether the acquittee
is so violent as to require confinement under conditions of maximum secu-
rity. . . .’’ Pursuant to General Statutes § 17a-561, ‘‘[t]he Whiting Forensic
Division of the Connecticut Valley Hospital shall exist for the care and
treatment of [inter alia] (1) patients with psychiatric disabilities, confined
in facilities under the control of the Department of Mental Health and
Addiction Services, who require care and treatment under maximum security
conditions . . . .’’
11
The record indicates that, as a result of incidents occurring on five
separate dates, the defendant was charged with a total of eleven misdemean-
ors, including one count of unlawful restraint in the second degree, three
counts of assault in the third degree, two counts of threatening in the second
degree, one count of criminal mischief in the third degree, three counts of
disorderly conduct and one count of breach of the peace in the second
degree.
Moreover, the hospital’s October 23, 2013 report indicates that, between
August 24, 2013, and October 1, 2013, while the defendant was being evalu-
ated by the hospital, he engaged in an additional five unprovoked physical
altercations with other patients, as well as other verbal altercations with
both patients and hospital staff. None of these incidents resulted in any
criminal charges against the defendant.
12
As to the charge of threatening in the second degree, the trial court,
Gold, J., imposed a $1000 nonsurety bond.
13
Hereinafter, all references to the trial court are to the court, Gold, J.,
unless otherwise noted.
14
General Statutes § 54-64a provides in relevant part: ‘‘(b) (1) When any
arrested person charged with the commission of [a felony, with certain
listed exceptions] . . . is presented before the Superior Court, said court
shall, in bailable offenses, promptly order the release of such person upon
the first of the following conditions of release found sufficient to reasonably
ensure the appearance of the arrested person in court and that the safety
of any other person will not be endangered: (A) Upon such person’s execu-
tion of a written promise to appear without special conditions, (B) upon
such person’s execution of a written promise to appear with nonfinancial
conditions, (C) upon such person’s execution of a bond without surety in
no greater amount than necessary, (D) upon such person’s execution of a
bond with surety in no greater amount than necessary. In addition to or in
conjunction with any of the conditions enumerated in subparagraphs (A)
to (D), inclusive, of this subdivision, the court may, when it has reason to
believe that the person is drug-dependent and where necessary, reasonable
and appropriate, order the person to submit to a urinalysis drug test and
to participate in a program of periodic drug testing and treatment. The results
of any such drug test shall not be admissible in any criminal proceeding
concerning such person.
‘‘(2) The court may, in determining what conditions of release will reason-
ably ensure the appearance of the arrested person in court and that the
safety of any other person will not be endangered, consider the following
factors: (A) The nature and circumstances of the offense, (B) such person’s
record of previous convictions, (C) such person’s past record of appearance
in court after being admitted to bail, (D) such person’s family ties, (E)
such person’s employment record, (F) such person’s financial resources,
character and mental condition, (G) such person’s community ties, (H) the
number and seriousness of charges pending against the arrested person, (I)
the weight of the evidence against the arrested person, (J) the arrested
person’s history of violence, (K) whether the arrested person has previously
been convicted of similar offenses while released on bond, and (L) the
likelihood based upon the expressed intention of the arrested person that
such person will commit another crime while released.
‘‘(3) When imposing conditions of release under this subsection, the court
shall state for the record any factors under subdivision (2) of this subsection
that it considered and the findings that it made as to the danger, if any, that
the arrested person might pose to the safety of any other person upon
the arrested person’s release that caused the court to impose the specific
conditions of release that it imposed. . . .’’
15
The provisions of Practice Book § 38-4 are similar to those of General
Statutes § 54-64a (b).
16
The Commissioner of Correction thereafter directed that the defendant
be confined at Northern Correctional Institution.
17
Prior to filing his appeal with this court, the defendant filed a petition
for bail review with the Appellate Court pursuant to Practice Book § 78a-
1. The Appellate Court granted the defendant’s petition but denied the relief
requested therein.
