Amicus Brief — Addington v. Texas

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No. 77-5992 |

In the

Supreme Court of the United States

Ocroser TERM, 1977

FRANK O’NEAL ADDINGTON,

Appellant,

VS.

THE STATE OF TEXAS,

Appellee.

APPEAL FROM THE JUDGMENT OF THE

SUPREME CouRT OF THE STATE OF TEXAS

BRIEF OF THE NATIONAL CENTER FOR LAW AND

THE HANDICAPPED, AMICUS CURIAE

RONALD M. SOSKIN

National Center for Law and

the Handicapped

1235 North Eddy Street

South Bend, Indiana 46617

Counsel for Amicus Curiae

Of Counsel:

BRIAN J. LINN

The Scheffer Press, Inc.—(312) 263-6850

SUBJECT INDEX

PAGE

MRO GE CIID CII | Sn ccitesiniccnensthipncencesescncctrsinsncicknn 1

Question Presented by Amicus .20........eecceeceeceeeeeeeeeee ee 2

I OE TIN TIIIID = pices cnictseucitenssneitceectetaniciiataaiitalineniaapanosen 3

a RE EME ane 4

II his inicccccittivdinsicnnnniliss Naasepbiaseaiideansiaanenies niaiitinsaddiandiniti 7

I. Balancing The State’s Decreasing Interest In In-

voluntary Hospitalization With The Individual’s

Fundamental Interest In‘ Liberty Requires A

Standard Of Proof Greater Than A Mere Pre-

ponderance Of The Evidence ~......20...2.2......2 0

A. The State’s Interest in Involuntary Hospital-

ization Has Decreased Over the Past Two

yi RENT a ITO ee ER aay a et ae a

1. The State’s Interest in Involuntary Hos-

pitalization Developed Historically Because

of the Lack of Alternatives to Institutional

CD» iililaaiitaitseneckitaibsnnsinitinaioin’ sastisndbthahtcabialiiasiectotins

2. The Development of Community-Based

Residential and Treatment Services Has

Significantly Reduced the State’s Reliance

upon Involuntary Hospitalization

B. Involuntary Civil Commitment Seriously

Abridges an Individual’s Fundamental Interest

FR CT Taicerenignicsteiictratitiieiiiesabenigiiadtieniadiveienapieationnts

1. The Court Has Previously Recognized the

Deprivation of Liberty Which Occurs as a

Result of the Commitment Process ............

II.

Itt.

PAGE

The Liberty Interest in Civil Commitment Is

at Least as Important as the Liberty In-

terest in Juvenile and ‘‘ Mentally Disordered

Sexual Offender’’ Cases in Which the Rea-

sonable Doubt Standard Has Been Required

The Liberty Interest Threatened by C‘vil

Commitment Merits, at a Minimum, the

Same Protections Established by the Court

in Other Civil Matters Which Require a

Standard of Clear and Convincing Evidence

C. The Overwhelming Weight of Authority Favors

a Standard of Proof in Civil Commitment Pro-

ceedings Which is More Stringent Than Pre-

ponderance of the Evidence 20... eeeeeee

The Inexact Nature Of The Psychiatric Testimony

Relied Upon In Civil Commitment Proceedings

Supports The Need For The Evidence To Meet A

Reasonable Doubt Standard 0.22.

A. Psychiatrists Cannot Reliably Diagnose In-

dividuals for the Purpose of Determining the

Need for Care and Treatment —......0000.0020...

B. Psychiatrists Cannot Accurately Predict the

Future Dangerousness of Individuals

C. The Reasonable Doubt Standard Should Not

Be Compromised Because of Inexact Elements

OE INGE | ccccce—sassrssinsteinnsiiciaiamieeen

The Implications Of This Court’s Decision Will Be

Far-Reaching, Affecting Not Only Mentally Ill

Persons But Also Other Handicapped Individuals

By Establishing The Extent Of Constitutional

Constraints Required In The Civil Commitment

I i naincevesasthnacnhesiostoentanigstnaceeiciacaeee

ill

PAGE

A. The Standard of Proof in a Civil Commitment

Proceeding Has a Substantial Effect Upon the

Ultimate Determination of the Trier of Fact... 45

B. The Application of a Strict Standard of Proof

Will Elevate the Commitment Process to a

Level Consonant With the Nature of the Liberty

kg RR NE 47

C. Unless a Strict Standard of Proof is Required,

Numerous Other Classes of Handicapped Per-

sons, Who Have Only Recently Defeated the

Social Impulse Toward Institutionalization and

Redirected Public Concern Toward Community

Care and Integration, Will Once Again Be

Threatened With Involuntary Commitment to

AE I oe 50

ES RET EES SAPS, ERE, Se SO DY 52

TABLE OF AUTHORITIES

Cases

Bartley v. Kremens, 402 F. Supp, 1039 (E.D. Pa. 1975),

vacated and remanded, 431 U.S. 119 (1977), rede-

cided, Institutionalized Juveniles v. Secretary of

Public Welfare, No. 72-2272 (E.D. Pa. May 25, 1978),

prob, juris. noted, ........ ay tin ees .25, 30

Baxstrom v. Herold, 383 U.S. 107 (1966) _... «38

Bell v. Wayne County Hospital, 384 F. Supp. 1085

ge ae ae ES cr 43

Chaunt v, United States, 364 U.S. 350 (1960) -........... 23

Commonwealth ex rel. Finken v. Roop, 339 A.2d 764

Pe Gees Se a... aac as danicierdeere 25°

PAGE

Denton v. Commonwealth, 383 S.W.2d 681 (Ky. Ct.

Di: TEE Wkiineeiscaclnndtintien neiiaiobidlie .

Dixon v. Attorney General of Commonwealth of Pa.,

325 F. Supp. 966 (M.D. Pa, 1971) ...................25, 26, 43

Dixon v. Weinberger, 405 F. Supp. 974 (D.D.C. 1975) 13

Donaidson v. O’Connor, 493 F.2d 507 (5th Cir. 1974),

vacated and remanded, 422 U.S. 563 (1975) ............ 29

Doremus v. Farrell, 407 F. Supp. 509 (D. Neb. 1975) ..25, 26,

30, 43

French v. Blackburn, 428 F. Supp. 1351 (M.D.N.C.

| ES eee Red Fe ee Cee: Re ON Te Te SO 25

Goldy v. Beal, 429 F. Supp. 640 (M.D. Pa. 1976) ........ 43

Halderman v. Pennhurst State School and Hospital,

446 F. Supp, 1295 (E.D. Pa. 1977) and No. 74-1345

Ces. iy I Ug TI ccd ceeteeccetceerebreniene 51

Horacek v. Exon, 354 F. Supp. 71 (D. Neb. 1973) and

Ss TI BON, BE iecereccrcickictersiscetsincsscentoine 51

Humphrey v. Cady, 405 U.S. 504 (1972) 17

In re Andrews, 354 N.E.2d 15 (Mass. Sup. Jud. Ct.

1975) .... , Scmepunaiitee 22

In re Ballay, 482 F.2d 648 (D.C. Cir. 1973) ..25, 26, 27, 28, 47

In re Beverly, 342 So. 2d 481 (Fla. 1977) ~........... .25, 30

Se I ER eircercsrneteetnicpscntiinsincenins 18

In re Hodges, 325 A.2d 605 (D.C. App. 1974) -....... 25, 26

In re Levias, 83 Wash, 2d 253, 517 P.2d 588 (1973) 25, 26, 46

In re Winship, 397 U.S. 358 (1970) -.200........ 18, 19, 20, 46

Jackson v. Indiana, 406 U.S. 715 (1972) -0.0.0........-..- 17

J.L. and J.R. v. Parham, 412 F. Supp. 112 (M.D. Ga.

1976), prob. juris. noted, 45 U.S.L.W. 3373 (1977),

reargument ordered, 46 U.S.L.W. 3452 (1978) ........ 18

Klapprott v. United States, 335 U.S. 601 (1949) —......... 45

Lessard v, Schmidt, 349 F. Supp. 1075 (E.D. Wis.

1972), remanded, 414 U.S. 473 (1974), reinstated,

379 F. Supp. 1376 (E.D. Wis. 1974), remanded, 421

U.S. 957 (1975), reinstated, 413 F. Supp. 1318 (E_D.

Wis. 1976) ........ 25, 26, 43, 47

Lynch v. Baxley, 386 F. Supp. 378 (M.D. Ala. 1974) ..25, 26,

30, 43

Matter of Valdez, 88 N.M. 338, 540 P.2d 818 (1975) .. 25,

Matter of Ward, 533 P.2d 896 (Utah 1975) _2..0...... 25

Minnesota ex rel. Pearson v. Probate Court, 309 U.S.

270 (1940) ‘ hie OD

Morrissey v. Brewer, 408 U.S. 471 (1972) ou... 7, 27

Murel v. Baltimore City Criminal Courts, 407 U.S. 355

(1972) 21, 44, 46

New York State Association for Retarded Children and

Parisi v. Carey, 357 F. Supp. 752 (E.D.N.Y. 1973)

and 393 F. Supp. 715 (E.D.N.Y. 1975) 51

Nishikawa v. Dulles, 356 U.S. 129 (1958) wae

O’Connor v. Donaldson, 422 U.S. 563 (1975) -......16, 29

People v. Burnick, 535 P.2d 352 (Cal. 1975) -............ 22

People v. Pembrock, 62 Ill. 2d 317, 342 N.E. 2d 28

Aad mtbr cteentoes > Ian eA GR Saad arb De 99

PAGE

People v. Sansone, 18 Ill. App. 3d 315, 309 N.E.2d

TSB (IBGE) . ..ncncceneenee sesilinnlssaaiadaiiiial 25, 26, 28, 30

Proctor v. Butler, 380 A.2d 673 (N.H. 1977) ........ 25, 26, 43

Rosenbloom v. Metromedia, 403 U.S. 29 (1971) ........ 24

Schneiderman v. United States, 320 U.S. 118 (1943) ..... 23

Specht v. Patterson, 286 U.S. 605 (1967) -................. 21

Speiser v. Randall, 357 U.S. 513 (1958) ~. 17,19

Stamus v. Leonhardt, 414 F. Supp. 4389 (S.D. Ia.

BGTS) canccasesrenrssnectnesina .25, 26, 43

State ex rel. Hawks v. Lazaro, 202 S.E.2d 109 (W. Va.

|| if | enna ee ees 25, 30

State ex rel. Memmel v. Mundy, No. 441-417 (Cir. Ct.

Wis. August 8, 1976), appealed on other grounds,

75 Wis. 2d 276, 249 N.W.2d 573 (1977) ...................... 47

State v. Turner, 556 S.W.2d 563 (Tex. 1977) ............ 3, 45

State v. O’Neill, 545 P.2d 97 (Ore, 1976) -..W................. 25

Suzuki v. Alba, 438 F. Supp. 1106 (D. Haw. 1977) ....25, 43

Suzuki v. Quisenberry, 411 F. Supp. 1113 (D. Haw.

{| oe 25, 26, 43, 47

Tippett v. Maryland, 436 F.2d 1153 (4th Cir. 1971),

cert. dismissed as improvidently granted, Murel v.

Balt, City Crim. Cts., 407 U.S. 355 (1972) -....2...... 21

United Mine Workers v. Gibbs, 383 U.S. 715 (1966) .... 45

United States ex rel. Mathew v. Nelson, No. 72 C 2104

(N.D. Ill. April 13, 1978) ~............. asiecemeiihaalaia bide 43

United States ex rel, Stachulak v. Coughlin, 520 F.2d

O51 (7th Clr. 1GTG) ccccccsacincencseetnneaane =

vii

PAGE

Welsch v. Likins, 373 F. Supp. 487 (D. Minn. 1974),

aff’d in part, remanded in part, 550 F.2d 1122 (8th

UT allel i ciatinsilibdhlcasscl hecacias tlalceanidineninisbingiaiiansbatien sions 51

Woodby v. Immigration Service, 385 U.S. 276 (1966) .. 23

Wyait v. Stickney, 344 F. Supp. 387 (M.D. Ala. 1972),

aff’d sub. nom., Wyatt v. Aderholt, 503 F.2d 1305 (5th

S| Bay ee aan EN RES SE wD CP RSS ee 51

Statutes

Community Mental Health Centers Amendments of

I PR TI icici teninleaemeestnmnaiisianceliath 14

Community Mental Health Centers Construction Act

eee MA I ccrransecsneaperenctenicetncmrintbiniinintionie 12

Developmental Disabilities Assistance and Bill of

Bee BOG, GE UT, FID oncsceicitinictccermntneinttinitncss semen 51

Housing and Community Development Aet of 1974,

co IIE ti ttaadineicianiehiiceanitsnasigbiciimnelbitidianieis 14

Fourteenth Amendment ......................... loiheniinishiintasnapabina passim

Mental Health Study Act of 1955, ch. § 417, § 3, 69

iain dinenuiinceomsannitasnnenieonniehinentinmniitpibele 11

Rehabilitation Act of 1973, 29 U.S.C. § 701 et seq... 14

Special Health Revenue Sharing Act of 1975, 42 U.S.C.

ST peetaea a RA i anccealn citar ccimnpnninseetninccstietenidndarntgeiccabhate 13

Title XX of the Social Security Act, 42 U.S.C. § 1397... 14

eee

PAGE

Books and Articles

Ahmed and Plog, Introduction and an Overview of the

Closing Scene, in State Mental Hospitals: What

Happens When They Clese 3 (Ahmed and Plog, eds.

