Due Process and Dangerousness – Lessard v Schmidt Case Summary
Lessard v. Schmidt 349 F. Supp. 1078(E.D. Wis. 972),
vacated and remanded, 414 U.S. 473, on remand, 379
F. Supp. 1376 (E.D. Wis. 1974), vacated and
remanded, 421 U.S. 957 (1975), reinstated, 413 F.
Supp. 1318 (E.D. Wis. 1976)
Key Issue: “dangerousness… based upon finding of recent overt act” and provision of”due process safeguards… that are accorded those accused of crime”
Lessard v. Schmidt transformed mental health law. A federal district court in Milwaukee struck down Wisconsin’s commitment law as unconstitutional. Setting aside traditional parens patriae grounds for commitment, the three-judge court set a narrow dangerousness standard: involuntary commitment was only permissible when “there is an extreme likelihood that if the person is not confined he will do immediate harm to himself or others.” Moreover, the court for the first time required that commitment proceedings provide the mentally ill with all the protections accorded the criminal suspect — among them a right to counsel, a right to remain silent, exclusion of hearsay evidence and a standard of proof beyond a reasonable doubt.
To the police who picked up Alberta Lessard in October 1971after a reported suicide attempt, and the judge who committed her for treatment (she wasdiagnosed as suffering from paranoid schizophrenia), it must have seemed like a routinecase. But Lessard enlisted the federally funded Milwaukee Legal Services, which brought aclass action suit on behalf of all adults held on the basis of Wisconsin’s involuntarycivil commitment statutes. The suit challenged both the grounds on which the statecommitted mentally ill individuals (as being overly vague) and the procedures that wereused. Wisconsin, like most other states at that time, had a loose commitment statute,providing that a mentally ill individual (defined as someone who “requires care andtreatment for his own welfare, or the welfare of others in the community”) could becommitted if “a proper subject for custody and treatment.”
Procedures were also relaxed, with judges relying heavilyon psychiatric opinion and the patient having little if any input and no right to counsel.In the case of Alberta Lessard, the judge had appointed a guardian ad litem to act in herbest interests, but in their opinion, the Lessard judges complained that he did not servean adversary role. Actually, Miss Lessard appears to have spent less than a month in thehospital: perhaps because she quickly enlisted Milwaukee Legal Services, she was sent homeon an out-patient “parole” basis, although the underlying commitment order wasextended each month until the federal district court ruling in the case in October 1972.
With a single exception (the patient’s right to haveadversary counsel present during the psychiatric examination), the federal district courtaccepted every demand put forth by Milwaukee Legal Services. The court ruled the patienthad the right to all the same protections accorded the criminal suspect: effective andtimely notice of the “charges” against him; mandatory notice of right to a jurytrial; a right to appointed counsel; a right to remain silent; exclusion of hearsayevidence; and a standard of proof beyond a reasonable doubt. And the court ruled thatWisconsin’s statutes, in permitting a judge to commit an individual if, upon apreponderance of evidence, it found he was mentally ill and “a proper subject forcustody and treatment” violated constitutional due process protections. Suchprotections required that a judge only commit an individual if he found, beyond areasonable doubt, that the individual was dangerous “based upon finding of recentovert act, attempt or threat to do substantial harm to oneself or another.” Thejudges suggested that dangerousness to self as a ground for commitment needed to be evenmore narrowly defined that dangerousness to others: “Even an overt attempt tosubstantially harm oneself cannot be the basis for commitment unless the person is foundto be 1) mentally ill and 2) in immediate danger at the time of the hearing of doingfurther harm to oneself.
In their decision, the judges acknowledge, but dismiss, thetraditional argument that due process safeguards in commitment hearings can be lessstringent than in criminal cases because the state is acting in the role of parenspatriae, with the aim of treating rather than punishing the individual. On the contrary,the judges maintain, “the interests in avoiding civil commitment are at least as highas those of persons accused of criminal offenses.” They declare that the civildeprivations faced by the mental patient are more serious than those confronting thefelon, the stigma is worse, and the mortality rates in mental hospitals are higher.
