Who Qualifies for Rights?: Homelessness, Mental Illness, and Civil Commitment 9781501721434

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Who Qualifies for Rights?

Who Qualifies for Rights? Homelessness, Mental Illness, and Civil Commitment JuDITH LYNN FAILER

CoRNELL UNIVERSITY PRESS ITHACA AND LONDON

Copyright© 2002 by Cornell University All rights reserved. Except for brief quotations in a review, this book, or parts thereof, must not be reproduced in any form without permission in writing from the publisher. For information, address Cornell University Press, Sage House, 512 East State Street, Ithaca, New York 14850. First published 2002 by Cornell University Press Printed in the United States of America Library of Congress Cataloging-in-Publication Data Failer, Judith Lynn, 1964Who qualifies for rights? : homelessness, mental illness, and civil commitment/Judith Lynn Failer. p.cm. Includes bibliographical references and index. ISBN o-8014-3999-X (cloth: alk. paper) 1. Insane--Commitment and detention-United States. 2. Homeless persons-Legal status, laws, etc.-United States. I. Title: Homelessness, mental illness, and civil commitment. II. Title. KF48o .F25 2002 346. 7301' J-dC21 2001008602

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For my David

Contents PREFACE

ix INTRODUCTION 1

1. THE CIVIL COMMITMENT OF JOYCE BROWN 11

2. THE THEORY BEHIND CIVIL COMMITMENT

Rights and the Mentally Ill 29 3·

LEGAL STATUS AND CIVIL COMMITMENT

s6

4·

THE HISTORY OF COMMITMENT LAW IN THE UNITED STATES

68

5·

THE PRACTICE OF CIVIL COMMITMENT

92 6.

TO QUALIFY RIGHTS IN CIVIL COMMITMENT

109

7·

CONCLUSION

Who Qualifies for Rights? 137 NOTES

145 BIBLIOGRAPHY

185 INDEX

197

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Contents

Preface IN THE SUMMER OF 1987, the New York Times metropolitan section began to run stories about a homeless woman named Joyce Brown. She seemed to be mentally ill, but she refused all offers of help from the mayor's special task force for the homeless mentally ill. Eventually, the task force hospitalized her against her will. She responded by invoking her "right to liberty" and filing a legal petition for her release. The city responded by asserting that they were protecting her "right to treatment." Rights countered rights, and the problem seemed intractable. That Joyce Brown was homeless seemed to add to the confusion. On one hand, some people claimed that a person would have to be crazy to prefer the streets of New York to a warm shelter or hospital bed. Moreover, leaving the mentally ill on the streets was tantamount to leaving these unfortunate souls to "rot with their rights on." On the other hand, others claimed that by targeting the homeless mentally ill for involuntary hospitalization instead of the mentally ill population as a whole, the city was discriminating against its poorest citizens. Besides, homeless people don't necessarily need hospital beds, they need homes. As a student of political theory and jurisprudence, I was captivated by the ensuing legal battle. Why did the arguments about civil commitment, or involuntary hospitalization of the mentally ill, tend to focus on rights? Do the mentally ill have a right to "liberty," as Joyce Brown puts it? Do they have a right to treatment? Why do these rights seem incompatible? Why was it a battle of Brown's rights versus Brown's rights? I was also intrigued by the role that homelessness and poverty seemed to play in the politics of civil commitment. Clearly the polity

ix

has an obligation to help the small percentage of the homeless who are mentally ill, but was the unsightliness of homelessness making some mentally ill people more vulnerable to excessive governmental interference? I sought to answer these questions by looking to the political theory of rights, only to discover that the theory was underdeveloped on the nature of rights for the mentally ill. My inquiry into the theory of rights did provide several important insights, however, all of which seemed to raise very similar questions. First, not all rights are created equal. The reason Brown's right to liberty seemed incompatible with her right to treatment is that they are different kinds of rights. On one hand, there are what I call "regular rights," or the rights associated with full citizenship. In large part, these rights are the claims citizens make against the government or other individuals, for example, the rights to liberty, association, speech, voting. The right to liberty Brown claimed is an example of a regular right. On the other hand, there are what I call "paternal rights," or claims to special consideration. These are exercised on behalf of people who cannot exercise them by themselves. New York City's claim for Brown's right to treatment is an example of a paternal right. What remained unclear in Brown's case was which rights best suited her. Second, rights tend to come in bundles. Regular rights attach to "full citizens." But bundles including paternal rights attach to citizens with a different legal standing. Joyce Brown wanted the first bundle; the city thought she should have the second. But which bundle was best for her? What if none of the bundles fit? Third, despite the legal system's claim to have abandoned notions of status, I found that legal status is still the analytic device that determines which bundle of rights a particular citizen receives. Based on their legal status, the civilly committed get one set of rights, children get another, felons a third, and so on. Joyce Brown thought she had the legal standing of a full citizen. The city thought she had the status of a hospitalized mentally ill person. How do we know when a particular legal status should attach? In short, the battle over Joyce Brown's civil commitment helps to bring into sharper relief an important set of questions that rights theory leaves underdeveloped, all of which ultimately ask, Who qualifies for rights?

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To understand better who qualifies for rights, I dug into the theory, history, and practice of according legal status through civil commitment. I found that even though the history reveals marked shifts in standards for civil commitment, the same kinds of evidence and the same kinds of stories recur again and again in the practice of involuntary hospitalization. In this book, I identify and analyze these legal stories-and the legal images implicit within them-in order to understand how best to evaluate our polity's historical and contemporary efforts to define who does-and does not-qualify for regular rights. My ultimate goal is to pose this new question in political and legal theory; I do not intend or attempt here to answer it in full. In fact, one of the central claims of this book is that the question may not admit of a definitive answer, in part because the theory of the self undergirding our law and politics is too elusive and complicated, in part because our commitment to legal equality makes it very difficult to talk about legal inequality. Nevertheless, I aim to illustrate how we might begin the work of answering this question by using a method of inference. Indeed, because U.S. law and politics are reluctant to address directly the idea and practice of unequal rights, I argue that we must inquire after the assumptions indirectly. This is the technique I use when looking at people subjected to full civil commitment. I contend that by understanding which (in)capacities lead to altered rights of citizenship, we can better understand the nature of full citizenship. Looking exclusively at the case of civil commitment reveals (at best) only a partial picture of the full ideal-type of moral personhood implicit in U.S. law and politics. In order to get a sense of what other parts of the moral personhood of full citizenship entail, we would need to examine many-perhaps all-other groups of citizens who receive any kind of legal status. For example, we would need to use the method employed here to examine why fetuses receive different treatment under law, why women do, and children, and felons, and so on. The legal images that would emerge out of examining each of these groups of citizens could shed additional light on existing assumptions about full citizenship. Put together, they might come close to providing a more complete answer to the question, "Who qualifies for rights?" But even then I doubt that we could have a full answer to the question since it may well be impossible to ascertain that we have un-

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xi

covered all the unspoken assumptions about citizenship that our polity has purposefully left obscure. Still, as long as our polity maintains the practice of providing some citizens with altered bundles of rights, justice demands that we address the question, even if we cannot answer it completely. In the words of Rabbi Tarfon, "It's not your job to finish the work, but you are not free to walk away from it." 1 As I prepared this book, I was blessed with the guidance of many wonderful teachers, all of whom contributed in different ways to this project. Amy Gutmann has been my intellectual and personal role model, showing me how to bring together my concerns about theory and law, ethics and politics, morality and life. Both her mentoring and her friendship have been invaluable. So too has Walter F. Murphy proved an important and helpful guide. I am indebted to him for his investments and faith in me, and for pushing me to see how political and constitutional theory complement each other. George Kateb made me worry about protecting the individual, while Robert George introduced me to the jurisprudential mechanics of doing so through the language of rights. Each gave generously of her or his time. Each provided me with much needed intellectual and personal support. Although I am sure that I should have learned more from each of them, I am grateful for their gifts. Although I have met Martha Minow only briefly, her book Making All the Difference has profoundly shaped my thinking on this project. I gratefully acknowledge her influence, and hope this book lives up to her own excellent example. I also benefited from the intellectual support of many wonderful mentors, friends, and colleagues. Thank you to Joshua Dienstag, Suzanne Dovi, Ian Gold, Cheryl Hall, Russell Hanson, Jeffrey Isaac, Elizabeth Kiss, Andrew Koppelman, Stephen Macedo, Jennifer Mnookin, J. Donald Moon, Bernice Pescosolido, Jean Robinson, David Smith, Jeffrey Spinner-HaLev, and Natalie Stoljar for their continuing aid. My thanks also for the very thoughtful and helpful comments I received from the peer reviewers of this manuscript. I owe a substantial debt to Mark Brandon, who has read or talked through nearly every argument in this book, much to the benefit of the final product. I am grateful for the support I received from my parents, Ruth and Marvin Failer. This book combines my mother's interest in mental

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Preface

health with my father's interest in law. I hope I have done them both justice. My deepest thanks go to David Orentlicher, whose scholarly example has inspired me to aim ever higher. He has been an inexhaustible source of intellectual clarity, moral support, and deep friendship. His belief in me and in this project has been indefatigable. For all that and more, I dedicate this book to him. I am happy to thank several individuals for their assistance in preparing my case study on Joyce Brown. Robert Gould, Robert Levy, Luis Marcos, and Maureen McLeod each spent many hours educating me on the psychiatric, legal, political, and social aspects of Brown's case. They also shared their personal files with me. Without their help, my understanding of civil commitment and of Brown's litigation would have been much impoverished. Finally, I am very happy to thank Louise E. Robbins and Evan Young for their excellent editorial work on this book. Thank you also to Heather McDougall for preparing the index. I owe a special thanks to Catherine Rice for both her kindness and her professionalism as she shepherded my manuscript through the processes of submission, editing, and publication. Needless to say, I retain responsibility for all remaining errors. While writing this book, I received generous funding from the National Institute of Mental Health (MH51669), Indiana University's College of Arts and Sciences, the Charlotte Newcombe Foundation, the Mellon Foundation, the Princeton Society of Fellows, and Princeton University's Department of Politics and Graduate School. I am grateful to these institutions for their support.

Preface

xiii

Who Qualifies for Rights?

Introduction MENTAL HEALTH workers took Joyce Brown from her "home" on a New York City sidewalk and hospitalized her against her will, she defended herself by asserting her rights. She asserted her right to live where she wanted, to speak to the press to deride the city's policy, and to refuse unwanted medical and psychiatric treatment. Never mind that she seemed to be mentally ill. Never mind that she was homeless, or that her family thought she needed to be in the hospital, or that she looked like she was suffering, or that she seemed to be deteriorating-both mentally and physically. Never mind that she sometimes frightened passersby, and may even have been dangerous to others. Brown knew she was a citizen, and knew that she had civil rights. As she put it, "In this day and age ... in the United States of America, where everyone comes to be free, my rights are being violated." 1 One thing that made Joyce Brown's case so difficult was that it wasn't clear whether she really had rights to the things she claimed. Yes, she was a United States citizen, and normally citizens possess the rights that protect them from governmental intrusion into their personal lives. But according to the mental health workers who had followed her case for months, Brown suffered from a serious mental illness, and this undermined the credibility of her claims that she could take care of herself and her insistence that others leave her alone. In theory, she had all the rights that go along with U.S. citizenship. But in practice, the mental health workers just didn't think it made sense to ascribe all of those rights to her considering that she was a mentally ill homeless woman. This raises difficult questions for both the theory and the practice of rights. When does a person become disqualified for some or all of the rights associated with full citizenship? Conversely, who does qualify for rights? WHEN

1

Common beliefs in civic equality to the contrary,2 not all citizens have the same rights in the United States. True, the Fourteenth Amendment provides that no state shall "deny any person within its jurisdiction the equal protection of the laws." 3 Nevertheless, the Constitution• does not treat all persons' citizenships equally. In fact, the Constitution qualifies-or alters-many citizens' citizenship. The easiest way to see these changes is to look for differences in the bundles of legal rights, duties, capacities, and incapacities attached to people as citizens. We can see that children are qualified citizens, for example, by observing that their citizenship bundle does not provide them with the right to vote that "full" citizens enjoy but does add the right to a free education. 5 Former felons often lose the rights to vote and hold public office held by those never convicted. 6 Bankrupts are qualified citizens in that their bundle frees them from the duty to repay (certain) debts and does not include the legal capacity to enter into certain kinds of contracts (without prior permission from the bankruptcy court)? The bundle of rights associated with the citizenship of mentally ill people is particularly qualified when they are civilly committed. In the hospital, they gain treatment, but they also stand to lose many important civil rights, especially the right to liberty. They can also lose the rights to vote, to hold public office, to serve on a jury, to retain standing as a parent, and to divorce. 8 As we can see in the case of Joyce Brown, even as they gain rights to treatment, mentally ill people can lose many rights associated with autonomy and bodily integrity upon commitment to a hospital. Instead, they receive diminished forms (if any at all) of the rights to choose where they live, with whom they associate, and with whom they speak, and/ or relinquish some control over whether or not to accept medical and psychiatric treatment. If the Constitution qualifies citizenship for some citizens, then it follows that there must be a constitutional vision of "full" or "normal" citizenship from which these altered citizens differ. 9 People who meet the standards implicit in this constitutional vision are fit to enjoy all of the legal rights, duties, capacities, and incapacities associated with full citizenship. 10 But what renders these citizens fit? What are the standards that determine whether or not a citizen is qualified for full citizenship? What do these standards tell us about the Constitution's vision of full citizenship? In this book, I try to piece together a small part of the Constitu-

