By Mary Ann Bernard, J.D.
University of Chicago 1978 Cal. Bar # 211417
author of the current NCCUSL proposal for a Model/Uniform Commitment Law.


Jackson v. Indiana, 406 U.S. 715 (1972). Held: mentally ill criminal defendants who are incompetent to stand trial cannot be indefinitely committed on that basis alone. The nature and duration of civil commitment must bear a reasonable relationship to the purpose of the commitment.

O’Connor v. Donaldson, 422 U.S. 563 (1975). Mentally ill plaintiff was confined without treatment for 15 years. Held: states cannot constitutionally confine, “without more,” a person who is not a danger to others or to himself. The latter category includes the suicidal and the “gravely disabled,” who are unable to “avoid the hazards of freedom” either alone or with the aid of willing family or friends. 422 U.S. at 575 and n.9. As the plaintiff received no treatment, the Court expressly reserved the question “whether the provision of treatment, standing alone, can ever constitutionally justify involuntary confinement or, if it can, how much and what kind of treatment would suffice. . . . “ Id. at n.10. The Court has never revisited this issue.

Addington v. Texas, 441 U.S. 418 (1979). Plaintiff, who disputed his dangerousness, was indefinitely committed based on a history of mental illness, threats, and several in-hospital assaults. Held: jury instruction requiring “clear and convincing evidence” that plaintiff required commitment “for his own welfare and protection, or the protection of others” was constitutionally adequate.

Youngberg v. Romeo, 457 U.S. 307 (1982). Mentally retarded, assaultive plaintiff challenged his right to treatment but not the propriety of his commitment. Held: there is a constitutional right to the minimally adequate training/habilitation that an appropriate professional would consider reasonable to ensure safety and freedom from undue restraint. The constitutional standard is lower than malpractice standard, requiring only that professional judgment be exercised.

Rennie v. Klein, 483 U.S. 1119 (1982). Case involving involuntary administration of psychiatric medications to mentally ill plaintiff remanded for reconsideration in light of the “professional judgment” standard in Youngberg v. Romeo.

Washington v . Harper, 494 U.S. 210 (1990). Held: mentally ill state prisoner prone to violence without medication has no constitutional right to competency hearing and court approval of forced medication using a “substituted judgment” standard. Sufficient due process for forced medication order was provided by hospital committee consisting of psychiatrist, psychologist and hospital official not currently involved in inmate’s diagnosis and treatment. “Substituted judgment” standard rejected as ignoring State’s legitimate interest in treating prisoner where medically appropriate for the purpose of reducing his dangerousness. Proposed alternatives of physical restraints or seclusion rejected as risky and having more than de minimis costs to valid penological interests.

Olmsted v. L.C., 527 U.S. 581 (1999). Held: Title II of the ADA requires services provided in the “most integrated setting appropriate to” the needs of the disabled, considering available resources.


Zinermon v. Burch, 494 U.S. 113 (1990). Psychotic individual “voluntarily” committed for treatment. Held: U.S. Constitution prohibits “voluntary” commitments where patient is incapable of informed consent. Dualing dicta: On the one hand, wrongly characterizes O’Connor v. Donaldson as holding that “there is no basis for confining mentally ill persons involuntarily ‘if they are dangerous to no one and can safely live in freedom,’” 494 U.S. at 134. On the other, accepts without comment a state standard that defines grave disability very loosely, permitting involuntary commitment for individuals whose “neglect or refusal to care for themselves threatens their well-being,” Id . (emphasis added).

Kansas v. Hendricks, 521 U.S. 346 (1997). Held: civil commitment of pedophile by jury trial immediately following his release from prison did not constitute double jeopardy , ex post-facto lawmaking or violation of substantive due process, where petitioner admittedly posed current danger to children. It was immaterial that pedophile was not mentally ill, as “we have traditionally left to state legislatures the task of defining terms of a medical nature that have legal significance” and “have never held that the Constitution prevents a State from civilly detaining those for whom no treatment is available, but who nevertheless pose a danger to others.” Holding modified in Kansas v. Crane, 534 U.S. 407 (2002): “[T]here must be proof of serious difficulty in controlling behavior. . .viewed in light of such features of the cases as the nature of the psychiatric diagnosis, and the severity of the mental abnormality itself. . . sufficient to distinguish the dangerous sexual offender whose serious mental illness, abnormality, or disorder subjects him to civil commitment from the dangerous but typical recidivist convicted in an ordinary criminal case. . . . “ 534 U.S. at 412-413.

