Date: 10-23-2015

Case Style: STATE OF CONNECTICUT v. FRANCIS ANDERSON

Case Number: SC19399

Judge: Peter T. Zarella

Court: Connecticut

Plaintiff's Attorney: Roy Cooper, Kimberly N. Callahan

Defendant's Attorney: Nancy L. Walker, PeterA.McShane, Jeffrey Doskos, Alanna D. Tynan

Description: 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 Correctionat aprisonwhileawaiting trialonthe newcharges. 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 appealemthetrialcourt’sorderrequiring,asapretrialconditionofhisrelease,thatheposta$100,000cashorsurety 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 subsequent transfer to the custody of the Commissioner of Correction,amountedtoviolationsofhisconstitutional 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 history are relevant to this appeal. The defendant, who is forty-sixyearsold,hasanextensivehistoryofpsychiatric problems and involvement with the criminal justice system.Hehas spentmuchofhisadultlife eitherincarceratedorinotherinstitutionalizedsettings.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 ordefect.6OnAugust15,2013,thetrialcourt,McMahon, J., committed the defendant to the custody of the CommissionerofMentalHealthandAddictionServices.The defendantwastransferredtotheWhitingForensicDivisionofConnecticutValleyHospital(hospital),wherehe received a psychiatric evaluation pursuant to General Statutes § 17a-582.7 The October 23, 2013 report resulting from that evaluation recommended that the defendantbereturnedtoprison.OnNovember18,2013, Judge McMahon disagreed with the hospital’s recommendation and, consistent with the contrary recommendation of an independent evaluator sought by the defendant pursuant to § 17a-582 (c),8 ordered that the defendantbecommittedtothecustodyofthePsychiatric Security Review Board (board) and confined at the
hospitalforaperiodnotexceedingtenyears.9OnFebruary 7, 2014, the board held the defendant’s initial commitment hearing, after which it concluded that he had a psychiatric illness that required care, custody and treatment.Itconcludedfurtherthathehadapsychiatric disability to the extent that his discharge would constitute a danger to himself or others, and that he required confinement in a maximum security setting. Accordingly,theboardorderedthatthedefendantremainconfined at the hospital under maximum security conditions.10 Uponarrivingatthehospital,thedefendantallegedly 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 ofreleaseandimposean‘‘appropriate’’monetarybond. 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 thedefendant, several reports from the defendant’s independent psychiatric evaluator, the transcript of the commitment hearing before theboardandtheboard’sreportrecommendingthatthe defendant be confined in a maximum security setting. OnJune18,2014,thetrialcourt,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 § 384,15 to set a monetary bond upon his commission of new offensesin thehospital setting,particularly forthe 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 motionforstayofthetrialcourt’sordersettingamonetarybondpendingdispositionofthisappeal,18 thecourt 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— tosetconditionsofreleasethatarenecessarytoensure thatthesafetyofotherpersonswillnotbeendangered.’’ Moreover, according to the court, such a rule ‘‘would mean that an insanity acquittee, regardless of the frequency and seriousness of his . . . new crimes committed 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 observedthat thedefendantallegedly committedseven assaults on seven separate people at seven different times. The trial court further explained that, as authorized byPracticeBook§ 38-4(b),ithadconsideredthedefendant’s history of violence and the risk posed to the physical safety of the staff and other patients at the hospital,andhadconcludedthatfinancialconditionsof releasewerenecessarytoensuretheirsafety.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 Additionally, the court reasoned that, even if the defendant had a right to psychiatric treatment, it was not an unqualified and inalienable right to a certain type of treatment, and the nature of the treatment afforded to him had to bedeterminedwithreferencetothemanagementissues 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 followed. The defendant claims on appeal that the trial court’s order setting a monetary bond as a condition of release
and,becausehewasunabletopostthatbond,hissubsequent transfer to the custody of the Commissioner of Correctionwereinviolationofhisconstitutionalrights, namely,hisrighttobailunderthestateconstitutionand his right to procedural due process under the federal constitution.Forthereasonsweexplainhereinafter,we disagreewitheachoftheseclaims.Wefurtherconclude 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 constitutionally 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 imposition 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, thecourt’s settingofa monetarybondpursuant to§ 5464a and Practice Book § 38-4 amounted to impermissible preventive detention. Specifically, the defendant contends, the fundamental purpose of bail is to ensure the subsequent appearance of the accused and not to protectthepublicfromadangerousaccused.Thedefendantarguesthat,because,asaconfinedinsanityacquittee, his appearance in court essentially was assured, thecourt’ssettingofamonetarybondwasnotpermissible. We do not agree.20 We begin with the applicable standard of review. Typically, ‘‘[t]he determination of an appropriate pretrial 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 defendant’s claim requires us to construe either the meaning orapplicabilityofconstitutionalorstatutoryprovisions, 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 § 54-64awasunconstitutionallyappliedtohim‘‘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 releasedonbailuponsufficientsecurity,exceptincapi