2

Who Qualifies for Rights?

tion' s vision of full citizenship by examining some of the constitutional, practical, and moral justifications for altering citizenship. In particular, I examine the legal, political, and moral arguments that try to justify the deprivation of liberty that occurs upon civil commitment of the mentally ill. Arguments for and against civil commitment reveal basic assumptions about full citizenship in two related ways. First, they show the qualities and incapacities that disqualify a mentally ill person from full constitutional citizenship. Second, they implicate constitutional assumptions about the qualities and capacities a mentally ill person would need in order to qualify for full citizenship. In other words, by looking at the qualities and incapacities that alter a person's citizenship, I hope to learn about those qualities and capacities associated with unaltered citizenship.U While much of my argument invokes common-law and statutory rules for civil commitment, I am primarily interested in the justifications used to distinguish the citizenship of committable persons from that of full citizens. As a corollary, I am interested in the legal rules for civil commitment not for their own sake but as an illustration of the political and moral values expressed in assignment of this legal status. Thus, I use the case of Joyce Brown not to illustrate the process of civil commitment, 12 but to help understand the political and moral values at stake when we change a citizen's legal status as we do in civil commitment. To say that civil commitment alters a person's citizenship may seem strange at first glance. After all, involuntarily hospitalized psychiatric patients maintain their passports and many other attributes of official membership in the polity. But the term "citizenship" connotes more than nationality. 13 As Judith Shklar points out in her Tanner Lectures, the term has (at least) three additional meanings. It may signify ideal republican citizenship, or the active pursuit of the public good through politicsY It may also mean participation, as in the expression, "She is a good citizen." 1" Finally, and of primary interest to the analysis here, it may connote what Shklar calls "standing," or the signal of "one's place in a hierarchical society." 16 In this book, I look at citizenship primarily as a matter of standing, which I call status, paying special attention to the political and legal terms that characterize a person's relation to the rest of the polity in which they live and that they help constituteY These terms, including the bundle of legal rights, duties, capacities, and incapacities, vary across groups of citi-

Introduction

3

zens, providing an important way to examine the meaning of citizenship--whether or not these individuals hold U.S. passports, participate actively in politics, or are good neighbors. 18 When viewing citizenship as status, it seems clear that civil commitment alters the citizenship of involuntarily hospitalized citizens. Unlike full citizens, the civilly committed lose important rights to liberty (even as they gain some special rights, including procedural protections and, in some jurisdictions, the right to treatment). That they possess a different bundle of rights, duties, and legal (in)capacities places them in an altered position compared to their fellow citizens. In short, it changes their status in the polity and thereby qualifies the terms and nature of their citizenship. They may hold passports, but they stand in a very different relation to the community than do most other citizens. The idea of a full citizen is, of course, a legal fiction. 19 Even beyond the cases of children, bankrupts, and felons, there is no person whose citizenship is not qualified in some way. For example, adults are either single, married, separated, or divorced-and each of these statuses brings different legal capacities under the tax code. Similarly, people are either male or female, 20 a status that affects eligibility to serve in some combat positions in the armed forces. It is important to note that in each of these cases, people's bundles of rights, duties, capacities, and incapacities vary from the legal norm. These variations may involve limitations (e.g., restrictions on the felon's right to vote), augmentations (e.g., children's right to a free public education), or both (e.g., a married female soldier may be ineligible to serve in certain combat positions, but may also gain a marital benefit on her taxes). Regardless of whether the variations from the legal norm result in more rights, fewer rights, or simply a different bundle of rights, this legal fiction merits examination because it defines the standard against which special cases are measured to justify differential treatment. Even if there were no controversy over how to justify the assignment of legal status, it would still be important to understand the image of the full citizen at work in our legal and political practices because that fiction plays an important role in defining who qualifies for one of the most important incidents of full citizenship: 21 "regular" rights. 22 Only after we have uncovered the implicit assumptions about who qualifies for regular rights and full citizenship can we be prepared to ask the normative questions this study raises: Who should

4

Who Qualifies for Rights?

qualify for rights? Who should qualify for full citizenship? To what extent does the polity's vision of qualified citizens reflect an adequate understanding of both citizenship and rights-holders-especially when it comes to defining a citizen's ability to invoke the language of rights? 23

OUTLINE OF THE ARGUMENT

I begin the book by looking at a hard case in contemporary law that illustrates the difficulty of deciding who qualifies for full citizenship and the bundle of rights attached to that standing. The debate over whether to hospitalize Joyce Brown against her will shows how difficult it can be to decide when it is just to qualify citizenship. Which standards should guide these decisions? This question becomes more difficult when we consider that all parties involved asserted that important rights were being violated. In a press conference from her hospital room, for example, Brown claimed the city was violating her "right to liberty." Mayor Edward Koch asserted that the New York Civil Liberties Union, which represented Brown, was undermining Brown's right to treatment. Neighbors complained that this crazy homeless woman violated what they took to be their right to be free from public nuisance. With so many important rights at stake, how can we find a solution that respects the rights of all involved? In important ways, Brown's case is hard because it is framed in the language of rights. By recognizing the difficulties rights-talk produces in this case, I do not mean to imply that Brown errs when using the language to assert her claims. Indeed, this way of framing the issue seems entirely appropriate. When Brown claims her rights are being violated, her language enables her to make a powerful claim. At base, the language of rights conveys her attempt to establish that the government must act or must refrain from acting in a particular manner. In Ronald Dworkin's words, "Individual rights are political trumps held by individuals." 24 These are powerful tools, he argues, because, when established, they enable the right-holder to claim that "the state would do wrong to treat him in a certain way, even though it would be in the general interest to do so." 25 Hence, when Brown asserts rights to live where she chooses and to speak to the press to protest her hospitalization, she is claiming that the government is failing in its

Introduction

5

duty to allow her to live and speak-even if the majority of citizens in New York think her lifestyle choices are wrong, immoral, or foolish. But not all rights are the same. At the very least, different kinds of rights are powerful for different reasons. Some rights are fundamentally moral (or human) rights-for instance, the right not to be tortured. This implies that the most important reason why it is wrong to torture someone else is because humans have moral obligations to refrain from abusing each other in this way. Other rights find much of their bases in the Constitution: for example, the right to the free exercise of religion. 26 That this right is constitutional makes constitutional interpretation and argumentation an important component of justifying the existence of this kind of claim. Civil rights, in contrast, are rights we possess by virtue of our citizenship, for example, the rights to vote, free speech, and equal protection of the lawP Depending on the polity to which we belong, the kinds of arguments most appropriate for justifying civil rights could depend on the existence of local constitutions, customs, traditions, and/ or political practices. Of course, these divisions are not as neat as they might appear. The right not to be tortured, for example, is obviously a moral right, but it is also a constitutional right, given the Eighth Amendment's guarantee against cruel and unusual punishment and the Constitution's overall commitment to respect for human dignity. 28 Similarly, the First Amendment certainly protects the right to the free exercise of religion, but individuals' responsibilities to obey their god(s) and consciences also provide strong grounds for this right. The nature of citizenship itself also establishes the right of freedom from torture and from interference with the free exercise of religion, especially if that citizenship is in a constitutional democracy such as the United States. Insofar as citizens are members of a polity that is committed to both rule by the demos and equal dignity for all citizens, it is hard to imagine how any constitutional democracy could establish general policies that would permit the torture of its citizens or prevent them from obeying their gods. The fact that many rights find their bases in overlapping grounds adds to the difficulty of discovering who qualifies for which rights. Indeed, the overlapping grounds for the qualifications may well yield multiple (and perhaps mutually inconsistent) standards for ascribing rights to some people and not to others. To identify the qualifications for particular rights, we need to look at them in their many incarna-

6

Who Qualifies for Rights?

tions. After showing in chapter 1 how Brown's case provokes the question of who qualifies for rights, I break down the remaining analysis into sections that focus on the rights' multiple sources. In chapter 2, for example, I inquire as to how general theories of rights elucidate when it is appropriate to disqualify mentally ill people, including Brown, from the ranks of regular rights-holders. Is there something in the logic of rights themselves that tells us why people qualify for rights? The theory, however, turns out to be too underdeveloped to clarify which qualities rights-holders such as Brown must possess to retain their standing as full citizens. I next look at the rights Brown claims on constitutional grounds. This transforms the analysis into a problem of legal status since legal status is the mechanism through which the law and the polity assign different (and altered) bundles of rights to different classes of citizens. Thus, in chapter 3 I examine how the law of status persists in U.S. constitutional law and politics, granting full citizenship to some people while relegating others to second-class statuses. Because civil commitment is an example of when some citizens (the mentally ill) acquire a new legal status, I trace, in chapter 4, the history of the legal standards used to determine when that special standing should attach. That is, I consider the standards as they are formally enunciated by courts and legislatures. It turns out, however, that the history provides little guidance for deciding whether to commit Brown. Not only does it reveal marked shifts in the doctrine guiding involuntary hospitalization; its current state of flux suggests a continuing disagreement over the best standards for civil commitment. Chapter 5 attempts to discover the appropriate grounds for deciding about legal status and rights by looking at the application in practice of the formal standards for civil commitment. This also proves a less than satisfactory source for resolving the dilemmas posed by Brown's case, since the practice reveals competing assumptions about the qualities and capacities full citizenship requires. Because the theory, law of status, doctrine, and practice provide insufficient guidance for deciding who qualifies for regular rights and full citizenship, I try in chapter 6 to develop a standard for assessing the moral and political adequacy of the justifications implicit in the current practice of civil commitment. After arguing against the use of most of the common standards for involuntary hospitalization, I conclude by noting that the remaining criteria do not exhaust the range of

Introduction

7

possible requirements our polity should consider when qualifying rights for the mentally ill or other persons whose civil rights are subject to alteration. Indeed, I argue that decisions about which standards to use when distributing rights should not be predetermined or set in stone. The stakes are very high; people facing civil commitment or similar changes in legal status stand to lose fundamental rights, one of the most effective means they have to protect themselves from abusive government. Therefore, we must take care not to deprive people of rights unnecessarily. Of course, what counts as necessary conditions for the mentally ill will vary as we gain insight into mental illness, its treatment, and the moral bases of our obligations to each other. Similarly, the qualifications in rights for persons with other statuses will evolve as our understanding of their status changes. In the meantime, as we do our best to understand who does and who should qualify for rights, we must take care that the standards we use are sufficiently flexible that they deprive people of the least number of rights possible.

A NOTE ON THE SEARCH FOR CONSTITUTIONAL MEANING

Any attempt to understand the Constitution's vision of full citizenship must begin with an understanding of what kind of a thing the Constitution is. In this book, I rely on the conception developed by Walter F. Murphy, James E. Fleming, William F. Harris II, and Sotirios A. Barber, among others. 29 Although it is far outside the scope of this project to lay out this understanding in full, an introduction to its basic contours should help clarify both the scope of my project and the stakes it raises for constitutional theory. As I use the phrase here, the "Constitution of the United States" refers to the textual document of the same name. But it also refers to the polity as it is constituted: its political practices, values, and ways of life. In an age when so many countries struggle to create and maintain written constitutional documents, it may seem strange to retain the older, Aristotelian understanding of constitutions in my working definition. But it would be just as odd to try to understand the Constitution without paying attention to the unwritten parts that play such an important role in constituting our political society. For example, while the constitutional text provides for a federal judiciary, it makes

8

Who Qualifies for Rights?

no mention of the court's authority to use judicial review to declare unconstitutional congressional acts. Yet we would be hard pressed to understand the nature of the courts while ignoring this kind of judicial review-a constitutional practice that is crucial to defining the Court and its role in the political order. Similarly, Americans believe strongly that they have constitutional rights to a presumption of innocence and to remain silent when arrested by police. Neither of these rights appears in the constitutional text, yet both are informed by interpretations of text that is there-the guarantee of due process. Any attempt to understand constitutional meaning, then, would remain incomplete if the interpreter looked only to the written constitutional document and failed to consider the polity as it is constituted.30 So, too, would it be incomplete if it only looked to constitutional law as practiced by attorneys and judges, while neglecting the political values implicit in both the formal legal arguments and the way the Constitution is lived out in the lives of all citizens in the polity. 31 Because I recognize that the Constitution includes more than just its written text, my search for the constitutional vision of full citizenship takes me beyond the four corners of its two-dimensional document. In this book, I look for the constitutional meaning of full citizenship in constitutional interpretations by judges, legislators, mayors, municipal officials, and ordinary citizens. But I also examine legal statutes, doctrine, case-law, and practice, and I delve into political, legal, and moral theory. These many sources all have potentially constitutional status, I believe, because they all play a role in shaping the way the legal practice of civil commitment in the United States actually works to qualify the legal standing of many mentally ill citizens. Any attempt to understand the constitutional meaning of citizenship that failed to consider these sources would necessarily be incomplete. By looking for constitutional meaning in so many places, I obviously run the risk of considering interpretations that get the Constitution "wrong." However, even assuming that there is a best way to understand what the Constitution means, the fact remains that all parts of the Constitution-as-it-exists-in-the-polity may not always coincide with this best sense of the Constitution-as-a-whole. Some constitutional practices may persist for long periods of time despite their inconsistency with the values set out in the constitutional text or bound up in the constitutional enterprise. Recall the persistence of racial seg-

Introduction

9

regation in public facilities and how long it has taken for our constitutional practice to come close to living up to our constitutional ideals of racial equality. If the polity's constitutional practice does not meet the ideals set out in the constitutional document or enterprise, its failure to meet those standards is just as important to identify as the ideal itself. Therefore, my efforts to uncover the constitutional vision of full citizenship have two parts. First, I attempt to uncover the standard(s) against which the American polity actually measures the mentally ill when deciding whether to qualify their citizenship. Second, I assess that practice against the ideals bound up in the constitutional enterprise. For both tasks, I rely on my readings of the Constitution as both text and polity.

