Clarifying “Imminent Dangerousness”: State v. Foster Sets a Strict Evidentiary Compass for the Continued Commitment of Insanity Acquittees

1. Introduction

State v. Foster, --- Conn. --- (Aug. 19, 2025), is the Supreme Court of Connecticut’s latest exploration of the constitutional and statutory limits that govern the post-acquittal confinement of persons found not guilty by reason of mental disease or defect (“acquittees”). Although the Court ultimately affirmed the trial court’s decision to continue Franklin Foster’s commitment beyond the expiration of his maximum criminal sentence, Justice Ecker’s separate concurrence supplies the analytical engine of the case. The concurrence dissects the statutory text of General Statutes § 17a-593 and the implementing regulations, restates due-process constraints, and chastises both the Psychiatric Security Review Board (“PSRB”) and the trial court for relying on speculation, stereotypes, and dated misconduct rather than clear and convincing evidence of imminent danger causally linked to a current psychiatric disability.

Because the concurrence collects and refines multiple strands of precedent, answers recurring interpretive uncertainties, and supplies a roadmap for future hearings, it is already being treated as the operative statement of governing law. Its core holding can be distilled to one sentence:

“An insanity acquittee may be held beyond the maximum term of commitment only if the State proves, by clear and convincing evidence, a present mental illness that renders the person imminently dangerous because of that illness; generalized fears, moral condemnation, and character flaws untethered to the illness are legally irrelevant.”

2. Case Background

• Parties:
  • State of Connecticut – petitioner seeking continued commitment.
  • Franklin Foster – respondent, found NGRI in 2003 after a 2001 school assault committed during an onset of schizophrenia.
• Procedural posture: Foster had reached the end of his “maximum term of commitment” (the longest prison term that could have been imposed had he been convicted). Under § 17a-593(c) the State petitioned to keep him under PSRB jurisdiction, alleging that discharge would endanger himself or others. The trial court granted the petition; Foster appealed.
• Key Issues on appeal:
  1. Did the PSRB and trial court rely on impermissible evidence and assumptions?
  2. Is the “danger” standard in § 17a-593(c) void for vagueness?
  3. Was the finding of continued dangerousness clearly erroneous?

3. Summary of the Judgment

A majority of the Court affirmed the continuation order, deferring to the trial court’s fact-finding. Justice Ecker, concurring, agreed that the sparse record “barely” satisfied the highly deferential standard of review, but his opinion does four larger things:

1. Clarifies that the statutory phrase “to the extent that … discharge would constitute a danger” requires a causal nexus between mental illness and risk.
2. Defines “danger” through Regulation § 17a-581-2(a)(6) as “the risk of imminent physical injury to self or others,” rejecting broader or moralistic notions of danger.
3. Re-emphasises that the State bears a “heavy” clear-and-convincing burden; acquittees carry no reciprocal duty to prove safety.
4. Condemns reliance on societal fears (school shootings, #MeToo concerns) or on institutional rule infractions that are unrelated to psychosis.

Although labelled a concurrence, these clarifications now guide PSRB hearings, trial-court reviews, and appellate oversight.

4. Analysis

4.1 Precedents Cited and Their Influence

• State v. Putnoki, 200 Conn. 208 (1986) – first established that the present mental condition, not the historic offense, is paramount. Foster re-invokes this principle and criticises mechanical references to old conduct.
• State v. Metz, 230 Conn. 400 (1994) – adopted clear-and-convincing evidence and rejected any “presumption of continued insanity” after the maximum term. Foster extends Metz by demanding a showing of imminence.
• State v. Harris, 277 Conn. 378 (2006) – compared PSRB “danger” to civil-commitment standards; Foster resolves lingering ambiguity by grounding “imminent” in ordinary language and parallel statutes.
• Kansas v. Hendricks, 521 U.S. 346 (1997) & Foucha v. Louisiana, 504 U.S. 71 (1992) – federal anchors for requirement that danger must be disease-related. Foster reiterates that Connecticut’s scheme must conform.
• State v. Dyous, 307 Conn. 299 (2012) and State v. Long, 301 Conn. 216 (2011) – earlier applications of PSRB statute; Foster distinguishes them by time-lapse and by the inadequacy of generic risk labels.

4.2 The Court’s Legal Reasoning

1. Statutory Text Controls. Justice Ecker parses § 17a-580(10), § 17a-593(c), and regulation § 17a-581-2(a)(6). • “To the extent that” → causal nexus. • “Danger” → must meet the regulatory definition. • “Imminent” is temporal proximity: danger must be “ready to take place.”
2. Constitutional Overlay. Even if statutes were silent, due process (U.S. Const. amend. XIV; Conn. Const. art. I, § 8) would forbid indefinite detention without proof of mental illness plus danger. The concurrence weaves Hendricks, Foucha, and Addington into state law.
3. Burdens of Proof and Production. The State alone must prove all elements; shifting “leaps of faith” to the acquittee violates Metz.
4. Evidentiary Relevance. The concurrence supplies an evidentiary taxonomy: • Relevant: recent violence, uncontrolled symptoms, medication non-compliance, validated risk-assessment scores. • Irrelevant: generalized social anxieties (school shootings), non-violent rule infractions, personality quirks, institutional “catch-22” phenomena. • Ambiguous history should be time-discounted.
5. Imminence & Causation. The opinion underscores that “imminent” requires proof of temporal and probabilistic closeness, borrowing ordinary dictionary meaning and cross-statutory comparisons (e.g., § 52-146q disclosures, “identifiable-person” exception in tort immunity). Danger remote in time or dependent on a chain of contingencies fails.
6. Institutional Dynamics & Iatrogenesis. Justice Ecker catalogues testimony showing how prolonged confinement itself breeds the childish, oppositional behaviours later cited as risk factors. This observation restrains courts from converting “institutionalization feedback loops” into perpetual detention.
7. Outcome Determinative Deference. Despite the analytic criticisms, the concurrence agrees that, under the clearly-erroneous standard, minimal evidence (e.g., ambiguous threats to female staff, doubts about medication adherence) could support the trial court. But the decision “approaches the outer limits” of lawful commitment.

4.3 Impact on Future Litigation & Practice

• Sharper Hearings. PSRB and trial courts must make granular, date-specific findings; boilerplate “risk” language invites reversal.
• Use of Validated Instruments. The concurrence implicitly encourages actuarial or structured professional judgment tools that show 60-70 % predictive validity, replacing clinician intuition.
• Shorter Extension Periods. Courts may hesitate to grant multi-year recommitments absent fresh incidents, accelerating pathways to discharge.
• Litigation Strategy. Defence counsel can weaponize the “imminent” requirement: cross-examine experts on temporal proximity, request pinpoint rulings, and cite Foster to exclude speculative testimony.
• Statutory Reform. The legislature may codify Foster’s gloss to eliminate ambiguity, mirroring Oregon’s highly specific criteria.

5. Complex Concepts Simplified

6. Conclusion

State v. Foster does not break entirely new ground; rather, it polishes and tightens the doctrinal bolts first installed in Putnoki and Metz. Its lasting value lies in its insistence that imminent means imminent, that danger must be disease-driven, and that the State—never the acquittee—carries the heavy burden of proof. Courts must resist converting public unease or institutional inconvenience into permanent deprivation of liberty. By articulating a precise evidentiary compass, Foster ensures that the humane goals of the insanity defense—treatment and fair liberty—remain in constitutional balance.