18
At this hearing, the trial court denied the defendant’s request for either
an automatic or a discretionary stay, and the defendant thereafter filed with
this court a motion for review of the trial court’s order. See Practice Book
§§ 61-13, 61-14 and 66-6. We granted the motion for review but denied the
relief requested therein.
19
Article first, § 8, of the constitution of Connecticut, as amended by
article seventeen and twenty-nine of the amendments, provides in relevant
part: ‘‘In all criminal prosecutions, a victim . . . shall have . . . the right
to be reasonably protected from the accused throughout the criminal justice
process . . . .’’
20
The defendant also argues that public policy reasons should exempt
him from the imposition of a monetary bond and consequent incarceration
for his inability to post that bond because, by virtue of his status as an
insanity acquittee, he is mentally ill and requires treatment at the hospital.
As we discuss more fully in part II of this opinion, there are competing
public policy objectives that require a balancing of the interests of the
defendant, the state and crime victims. In the end, the temporary incarcera-
tion of the defendant, while not a perfect solution, best serves the interests
of all of the affected parties.
21
As we subsequently observed, a bail bond ‘‘constitutes a contract that
can be forfeited, not only upon the defendant’s failure to appear, but also
upon breach of other conditions in the agreement.’’ (Emphasis added.) State
v. Garvin, 242 Conn. 296, 305, 699 A.2d 921 (1997); see also United States
v. Gigante, 85 F.3d 83, 85 (2d Cir. 1996) (approving bail condition requiring
forfeiture of bail collateral if defendant committed new crime during
release).
22
See Conn. Const. (1818), art. I, § 14 (‘‘[a]ll prisoners shall, before convic-
tion, be bailable by sufficient sureties, except for capital offences, where
the proof is evident, or the presumption great’’).
23
In determining the meaning of provisions in our state constitution, we
have considered, among other things, the language of their historical ante-
cedents. See, e.g., State v. Lamme, 216 Conn. 172, 178–79, 579 A.2d 484 (1990).
24
Although the state’s preconstitutional declaration of rights was statutory
in form, it was ‘‘treated by both the legislature and the people as standing
above ordinary statutes. The [d]eclaration and supplementary statutes relat-
ing to individual rights were grounded in the Connecticut common law
and viewed as inviolate.’’ (Footnote omitted.) C. Collier, ‘‘The Connecticut
Declaration of Rights Before the Constitution of 1818: A Victim of Revolution-
ary Redefinition,’’ 15 Conn. L. Rev. 87, 94 (1982).
25
Ayala mistakenly identifies the year in which such language first appears
as 1949, rather than 1849. See State v. Ayala, supra 222 Conn. 351; see also
Revised Statutes of the State of Connecticut (1849) tit. VI, c. XII, § 163,
pp. 259–60.
26
Contemporaneous case law illustrates the use of sureties of the peace
to ensure good behavior and to protect public safety. See Sturges v. Sher-
wood, 15 Conn. 149, 149 (1842) (preliminary statement of facts and proce-
dural history) (defendant, who had assaulted complainant and then
threatened to harm him, was required to post $750 bond); Darling v. Hubbell,
9 Conn. 350, 351 (1832) (preliminary statement of facts and procedural
history) (defendant, who was accused of maintaining house of bawdry and
ill fame, was required to post $40 bond).
27
General Statutes § 54-56f provides in relevant part: ‘‘Any judge of the
Superior Court may, from his personal knowledge or upon complaint of
another, require sureties of the peace and good behavior from any person
who threatens to beat or kill another or resists or abuses any officer in the
execution of his office or contends with angry words or, by any unlawful
act, terrifies or disturbs any person. When any person complains on oath
to a judge of the Superior Court that he has just cause to fear that another
will imprison, beat or kill the complainant, or procure others to do so, and
that he is under fear of bodily harm, such judge may, if he believes such
person has just cause for such fear, require sureties of the peace and good
behavior from the person so complained of. Upon refusal of the person so
required to find sureties of the peace in any of such cases, such judge
may commit him to a community correctional center to remain until he is
discharged by due course of law or until the next term of the superior court
having criminal jurisdiction in such judicial district, which may make further
order relating to the subject matter of any such offense . . . .’’ (Empha-
sis added.)
