Introduction I. Article 9 and the Constitutional Limits on Confinement A. The Federal Framework 1. Substantive limits--O'Connor, Addington, and the "Danger" Standard 2. Procedural Limits--Vitek v. Jones B. How Article 9 Works 1. Voluntary 2. Involuntary 3. Emergency Commitment 4. Retention Orders, Release Hearings, and Other Procedural Protections II. Problems with Article 9, and More Protective Alternatives A. Delegated Discretion--the Problem with Article 9 B. More Protective Alternatives 1. Automatic Hearings 2. Elevated Standards of Proof 3. The Definition of "Danger". 4. Procedural Standards: Objective Evidence III. Civil Rights Litigation as an Alternative Boundary to Article 9 A. Potential Benefits of Case-by-Case Litigation B. Limitations on Case-by-Case Litigation Conclusion INTRODUCTION
Involuntary commitment case law continues to demonstrate that mental illness is not only a physical and psychological affliction, but also a de facto legal status. (1) Suffering from or being diagnosed with--that is, being alleged to have--a mental illness makes one eligible for involuntary treatment, including inpatient commitment tantamount in many ways to incarceration. (2) The key difference between incarceration and commitment is that a person must be adjudged beyond a reasonable doubt to have actually committed a crime to be incarcerated for a set period, whereas members of a select, frequently institutionalized class, the mentally disabled, may be confined indefinitely upon a physician's assessment that they may at some future date commit a harmful act. (3) Mental disabilities affect a remarkably broad range of New Yorkers: a recent survey by the New York City Department of Health and Mental Hygiene (DOHMH) found that 430,000 New Yorkers--7.3% of the City's population--suffered from a major depressive disorder, and 200,000 or 3.5% of the City's population suffered from a generalized anxiety disorder. (4) Another 6.3% reported "nonspecific psychological distress." (5) Even more troubling, a 2005 DOHMH survey of teenagers found that 9.6% of respondents had attempted suicide within the past twelve months. (6) Under current state law standards, any of these conditions could make one eligible for involuntary civil commitment] State law designates twenty-seven hospitals for inpatient treatment of mental illness under the direction of the Office of Mental Health (OMH). (8) A 2009 report by OMH indicated that 173,682 New Yorkers were receiving treatment in residential OMH programs, including 12,853 in inpatient residential treatment facilities. (9) Despite the fact that mental disability affects an enormous percentage of its population, New York State's statutory scheme for involuntary confinement of the mentally disabled, Mental Hygiene Law Article 9 (10) (Article 9) is among the least rights-protective in the country, allocating an enormous amount of discretion to physicians. (11) Periodically, patients and advocacy organizations have challenged this arrangement, but since the Second Circuit found Article 9 facially valid in Project Release v. Prevost, (12) District Courts have upheld it consistently. (13)
This Note will examine New York State's involuntary civil commitment statute, Mental Hygiene Law Article 9, in light of developments in the due process case law and scientific literature relating to involuntary commitment since the Second Circuit Court of Appeals last heard a wholesale facial challenge to the statute in Project Release. Part I will analyze New York State's commitment law in its constitutional context. Part I.A will analyze the constitutional framework around which New York's statute is constructed, starting with the Supreme Court's foundational rulings in O'Connor v. Donaldson, (14) Addington v. Texas, (15) and Vitek v. Jones, (16) and taking account of more recent developments in cases like Kansas v. Hendrick (17) and United States v. Comstock. (18) This Note will comment on the police and parens patriae powers that underpin different parts of the Mental Hygiene law, and the due process implications attendant on each. Part I.B will break down the involuntary commitment statute section by section to illustrate how the legislature has attempted to meet minimum due process standards set out by the Supreme Court. Part II will compare Article 9 and the state and federal case law interpreting it with other states' involuntary commitment schemes and rights-protective judicial doctrines that courts interpreting these schemes have adopted. Through this comparison, this Note concludes that New York's commitment scheme is unusually under-protective of the rights of the mentally ill, leaving excessive discretion to psychiatrists and providing insufficient procedural protection, and that the inevitable result is unconstitutional over-commitment. (19) Part II necessarily will revisit Project Release v. Prevos (20) in detail, highlighting key areas of the Second Circuit's reasoning that have been so undermined since the case was decided that the decision should be overturned or modified. In light of this conclusion, Part III proposes an increased role for Section 1983 and ADA Title II actions against psychiatrists and institutions. This Note will consider how these case-by-case litigation-based strategies, though not as effective as legislative action to amend Article 9 directly, have the potential to indirectly shape a more protective limiting norm and shield New York's mentally ill from over-commitment.