10

Who Qualifies for Rights?

CHAPTER 1

The Civil Commitment of Joyce Brown ON OCTOBER 28, 1987, members of New York City's Homeless Emergency Liaison Project (Project HELP) approached a woman living on the sidewalk of Second Avenue. After the team did a quick examination of her mental status, the police helped them force her into a van and take her to the psychiatric emergency room at Bellevue Hospital. At the hospital, a psychiatrist examined her, diagnosed her as schizophrenic, injected her with an antipsychotic medication and a powerful tranquilizer, and committed her. "Ann Smith," who identified herself as "Billie Boggs," thus became the first homeless person committed under Mayor Koch's newest initiative to find and secure psychiatric care for the homeless mentally ill-whether they wanted treatment or not. Workers from Project HELP had known Smith long before they picked her up on October 28. According to psychiatrist Lincoln Hess's application for her involuntary hospitalization, Project HELP began monitoring her behavior in December 1986 after private citizens and community representatives expressed concern about her mental health. Over the next several months, teams of mental health workers from Project HELP had observed her almost daily. 1 They watched her engage in "[b]izarre behavior (eating money, tearing [money] up and urinating on it, throwing it on the street.)" They noted that "she speaks to herself with abrupt changes of affect2 as if in response to external stimuli that is not apparent, and gestures as if to a conversant who is not present. ... [She was also] seen chasing imaginary people." She often swore at Project HELP's workers, and even screamed at them to" 'suck' her 'dick.'" Her clothes smelled of feces and appeared "disheveled, tattered, dirty," and inappropriate for in-

11

clement weather. They often noted that she was "malodorous, smelling dirty, and of urine and feces." 3 Between December 1986 and July 1987, Project HELP attempted on three occasions to commit Smith to Metropolitan Hospital. The New York City Police Department tried twice to do the same thing. Each time, psychiatrists at Metropolitan refused to commit her. 4 In subsequent months, Project HELP workers believed, her behavior had become even "more bizarre" and her "self-care" had "deteriorated." In a memorandum on October 28 documenting Project HELP's "designation" of Smith, the organization's coordinator summarized the patient's condition during the summer and early fall: She was physically threatening to passersby without any provocation. She had become increasingly hostile and aggressive to the Project H.E.L.P staff.... [She] was observed urinating and defecating on herself; tearing up and urinating on U.S. paper currency; baring her buttocks, on the street, in order to make obscene statements and entering traffic on 2nd Ave without regard to her own safety. Paranoid delusions about black men trying to turn her into a prostitute were expressed. This was her reason for destroying money. 5 When Hess and the other members of his Project HELP team came to evaluate her on the street on October 28, they found her lying on the pavement just fifteen feet away from torn pieces of currency stained with urine. They noted that she was underdressed for the weather. Her hair was matted and dirty. She was malodorous and very slender. Her affect was "angry, hostile, anxious, threatening ... provocative, [and] condescending." She alternately muttered to herself and screamed obscenities at the Project HELP workers "in an intensely threatening tone. (E.g., Fuck Bellevue. Fuck the police)." Although she showed no signs of suicidal ideation,6 the team believed that she was a danger to herself. This lady has a well-documented history of homelessness .... The exam today indicated continued psychosis .... [Diagnosis:] Chronic Schizophrenia, paranoid type .... This lady has a severe mental illness for which psychiatric hospitalization is appropriate .... In my opinion, she requires immediate transport

12

Who Qualifies for Rights?

to Bellevue Hospital Center for emergency psychiatric and medical evaluation and treatment? Police helped the team transport Smith to Bellevue, where she identified herself as "Billie Boggs." Unlike the doctors at Metropolitan's emergency room, the doctor in Bellevue's emergency room admitted her. In less than twenty-four hours, a psychiatrist at Bellevue examined her and confirmed the need for emergency admission. Smith/Boggs was now committed to Bellevue, residing in 18 Westthe hospital's new ward for the homeless mentally ill.

PROJECT HELP-I AND II

Why did the doctor at Bellevue admit Boggs when doctors had refused to admit her five times within the preceding seven months? The answer lies in the difference between Project HELP I and Project HELP II. The Homeless Emergency Liaison Project, or Project HELP I, began as a pilot program in late 1982. Under the auspices of New York City Health and Hospital Corporation (HHC), teams of mental health workers combed Manhattan "trying to convince homeless people with a variety of mental disabilities to voluntarily accept the help they need." 8 These services ranged from offers of food, coffee, and clothing to the provision of medical, mental health, and social services.9 According to HHC's Vice President for Mental Hygiene Services, Luis Marcos, Project HELP workers brought twelve to fifteen homeless people to the hospital each year in the project's first few years of operation. Compared with the ever-growing number of mentally ill homeless people, however, this small "success" rate seemed woefully inadequate.10 In order to secure care for more of the mentally ill homeless, Sara Kellerman, the Commissioner of Mental Health in New York City, agreed in 1985 to grant the psychiatrists on Project HELP teams the power to "designate" individuals as committable. This gave them the power to authorize the involuntary transportation of mentally ill homeless people to emergency rooms for evaluation and admission. This power to transport and recommend commitment effectively made Project HELP I into an "ERin the street." 11 The team's "success"

The Civil Commitment of Joyce Brown

13

rate increased tenfold. 12 Nevertheless, the work of Project HELP I hardly made a dent in the number of mentally ill people living on the streets of Manhattan. The biggest impediment to procuring treatment for the mentally ill homeless who refused assistance was a New York state law governing involuntary transportation to and commitment in a hospital. As city officials then interpreted it, the Mental Hygiene Law prohibited involuntary transportation to or commitment in a psychiatric hospital unless the individuals' mental illness constituted an imminent danger of harm to themselves or others. Thus, even though Project HELP was identifying more and more homeless people whose mental and physical health were deteriorating, the legal criteria for civil commitment only permitted the group to transport to the hospital that small fraction of their clients whose mental illness made them actively suicidal or homicidal. This left unserved all of the "harmless" homeless people whose mental illness was so severe that it prevented them from recognizing that they needed help. These people continued to deteriorate (mentally and physically) on the streets. Mayor Koch became so frustrated with the city's seeming inability to help those he thought were obviously in need that he organized a task force to "suggest changes in current state law ... [in order to] strike a better balance between the rights of the mentally disabled and their need for help." 13 The problem, as he saw it, was that This existing law with its limitations ... sentences thousands of people to a slow, painful death on the streets of New York City. They are suffering and dying-not imminently-but week by week, month by month, year by year. As long as they choose to refuse help which is offered, they die slowly and quietly. And there's nothing anyone can do for them under the current law. 14 The task force agreed and advocated changing the state law. Following their advice, Koch supported bills in the New York state legislature to expand the definition of "harm to self" to include self-neglect and I or grave disability. The bills did not pass. 15 In May 1987, Koch redoubled his efforts to change the law after he took a tour of Manhattan with members of Project HELP. Among the many homeless mentally ill people he saw that day, one woman stood out to him. Project HELP knew her as "Ann Smith"-the woman 14

Who Qualifies for Rights?

whom Metropolitan had refused to commit on five separate occasions. In speeches and broadcasting interviews over the next several months, Koch spoke of this woman again and again. At the annual meeting of the American Psychological Association, Koch cited the plight of this woman as grounds for changing the standards for civil commitment. According to coverage of the speech in the New York Times, Mr. Koch recalled a visit to a woman [Ann Smith/Billie Boggs] ... who had defecated in her clothes. He said in his speech that some experts accompanying him said that she did not qualify for an institution because she did not present an "imminent danger" to herself or others. Astonished by that conclusion, the Mayor said he thought privately: "You're loony yourself. " 16 If the standards did not permit the mayor to commit this woman, he reasoned, then he would have to change the standards. On August 28, the mayor attacked the existing commitment criteria and announced an initiative that empowered the city to help the mentally ill homeless. "Under the law of this state," he argued,

People can be involuntarily admitted to a hospital if they suffer from mental illness, need immediate care, and are in danger of serious harm within the reasonably foreseeable future if care isn't received. The City's Mental Health Commissioner, [HHC] Corporation Counsel and I believe that the law hasn't been applied as broadly as it could be to help all who need help. As a result, far more seriously mentally ill people are on the streets than should beY He then promulgated a new interpretation of the old standards, extended the jurisdiction of Project HELP's power to designate, and created a special ward in Bellevue to care for those homeless mentally ill people who could finally be committed under his new version of the commitment law. He called this initiative "Project HELP." To distinguish his policy from the outreach teams of the same name, internal city documents refer to the package of programs (including the new standards for commitment) as "Project HELP II."

The Civil Commitment of Joyce Brown

15

Koch began Project HELP II by asking HHC to instruct its doctors about the looser standards. In a memorandum dated September 9, HHC Vice Presidents John E. Linville and Marcos informed the city's directors of psychiatry that the mayor had "asked that we step up our efforts to ensure the availability of medical and psychiatric treatment to the mentally ill living on the street." In response to Koch's request, Linville and Marcos had reexamined the criteria used for involuntary transport, hospitalization, and treatment, and concluded that "some admitting psychiatrists may be applying an unduly narrow definition of what constitutes 'likelihood to result in serious harm to self.'" To correct this error, HHC planned to conduct workshops with the psychiatrists to "ensure full understanding [of] the broadest application of the law in this area." Although these officials maintained that the determination of "self-danger" is a "clinical judgment," HHC also urged the clinicians to remember that "the law recognizes a concept of 'serious harm' that is significantly broader than actively suicidal conduct. Significant, passive self-neglect meets the 'serious harm' standard as well." 18 In sum, they instructed the doctors to commit those patients they believe to be "in danger of serious harm within the foreseeable future" (i.e., not just those in imminent danger of harm). Koch's announcement of Project HELP II touched off a war between the mayor and civil libertarians around the city (and the country). Norman Siegel, director of the New York Civil Liberties Union (NYCLU), was particularly vocal; he accused the mayor of posing broad threats to civilliberties. 19 Koch replied that people who criticized his program were "crazies" for arguing that the city has "no right to intervene to help these people." 20 Indeed, in remarks to the National Press Club, the mayor justified Project HELP II as an effort to protect liberties and rights. [Mental illness among the homeless] caus[es] tremendous suffering in cities across our country. What makes this situation unique, if not tragic, is that some individuals and groups-such as civil liberties organizations-say we must leave the victims alone. They say that not only must we let the suffering continue, we must do so in the name of civil liberties. In New York City we have decided that we are not going to let the suffering continue.... We are reaching out to those in need, and we are

16

Who Qualifies for Rights?

doing so in the name of both human rights and human decency.21 Speaking for HHC, Marcos also defended the program as an effort to protect the rights of the mentally ill homeless. "For the first time there is a recognition of the patients' right to treatment, and their freedom from the prison of mental illness, rather than the freedom to die in the streets." 22 Right in the middle of this battle stood Ann Smith/Billie Boggs. Although Project HELP I and the police had been unsuccessful in their five attempts to commit her under the old standards, doctors following the guidelines promulgated under Project HELP II, with its broader definition of "harm to self," finally succeeded in committing her. In fact, she was the first person committed under the new standards of Project HELP II.