28
The dissent does not acknowledge the long-standing existence in Con-
necticut of statutory provisions authorizing sureties of the peace and good
behavior until nearly the conclusion of a lengthy analysis that relies heavily
on dicta and case law from other jurisdictions. According to the dissent,
these provisions are not relevant because they are not part of the criminal
law, and our constitutional bail provision applies only to criminal prosecu-
tions. That assertion is belied by (1) the inclusion of General Statutes § 54-
56f in title 54 of the General Statutes, which governs criminal procedure,
and in chapter 960 of the General Statutes, which addresses information,
procedure and bail, and (2) the directive of § 54-56f to commit one who
fails to provide surety to a community correctional center until legally
discharged or ‘‘until the next term of the superior court having criminal
jurisdiction . . . .’’ (Emphasis added.) Moreover, pursuant to § 54-64a (c)
(4), a court imposing conditions of release on an arrested person is explicitly
authorized to order that person to provide a surety of the peace pursuant
to § 54-56f. Finally, as the dissent acknowledges, this court has described
surety of the peace statutes as ‘‘criminal in . . . nature.’’ In re Bion, 59
Conn. 372, 383, 20 A. 662 (1890). In re Bion was a habeas action brought
after the petitioner was jailed for failing to provide a surety of the peace
in connection with a criminal matter. See id., 372, 374 (preliminary statement
of facts and procedural history). In that case, the surety at issue was condi-
tioned on both the petitioner’s future appearance before the court and the
requirement ‘‘that in the meantime he keep the peace and be of good behavior
to all the citizens of the state, and especially [toward] the . . . [complainant]
. . . .’’ Id., 374 (preliminary statement of facts and procedural history). In
an aside, the decision references the constitutional bail provision and notes
that, in that case, the ‘‘bail’’ was challenged as ‘‘excessive’’ and subsequently
reduced. Id., 389; see also id., 375 (preliminary statement of facts and proce-
dural history). The foregoing demonstrates that Connecticut’s statutes gov-
erning bail and sureties of the peace are not truly separate and apart, as
the dissent suggests, with constitutional strictures applying to one but not
the other.
The dissent contends variously that ‘‘there is no indication in either the
pre-1818 or post-1818 statutes that courts were authorized to set a monetary
bond to protect the public from a defendant perceived to pose a safety risk,’’
that ‘‘for more than 150 years after the adoption of the 1818 constitution, no
Connecticut statute authorized a court to consider public safety in determin-
ing whether to release a defendant on bail until the current language was
added [to § 54-64a] in 1990,’’ and that, ‘‘[t]hroughout the history of Connecti-
cut jurisprudence, there is not a single case in which a Connecticut court
has indicated that a monetary bond may be set in a criminal case for the
purpose of protecting public safety.’’ In light of the consistent, unbroken
inclusion of provisions authorizing sureties of the peace and good behavior
in Connecticut’s statutes from 1698 until today, and case law evidencing
their usage; see footnote 26 of this opinion; the dissent’s repeated assertions
to the contrary are inaccurate.
Finally, even if, as the dissent contends, sureties of the peace truly are
creatures distinct from bonds for appearance, the distinction would do little
to advance the defendant’s claim. It would be irrational to conclude that a
court constitutionally is authorized to detain, for the inability to provide
financial security, an individual not charged with any crime, who poses a
threat to a particular person, but not to detain, for the inability to provide
financial security, a person who has been charged with a felony and likely
poses a danger to the general public. If the constitution permits the former,
it necessarily must permit the latter, even if, for a time, the statutes governing
bail did not explicitly contemplate consideration of the risk that a defendant
would pose a danger to others.
29
I agree with the dissent that the trial court could have elected to revoke
the defendant’s release in an earlier case pursuant to § 54-64f. That, however,
is not the issue before us.
30
Approximately five years before this court decided Ayala, the United
States Supreme Court held that protecting the public from particularly dan-
gerous individuals, pursuant to the federal Bail Reform Act of 1984 (act),
18 U.S.C. § 1341 et seq., was a constitutionally permissible reason for the
outright pretrial detention, without the possibility of bail, of certain accused
individuals. See United States v. Salerno, 481 U.S. 739, 753–55, 107 S. Ct.