SITE dilstntinicascieinaidniees sated : ae |

Albers and Pasewark, Involuntary Hospitalization:

Surrender at the Courthouse, Am. J. Comm. Psych.

SI TIT din iisibasbasticieaciiesvets-sikisiouat angen eatincenserpapehcensintsb 48

Albers, Pasewark and Meyer, Involuntary Hospitaliza-

tion and Psychiatric Testimony: The Fallibility of

the Doctrine of Immaculate Perception, 6 Cap. U. L.

By ek EE achetearecnisnsionsntlnahidvensalibdaclidbaahencialashinaioniedl 32, 48

American Psychiatrie Association, Clinical Aspects of

the Violent Individual, Task Force Report 8 (1974) 41

Bazelon, Institutionalization, Deinstituttonalization and

the Adversary Process, 75 Colum. L. Rev. 897

S| EESSES SE Sernrmoa eee nae ee ‘ 37, 42

Beck, Ward, Mendelson, Mock and Erbaugh, Reliability

of Psychiatric Diagnosis: A Study of Consistency

of Clinical Judgments and Ratings, 119 Am. J. Psy-

is BE SC PUIED Seitincscsasccesmamsiciahinnins 32

Blatt, Souls in Extremis: An Anthology on Victims

and Victimizers (1973) ................ 50

Burger, Psychiatrists, Lawyers, and the Courts, 28 Fed.

I ie IIE scnecstsecsnstnncnnecbiteinteeapaioesiita cee sales 31

Chambers, Alternatives to Civil Commitment of the

Mentally Ill: Practical Guides and Constitutional

Imperatives, 70 Mich. L. Rev. 1107 (1972) ....10, 11, 12, 16

Cocozza and Steadman, The Failure of Psychiatric

Predictions of Dangerousness: Clear and Convincing

Evidence, 29 Rutgers L. Rev. 1084 (1976) ................ 39, 40

PAGE

Cohen, The Function of the Aitorney and the Com-

mitment of the Mentally Ill, 44 Tex. L. Rev. 424

CREE -nwriessenssienekiiaan ; 49

Commission for the Control of Epilepsy and Its Con-

sequences, The Plan for Nationwide Action on

J at} eno 50

Comptroller General of the United States, Report to

the Congress—Returning the Mentally Disabled to

the Community: Government Needs to Do More

kee snnnninemepainiiiaie 11, 12, 13,14

Curran, Hospitalization of the Mentally Ill, 31 N. Car.

L. Rev. 274 (1953) ................. 9,10

Dershowitz, The Law of Dangerousness: Some Fictions

About Predictions, 23 J. Leg. Educ. 24 (1970) ........ 35, 36

Deutsch, The Mentally Ill in America (1949) ............ 8,9, 10

Diamond, The Psychiatric Prediction of Dangerous-

ness, 123 U. Pa. L. Rev. 439 (1974) .......20....... 36, 41

Dorsen and Rezneck, In re Gault and the Future of

Juvenile Law, 1 Fam. L.Q. 1 (Dec. 1967) ................ 46

Ennis, The Rights of Mental Patients, in The Rights

of Americans (Dorsen ed. 1970) . 39

Ennis and Litwack, Psychiatry and the Presumption

of Expertise: Flipping Coins in the Courtroom, 62

Calif. L. Rev. 693 (1974) ........ 32, 33, 42

Frank, Psychiatric Diagnosis: A Review Of Research,

81 J. Gen. Psychol. 157 (1969) 34

Hunt and Wiley, Operation Baxstrom After One Year,

124 Am. J. Psychiat. 974 (1968) 38

Joint Commission on Mental Illness and Health, Ac-

tion for Mental Health (1961) . ; 11

PAGE

Kittrie, The Right to Be Different (1971) ........ 8, 9, 10, 49

Kozol, Boucher and Garofalo, The Diagnosis And

Treatment of Dangerousness, 18 Crime and Deling.

S72 (UOTE) np eee 39, 42

Kugel, Introduction, in President’s Committee on Men-

tal Retardation, Changing Patterns in Residential

Services for the Mentally Retarded 3 (rev. ed. 1976) 50

Kumasaka and Gupta, Lawyers and Psychiatrists in

the Court: Issues on Civil Commitment, XXXII Md.

Ln BOO. © (GGT ED ciccccincscisconiepttisoneitcentniondaaanaaaiaee 35

Livermore, Malmquist, and Meehl, On the Justifica-

tions for Civil Commitment, 117 U. Pa, L. Rev. 75

(TRGB) sacoceieshisninanins ininticistinsasuiciisetenseidsissiaadaniasaanaaa 36, 37

Luby and Morris, Civil Commitment in a Suburban

County: An Investigation By Law Students, 13

Santa Clara Lawyer 518 (1973) ..2.2...........:ccccssceseeseseees 49

Mendel, The Case for Closing of the Hospitals, in

State Mental Hospitals: What Happens When They

Close 21 (Ahmed and Plog, eds. 1976) 0.00.0... 12

Menolascino, Challenges in Mental Retardation (1977) 50

Miller and Schwartz, County Lunacy Commission Hear-

ings: Some Observations of Commitments to a State

Mental Hospital, 14 Social Prob. 26 (1966) ............ 48

Note, Developments in the Law—Civil Commitment

of the Mentally Ill, 87 Harv. L. Rev. 1190 (1974) .... 22

Peterson and Seo, Bayesian Analysis of Overpredic-

tion of Insanity, 34 Psychol. Rep. 207 (1974) ........... . 35

President’s Committee on Mental Retardation, Chang-

ing Patterns in Residential Services for the Mentally

Retarded (rev, ed. 1976) 9 ....0.0002..... eile iiateaielbatahelinicial 50

PAGE

Rock, Jacobson and Janopaul, Hospitalization and

Discharge of the Mentally Ill 12 (1968) -.. 9

Rosenhan, On Being Sane In Insane Places, 13 Santa

be ki D> 5 enema Cone ea ce 33, 34

Rubin, Prediction of Dangerousness in Mentaily Ill

Criminals, 27 Arch. Gen. Psyeh. 397 (1972) ................ 42

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(BEAD ...cnccsitosatuidenlagicetaiaiieaicumagaieobdeaimaminlonies 48

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ER Ae || Ce eee ae NT eee oe 49

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xii

PAGE

Wigmore on Evidence, 5 § 1400 (Chadbourne rev. ed.

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gE | Nene ee ere Ne Te ae

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OUURIOIY CMD Gs TPT) cecncestsitiecincntsendcctssoncticsepteceas

a np el *

In the

Supreme Court of the United States

OctosBer TERM, 1977

No. 77-5992

FRANK O’NEAL ADDINGTON,

Appeilant,

vs.

THE STATE OF TEXAS,

Appellee.

APPEAL FROM THE JUDGMENT OF THE

SUPREME Court OF THE State oF TExas

BRIEF OF THE NATIONAL CENTER FOR LAW AND

THE HANDICAPPED, AMICUS CURIAE

INTEREST OF AMICUS CURIAE

The National Center for Law and the Handicapped was

established in July, 1972, to advocate for the legal rights

of all handicapped individuals through the provision of

legal assistanee, legal and social science research activi-

ties, and programs and processes of education and profes-

sional awareness.

The Center is jointly funded by the Bureau of Educa-

tion for the Handicapped, Office of Education, and as a proj-

ect of national significance by the Developmental Dis-

abilities Office, Office of Human Development, of the United

States Department of Health, Education, and Welfare. The

Center’s sponsoring agencies are the National Association

for Retarded Citizens, the Family Law Division of the

American Bar Association, the University of Notre Dame

School of Law, and the Councii for the Retarded of St.

Joseph County (Indiana).

Assistance for disabled individuals is provided through

direct legal intervention in selected cases and indirectly

through consultation with attorneys, organizations, and

individuals considering or involved in litigation. The

Center has been admitted in numerous court cases, serving

primarily in the role of amicus curiae.

The legal and social science staff also provides assistance

to attorneys, legislators and various organizations work- -

ing in areas involving the disabled through consultation,

legal research and the drafting of model pleadings and

briefs.

Research activities of the legal and social science staff

are broad-based and multi-disciplinary in nature. They

have been designed to facilitate legal reform and to allow

a fuller realization of the legal rights of the handicapped.

Amicus has received consent from both appellant and

appellee to file this brief. Their consents are on file with

the Clerk of the Supreme Court.

QUESTION PRESENTED BY AMICUS

Whether a state, in depriving an allegedly mentally ill

individual of his fundamental right to liberty through a

process of involuntary civil commitment for an indefinite

At ORL EIRE ORE EO EN EE Ee

a 2 COEOE < 1 N

wereee ern

period of time, may permissibly, pursuant to the Due

Process Clause of the Fourteenth Amendment, apply a

standard of proof less stringent than ‘‘beyond a reason-

able doubt?’’

STATEMENT OF THE CASE

Frank Addington was civilly committed to a psychiatric

hospital for an indefinite period of time after a jury de-

termined that he was mentally ill and that he required hos-

pitalization in a mental hospital for his own welfare and

protection or the protection of others. The trial court

applied a standard of proof of ‘‘clear, unequivocal and

convincing evidence.’’

Relying upon the decision of its sister court in Turner

v. State, 542 S.W.2d 453 (Tex. Ct. App. 1976), the Texas

Court of Civil Appeals reversed this decision, holding that

the standard of proof of ‘‘beyond a reasonable doubt’’ is

required in such proceedings. However, the Texas Supreme

Court reversed the decision of the eourt of civil appeals,

relying on its decision in State v. Turner, 556 S.W.2d 563

(1977).

In State v. Turner, the Texas Supreme Court adopted

a standard of proof of preponderance of the evidence, rely-

ing on three basic distinctions between civil and criminal

proceedings to justify a less stringent standard than that

applied in criminal prosecutions. First, tre eourt rea-

soned that the patient, although committed 1or an indefinite

period of time, had a right to treatment, to periodic re-

view, and to be released when no longer found to be a

danger to self or others. Second, the court distinguished

the need to make a determination of future conduct in a

civil commitment from the assessment of past conduct

which is made in a criminal case. Finally, the court justified

the lower standard by the rationale that psychiatry is not

an exact medical science.

Frank Addington appealed the decision of the Texas Su-

preme Court and the United States Supreme Court noted

probable jurisdiction.

SUMMARY OF ARGUMENT

The standard of proof required by due process in in-

voluntary civil commitments must be determined by bal-

ancing the interests of the individual against the interests

of the state. In Part I of this brief, Amicus argues that

the individual’s interest in liberty, when balanced against

the state’s decreasing interest in involuntary hospitaliza-

tion, requires the utilization of a standard of proof greater

than a mere preponderance of the evidence.

Until the middle of the nineteenth century, mentally ill

persons were treated harshly, and they were often indis-

criminately mixed with paupers and criminals. A reform

movement aimed at providing treatment to individuals

with mental illness led to the construction of massive,

isolated mental hospitals during the latter half of the nine-

teenth century. Soon after, however, the focus of these in-

stitutions shifted to eustody rather than treatment.

Until two decades ago, these institutions provided the

only mechanism whereby the state could attempt to achieve

its interests in protecting mentally ill individuals or in

protecting society. However, in the past two decades,

community-based residental and treatment services have

been developed as an alternative to institutionalization

on an extremely large scale. In addition, the available

treatment is increasingly being sought on a voluntary basis

by individuals who are mentally ill.

Thus, amicus contends that the state’s need to involun-

tarily deprive an individuai of his or her liberty in order

to achieve its interests has been greatly diminished. The

state’s interests can be, and are being, achieved through

other methods.

In analyzing the individual’s fundamental imterest in

liberty, amicus argues that this interest is seriously

abridged by involuntary civil commitment. Amicus cites

the recognition which the Court has previously given to

the deprivation of liberty which results from civil commit-

ment and argues that the liberty interest im civil commit-

ment is as important as the liberty interest presented in

juvenile hearings and ‘‘mentally disordered sexual of-

fender’’ cases, in which the Court has applied a reasonable

doubt standard. In addition, amicus demonstrates that the

liberty interest at issue in civil commitment is at least

as important as the numerous individual’s interests at

stake in denaturalization and deportation proceedings, in

which the Court has required that the evidence meet a

standard of proof of clear and convincing evidence, Amicus

asserts that the preponderance of the evidence standard ap-

plied in many routine civil matters is insufficient to con-

stitutionally protect the individual’s overriding right to

liberty.

In Part Il of this brief, amicus discusses the inexact

nature of psychiatric ‘‘diagnoses’’ and the role of psy-

chiatric evidence in the civil commitment process. The

relevant literature is first reviewed to show that psy-

chiatrists cannot reliably determine the threshold issues

of whether an individual is mentally ill or whether an in-

dividual is in need of care and treatment. The relevant

literature is then reviewed to show the inaccuracy of psy-

chiatric predictions of future dangerousness.

Amicus illustrates that neither a reasonable doubt stan-

dard nor a clear and convincing standard can be realistical-

ly achieved by total reliance upon psychiatric evidence.

Amicus urges that the standard of proof not be weakened

merely because the civil commitment statutes define ele-

ments of proof which are too inexact to be reliably proven.