THE HEARING

Billie Boggs contested her commitment. She did not want the city's help. She did not want its pity. She did not want its psychiatric care. Boggs saw herself as a "professional" street person,Z3 and she wanted to return to her "home" on Second Avenue. Speaking to a reporter by telephone from Bellevue, Boggs stated that "In this day and age, in the 8o's in the United States of America, where everyone comes to be free, my rights are being violated." 24 Within twenty-four hours of her admission to 18 West, she petitioned for her release and telephoned the NYCLU, asking them to represent her. Attorneys at the NYCLU had been expecting just such a call. As soon as the mayor had announced his initiative, Siegel and one of his staff attorneys, Robert Levy, had distributed hundreds of fliers to homeless people around the city, informing them of their rights and encouraging them to contact the NYCLU if they wished to contest an involuntary commitment. 25 When the call came from Boggs, Levy gladly accepted the case. On November 2, attorneys and psychiatrists for HHC and the NYCLU brought the battle over Billie Boggs's rights into the courtroom. What emerged were two very different pictures of the peti-

The Civil Commitment of Joyce Brown

17

tioner, her mental health, her personal qualities and capacities, and her lifestyle. The city's argument, presented by HHC' s Maureen McLeod, began by asserting that Billie Boggs suffered from a serious mental illness. 26 HHC's three psychiatrists and one psychiatric social worker all testified that she suffered from schizophrenia, paranoid type. To support their conclusion, the doctors explained that Boggs was delusional, suffered from different kinds of thought disorders, and had an inappropriate affect. The psychiatric workers identified three kinds of delusions they elicited from Boggs. First, workers from Project HELP had testified that they had observed that Boggs had burned or ripped up paper money in a ritualized way, and that she appeared to have urinated on the torn currency. 27 When the admitting psychiatrist asked her why she did this, he testified that she told him that there were "people who were, in some way, trying to control her sexually through money." He believed that "the destruction of the money served to dispel that [for her]" -an explanation he thought delusional (Albert Sabatini, 184-85). Second, she used an alias. Once her picture was broadcast on television after the first day of the hearing, her family identified her not as Ann Smith or Billie Boggs, but as Joyce Brown. Although therespondent admitted that she was, in fact, Brown, the psychiatrists who had examined her earlier concluded that she was under the delusion that she was someone other than who she really was. Third, her treating psychiatrist believed that she suffered from the delusion that she was being incarcerated unfairly. Indeed, she refused to allow Brown access to the press because "[s]ubstantial press attention could exacerbate her delusional belief that she was being incarcerated unfairly. It is my clinical judgment that press interviews should be prohibited" (167-68*).28

The NYCLU's three psychiatric witnesses denied that any of these actions or beliefs was delusional. First, Brown testified that she kept or destroyed money "depending on the manner in which it's given to me" (390). As she told her psychiatrist, policemen would occasionally throw money at her, shouting that it was money for a "who" (whore) (Robert Gould, 299). Her psychiatrist did not think it was delusional to reject money that was given as an insult. Similarly, she destroyed money from people who insisted on giving it to her, even after she told them she did not want it. As Brown testified, the donors would

18

Who Qualifies for Rights?

say things like," 'Take it. It will make me feel good.' Or, 'I'm only trying to help you.' But I've already told you that I don't want it or I don't need it. And it's my job to make you feel good?" (373). She also rejected money when she already had enough for her daily budget,29 or when it was close to nightfall (a time when street people are especially vulnerable to robberies). These explanations also struck her psychiatrists as well grounded in reality. Second, her psychiatrists denied that it was delusional for Brown to use an alias. As Brown explained, "I use other names ... because I don't want my identity to be known .... I knew my sisters were looking for me, and they had hospitalized me once against my will. They tricked me, and it was under false pretenses, and I didn't want them to know where I was located" (357). Again, this explanation seemed rational. Finally, even her treating psychiatrist, Maeve Mahon, admitted that it might be reasonable for Brown to believe that she should not have been committed (169*)-not to mention that it might be rational for her attorneys and psychiatrists to share that belief. City Attorney McLeod also attempted to demonstrate Brown's schizophrenia by presenting evidence that she suffered from a thought disorder. For example, she sometimes spoke using the sort of clang associations typically associated with schizophrenia. One psychiatrist, for example, argued that when he saw her on the street, she would sometimes create meaningless rhymes (i.e., clanging) that incorporated references to Brown's and his genitals (anonymous psychiatrist, 44-45*). Brown testified, however, that she did this on purpose to "ignore him" (376). McLeod also argued that Brown's affect was inappropriate, suggesting schizophrenia. One psychiatrist tried to substantiate this point by testifying that the petitioner often acted excessively (and inappropriately) angry whenever people from Project HELP approached her. But even this psychiatrist admitted under cross-examination that Project HELP's three previous attempts to hospitalize the patient-none of which was deemed necessary by the doctors in Metropolitan's emergency room-might indeed make her angry at workers from Project HELP. This reaction, he testified, was not necessarily inappropriate (anonymous psychiatrist, 70*). Although they denied that she suffered from schizophrenia, Brown's psychiatrists did not conclude that she was free from mental illness. All three, in fact, diagnosed her as having a personality disorder. Although this disorder is not a psychosis, it is a form of mental ill-

The Civil Commitment of Joyce Brown

19

ness. It therefore remained to be demonstrated whether her mental illness, whatever its precise nature, made her a danger to herself or others. The city's attorneys argued that she was a danger to herself in three different ways. First, they alleged that she was actively suicidal. Members of Project HELP had tried to offer her a pair of slacks, but the petitioner refused them. She then decided to take the pants. Members of Project HELP testified that after she took the pants, she ranwithout regard for the traffic-into the middle of Second Avenue, where she dropped and left the slacks. When Bellevue's admitting physician asked her why she had run into the middle of the street, he recorded her reply as, "I have a right to do it. It is my business; not your business" (134*, 146*). To all of HHC's psychiatrists, this action and explanation were patently suicidal. Brown's attorneys differed on two grounds. First, Brown denied that she ran into the middle of the street, insisting that she threw the pants into the street from a safe position (standing between two parked cars at the road's edge). "Never would I try to kill myself," she insisted. She simply did not want their clothes (Brown, 370). Second, Levy argued, even if she had run into the street, the incident occurred on one of the days Project HELP took her to Metropolitan. Had she been suicidal that day, the doctors there would have noticed it and admitted her (Levy, closing argument, 530). The city also argued that Brown's inability to care for herself and/ or her self-neglect made her a danger to herself. McLeod presented four arguments to support this conclusion. First, she presented evidence that the petitioner did not wear clothes that were appropriate. Workers from Project HELP noted again and again that her clothes were thin, dirty, tattered, and often inadequate for the weather (anonymous psychiatrist,44*, 46*,47*, 55*; anonymous psychiatric social worker, 100*, no*; Mahon, 146-47*). Sometimes they saw her without shoes, which indicated to them that she was unable to keep herself warm in cold weather and caused them to worry that she might get frostbite. Although Brown admitted that her clothes were thin, dirty, and tattered, she denied that they were inadequate to the weather. She lived against a hot air vent, she testified, that would have kept her too warm had she not covered it with a piece of cardboard (Brown, 357-58). Even with the cardboard, she explained, the air sometimes got to be so hot that she would take off part of her clothes (and shoes) to avoid

20

Who Qualifies for Rights?

overheating. In short, she contended that she was always warm enough (379). Further, the only shoes she owned at one point fit her so poorly that she was afraid of tripping in them (393). Consequently, she only wore them when absolutely necessary. Finally, as to vulnerability to frostbite, she testified that only once did she ever come close to freezing. One night when the temperature dropped to 13-14 degrees, the police tried to commit her against her will. They woke her at 3 A.M., handcuffed her, and took her to Metropolitan. After finding that she did not qualify for involuntary hospitalization, the doctors released her at 6 A.M. Although the temperature had dropped to 10 degrees and she had no shoes with her, the doctors sent her home on foot, with only white hospital slippers on her feet. Not surprisingly, the thirty-block walk in clothes that were more appropriate for lying next to a heat vent left her very cold and almost frostbitten. She insisted, though, that she had not been until the police removed her from her heating vent (395-96). Second, witnesses for the HHC and one neighbor testified that Brown defecated and urinated on the street, indicating that she was unable to care for herself (anonymous psychiatric social worker, 121*; anonymous psychiatrist, 47*, 67-68*). Mahon testified that when she asked Brown why she defecated on the street, the petitioner had replied, "Where else do you think I would defecate? Where do you think I would do it?" (Mahon, 171-72*). While Mahon found this answer indicative of pathology, Gould found the answer quite reasonable. As he argued, The defecating on the street and the urinating had to do with the fact that she could not get access to facilities around her. She tried to go to a store, stores would not let her in. She tried to go to a restaurant, restaurant[s] would not let her in. She even was willing to pay money in order to buy food and be a patron to use the facilities, but she looked a little disheveled and not respectable, they did not allow her in. She didn't go into an alleyway ... because there is a certain danger in being by yourself, so she did it in a way which was along the wall and it was all that she could do living the life that she lived, but she hurt nobody doing it and she didn't hurt herself and she knew why she was doing it. ... It's not nice, but it's not delusional. (Robert Gould, 294)

The Civil Commitment of Joyce Brown

21

The public toilet nearest to Brown was thirty to thirty-five blocks away (approximately one and a half miles). That she could not always "hold it," Levy argued, does not imply that she was unable to take care of herself. Rather, it reflects her homelessness (Levy, closing argument, 532). Third, McLeod argued that Brown's repeated refusals to accept clothing, help, and/ or food from Project HELP implied a pathological neglect of her basic needs (anonymous psychiatric social worker, 119-20*; Mahon, 143*). Mahon, for example, testified that the patient's unwillingness to accept Project HELP's or Bellevue's offers of food and social services constituted a failure to recognize her need for help. When Mahon asked Brown what she would do if she were discharged from the hospital, whether she would "see a psychiatrist" or "avail herself of any of the community services available for patients or people who are homeless," Brown told her, "no. There is nothing wrong with me, why should I accept anything? When I, if I want help, I know where to get it, and I will get it" (Mahon, 142-43*). Mahon testified that Brown's lack of insight into the pathology of her own lifestyle, and her refusal to find a healthier way to live, kept her living at an unacceptable level of self-neglect. Brown and Levy disputed Mahon's interpretation. It wasn't that Brown was unwilling to accept help when she needed it, they argued. Many times she had accepted food and clothes from neighbors and passersby. Rather, Brown chose to avoid relying on others for help. She saw herself as a "professional" street person who could (and preferred to) provide her own food (Brown, 378, 368-69). Moreover, Levy argued, We have seen from the evidence that Miss Boggs is willing to accept help from others .... She simply doesn't like the people from Project H[ELP] .... [S]he simply doesn't like people who impose their idea of help and of normalcy on her.... They locked her up in a hospital the first time she met them. She simply doesn't like them. (Levy, closing argument, 538-39) Had there been evidence that Brown had been malnourished or had suffered from frostbite, perhaps Levy would have agreed that she had neglected herself. But she wasn't malnourished. She wasn't unhealthy. She had not neglected herself (Levy, 531).

22

Who Qualifies for Rights?

Fourth, McLeod argued that the fact that Brown was very dirty and malodorous demonstrated that she had not taken adequate care of herself. One psychiatrist from Project HELP testified that every time he saw her on the street, she smelled of feces and urine, her skin was dirty, and her hair was matted. A social worker from Project HELP swore to the same thing (anonymous psychiatrist, 47*, 48*, 54; anonymous psychiatric social worker, 100*). As Mahon testified, Brown herself admitted that she had only bathed ten times in the preceding eleven months, that is, only when she had been brought to Metropolitan for a psychiatric evaluation (Mahon, 138*).30 Brown denied, however, that her filthy condition was by choice. She merely lacked a place to bathe. Moreover, Gould argued, her smelly condition did not make her unhealthy. "She's not aesthetic and her hygiene is not good, but you don't get sick from that. She hasn't gotten sick from that. She just is not pleasant to be close to if she urinated and smells bad" (Gould, 317). As Levy concluded, there is no evidence that being malodorous causes harm to one's self or that it harmed Brown (Levy, closing argument, 533-34). Finally, the city argued that Brown was a danger to herself because her behavior could easily provoke others to attack her. As workers for Project HELP testified, Brown often swore at them and was verbally aggressive whenever they approached (anonymous psychiatrist, 58*). Once, a worker from Project HELP watched her scream at some workmen across the street, using provocative language including "Niggers, fucking niggers, and suck my big black cock" (anonymous psychiatric social worker, 111-14*, 116-17*, 124-27*). As McLeod argued, these are "words in the City of New York that may bring about assault on oneself" (closing argument, 549-50). Mahon testified that Brown had continued her aggressive behavior in Bellevue, where she was insulting and provocative to hospital staff, made threatening gestures, was "extremely angry" and "attack[ed] people verbally" (Mahon, 147*).

