# United States Ex Rel. Mathew v. Nelson

> District Court, N.D. Illinois · April 13, 1978 · 461 F. Supp. 707

URL: https://www.frixlaw.com/law-library/cases/9747472

## Case

- **Full name:** UNITED STATES of America Ex Rel. Arthur MATHEW Et Al., Petitioners-Plaintiffs, v. John T. NELSON Et Al., Respondents-Defendants
- **Court:** District Court, N.D. Illinois
- **Decided:** April 13, 1978
- **Citations:** 461 F. Supp. 707; 1978 U.S. Dist. LEXIS 18409
- **Precedential status:** Published
- **Opinion:** Concurrence by McMILLEN
- **Judges:** Pell, Tone, McMillen
- **Cited by:** 7 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9747472

## Opinion text

McMILLEN, District Judge,
concurring.
Although I concur in the merits of the foregoing decision, I feel it appropriate to add a few comments of my own, particularly since I dissented in the decision by this same three-judge court on August 18, 1975.
A review of the evidence, taken both at the hearing on September 28, 1977 and in the agreed record when we entered our decision of August 18, 1975, convinces me *713 that the plaintiffs have misapprehended their remedy. They seek to declare the pertinent provision of the Illinois Mental Health Code unconstitutional on the ground that it does not contain a requirement that dangerousness be proved by a recent overt act or statement. In short, plaintiffs seek to have this element of proof inserted into the Illinois statute by judicial amendment. As Judge Tone points out above, however, the remedy must properly be pursued on a case-by-case basis by individuals who seek a review of their incarceration on specific constitutional grounds.
The expert witnesses agree that dangerousness cannot be accurately predicted either on the basis of recent overt acts or by psychiatric evaluation. The evidence shows that certain types of psychotic individuals can be dangerous without any prior history of overt acts, and others with such prior history are not predictably dangerous. Therefore, the criteria selected by the plaintiffs are not medically reliable and are not as dependable or precise as the statute itself. Since the profession of psychiatry has not been able to devise a method of reliably predicting dangerousness, neither the plaintiffs nor the courts have been able to find a formula which will fill this existing void. This does not render § 1-11 invalid, however.
A substantial constitutional question could be raised concerning whether any statute providing for involuntary commitment of deranged persons is valid unless it affords the same safeguards for personal liberty as in criminal cases. If a person has committed an overt act in Illinois sufficiently dangerous to constitute a crime, but is found not guilty by reason of insanity, then he can be incarcerated for treatment for the same period of time as though he had been found guilty. Ill.Rev.Stat., Ch. 38, § 1005-2-4, as amended by P.A. 80-164 (1977). On the other hand, if he has not committed a crime and does not want to be deprived of his liberty, it is difficult to comprehend exactly what public need is being served by incarcerating him except the parens patriae objective of doing something for his own good.
Whether or not this laudable objective overcomes an individual’s right to liberty is highly questionable, in my mind. It is not the objective of § 1-11 of the Illinois Mental Health Code which attempts to balance the interest of the general public against the individual’s right to freedom. The Special Joint Committee on Revision of the Mental Health Code is now considering a revision of § 1 — 11 which will specifically require proof of a recent overt act or significant threat before involuntary commitment is permitted, but this is quite different from invalidating the present section because of the absence of such requirement.
The foregoing perhaps leads to the conclusion that deranged persons should be confined against their wills only on the same grounds as other persons, specifically criminals. This may also lead to the requirement that previous dangerous acts must be proven beyond a reasonable doubt, with all of the other due process safeguards afforded to a person charged with a crime. This extreme departure from the stipulated issue remaining in this case has not been presented by either party, and therefore we are not called upon to decide it. I advert to it merely because the evidence indicates that this may be the alternative before the final solution is found to the problem of involuntary commitment without conviction for a crime. Cf. In re Stephenson, 67 Ill.2d 544 , 10 Ill.Dec. 507 , 367 N.E.2d 1273 (1977).

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9747472. Public record. Not legal advice.