Civil Commitment and Substantive Due Process

prev | next

All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

The Supreme Court has recognized, under the Due Process Clause, certain substantive liberty rights of people with mental disabilities who are involuntarily committed to public institutions. While a state has a substantial interest in institutionalizing persons in need of care, both for the protection of such people themselves and for the protection of others, it generally cannot constitutionally confine “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.” 1

Once committed, an individual also “enjoys constitutionally protected interests in conditions of reasonable care and safety, reasonably nonrestrictive confinement conditions, and such training as may be required by these interests.” 2 In determining what is “reasonable,” however, the Court instructs that “courts must show deference to the judgment exercised by a qualified professional,” such that liability may be imposed “only when 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.” 3 The Court has also stated that due process requires that the conditions and duration of civil commitment bear “some reasonable relation” to the purpose for which a person is committed.4

States may have more latitude to civilly confine certain individuals predisposed to engage in specific criminal behaviors. In Kansas v. Hendricks, for instance, the Court upheld a Kansas law that authorized the state to civilly commit individuals likely to engage in “predatory acts of sexual violence” due to do a “mental abnormality” or a “personality disorder,” thus permitting a defendant diagnosed as a pedophile to be civilly committed after his release from prison.5 In Kansas v. Crane, the Court clarified that while civil commitment under the same law did not require a finding of total lack of control by the defendant, there must be “proof of serious difficulty in controlling behavior” to support the civil commitment.6 The Constitution, the Court held, does not permit civil commitment of “the type of dangerous sexual offender considered in Hendricks without any lack-of-control determination.” 7 Such “lack of control” finding is necessary “to distinguish the dangerous sexual offender whose serious mental illness, abnormality, or disorder subjects him to civil commitment from the dangerous but typical recidivist convicted in an ordinary criminal case.” 8

1: O’Connor v. Donaldson, 422 U.S. 563, 576 (1975). See also Jackson v. Indiana, 406 U.S. 715 (1972); Vitek v. Jones, 445 U.S. 480, 491–94 (1980).
2: Youngberg v. Romeo, 457 U.S. 307, 324 (1982). The Court in Youngberg noted that “[l]iberty from bodily restraint always has been recognized as the core of the liberty protected by the Due Process Clause from arbitrary governmental action.” Id. at 316 (quoting Greenholtz v. Neb. Penal Inmates, 442 U.S. 1, 18 (1979) (Powell, J., concurring in part and dissenting in part).
3: Id. at 322–23.
4: Seling v. Young, 531 U.S. 250, 265 (2001). See also Foucha v. Louisiana, 504 U.S. 71, 79 (1992); Jackson v. Indiana, 406 U.S. 715. 738 (1972).
5: 521 U.S. 346, 350 (1997).
6: 534 U.S. 407, 412–13 (2002).
7: Id. at 412 (emphasis in original).
8: Id. at 413.