Toward a Conceptual Framework for Assessing Police Power Commitment Legislation

• Publication year: 2021

76 Nebraska L. Rev. 1. Toward a Conceptual Framework for Assessing Police Power Commitment Legislation

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Eric S. Janus*

Toward a Conceptual Framework for Assessing Police Power Commitment Legislation: A Critique of Schopp's and Winick's Explications of Legal Mental Illness

TABLE OF CONTENTS

I. Introduction 2

II. Choosing a Conceptual Framework 4

A. Broad vs. Narrow Explicandum 5

B. Individual Rights/Status vs. State Interest Analysis 6

C. The Role of Medical and Social Scientific Discourse 7

III. Evaluating the Conceptual Frameworks 8

A. How Well Does the Framework Focus on Police Power
Commitments Rather Than Parens Patriae Commitments? 8

B. Explaining Gaps and Overlaps 9

C. Evaluating the Role of Medical and Behavioral Science 10

D. Tracing the Consequences of a Diminished
Individual Rights/Status Approach vs. an Enhanced
State Interests Approach 10

IV. Winick: Therapeutic Appropriateness and
Parens Patriae 11

A. Introduction 11

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B. The Strong and Weak Versions of Winick's Therapeutic
Appropriateness Principle 12

C. Functional Impairment Criteria and Parens
Patriae Commitments 20

D. The Strong Version Entails the High Level Adoption of
Medical Discourse 22

E. Therapeutic Appropriateness, Parens Patriae, and the
Bounds of Police Power Commitments 25

F. Conclusion 29

V. Schopp: Deriving Police Power Limits
From Mental Status 30

A. Schopp's Choice of Explicandum 30

B. Levels of Discourse and the Law-Science Linkage . . 31

C. Legal Mental Illness as Incompetence in a
Particular Context 37

D. The Health Care/Social Control Distinction:
What Is Their Relationship? 41

E. Autonomy, Mental Competency, and the Limits on
Social Control: Do Some People Have a Diminished
Right to Be Treated as Persons? 42

VI. Conclusion 49

I. INTRODUCTION

Recent litigation and scholarship have begun to focus on the substantive limits of the state's power to use civil commitment as a social control tool. Courts and commentators describe civil commitment as grounded on two powers of the state: the parens patriae interest and the police power. This Article seeks an analytical framework for defining the boundaries of police power commitments in which justification rests on the interests of the public rather than on the interests of the committed individual.

The state's general power to use civil commitment commonly is described as limited to individuals who have a mental disorder and who are dangerous to others or themselves.(fn1) The debate about the scope of civil commitment is often posed as a problem of defining the kind of mental disorder that is required to justify commitment. This question has proven much more intractable in the police power context than the analogous question in the parens patriae commitment context. The parens patriae interest is the state's power (and obligation) to care for those who are unable to care for themselves.(fn2)Parens patriae com

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mitments are limited to persons with mental disorders that impair their ability to make decisions about their own lives and medical treatment.(fn3)The boundaries of police power commitments, however, are more difficult to ascertain. The police power gives the state the right to protect the health and safety of the public.(fn4) Unlike the parens patriae interest, the police power is defined not explicitly in terms of the person's mental incapacity, but rather in terms of the danger the person poses to the community. Indeed, the police power clearly operates in circumstances, such as the criminal law, where there is no mental impairment. Thus, the limits on police power commitments and the role mental disorder plays in defining those limits are much more obscure.

