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The Arc of Disability Rights Litigation
(and some stories)

David Ferleger, Esq.

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In the Supreme Court: Civil Commitment and the Least Restrictive Principle

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In the Supreme Court: Civil Commitment and the Least Restrictive Principle

Let's talk about civil commitment, institutions and the development of the least restrictive alternative, the least restrictive environment right. The Supreme Court eventually came to these kind of issues, but did so only in recent decades. But, still based on individual cases, not large rich giant cases, but small cases over time in lower courts and in other courts.

In the Josiah Oakes case, the Supreme Judicial Court of Massachusetts in the mid-1800s, dealt with a man who had been put into an institution on the petition of his children because after his wife died he began to act strangely, got involved with a much younger woman and they thought that was peculiar, he was committed and the court rejected that kind of treatment because it wasn't fair, it wasn't just. And, there was no reason to think he needed to be in a hospital.

Judge David Bazelon, a federal district judge in Washington D.C. dealt with a couple of cases in the 50s and 60s involving individual commitments. One, Lake vs. Cameron involved a woman who was found wandering the streets with all of her possessions in a bag, wandering the streets in Washington, was committed to an institution and he held on a very important decision that she can't be kept in an institution if there's some less restrictive way to keep her safe, and not have to suffer the effects of being in an institution.

So the Supreme Court first looked at what happens when people are institutionalized in the Robinson v. California case in 1962. In that case, there was a law that allowed somebody who was a narcotics addict to be treated as a criminal, and therefore to be kept, essentially indefinitely as an addict for that crime in an institution. The U.S. Supreme Court said we can't punish people for an illness or a mental health condition and said that there might be some cases where involuntary commitment would be allowed but not just because of a mental illness.

So the Supreme Court didn't define what that meant, didn't say what involuntary treatment would look like, what the procedures would be, but set the stage for later looking at it so that, in 1972, in Jackson vs. Indiana, the court declared a basic principle that I think is the foundation for what we think of today when we think of commitment under the law. In that case, Theon Jackson was a deaf mute, he couldn't read, he couldn't write, he had very much difficulty communicating anything at all, and he was charged with petty larceny, locked up having been found not guilty by reason of insanity. The law was, having been found incompetent to stand trial. The law was the if you're incompetent to stand trial, you wait and wait in jail or in a hospital until you become competent.

Well, Theon Jackson would never become competent. He was intellectually disabled and went to court and said, I will be here essentially for life because of my disability. And the Supreme Court rejected that order that no one can be held indefinitely until they become competent. And, Justice Blackmun wrote what I consider to be some of the most important words in the history of this legal principle. And he wrote: "At the least, due process requires that the nature and duration of commitment bears some reasonable relation to the purpose for which the individual is committed." So that notion that the nature and purpose of being in the institution has to have a relationship, a reasonable one, to the purpose for the commitment really is what speaks to all the law I think that's developed since then. So, the Jackson case didn't say what happens when you're committed, it just referred to the nature of the commitment and the duration.

So, in 1956, Ken Donaldson, not knowing he would become a big Supreme Court name, he traveled to Florida to visit his elderly parents. He came from up in Philadelphia, he thought people were trying to poison him, acted strangely. He was believed to be acting. He was committed to an institution, stayed there for 15 years in a hospital with only one doctor, an obstetrician, only one nurse, and she worked only in the infirmary, a thousand patients, no treatment and he stayed and stayed. Imagine, year after year, being in an institution, no danger to anybody, and receiving no treatment at all.

He went to court, a jury awarded him thousands of dollars in damages. The case went to the Supreme Court and the U.S. Supreme Court, now building on the earlier Robinson case, said that nobody can be confined in an institution without more than just custodial care if you're not a dangerous person. If you can do well, do fine out of the institution with help of family or friends. You cannot be confined in an institution.

So, that decision was really a reminder almost that we had the local case, I'll call it, of Lake vs. Cameron in 1966 that Judge Bazelon had made. So the court begins with the general principle coming out of the criminal law area and it begins to be extended to Ken Donaldson's case. You can't be kept in a hospital for your own good if you can live outside the institution.

Meanwhile, in the U.S. in 1990, the first President Bush signed what he called the Declaration of Independence for people with disabilities, the Americans with Disabilities Act, bipartisan, great support in the country, and eventually, although that law mentions institutionalization just in passing almost in the beginning sections, the Supreme Court in Olmstead vs. L.C. in 1999 declares that it is illegal discrimination under the ADA to confine a person needlessly in an institution, because that confinement, that segregation itself, is discrimination forbidden by the ADA.

So we get back to the duration, and nature of the commitment bearing some relationship to the purpose and the Supreme Court now says that the segregation which is part of, virtually the purpose of institutionalization, cannot stand under the ADA. So we now have a least restrictive idea coming back from Lake v. Cameron, through those early Supreme Court cases and now under the Olmstead decision.

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