# Amicus Brief — Addington v. Texas > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385005_1254%3A07 ## Record - **Collection:** Supreme Court brief - **Document type:** Amicus Brief - **Published:** January 1, 1979 - **Citation:** 441 U.S. 418 ## Text 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 ............ 1] 16 II. Itt. il PAGE bo 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 eo 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 17 24 31 34 41 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° iv 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 v 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 vl 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 ix 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 xi 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 Scheff, The Societal Reaction to Deviance: Ascriptive Elements in the Psychiatric Screening of Mental Patients in a Midwestern State, 11 Social Prob, 401 (BEAD ...cnccsitosatuidenlagicetaiaiieaicumagaieobdeaimaminlonies 48 Share, The Standard of Proof in Involuntary Civil Commitment Proceedings, 1977 Det. Coll. L. Rev. SOR CIGREY ncccicnitttandeiceiiteaeeds 25, 45 Steadman, Some Evidence on the Inadequacy of the Concept and Determination of Dangerousness in Law and Psychiatry,1J. Psychiat. and Law 409 (1973) ..... 37 Steadman and Keveles, The Community Adjustment and Criminal Activity of the Bazxstrom Patients: 1966-70, 129 Am. J. Psychiat. 304 (1972) ...000000000.... 39 Stone, Mental Healtn and Law: A System in Transi- BOE CII evince ectcsonsetininensaccacasnbahinncenaiann 15, 20, 30, 44 Sunday Gazette Mail, Charleston, West Virginia, page ER Ae || Ce eee ae NT eee oe 49 United States Department of Health, Education and Welfare, HEW News (News Release, Aug. 8, 1974) 41 Wexler, Scoville, et al., The Administration of Psychi- atric Justice: Theory and Practice mm Arizona, 13 Riis Tin. TR, RCAC eo esicipentinitiibdtiie 46, 49 xii PAGE Wigmore on Evidence, 5 § 1400 (Chadbourne rev. ed. 1974) Bb: Wolfensberger, The Principle of Normalization in Hu- gE | Nene ee ere Ne Te ae Wilde, Decision-Making in a Psychiatric Screening Agency, 8 J. Health & Soe. Behavior 215 (1968) .... Ziskin, Coping With Psychiatric and Psychological OUURIOIY CMD Gs TPT) cecncestsitiecincntsendcctssoncticsepteceas 31 48 a np el * oe ee 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. 2 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 ee a 2 COEOE < 1 N wereee ern 3 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 4 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. 6 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, 8 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). a 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. 10 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). 11 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. 12 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). 13 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). 14 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. 15 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. 16 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. 17 ‘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. 18 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 19 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. 20 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. 21 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). 22 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. 24 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 ‘