The Problem of Civil Commitment

The Problem of Civil Commitment.—As is the case with juvenile offenders, several other classes of persons are subject to confinement by court processes deemed civil rather than criminal. Within this category of "protective commitment" are involuntary commitments for treatment of insanity and other degrees of mental incompetence, retardation, alcoholism, narcotics addiction, sexual psychopathy, and the like. Inasmuch as the deprivation of liberty is as severe as that experienced by juveniles adjudged delinquent, can be accompanied with harm to reputation, it is surprising that the Court has only recently dealt with the issue.1181

1181 Only in Minnesota ex rel. Pearson v. Probate Court, 309 U.S. 270 (1940), did the Court earlier approach consideration of the problem. Other cases reflected the Court's concern with the rights of convicted criminal defendants and generally required due process procedures or that the commitment of convicted criminal defendants follow the procedures required for civil commitments. Specht v. Patterson, 386 U.S. 605 (1967); Baxstrom v. Herold, 383 U.S. 107 (1966); Lynch v. Overholser, 369 U.S. 705 (1962); Humphrey v. Cady, 405 U.S. 504 (1972); Jackson v. Indiana, 406 U.S. 715 (1972); McNeil v. Director, 407 U.S. 245 (1972). Cf. Murel v. Baltimore City Criminal Court, 407 U.S. 355 (1972).

In O'Connor v. Donaldson,1182 the Court held that "a State cannot constitutionally confine without more a nondangerous individual who is capable of surviving safely in freedom by himself or with the help of willing and responsible family members or friends."1183 The trial jury had found that Donaldson was not dangerous to himself or to others, and the Court ruled that he had been unconstitutionally confined.1184 Left to another day were such questions as "when, or by what procedures, a mentally ill person may be confined by the State on any of the grounds which, under contemporary statutes, are generally advanced to justify involuntary confinement of such a person—to prevent injury to the public, to ensure his own survival or safety, or to alleviate or cure his illness"1185 and the right, if any, to receive treatment for the confined person's illness. To conform to due process requirements, procedures for voluntary admission should recognize the possibility that persons in need of treatment may not be competent to give informed consent; this is not a situation where availability of a meaningful postdeprivation remedy can cure the due process violation.1186

Procedurally, it is clear that an individual's liberty interest in being free from unjustifiable confinement and from the adverse social consequences of being labeled mentally ill requires government to assume a greater share of the risk of error in proving the existence of such illness as a precondition to confinement. Thus, the evidentiary standard of a preponderance, normally used in litigation between private parties, is constitutionally inadequate in commitment proceedings. On the other hand, the criminal standard of beyond a reasonable doubt is not necessary because the state's aim is not punitive and because some or even much of the consequence of an erroneous decision not to commit may fall upon the individual. Moreover, the criminal standard addresses an essentially factual question, whereas interpretative and predictive determinations must also be made in reaching a conclusion on commitment. The Court therefore imposed a standard of "clear and convincing" evidence.1187

1182 422 U.S. 563 (1975). The Court bypassed "the difficult issues of constitutional law" raised by the lower courts' resolution of the case, that is, the right to treatment of the involuntarily committed, discussed under "Liberty Interests of Retarded and Mentally Ill: Commitment and Treatment," supra.

1183 422 U.S. at 576.

1184 422 U.S. at 576-77. The Court remanded to allow the trial court to determine whether Donaldson should recover personally from his doctors and others for his confinement, under standards formulated under 42 U.S.C. § 1983. See Wood v. Strickland, 420 U.S. 308 (1975); Scheuer v. Rhodes, 416 U.S. 232 (1974).

1185 O'Connor v. Donaldson, 422 U.S. 563, 573 (1975).

1186 Zinermon v. Burch, 494 U.S. 113 (1990).

1187 Addington v. Texas, 441 U.S. 418 (1979). See also Vitek v. Jones, 445 U.S. 480 (1980) (transfer of prison inmate to mental hospital).

Difficult questions of what due process may require in the context of commitment of allegedly mentally ill and mentally retarded children by their parents or by the State when such children are wards of the State were confronted in Parham v. J.R.1188 Under the challenged laws there were no formal preadmission hearings, but psychiatric and social workers did interview parents and children and reached some form of independent determination that commitment was called for. The Court acknowledged the potential for abuse but balanced this against such factors as the responsibility of parents for the care and nurture of their children and the legal presumption that parents usually act in behalf of their children's welfare, the independent role of medical professionals in deciding to accept the children for admission, and the real possibility that the institution of an adversary proceeding would both deter parents from acting in good faith to institutionalize children needing such care and interfere with the ability of parents to assist with the care of institutionalized children.1189 Similarly, the same concerns, reflected in the statutory obligation of the State to care for children in its custody, caused the Court to apply the same standards to involuntary commitment by the Government.1190 Left to future resolution was the question of the due process requirements for postadmission review of the necessity for continued confinement.1191

1188 442 U.S. 584 (1979). See also Secretary of Public Welfare v. Institutionalized Juveniles, 442 U.S. 640 (1979).

1189 442 U.S. at 598-617. The dissenters agreed on this point. Id. at 626-37.

1190 442 U.S. at 617-20. The dissenters would have required a preconfinement hearing. Id. at 637-38.

1191 442 U.S. at 617. The dissent would have mandated a formal postadmission hearing. Id. at 625-26.

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