' It is suggested that by adopting elements of proof which

are subject to objective consideration, the state’s interest

can be fulfilled without compromising the individual’s

liberty interest. Hence, amicus argues that the reasonable

doubt standard is constitutionally required in civil commit-

ment proceedings.

In Part ill of this brief, amicus calls the Court’s atten-

tion to the far-reaching implications of their decision.

Amicus argues that the standard of proof required does

substantially affect the ultimate determination of the trier

of fact. Amicus then discusses the abuses which have re-

sulted from the traditional informality in civil commitment

hearings. Amicus asserts that the Court’s decision on the

standard of proof issue will have substantial impact upon

the legislative trend to formalize commitment proceedings

in a manner consistent with the liberty interests at stake.

Finally, amicus examines the evolving social policy of

providing cuimmunity care and treatment to other classes

of handicapped individuals. While the case at Bar ad-

dresses the standard of proof in proceedings to civilly com-

mit mentally ill individuals, the Court’s decision will ulti-

mately affect the processes for committing other handi-

capped individuals.

Amicus asserts that only by applying a reasonable doubt

standard of proof can a recurrence of the past social prac-

tices of routinely isolating handicapped persons in massive

institutions be prevented.

Sa RS OE ee

ARGUMENT

BALANCING THE STATE’S DECREASING INTEREST

IN INVOLUNTARY HOSPITALIZATION WITH THE

INDIVIDUAL’S FUNDAMENTAL INTEREST IN LIB-

ERTY REQUIRES A STANDARD OF PROOF GREAT-

ER THAN A MERE PREPONDERANCE OF THE EVI-

DENCE.

Due process is not a fixed concept; its requirements vary

depending on the various interests involved in a given situa-

tion. Due process commands a balancing approach which

weighs the relative importance of competing interests.

[D]ue process is flexible and calls for such procedural

protections as the particular situation demands.

‘*(Cjonsideration of what procedures due process may

require under any given set of circumstances must

begin with a determination of the precise nature of

the government function involved as well as of the

private interest that has been affected by governmental

action.’’

Morrissey v. Brewer, 408 U.S. 471, 481 (1972) (citations

omitted).

The standard of proof dictated by procedural due process

will reflect the comparison of the interests of the individual

with the interests of the state. In civil commitment pro-

ceedings the individual’s interest is a fundamental interest

in liberty. The state’s interest asserts the parens patriae

rationale of protecting mentally ill individuals and the

police power rationale of protecting society. In recent years,

the state’s interest in civil commitment has been decreasing,

while the individual’s liberty interest, in a variety of con-

texts, has been increasingly strengthened by the judiciary

through due process restrictions upon state-sponsored de-

privations of liberty.

A. The State’s Interest in Involuntary Hospitalization

Has Decreased Over the Past Two Decades.

1. The Stete’s Interest n Involuntary Hospitalization

Developed Historically Because of the Lack of Alternatives

to Institutional Care. The sources of the state’s power to

commit mentally ill individuals derive from our Anglo-

American political system. The state’s power is exercised

under the parens patriae power to protect the individual

and under the police power to protect the public. For

centuries, mentally ill persons were not treated as members

of a distinct class; rather, if nonviolent and indigent, they

were lumped with other paupers who received ‘‘ protective’’

treatment under parens patriae notions and, if violent, they

were processed as criminals under the police power.”

Prior to the mid-nineteenth century, mentally ill in-

dividuals experienced social treatment which included be-

ing: exorcised to drive out evil spirits, hung as witches,

chained in cages and kennels with regular whippings, auc-

tioned off as paupers, and incarcerated in prisons and alm-

houses. Beginning in about 1830, the general belief in

the incurability of mental illness shifted to an optimistic

’ Kittrie, The Right to Be Different 58 (7971) (hereinafter cited

as Kittrie).

2 Id. at 62.

* Deutsch, The Mentally Ill in America 517 (1949) (hereinafter

cited as Deutsch).

Re oe

view of the curability of all mentally ill persons.* In the

1840’s and the 1850’s, the crusading work of Dorothea Dix

to improve conditions for mentally ill persons in poorhouses

combined with the new focus on curability to generate the

first large-scale establishment of institutions specifically

designed and operated for the treatment of mentally ill in-

dividuals.°®

These new approaches joined with other contemporary

social and economic developments—ranging from the in-

dustrial revolution through the altered and increased com-

plexities of social order and relationships to the rapid ex-

pansion of population and urbanization—to produce the

solution for the problem of mental illness. That solution

was to gather all mentally ill people together and confine

them in institutions, isolated from society in rura! areas.®

With the rapid construction of mental hospitals came the

need for involuntary commitment procedures. As civil

commitment laws were legislatively adopted during the

mid-nineteenth century, they initially sought to protect only

the societal concerns. These statutes constructed very in-

formal procedures designed to favor administrative ease,

and they were almost void of concern for the individual’s

personal rights.’

4Jd. at 132; Rock, Jacobson & Janopaul, Hospitalization and

Discharge of the Mentally Ill 12 (1968) (hereinafter cited as Rock,

Jacobson & Janopaul).

5 Deutsch, supra note 3, at 159. The institutional model grew out

of the framework of workhouses ind public hospitals. Kittrie, supra

note 1, at 61.

® Deutsch, supra note 3, at 186-87.

7 Curran, iZospitalization of the Mentally Ill, 31 N. Car. L. Rev.

274, 275 (1953) (hereinafter cited as Curran); Rock Jacobson &

janopaul, supra note 4, at 14-16. Interestingly, the early procedural

rules existed not to prevent improper commitment but to keep out

paupers and vagabonds who might desire the perceived benefits of

the institution. Kittrie, supra note 1, at 64.

In the 1860’s Dorothy Packard started a crusade to

arouse public concern and eliminate the ‘‘railroading’’ of

individuals into asylums after her release from an Illinois

mental hospital.* Her exposures resulted in many states

introducing formal guarantees of minimal due process in

the involuntary commitment process.®

However, by the last quarter of the nineteenth century,

the failure of mental hospitals to ‘‘cure’’ a significant por-

tion of their mental patients caused public disillusionment

and a period of reaction, spurring a new cycle of institu-

tional neglect.’° Institutions grew larger and focused main-

ly on custody rather than treatment; the Depression of the

1930’s and the Second World War exacerbated the prob-

lems."

This approach continued undaunted until the past two

decades. For approximately one hundred years many doc-

tors prescribed hospitalization as ‘‘the only acceptable form

of treatment for the mentally ill.’’”

Until the mid-1950’s, institutionalization was viewed as

the only available means of insuring the state’s interest of

protecting society. However, with the more recent avail-

ability of alternatives which entail fewer restrictions upon

individual liberty, the state’s interest in involuntary con-

finement to an institutional environment has decreased

concomitantly,

8 Kittrie, supra note 1, at 65; Curran, supra note 7, at 275-76.

® Kittrie, supra note 1, at 65.

10 Deutsch, supra note 3, at 157.

11 Td. at 446-50.

12 Chambers, Alternatives to Civil Commitment of the Mentally

Ill: Practical Guides and Constitutional Imperatives, 70 Mich. L.

Rev. 1107, 1112 (1972) (hereinafter cited as Chambers).

2. The Development of Community-Based Residential

and Treatment Services Hias Significantiy Reduced the

State’s Reliance upon Involuntary Hospitalization. The

last two decades have witnessed a significant decrease in

the resident population of public mental hospitals.* The

ill-fated development of mental institutions was

a movement begup by Dorothea Dix that started as the

hope of the future for the mentally disturbed, and is

now ending with hopes shattered and expectations un-

met, under the aegis of judicial scrutiny, and with

public outery. The mental hospital, as an institution,

is under fire, not for what it has done for the mentally

disturbed and ill but what it has not done.“

In 1955, the demise of institutionalization as the primary

response to societal concerns began with the establishment

by Congress of a commission to study the existing mental

health programs and facilities in the United States.» The

commission’s report, issued in 1961, urged the rapid

development of outpatient clinics and services and a de-

creased emphasis on inpatient mental hospitals.’® The late

President Kennedy responded by calling for decreasing

13 After peaking in 1955 with 559,000 persons institutionalized

for mental illness, the numbers decreased to 504,600 in 1963 and to

215,500 in 1974. Comptroller General of the United States, Report

to the Congress—Returning the Mentally Disabled to the Com-

munity: Government Needs to Do More 8 (1977) (hereinafter

cited as Comptroller General Report).

4 Ahmed & Plog, /ntroduction and An Overview of the Closing

Scene, in State Mental Hospitals: What Happens When They Close

3 (Ahmed & Plog, eds. 1976).

15 The Mental Health Study Act of 1955, ch. 417, § 3, 69 Stat.

382, cited in Chambers, supra note 12, at 1114.

16 Joint Commission on Mental illness and Health, Action for

Mental Health (1961), cited in Chambers, supra note 12, at 1115.

by one half the population of mental hospitals; Congress

passed the Community Mental Health Centers Construc-

tion Act of 1963, 42 U.S.C. § 2689, committing substantial

federal funds for the creation of community-based treat-

ment facilities by the states."

The 1950’s also marked the development of tranquilizing

medication which enabled many patients, who previously

had been hospitalized, to be treated in the community."®

Studies comparing hospital-based treatment to community-

based treatment made striking conclusions,

The hospital as a form of treatment for the severely

ill psychiatric patient is always expensive and in-

efficient, frequent!y anti-therapeutic, and never the

treatment of cbvice,

There are "uany studies in the psychiatric literature

of the last two decades which report that forms of

treatment other than hospitalization are superior in

terms of outcome for the severely ill psychiatric

patient. ... In terms of the patients’ posttreatment

function, need for further treatment, and improvement

in symptoms, patients who were not hospitalized always

did better than matched patients who were treated in

hospitals.’

Amicus recognizes that the relative value of community-

based alternatives to institutional confinement is not at

issue in the case at Bar. However, amicus asserts that

the existence of widespread community-based alternatives,

together with the support given such alternatives by count-

17 Comptroller General Report, supra note 13, at 3.

18 Chambers, supra note 12, at 1117.

1” Mendel, The Case for Closing of the Hospitals, in State Mental

Hospitals: What Happens When They Close 21 (Ahmed & Plog

eds. 1976).

less mental health professionals and by the federal and

state governments, illustrates the reduced reliance current-

ly placed upon the involuntary commitment process. Mere-

ly summarizing the existing federal programs highlights

the community services available to those mentally ill per-

sons whom the state believes may need care or treatment.

There are at least 135 federal programs, of which 89

are operated by the Department of Health, Education and

Welfare, which serve the mentally disabled either directly

or indirectly and which fund services for such individuals.”

In 1963, the Community Mental Health Centers program

sought to insure that, whenever possible, mentally ill per-

sons be treated in their own communities.” Although this

program has accomplished much, in 1974 the Comptroller

General reported that the Act’s goals had not been effective-

ly achieved.” In order to more effectively carry out its

original intent, Congress responded by enacting the Specia’

Health Revenue Sharing Act of 1975, 42 U.S.C. §$ 246,78

2° Comptroller General Report, supra note 13, at 5.

21 See discussion, supra note 17 and accompanying text. Several

courts have required states to provide appropriate community-based

services to eliminate inappropriate hospitalization. See e.g. J.L. &

J.R. v. Parham, 412 F. Supp. 112 (M.D. Ga. 1976), prob. juris.

noted, 45 U.S.L.W. 3373 (1977), reargument ordered, 46 U.S.L.W.

3452 (1978): Dixon v. Weinberger, 405 F. Supp. 974 (D.D.C.

1975).

22 Comptroller General Report, supra note 13, at 67.

*8 Under this Act, states must establish and implement a plan to

eliminate inappropriate institutional placements and to insure the

availability of appropriate noninstitutional services. 42 U.S.C. §

246(d) (2) (D) (i) (1).

and the Community Mental Health Centers Amendments of

1975, 42 U.S.C. § 2689.7

As of July, 1975, $1.2 billion had been awarded by the

National Institute for Mental Heaith for the construction

and staffing of 603 community mental health centers which,

when operational, will serve 41 percent of the nation’s

population.” Other federal services which impact upon

the availability of community care include Medicaid, Medi-

eare, Supplemental Security Income, Vocational Rehabilita-

tion,” Housing Assistance,*’ and Social Services.** In

addition, a large number of mental health clinics have been

established by state and local governments and by private

organizations to provide such services as day treatment,

medication and psychiatric therapy.”

24 These amendments include the requirements that the community

mental health centers provide transitional halfway house services,

42 U.S.C. § 2689(b)(1)(G), and mental health center treatment,

42 U.S.C. § 2689(b) (1) (A), as alternatives to inhospital treatment.

25 Comptroller General Report, supra note 13, at 68.

*6 The Rehabilitation Act of 1973, 29 U.S.C. § 701 et seq., is

aimed particularly at efforts to rehabilitate those with severe dis-

abilities.

*7 The Housing and Community Development Act of 1974 re-

quires the consideration of low income, mentally disabied persons

in the Department of Housing and Urban Develonment’s housing

assistance plans. 42 U.S.C. § 1437a (2).

28 Under Title XX of the Social Security Act, 42 U.S.C. § 1397,

states receive federal funds to provide services aimed at five specific

goals, two of which are related to deinstitutionalization. 42 U.S.C.

§ 1397(1)-(5). For this program, $2.5 billion is available annually

to the states. 42 U.S.C. § 1397a (a)(2)(A).

