Liberty Interests of the Retarded, Mentally Ill or Abnormal: Commitment and Treatment
Liberty Interests of the Retarded, Mentally Ill or Abnormal: Civil Commitment and Treatment.—The recognition of liberty rights for retarded or handicapped individuals who are involuntarily committed or who voluntarily seek commitment to public institutions is potentially a major development in substantive due process. The States, pursuant to their parens patriae power, have a substantial interest in institutionalizing persons in need of care, both for their own protection and for the protection of others.656 Each individual, on the other hand, has a due process protected interest in freedom from confinement and personal restraint, and a liberty interest in reducing the degree of confinement exists even when individuals are properly committed.657 Little controversy has attended the gradual accretion of case law in the lower courts, now confirmed by the Supreme Court, that the due process clause guarantees freedom from unsafe conditions of confinement and undue physical restraint.658 A number of influential lower court decisions have also found a significant right to treatment659 or "habilitation,"660 although the Supreme Court's approach in this area has been tentative.
656 These principles have no application to persons not held in custody by the state. DeShaney v. Winnebago County Social Servs. Dep't, 489 U.S. 189 (1989) (no Due Process violation for failure of state to protect an abused child from his parent, even when the social service agency had been notified of possible abuse, and possibility had been substantiated through visits by social worker).
657 Youngberg v. Romeo, 457 U.S. 307, 314-16 (1982). See Jackson v. Indiana, 406 U.S. 715 (1972); O'Connor v. Donaldson, 422 U.S. 563 (1975); Vitek v. Jones, 445 U.S. 480 (1980) Vitek v. Jones, 445 U.S. 480, 491-94 (1980).
658 Youngberg v. Romeo, 457 U.S. 307, 314-316 (1982). Thus, personal security constitutes a "historic liberty interest" protected substantively by the due process clause. Ingraham v. Wright, 430 U.S. 651, 673 (1977) (liberty interest in being free from undeserved corporal punishment in school); Greenholtz v. Nebraska Penal Inmates, 442 U.S. 1, 18 (1979) (Justice Powell concurring) ("Liberty from bodily restraint always has been recognized as the core of the liberty protected by the Due Process Clause from arbitrary governmental actions").
659 In Jackson v. Indiana, 406 U.S. 715, 738 (1972), the Court had said that "due process requires that the nature and duration of commitment bear some reasonable relation to the purpose for which the individual is committed." Reasoning that if commitment is for treatment and betterment of individuals, it must be accompanied by adequate treatment, several lower courts recognized a due process right. E.g., Wyatt v. Stickney, 325 F. Supp. 781 (M.D.Ala), enforced, 334 F. Supp. 1341 (1971), supplemented, 334 F. Supp. 373 and 344 F. Supp. 387 (M.D.Ala. 1972), aff'd in part, reserved in part, and remanded, sub nom. Wyatt v. Aderholt, 503 F.2d 1305 (5th Cir. 1974); Donaldson v. O'Connor, 493 F.2d 507 (5th Cir. 1974), vacated on other grounds, 432 U.S. 563 (1975).
660 "The word 'habilitation' is commonly used to refer to programs for the mentally retarded because mental retardation is . . . a learning disability and training impairment rather than an illness. [T]he principal focus of habilitation is upon training and development of needed skills." Youngberg v. Romeo, 457 U.S. 307, 309 n.1 (1982) (quoting amicus brief for American Psychiatric Association).
For instance, in Youngberg v. Romeo, the Court recognized a liberty right to "minimally adequate or reasonable training to ensure safety and freedom from undue restraint."661 While the lower court had agreed with plaintiff's theory of entitlement to "such treatment as will afford a reasonable opportunity to acquire and maintain those life skills necessary to cope as effectively as [his] capacities permit,"662 the Supreme Court felt that the plaintiff had reduced his theory to a claim for "training related to safety and freedom from restraint."663 But the Court's concern for federalism, its reluctance to approve judicial activism in supervising institutions, and its recognition of the budgetary constraints associated with state provision of services caused it to hold that lower federal courts need to defer to professional decision making to determine what level of care was adequate. Professional decisions are presumptively valid and liability can be imposed "only when the decision by the professional is such a substantial departure from accepted professional judgment, practice, or standards as to demonstrate that the person responsible actually did not base the decision on such a judgment."664 Presumably, however, the difference between liability for damages and injunctive relief will still afford federal courts considerable latitude in enjoining institutions to better their services in the future, even if they cannot award damages for past failures.665
662 457 U.S. at 318 n.23.
