Involuntary outpatient commitment: the limits of prevention.

Author:Player, Candice T.
Position::II. Moral Justifications and Public Policy Rationales A. Harm to Others 3. The Criminal-Civil Distinction through IV. Objections and Conclusions, with footnotes, p. 199-237
  1. The Criminal-Civil Distinction

    Suppose, however, that at least when combined with a substance abuse disorder, mental illness gives us good reason to suspect a heightened risk of violence. In addition, suppose we are able to predict violence to a reasonable degree of certainty. What justifies assisted outpatient treatment based on our suspicion that, at some point in the future, the subject of a court order might harm others before he has actually done so? As a general matter the other-regarding harms we aim to prevent through outpatient commitment are addressed through the deterrent and retributive functions of the criminal justice system.

    The Supreme Court has yet to address the constitutionality of outpatient commitment. However, in Kansas v. Hendricks and Kansas v. Crane the Court considered an analogous problem that arises when states use civil commitment to detain sex offenders beyond the expiration of their criminal sentences. (252)In both cases, the Court narrowed the class of offenders eligible for civil commitment to those whose "mental abnormality" rendered them dangerous beyond their control. Writing for the Court in Crane, Justice Breyer averred:

    It is enough to say that there must be proof of serious difficulty in controlling behavior. And this, when viewed in light of such features of the case as the nature of the psychiatric diagnosis and the severity of the mental abnormality itself, must be sufficient to distinguish the dangerous sexual offender whose serious mental illness, abnormality, or disorder subjects him to civil commitment from the dangerous but typical recidivist convicted in an ordinary criminal case. (253) Echoing Hendricks, Justice Breyer added that the distinction is a necessary one "lest civil commitment [should] become a mechanism for retribution or general deterrence--functions properly those of criminal law, not civil commitment." (254) In both Hendricks and Crane, the Supreme Court reaffirmed the criminal justice system as the preferred approach to garden variety criminal conduct. The underlying assumption of the criminal law is that most of us have at least a normal capacity to understand what the law requires, and most of us have at least a normal capacity to order our conduct within the wide boundaries set by legal norms. When culpable agents breach legal norms of their own volition, we describe their conduct as a "crime" meriting "punishment" rather 252 253 254 than a "breach" creating "liability." (255) In doing so, we communicate reprobation for wrongdoing while also addressing the offender as a moral agent. By contrast, the moral legitimacy of civil commitment rests on its limitation to persons who lack the capacities for moral responsibility or criminal responsibility. As Allen Buchanan and Dan Brock write, "[i]f the dangerous mentally ill are justifiably treated differently, it must be because they are not capable of responsibly controlling their behavior that is dangerous to others as required by criminal prohibitions." (256)

    In the same way, the Supreme Court limited sex offender commitments to those whose mental abnormalities rendered them unable to control their behavior. Even so, critics argue that the Court's inability-to-control formulation is vastly overbroad and unworkable. As Christopher Slobogin writes, "evidence that the impulses experienced by addicts, sexual offenders and people with psychosis are stronger than those that lead people to commit typical crime is hard to come by; burglars recidivate at least as much as sex offenders, and white collar criminals are probably just as 'driven' by urges, albeit for things like wealth, fame or power rather than (or perhaps in addition to) drugs or sex." (257) To that end, a second approach rejects the volitional impairment approach entirely. Adherents to this view--foremost among them, Eric Janus, Robert Schopp and Stephen Morse--argue that police power commitments are appropriate, but only for those who are, in essence, "too sick to deserve punishment." (258) As Stephen Morse writes, "[f]or reasons much studied and theorized about, but in fact not very well understood, some unfortunate people are so irrational, so grossly out of touch with reality, that ascribing responsibility to them is a travesty according to any but the most extravagantly libertarian account of human agency." (259) If under the grip of delusional beliefs such an agent were to strike out at a perceived threatener, she would not be morally responsible for her actions and therefore not deserving of legal punishment.