taloffenses, wheretheproof isevidentor thepresumption 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 presence at trial; State v. Menillo, supra, 159 Conn. 269; we later acknowledged, after reviewing Connecticut’s unique constitutional history, the additional customary purposeofensuringadefendant’sgoodbehaviorduring the pretrial period. See State v. Ayala, supra, 222 Conn. 350–51;cf.Statev.Bates,140Conn.326,330,99A.2d133 (1953) (‘‘ ‘[u]pon admission to bail,’ ’’ accused remains within constructive custody of law).21 As we explained in Ayala, Connecticut’s constitutionalbail provision,whichfirst appearedin theconstitution of 1818 in substantially similar form,22 has deep roots in our preconstitutional history.23 See State v. Ayala,supra,222Conn.349–50.Arighttobailprovision first appeared in a 1672 legislative enactment and, by 1750,wasincludedinourstatutorydeclarationofrights, where it remained until the creation of a constitutional declaration of rights in article first of the 1818 constitution.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 givesufficientsecurity,bail,ormainprizeforhisappearance 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 appearanceorgoodbehaviorasapurposeofbail. State v. Ayala, supra, 350–51. As we observed in Ayala, however, 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 145years’’;id.,351;particularlybecausethe1818constitution was intended to enshrine rights already in existence by virtue of statute and the common law. See id. In Ayala, we also reviewed Connecticut’s bail statutes following the enactment of the 1818 constitution and notedthat theyinitially, likethe newconstitutional provision,weresilentastothepurposesofbail.Seeid.;
seealsoPublicStatuteLawsoftheStateofConnecticut (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 thatlanguageremained inthe statutesthereafter.Statev.Ayala,supra,222Conn.351;25 seeRevised 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 recognize, 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 researchinto Connecticut’sstatutory history providesadditionalsupportforthenotionthattheimposition 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 authorizedtorequirepersonsaccusedofcertaindisruptive 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 punishacrimecommitted.’’Sturgesv.Sherwood,supra, 151. Provisions for sureties of the peace and good behaviorwerecarriedforwardineachsubsequentrevision of the General Statutes, and, in fact, statutory authority for a trial court to order them exists today. SeeGeneralStatutes§ 54-56f.27 Thepresenceofstatutes authorizing sureties of the peace and good behavior bothpriorto,andsince,theadoptionofthe1818constitution, along with statutes authorizing bail to ensure a defendant’s appearance, clearly establishes that both purposes are constitutionally acceptable reasons for a courttorequirefinancialsecurityfromanaccusedindividual.28 Consistentwiththesedualpurposes,bailreformmeasures 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 person in court and that the safety of any other person will not be endangered . . . .’’ (Emphasis added.) Public 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,incertain cases,providesforthe 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, codifiedatGeneralStatutes(Rev.to1991)§ 54-64f(b).29 InStatev.Ayala,supra,222Conn.331,afterconcluding that bail inConnecticut 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 defendant’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 discretion, properly set. Accordingly, as in Ayala, the defendant 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 reasonable under all of the relevant circumstances.32 State v. Menillo, supra, 159 Conn. 269. Additionally, when setting 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 directedatmultiplevictimsonmultipleoccasions,over a period of time spanning less than one year. Pursuant tothestatutorydirective,andconsistentwithAyala,the courtconcludedthat‘‘[t]henatureandcircumstancesof
