No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.
The recognition of liberty rights for people with mental disabilities who are involuntarily committed or who voluntarily seek commitment to public institutions is potentially a major development in substantive due process. The states, pursuant to their parens patriae power, have a substantial interest in institutionalizing persons in need of care, both for the protection of such people themselves and for the protection of others. 1 A state, however,
cannot constitutionally confine without more a nondangerous individual who is capable of surviving safely in freedom by himself or with the help of willing and responsible family members or friends. 2 Moreover, a person who is constitutionally confined
enjoys constitutionally protected interests in conditions of reasonable care and safety, reasonably nonrestrictive confinement conditions, and such training as may be required by these interests. 3 Influential lower court decisions have also found a significant right to treatment 4 or "training as an appropriate professional would consider reasonable to ensure his safety and to facilitate his ability to function free from bodily restraints" 5 although the Supreme Court’s approach in this area has been tentative.
For instance, in Youngberg v. Romeo, the Court recognized a liberty right to
minimally adequate or reasonable training to ensure safety and freedom from undue restraint. 6 Although the lower court had agreed that residents at a state mental hospital are entitled to
such treatment as will afford them a reasonable opportunity to acquire and maintain those life skills necessary to cope as effectively as their capacities permit, 7 the Supreme Court found that the plaintiff had reduced his claim to
training related to safety and freedom from restraints. 8 But the Court’s concern for federalism, its reluctance to approve judicial activism in supervising institutions, and its recognition of the budgetary constraints associated with state provision of services caused it to hold that lower federal courts must defer to professional decision-making to determine what level of care was adequate. Professional decisions are presumptively valid and liability can be imposed
only when the decision by the professional is such a substantial departure from accepted professional judgment, practice, or standards as to demonstrate that the person responsible actually did not base the decision on such a judgment. 9 Presumably, however, the difference between liability for damages and injunctive relief will still afford federal courts considerable latitude in enjoining institutions to better their services in the future, even if they cannot award damages for past failures. 10
The Court’s resolution of a case involving persistent sexual offenders suggests that state civil commitment systems, besides confining the dangerously mentally ill, may also act to incapacitate persons predisposed to engage in specific criminal behaviors. In Kansas v. Hendricks, 11 the Court upheld a Kansas law that allowed civil commitment without a showing of
mental illness, so that a defendant diagnosed as a pedophile could be committed based on his having a
mental abnormality that made him
likely to engage in acts of sexual violence. Although the Court minimized the use of this expanded nomenclature, 12 the concept of
mental abnormality appears both more encompassing and less defined than the concept of
mental illness. It is unclear how, or whether, the Court would distinguish this case from the indefinite civil commitment of other recidivists such as drug offenders. A subsequent opinion does seem to narrow the Hendricks holding so as to require an additional finding that the defendant would have difficulty controlling his or her behavior. 13
Still other issues await exploration. 14 Additionally, federal legislation is becoming extensive, 15 and state legislative and judicial development of law is highly important because the Supreme Court looks to this law as one source of the interests that the Due Process Clause protects. 16