2095, 95 L. Ed. 2d 697 (1987). Unlike article first, § 8, however, the eighth
amendment to the United States constitution does not explicitly provide
for a right to bail but only provides that ‘‘[e]xcessive bail shall not be required
. . . .’’ U.S. Const., amend. VIII. In Salerno, the United States Supreme Court
confirmed, as a preliminary matter, that the eighth amendment does not
confer an absolute right to bail but guarantees only that, if bail is imposed,
it cannot be excessive. United States v. Salerno, supra, 754.
31
Because the trial court set a bond, much of the authority on which the
defendant relies, which involves state constitutional provisions similar to
Connecticut’s, is readily distinguishable or otherwise does not support his
claim. See Martin v. State, 517 P.2d 1389, 1390–91, 1397–98 (Alaska 1974)
(finding unconstitutional preventive detention as to one appellant, who had
been refused bail entirely, but not as to other two appellants, and, of those
two, one was detained after conviction because he had violated his probation
and other was held when nonfinancial condition of pretrial release was not
met); In re Underwood, 9 Cal. 3d 345, 346–47, 508 P.2d 721, 107 Cal. Rptr.
401 (1973) (concluding that trial court’s complete denial of petitioner’s
opportunity to post bail on ground that he posed danger to community
violated his constitutional right to bail); State v. Pray, 133 Vt. 537, 542, 346
A.2d 227 (1975) (holding that complete denial of bail to defendants on
ground that they posed danger to public was unconstitutional); see also
Rendel v. Mummert, 106 Ariz. 233, 238–39, 474 P.2d 824 (1970) (upholding
revocation of bail for petitioner’s commission of new offenses, in comparison
to ‘‘outright [pretrial] detention, [for which] no bail is allowed in the first
instance’’); Mello v. Superior Court, 117 R.I. 578, 581–85, 370 A.2d 1262
(1977) (upholding revocation of bail for defendant’s commission of new
crimes while on pretrial release, reasoning, in part, that defendant had not
been denied bail in first instance, as constitutionally required).
The defendant further relies on United States v. Melendez-Carrion, 790
F.2d 984, 988, 1004 (2d Cir.), cert. dismissed, 479 U.S. 978, 107 S. Ct. 562,
93 L. Ed. 2d 568 (1986), for the proposition that safeguarding the community
from a dangerous person is a constitutionally impermissible justification
for pretrial preventive detention. He contends that, consistent with the
historical analysis embraced by that decision, trial courts setting conditions
of release should not consider public safety in general, but only whether
the accused is likely to disrupt the trial process by intimidating or injuring
witnesses or jurors. The reasoning of Melendez-Carrion was rejected, how-
ever, by the United States Supreme Court in Salerno. See United States v.
Salerno, 481 U.S. 739, 748–51, 107 S. Ct. 2095, 95 L. Ed. 2d 697 (1987).
Additionally, the defendant’s contention is belied by the factual context of
State v. Ayala, supra, 222 Conn. 331, against which the holding of that
case must be read. In Ayala, the defendant’s release was revoked not for
intimidating or injuring a witness or juror but for the commission of a new
and unrelated assault on a stranger. See id., 336.
32
The dissent articulates its belief that the state constitution does not
permit preventive detention. While preventive detention is permitted in
certain instances in the federal system, I agree that it is not permitted under
our state constitution except in capital cases. The bond in this matter was
set at $100,000. Notably, the defendant has not asserted a claim under the
eighth amendment to the United States constitution or the portion of article
first, § 8, prohibiting the imposition of ‘‘excessive bail . . . .’’ Moreover, if
the defendant believes that the amount of the bond that the trial court set
was more than necessary to ensure public safety, he may, at any time, file
a motion to modify the conditions of his release pursuant to General Statutes
§ 54-69 (a).