When asked to explain her use of profanities, Brown testified that she would only use her "nice" language "when you are bothering me ... As long as you respect me, I'll respect you." Furthermore, she argued, she is careful not to swear at anyone who would attack her (Brown, 374). Gould supported Brown's contention that her swearing would not bring her harm. Rather, he argued, it "comes under the old cliche of sticks and stones may break my bones but names can never

The Civil Commitment of Joyce Brown

23

hurt me. That's all she's ever done, being verbally abusive." Furthermore, he observed from his interviews that Brown's conflicts were mainly with "individuals who invaded her privacy, entruded [sic] on her turf and tried to force their good intentions, and I am not believing they were malevolent, but she did not want them, and when she did not want them, she cursed them out" (Gould, 298, 296). As Levy concluded, "She doesn't have a door; she lives on the street. She can't simply close the door the way the rest of us can, or hang up the telephone. The only thing she can do is use profanity and tell people to get away the best way she can." Despite this vulnerability, he argued that this swearing had not gotten her into trouble so far and that it would be unlikely to do so in the future (Levy, closing argument, 539). McLeod also argued that Brown was a danger to others. Once when Project HELP offered her a box lunch, she took the lunch, threw it at the Project HELP workers, and chased them down the street. The psychiatrist she hit with the carton of milk characterized the incident as a dangerous assault. "[T]hat attack seemed to emerge," he argued, "in an unrestrained way out of a very intense, angry, threatening feeling" (anonymous psychiatrist, 56*, 72*, 76*). Levy made light of the contention that throwing a chicken sandwich constituted assault. Brown took the charge more seriously. Of course, she had thrown the lunch at Project HELP, she admitted. The workers had insisted on giving her the food despite her insistence that she had already eaten. She wanted to send them a message (Brown, 366-68). Gould found that explanation completely rational. As Brown explained on the stand, her meetings with Project HELP were "always very bad." The very first time she met them, they handcuffed her and took her to the hospital. "There has never been one time when they approached me where it was pleasant and it was not concerning hospitalization" (Gould, 296; Brown, 366-68). She felt that they put her on the defensive. She acted defensively. Levy closed by restating his central theme: "What we have here is a person who lives differently from other people and has done so successfully." It was her homelessness that made her different, not any psychopathology. Furthermore, without evidence that she posed an imminent danger to herself or others-and not merely a possible danger at some undetermined time in the future-the fact that "she is able to survive in the community ... entitle[s her] to live in freedom."31 McLeod responded in her closing argument by summarizing

24

Who Qualifies for Rights?

all of the evidence supporting her conclusion that Brown's illness placed her in danger of harm to herself and others-if not imminently, then within the foreseeable future. Arguing that the city had a duty to care for this woman until she was able to care for herself, McLeod concluded by "submit[ting]" that "the law and common sense do not require us to wait until something actually happens; that we can and should help her; that it is our duty to help her before it is too late" (McLeod, closing argument, 551). On November 12, Justice Lippmann handed down his decision. The sole issue he addressed was whether Brown suffered from a "mental illness which is likely to result in serious harm to herself or others." 32 He noted that "the psychiatric experts ... are nearly diametrically opposed in their assessment of her mental condition and in their prediction as to whether she is likely to cause herself or others harm." The judge therefore derived "little psychiatric guidance from them," relying instead on his impressions of "the behavior and testimony of Joyce Brown herself' (1086). He found that she was "rational, logical and coherent" throughout her testimony, that "her use of English ... bespeaks an educated, intelligent person," and that she had "displayed a sense of humor, pride, a fierce independence of spirit, [and] quick mental reflexes" (1087). The city, he argued, had failed to meet its burden of proof that she was mentally ill. Even if she were, he found that she could not be committed because she was not a danger to others or herself. There had been no evidence of homicidal ideation or behavior. She was not suicidal. Finally, Justice Lippmann found no evidence to support the claim that she was incapable of meeting her essential needs. She was able to feed herself. She was healthy. She clothed herself and managed to keep warm. Although all parties agreed that her clothes were "pathetic," that was because she was poor, not because she lacked the mental capacity to clothe herself. Similarly, her inability to shelter herself, Lippmann contended, speaks not to her mental illness, but to her homelessness. "Housing in New York is an expensive commodity, so expensive that in this rich city many no longer can afford it and are driven to live on the street'' (1089-90). That she refuses to go to a shelter, he asserted, "may reveal more about conditions in shelters than about her mental state. It might, in fact, prove that she's quite sane" (1091). In conclusion, Lippmann held that although "her mode of existence does not conform to conventional standards" and is "an offense

The Civil Commitment of Joyce Brown

25

to aesthetic senses," Joyce Brown is still entitled to her freedom. Citing O'Connor v. Donaldson, he argued that "[f]reedom, constitutionally guaranteed, is the right of all, no less those who are mentally ill." 33 Project HELP may well be a step in the right direction for the homeless mentally ill, he argued, but it was not right for Joyce Brown. For the Joyce Browns of society, "[t]here must be some civilized alternatives other than involuntary hospitalization or the street."

THE LEGAL AFTERMATH

The Health and Hospitals Corporation appealed the decision, and on December 18 of that same year, a five-judge panel in the Appellate Division reversed Justice Lippmann. They sought to strike a "better balance" between Joyce Brown's "freedom" and the "State's right to involuntarily confine" her. 34 Writing for the three-member majority, Justice David Ross ruled that Lippmann had been wrong to find the facts of the case without relying more heavily on the psychiatric experts. After providing a long summary of the psychiatrists' testimony, the court overruled Lippmann's findings of facts. That Brown had plausible explanations for her current behavior was not as relevant as the fact that her history revealed a marked disintegration. Looking to her life in New Jersey, they argued that Brown had been a "productive member of society" with a "continuous work record." She had ''been employed in responsible positions" at Bell Laboratories and a Human Rights Commission in Elizabeth. At that time, she had also enjoyed a "home and a family." After suffering a "severe psychosis," 35 however, she took to living in the streets, where she "has deteriorated." 36 The court then overruled Lippmann on the law for failing to recognize that this deterioration did indeed count as harm to self. In a scathing dissent, Justice E. Leo Milonas reminded the majority that civil commitment is a "massive curtailment of liberty" and that it should not occur unless the patient's mental illness-unlike that of Joyce Brown-presents a danger that is ''both real and immediate, not speculative and remote." 37 Although convinced that Brown was mentally ill, Milonas found no proof that she had ever "harmed herself or anyone else." 38 Moreover, "a claim that there is the possibility of future assault is too speculative and remote, and it is not sufficient

26

Who Qualifies for Rights?

ground upon which to deprive someone of [her] liberty" (379). He attacked the majority for dismissing the petitioner's credibility, and railed against them further for giving no deference to the hearing court's assessment. "[l]f the court's judgment of her mental condition is to be completely ignored, then what was the purpose of the hearing in the first place?" Appealing to the underlying purpose of an independent judiciary, Milonas argued that due process requires a judge to compare his own evaluation of the mental health and dangerousness of the person involved with those offered by the experts. This independent assessment, he argues, provides the person with "fail-safe protection against improper confinement, whether the commitment is sought by a governmental authority or by relatives" (377). The homeless face many serious problems, he concluded, but "[c]ommitting Billie Boggs is not the answer" (380). Joyce Brown and her attorneys appealed to New York State's highest court. While the case was on appeal, HHC petitioned the Supreme Court for permission to medicate Brown against her will. Although psychiatrists generally agree that therapy for schizophrenics is ineffective unless accompanied by chemical treatment, the drugs available for the purpose are often associated with serious and permanent side effects.39 On January 13, after two days of hearings over whether or not Brown should be forced to take antipsychotic medication, Justice Kirschenbaum appointed a psychiatrist, Francine Cournos, to conduct independent psychiatric tests to determine whether Bellevue should administer the drugs. In her report the following day, Cournos wrote that although "neuroleptics [antipsychotic medication] or possibly lithium have a good chance of improving [Brown's] hostility ... and would significantly improve her chances of living more successfully in the community ... she is not willing to take medication." 40 Coumos therefore advised the court to release Brown rather than forcibly medicate her. She provided two reasons. First, Brown "has partial capacity to make treatment decisions," and no harm has come (to her or anyone else) from allowing her to take the risks that arose from the decisions she made. Second, forcibly medicating her now would probably ''backfire" in the long run. Because her condition was chronic, Cournos argued, she would be likely to need psychiatric help in the future. If the hospital forcibly medicated her now, she might well avoid seeking needed treatment at a later date. 41

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The next day, January 15, Justice Kirschenbaum ordered Brown's release. Bellevue complied four days later, as soon as they were assured that Brown had a room in a supervised Single Room Occupancy Hotel. Within two weeks, New York's Court of Appeals refused to rule on the legality of Brown's civil commitment. After her release from Bellevue, New York's highest court considered the matter moot.

EPILOGUE

Upon her release, Brown went to work for the NYCLU as a temporary receptionist. She appeared on "Donahue," "6o Minutes," and "Channel 5 News." She spoke at New York University School of Law and Cardozo Law School. She even gave a speech at Harvard titled "Homelessness: A View from the Street." On March 9, 1988, she admitted that she had been panhandling because she was out of cash. She only stopped begging after her sisters turned over the more than $8,ooo in social security checks they had been holding for her since 1985. On September 7, 1988, she was arrested for illegal possession of heroin and released. On October 12, she pled guilty to disorderly conduct in a drug possession case and was conditionally discharged. Since that time, she has had one brief psychiatric commitment. Otherwise, with the help of those at her supervised residence for formerly homeless women, Brown has succeeded in returning to the private, anonymous life she had insisted all along that she preferred.

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CHAPTER 2

The Theory behind Civil Commitment Rights and the Mentally Ill

commitment hearings, 1 attorneys on both sides of the litigation surrounding Joyce Brown's hospitalization relied on the logic and language of rights to frame and support their claims. The city argued that committing Brown would secure her right to treatment. Brown's attorney argued that it would violate her constitutional right to liberty. Brown herself had asserted her rights when she proclaimed that "In this day and age, in the 8o's in the United States of America, where everyone comes to be free, my rights are being violated." 2 In other words, rights to special consideration for the mentally ill countered rights for "full" citizens. Less typical of commitment hearings, however, Brown's case reflected deep disagreement among lawyers and judges as to which standards courts should use when deciding whether to commit Brown and which menu of rights best suited her. At base, the case represented a fight over which qualities and abilities are essential to "full" citizenship and which qualities and inabilities render a citizen "different" enough to require an alternative menu of rights. Unfortunately, liberal jurisprudence offers little guidance for resolving this dilemma. In this chapter I argue that while liberal political theory is replete with arguments about rights, it inadequately addresses the logically prior question of who qualifies as a regular rights-holder. Even liberalism's best theorists of rights-John Locke, John Stuart Mill, and Immanuel Kant-pay little attention to justifying their ascription of regular rights to some people but not to others. After exploring this weakness in liberal political theory, I examine some of its implicaAS IS TYPICAL AT CONTESTED

29

tions, both for the mentally ill who invoke rights to protect themselves from governmental intrusion and for the justification of rights generally. In concluding, I consider the extent to which the liberal theory of rights can address the question of who qualifies for the regular collection of rights, and how such revisions might improve our ability to protect all citizens, both qualified and full.

THE POLITICAL THEORY OF RIGHTS FOR THE MENTALLY ILL

Liberalism's best theorists of rights provide little guidance for deciding who qualifies as a regular rights-holder. Although Locke, Mill, and Kant all exclude the mentally ill from their theories of rights, they leave underdeveloped their standards for justifying and/ or applying these exclusions.

Locke on Rights for the Mentally Ill Of the major theorists of rights, Locke is the most straightforward about excluding the mentally ill from the ranks of rights-holders. In the Second Treatise, he argues that although age, virtue, excellency of parts and merit, and birth, all distinguish men3 from each other, each man is equal to another because he possesses an "equal Right ... to his Natural Freedom." 4 This equality-the basis for Locke's claim that "no one ought to harm another in his Life, Health, Liberty, or Possessions" -has three sources. First, "being all the Workmanship of one Omnipotent," we are all God's property. Second, we all have "like Faculties." Third, we all share in "one Community of Nature" (311). Not all people, however, are born into or develop this "full state of Equality" (350). Lacking faculties essential to freedom, "Lunaticks and Ideots ... [and] Madmen" must allow others to "seek and procure their good for them." 5 Locke is also the most straightforward about identifying the standards determining who qualifies for rights: the faculty most essential for possessing rights is the capacity for reason. With reason, men can recognize natural law, apply it to their own lives, and thereby live in freedom. As he writes in paragraph 57, natural law is "promulgated or made known by Reason only." Hence, "he that is not come to the Use of his Reason cannot be said to be under this Law; and ... [there-

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Who Qualifies for Rights?

fore is] not presently free" (347). Locke excludes the mentally ill from the realm of freedom because he presumes they cannot reason: [I]f through defects that may happen out of the ordinary course of Nature, any one comes not to such a degree of Reason, wherein he might be supposed capable of knowing the Law, and so living within the Rules of it, he is never capable of being a Free Man, he is never let loose to the disposure of his own Will (because he knows no bounds to it, has not Understanding, its proper Guide) but is continued under the Tuition and Government of others, all the time his own Understanding is incapable of that Charge. And so Lunaticks and Ideots are never set free from the Government of their Parents; ... [and] Madmen, which for the present cannot possibly have the use of right Reason to guide themselves, have for their Guide, the Reason that guideth other Men which are Tutors over them, to seek and procure their good for them. (350; emphasis in original) In short, the mentally ill lack an equal right to freedom because they lack the "right Reason" that would enable them to (1) know, and therefore (2) live within the bounds of, natural law. Lacking this proper understanding that flows from using right reason, they (3) know no bounds to their own will. The capacity for "right Reason" seems too simple a standard on which to base decisions about who may possess rights. For Locke, "reason" refers to a man's ability to "instruct him[self] in that Law he is to govern himself by, and make him know how far he is left to the freedom of his own will" (352). But the ability to instruct oneself in and govern oneself by natural law varies over time and by circumstance. On good days, for example, I may be particularly well attuned to what the law demands of me. On bad days, however, I may be less able to judge the legitimate limits to my will. Even though I may be less able to reason well on my bad days, it does not necessarily follow that I am unable to reason. Nor does it necessarily follow that I am unqualified to possess rights. 6 What does follow is the recognition that the capacity for right reason varies by degrees. By failing to consider the possibility that the capacity for reason may vary (even among full

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citizens), Locke's standard for justifying who may possess rights remains underdeveloped? Locke also fails to develop any guidelines for determining when a particular person qualifies for rights. Even if we were able to accept a Lockean capacity for reason as the litmus test for possessing rights, Locke fails to identify what counts as the capacity for right reason. How can we tell that a particular person has the capacity to know both the law and how to use it to guide his life? What kind of evidence would be appropriate? Unlawful acts cannot suffice. After all, many mentally ill people never commit unlawful acts but still should not be left to their own devices. As Locke observes, "[t]o tum him [lacking reason] loose to an unrestrain' d Liberty, before he has Reason to guide him, is not allowing him the priviledge of his Nature, to be free; but to thrust him out amongst Brutes, and abandon him to a state as wretched, and as much beneath that of a Man, as theirs" (352). Moreover, people often know the law but violate it anyway. Other violators know the law, but do not bother to ascertain its demands. Only some law-breakers lack the capacity to instruct themselves in the law and thus unintentionally violate it. But how can we tell that they lack the capacity? Locke writes as if the "capacity to interpret and apply the law" were plain to all. Its presence (or lack thereof) seems to go without saying. Presumably because its existence was clear to him, he never provides guidelines for testing a person's capacity or standards for discerning whether or not particular "interpretations" comport with that law. But in contemporary times, its meaning remains unclearespecially when committing the homeless mentally ill. To find the qualities historically associated with full citizenship and rights-holding, we must look beyond the philosophy of John Locke.

