Mental Illness and the Constitution

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MENTAL ILLNESS AND THE CONSTITUTION

Mental illness has played two apparently different roles in American law generally: as a limitation on state authority to impose ordinary legal standards on individuals and as a basis for increasing state authority over individuals. The paradigmatic limiting use of mental illness is the defense of insanity for conduct that would otherwise be subject to criminal liability. Its paradigmatic use to increase state authority is in civil commitment of people who, apart from their mental illness, would not be subject to state confinement or control. In both guises, however, the same underlying justification is advanced—that a mentally ill person deserves specially beneficial treatment from the state, either to excuse him from ordinary standards of criminal liability or to protect and treat him under civil commitment laws.

Until the 1960s, constitutional doctrine paid scant attention to any of the legal usages for mental illness. Beginning in that decade, lower federal courts began to scrutinize these uses and to invoke constitutional norms in the service of that scrutiny. The central problem was that the promise of special beneficence for mental illness proved false on close examination. Although insanity was denoted a defense to criminal liability, in practice defendants thus found "not guilty" were automatically confined to state maximum security institutions indistinguishable from prisons (and often with harsher custodial conditions), were provided with virtually no psychiatric treatment, and were typically held for longer terms than if they had been convicted of the offenses charged. Similarly, individuals who were civilly committed, ostensibly for protection and treatment, in fact were regularly confined in brutal state institutions, provided no semblance of psychiatric treatment, subjected to degrading impositions such as numbing, physically harmful drug dosages, strait-jacketed isolation, and confined for long terms.

Confronted with these facts, federal courts found various violations of constitutional rights, all derived essentially from the proposition that due process required the state to justify any deprivation of liberty and, where that justification was based on a promise of beneficent treatment, to fulfill that promise. Thus the District of Columbia Circuit Court held in Rouse v. Cameron (1966) that those found not guilty by reason of insanity had a "right to treatment" and not simply custodial confinement, and in Bolton v. Harris (1968) that these defendants could not be automatically confined after an insanity acquittal but only if found "mentally ill" and "in need of treatment" according to civil commitment standards. For civilly committed people generally, that court found in Lake v. Cameron (1966) a liberty-based presumption against automatic commitment to a secure institution and a consequent right to treatment in the "least restrictive alternative" setting. Other federal courts concluded that civilly committed people generally had a constitutional right to treatment and that civil commitment must rest on proof of "danger to self or others," not simply mental illness as such, and proof moreover that would satisfy the criminal law "beyond reasonable doubt."

For more than a decade after these rulings, the Supreme Court held back from any definitive holding either to endorse or to reject these doctrinal innovations. During the 1960s, the Court did demonstrate concern for the problem of unfulfilled and even hypocritical state promises of therapeutic benefits as a justification for increased social controls. The most significant context for this Supreme Court concern was not mental illness but rather the juvenile court system, where states sought to justify the absence of criminal law procedural protections by invoking the promise of therapy. In in re gault (1967) the Court found these promises insufficiently convincing and required extensive recasting of juvenile court procedures.

In 1972 the Supreme Court first addressed the systemic implications of this same problem for state authority generally premised on mental illness. In Jackson v. Indiana the Court overturned common state practice regarding criminal defendants found mentally incompetent to stand trial. Traditional doctrine purported to excuse such disabled defendants from standing trial, ostensibly to benefit them; but the practical consequence was that these defendants were treated in the same way and as badly as those found not guilty by insanity. The defendants were given long-term, even lifetime, confinement in harsh facilities without semblance of psychiatric care, even if the offense charged were a petty misdemeanor. The Court ruled in Jackson that this disposition violated due process; the conditions of this confinement must provide treatment with reasonable prospect that the defendant will be made competent to stand trial. The practical result of this ruling has been substantially to increase the treatment resources provided to defendants found incompetent for trial. To justify the confinement of defendants who, after a substantial period of confinement, remain disabled for trial purposes, a state must invoke its civil commitment laws.

With this one exception, however, the Supreme Court was hesitant during the 1970s to address the constitutional law issues raised by state invocations of mental illness. The dominant motif of the Court's work during this time can be seen in its resolution in 1979 of the question of the requisite burden of proof in civil commitment proceedings. The Court acknowledged that substantial due process liberty interests were at stake, but nonetheless concluded that the state's beneficent purpose toward the allegedly mentally ill person justified a less stringent burden than the criminal standard of proof; hence in Addington v. Texas (1979) the Court required an intermediate standard of "clear and convincing evidence."

