Protective Commitment and Due Process

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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.

Like juvenile offenders,1 several other classes of persons may be subject to confinement by court processes deemed civil rather than criminal. This category of “protective commitment” includes involuntary commitments for treatment of mental illness or mental disability, alcoholism, narcotics addiction, or sexual psychopathy. In O’Connor v. Donaldson, 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.” 2 The Court declined to resolve questions including “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” 3 and the confined person’s right, if any, to receive treatment for the illness. In another case, the Court held that, 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 post-deprivation remedy can cure the due process violation.4

Procedurally, an individual’s liberty interest in being free from unjustifiable confinement and from the adverse social consequences of being labeled mentally ill requires the 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 standard of a “preponderance of the evidence,” 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.5

In Parham v. J.R., the Court considered due process requirements in the context of commitment of children to an institution for treatment of mental illness by their parents or by the state, when such children are wards of the state.6 Under the challenged laws, there were no formal preadmission hearings, but psychiatric and social workers interviewed parents and children and reached some form of independent determination that commitment was called for. The Court acknowledged the potential for abuse but balanced it against factors including 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 care and interfere with the ability of parents to assist with the care of institutionalized children.7 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.8

1: See Amdt14.S1.5.5.8 Due Process Rights of Juvenile Offenders.
2: 422 U.S. 563, 576 (1975). The jury had found that Donaldson was not dangerous to himself or to others, and the Court ruled that he had been unconstitutionally confined. Id. 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). Prior to O’Connor v. Donaldson, only in Minnesota ex rel. Pearson v. Probate Court, 309 U.S. 270 (1940), had the Court considered the issue. 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 Ct., 407 U.S. 355 (1972).
3: O’Connor v. Donaldson, 422 U.S. 563, 573 (1975).
4: Zinermon v. Burch, 494 U.S. 113 (1990).
5: 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).
6: 442 U.S. 584 (1979). See also Sec’y of Pub. Welfare v. Institutionalized Juveniles, 442 U.S. 640 (1979).
7: 442 U.S. at 598–617.
8: 442 U.S. at 617–20. The Court left open the question of the due process requirements for post-admission review of the necessity for continued confinement. Id. at 617.