Providing information, education, and training to build knowledge, develop skills, and change attitudes that will lead to increased independence, productivity, self determination, integration and inclusion (IPSII) for people with developmental disabilities and their families.

The Evolution of Disability Rights Litigation (and some stories)

David Ferleger, Esq.

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

  • Foucha v. Louisiana, 504 U.S. 71 (1992)
  • In re Josiah Oakes, 8 Law Reporter 122 (Mass. 1845)
  • Jackson v. Indiana, 406 U.S. 715 (1972)
  • Lake v. Cameron, 1966 U.S. App. LEXIS 6103 (1966)
  • O'Connor v. Donaldson, 422 U.S. 563 (1975)
  • Robinson v. California, 370 U.S. 660 (1962)
  • Zinerman v. Burch, 494 U.S. 113 (1990)

There has long been a tension, and continuous debate, about the two strands in the law which are relevant to involuntary civil commitment of people with mental disabilities. Both strands are about the power of government in our lives. The government has the "parens patriae power"; to secure the well-being of its citizens, to do what will shelter them for their own good. The government also has the "police power,"; to take strong action for the safety of people and society.

The traditional way of seeing the issue is this. When the parens patriae power holds sway, involuntary commitment is simpler, with less protections and with a standard based on what is "good"; for the person. On the other hand, when the police power dominates, and dangerousness is the question, the legal system imposes more procedural protections and increases the difficulty of commitment.

The Supreme Court weighed in initially in Robinson v. California, 370 U.S. 660 (1962). The Court, in an opinion by Justice Stewart, held that a California statute which made the status of narcotic addiction a crime imposes prohibited Cruel and Unusual Punishment under the Constitution's Eighth Amendment. Therefore, it is unconstitutional to put a person in jail for being an addict. We do not punish people for an illness or a mental condition. In reaching that conclusion, the Court went beyond the necessities of the case and said that:

…in the interest of the general health or welfare of its inhabitants, a State might establish a program of compulsory treatment for those addicted to narcotics. Such a program of treatment might require periods of involuntary commitment.

370 U.S. at 664-665 (dictum).

Jackson v. Indiana, 406 U.S. 715 (1972), was a more considered examination of the complexities of involuntary commitment than the Court gave the subject in the Robinson case.

Theon Jackson was a deaf-mute who could not read, write or communicate with others. He was charged with two counts of petty theft. Doctors evaluating him found that his intellectual capacity was too low for him to understand the charges and that he was not likely ever to become competent to stand trial. Although Indiana had no facilities to treat him, Jackson was committed to a psychiatric hospital for treatment. This was essentially a life sentence for someone who was not convicted of any crime. The Court held that Due Process is violated when a state involuntarily commits a criminal defendant for an indefinite period of time solely on the basis of his permanent incompetency to stand trial on criminal charges. (For a similar decision, see Foucha v. Louisiana, 504 U.S. 71 (1992) (held that potential dangerousness of a person not mentally ill is not a basis for involuntary commitment of a person who had been found not guilty by reason of insanity).

In one of the most important statements by the Supreme Court in a case involving disability rights regarding institutionalization, Justice Blackmun wrote:

At the least, due process requires that the nature and duration of commitment bear some reasonable relation to the purpose for which the individual is committed.

406 U.S. at 738.

The decision in Jackson v. Indiana gave constitutional dimension to a principle recognized more than a hundred years earlier in an opinion by Chief Justice Shaw of the Supreme Judicial Court of Massachusetts. The case was In re Josiah Oakes, 8 Law Reporter 122 (Mass. 1845), and it held that a state can confine someone for protection of self and others for only as long as necessary. Mr. Oakes was a shrewd businessman who had been involved in some risky speculations. After his wife died, he didn't react the way his sons and daughters expected a widower to act. He became engaged to a younger woman days after the death of his wife. His children had him committed. 

The "it's good for you"; involuntary commitment approved by the Supreme Court in the Robinson case in 1962 was further limited in 1975 in the Court's decision in O'Connor v. Donaldson, 422 U.S. 563 (1975). Justice Stewart, who had written Robinson, also wrote the opinion in this case.

In 1956 Kenneth Donaldson traveled to Florida to visit his elderly parents. During the visit, Donaldson reported that he believed one of his neighbors in Philadelphia might be poisoning his food. On his father's petition, the state court civilly committed Donaldson to a state mental institution; he was diagnosed with paranoid schizophrenia. His ward was understaffed, with only one doctor, who was an obstetrician, for over 1,000 male patients. There were no psychiatrists or counselors. There was one nurse and she worked in the infirmary. Donaldson spent 15 years as a patient without treatment. The jury had awarded him damages against O'Connor, the head of the institution.

O'Connor held that

  1. "a State cannot constitutionally confine without more a non-dangerous individual who is capable of surviving safely in freedom by himself or with the help of willing and responsible family members or friends.";
  2. non-dangerous people cannot be involuntarily confined in a mental institution,
  3. involuntary hospitalization beyond a short period requires a court order,
  4. treatment must be in least restrictive setting.

O'Connor also had its precursors. The first enunciation of the "least restrictive"; principle came in 1966. In Lake v. Cameron, 1966 U.S. App. LEXIS 6103 (1966), Mrs. Lake, who was 60 years old, was involuntarily committed after wandering the streets in a crime-ridden area of Washington, D.C. She carried all her possessions in a shopping bag and seemed disoriented. She had dementia, the doctors found, but was not dangerous to herself or others. The court found that she could not be subjected to indefinite commitment without the exploration of less restrictive treatment alternatives.

Eventually, the Supreme Court was more explicit about the relationship between procedural safeguards, such as a civil commitment hearing, and the need to consider alternatives to hospitalization. In 1990, in Zinerman v. Burch, 494 U.S. 113 (1990), in an opinion by Justice Blackmun (who had written the Jackson decision), Darrell Burch had been found bruised and bloody on a Florida highway. He was confused and hallucinating. At the hospital, he thought he was entering heaven. He signed voluntary commitment papers, stayed for five months, and, therefore, had no judicial or other hearing. The Court held that he was entitled to a judicial hearing or some sort of hearing as a safeguard against arbitrary state action. The involuntary commitment process, the Court explained, "serves to guard against the confinement of a person who, though mentally ill, is harmless and can live safely outside an institution."; 494 U.S. at 133-134 (citing O'Connor).

In summary, what we have seen is that the Supreme Court began off-handedly in Robinson in 1962 with a suggestion that involuntary mental hospitalization was an acceptable alternative to jail. Eventually, the Court came to see that merely because a hospital might be "good"; for a person, the deprivation of liberty required both scrutiny in the procedures provided and, quite importantly, in what Jackson called the "nature and duration"; of the confinement. There are hints here of what was to come in the law, namely, examination of the conditions of institutionalization, establishment of a 'right to treatment,' and eventually questions about the very use of institutions.

Note: The discussion here selects "highlight"; cases or other authorities to describe principles relevant to understanding the legal right which is the subject of this short presentation. This is a starting point for in depth review, not the end point.

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