29 Comptroller General Report, supra note 13, at 67.

This array of community-based services bears upon the

balancing of interests required to determine the standard

of proof which due process mandates in the involuntary

commitment process. Twenty years ago, if the state failed

in its attempt to involuntarily commit an individual be-

cause it could not meet the requisite standard of proof, the

individual would have been virtually without community

support services. If the state’s interest in protecting the

individual or society was valid, that interest could have

suffered. However, the numerous support services which

currently exist in the community operate to minimize any

risk that the state’s interests will not be fulfilled. The

wide availability of community services clearly diminishes

the state’s interest in civil commitment.

Finally, the increased utilization of voluntary admis-

sions also has influenced the decline in the need for in-

voluntary hospitalization. The persuasive force of family,

friends and community service providers has combined with

a heightened awareness among mentally ill individuals as

to the availability of mental health services to minimize the

need for state intervention. By 1972, ‘‘it was clear that

the pendulum had swung such that voluntary admissions

had come to outnumber involuntary, and that swing seems

to be continuing.’*° The treatment pattern. with its at-

tendant increase in voluntary care, reduces the risk to the

state and consequently decreases the state’s interest in in-

voluntary commitment.

8° Stone, Mental Health and Law: A System in Transition 43

(1975) (published by the National Institute of Mental Health)

(hereinafter cited as Stone). “Current reports suggested that in-

voluntary civil commitment is rapidly declining.” /d.

B. Involuntary Civil Commitment Seriously Abridges an

Individual’s Fundamental Interest in Liberty.

1. The Court Has Previously Recognized the Depriva-

tion of Liberty Which Occurs as a Result of the Commit-

ment Process. While the Court has never directly ruled

on the substantive or procedural requirements which are

constitutionally mandated in the civil commitment process,

the Court has recognized, in a series of decisions, that the

involuntary commitment of an individual involves a serious

deprivation of liberty.

In the most recent decision involving an involuntarily

committed mental patient, the Court narrowed the issue to

an ‘‘important question concerning every man’s constitu-

tional right to liberty.’’ O’Connor v. Donaldson, 422 U.S.

563, 573 (1975). The Court held that

a State cannot constitutionally confine withcut 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,

Id. 1t 576. In his concurring opinion, Chief Justice Burger

emphasized the overriding interest in liberty held by a

mentally ill inlividual who is nondangerous and capable

of surviving safely in freedom. Jd. at 578 (Burger C.J.,

concurring ).**

81“There can be no doubt that involuntary commitment to a

mental hospital, like involuntary confinement of an individual for

any reason, is a deprivation of liberty which the State cannot ac-

complish without due process of law.” 422 U.S. at 580 (Burger

C.J., concurring). See also Chambers, supra note 12, at 1158. “It

‘is indeed hard to accept that there can be any ‘fundamental personal

liberty’ . . . more fundamental than personal liberty itself and per-

sonal liberty is, of course, what is at risk in its most literal sense

for the mentally ill.” Among the fundamental interests which Cham-

bers argues are affected by civil commitment are the rights to travel,

of free association, to peaceably assemble, to communicate and re-

ceive communications, to exercise religious beliefs and to maintain

one’s privacy, though overriding is the right not to be physically

confined.

‘Considering the number of persons affected, it is per-

haps remarkable that the substantive constitutional limi-

tations on [the] power [to involuntarily hospitalize}] have

not been more frequently litigated.’’ Jackson v. Indiana,

406 U.S. 715, 737 (1972). In the case at Bar, the Court

is asked to decide the requisite standard of proof which the

state must meet in order to justify ‘‘a massive curtailment

of liberty.’’ Humphrey v. Cady, 405 U.S. 504, 509 (1972).

At stake is an individual’s liberty, ‘‘an interest of

transcending value.’’ Speiser v. Randall, 357 U.S. 513, 525

(1958). Amicus argues that the preservation of that

liberty interest requires that a substantial standard of proof

be met prior to ordering involuntary hospitalization. A

standard which permits commitment upon a mere showing

of preponderance of the evidence does not afford sufficient

due process protection to the individual’s liberty interest.

2. The Liberty Intercst in Civil Commitment Is at Least

as Important as the Liberty Interest in Juvenile and ‘‘ Men-

tally Disordered Sexual Offender’’ Cases in Which the

Reasonable Doubt Standard Has Been Required, Judicial

proceedings against juveniles historically provided infor-

mal standards and procedures, based upon the rationale that

the proceedings were civil in nature and based upon an

assumed benevolent intent to rehabilitate wayward youth.

In numerous respects, the former policies of administration

of juvenile justice parallel the current civil commitment

practices in many states.

In 1967, the Court looked beyond the asserted reasoning

to analyze the effect of the juvenile process upon the in-

dividual.

Ultimately, however, we confront the reality of that

portion of the Juvenile Court process with which we

deal in this case. A boy is charged with misconduct.

The boy is committed to an institution where he may

be restrained of liberty for years. It is of no constitu-

tional consequence and limited practical meaning that

the institution to which he is committed is called an

Industrial School. The fact of the matter is that, how-

ever euphemistic the title, a ‘‘receiving home’’ or an

‘industrial school’’ for juveniles is an institution of

confinement in which the child is incarcerated for a

greater or lesser time. His world becomes ‘‘a building

with whitewashed walls, regimented routine and ir-

stitutional hours... .’’ Instead of mother and father

and sisters and brothers and friends and classmates,

his world is peopled by guards, custodians, state em-

ployees, and ‘‘delinquents’’ confined with him for any-

thing from waywardness to rape and homicide.

In re Gault, 387 U.S. 1, 27 (1967) (footnotes omitted).

Rather than relying upon the labels attached to the pro-

cedures, the Court struck to the heart of the matter: com-

mitment means depriving a person of his or her liberty.

The Court applied the basie principles of due process to

juvenile proceedings, reasoning that

[t]o hold otherwise would be to disregard substance

because of the feeble enticement of the civil label of

convenience which has been attached to juvenile pro-

ceedings. ... For this purpose, at least, commitment

is a deprivation of liberty, It is incarceration against

one’s will, whether it is called ‘‘criminai”’ or ‘‘civil.’’

Id. at 49-50.

Three years after Gault, the Court considered whether

the ‘‘essentials of due process and fair treatment’’ re-

quire a reasonable doubt standard of proof in juvenile

proceedings. In re Winship, 397 U.S. 358, 359 (1970).

The Court recognized that the standard of proof is the

prime instrument for reducing the risk of convictions based

upon factual error and that the juvenile’s interests in

avoiding loss of liberty and stigmatization are of im-

mense importance. Drawing upon its earlier reasoning

in Speiser v. Randall, 357 U.S. 513, 525-26 (1958), the

Winship Court held:

There is always in litigation a margin of error, repre-

senting error in factfinding, which both parties must

take into account. Where one party has at stake an

interest of transcending value as a criminal defendant

his liberty—this margin of error is reduced as to

him by the process of placing on the other party the

burden of . .. persuading the fact finder at the conclu-

sion of the trial of his guilt beyond a reasonable

doubt. Due process commands that no man shall

lose his liberty unless the Government has borne the

burden of . . . convincing the factfinder of his guilt.

[U]se of the reasonable doubt standard is indispen-

sable to command the respect and confidence of the

community in applications of the criminal law. It is

critical that the moral force of the criminal law not

be diluted by a standard of proof that leaves people

in doubt whether innocent men are being condemned.

397 US. at 364.

The lower court had set forth three grounds for not

applying the reasonable doubt standard: the process did

not result in ‘‘convictions;’’ the adjudication affected no

rights or privileges, such as the right to hold public office

or obtain a license; and, a cloak of protective confiden-

tiality encompassed all the proceedings. Jd. at 365. In

rejecting this reasoning and applying the reasonable doubt

standard, the Winship Court referred to Gault: ‘‘We made

clear in that decision that civil labels and good intentions do

not themselves obviate the need for criminal due process

safeguards in juvenile courts.’’ Id. at 365-66.

The Winship Court reasoned that the benevolence of

the process would not be affected by the application of a

strict standard of proof. The reasonable doubt standard

was seen as a vehicle to ensure that the benevolent pur-

poses were applied only to those individuals who had ac-

tually behaved in a manner warranting governmental in-

trusion into their lives.”

Justice Harlan, concurring in the Court’s opinion in

Winship, performed a careful analysis of the comparative

social costs of erroneous factual determinations. He viewed

the standard of proof as instructing the factfinder on the

necessary degree of confidence in the correctness of the

factual conclusions. He also understood that the standard

of proof reflects a societal judgment as to the acceptable

tolerance of frequency of error.

In a civil suit between two private parties for money

damages, for example, we view it as no more serious

in general for there to be an erroneous verdict in the

defendant’s favor than for there to be an erroneous

verdict in the plaintiff’s favor.

In a criminal case, on the other hand, we do not view

the social disutility of convicting an innocent man as

82In the civil commitment process, this argument may be even

more compelling.

Given the record of past performance with the tragic parody

of legal commitment used to warehouse American citizens, it

is equally important that the individual feel sure that the mental

health system cannot be so used and abused. Indeed, it may be

more important for while the average citizen may have some

confidence that if called by the Grand Inquisitor in the middle

of the night and charged with a given robbery, he may have

an alibi or be able to prove his innocence, he may be far less

certain of his capacity, under the press of fear, to instantly

prove his sanity. Stone, supra note 30, at 57.

eanivalent to the disutility of acquitting someone who

is guilty.

Id. at 371-72 (Harlan J., concurring).*

While not deciding a standard of proof issue, the Court

has addressed issues involving the involuntary commitment

of sexual offenders for treatment under statutes which

were traditionally labelled ‘‘civil.’’ Specht v. Patterson,

386 U.S. 605 (1967). ‘‘These commitment proceedings ©

whether denominated civil or criminal are subject both to

the Equal Protection Clause of the Fourteenth Amendment

... and to the Due Process Clause.’’ Id. at 608. The Court

held that full due process must attach in proceedings to

determine whether a person constitutes a threat of causing

bodily harm to the public or whether a person is an habitual

offender and mentally ill. Jd. at 611.

The United States Court of Appeals for the Seventh

Cireuit relied upon Specht and Winship in holding that in-

33In Murel v. Baltimore City Criminal Courts, 407 U.S. 355

(1972), the Court dismissed as improvidently granted a writ of

certiorari to the Court of Appeals for the Fourth Circuit. The

lower court had upheld a preponderance of the evidence standard

for the commitment of “defective delinquents” in Tippett v. Mary-

land, 436 F.2d 1153 (4th Cir. 1971). The Court dismissed the

writ because Maryland was in the process of rewriting its commit-

ment statutes. Justice Douglas dissented, focusing upon the liberty

interests involved.

When a state moves to deprive an individual of his liberty,

incarcerate him indefinitely, or to place him behind bars for

what may be the rest of his life, the Federal Constitution re-

quires that it meet a more rigorous burden of proof than that

employed by Maryland to commit defective delinquents. . . .

’ Petitioners have thus been taken from their families and de-

prived.of their constitutionally protected liberty under the same

standard of proof applicable to run-of-the-mill automobile neg-

ligenice actions.

Id. at 359 (Douglas J., dissenting).

voluntary commitments under the Illinois Sexually Danger-

ous Persons Act must apply a reasonable doubt standard.

United States ex rel. Stachulak v. Coughlin, 520 F.2d 931

(7th Cir. 1975). Inherent in the Seventh Circuit’s decision

is the recognition that the commitment of sexually dan-

gerous persons can involve even greater deprivations of

liberty than juvenile commitments. The sentence imposed

under Illinois’ commitment law was indeterminate, while

a juvenile was only institutionalized until age eighteen.™*

In the case at Bar, the Texas commitment procedure

similarly provides for an indeterminate sentence; thus, the

deprivation of liberty is potentially more serious than that

faced in juvenile proceedings.* The Texas civil commit-

ment statute, which merely requires the state to prove its

case by a preponderance of the evidence, rejects this

Court’s prior reasoning.

34In People v. Burnick, 535 P.2d 352 (Cal. 1975), the California

Supreme Court required the application of a reasonable doubt stan-

dard in mentally disordered sexual offender cases. “[S]o drastic

an impairment of the liberty and reputation of an individual must

be justified by proof beyond a reasonable doubt.” Id. at 354. See

also People v. Pembrock, 62 Ill. 2d 317, 342 N.E.2d 28 (1976) ;

In re Andrews, 334 N.E.2d 15 (Mass. Sup. Jud. 1975).

35 [A] former mental patient may suffer from the social oppro-

brium which attaches to treatment for mental illness and which

may have more severe consequences than do the formally im-

posed disabilities. Many people have an “irrational fear of the

mentally ill.” The former mental patient is likely to be treated

with distrust and even loathing; he may be socially ostracized

and victimized by employment and educational discrimination.

The legal and social consequences of commitment constitute

the stigma of mental illness, a stigma that could be as socially

debilitating as that of a criminal conviction.

Note, Developmenis in the Law—Civil Commitment of the Men-

tally Ill, 87 Harv. L. Rev. 1190, 1200-61 (1974) (hereinafter

cited as Developments in the Law).