    My own view, to be developed in Part IV, rests on a combination of both approaches. Under certain circumstances, outpatient commitment may be appropriate for people with mental illnesses who are irrational in the way Morse suggests. Alternatively, outpatient commitment might be appropriate for people with mental illnesses who are unable to control their behavior. Before offering an alternative approach to outpatient commitment determinations, Part III will press on to examine further justifications for outpatient commitment.

    1. Harm to Self

    Violent crimes involving people with mental illnesses have fueled an interest in preventive outpatient commitment. Yet supporters of outpatient commitment have also argued that court orders to participate in treatment are amply justified by the risk of serious harms to oneself. (260) On any given night in the United States, roughly 650,000 people are homeless, and 1.5 million are homeless at some point during the year. (261) An estimated twenty-six percent of sheltered persons who are homeless have a severe mental illness. (262) For people with severe and persistent mental illnesses, the failure to comply with prescribed medications can increase the risk of homelessness. (263) Although we tend to think of people with mental illnesses as much more likely to commit violent crimes than others, studies have shown that people with mental illnesses are actually far more likely to be the victims of violent crime, rather than the perpetrators of violent crime, when compared to members of the general public. (264) It may be that psychiatric symptoms such as thought disorganization, impaired reality testing, poor impulse control, and poor problem solving abilities impeded the ability to perceive risks and protect oneself. (265)

    For others, treatment noncompliance will lead predictably to incarceration, often for nonviolent offenses such as trespass, loitering, and disorderly conduct. (266) Of the nearly 2 million inmates held in jails and prisons, an estimated 300,000 suffer from a major mental illness. (267) Left untreated, people with severe and persistent mental illnesses are also more likely to commit suicide. (268)

    The legislative findings for Kendra's Law suggest that an important purpose of the assisted outpatient treatment program is to improve the wellbeing of people with mental disorders:

    The legislature ... finds that some mentally ill persons, because of their illness, have great difficulty taking responsibility for their own care, and often reject the outpatient treatment offered to them on a voluntary basis.... The legislature therefore finds that assisted outpatient treatment as provided in this act is compassionate, not punitive, will restore patients' dignity, and will enable mentally ill persons to lead more productive and satisfying lives. (269) Supporters of involuntary outpatient commitment view these laws as a compassionate, commonsense response to the symptoms of a failing mental health system--homelessness, victimization, incarceration, and suicide. (270) Opponents view them as "a glaring example of paternalism gone awry." The difference between them goes to a longstanding conflict between champions of liberalism and their critics. For strong supporters of involuntary outpatient commitment--like critics of civil commitment reform before them--the idea that people with mental illnesses should be "free to rot" seems unfathomable. Yet liberal commitments to neutrality limit the power of governments to enforce any particular conception of the good life. Parallel commitments to autonomy and personal sovereignty limit the power of governments to prevent citizens from harming no one other than themselves. The same liberal commitments to autonomy led the New York Court of Appeals to uphold the right of a competent person to refuse treatment in Rivers v. Katz, notwithstanding a diagnosis of mental illness.

    The question for liberalism is this: when--if ever--is paternalism justified? I shall define paternalism in Gerald Dworkin's terms. On his view, A behaves paternalistically toward B by doing (or omitting) C if--(i) C (or its omission) interferes with the liberty or autonomy of B; (ii) A does so without 267 268 269 270 271 the consent of B; and (iii) A does so because A believes C will improve the welfare or in some way promote the interests, values, or good of B. (272) In short, for Dworkin, paternalism involves interfering with another person, against her will, because doing so will make her better off. We can distinguish two varieties of paternalism--hard and soft. Hard paternalism is the view that governments may intervene to protect competent adults from the harmful consequences of their fully voluntary self-regarding behavior. (273) Soft paternalism holds that states may intervene to prevent harmful self-regarding conduct when, and only when, that conduct is substantially nonvoluntary, or when intervention is necessary to determine whether the conduct is substantially nonvoluntary. (274) Non-state actors may behave paternalistically, to be sure, but my concern here is with the moral limits on government action.

    As philosopher Joel Feinberg observed, "[p]aternalism is something we often accuse people of," in large part because paternalism is usually thought to show inadequate respect for personal autonomy. (275) Yet, given the context of our discussion, two questions immediately arise....

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