ARTICLE 9 AND THE CONSTITUTIONAL LIMITS ON CONFINEMENT
The Federal Framework
Prior to the 1970s, courts played a minimal role in the civil commitment process, leaving the standards and procedures by which patients could be confined against their will largely to the discretion of state legislatures and mental health professionals. (21) In the early 1970s, landmark civil rights cases like Wyatt v. Stickney (22) and Lessard v. Schmidt (23) ushered in a "de-institutionalization movement" (24) in which state and federal courts, and eventually the United States Supreme Courty began to identify the procedural and substantive rights of individuals diagnosed as mentally disabled. Throughout the 1970s and early 1980s, the Supreme Court enunciated a general framework of minimum constitutional standards that state involuntary commitment schemes must meet in order to protect those rights. (26) This framework is oriented around two distinctions: first, the distinction between "dangerous" and "nondangerous" mental illness; and second, the distinction between a mentally disabled individual's liberty interests and the general interests of society.
Substantive limits--O'Connor, Addington, and the "Danger" Standard
The first distinction comes from O'Connor v. Donaldson. (27) Kenneth Donaldson's father committed him to the Florida State Hospital at Chattahoochee based on "scanty" evidence that Donaldson suffered from "delusions," under a Florida statute that authorized commitment of anyone adjudged "incompetent by reason of mental illness." (28) Donaldson repeatedly but unsuccessfully demanded his release throughout nearly fifteen years of involuntary confinement before finally bringing a Section 1983 claim against the hospital for damages and injunctive relief. (29) Upholding Donaldson's claim, the Supreme Court held that "a State cannot constitutionally confine without 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." (30) Because the trial court had determined that Donaldson, even if mentally ill, was not dangerous to himself or others, the hospital had violated his constitutional right to freedom. (31) Although this holding establishes the substantive right of "nondangerous" mentally ill (or allegedly mentally ill) individuals to live in "the private community," (32) the O'Connor Court expressly declined to decide "whether, when, or by what procedures, a mentally ill person may be confined by the State on any of the grounds which ... are generally advanced to justify involuntary confinement of such a person--to prevent injury to the public, to ensure his own survival or safety, or to alleviate or cure his illness." (33)
Although O'Connor left the substantive and procedural requirements of lawful involuntary commitment to be resolved in later cases, the Court did elaborate on the grounds upon which States might predicate commitment. As implied by the justifications listed above, confinement generally rests on the police and/or parens patriae powers. (34) The police power generally justifies confinement to protect others from the individual, (35) while the parens patriae power justifies confinement for the protection of the individual from himself (or from his own inability to survive without state intervention). (36) Although the Court noted that these two powers are distinct and entail different due process limitations, (37) it did not identify how those different limitations might affect the State's power to confine. (38) State civil commitment statutes, amended to comply with O'Connor's "dangerousness" requirement, do not distinguish between the two justifications, and generally apply to anyone determined to be "dangerous to self or others." (39)
Significantly, Justice Burger's concurrence also recognized the difficulty involved in both defining "mental illness" and diagnosing individuals as "dangerous." (40) How these terms are defined is obviously vital to giving O'Connor's holding meaning, but because both issues had been resolved by the jury below, the O'Connor court did not address them further. (41)
The second major distinction underlying the constitutional framework for civil commitment is the one between the liberty interests of mentally disabled individuals and the interests of society at large. (42) In a civil commitment hearing, these interests must be balanced by allocating the risk...