3. The Liberty Interest Threatened by Civil Commit-

ment Merits, at a Minimum, the Same Protections Estab-

lished by the Court in Other Civil Matters Which Require

a Standard of Clear and Convincing Evidence. The Court

has considered the standard of proof issue in a series

of cases concerning United States citizenship and the right

to reside in this country. In a 1943 denaturalization case,

the Court recognized that requiring proof to meet only a

preponderance of the evidence standard leaves too much

doubt in the question of whether an individual’s citizen-

ship should be revoked. Schneiderman v. United States,

320 U.S. 118 (1943). Weighing the importance of citizen-

ship to the individual, the Court reasoned that ‘‘such a

right once conferred should not be taken away without the

clearest sort of justification and proof.’’ Id. at 122. Thus,

the Court imposed a burden of proof which can only be

met by ‘‘clear, unequivocal and convincing”’ evidence. Id.

at 125.

This holding was subsequently expanded to cases in-

volving deportation proceedings. Woodby v. Immigration

Service, 385 U.S. 276 (1966). Recognizing that the degree

of proof required ‘‘is the kind of question which has tradi-

tionally been left to the judiciary to resolve,’’ the Court

considered the interests of individuals subject to deporta-

tion procedures. Jd. at 284. While such persons were not

facing criminal prosecutions, they were facing the serious

deprivation of expulsion from the United States. The Court

adopted a standard of clear, unequivocal and convincing

evidence,** noting that this ‘‘standari] of proof is no

36 The Court has subsequently reiterated this holding in other

denaturalization cases. Chaunt v. United States, 364 U.S. 350

(1960) ; Nishikawa v. Dulles, 356 U.S. 129 (1958). In Chaunt,

the Court reasoned that the grave ramifications to a person’s liberty

require that naturalization decrees not be lightly set aside. “Clear,

unequivocal, and convincing evidence” must be presented which

does not leave “the issue in doubt.” 364 U.S. at 353.

stranger to the civil law.’’ Jd. at 285. The Court found

that this standard (and even higher standards) had been

applied in numerous civil cases invoiving issues such as

civil fraud, adultery, illegitimacy, lost wills and oral con-

tracts to make bequests. With such cases as a counter-

point, the Court reasoned: ‘‘[I]t does not syllogistically

follow that a person may be banished from this country

upon no higher degree of proof than applies in a negligence

ease.”’ Id.

Finally, in a case involving First Amendment interests,

a plurality of the Court held that an extraordinary stan-

dard of proof is required in defamation actions, Rosen-

bloom v. Metromedia, 403 U.S. 29 (1971). Reasoning that

‘<fijn libel cases ... we view an erroneous verdict for the

plaintiff as most serious,’’ the Court held that the plain-

tiff’s case must meet a standard of clear and convincing

evidence. Id. at 50.

This Court, and others, have found a number of diverse

interests which cannot be infringed upon by a mere show-

ing of preponderance of the evidence. Amicus argues that

an individual’s interest in liberty is of sufficient import

that indefinite civil commitment should not occur unless a

higher degree of certainty is shown. Sufficient protection

against wrongful commitments cannot be assured unless

a more stringent standard of proof is required.

C. The Overwhelming Weight of Authority Favor: a

Standard of Proof in Civil Commitment Proceedings

Which Is More Stringent Than Preponderance of the

Evidence.

Numerous federal and state courts have ruled on the

question of the appropriate standard of proof in civil com-

mitment hearings. These courts have overwhelmingly re-

jected preponderance of the evidence, finding this common

‘‘civil’’ standard to be constitutionally insufficient ;*7 how-

ever, these courts have differed as to whether the evidence

must meet a standard of beyond a reasonable doubt*® or

one of clear and convincing evidence. *

87 It is clear that the overwhelming trend of the courts consider-

ing the standard of proof in civil commitment proceedings . . .

is to focus their debate on which of the more stringent stan-

dards—proof beyond a reasonable doubt or proof by clear and

convincing evidence—is the appropriate one.

Share, The Standard of Proof in Involuntary Civil Commitment

Proceedings, 1977 Det. Coll. L. Rev. 209, 217 (1977) (hereinafter

cited as Share).

88 Those cases mandating a reasonable doubt standard include:

In re Ballay, 482 F.2d 648 (D.C. Cir. 1973) ; Suzuki v. Alba, 438

F. Supp. 1106 (D. Haw. 1977); Suzuki v. Quisenberry, 411 F.

Supp. 1113 (D. Haw. 1976); Lessard v. Schmidt, 349 F. Supp.

1078 (E.D. Wis. 1972), remanded, 414 U.S. 473 (1974), reinstated,

379 F. Supp. 1376 (E.D. Wis. 1974), remanded, 421 U.S. 957

(1975), reinstated, 413 F. Supp. 1318 (E.D. Wis. 1976) ; Prector

v. Butler, 380 A.2d 673 (N.H. 1977); State v. O'Neill, 545 P.2d

97 (Ore. 1976); In re Hodges, 325 A.2d 605 (D.C. App. 1974);

Denton v. Commonwealth, 383 S.W.2d 681 (Ky. Ct. App. 1964).

3° Those cases mandating a standard of clear and convincing evi-

dence include: French v. Blackburn, 428 F. Supp. 1351 (M.D.N.C.

1977) ; Stamus v. Leonhardt, 414 F. Supp. 439 (S.D. Ia. 1976);

Doremus v. Farrell, 407 F. Supp. 509 (D. Neb. 1975); Bartley v.

Kremens, 402 F. Supp. 1039 (E.D. Pa. 1975), vacated and re-

manded, 431 U.S. 119 (1977), redecided, Institutionalized Juveniles

v. Secretary of Public Welfare, No. 72-2272 (E.D. Pa. May 25.

1978), prob. juris. noted, ........ ek Se (1978) ; Lynch v. Baxley,

386 F. Supp. 378 (M.D. Ala. 1974); Dixon v. Attorney General of

Commonwealth of Pa., 325 F. Supp. 966 (M.D. Pa. 1971); In re

Beverly, 342 So. 2d 481 (Fla. 1977); Matter of Valdez, 88 N.M.

338, 540 P.2d 818 (1975); Matter of Ward, 533 P.2d 896 (Utah

1975); State ex rel. Hawks v. Lazaro, 202 S.E.2d 109 (W. Va.

1974) ; In re Levias, 83 Wash. 2d 253, 517 P.2d 588 (1973) (but

construes standard to be civil equivalent of criminal law reasonable

doubt standard) ; Commonwealth ex rel. Finken v. Roop, 339 A.2d

764 (Pa. Super. 1975); People v. Sansone, 18 Ill. App. 3d 315,

309 N.E.2d 733 (1974).

Repeatedly, the courts have rejected the preponderance

of the evidence standard because of the individual’s over-

riding interest in liberty and because the doctrine of parens

patriae is not deemed a sufficient justification for utilizing

the less stringent standard.*® Additionally, the stigma

attached to involuntary commitment is a factor relied upon

by the courts in rejecting the preponderance standard.“

The Court’s decisions in Gault, Winship, and Woodby

are consistently cited as requiring this result.

The United States Court of Appeals for the District of

Columbia carefully analyzed the competing interests in the

civil commitment process before concluding that a reason-

Leonhardt, 414 F. Supp. 439 (S.D. Ia. 1976); Suzuki v. Quisen-

berry, 411 F. Supp. 1113 (D. Haw. 1976); Doremus v. Farrell,

407 F. Supp. 509 (D. Neb. 1975); Lynch v. Baxley, 386 F. Supp.

378 (M.D. Ala. 1974); Lessard v. Schmidt, 349 F. Supp. 1078

(E.D. Wis. 1972), remanded, 414 U.S. 473 (1974), reinstated,

379 F. Supp. 1376 (E.D. Wis. 1974), remanded, 421 U.S. 957

(1975), reinstated, 413 F. Supp. 1318 (E.D. Wis. 1976); Dixon

v. Attorney General of Commonwealth of Pa., 325 F. Supp. 966

(M.D. Pa. 1971); Proctor v. Butler, 380 A.2d 673 (N.H. 1977) ;

Matter of Valdez, 88 N.M. 338, 540 P.2d 818 (1975) ; In re Levias,

83 Wash. 2d 253, 517 P.2d 588 (1973): In re Hodges, 325 A.2d

605 (D.C. App. 1974); People v. Sansone, 18 Ill. App. 3d 315,

309 N.E.2d 733 (1974).

1 E.g., In re Ballay, 482 F.2d 648 (D.C. Cir. 1973); Doremus

v. Farrell, 407 F. Supp. 509 (D. Neb. 1975); Lessard v. Schmidt,

349 F. Supp. 1078 (E.D. Wis. 1972), remanded, 414 U.S. 473

(1974), reinstated, 379 F. Supp. 1376 (E.D. Wis. 1974), remanded,

421 U.S. 957 (1975), reinstated, 413 F. Supp. 1318 (E.D. Wis.

1976) ; Proctor v. Butler, 380 A.2d 673 (N.H. 1977). For a dis-

cussion of the stigma resulting from former hospitalization, see

note 35, supra.

el Nt Et A RE HS EN ce

able doubt standard is constitutionally required. In re

Ballay, 482 F.2d 648 (D.C. Cir. 1973). The Court resolved

the question within the framework constructed by Morrissey

v. Brewer, 408 U.S. 471 (1972), involving the revocation

of parole. There, the two questions addressed by the

Supreme Court were: first, whether to apply due process;

and, if it were to be applied, what process was due.

Likewise, the Ballay court first questioned whether due

process should attach in a civil commitment.

There can no longer be any doubt that the nature of

the interests involved when a person sought to be in-

voluntarily committed faces ez indeterminate and, con-

sequently, potentially permanent loss of liberty and

privacy accompanied by the loss of substantial civil

rights . . . is ‘‘one within the contemplation of the

‘liberty and property’ language of the Fourteenth

Amendment.’’

482 F.2d at 655 (citations omitted).

The Ballay court then sought to determine the standard

of proof required by due process in civil commitment pro-

ceedings. The court proceeded by comparing the liberty

interests in involuntary commitment with the conditional

liberty interest of a parolee. The court reasoned that be-

cause a parolee had already been convicted of a crime, the

state’s interest in institutionalizing him or her was clearly

greater than its interest in institutionalizing a mentally ill

person, as to whom a threshold deprivation of liberty would

occur. From the perspective of the individual, it was rea-

soned that the mentally ill person has a more substantial

expectation of liberty than does the parolee, whose liberty

is merely conditional and subject to the limitations of the

parole.

While the state’s interest in incarcerating criminals in-

cludes notions of deterrence, rehabilitation, physical re-

moval from society, and retribution, the Ballay court

found the state’s interest in civil commitment to rest only

upon the need to physically remove an individual from

society and upon the desire to provide rehabilitation or

treatment. Because a criminal can only be physically re-

moved after being convicted of a crime, the court reasoned

that the state’s interest in physically removing a mentally

ill person from society could likewise only be based upon

the same standard of proof utilized in crim‘nal proceedings.

The Ballay court logically concluded that the only justifica-

tion for a lesser standard of proof could be the state’s

desire to provide rehabilitation or treatment for the in-

dividual.

It is this very rationale which the Texas Supreme Court

asserts as support for its decision in the case at bar. In

applying a preponderance standard, the lower court held

that the provision of treatment, together with the avail-

ability of periodie review and the potential for release

when an individual is no longer dangerous, justifies the

lesser standard.*? The Ballay court persuasively rebuts

this argument. While acknowledging the validity of the

state’s purpose in treating mentally ill individuals, the

Ballay court held that the standard of proof must operate

to ensure that only those who need treatment are com-

mitted. ‘‘Recognizing again the immense individual in-

terests involved, it is questionable whether a rather sig-

nificant margin of error should be tolerated regardless of

the rationale.’’ 482 F.2d at 650.

#2 See also People v. Sansone, 18 Ill. App. 3d 315, 309 N.E.2d

733 (1974), relying upon full due process protections including, the

provision of treatment and periodic review, to justify a clear and

convincing standard, rather than a reasonable doubt standard.

ees

Although the Supreme Court has not had occasion to di-

rectly address this issue, Chief Justice Burger’s concur-

ring opinion in O’Connor v. Donaldson, 422 U.S. 563 (1975),

parallels the reasoning in Ballay. In Donaldson, the United

States Court of Appeals for the Fifth Circuit had applied a

quid pro quo theory in upholding the right to treatment

for involuntarily committed mental patients. Donaldson v.

O’Connor, 493 F.2d 507, 522-27 (Sth Cir. 1974), vacated

and remanded, 422 U.S. 563 (1975). The Supreme Court

indicated concern that such a holding might permit a state

to involuntarily hospitalize a mentally ill person upen the

mere showing that treatment was contemplated. 422 U.S.

572-73. Justice Burger scrutinized this implication which

‘fraises the gravest of constitutional problems’’ and which

must be ‘‘candidly appraised.’’ Id. at 585-86 (Burger

C.J., concurring).

Rather than inquiring whether strict standards of

proof or periodic redetermination of a patient’s con-

dition are required in civil confinement, the theory

cecepts the absence of such safeguards ... [T]hat

prospect is especially troubling in this area.

Id. at 587.

The previous decisions of this Court concerning the stan-

dard of proof in liberty deprivation cases, buttressed by

the holdings of lower courts in civil commitment cases, re-

quire that the preponderance of the evidence standard be

declared a violation of due process.

II.

THE INEXACT NATURE OF THE PSYCHIATRIC

TESTIMONY RELIED UPON IN CIVIL COMMITMENT

PROCEEDINGS SUPPORTS THE NEED FOR THE EVI-

DENCE TO MEET A REASONABLE DOUBT STAN-

DARD.