663 457 U.S. at 317-18. Concurring, Justices Blackmun, Brennan, and O'Connor, argued that due process guaranteed patients at least that training necessary to prevent them from losing the skills they entered the institution with. Id. at 325. Chief Justice Burger rejected any protected interest in training. Id. at 329. The Court had also avoided a decision on a right to treatment in O'Connor v. Donaldson, 422 U.S. 563, 573 (1975), vacating and remanding a decision recognizing the right and thus depriving the decision of precedential value. Chief Justice Burger expressly rejected the right there also. Id. at 578. But just four days later the Court denied certiorari to another panel decision from the same circuit relying on its Donaldson decision to establish such a right, leaving the principle alive in that circuit. Burnham v. Department of Public Health, 503 F.2d 1319 (5th Cir. 1974), cert. denied, 422 U.S. 1057 (1975). See also Allen v. Illinois, 478 U.S. 364, 373 (1986) (dictum that person civilly committed as "sexually dangerous person" might be entitled to protection under the self-incrimination clause if he could show that his confinement "is essentially identical to that imposed upon felons with no need for psychiatric care").
664 457 U.S. at 323.
665 E.g., Ohlinger v. Watson, 652 F. 2d 775, 779 (9th Cir. 1980); Welsch v. Likins, 550 F.2d 1122, 1132 (8th Cir. 1977). Of course, lack of funding will create problems with respect to injunctive relief as well. Cf. New York State Ass'n for Retarded Children v. Carey, 631 F.2d 162, 163 (2d Cir. 1980). It should be noted that the Supreme Court has limited the injunctive powers of the federal courts in similar situations.
The Court's resolution of a case involving persistent sexual offenders suggests that state civil commitment systems, besides confining the dangerously mentally ill, may also act to incapacitate persons predisposed to engage in specific criminal behaviors. In Kansas v. Hendricks,666 the Court upheld a Kansas law which allowed civil commitment without a showing of "mental illness," so that a defendant diagnosed as a pedophile could be committed based on his having a "mental abnormality" which made him "likely to engage in acts of sexual violence." Although the Court minimized the use of this expanded nomenclature,667 the concept of "mental abnormality" appears both more encompassing and less defined than the concept of "mental illness." It is unclear how, or whether, the Court would distinguish this case from the indefinite civil commitment of other recidivists such as drug offenders. A subsequent opinion does seem to narrow the Hendricks holding so as to require an additional finding that the defendant would have difficulty controlling his or her behavior.668
Still other issues await exploration. The whole area of the rights of committed individuals will likely be explored under a substantive and procedural due process analysis.669 Additionally, federal legislation is becoming extensive,670 and state legislative and judicial development of law is highly important because the Supreme Court looks to this law as one source of the interests which the due process clause protects.671
666 521 U.S. 346 (1997).
667 521 U.S. at 359. But see Foucha v. Louisiana, 504 U.S. 71, 80 (1992) (holding that a state can not hold a person suffering from a personality disorder without clear and convincing proof of a mental illness).
668 Kansas v. Crane, 532 U.S. 930 (2001).
669 See Developments in the Law—Civil Commitment of the Mentally Ill, 87 HARV. L. REV. 1190 (1974). In Mills v. Rogers, 457 U.S. 291 (1982), the Court had before it the issue of the due process right of committed mental patients at state hospitals to refuse administration of antipsychotic drugs. An intervening decision of the State's highest court had measurably strengthened the patients' rights under both state and federal law and the Court remanded for reconsideration in light of the state court decision. See also Rennie v. Klein, 653 F.2d 836 (3d Cir. 1981).
670 Developmentally Disabled Assistance and Bill of Rights Act of 1975, Pub. L. No. 94-103, 89 Stat. 486, as amended, 42 U.S.C. §§ 6000 et seq., as to which see Pennhurst State School & Hosp. v. Halderman, 451 U.S. 1 (1981); Mental Health Systems Act, 94 Stat. 1565, 42 U.S.C. § 9401 et seq.