33
The due process clause of the fourteenth amendment to the United
States constitution provides that no state shall ‘‘deprive any person of life,
liberty or property, without due process of law . . . .’’ The United States
Supreme Court has held that the due process clause ‘‘protects individuals
against two types of government action. So-called substantive due process
prevents the government from engaging in conduct that shocks the con-
science . . . or interferes with rights implicit in the concept of ordered
liberty . . . . When government action depriving a person of life, liberty,
or property survives substantive due process scrutiny, it must still be imple-
mented in a fair manner. . . . This requirement has traditionally been
referred to as procedural due process.’’ (Citations omitted; internal quotation
marks omitted.) United States v. Salerno, 481 U.S. 739, 746, 107 S. Ct. 2095,
95 L. Ed. 2d 697 (1987).
34
See General Statutes § 17a-599 (‘‘[a]ny acquittee found so violent as to
require confinement under conditions of maximum security shall not be
confined in any hospital for psychiatric disabilities . . . unless such hospital
. . . has the trained and equipped staff, facilities or security to accommodate
such acquittee’’).
35
As an additional basis for his procedural due process claim, the defen-
dant argues that he had a liberty interest in avoiding transfer from the
hospital to Northern Correctional Institution (Northern), a maximum secu-
rity facility, because that transfer constituted ‘‘ ‘a major change in his condi-
tions of confinement amounting to a grievous loss,’ ’’ and he wrongfully was
deprived of that interest without due process. The defendant cites, among
other cases, Wilkinson v. Austin, 545 U.S. 209, 125 S. Ct. 2384, 162 L. Ed.
2d 174 (2005), in support of his argument. According to the defendant, the
detrimental effects of such a facility on a mentally ill individual are a neces-
sary consideration in any transfer decision, such that procedural safeguards
are required. We decline to consider this argument because it is unsupported
by any competent evidence in the record regarding the actual conditions
of confinement to which the defendant, a pretrial detainee, is subject at
Northern, and how they differ from the conditions to which he was subject
at the hospital. Compare Scarver v. Litscher, 434 F.3d 972, 973–74 (7th Cir.
2006) (relying on factual findings regarding facility conditions made during
preliminary injunction hearing held by District Court), with Romero v.
Schauer, 386 F. Supp. 851, 855 and n.5 (D. Colo. 1974) (making factual
findings based on testimony concerning differences between facilities). We
disagree with the defendant that we appropriately may consider this issue by
relying on law review articles, or on factual findings from extra-jurisdictional
cases concerning the conditions at different correctional facilities at differ-
ent points in time. This court repeatedly has drawn the distinction between
the proper use of extra-record materials, such as social science texts or
journal articles, as ‘‘legislative facts . . . which help determine the content
of law and policy, and adjudicative facts . . . concerning the parties and
events of a particular case. . . . Legislative facts may be judicially noticed
[on appeal] without affording the parties an opportunity to be heard, but
adjudicative facts, at least if central to the case, may not.’’ (Citation omitted;
internal quotation marks omitted.) State v. Edwards, 314 Conn. 465, 478–79,
102 A.3d 52 (2014).
For similar reasons, we cannot rely on most of the material cited by the
Office of Protection and Advocacy for Persons with Disabilities in its amicus
brief, much of which purports to describe conditions in the most restrictive
level of the administrative segregation unit at Northern. Notably, there is
no evidence to indicate that the defendant, a pretrial detainee, has been
placed in this unit. Rather, the records of the Department of Correction
that defense counsel submitted to the trial court in connection with the
defendant’s motion to stay indicated that, upon admission to Northern, the
defendant was assigned to the general population with full privileges.
36
The defendant also mentions the right to be overseen by the board,
citing various provisions of the statutes governing that body; see General
Statutes §§ 17a-582, 17a-592 and 17a-599; and jurisprudence discussing the
board’s function and expertise. We do not consider this claimed right as a
part of our due process analysis, however, because it is not clear from the
record that the defendant, although temporarily in the physical custody of
the Commissioner of Correction, has been deprived of board oversight.
See, e.g., State v. Campbell, supra, 224 Conn. 182 (requiring showing of
deprivation of claimed liberty interest to establish due process violation);
see also State v. Lindo, 110 Conn. App. 418, 424, 955 A.2d 576 (inmate at
correctional institution remained under jurisdiction of board for purposes
of recommitment hearing), cert. denied, 289 Conn. 948, 960 A.2d 1038 (2008).