The standard of proof to be met in a civil commitment

proceeding can be translated into the degree of statistical

probability which must be shown. Under this theoretical

construct, the preponderance of the evidence, clear and con-

vineing evidence and reasonable doubt standards would re-

spectively require degrees of probability of 51 percent, 75

percent and 90 percent.** The standard of proof issue es-

sentially raises two questions: what degree of probability

justifies the curtailment of liberty through civil commit-

ment; and, what degree of probability is realistically

achievable. Amicus contends that the present state of psy-

chiatric knowledge is insufficient to obtain either 75 per-

cent or 90 percent accuracy in diagnosis or in the predic-

tion of future dangerous behavior. Yet, the primary ra-

tionale suggested by the courts for having rejected the rea-

sonable doubt standard and adopting the clear and con-

vinecing standard is the impossibility of meeting the higher

standard.

43 Stone, supra note 30, at 56.

44 E.g., Doremus v. Farrell, 407 F. Supp. 509 (D. Neb. 1975);

Bartley v. Kremens, 402 F. Supp. 1039 (E.D. Pa. 1975), vacated

and remanded, 431 U.S. 119 (1977), redecided, Institutionalized

Juveniles v. Secretary of Public Welfare, No. 72-2272 (E.D. Pa.

May 25, 1978), prob. juris. noted, ........ [tk Se (1978) ; Lynch

v. Baxley, 386 F. Supp. 378 (M.D. Ala. 1974) ; In re Beverly, 342

So. 2d 481 (Fla. 1977); Matter of Valdez, 88 N.M. 338, 540 P.2d

818 (1975); State ex rel. Hawks v. Lazaro, 202 S.E.2d 109 (W.

Va. 1974) ; People v. Sansone, 18 Ill. App. 3d 315, 309 N.E.2d 733

(1974). In Lynch, the court viewed the clear and convincing stan-

dard as “having the highest degree of certitude reasonably attain-

able in view of the nature of the matter at issue.” 386 F. Supp. at

393. “

een ee ee ee ee ee

Amicus argues that the focus of the civil commitment

hearing must be shifted to the determination of objective,

provable facts—.e., facets of behavior and overt acts of

the individual—upon which a judge or jury can reach a

rational decision. Once provable factors are utilized, no

reason exists not to apply the reasonable doubt standard

when substantial deprivations of liberty are sought.

Over a decade ago Chief Justice Burger recognized that

psychiatrists and psychologists ‘‘may be claiming too much

in relation to what they really understand about the human

personality and human behavior.’’*® Reliance upon their

opinions in civil commitment proceedings can lead to dire

results—not the least of which is the wrongful incarcera-

tion of human beings.

The mental condition of one whose mind is so deranged

as to require imprisonment for his own and others’

good is indeed pitiable. But the mental attitude of

one who is falsely found insane and relegated to false

imprisonment is beyond conception. No greater cru-

elty can be committed in the name of the law.*®

The reasonable doubt standard should not be sacrificed

in an attempt to uphold unworkable statutes. Rather, due

process especially requires a high standard of proof where

the facts at issue are subject to large statistical error.

A. Psychiatrists Cannot Reliably Diagnose Individuals

for the Purpose of Determining the Need for Care and

Treatment.

The psychiatric diagnosis plays a major role in deter-

mining the threshold question in a civil commitment —

whether the individual is mentally ill. The psychiatric

Burger, Psychiatrists, Lawyers, and the Courts, 28 Fed. Prob. —

37 (1964).

“65 Wigmore on Evidence § 1400 (Chadbourn rev. ed. 1974).

evidence also bears heavily upon the determination of

whether an individual is in need of care and treatment.

A key component to the legal sufficiency of psychiatric

evidence is the degree of reliability which can be obtained

in the diagnostic process. Reliability refers to the ‘‘prob-

ability or frequency of agreement when two or more inde-

pendent observers answer the same question.’** The re-

liability of the diagnosis establishes the degree of consis-

tency among the opinions of psychiatrists concerning a

persoa’s condition.

A recent article which reviewed the available literature

on the question of psychiatric reliability concluded: ‘‘Stud-

ies on psychiatric diagnosis highlight psychiatry’s lack of

precise definitions and the inability of psychiatrists to apply

these definitions in a reliable and consistent manner.’’*

Similarly, another reviewer of the relevant literature ob-

served: ‘‘With regard to reliability of diagnosis, the most

common research findings indicate that, on the average,

one cannot expect to find agreement in more than about

60% of cases between two psychiatrists.’

47 Ennis & Litwack, Psychiatry and the Presumption of Exper-

tise: Flipping Coins in the Courtroom, 62 Calif. L. Rev. 693, 697

(1974) (hereinafter cited as Ennis & Litwack).

48 Albers, Pasewark & Meyer, Involuntary Hospitalization and

Psychiatric Testimony: The Fallibility of the Doctrine of Immacu-

late Perception, 6 Cap. U. L. Rev. il, 15 (1976) (hereinafter cited

as Albers, Pasewark & Meyer), and studies cited therein.

#9 Ziskin, Coping With Psychiatric and Psychological Testimony

181 (2nd ed. 1975) (hereinafter cited as Ziskin), and studies cited

therein. See also Beck, Ward, Mendelson, Mock, & Erbaugh, Re-

liability of Psyehiatric Diagnosis: A Study of Consistency of Clini-

cal Judgments and Ratings, 119 Am. J. Psychiat. 351 (1962), cited

in Ziskin, supra, at 183. “Under relatively optimal conditions, the

percentage of agreement among psychiatrists was found to be 54%.”

A second concept which must be considered in assessing

psychiatric testimony is the validity, or the accuracy, of

the judgments which are made.” Even 100 percent relia-

bility would reflect nothing about the accuracy of the

agreement reached between psychiatrists; all of the psy-

chiatrists agreeing could still be in error in their mutually

held conclusions. Validity indicates the likelihood that the

diagnosis is correct. When reliability only approaches 60

percent, there can only be agreement between two differ-

ent psychiatrists in barely more than half of the diagnoses

made. Where there is disagreement, at least one profess-

ional must be wrong, if not both. Thus, the validity of diag-

nosis is at least as low as the degree of reliability.”

The landmark study conducted by Rosenhan is a classic

example of the inability of psychiatrists to accurately de-

termine the threshold existence of mental illness.*? In that

study, eight individuals who were not mentally ill gained

admittance to mental hospitals as patients. After becom-

ing patients they acted and behaved normally. Once ad-

mitted, they were unable to secure releases from the in-

stitutions for periods ranging from seven to fifty-two days,

with an average incarceration of nineteen days.

5° Ennis & Litwack, supra note 47, at 697.

5} Very few studies of the validity of gencralized predictions of

the need for care and treatment have been made; however, accuracy

appears to be very low. Ennis & Litwack, supra note 47, at 718-19.

If the psychiatrist predicts that an individual needs care and treat-

ment and hospitalization results, there is no accurate way of test-

ing whether the person could have successfully lived outside of the

52 Rosenhan, On Being Sane In Insane Places, 13 Santa Clara

Lawyer 379 (1973).

53 Id. at 383-84.

Rosenhan found that after a label or diagnosis had been

applied, facts were construed so as to appear consistent

with the label and that the continuing diagnoses were based

solely upon a small fraction of the individual’s total be-

havior. Although the pseudo-patients observed the insti-

tutional staff to be ‘‘people who really cared, who were

committed and who were uncommonly intelligent,’’* Ros-

enhan concluded: ‘‘We have known for a long time diag-

noses are often not useful or reliable, but we have never-

theless continued to use them. We now know that we can-

not distinguish insanity from sanity.’’**

The purpose of psychiatric diagnosis is to establish

guidelines for the description and prediction of an indivd-

ual’s behavior which will enable the psychiatrist to prop-

erly treat the individual. However, the broad finding of

a person’s need for care and treatment has little reliability

or validity because of the uncertainties of diagnosis. As

one commentator concluded, there are few, if any, corre-

lations between diagnosis and behavior, ‘‘save perhaps in

the grossest kind of psychotic behavior.’”*°

B. Psychiatrists Cannot Accurately Predict the Future

Dangerousness of Individuals.

The inability of the psychiatric profession to accurately

diagnose mental illness, together with growing disenchant-

ment with the concept of parens patriae,®” has contributed

to the trend among courts and legislatures of requiring a

finding of dangerousness to justify involuntary commit-

54 Td. at 339.

55 Jd. at 397.

56 Frank, Psychiatric Diagnosis: A Review of Research, 81 J.

Gen. Psychol. 157, 165 (1969).

57 F.g., cases cited in note 40, supra.

ment.** However, amicus contends that dangerousness is

equally difficult to accurately predict.

The initial obstacle to accurate psychiatric predictions

of dangerousness lies in the medical-psychiatric model

which rests upon the principle that ‘‘judging a sick person

well is more to be avoided than judging a well person

sick.’ In diagnosing a patient, the risks which a psychi-

atrist takes are greatly reduced by predicting dangerous-

ness and recommending institutionalization.” If the pre-

diction is in error, it will likely never be discovered be-

cause the individual is incarcerated; on the other hand,

should the psychiatrist err by releasing a dangerous indi-

vidual, he or she will surely learn of the error if an inci-

dent occurs in the community.*

Even assuming an inachievably high degree of accuracy

in psychiatric predictions of future dangerousness, the re-

sults of relying upon such a model are startling.

58 Even where a finding of dangerousness is not specifically re-

quired, it is usually a key factor in a judicial decision to order com-

mitment. Kumasaka & Gupta, Lawyers and Psychiatrists in the

Court: Issues on Civil Commitment, XXXII Md. L. Rev. 6, 10-12

(1972).

5° Dershowitz, The Law of Dangerousness: Some Fictions About

Predictions, 23 J. Leg. Educ. 24, 46-47 (1970) (hereinafter cited

as Dershowitz).

® Peterson & Seo, Bayesian Analysis of Overprediction of Insanity,

34 Psychol. Rep. 207 (1974).

*1 “The losses [to the psychiatrist] due to errors of prediction are

such that psychiatrists will want to overpredict violent behavior.

Overprediction is perfectly rational for a risk-averting psychiatrist.”

Td. at 213.

Assume that one person out of a thousand will kill.

Assume that an exceptionally accurate test is created

which differentiates with ninety-five percent effec-

tiveness those who will kill from those who will not.

If 100,000 people are tested, out of the 100 who would

kill, 95 would be isolated. Unfortunately, out of the

99,900 who would not kill, 4,995 people would also be

isolated as potential killers. In these circumstances,

it is clear that we could not justify incarcerating all

5,090 people.”

In reality, however, psychiatrists cannot accurately pre-

dict future dangerousness. Study after study has con-

cluded that psychiatrists overpredict dangerousness and

have no ability to accurately predict future dangerousness.

[P]sychiatrists are rather inaccurate predictors; in-

accurate in an absolute sense, and even less accurate

when compared with other professionals .. . and when

compared to actuarial devices, such as prediction or

experience tables. Even more significant for legal pur-

poses: it seems that psychiatrists are particularly

prone to one type of error—overprediction. In other

words, they tend to predict anti-social conduct in many

instances where it would not, in fact, occur. Indeed,

cur research suggests that for every correct psychi-

atric prediction of violence, there are numerous errone-

ous predictions.™

62 Livermore, Malmquist & Meehl, On the Justifications for Crval

Commitment, 117 U. Pa. L. Rev. 75, 84 (1968) (hereinafter cited

as Livermore).

63 Dershowitz, supra note 59, at 46. One eminent psychiatrist ob-

served :

I know of no reports in the scientific literature which are sup-

ported by valid clinical experience and statistical evidence that

describe psychological or physical signs or symptoms which

can be reliably used to discriminate between the potentially

dangerous and the harmless individual.

Diamond, The Psychiatric Prediction of Dangerousness, 123 U. Pa.

(footnote continued)

After his years as a jurist with a deep involvement in

legal issues affecting mentally ill individuals, Judge Baze-

lon has adeptly summarized the need for a reasonable doubt

standard in civil commitments.

Recent studies indicate that the accuracy of predic-

tions of future dangerousness is less—far less, to put

it mildly—than the requirement of ‘‘beyond a rea-

sonable doubt’’ which is our legal standard to justify

criminal confinement. Indeed, to accept commitments

on the basis of present predictions of dangerousness,

we must virtually reverse Blackstone’s immortal for-

mulation of the presumption of innocence: instead of

freeing nine guilty persons to avoid convicting one in-

nocent person, we must confine nine non-dangerous

persons to avoid freeing one dangerous person.”

(footnote continued)

L. Rev. 439, 444 (1974) (hereinafter cited as Diamond). See also

Steadman, Some Evidence on the Inadequacy of the Concept and

Determination of Dangerousness in Law and Psychiatry, 1 J.

Psychiat. and Law 409, 423-24 (1973).

The lack of meaningful differentiation and the questionable

bases for dangerousness presented in the determinations studied

here do lead to serious doubts about the appropriateness of any

psychiatric predictions of dangerousness for involuntary mental

hospitalization . . . . Our conclusion is exactly that of the

Pennsylvania Task Force to revise that state’s mental health/

retardation law which concluded that “. . . there is insufficient

predictive expertise to justify preventive detention . . .” based

on predictions of dangerousness in the mentally ill.

