Every year, millions of Americans struggle with serious mental illness. Of them, thousands experience civil, or involuntary, commitment—that is, hospitals invoke the coercive power of the state to force these individuals into psychiatric hospitals against their will. Whether someone requires hospitalization is a complex question of psychology, medicine, and substantive law.
But the process of civil commitment itself is troubling. Across the board, states fail to afford those facing civil commitment meaningful procedural protections. Current state laws subject individuals facing commitment to extended periods of confinement with little to no judicial intervention. Indeed, individuals facing commitment may wait weeks or more for a judicial hearing. And when hearings do occur, they start and end in a matter of minutes. Within those few minutes, little advocacy occurs: lawyers are often passive, judges are often impatient, and respondents rarely have the chance to speak. Worse, some states fail to provide hearings at all. In sum, civil commitment occurs in “pitch darkness.”
Civil commitment procedure should limit, not compound, these harms. Applying fundamentals of procedural justice, this Note proposes three statutory reforms to increase fairness to those experiencing civil commitment. First, this Note calls for states to hold probable cause hearings within seventy-two hours of confinement. Second, states should explicitly define the duties and role of counsel within commitment proceedings. Third, states should task community mental health boards with monitoring the commitment process to increase compliance with the law and bring visibility to these proceedings. Ultimately, this Note aims to promote procedural justice for those facing civil commitment and rekindle a conversation about how states treat those experiencing serious mental illness.
Margaret J. Lederer,
Not So Civil Commitment: A Proposal for Statutory Reform Grounded in Procedural Justice,
72 Duke Law Journal
Available at: https://scholarship.law.duke.edu/dlj/vol72/iss4/4