Recently, two important scholarly articles contributed to defining these limits.(fn5) Writing in the inaugural issue of Psychology, Public Policy, and Law, Professor Robert Schopp's analysis argues that the bounds of police power commitments are to be found in the respect due to individuals who have the mental competency to act autonomously and to be held responsible for their choices.(fn6) Deploying massive behavioral science authority, Professor Bruce Winick argues that commitments are limited both to mental disorders that severely impair cognition or volition and, by the principle of "therapeutic appropriate

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ness," to mental disorders that are amenable to involuntary treatment.(fn7)Litigation testing the constitutionality of sex offender commitment statutes has prompted the debate concerning the scope of police power commitments.(fn8) As this article goes to press, the United States Supreme Court has issued its decision in Kansas v. Hendricks, upholding the constitutionality of Kansas' Sexually Violent Predator Act. The precedential implications of the Court's decision will depend on careful analysis of the conceptual framework applied. Schopp's and Winick's articles are among the most comprehensive recent efforts to attempt to establish such frameworks. Schopp and Winick derive results similar to other's proposals. Roughly speaking, they propose that civil commitment is appropriate only when an individual's mental impairments render the person incompetent or unable to control his behavior.(fn9) I undertake a critique of Winick's and Schopp's articles because I believe that their results are substantially correct but are more sturdily supported through conceptual frameworks that differ in small but important ways.

II. CHOOSING A CONCEPTUAL FRAMEWORK

A conceptual framework sets forth the "givens" from which an analysis proceeds and often determines the results of the analysis and the generalizability of those results. In the present project, three "moves" establish the framework's essential structure. The first establishes the "explicandum," the concept that is to be explicated. This choice determines whether we will look for limits on police power commitments from within the civil commitment system itself or from a broader context, such as the criminal justice system. The second element resolves whether the framework will pursue an interest-based or a rights-based analysis. This determines whether the limits will arise from the variations in the rights of the individual or in the interests of the state. The third choice determines the role for medical or behavioral science in setting limits on civil commitment.

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In the following sections, I introduce each of these variables and then propose a set of benchmarks or criteria for evaluating the explanatory power of the choices at each juncture.

A. Broad vs. Narrow Explicandum

The problem posed here can be seen as a problem of "explication," that is, taking an old concept, one whose "everyday" use has become inexact, and making it more exact.(fn10)The old concept, "civil commitment," has become inexact because social forces(fn11) demand the use of civil commitment in circumstances that teeter at or near traditional boundaries: states want to use civil commitment to continue confinement of sex offenders who previously have been criminally sentenced and have served their time. This trend requires states to stretch old ideas of what is required for civil commitment(fn12) and demands that the old concept be explicated or replaced by a new concept (perhaps retaining the same term as the old concept), and thereby clarifies the boundary conditions for the new concept.(fn13)One common problem in debates about explication is that disagreements that appear to be about the explicatum (the new, more precisely defined concept) are really about the explicandum (the old concept to be explicated). That is, the discrepancy is traceable to different starting points - the disagreement arises because different concepts are being explicated.(fn14) Thus, a first step in the process of explication is to be as clear as possible about what "old" concept is the explicandum and to use that clarity to choose an explicandum that will yield the most useful explication.

Consider these three candidates for explicandum. The first and narrowest explicandum defines the limits of involuntary "psychiatric hospitalization." The second, slightly broader explicandum defines the limits of the state's "mental health" power. The third and broadest explicandum seeks the boundaries of the state's power to use a civil proceeding to indefinitely deprive an individual of liberty for purposes of social control. The first two candidates correspond

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roughly to the frameworks chosen by Winick and Schopp. Elsewhere, I have suggested an analysis using the third.(fn15)Their choices of explicandum lead Schopp and Winick to seek the boundaries of civil commitment through a method that is, at least in part, endogenous; that is, they seek to derive the limits from the essential nature of civil commitment itself. The third candidate for ex-plicandum suggests a method that is exogenous. This method seeks to define civil commitment from without by understanding where civil commitment fits in the broader scheme of social control and police power.(fn16) Note that the third candidate does not appear to assume that mental disorder will play a limiting role. In contrast, the first two candidates logically and historically entail a role for mental disorder. Thus, only the third candidate allows exploration of the possibility of some forms of "civil commitment" without the presence of a "mental disorder."

B. Individual Rights/Status vs. State Interest Analysis

Any explication of the boundaries of civil commitment must offer a theory explaining why certain individuals with certain conditions are subject to civil commitment, while others are not.(fn17) Two theories are available. One focuses on the individual who is subject to commitment and asks whether the individual has the...