Fifth Amendment:

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

As 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 mental illness and other degrees of mental disability, alcoholism, narcotics addiction, sexual psychopathy, and the like. In O’Connor v. Donaldson,1 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 jury had found that Donaldson was not dangerous to himself or to others, and the Court ruled that he had been unconstitutionally confined.3 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” 4 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 post-deprivation remedy can cure the due process violation.5

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 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 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.6

In Parham v. J.R., the Court confronted difficult questions as to what due process requires in the context of commitment of children to a institution for treatment of mental illness by their parents or by the state, when such children are wards of the state.7 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.8 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.9 Left to future resolution was the question of the due process requirements for postadmission review of the necessity for continued confinement.10

Footnotes

1

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 People with Mental Disabilities: Commitment and Treatment,” supra.

2

422 U.S. at 576. 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 Court, 407 U.S. 355 (1972).

3

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).

4

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

5

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

6

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).

7

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

8

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

9

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

10

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