Mill on Rights for the Mentally Ill Like Locke, Mill also justifies rights on broad grounds that at first glance seem to include all people--even the mentally ill. But on closer inspection, his theory turns out to be less inclusive. Although his standard for exclusion is more complicated than Locke's, it is also underdeveloped. Moreover, Mill, like Locke, fails to provide any guidance for applying those standards. In On Liberty, Mill celebrates the right of individuals to pursue their own good in their own way. "The only freedom which deserves

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Who Qualifies for Rights?

the name, is that of pursuing our own good in our own way, so long as we do not attempt to deprive others of theirs, or impede their efforts to obtain it. Each is the proper guardian of his own health, whether bodily, or mental and spiritual." 8 This freedom is essential, for Mill, because, in the long run, it will improve the human condition. "Mankind are greater gainers," he argues, "by suffering each to live as seems good to themselves than by compelling each to live as seems good to the rest" (75-76). "Progressive beings" cannot realize their "permanent interests" unless left to themselves (74). Consequently, Mill argues that governments should not interfere in individuals' lives unless they do so to prevent "harm to others." Even if the interference made the individual "happier" or furthered "hi& own good, either physical or moral," the human race cannot progress unless we recognize that in "the part which merely concerns himself, his independence is, of right, absolute. Over himself, over his own body and mind, the individual is sovereign" (73). But Mill goes on to explain that this freedom from interference does not apply to all people. "It is, perhaps, hardly necessary to say that this doctrine is meant to apply only to human beings in the maturity of their faculties." He specifically excludes children, young people, persons from "backward states of society," and those "still in a state to require being taken care of by others." For these people, "[d]espotism is a legitimate mode of government ... providing the end be their improvement, and the means justified by actually effecting that end." As he explains, "[l]iberty, as a principle, has no application ... [until people] have attained the capacity of being guided to their own improvement by conviction or persuasion" (73). In practice, for Mill, this means that people cannot be progressive beings unless they are capable of partaking in free and equal discussion-an activity that requires its participants to be in the maturity of their faculties. When Mill actually applies his "harm principle" in chapter 5, it becomes clear that the mentally ill are among those excluded from the ranks of rights-holders. In his example about crossing an unsafe bridge, Mill argues that in general, "when there is not a certainty, but only a danger of mischief," individuals ought to be able to assess the risk themselves and should not be prevented from exposing themselves to it. But if the person involved is "a child, or delirious, or in some state of excitement or absorption incompatible with the full use of the reflecting faculty," this freedom does not apply (152). Because

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the mentally ill (in particular those suffering from psychoses) typically suffer from states of excitement or absorption that others judge to be incompatible with the full use of the reflecting faculty, it is safe to assume that the mentally ill are among those for whom Mill would advocate intervention by a "public officer or any one else." Although Mill's vision of man as a progressive being constitutes a richer account of the qualifications necessary for possessing regular rights than Locke's vision of a man capable of right reason, Mill also leaves his standard underdeveloped. In both statements of his standards for intervention, for example, Mill only cites temporary conditions that render a person unqualified to make her own decisions. In the first case, he specifically advocates despotism for people in backward societies and for children insofar as it will enable them to develop the mature faculties they need to become independent progressive beings. In the second case, he only supports revoking the right to assess one's own risks in life from people who are in mental states that temporarily render them unable to use fully their reflecting faculties-here the use of the word "state" implies a transient occurrence. Mill's reliance on remediable or temporary impediments to rights seems to imply that he thinks that all people can potentially possess rights. Unfortunately, some people suffering from mental illness may never manage to meet his criteria. Despotic or paternal care will never enable some mentally ill people to become (Millean) progressive human beings. Similarly, mental illness may render some people's mental state constantly incompatible with the full use of the reflecting faculty. By directing his standard at people who can be educated to use rights, Mill leaves open the question of how society ought to treat the mentally ill. Should they lack all rights? How should they protect themselves from inappropriate governmental interference? Mill never develops this aspect of his theory. Mill also fails to provide any guidance for understanding how to measure whether a particular person's reflecting faculties are sufficiently mature to qualify the person for rights. For example, how can we tell if a person can progress after free and equal discussion with others? Or, how should a public officer judge the state of that person's reflecting faculties? How can we tell that a person lacks the ability to assess independently the risks life presents? Which qualities disqualify a person from the right to pursue her own life plan in her own way? Although Mill is more careful than most theorists to protect the

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Who Qualifies for Rights?

allegedly mentally ill from improper interference, he fails to provide guidelines for assessing when a person is unqualified to hold the rights he defends for "normal" human beings. This failure is especially disappointing in light of Mill's recognition that courts often overidentify the mentally ill. In a remarkable passage in his chapter on individuality, he laments that eccentric people are often mistaken for the mentally ill. Moreover, he chastises the courts for relying on evidence that is "contemptible and frightful" when adjudging people unfit to manage their own affairs. When a person does "what nobody does" or fails to do "what everybody does," "vulgar and ignorant" attorneys and juries interpret these unusual behaviors as "evidence of insanity, and often with success." Unfortunately, judges with an "extraordinary want of knowledge of human nature and life" do little to correct these misperceptions. He observes that these trials "speak volumes as to the state of feeling and opinion among the vulgar with regard to human liberty. So far from setting any value on individuality-so far from respecting the right of each individual to act, in things indifferent, as seems good to his own judgment and inclinations, judges and juries cannot even conceive that a person in a state of sanity can desire such freedom" (126). 9 This passage defends forcefully the rights of the eccentric, but it does not deny that some people may well be mentally ill and may therefore require the state's intervention in their lives. Indeed, as his passage about the potentially dangerous bridge illustrates, Mill himself withholds this "right of each individual to act, in things indifferent, as seems good to his own judgment and inclinations" when the person lacks the "full use of the reflecting faculty" (152). In short, he recognizes that we need to judge when the mentally ill become unqualified for rights, and he hints at criteria that are inappropriate for making such determinations, but he fails to provide any positive guidance for making those evaluations.

Kant on Rights for the Mentally Ill Kant's exclusion of the mentally ill is less straightforward than Locke's or Mill's, and therefore requires more extensive analysis. In response to a review of The Metaphysical Elements of Justice, Kant makes his most explicit reference to the mentally ill. 10 His topic is beneficent institutions for the poor, the invalid, and the sick; he argues that in time, these hospitals should be abolished. His first reason is

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practical: "it has been found that the poor and sick can be better and more cheaply cared for when a grant in aid ... is made to the person concerned so that he can board wherever he pleases." His second reason is normative: in a hospital, a patient's "freedom is ... extremely limited." Consistent with Kant's celebration of human freedom, he is clearly uncomfortable with keeping people in hospitals when less constrained surroundings could serve better "their health and welfare." Oddly enough, however, he prefaces this argument in favor of human freedom by parenthetically stipulating "the exception of mental hospitals" from his proposal (Metaphysics, 134). Why does Kant distinguish patients of mental hospitals from other poor and sick people? Perhaps he believes that they would not benefit from grants in aid, that they require care in a hospital setting. But what about his recognition that institutionalized care necessarily places "extreme limits" on the patient's freedom? Why doesn't this champion of human freedom defend the freedom of the mentally ill? On what basis does he exclude the mentally ill from the ranks of other citizens? At first glance, Kant's parenthetical exclusion looks like an aberration in his otherwise inclusive ethics and jurisprudence. After all, he grounds his morality on the humanity present in all people. Yet on closer inspection, this passing reference seems consistent with the implicit marginalization of the mentally ill throughout Kant's work. Indeed, the prominence he gives to the capacity to reason in his arguments implies that there is little room for the mentally ill in either his ethics or his jurisprudence. Because rationality provides the basis for Kant's account of human dignity and of man's status as an end in himself, it is hard to imagine where the (less rational) mentally ill could fit into his ethics, let alone how they could possess the innate rights he explicates. 11 Kant's justification of acquired (or civil) rights also relies on reason in a way that implicitly excludes the mentally ill. Even when appealing to other grounds to justify acquired rights, he uses reasons that seem to preclude the mentally ill from enjoying the same civil rights as full citizens. Because it ignores the matter of what disqualifies them from the ranks of regular rights-holders, Kant's general account of who qualifies for rights is hard to apply to the mentally ill. In Grounding for the Metaphysics of Morals, Kant sets out to derive an ethics that depends on "the universal concept of a rational being in general." 12 Rather than derive his morality from an anthropology of

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Who Qualifies for Rights?

men and their heteronomy, he appeals to a metaphysics that will "hold for every rational being as such" (Grounding, 23). The resulting categorical imperatives are "formulas for expressing the relation of objective laws of willing in general to the subjective imperfection of this or that rational being, e.g., the human will" (Grounding, 24). However, in order to employ the moral formulas he derives-the comerstones of Kant's ethics-a person must be capable of reason. As he explains, "[o]nly a rational being has the power to act according to his concept of laws" -that is, from his ability to guide his action by employing the logic of the categorical imperative (Grounding, 23). Kant calls this capacity the "will," which he defines as the "faculty of determining itself to action in accordance with the representation of certain laws." Such will can be found "only in rational beings" (Grounding, 35). The capacities for morality and reason are so closely linked that the former, the will, only "belong[s] to living beings insofar as they are rational" (Grounding, 49; emphasis added). Because reason lies at the base of and serves as the most important prerequisite for Kant's ethics, a diminishment of reason (because of mental illness) implies far-reaching moral consequences. First, impaired reason threatens a person's dignity. Kant ascribes dignity only to "a rational being who obeys no law except what he at the same time enacts for himself" (Grounding, 40). Indeed, "the dignity of humanity consists just in its capacity to legislate universal law, though with the condition of humanity's being at the same time itself subject to this very same legislation" (Grounding, 44). But if "only a rational being has the power to act according to his concept of laws" (Grounding, 23), and people only have the will to discern and act on universal laws "insofar as they are rational" (Grounding, 49; emphasis added), then what becomes of those humans who are less capable of reason, and consequently less able to construct and act on universalizable laws? If humanity only has dignity "insofar as it is capable of morality," then Kant seems to imply that insofar as people are less capable of morality, they have less dignity (Grounding, 40-41). Impaired reason implies similar effects for a person's status as an end in himself. As Kant argues, what "distinguishes [man] as an end in himself" is the "fitness of his maxims for the legislation of universal law." But if mental illness impairs a person's ability to reason, by implication it would also impair his power to discern and act according to maxims fit for universal law. With the diminished capacity to "re-

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gard himself with reference to all laws to which he may be subject at the same time the legislator of universal law," a mentally ill person would be that much less an end in himself (Grounding, 43). The status of being an end in oneself, in tum, plays a very important role in Kant's justification of innate rights. As he explains in the Metaphysics, the right to Freedom, "independence from the constraint of another's will ... insofar as it is compatible with the freedom of everyone else in accordance with a universal law, is the one sole and original right that belongs to every human being by virtue of his humanity" (Metaphysics, 44). But Kant associates humanity with the person's status as an end in himself. To the extent that a person's mental illness diminishes this status, it weakens his claim to "the one sole and original right" that having the status of an end in himself might bring him. While Kant himself never states that the mentally ill (or others with impaired reason) have less dignity, are not clearly ends in themselves, or have only a tenuous claim to the right to freedom, his jurisprudence clearly reflects a multitiered system for civil rights that implies second-class status for the mentally ill. His insistence on freedom and equality for all notwithstanding, he argues as if it were obvious that not all people are potential holders of all rights. In "Theory and Practice," for example, he celebrates "patriotic government" as "[t]he only conceivable government for men who are capable of possessing rights." Unlike "paternal" governments that make laws for the people, Kant defends governments where the people maintain their freedom since "[t]his right of freedom belongs to each member of the commonwealth as a human being, in so far as each is a being capable of possessing rights." 13 Of course, the flip side of Kant's stipulation here that patriotic governments and the right to freedom attach to those who are those capable of possessing rights is the assumption that there are people who are incapable of possessing rights. In the Metaphysics, Kant comes closest to justifying his exclusion of some people from the ranks of rights-holders. In order to be a citizen, he argues, a person must be fit to vote. His definition of fitness, however, is vague: "To be fit to vote, a person must be independent and not just a part of the commonwealth, but also a member of it, that is, he must will of his own accord, together with others, to be an active part of the commonwealth" (Metaphysics, 79; emphasis added). To clarify the

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Who Qualifies for Rights?