*Razelon, /nstitutionalization, Deinstitutionalization and the Ad-

versary Process, 75 Colum. L. Rev. 897, 899-900 (1975) (herein-

after cited as Bazelon). The logical extention of the query then

becomes :

If in the criminal law, it is better that ten guilty men go free

than that one innocent man suffer, how can we say in the civil

commitment area that it is better that fifty-four harmless people

be incarcerated lest one dangerous man be free?

Livermore, supra note 62, at 84.

Further evidence of the unrealiability of psychiatric di-

agnosis has been garnered as a result of the Court’s land-

mark decision in Baxstrom v. Herold, 383 U.S. 107 (1966).

There, the Court struck dewn on equal protection grounds

a procedure whereby prisoners, upon completion of their

penal sentences, were automatically confined for compul-

sory treatment as dangerous mentally ill persons, without

a jury trial or a judicial determination. The Court’s de-

cision resulted in the release of large numbers of former

prisoners from confinement in maximum security treat-

ment centers where they had been confined because of psy-

chiatric predictions of their dangerousness.® All were in-

itially transferred to civil hospitals with no special security

measures, and many were subsequently discharged.

An exhaustive follow-up study was conducted on the

Baxstrom population. After several years, the results

showed that of the 969 Baxstrom patients,” 27 percent were

then living in the community, nine individuals had subse-

quently been convicted of crimes (only two had been con-

victed of felonies), and three percent were incarcerated in

correctional facilities or hospitals for the criminally in-

65 Hunt & Wiley, Operation Baxstrom After One Year, 124 Am.

J. Psychiat. 974, 977 (1968). “Most of them had been examined

at least once—often several times—by experienced psychiatrists from

the Department of Mental Hygiene and had been denied transfer on

the grounds that they were too disturbed or potentially dangerous.”

86 Td. at 975-76. Although numerous officials believed that a large

number of patients were too dangerous to be maintained in civil

hospitals, only seven proved to be so difficult to manage as to re-

quire a transfer to a maximum security hospital within the first

year of Operation Baxstrom.

87 Jd. at 976. Of this number, 176 patients had been discharged

after one year.

hi Saba

sane; the level of dangerous behavior exhibited by this

group, the members of which had been uniformly consid-

ered dangerous, was surprisingly low.®

The Baxstrom studies reaffirm the conclusion that psy-

chiatrists are inaccurate predictors of dangerousness,

whose tendency is to overpredict.

In statistical terms, Operation Baxstrom tells us that

psychiatric predictions of dangerous behavior are in-

credibly inaccurate. In human terms, it tells us that

but for a Supreme Court decision, nearly 1,000 human

beings would have lived much of their lives behind

bars ... all because a few psychiatrists, in their con-

sidered opinion, thought they were dangerous and no

one asked for proof.”

* Steadman & Keveles, The Community Adjustment and Crimi-

nal Activity of the Baxstrom Patients: 1966-70, 129 Am. J. Psychia.

304, 308-09 (1972).

Even the few studies published since Operation Baxstrom which

claim that dangerousness can be reliably diagnosed do not present a

high degree of predictability. Cocozza & Steadman, The Failure of

Psychiatric Predictions of Dangerousness: Clear and Convincing

Evidence, 29 Rutgers L. Rev. 1084, 1092 (1976) (hereinafter cited

as Cocozza & Steadman). In one such study only a false positive

rate of 65 percent was achieved; in other words, 35 percent of the

predictions of dangerousness were correct, while 65 percent of the

predictions of dangerousness were incorrect. Kozol, Boucher &

Garofalo, The Diagnosis and Treatment of Dangerousness, 18 Crime

& Deling. 371 (1972) (hereinafter cited as Kozol, Boucher &

Garofalo). This study involved 592 criminal offenders during a

five year period after their releasc. These individuals had com-

mitted prior dangerous acts, and most of them were former sex

offenders—a group for which high predictive results are anticipated.

® Ennis, The Rights of Mental Patients, in The Rights of Ameri-

cans 487 (Dorsen ed. 1970).

‘Subsequent to Operation Baxstrom, Cocozza and Stead-

man undertook a new study, based upon an amendment

to the New York Criminal Procedure Law.” The new law

mandated a determination of dangerousness for all in-

dicted felony defendants found incompetent to stand trial.

The determination was to be made by a judge after con-

sidering the opinions of two psychiatrists. Those found

dangerous were placed in a Department of Corrections fa-

cility; those found non-dangerous were placed in a Depart-

ment of Mental Hygiene mental hospital. The two insti-

tutions were in close physical proximity, and they were

operated in similar manners. ‘‘Thus, the two study groups

were, for all intents and purposes, in the same facility .. .

and experienced very similar lengths of hospitalization

prior to their release to the community or return to

court.’’™

Upon completion of the study of these two incarcerated

populations, the researchers concluded: ‘‘Our results

showed that the patients evaluated as dangerous by the

psychiatrists were not more dangerous than those evaluated

as nondangerous.’’? In fact, among those individuals from

both groups who were later returned to the community,

14 percent of those previously diagnosed as dangerous were

subsequently arrested for a violent crime, while 16 per-

cent of those previously diagnosed 1s not dangerous were

subsequently arrested for a violent crime.”

Based upon the overwhelming evidence, a Task Force

of the American Psychiatrie Association has concluded that

7 Cocozza & Steadman, supra note 68, at 1092. The amendment

became effective on September 1, 1971.

™ Jd. at 1097.

72 Id.

73 Jd. at 1098. Viewing their study as producing the “most defi-

nite evidence available,” the researchers assert: “On the basis of

all these indicators, we conclude that the psychiatric predictions of

dangerousness were not at all accurate.” Id.

A lh ab Me

psychiatrists have no special expertise in predicting fu-

ture dangerous behavior.

It has been noted that ‘‘dangerousness”’ is neither a

psychiatric nor a medical diagnosis, but involves is-

sues of legal judgment and definition, as well as issues

of social »olicy. Psychiatric expertise in the prediction

of ‘‘dang-erousness”’ is not established and clinicians

should avoid ‘‘conclusory’’ judgments in this regard.”

C. The Reasonable Doubt Standard Should Not Be Com-

promised Because of Inexact Elements of Proof.

Because of the difficulties which psychiatrists encounter

in attempting to accurately diagnose mental illness and

predict future dangerous behavior, it is constitutionally

imperative that a high standard of proof be required. The

poor predictive abilities of psychiatrists cannot justify low-

ering the standard of proof when fundamental personal

liberty is at issue. Amicus suggests that a more viable so-

lution to the standard of proof issue would be to require

that the facts to be proved be of such a nature that the rea-

sonable doubt standard can be realistically met.

Numerous commentators have suggested that, should a

civil commitment system exist, its objectives should be jus-

7 American Psychiatric Association, Clinical Aspects of the Vio-

lent Individual, Task Force Report 8, at 33 (1974). The Alcohol,

Drug Abuse, and Mental Health Administration of the Department

of Health, Education and Welfare has reached a similar conclusion.

“Although the psychiatric profession is frequently called upon to

predict the potential dangerousness of persons brought before the

courts, no scientifically reliable method for predicting dangerous

behavior exists.” Diamond, supra note 63, at 451-52, citing United

States Department of Health, Education, and Welfare, HEW News

(News Release, Aug. 8, 1974).

tified by specific behavior of an individual—+.e., recent

overt acts of a dangerous nature.

[1]f there is to be civil commitment, there is no legiti-

mate basis for civil commitment other than recent

overt acts, attempts, or threats of overt acts. Any

other bases for commitment necessarily involves judg-

ments and predictions which psychiatrists are unable

to make reliably and accurately.”

The plea to require overt acts as an element of proof in

civil commitment proceedings is especially attractive be-

cause the legal process would no longer be iucarcerating

those individuals as to whom the predictions of dangerous-

ness are the least reliable.

The difficulty involved in predicting dangerousness

is immeasurably increased when the subject has never

actually performed an assaultive act. ... No one can

predict dangerous behavior in an individual with no

history of dangerous acting out. **

Numerous lower courts have dealt with the demands of

due process in civil commitments by requiring proof of a

7 Ennis & Litwack, supra note 47, at 745 n. 182. See generally

Developments in the Law, supra note 35, at 1301-02.

7 Kozol, Boucher & Garofalo, supra note 68, at 384 (emphasis

added). See also Rubin, Prediction of Dangerousness in Mentally

Ill Criminals, 27 Arch. Gen. Psych. 397, 405 (1972) ; Developments

in the Law, supra note 35, at 1243-45, and studies cited therein.

Judge Bazelon argues that a person who has committed numerous

anti-social acts is much more likely to commit another such act

than an individual who has generally conformed to societal expecta-

tions. Bazelon, supra note 64, at 901.

Peers

poi

specific overt act.” In an analogous situation, the Court

rejected a vagueness challenge to a sexual psychopath law

because the Minnesota Supreme Court’s construction of

the statute required the matter to be definitely proved.

Minnesota ex rel. Pearson v. Probate Court, 309 U.S. 270

(1940).

7? Goldy v. Beal, 429 F. Supp. 640 (M.D. Pa. 1976) ; Stamus v.

Leonhardt, 414 F. Supp. 439 (S.D. Ia. 1976) ; Doremus v. Farrell,

407 F. Supp. 509 (D. Neb. 1975) ; Lynch v. Baxley, 386 F. Supp.

378 (M.D. Ala. 1974); Bell v. Wayne County Hospital, 384 F.

Supp. 1085 (E.D. Mich. 1974) ; Lessard v. Schmidt, 349 F. Supp.

1078 (E.D. Wis. 1972), remanded, 414 U.S. 473 (1974), rein-

stated, 379 F. Supp. 1376 (1974), remanded, 421 U.S. 957 (1975),

reinstated, 413 F. Supp. 1318 (£.D. Wis. 1976) ; Dixon v. Attorney

General of Commonwealth of Pa., 325 F. Supp. 966 (M.D. Pa.

1971). In Suzuki v. Alba, 438 F. Supp. 1106 (D. Haw. 1977), the

Hawaii commitment statute which had been amended as a result

of Suzuki v. Quisenberry, 411 F. Supp. 1113 (D. Haw. 1976), was

again found to be deficient “because it fails to require the finding

of a recent act, attempt or threat of imminent and substantial danger

before commitment may occur.” 438 F. Supp. at 1110. But see

United States ex rel. Mathew v. Nelson, No. 72 C 2104 (N.D. Til.

April 13, 1978).

78 The state court’s interpretation called for factual evidence of

conduct “pointing to probable consequences [which is] as susceptible

of proof as many of the criteria constantly applied in prosecutions

for crime.” 309 U.S. at 274.

In a recent decision requiring a reasonable doubt standard, the

New Hampshire Supreme Court reasoned that the inexactitude of

psychiatric medicine demands compliance with a reasonable doubt

standard in order to protect all members of society in their pursuit

of a fundamental interest. Proctor v. Butler, 380 A.2d 673 (N.H.

1977). The Court concluded that such a standard is workable. “It

is not difficult to conceive of circumstances in which evidence of

past conduct and mental disability will convince ‘beyond a reason-

able doubt’ of a potentially serious likelihood of dangerousness.”

Id. at 677.

When that which is sought to be proved is actually sub-

ject to reliable proof, the reasonable doubt standard must

be required. The Texas statute being considered in the

case at Bar does not require elements of proof which are

susceptible to even reliable speculation.” The individual’s

substantial liberty interest mandates a reasonable doubt

standard of proof in civil commitments. This Court should

not permit a lower standard to be applied solely because

state legislatures have drafted statutes which are vague

and not easily susceptible to traditional notions of proof.

The standard of proof should not be weakened merely be-

cause the evidence is weak.

ITI.

THE IMPLICATIONS OF THIS COURT’S DECISION

WILL BE FAR-REACHING, AFFECTING NOT ONLY

MENTALLY ILL PERSONS BUT ALSO OTHER HAN-

DICAPPED INDIVIDUALS BY ESTABLISHING THE

EXTENT OF CONSTITUTIONAL CONSTRAINTS RE-

QUIRED IN THE CIVIL COMMITMENT PROCESS.

The standard of proof ordered by this Court will have a

lasting effect upon the nature of civil commitment proceed-

ings. The standard of proof applied will influence deci-

sions concerning who is committed, will define the level of

7 The problem with applying any standard of proof to vague

criteria is well addressed by Dr. Stone in his reaction to the Lessard

decision. “But when we add proof beyond a reasonable doubt as a

standard for the vague criteria used in other jurisdictions we have

simply multiplied 95 x 0.” Stone, supra note 30, at 57. See also

Murel v. Balt. City Crim. Cts., 407 U.S. 355 (1972) (Douglas J.,

dissenting). “Proving a state of mind is no more difficult than many

other issues with which courts and juries grapple each day.” Jd. at

364.

seriousness which should attach to the entire commitment

proceeding, and will impact upon the burgeoning movement

of handicapped individuals who seek integration into so-

ciety’s mainstream.

A. The Standard of Proof in a Civil Commitment Pro-

ceeding Has a Substantial Effect Upon the Ultimate

Determination of the Trier of Fact.

As previously discussed, virtually all of the courts con-

sidering the issue have held that preponderance of the evi-

dence is an insufficient standard to jus‘iiy the deprivation

of liberty which occurs in involuntary hospitalization.”

