Mental Illness and the Constitution

• Author: Robert A. Burt
• Pages: 1717-1720

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Mental illness has played two apparently different roles in American law generally: as a limitation on state authority to impose ordinary legal standards on individuals and as a basis for increasing state authority over individuals. The paradigmatic limiting use of mental illness is the defense of insanity for conduct that would otherwise be subject to criminal liability. Its paradigmatic use to increase state authority is in civil commitment of people who, apart from their mental illness, would not be subject to state confinement or control. In both guises, however, the same underlying justification is advanced?that a mentally ill person deserves specially beneficial treatment from the state, either to excuse him from ordinary standards of criminal liability or to protect and treat him under civil commitment laws.

Until the 1960s, constitutional doctrine paid scant attention

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to any of the legal usages for mental illness. Beginning in that decade, lower federal courts began to scrutinize these uses and to invoke constitutional norms in the service of that scrutiny. The central problem was that the promise of special beneficence for mental illness proved false on close examination. Although insanity was denoted a defense to criminal liability, in practice defendants thus found "not guilty" were automatically confined to state maximum security institutions indistinguishable from prisons (and often with harsher custodial conditions), were provided with virtually no psychiatric treatment, and were typically held for longer terms than if they had been convicted of the offenses charged. Similarly, individuals who were civilly committed, ostensibly for protection and treatment, in fact were regularly confined in brutal state institutions, provided no semblance of psychiatric treatment, subjected to degrading impositions such as numbing, physically harmful drug dosages, strait-jacketed isolation, and confined for long terms.

Confronted with these facts, federal courts found various violations of constitutional rights, all derived essentially from the proposition that DUE PROCESS required the state to justify any deprivation of liberty and, where that justification was based on a promise of beneficent treatment, to fulfill that promise. Thus the District of Columbia Circuit Court held in Rouse v. Cameron (1966) that those found not guilty by reason of insanity had a "right to treatment" and not simply custodial confinement, and in Bolton v. Harris (1968) that these defendants could not be automatically confined after an insanity acquittal but only if found "mentally ill" and "in need of treatment" according to civil commitment standards. For civilly committed people generally, that court found in Lake v. Cameron (1966) a liberty-based presumption against automatic commitment to a secure institution and a consequent right to treatment in the "least restrictive alternative" setting. Other federal courts concluded that civilly committed people generally had a constitutional right to treatment and that civil commitment must...