definition, he lists examples of people who are not qualified to vote, that is, "passive" citizens. Among passive citizens he includes an apprentice of a merchant or an artisan; a servant (not in the service of the state); a minor (naturaliter vel civiliter); all women; and generally anyone who must depend for his support (subsistence and protection), not on his own industry, but on arrangements by others (with the exception of the state) -all such people lack civil personality, and their existence is only in the mode of inherence. The woodcutter whom I employ on my estate; the smith in India who goes with his hammer, anvil, and bellows into houses to work on iron, in contrast to the European carpenter or smith, who can offer the products of his labor for public sale; the private tutor, in contrast to the schoolteacher; the sharecropper, in contrast to the farmer; and the like--all are mere underlings of the commonwealth, because they must be under the orders or protection of other individuals. Consequently, they do not possess any civil independence. (Metaphysics, 79; emphasis added) These examples suggest at least two things about the requirements for "active" citizenship. First, a person's fitness requires independence in the literal sense of not relying on another for his livelihood. Because servants "depend for [their] support" on their masters; minors on their parents; women on their husbands or fathers; Indian smiths, tutors, and sharecroppers on their sponsors, these "mere underlings" are not their own masters. Once "under the orders or protection of other individuals," their political wills would presumably come to reflect their masters', effectively giving their masters extra votes in elections. Kant probably fears that if superior economic power were to translate into increased political power, citizens would no longer share equal control over their governments and, consequently, over their own lives. He therefore excludes these "mouthpiece" votes from the ranks of "active" citizens. 14 Second, Kant's analysis of passive citizens suggests his support for restricting active citizenship to people who already have "civil personality." In contrast to its usage in Anglo-American jurisprudence, German and other Continental jurists used this phrase much as the Romans had: to describe those people who were full citizens. As a his-

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torical matter, ancient Roman, and medieval and modem Continental legal systems-including the German system under which Kant lived-only granted "legal status" or "legal personality" to people who fit the legal norm-that is, to sane, adult, non-alien males. Because people such as women, children, aliens, servants, slaves, and the mentally ill differed from the legal norm, they were typically denied legal personality. 15 By gesturing to civil personality in the above passage as if citing it bolstered his argument, Kant seems to imply that his theory reflects and endorses the "goes-without-saying" assumptions that undergird his own legal system about whom the government should and should not recognize as a full citizen-assumptions that historically excluded the mentally ill. His exclusion of people who are "civilly" (civiliter) children (i.e., children in the eyes of the law) from the ranks of active citizenship also suggests that he would deny civil rights to the mentally ill (Metaphysics, 79). Unfortunately, he does not assess the moral validity of these assumptions, let alone justify his (implicit) endorsement of them. Consequently, he ends up with a jurisprudence that accords rights to only some citizens, but inadequately justifies why only these people (with independent will and civil personality) possess regular legal rights and human dignity. Although Kant does not explicitly include the mentally ill in his list of passive citizens, there are good reasons to believe that he does not consider them active citizens. First, to the extent that his jurisprudence reflects eighteenth- and nineteenth-century legal categories for civil personality, the mentally ill would have been excluded from the ranks of full citizens. Second, and even more persuasively, the mentally ill would likely fail to meet Kant's standards for identifying who qualifies as a full citizen. In both the Metaphysics and 'Theory and Practice," the theorist describes the three juridical attributes "inseparably bound up with the nature of a citizen as such": (1) freedom, (2) civil equality, and (3) civil independence (Metaphysics, 78-79). Read in the context of Kant's implicit exclusion of the mentally ill from other parts of his ethics, it is hard to imagine how the mentally ill could claim to hold these three attributes. 16 The first attribute, freedom, must clearly remain elusive for the mentally ill. In the Metaphysics, Kant describes this freedom as the liberty "to obey no law other than one to which he has given his consent" (Metaphysics, 78). But how could the mentally ill consent to the

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Who Qualifies for Rights?

law? First, their lack of civil personality precludes them from consenting to the laws by voting and other acts of "active" citizenship. Second, as he argues in "Theory and Practice," the a priori principle of freedom that undergirds a lawful civil state belongs to "every member of society as a human being" but only "in so far as each is a being capable of possessing rights" (74). Since Kant's philosophy provides the mentally ill with only tenuous claims to the capacity to possess either innate or acquired rights, it is hard to imagine how this quality of freedom would inhere to them. The second attribute, civil equality, also fails to describe the mentally ill. In the Metaphysics, Kant defines this quality as "having among the people no superior over him except another person whom he has just as much of a moral capacity to bind juridically as the other has to bind him" (78-79). But in an earlier passage in the same text, he explains that not all people have the moral capacity to bind others. "In the theory of duties, man can and should be represented from the point of view of the property of his capacity for freedom" (46). Among those with diminished capacity for freedom who cannot bind others are "nonrational beings" and those "without [civil] personality" (47). The mentally ill fall into both categories, and thus presumably lack the civil equality essential to the character of active citizens. The third attribute, civil independence, is a quality frequently lacking in the mentally ill. According to Kant, a person who has this quality "owe[s] his existence and support, not to the arbitrary will of another person in the society, but rather to his own rights and powers as a member of the commonwealth (hence his own civil personality may not be represented by another person in matters involving justice and rights)" (Metaphysics, 78-79). Echoing his argument for independent voters, he again insists, when clarifying the meaning of civil independence, that "[t]he only qualification required by a citizen (apart, of course, from being an adult male) is that he must be his own master (sui iuris), and must have some property (which can include any skill, trade, fine art or science) to support himself. In cases where he must earn his living from others, he must earn it only by selling that which is his, and not by allowing others to make use of him; for he must in the true sense of the word serve no-one but the commonwealth" ("Theory and Practice," 78; emphasis in original). For those mentally ill people whose illness makes them unable to care for themselvesand this would presumably be the case for those mentally ill people in

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need of civil commitment-it is unlikely that they could continue to support themselves by using or selling their property. Rather, as is the case for most people suffering from serious mental illnesses, they would likely come to rely on the assistance (if not outright support) of others. And so, just as the mentally ill would likely fail to qualify as fit to vote, so too would they likely fail to assume the quality of civil independence essential to active citizenship. Kant was apparently aware of the tension between the divided citizenry he endorsed and his universal morality. For example, he recognized that the notion of "passive" citizens "appears to contradict the definition of the concept of a citizen in general" (Metaphysics, 79). He even tries to resolve the conflict by insisting that unequal citizenship and acquired (civil) rights need not infringe the passive citizen's innate freedoms. As he writes in the Metaphysics, This kind of dependence on the Will of others and the inequality that it involves are by no means incompatible with the freedom and equality that men possess as human beings, who together make up a people. Rather, only by conforming to these conditions can the people become a state and enter into a civil constitution. Under this constitution, however, not everyone is equally qualified to have the right to vote, that is, to be a citizen as well as a fellow subject. From the fact that, as passive parts of the state, they can still demand that they be treated by others in accordance with the laws of natural freedom and equality it does not follow that they have the right as active members to guide the state, to organize, and to work for the introduction of particular laws; it follows only that, whatever might be the kind of laws to which the citizens agree, these laws must not be incompatible with the natural laws of freedom and with the equality that accords with this freedom, namely, that everyone be able to work up from this passive status to an active status. · 32. In re Boggs, 136 Mise 2d 1082, 1083 (1987), rev'd 132 A.D. 2d 340 (1987), appeal dismissed as moot, 70 N.Y. 2d 972 (1988). All quotations in the rest of this section are from this case. 33· Ibid., 1091, citing O'Connor, 422 U.S. 563 (1975). 34· Boggs v. Health & Hasp. Corp., 132 A.D. 2d 340, 341 (1st Dept. 1987), appeal dismissed as moot, 70 N.Y. 2d 972 (1988). Justice David Ross wrote the majority opinion. Justices P. Murphy and Sullivan joined in his opinion. 35· For example, when Brown claimed that her sisters "tricked" her into hospitalization at East Orange Hospital. 36. Boggs v. Health & Hasp. Corp., 366. 37· Ibid., 367, citing Humphrey v. Cady, 405 U.S. 504, 509 (1972), emphasis added, and 369. Justice Ernst H. Rosenberger joined Justice Milonas in dissent. 38. Boggs v. Health & Hasp. Corp., 373· 39· For example, tardive dyskinesia. According to E. Fuller Torrey, concerns about side effects from neuroleptics are greatly exaggerated. Nevertheless, unpleasant side effects do occur, and many patients are often reluctant to take them. See E. Fuller Torrey, Surviving Schizophrenia: A Family Manual, rev. ed. (New York: Harper & Row, 1988), 186-219. 40. Francine Cournos, "Interview and Review of Records of Billy Boggs," handwritten document, January 14, 1988, 9· 41. Ibid., 11-12.

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CHAPTER 2. THE THEORY BEHIND CIVIL COMMITMENT 1. Most civil commitment hearings are not contested, and even fewer reach the fever pitch associated with Brown's commitment hearing. James A. Holstein, Court-Ordered Insanity: Interpretive Practice and Involuntary Commitment (New York: Aldine de Gruyter, 1993); Carol A. B. Warren, The Court of Last Resort: Mental Illness and the Law (Chicago: University of Chicago Press, 1982). 2. Josh Barbanel, "Woman Battles Koch's Program for Mentally Ill: Hospitalizing Homeless Faces Legal Fight," New York Times, November 2, 1987. 3· When Locke wrote of "men," he clearly meant "men only" and not "men and women." Because my focus here is on Locke's exclusion of the mentally ill, however, I do not address his exclusion of women from the ranks of rights-holders. 4· John Locke, "The Second Treatise of Government," in Two Treatises of Government, ed. Peter Laslett (New York: Mentor Books, 1965), 346. 5· Ibid., 311, 346, 350. 6. Mentally ill people may also have the capacity for right reason in some areas of their lives, but find that it varies over time and by circumstance. 7· This underdevelopment may not seem problematic for Locke, of course, since he seems to have been more concerned about distinguishing regular rights-holders from animals than from other human beings. 8. John Stuart Mill, "On Liberty," in Utilitarianism, On Liberty, and Considerations on Representative Government, ed. H. B. Acton (London: J. M. Dent & Sons, 1972), 75; emphasis added. 9· Includes Mill's own footnote. 10. The response takes the form of an appendix to the Metaphysics, titled "Supplementary Explanations of the Metaphysical Elements of Justice." Kant, The Metaphysical Elements of Justice, trans. John Ladd (1965; rpt. Indianapolis: Bobbs-Merrill, 1983), 130-41. Hereafter cited as Metaphysics. 11. In the Metaphysical Elements of Justice, Kant distinguishes between innate and acquired rights. "An innate right is one that belongs to everyone by nature, independently of any juridical act; an acquired right requires such an act." Both kinds of rights, "considered as (moral) capacities to bind others, provide the lawful ground for binding others" (Metaphysics, 43). 12. Immanuel Kant, Grounding for the Metaphysics of Morals, trans. James W. Ellington (Indianapolis: Hackett, 1981), 23. Hereafter cited as Grounding. 13. Immanuel Kant, "On the Common Saying: 'This May be True in Theory, but it does not Apply in Practice,'" in Kant's Political Writings, ed. Hans Reiss, trans. H. B. Nisbet (1970; rpt. Cambridge: Cambridge University Press, 1988), 74· Emphasis in original on "patriotic" and "paternal"; other emphasis added. Hereafter cited as "Theory and Practice."

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14. Susan Mendus makes this same point in "Kant: An Honest but Narrow-Minded Bourgeois?" in Women in Western Political Philosophy: Kant to Nietzsche, ed. Ellen Kennedy and Susan Mendus (London: Wheatsheaf Books, 1987), 26. 15. For a more extensive discussion of the history of legal status and how the mentally ill have fared as qualified citizens, see chapters 3 and 4· 16. Of course, Kant's failure to explicitly exclude the mentally ill from the ranks of active citizens and regular rights-holders means that he did not provide any guidelines for applying his standards for altering citizens' status to the mentally ill. This omission also makes it difficult for Kant's discussion of the qualifications for rights to assist in the current practice of civil commitment. 17. Kant, of course, did justify his standards for distinguishing active from passive citizens, but he did not explain why he thought the mentally ill should be included in the latter category. 18. Locke, "Second Treatise," 350. 19. Mill, "On Liberty," 73, 152. 20. Kant, "Theory and Practice," 74· 21. It is interesting to note the persistence of these goes-without-saying assumptions in the justification of rights. Regardless of the particular content the authors intended to incorporate through them, their existence and important role in arguments about rights points to a strong connection between beliefs about capacity and citizenship on one hand, and the plausibility of the justification of rights on the other. For those who recognize and agree on these starting assumptions, the justification is potentially convincing. For those who fail to recognize or who disagree with those beliefs, however, the justification is likely to fail. 22. Mill, "On Liberty," 125; emphasis added. 23. Ibid., 128. 24. As we have seen, however, neither set of rights inheres to the mentally ill. 25. Isaiah Berlin, "Rationality of Value Judgments," in Nomos VII: Rational Decision, ed. Carl J. Friedrich (New York: Atherton Press, 1964), 222-23 .