This impulse to find some seeming middle ground between fundamentally opposed premises is also apparent in the Court's equivocal approach to the question of a constitutional right to treatment for persons confined to state mental institutions. In o'connor v. donaldson (1975) the Court ruled that a state could not commit a person on grounds of mental illness alone but only with an added finding of danger to self or others. The Court refused, however, to decide whether a state was obliged to provide treatment to such a person rather than impose merely custodial confinement. The same issue returned to the Court in Youngberg v. Romeo (1982), this time regarding an institutionalized person who was retarded rather than mentally ill. Again the Court avoided a definitive resolution, ruling that the plaintiff was constitutionally entitled to "minimal treatment" that reasonably promised to reduce his aggressive outbursts—as opposed to the harsh behavior controls, such as prolonged shackling, that the state had used. The Court did not, however, reach the broader issue whether the state was obliged to provide treatment with any promise of greater benefits such as ultimate freedom from confinement.

In 1983 the Court departed from its previous pattern of equivocation in these matters. In a 5–4 decision the Court held in Jones v. United States that a criminal defendant found not guilty by insanity could be confined to a mental institution without regard to the maximum term for which he might have been sentenced for the offense charged. The Court ruled, moreover, that the insanity acquittal itself justified the defendant's confinement without any necessary invocation of civil commitment standards, thus effectively disapproving the 1968 court of appeals decision in Bolton. The Court in effect treated the "criminally insane" as different from either "criminals" or the "insane." This differential treatment can work a marked disadvantage, as the defendant in the Jones case found. But, the Court appeared to conclude, the defendant chooses to plead criminal insanity and thus knowingly embraces the risk of his ultimate disadvantage. Indeed, in ake v. oklahoma (1985) the Court made it easier to invoke the insanity defense by ruling that an indigent defendant is entitled to a court-appointed psychiatrist. The specific context of that case was a capital offense, where the risk of indefinite confinement following an insanity acquittal might seem invariably worthwhile; but the Court did not limit its holding to capital cases.

It is not clear whether the Court's definitive rulings in the context of criminal insanity will be followed by similar resolutions in other aspects of state authority regarding mentally ill people. The Court may have felt a special need to address criminal insanity as such because of the extraordinary public attention resulting from John Hinckley's acquittal for insanity in 1982 on the charge of attempting to assassinate President ronald reagan. Whatever the future directions of judicial rulings, however, the underlying questions regarding the justifications for and scope of state authority in these matters remain difficult.

The dominant theme of the constitutional principle set out by lower courts in the 1960s and 1970s has been that mental illness is relevant to the exercise of state power only where the state promises therapeutic benefit, and that the Constitution requires that this promise be kept. Keeping the promise, however, is easier said than done. Both diagnosis and treatment of mental illness is uncertain. Furthermore, adequate therapy, either in state institutions or in community treatment facilities, will require supervision of complex bureaucracies and large expenditures of funds. Supervision of this process will severely strain both the courts' enforcement capacities and traditional conceptions of judicial authority. Some observers thus conclude that the lower courts were correct in seeing the failure and even hypocrisy of states regarding their therapeutic promises, but these courts merely compounded this error by invoking the Constitution to add new promises that similarly cannot be fulfilled.

If courts cannot and should not attempt to enforce the promise of therapy, what response is proper in the face of egregious state abuses? Some have argued that states should simply be barred from giving mental illness special legal relevance in any circumstances, as a justification either for increasing or withholding state power over individuals. In this view, states could confine people for "dangerousness" only by applying ordinary criminal law standards, and those standards should make no special dispensation for the mentally ill. A few states have essentially abolished the insanity defense and sharply limited the availability of civil commitment. Similarly, some judicial decisions such as Rogers v. Okin (1980) have found a constitutional right to refuse treatment, notwithstanding that a person has been civilly committed as mentally ill and dangerous. The premise of these decisions is not that the state might fail to keep its therapeutic promise; it is rather that the promise may be kept with excessive rigor, and that the state may thereby transgress valued boundaries of individual integrity and dignity. Though these lower court decisions do not directly embrace the view that would abolish all state mental illness powers, they share the underlying suspicion of therapeutically justified state impositions, and they apparently prefer modes of social control that do not directly purport to invade mental processes, such as imprisonment for criminal convictions.

This underlying premise is a temptingly plausible response to the sorry history of state abuse of the mentally ill. But the premise fails both as social policy and as constitutional doctrine. The consequences were disastrous for large numbers of people who were removed from state institutions in the 1960s and 1970s, in part as a response to court decisions, and were "dumped" into communities with no facilities to receive them or willingness to respond to their special needs. As constitutional doctrine, the abolitionist doctrine relies on a conception of due process "liberty" that takes insufficient account of the psychological conditions of individual autonomy that lie beneath this prized constitutional right. This conception ignores the ways in which mental illness can distort an individual's capacity to acknowledge his need for help, including state-administered assistance. It may be that state power can never be trusted to provide this help, that this is the lesson of the history of state abuse of mentally ill people in the criminal and civil law context. But this lesson has not yet been clearly written into constitutional doctrine.

Robert A. Burt
(1986)