We note in this regard that insanity acquittees who are eligible for conditional
release or temporary leave from confinement, and who therefore are not
housed in a psychiatric hospital in the physical custody of the Commissioner
of Mental Health and Addiction Services, nevertheless remain under the
jurisdiction of the board. See generally General Statutes §§ 17a-584 through
17a-591. Moreover, as the trial court observed in denying the defendant’s
motion for stay, officials at Northern Correctional Institution are free to
consult with the board regarding the defendant’s treatment.
37
The United States Supreme Court has held that involuntarily committed
individuals ‘‘are entitled to more considerate treatment and conditions of
confinement than criminals whose conditions of confinement are designed
to punish.’’ Youngberg v. Romeo ex rel. Romeo, 457 U.S. 307, 322, 102 S. Ct.
2452, 73 L. Ed. 2d 28 (1982); see also id., 321–24 (examining rights of
involuntarily committed mentally retarded persons). Specifically, such indi-
viduals enjoy ‘‘constitutionally protected interests in conditions of reason-
able care and safety, reasonably nonrestrictive confinement conditions, and
such training as may be required [to effectuate] these interests.’’ Id., 324.
Because Connecticut statutes provide a higher level of protection to involun-
tarily committed insanity acquittees, we analyze the defendant’s due process
claim with reference to those provisions.
We further emphasize that the right of the defendant, as an insanity
acquittee, to be free from punishment does not truly differentiate him from
any other pretrial detainee who has not yet been convicted of a crime. See
Bell v. Wolfish, 441 U.S. 520, 535, 99 S. Ct. 1861, 60 L. Ed. 2d 447 (1979) (‘‘under
the [d]ue [p]rocess [c]lause, a [pretrial] detainee may not be punished prior
to an adjudication of guilt in accordance with due process of law’’). It
is established that pretrial detention, although undoubtedly a significant
restriction on liberty, does not constitute punishment but, rather, permissible
government regulation of the pretrial process. See id., 536–37; see also
United States v. Salerno, supra, 481 U.S. 747.
38
We pause to observe that, however significant the benefits at issue may
be to the defendant, they necessarily constitute a less significant liberty
interest than that at issue in a typical bond hearing, namely, the interest in full
and unrestricted freedom from confinement. The defendant, as an insanity
acquittee confined at a maximum security psychiatric facility, already had
had his liberty sharply curtailed. Cf. Wilkinson v. Austin, 545 U.S. 209,
225, 125 S. Ct. 2384, 162 L. Ed. 2d 174 (2005) (‘‘[p]risoners held in lawful
confinement have their liberty curtailed by definition, so the procedural
protections to which they are entitled [before being transferred to a facility
with more restrictive conditions of confinement] are more limited than in
cases [in which] the right at stake is the right to be free from confinement
at all’’); In re Steven M., 264 Conn. 747, 763, 826 A.2d 156 (2003) (‘‘a juvenile
who already has been adjudicated delinquent and is in the custody of the
state does not possess the same liberty interest as a juvenile who faces
delinquency proceedings’’). Furthermore, the liberty interest that the defen-
dant is seeking to enforce through this appeal essentially is one, the United
States Supreme Court has held, that an incarcerated prisoner has an interest
in avoiding. See Vitek v. Jones, supra, 445 U.S. 492–93 (involuntary transfer
of prisoner to state mental hospital implicates liberty interest and requires
procedural safeguards because ‘‘[t]he loss of liberty produced by an involun-
tary commitment is more than a loss of freedom from confinement,’’ due to
adverse social consequences, stigma and potential for compelled treatment).