the offense’’; General Statutes § 54-64a (b) (2) (A); ‘‘the numberandseriousnessof chargespendingagainstthe [defendant]’’; General Statutes § 54-64a (b) (2) (H); and ‘‘the[defendant’s]historyofviolence’’;GeneralStatutes § 54-64a(b)(2)(J);suggestedthathecontinuedtopose 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 reasonably 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,thatthetrialcourtdidnotdenythedefendant hisrighttobailunderarticlefirst,§ 8,oftheconstitution of Connecticut. We now turn to the defendant’s remaining claim on appeal. II Inhisinitialbrieftothiscourt,thedefendantclaimed that his transfer from the hospital to prison, that is, from the jurisdiction of the board to the custody of the Commissioner ofCorrection, violatedhis rightsto both substantive and procedural dueprocess.33 According to the defendant,he hadcertain treatmentrights byvirtue 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 commission 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 jurisprudential 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 necessary, at which therecould be consideration of his treatment 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 whichhe hadreferredwere notabsolute,34 and heclarified that his challenge was to the procedures that had been employed to deprive him of those rights. Accordingly, we consider his substantive due process claim to be abandoned. With respect to the defendant’s procedural due process claim, the state contends that the defendant has not established any constitutional violation 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 Webeginwiththewellsettledgeneralprinciplesgoverning 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 process, unlike some legal rules, is not a technical conception 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 quotationmarksomitted.)State v. Long,268Conn.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. 2d271(1993).Inordertoprevailonafourteenthamendment procedural due process claim based on the deprivation 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 betreatedatthehospital,amaximumsecuritypsychiatric 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 MentalHealthandAddictionServices,whorequirecare and treatment under maximum security conditions’’); and the statutory bill of rights for psychiatric patients (patient bill of rights); see General Statutes §§ 17a-540 through17a-550;whichwehaveheldisnotapplicableto inmatesreceivingmentalhealthservicesincorrectional 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’’). Itiswellestablishedthat‘‘[l]ibertyinterestsprotected by the [f]ourteenth [a]mendment may arise from two sources—the[d]ue[p]rocess[c]lauseitselfandthelaws of the [s]tates.’’ (Internal quotation marks omitted.) State v. B.B., 300 Conn. 748, 752, 17 A.3d 30 (2011). Evenwhenthereisnoinherentconstitutionalguarantee toaparticularright,‘‘[o]nceastateprovidesitscitizens with certain statutory rights beyond those secured by the constitutionitself, the constitution forbidsthe 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 expectationin,histreatmentatthehospitalandcertain 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, 100S.Ct.1254,63L.Ed.2d552(1980)(‘‘[o]ncea[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 thegovernment’sinterestinexistingproceduresagainst the risk of erroneous deprivation of a private interest inherent in those procedures. . . . All that is necessary isthattheproceduresbetailored,inlightofthedecision 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 procedures used, and the probable value, if any, of additional 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, 424U.S.319,335,349,96S.Ct.893,47L.Ed.2d18(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 ‘‘personal, property [and] civil rights’’; General Statutes § 17a-541;rightstocommunicatebymailandtelephone and to receive visitors; General Statutes §§ 17a-546 and 17a-547;andqualifiedrightstorefusetheadministration of medication and certain treatment; General Statutes § 17a-543; but also include a positive, ‘‘meaningful right to treatment, consistent with the requirements of good medicalpractice,’’inotherwords,‘‘notonlybasiccustodial care but also an individualized effort to help each patient by formulating, administering and monitoring a specialized treatment plan as expressly mandated by [GeneralStatutes§ 17a-542].’’(Internalquotationmarks omitted.) Mahoney v. Lensink, 213 Conn. 548, 565, 569 A.2d518(1990).Incontrast,themedicalandpsychiatric treatment rights of a pretrial detainee housed in a correctional facility generally are governed by federal constitutional standards that bar correction officials from demonstrating ‘‘deliberate indifference’’ to a detainee’s ‘‘serious medical condition . . . .’’39 Caiozzo v. Koreman, 581 F.3d 63, 72 (2d Cir. 2009). Additionally, however, there is a statutory requirement that the Department of Correction provide a person such as the defendant, who has been diagnosed with a mental illness by apsychiatristanddeemedadangertohimselforothers, with ‘‘individualized, clinically appropriate and culturally 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.UnderthesecondMathewsfactor,weconsider 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 determinationthatimpositionofabondwaswarrantedtoprotect the safety of others at the hospital. Wefirstexaminetheproceduresused.Thedefendant hadamplenoticethatthestateintendedtoseekabond, 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 ordersettingabond,thepartiesvigorouslylitigatedthe 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 memorandaoflawinresponse.Alongwiththesefilings, 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 reason 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 defendant’s independent evaluator had testified, (3) a transcript of the defendant’s subsequent commitment hearing before the board, at which the same witnesses testified,42 and(4)theboard’smemorandumofdecision recommendingthedefendant’scommitmenttothehospital.