Sell v U.S, 539 U.S.166 (2003) Psychotic dentist threatened a witness, refused medications needed to make him competent to stand trial for Medicaid fraud, and stalked a nurse while hospitalized. Lower courts disagreed whether dentist was dangerous. Supreme Court assumed he was not dangerous because of procedural posture, but was plainly unhappy about the assumption. Held: 1) courts should first consider authorizing medications on alternative grounds, such as dangerousness, to avoid the question posed; 2)Eighth Circuit erred in holding that medication may be forced solely to force trial competence, without considering whether medications would affect fairness of trial, obviate an already lengthy confinement, or ameliorate future dangerousness.


Though the extent of states’ power to commit mentally ill persons on a “need for treatment” basis remains unclear, the Supreme Court will allow the states considerable leeway in defining mental illness, “danger to self or others” and “gravely disabled.”


1. Precise definitions for “danger to self or others” and “grave disability.” State statutes do not generally define these terms, which have acquired working definitions in many states that are sending the mentally ill to prison or to their graves. “Danger to self or others “should not require proof of something that hasn’t yet happened, an impossible standard that leads to death or to incarceration for past conduct, which is easier to prove. A definition of “dangerousness” that encompasses past history, recent dangerous conduct/threats, and a statement that “the individual’s current stated intentions and demeanor are not determinative of dangerousness” could correct the tendency of treatment personnel to refuse to treat the mentally ill who claim to be safe. Similarly, “gravely disabled” should not per se exclude those who have survived on the street, however precariously. This is an irrational standard, since those already dead from suicide or exposure are not in the group seeking treatment. The broad Florida standard for “gravely disabled “ set forth in Zinermon, supra, or something akin to it, would be a vast improvement over the status quo.

2. Early Intervention. Where a mentally ill individual has established a pattern of decompensating and becoming dangerous when off medications, it is in both the patient’s interest and the public interest to intervene early. Minnesota has an early intervention statute, and there are probably other examples.

3. Meds , not Jail. A fortiori, if society can jail a mentally ill individual for past conduct, it can constitutionally treat him during a period that does not exceed the normal criminal sentence. (Treatment generally requires days or weeks, not months.) Mental health courts, at least in California, are criminal courts that handle only repeat, serious offenders. Local prosecutors ought to have a civil option for first and minor offenders who admit their crimes but may be mentally ill. Defining “dangerousness” to include state law crimes of assault, terroristic threats, property damage etc. would avoid the whole problem of predicting the future by allowing past conduct to provide a basis for commitment for diagnosis and treatment, with release contingent on medication compliance.

4. Special Treatment for Juveniles. Pushing standards away from “dangerousness” to “need for treatment” would offend some civil libertarians and push NCCUSL into uncharted constitutional waters, see O’Connor v Donaldson, supra. To avoid the ideological fight and test the constitutional waters, NCCUSL should consider creating a “need for treatment” standard for juveniles only. Both the states’ parens patrie powers and the rationale for intervention are stronger in this context. Early onset is often a sign of a very serious mental illness, the progression of which may be mitigated through prompt, early treatment. [ii] Since mania often presents as rage in juveniles, who may not yet be diagnosed, they end up jailed all too often. Why wait until they are dangerous to diagnose and treat them? Schools and colleges could initiate treatment when relatives—often mentally ill themselves—do not. Ideally, “juvenile” would be defined to extend to age 25 or so, capturing the average onset age for schizophrenia, the most serious mental illness.

If a “need for treatment” standard proves helpful and constitutional for juveniles, it could later be extended to adults at the option of individual states.

[1] By Mary Ann Bernard, J.D. University of Chicago 1978, Cal. Bar # 211417, author of the current NCCUSL proposal for a Model/Uniform Commitment Law.

[1] See generally, research summarized at,

Other Significant Supreme Court Cases

Souder v. Brennan   (Patient-workers of non-federal hospitals, homes, institutions for mentally retarded or mentally ill individuals are entitled to minimum wage and overtime compensation)

Jurasek v. Utah State Hospital (State hospital can forcibly medicate a mentally ill patient who has been found incompetent to make medical decisions if the patient is dangerous to himself or others and the treatment is in the patient’s medical interests)

In the Matter of Guardianship of Richard Roe III (Substituted judgement by courts per ward’s preferences, if ward were competent)

Rogers v. Okin (Committed mental patients are assumed competent to make treatment decisions in non-emergencies) Full case:

Lessard v. Schmidt (commitment occurs only when person poses imminent danger to self or others) Full case:

Wyatt v. Stickney (Patient has constitutional right to individual treatment)

Riese v. St. Mary’s Hospital and Medical Center (antipsychotic drugs cannot be administered to involuntarily committed patients in non-emergency situations)

Jurasek v. Utah State Hospital (State hospital can forcibly medicate a mentally ill patient who has been found incompetent to make medical decisions if the patient is dangerous to himself or others and the treatment is in the patient’s medical interests)