Even a short stay in a mental facility, say the judges”may have long lasting effects on the individual’s ability to function in the outsideworld.” Given all this, say the judges, even in the case of those who might benefitfrom treatment, “the rational choice in many instances would be to foregotreatment.” Moreover, the judges assert that even if the individual satisfied therequirements of being mentally ill and imminently dangerous, he should only behospitalized involuntarily “as a last resort” and the effort should be made tofind “less drastic means for achieving the same basic goal.”
The only point on which the judges demurred with theprocedural changes demanded by Milwaukee Legal Services, had to do with the presence ofthe patient’s attorney during the psychiatric interview. The judges asserted they were notsure that the presence of counsel at this point would be beneficial enough to theindividual to outweigh the state’s interest in an effective examination. “[W]e thinkit appropriate to permit the state to demonstrate that other means, such as recording theinterviews and making available to defense counsel the written results of the interview,will prove as effective in maintaining the individual’s rights with less disruption to thetraditional psychiatrist-patient relationship.”
The decision was appealed, and was twice vacated andremanded by the U.S. Supreme Court. In each case the District Court substantiallyreinstated its earlier decision (there were a few minor changes such as substituting”imminent likelihood” for “extreme likelihood” (“that if theperson is not confined he will do immediate harm to himself or others”).
Lessard v. Schmidt revolutionized mental health law. It wasthe beginning of the end for the broad commitment statutes that were then the generalrule, as state after state followed Wisconsin in sharply constricting or all butabandoning the traditional parens patriae grounds for commitment in favor of strictlyfocusing on the police power. Involuntary civil commitment ceased being viewed as aprimarily medical decision (albeit one authorized by a court). It is now viewed as aquasi-criminal proceeding, with the individual to be accorded all the proceduralprotections of the criminal law. From now on, primarily lawyers not doctors would makecommitment decisions.
Lessard turned out to be the high water mark forinvoluntary commitment law. Most states stopped short of implementing all the restrictionsdemanded by the Lessard court: few states would follow Wisconsin in according patients the”right to remain silent” (the psychiatric interview was regarded as tooimportant a piece of evidence) or in imposing a “beyond a reasonable doubt”standard for commitment.
Prior to Lessard, commitment statutes were too broad andvague and procedural protections absent. In so far as it drew attention to this problem,the decision played a valuable role. Unfortunately, the decision (as so many that wouldfollow) was permeated by the anti-psychiatric assumptions that had come in vogue in the1960s: it veered between assuming mental illness was untreatable to arguing thatcommitment for treatment seriously damaged the individual, and in most cases he was betteroff foregoing treatment than being hospitalized for it. Describing commitment as “amassive curtailment of liberty,” the judges showed no recognition that a diseaseprocess had already curtailed the individual’s liberty and that treatment might benecessary to restore the person’s autonomy in any meaningful sense of the word. There wasno sense in the decision that treatment might offer benefits to patients or that unlikecriminal and jailer, doctor and patient had a common interest in securing the patient’simproved health.
In their decision, the judges complain that in 1963 almostthree times as many persons were confined in mental institutions in the United States aswere incarcerated in all prisons administered by the states and federal government.Lessard contributed heavily to the current situation, where state hospitals have beenemptied, and large numbers of mentally ill people, untreated, inhabit our prisons andjails – if they do not, as Darrold Treffert (himself a Wisconsin psychiatrist) put it,”die with their rights on.”
In the years since the Lessard decision, judges have cometo accept as a matter of course the dangerousness standard it decreed as the onlyacceptable one. But in the immediate aftermath of the decision, many judges who sawmentally ill patients were incensed and at least briefly, rebellious. The words of aMilwaukee judge, left behind by history, can nonetheless serve as a fitting epitaph on theLessard decision: “Abrogation of parens patriae must lead to preposterous andbarbarous results. It means that a person who is not imminently dangerous to himself ordangerous to others but who is incapable of making a decision as to a present urgent needfor hospitalization could not be hospitalized. Therefore, as a trial court, I do notpropose sua sponte to overrule a doctrine which has been part of the warp and woof of ourlaw for centuries and which is an essential tool to protect persons who are thusunfortunately circumstanced.”