The underlying decision in both State v. Krol, 68 N.J.
236 (1975) and State v. Fields, 77 N.J. 282 (1978) was
that a person who is committed pursuant to a verdict of
not guilty by reason of insanity (“NGI committee”), was
entitled to the same commitment proceedings as a civil
committee. Matter of Commitment of Edward S., 118 N.J.
at 141. In Krol, the Court found that an NGI committee
was entitled to a determination of dangerousness as a
condition to initial confinement. Matter of Commitment
of Edward S., 181 N.J. at 141; State v. Krol, 68 N.J. at 257.
In Fields, the Court held that an NGI committee was
entitled to automatic period review hearings. Matter of
Commitment of Edward S., 118 N.J. at 141; State v. Fields,
77 N.J. at 293. Moreover, it is within the sound
discretion of the reviewing judge to determine the degree
of restraints. Matter of Commitment of Calu, 301 N.J.
Super. at 29-30; see also State v. Fields, 77 N.J. at 303.
Although the Supreme Court held that civil and NGI
committees must be afforded the same proceedings, it
“emphatically stressed that in fact they must be treated
differently.” Matter of Commitment of Edward S., 118
N.J. at 141. NGI committees are to be afforded
“substantial equality” with civil committees rather than
absolute equality of treatment. Id. at 128-29; see also
State v. Fields, 77 N.J. at 297; State v. Krol, 68 N.J. at 250-
51, 253. For instance, in terms of continued
commitment, for a civil committee, the burden of proof
is clear and convincing evidence, while for an NGI
committee, it is a preponderance of the evidence. In re
Commitment of W.K., 159 N.J. at 4 (citing Matter of
Commitment of Edward S., 118 N.J. at 130, n. 4); see also
Foucha v. Louisiana, 504 U.S. 71, 75-76, 112 S.Ct.
1780, 1783 (1992); Jones v. United States, 463 U.S. 354,
363, 103 S.Ct. 3043, 3051 (1983).
B. Release of Persons Committed by Reason of Insanity
(N.J.S.A. 2C:4-9)
A committed acquittee is entitled to release when he
has recovered his sanity or is no longer dangerous;
however, may be held as long as he is both mentally ill and
dangerous, but no longer. Foucha v. Louisiana, 504 U.S.
at 77 (citing in part Jones v. United States, 463 U.S. at
368); see also O’Connor v. Donaldson, 422 U.S. 563, 573-
77, 95 S.Ct. 2486, 2492-94 (1975) (as a matter of due
process it is unconstitutional for a state to continue to
confine a harmless, mentally ill person).
If a person has been committed pursuant to N.J.S.A.
2C:4-8 or 2C:4-6, and if the Commissioner of Human
Services, or his designee, or the superintendent of the
institution to which the person has been committed, is of
the view that the person may be discharged or released on
condition without a danger to himself or others, or that
he may be transferred to a less restrictive setting for
treatment, the commissioner or the superintendent shall
make an application for the discharge or release of such
person in a report to the court, and shall also transmit a
copy of the application and the report to the prosecutor,
defense counsel, and the court. N.J.S.A. 2C:4-9a. The
court may, in its discretion, appoint at least two
psychiatrists, neither of whom may be on the staff of the
hospital to which the defendant had been committed, to
examine the person and to report their opinion as to the
person’s mental condition within 30 days, or within a
longer period if deemed necessary by the court. Id.The court shall then hold a hearing to determine
whether the committed person may be safely discharged,
released on condition without danger to himself or
others, or be treated as a civil committee. N.J.S.A. 2C:4-
9b. The hearing shall be held upon notice to the
prosecutor and with the prosecutor’s opportunity to be
heard. Id.; see also Matter of Commitment of Calu, 301 N.J.
Super. at 31. The case would be reviewed as provided by
the law governing civil commitment. N.J.S.A. 2C:4-9d;
see also R. 4:74-7.The committed person may also make an application
for his discharge or release to the court; the procedure is
the same as that prescribed above in the case of an
application by the commissioner. N.J.S.A. 2C:4-9c.In the Matter of Commitment of Edward S., 118 N.J.
at 120, the Supreme Court applied the reasoning
regarding the differences between civil and NGI
commitment, and concluded that the statutory mandate
requiring that periodic review hearings be held in camera
for civil committees does not apply to NGI committees.
The Court held in Edward S. that such hearings for NGI
murder committees shall be open to the public, unless
good cause to the contrary is shown. Id. at 147; see also
R. 3:19-2. For NGI murder committees, good cause
presumptively exists, which places the burden on the
committee to show that the hearing should be held in
camera. Matter of Commitment of Edward S., 118 N.J. at- The Court further noted that this ruling only
applies to hearings that might result in the release of the
committee. Id. at 138, n. 11; see also Matter of
Commitment of Calu, 301 N.J. Super. at 26. As explained
by the Court, the primary reason for this rule is to
preserve public confidence in the criminal justice system.
Matter of Commitment of Edward S., 118 N.J. at 138-39.