Mental Illness and the Constitution (Update)

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MENTAL ILLNESS AND THE CONSTITUTION (Update)

Beginning in the 1960s, lower federal courts scrutinized with increasing intensity state claims that special statutory treatment of mental illness, either as a basis for civil commitment to psychiatric institutions or for apparent exemptions from ordinary criminal liability, were in fact beneficial to the affected individual. For almost two decades the Supreme Court was cautiously supportive of this effort, though only equivocally addressing the lower courts' most expansive findings of constitutional protections. In 1983, however, the Court definitively rejected one protective path that some lower courts had pursued; in Jones v. United States, the Court ruled that a criminal defendant found not guilty by reason of insanity could be confined to a mental institution without regard to the maximum term for which he might have been sentenced for the offense charged and, moreover, that the defendant could be confined without regard to the standards for mental illness civil commitment.

Two significant decisions since 1983 suggest that the Court more generally has resolved to abandon its prior tolerance, if not wholehearted support, for judicial scrutiny of state authority regarding mental illness. In Allen v. Illinois (1986), the Court ruled that the Fifth Amendment right against self-incrimination does not apply to commitment proceedings based on mental illness, thus upholding the use of derogatory evidence obtained from a court-ordered psychiatric interview. The Court accepted at face value both the state's characterization of the proceedings as "civil" (even though the statute under review applied only to mentally ill people who were "sexually dangerous" and had already been charged with a criminal offense) and the state's claim that the purpose of the commitment was "treatment, not punishment" (even though the person would be confined for an indeterminate term in a maximum-security facility adjoining, though administratively distinct from, a state prison). Similarly, in washington v. harper (1990) the Court ruled that a criminally convicted prisoner could be compelled to take psychotropic medication without any recourse to judicial proceedings to examine either the prisoner's mental competency or need for the medication. The Court thus effectively disapproved the extensive prior efforts of lower federal courts to establish constitutional protections against forced medication for civilly committed people, as in Rennie v. Klein (1983) and Rogers v. Okin (1984).

The Supreme Court's disavowal of this kind of judicial scrutiny comes at a time of popular arousal about homeless people in urban areas, many of whom appear to be mentally ill. Their visibly disturbing presence has been widely blamed on past judicial inquiries into conditions in mental institutions and the "deinstitutionalization" movement given impetus by these court decisions. Many states have responded to this popular concern by enacting more liberal standards for civil commitment, not only to avert "dangerous" conduct but also to forestall "substantial mental deterioration." Though some lower courts have constitutionally invalidated such liberalized criteria, it is unlikely that the Supreme Court today would agree.

In one limited context the Supreme Court has recently enlarged the state's obligation to give special advantage to mentally ill people; in ford v. wainwright (1986) the Court ruled that states are constitutionally prohibited from executing a mentally incompetent person. But this apparent beneficence has a twist that ironically corresponds to the overall direction of the Court's recent jurisprudence regarding mental illness: the state will now provide psychiatric treatment to incompetent people so that, when cured, they can be killed.

Robert A. Burt
(1992)