Why Mental Patients Should Have the
Same Constitutional Rights as Criminals -
and Why Involuntary Commitment for
"Dangerousness" is Wrong

Excerpts from Petitioner's Brief in Donaldson v. O'Connor
(a U.S. Supreme Court case)

In the United States over ten percent of the population will at some time be hospitalized because of "mental illness."  ... In Denton v. Commonwealth, 383 S.W.2d 681, 682 (Ky. 1964), for example, the Court of Appeals of Kentucky ruled that prospective mental patients are constitutionally entitled to all of the traditional criminal safeguards:

Although lunacy inquests are not concerned with criminal intent or criminal acts they may result in depriving the defendant of his liberty and his property.  This deprival should be obtained only by the due process of law under constitutional guarantees.
     We have therefore concluded that when a proceeding may lead to the loss of personal liberty, the defendant in that proceeding should be afforded the same constitutional protections as is given to the accused in a criminal prosecution.

      Similarly, in People ex re. St. Saviour Sanitarium, 34 App.Div. 363, 372, 56 N.Y.S. 431, 437 (1st Dept. 1898), the court remarked:

An alleged criminal is hedged about with safeguards and protections.  Why should not an alleged incompetent or dangerous person receive the same protection?  Shall ex parte proof that would only avail to hold an alleged criminal for trial be regarded as conclusive proof against a supposed unfortunate?  Constitutional immunities are precisely the same as to each.
... The prospective mental patient, unlike the prospective [juvenile] delinquent, is not charged with commission of any specific act or acts.  He is charged either with being "mentally ill" or with being dangerous to himself or others, or both.  We should be especially solicitous of liberty when it rests upon concepts so imprecise as "mental illness" or "dangerousness."  Unlike tuberculosis or cancer, "mental illness" is not a "cause" of disorder; it is, at most a "theory" to explain unconventional conduct or belief.  As such, its boundaries expand or contract according to the life styles and value judgments of the theorist.  Some psychiatrists, for example, believe that all "hippies" are mentally ill; others disagree.
      Similarly, we should be slow to condition human liberty upon a concept as vague as "dangerousness."  Except as applied to mental patients, preventive detention is still an ugly phrase.  Our society is remarkably, though properly, reluctant to confine persons solely because of what they might do in the future.  Probably fifty to eighty percent of all ex-felons will commit future crimes, but we do not confine them.  Ghetto residents and teenage males are much more likely to commit dangerous acts that the "average" member of the population, but we do not confine them.  Of all the identifiably dangerous groups in society, only the "mentally ill" are singled out for preventive detention, and they are probably the least dangerous, as a group, of the groups here mentioned.  Why should society confine a person if he is dangerous and mentally ill but not if he is dangerous and sane?  ...  Preventive detention of persons who are thought to be both dangerous and mentally ill may appear to be more reasonable than preventive detention of the "sane," but is not.
      What little evidence there is suggests that the mentally ill are probably less dangerous than the mentally healthy.  ...  Predictions of dangerous behavior, no matter who makes them are incredibly inaccurate, and there is a growing consensus that psychiatrists are not uniquely qualified to predict dangerous behavior and are, in fact, less accurate in their predictions than other professionals.
      Because predictions of dangerous behavior are so grossly unreliable, and because "mental illness" is, at best, an illusive concept, we should authorize involuntary confinement only if the necessity for confinement is proved "beyond a reasonable doubt."  ...

[as reprinted in Criminal Law and Urban Problems Course Handbook Series Number 57, LEGAL RIGHTS OF THE MENTALLY HANDICAPPED Volume One, edited by Bruce J. Ennis and Paul R. Friedman, Practising Law Institute, The Mental Health Law Project, copyright 1973, pp. 257-267]

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