39
As the United States Court of Appeals for the Eleventh Circuit has
explained, ‘‘[d]eliberate indifference to a [pretrial detainee’s] serious medical
needs’’ violates the due process clause of the fourteenth amendment. Goebert
v. Lee County, 510 F.3d 1312, 1326 (11th Cir. 2007); see id. (explaining that
standards that govern prisoner’s cruel and unusual punishment claim under
eighth amendment govern pretrial detainee’s claim under due process clause
of fourteenth amendment). ‘‘To show deliberate indifference, the detainee
must show that: (1) [he] had a serious medical need; (2) the prison official
acted with deliberate indifference to that serious medical need; and (3) the
prison official’s deliberate indifference caused the detainee injury.’’ Blan-
chard v. White County Detention Center Staff, 262 Fed. Appx. 959, 963 (11th
Cir. 2008). ‘‘To show deliberate indifference, the subjective component of
the claim, the [detainee] must prove three things: (1) subjective knowledge
of a risk of serious harm; (2) disregard of that risk; (3) by conduct that is
more than gross negligence.’’ (Internal quotation marks omitted.) Id. When
a claim ‘‘turns on the quality of the treatment provided, there is no constitu-
tional violation as long as the medical care provided to the inmate is mini-
mally adequate.’’ (Internal quotation marks omitted.) Id., 964.
The deliberate indifference standard shapes the contours of a detainee’s
right to psychological or psychiatric care, just as it does the right to other
types of medical treatment. See Inmates of Allegheny City Jail v. Pierce,
612 F.2d 754, 763 (3d Cir. 1979). ‘‘The key factor in determining whether a
system for psychological or psychiatric care in a jail or prison is constitution-
ally adequate is whether inmates with serious mental or emotional illnesses
or disturbances are provided reasonable access to medical personnel quali-
fied to diagnose and treat such illnesses or disturbances.’’ (Footnote omit-
ted.) Id.
40
General Statutes § 18-96a (a) provides in relevant part: ‘‘When assessing
and subsequently providing mental health services to any inmate confined
in a correctional facility of the Department of Correction who has been
diagnosed with a mental illness by a psychiatrist . . . and such psychiatrist
has informed the department that such inmate is currently diagnosed by
such psychiatrist to be a danger to himself . . . or others, the department
shall consider the diagnosis of such psychiatrist in order to appropriately
assess such inmate and provide individualized, clinically appropriate and
culturally competent mental health services to treat such inmate’s con-
dition.’’
An array of mental health services are provided to inmates at Connecticut’s
correctional institutions through Correctional Managed Health Care, a unit
of the University of Connecticut Health Center whose mental health depart-
ment is comprised of ‘‘approximately 14 [p]sychiatrists, 13 [p]sychologists,
10 mental health [n]urse [p]ractitioners, 17 psychiatric [n]urse [c]linicians,
74 [s]ocial [w]orkers, and 20 [p]rofessional [c]ounselors [who] serve the
needs of approximately 19.2 percent of the inmate population, about [3300]
unique individuals.’’ UConn Health, Correctional Managed Health Care, avail-
able at http://cmhc.uchc.edu/programs services/index.html (last visited
October 20, 2015).
41
The hospital’s report spans twenty-eight pages, is single spaced, and
details extensively the defendant’s lengthy history of violence and psychiat-
ric diagnoses and treatment.
42
These transcripts detail the defendant’s violent behavior while at the
hospital for evaluation and the injuries that he had caused to patients
and staff.
43
The board’s memorandum of decision indicates that, following the defen-
dant’s arrival at the hospital, his conduct necessitated four transfers to
different units.
44
At the hearing, the trial court indicated that it had read the psychiatric
reports attached to the parties’ filings.
45
According to one constitutional law treatise, the essential elements of
due process, outside of the criminal trial context, are the following: ‘‘(1)
adequate notice of the charges or basis for government action; (2) a neutral
decision-maker; (3) an opportunity to make an oral presentation to the
decision-maker; (4) an opportunity to present evidence or witnesses to the
decision-maker; (5) a chance to confront and cross-examine witnesses or
evidence to be used against the individual; (6) the right to have an attorney
present the individual’s case to the decision-maker; [and] (7) a decision
based on the record with a statement of reasons for the decision.’’ 3 R.
Rotunda & J. Nowak, Treatise on Constitutional Law: Substance and Proce-
dure (5th Ed. 2012) § 17.8 (a), p. 128.