Not yet authoritatively resolved is the question of whether

a standard of clear and convincing evidence or one of rea-

sonable doubt should be mandated. In reaching this deci-

sion, the Court should consider the confusion surrounding

the clear and convincing standard, which has been inter-

preted differently in various states."

The Texas Supreme Court equates a clear and convinc-

ing standard with a restatement of the preponderance of

the evidence standard under Texas law. State v. Turner,

556 S.W.2d 563 (Tex. 1977). On the other hand, the Wash-

ington Supreme Court equates the clear and convincing

8 See generally Part I C, supra, particularly notes 37-39.

8! The Supreme Court has never formulated a specific definition

of the clear and convincing standard of proof. In Klapprott v. United

States, 335 U.S. 601, 612 (1949), Justice Black equated the standard

with the reasonable doubt standard in criminal cases. Accord Id. at

617 (Rutledge J., concurring). However, in United Mine Work-

ers V. Gibbs, 383 U.S. 715, 737 (1966), the standard was viewed

as more stringent than the preponderance standard but not as

stringent as the reasonable doubt standard. For a discussion of

the various interpretations, see Share, supra note 37, at 238-39.

standard with the reasonable doubt standard required in

criminal proceedings.

fOur] ruling. . is consistent with the Supreme Court

holding in Winship in demanding that the state estab-

lish its ease under a standard of proof which consti-

tutes the civil counterpart of the criminal reasonable

doubt standard, to wit: clear, cogent, and convincing

evidence. Carrying a much greater and much stricter

burden of proof than a mere preponderance of the

evidence ... the clear, cogent, and convincing test ap-

plicable in mental illness proceedings exacts the duty

that every element essential to proving committable

mental illness be demonstrated to a degree essentially

corresponding to that necessary for commitment in

criminal proceedings.

In re Levias, 83 Wash. 2d 253, 517 P.2d 588, 590 (1973).

The Court has previously rejected the theory that the

standard of proof makes little or no difference to the trier

of fact. ‘‘{Wle reject the Court of Appeals’ suggestion

that there is, in any event, only a ‘tenuous difference’ be-

tween the reasonable doubt and preponderance standard.

The suggestion is singularly unpersuasive.’’ In re Winship,

397 U.S. 358, 367 (1970). Legal commentors concur.

The reasonable doubt standard impresses on the trier

of fact the necessity of reaching a subjective state of

certitude of the fact in issue; the preponderance test

is susceptible to the misinterpretation that it calls on

the trier of fact merely to perform an abstract weigh-

ing of the evidence in order to determine which side

has produced the greater quantum, without regard to

its effect in convincing his mind of the truth of the

proposition asserted.

82 Dorsen & Rezneck, In re Gault and the Future of Juvenile Lew,

1 Fam. L. Q. 1, 26-27 (Dec. 1967). See also Murel v. Bait. City

Crim. Cts., 407 U.S. 355, 358 (1972) (Douglas J., dissenting) ;

Wexler, Scoville, et al., The Ad:ninistration of Psychiatric Justice:

Theory and Practice in Arizonc, 13 Ariz. L. Rev. 1, 101-17 (1971)

(hereinafter cited as Wexler).

The standard of proof will make an important difference—

the higher the standard, the greater the protection given to

the individual’s liberty interests.

B. The Application of a Strict Standard of Proof Will

Elevate the Commitment Process to a Level Consonant

With the Nature of the Liberty Interests at Stake.

Historically the civil commitment process was conducted

informally, with a view toward administrative convenien:e.

The serious loss of liberty to the individual was seen

as subordinate to the parens patriae interest of the state.

However, an increasing number of courts are now care-

fully scrutinizing the commitment system. As a result of

decisions similar in intent to this Court’s pronouncements

with regard to the juvenile justice system, increasing doses

of due process are being prescribed for the ailing civil com.

mitment process.

Despite the growing number of courts which have ordered

strict due process safeguards,®** an aura continues to sur-

round commitment proceedings which subverts the serious-

ness of the process.** All too frequently, hearings last

83 E.g., In re Ballay, 482 F.2d 648 (D.C. Cir. 1973); Suzuki v.

Quisenberry, 411 F. Supp. 1113 (D. Haw. 1976) ; Lessard v. Schmidt,

349 F. Supp. 1078 (E.D. Wis. 1972), remanded, 414 U.S. 473

(1974), reinstated, 379 F. Supp. 1376 (E.D. Wis. 1974), remanded,

421 U.S. 957 (1975), reinstated, 413 F. Supp. 1318 (E.D. Wis.

1976).

8* One graphic illustration is found in State ex rel. Memmel v.

Mundy, No. 441-417 (Cir. Ct. Wis. August 8, 1976), appealed on

other grounds, 75 Wis. 2d 276, 249 N.W.2d 573 (1977), reported

in 1 Mental Dis. L. Rep. 183 (1976). The Milwaukee Circuit Court

ordered that a number of persons previously committed be cither

released or given rehearings because of inadequacies in the original

(footnote continued)

bnt a few minutes and the testimony of the psychiatrist is

accepted without question. ‘‘The cursory manner in which

commitment proceedings are conducted in many states

makes the court merely an acquiescent partner to already

formulated psychiatric decisions.’ Similarly, the courts

(footnote continued)

hearings. The decision affected 827 of 838 applications for commit-

ment heard during the period ‘rom January 1, 1975 to April 1, 1976.

In a scathing decision aimed at both lawyers and judges, the court

stated :

The record presented by this case is as bleak a picture as has

probably ever been presented of justice in Milwaukee County.

A massive and systematic deprivation of the constitutional rights

of people who are unable to voice their own protests has been

accomplished by the cooperation of bench and bar of Milwaukee

County. It is unconscionable that lawyers and judges who are

trained in the law and who have a special duty to protect the

constitutional rights of those who are unable to protect them-

selves, could participate in such a scheme to bilk citizens of

their constitutional rights.

[T]he onus of this debacle lies squarely with the lawyers and

judges who operate this greased runway to the County Mental

Health Center.

Id.

85 Albers, Pasewark & Meyer, supra note 48, at 32-33, citing:

Albers & Pasewark, Involuntary Hospitalization: Surrender at the

Courthouse, Am. J. Comm. Psych. 288 (1974) (study of 300 con-

secutive commitment cases revealed the court concurring with the two

psychiatric examiners in 295 of the cases; a sample of 21 cases il-

lustrated mean and median hearing times of 9.2 and 8.0 minutes,

respectively) ; Miller & Schwartz, County Lunacy Commission Hear-

ings: Some Observations of Commitment to a State M 2ntal Hospital,

14 Social Prob. 26 (1966) (mean time for hearings was 3.8 minutes) ;

Scheff, The Societal Reaction to Deviance: Ascriptive Elements in

the Psychiatric Screening of Mental Patients in a Midwestern State,

11 Social Prob. 401 (1964) (hearings lasting 9.2 minutes on the

average) ; Wilde, Decision Making in a Psychiatric Screening Agency,

(fvotnote continued)

oe armen nsa seal

have been characterized as ‘‘all too willing to accept the

therapist’s mimeographed affidavit stating the conditions

have been met, without independently testing the validity

of the attestation.’

The case at Bar provides this Court with the opportunity

to mandate an appropriate level of formality to such hear-

ings, consistent with the seriousness of the issue to be

determined. Regardless of the existence of other pro-

cedural or substantive deficiencies, a reasonable doubt

standard puts the trier of fact on notice that the commit-

ment proceeding involves more significant issues than

many routine civil matters. This strict standard would

publish a message to society and to state legislatures—

eivil commitment can no longer be used haphazardly as a

conveuient tool to remove from society those of us who are

deemed to be different, strange or bothersome. Rather,

the reasonable doubt standard will infuse the involuntary

commitment process with a sense of dignity and serious-

ness of purpose. Our system of laws permits no other

judicial proceeding to be conducted in such a trivial and

informal manner when such immense individual interests

are at stake.

(footnote continued)

8 j. Health & Soc. Behavior 215 (1968) (hearings lasting 8.3 minutes

on the average). See also Luby & Morris, Civil Commitment in a

Suburban County: An Investigation by Law Students, 13 Santa Clara

Lawyer 518 (1973); Wexler, supra note 82, at 38-42; Cohen, The

Function of the Attorney and the Commitment of the Mentally Ill,

44 Tex. L. Rev. 424 (1966).

In recent periodic review hearings for recommitment of mentally

retarded persons in West Virginia, 198 hearings were held at Colin

Anderson Training Center within two days, with each hearing last-

ing no more than three to five minutes and resulting in 196 indi-

viduals being recommitted involuntarily. Sunday Gazette Mail,

Charleston, West Virginia, page 1E (May 7, 1978).

86 Kittrie, supra note 1, at 370.

C. Unless a Strict Standard of Proof is Required, Numer-

ous Other Classes of Handicapped Persons, Who Have

Only Recently Defeated the Social Impulse Toward

Institutionalization and Redirected Public Concern

Toward Community Care and Integration, Will Once

Again Be Threatened With Involuntary Commitment

* to Institutions.

Mentally ill individuals are not the only category of per-

sons subject to the involuntary commitment process. In-

dividuals with mental retardation, epilepsy and physical

handicaps such as cerebral palsy have historically been

institutionalized.*? This Court’s determination in the case

at Bar will influence the development of substantive and

procedural safeguards in commitment hearings involving

a wide range of handicapped individuals.

It has only been during the past decade that the insti-

tutionalization movement has been reversed. This shift

has occurred for several reasons. First, a shift in philoso-

phy by experts in the field of developmental disabilities

has resulted in the application of the principles of normali-

zation and the developmental model.** Additionally, the fed-

87 See generally Commission For the Control of Epilepsy and Its

Consequences, The Plan For Nationwide Action on Epilepsy (1977)

(on epilepsy) ; Kugel, Introduction, in President’s Committee on

Mental Retardation, Changing Patterns in Residential Services For

the Mentally Retarded 3, 5 (rev. ed. 1976) (on mental retardation,

cerebral palsy and other physical disabilities) ; Blatt, Souls in Ex-

tremis: An Anthology on Victims and Victimizers (1973) (on

mental retardation).

88 See generally Menolascino, Chalienges in Mental Retardation

(1977); President’s Committee on Mental Retardation, Changing

Patterns in Residential Services for the Mentally Retarded (rev. ed.

1976) ; Wolfensberger, The Principle of Normalization in Human

Services (1972).

eral government has recognized the need to maintain per-

sons in the community and has passed legislation aimed

at the provision of community services.®

Finally, increasing judicial intervention has resulted in

fewer persons being involuntarily hospitalized and growing

numbers being provided with community-based placement

alternatives.” While some courts have accomplished their

purpose through procedural safeguards which make insti-

tutionalization more difficult, one court has recently ruled

that confinement of mentally retarded individuals in a

massive, isolated institution is unconstitutional," order-

ing closure of the facility.”

*° The Developmental Disabilities Assistance and Bill of Rights

Act requires that treatment services and habilitation for persons with

developmental! disabilities be provided “in the setting that is least

restrictive of the person’s personal liberty.” 42 U.S.C. § 6010. See

generally notes 26-29, supra, and accompanying text.

® For civil commitment cases, see note 83, supra. Cases decided on

right to treatment, least restrictive alternative and right to protection

from harm theories include: Welsch v. Likins, 373 F. Supp. 487 (D.

Minn. 1974), aff'd in part, remanded in part, 550 F.2d 1122 (8th

Cir. 1977) ; New York State Association for Retarded Children &

Parisi v. Carey, 357 F. Supp. 752 (E.D.N.Y. 1973) and 393 F. Supp.

715 (E.D.N.Y. 1975) ; Horacek v. Exon, 352 F. Supp. 71 (D. Neb.

1973) and No. 72-6-299 (D. Neb. 1975); Wyatt v. Stickney, 344

F. Supp. 387 M.D. Ala. 1972), aff'd sub. nom., Wyatt v. Aderholt,

503 F.2d 1305 (5th Cir. 1974).

* Halderman v. Pennhurst State School and Hospitai, 446 F. Supp.

1295 (E.D. Pa. 1977).

%2 Halderman v. Pennhurst State School and Hospital, No. 74-

1345 (E.D. Pa. March 17, 1978), ordering the Commonwealth and

county defendants “to provide suitable community living arrange-

ments for the retarded of Pennhurst.”

An emerging trend in social policy is permitting handi-

capped people to enjoy the opportunity to live full and

meaningful lives in the mainstream of community life. Only

in the recent past has society begun to recognize that han-

dicapped individuals have the same rights and needs as

other people. This evolving social model is an immense

triumph for basic human rights and dignity.

Involuntary civil commitment and institutionalization

are statues to a time when handicapped people were sys-

tematically confined and forgotten. These processes must

be accountable for the severe curtailments of liberty which

they seek to impose. Only a reasonable doubt standard

of proof can insure that individuals are not incarcerated

for ambiguous deviations from an arbitrary norm.

CONCLUSION

For the reasons discussed in this brief, amicus respect-

fully requests this Court to reverse the decision of the Su-

preme Court of Texas and hold that a ‘‘beyond a reason-

able doubt’’ standard of proof is constitutionally required

in involuntary civil commitment hearings.

Respectfully submitted,

Ronaup M. Sosxrx

Counsel for amicus curiae

National Center for Law and

the Handicapped, Inc.

1235 North Eddy Street

South Bend, Indiana 46617

(219) 288-4751 -

Of Counsel:

Brian J. Linn

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