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 offensesandarguedthatheshouldremainatthehospital. 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 JudgeMcMahon’srejectionof thehospital’searlierrecommendation 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. Followingthecourt’ssettingofabond,thedefendant movedtostayitsimpositionpendingappeal.Inconnection 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 tostayonSeptember11and24,2014.Atthosehearings, two public defenders appeared for the defendant and were permitted to present extensive argument. On September 3, 2014, the defendant, while represented 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,weconcludethatthechanceofanerroneous 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. Priortothedecisionthatultimatelyresultedinhistransfer, the defendant had multiple hearings, was represented 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 treatment and his contention that he was being treated unfairly bybeing singledout forprosecution. Thecourt 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 newfelony,wastodeterminetheleastrestrictivecondition of release thatwould 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 permittinghimtoremainthere,withoutfurtherconditions, would create an unacceptable risk of danger to others. In making this determination, the court, pursuant to thestatutorydirective,wasrequiredtoconsiderabroad array of factors, including the defendant’s mental health,thechargespendingagainst him,thestrengthof 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; seeGeneralStatutes§ 54-64a(b)(3);andthedefendant possessedanimmediaterighttoreviewofthatdecision by the Appellate Court. General Statutes § 54-63g. The trial court further explicated its reasoning in response tothedefendant’smotiontostayatyetanotherhearing, and our rules of practice afforded the defendant immediate review, by this court, of the trial court’s denial of the stay. See Practice Book § 66-6. In sum, the procedures actually employed contained most if not all of the standard hallmarks of due process.45 See, e.g., Wilkinson 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 deprivationsoflibertyinterests,thatmultiplelevelsofreview 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 evidentiary hearing. Specifically, at any time following his transfer, the defendant could have filed a motion to modifytheconditionsofhisreleasepursuanttoGeneral Statutes § 54-69 (a). In accordance with that provision, wheneverany accusedpersonbelievesthat theamount ofabondimposedisexcessiveinrelationtoitspurpose, he may apply to the trial court and receive a hearing at which he has the opportunity to prove such excessiveness. 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 opportunity to present that evidence to the court. Finally, under the third Mathews factor, we consider thestate’sinterest,includinganyburdensthattheimposition of additional procedural requirements would entail. State v. Patterson, supra, 236 Conn. 572. As a general matter, the state’s interest in protecting its citizens 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. Wilkinson 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 commencedshortly afterhis arrivalat thehospital. 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 postponed 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 persons. 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 custody 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 requirementswereconstitutionallyrequired.Infact,thepalpable 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 confined in any institution for the care and treatment of the mentally ill . . . .’’ (Internal quotation marks omitted.)Id., 854,quotingColo. 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.Thecourtconcludedthattheexistingprocedures, which were highly informal and conducted entirelybyhospitalpersonnel,violatedthepatients’due processrights;id.,855–56;andmandatedamoreformal procedure requiring that a potential transferee receive the assistance of counsel, notice of the basis of the allegations of dangerousness, a hearing before an impartialdecisionmaker,aqualifiedopportunitytopresent witnesses and documentary evidence, and a written 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 differences, it is safe to conclude that less vigorous procedural protections than those afforded to the patients in Romero would suffice in the present case. Nevertheless, 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 process that was required, and likely more. Asafinalmatter,wereemphasizethatthedefendant, although temporarily in the custody of the Commissioner 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,atanytime,thedefendantbelieves that the treatment he is receiving is inadequate, he may pursueanexpeditedpetitionforawritofhabeascorpus challengingtheconditionsofhisconfinement.See,e.g., Jolley v. Commissioner of Correction, 98 Conn. App. 597,597–98,910A.2d982(2006),cert.denied,282Conn. 904, 920 A.2d 308 (2007).

Outcome: The order imposing a monetary bond as a condition of the defendant’s release is affirmed.

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