.z6. John Rawls, A Theory of Justice (Cambridge: Harvard University Press, 1971), 249· 27. Joel Feinberg, The Moral Limits of the Criminal Law: Harm to Self (Oxford: Oxford University Press, 1986), 106-13, 320. In the first section cited, Feinberg distinguishes between irrationality in the strong sense of natural incompetence and irrationality in the weaker sense of chronic foolishness, unreasonableness, or imprudence. Only the former, which he associates with "severe cognitive impairment" and insanity, can justify withholding

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normal rights and, as he describes in later sections, can vitiate consent. See also 307, 319-25. 28. Howard Cohen sees the same division for minors: there is "one set of rights for adults, and another for children. Adults' rights mostly provide them with opportunities to exercise their powers; children's rights mostly provide them with protection and keep them under adult control." Howard Cohen, Equal Rights for Children (Totowa, N.J.: Littlefield, Adams, 1980), 43· 29. Stephen Macedo, Liberal Virtues: Citizenship, Virtue, and Community in Liberal Constitutionalism (Oxford: Clarendon Press, 1991), 214-15. 30. For some of the many arguments in favor of "liberating" children by providing them with equal rights, see Cohen, Equal Rights for Children; and Beatrice Gross and Ronald Gross, The Children's Rights Movement: Overcoming the Oppression of Young People (New York: Anchor /Doubleday, 1977). Among the many advocates of equal rights for the mentally ill are Stephen J. Morse (see "A Preference for Liberty: The Case against Involuntary Commitment of the Mentally Disordered," California Law Review 70 [1982]: 54); Alan Dershowitz (see "Psychiatry in the Legal Process: A Knife That Cuts Both Ways," in The Path of the Law from 1967, ed. Arthur Sutherland [Cambridge: Harvard University Press, 1968], 71-83); and Thomas S. Szasz (see Law, Liberty, and Psychiatry: An Inquiry into the Social Uses of Mental Health Practices [New York: Collier Books, 1963] and The Myth of Mental Illness: Foundations of a Theory of Personal Conduct, rev. ed. [New York: Perennial/Harper & Row, 1974]). 31. The federal courts first moved toward recognizing a right to treatment in Rouse v. Cameron, ruling that "[t)he purpose of involuntary hospitalization is treatment, not punishment" (373 F. 2d 451, 452 [D.C. Cir. 1966]). They moved closer toward recognizing that right in Wyatt v. Stickney, 344 F. Supp. 373 (M.D. Ala. 1972), where they promulgated minimum constitutional standards for patients of Alabama's state mental institutions to "ensure that the dignity and human rights of the patients are preserved" and to protect the residents' "right to ... humane care." Two years later, the 5th Circuit used the precedents of Rouse and Wyatt to justify a right to treatment in O'Connor v. Donaldson, 493 F. 2d 507 (5th Cir. 1974) and grounded the right in the Fourteenth Amendment (ibid., 510). The Supreme Court vacated that ruling and remanded the case, however, in part because it did not want to recognize a constitutional basis for the right to treatment. Since that time, the closest the federal courts have come to recognizing a right to treatment was in 1982 when the Supreme Court recognized "the right to personal security" and "the right to freedom from bodily restraint" in Youngberg v. Romeo, 457 U.S. 307 (1982). Currently, the main existing basis for the right to treatment comes from state statutes. By 1985, sixteen states lacked provisions guaranteeing a right

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to treatment. See Barbara A. Weiner, "Treatment Rights" in The Mentally Disabled and the Law, ed. Samuel Jan Brakel, John Parry, and Barbara A. Weiner, 3d ed. (Chicago: American Bar Foundation, 1985), 334-36. In 1999, however, the Supreme Court seemed to move in the direction of supporting a right to treatment under the Americans with Disability Act in Olmstead v. L.C., 119 S. Ct. 2176 (1999). 32. The case law on required procedures for commitment and care of the mentally ill and on due process in (re)commitment and medication hearings is extensive. For an excellent summary of its development, see Samuel Jan Brakel, "Involuntary Hospitalization," in Mentally Disabled and the Law, ed. Brakel et al., 50-73. One interesting difference between a regular right to due process and the paternal version is that petitioners in commitment hearings do not enjoy the presumption of sanity in the same way that regular criminal defendants enjoy a presumption of innocence. 33· Judith N. Shklar, "Injustice, Injury, and Inequality: An Introduction," in Frank S. Lucash, Justice and Equality Here and Now (Ithaca, N.Y.: Cornell University Press, 1986), 25. 34· As LaFond and Durham note, the growth of rights-talk in debates about civil commitment has led to increased recognition of rights for the mentally ill, but those rights have been paternal in nature--not the same regular rights that are available to people who are not mentally ill. John Q. LaFond and Mary L. Durham, Back to the Asylum: The Future of Mental Health Law and Policy in the United States (New York: Oxford University Press, 1992), 114: "a strange metamorphosis occurred in this rights debate. Over time, opponents of restricted commitment willingly conceded patients had rights; however, these primary rights included the right to treatment in humane institutions that would cure debilitating illnesses," citing Neil Milner, 'The Denigration and Diminishing of Rights," paper presented at the 14th International Congress on Law and Psychiatry, Montreal, Canada, June 1988. 35· See for example Amitai Etzioni's discussion of rights and responsibilities in The Spirit of Community: Rights, Responsibilities, and the Communitarian Agenda (New York: Crown, 1993). 36. Wesley Hohfeld, Fundamental Legal Conceptions as Applied in Judicial Reasoning (New Haven, Conn.: Yale University Press, 1919). Since one person's (X's) rights necessarily correlate with another person's (Y's) duties, X's rights cannot exist if Y has no duties toward X. Similarly, X's right andY's duty cannot exist unless there is both an X and a Y for whom the terms "right" and "duty" describe (at least part of) their relationship. 37· Thank you to Amy Gutmann for this insight. 38. That liberals invoke this language when it does not quite apply, however, suggests that there is something significant left undeveloped in liberal

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theory. Why else would liberals need to use the language of rights to describe the duties and assaults on dignity implicit in the invocation of paternal rights? 39· Shklar, "Injustice, Injury, and Inequality," 25. 40. There has been significant work in bioethics on patients' competency to exercise the right to make decisions about medical treatment, however. Basing their theory on principles of autonomy, bioethicists have filled in many of the holes in this area of qualifications for rights that liberal theory has left undeveloped. See for example Allen E. Buchanan and Dan W. Brock, Deciding for Others: The Ethics of Surrogate Decision Making (New York: Cambridge University Press, 1989). Similarly, some neo-Kantians have worked to develop more robust theories of liberal moral personality; see Christine M. Korsgaard, "Motivation, Metaphysics, and the Value of the Self: A Reply to Ginsborg, Guyer, and Schneewind," Ethics 100, no. 1 (1998): 49-66; and Korsgaard, Creating the Kingdom of Ends (New York: Cambridge University Press, 1996). My focus here is somewhat different. I aim to (1) tease out the qualifications for rights that have been laid out, even if only implicitly, in American law and politics, and (2) provide normative criteria that can help us evaluate the adequacy of these-or any-particular standards. One of the central claims of this book is that while we cannot define, ab initio, who does qualify for rights, we can identify some limiting criteria that must be met in order for a set of qualifications to be legitimate. That is why I maintain my primary focus on the foundations of liberal political theories of rights. 41. See chapter 1. 42. Interview with Robert Levy, August 30, 1991, 17-18. 43· Closing argument of Maureen McLeod, transcript of In re Billie Boggs, Supreme Court of the State of New York, County of New York, Special Term, Part 2 (November 5, 1987), 551. 44· I leave aside here any consideration of possible breaches in the confidentiality of Boggs's relationship with her doctors. 45· Colloquy by Robert Levy, In re Boggs transcript, November 4, 1987 [sic-this day's proceeding really occurred on November 3, 1987], 18. 46. Colloquy by Maureen McLeod, In re Boggs transcript, 29. Note that McLeod refers to Boggs as the "patient" rather than as the "petitioner." This appellation again reflects McLeod's conclusion that Boggs should be viewed by the court as a mental patient, not as a sane woman wrongly committed. This example illustrates just how difficult it can be for the mentally ill to secure goods that full citizens procure by asserting their (regular) rights. Because liberal theory and jurisprudence exclude the mentally ill from the language of rights, these people lack an effective way to voice their claims.

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47· Although the state of New York does not automatically deprive individuals of all of their regular rights when they are hospitalized against their will, commitment does deprive them of many regular rights in one fell swoop. 48. N.Y. Mental Hygiene Law, sec. 9·39· 49· This is the method Ronald Dworkin advocates for finding the right interpretation of a vaguely worded law. When the undergirding political and legal theory are also ambiguous, however, it is unclear where even a Hercules should look for hermeneutical guidance. See Dworkin, "Hard Cases," in Taking Rights Seriously (Cambridge: Harvard University Press, 1977), esp. 105-30. 50. In separate interviews, Robert Levy and Maureen McLeod both assured me of the accuracy of their own interpretation of the law's "goes without saying" standards and characterized the other side's version as "wrong" and "not the law." Interview with Robert Levy, August 30, 1991; and interview with Maureen McLeod, October 8, 1991. 51. There has been some work in contemporary liberal theory that attempts to do just that. See, for example, the work of Christine Korsgaard, "Motivation, Metaphysics, and the Value of the Self," and Creating the Kingdom of Ends; or William Galston, Liberal Purposes: Goods, Virtues, and Diversity in the Liberal State (New York: Cambridge University Press, 1991). 52. Bruce Ackerman, for example, justifies excluding the mentally ill because they lack dialogic capacity. Bruce A. Ackerman, Social Justice in the Liberal State (New Haven, Conn.: Yale University Press, 1980). 53· Hohfeld, Fundamental Legal Conceptions, 38. 54· Some interpreters already attempt to do this, of course. Good constitutional interpreters frequently justify their recognition of particular constitutional rights by grounding their reading of the constitutional text in the context of the Constitution as a whole, including its undergirding political and moral theories. Unfortunately, such compelling interpretive justifications remain the exception.

3· LEGAL STATUS AND CIVIL COMMITMENT 1. American law is not alone in ignoring legal status. As R. H. Graveson observes about English law, Cases directly involving the question of whether a person has or has not a given status are relatively rare in the Common Law. The commonest class of cases directly affecting status, petitions for divorce, is usually concerned with changing a status adinitted to exist, not with the determination of its existence or otherwise. (Graveson, Status in the Common Law [London: Athlone Press, 1953], 56) Most cases that do implicate legal status arise in "disputes concerning CHAPTER

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specific rights" -fights over the incidents of status. C. K. Allen, Legal Duties and Other Essays in Jurisprudence (Oxford: Clarendon Press, 1931). See also John L. Austin, Lectures on Jurisprudence; or, The Philosophy of Positive Law, ed. Robert Campbell (London: J. Murray, 1913),lect. X\/,402. 2. "Conflict of Laws," 15A Corpus juris Secundum: A Complete Restatement of the Entire American Law as Developed by All Reported Cases III, sec. 14(1), 467. 3· Ibid., 2. 4· Although standing as a parent seems to be a natural state, its added legal aspect emerges in battles over adoption or custody. The debate over Baby Jessica highlights the extent to which standing as a parent includes an important legal component. So, too, do proceedings to terminate parental rights of those who abuse their children. 5· Another way to see that marriage is not just a civil contract: it may not be dissolved without legal intervention. See Maynard v. Hill, 125 U.S. 190 (1888). 6. Ibid. 7· Graveson, Status in the Common Law, 114. 8. For an excellent discussion of the history of differential treatment under the law for different classes of citizens, see Martha Minow, Making All the Difference: Inclusion, Exclusion, and American Law (Ithaca, N.Y.: Cornell University Press, 1990). 9· Aristotle, The Politics, trans. Ernest Barker (1946; paperback ed., London: Oxford University Press, 1958), 9, 12. 10. Ibid., 35· 11. W. S. Holdsworth, A History of English Law in Seven Volumes, 3d ed., revised (London: Methuen, 1923), 3:385. 12. Graveson, Status in the Common Law, 12. 13. Ibid., 129. 14. Holdsworth, History of English Law, 373· These characterizations seem erroneous now, but what matters for this part of the analysis is that they reflect what people then took to be obvious incapacities. Still, that the characterizations seem so off now might prompt us to rethink our own (often unstudied) assumptions about people's capacities, especially when they form the basis for allocating such important goods as rights. 15. "Introduction," in Anthony Fletcher and John Stevenson, eds., Order and Disorder in Early Modern England (Cambridge: Cambridge University Press, 1985), 13. 16. Sir Thomas Pope Blunt in 1693, quoted in Fletcher and Stevenson, Order and Disorder, 14. 17· Polydore v. Prince, 1 Ware 402, 408, cited in 15A Corpus Juris Secundum, sec. 14(2), 468. Although we justify these statuses by appeal to natural relations, perceptions of natural incapacity continue to infuse our justifications

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of different legal treatment for parents and children, and in some cases, even for husbands and wives. For example, why do we think a woman should gain special rights, duties, capacities, and incapacities when she has a child? (By virtue of their standing as mothers or fathers, for instance, parents have a legal duty to educate their child, the legal capacity to enter into certain kinds of financial arrangements that involve their children's money, and the legal incapacity to travel when that travel entails abandonment or neglect of their child.) Part of our answer will surely be that given in Polydare v. Prince-that parents have special obligations to their children by virtue of their "natural" relationship. But what is it about this relationship that justifies special legal treatment? More than likely, the response will turn, at least in part, on perceptions of the child's natural abilities and inabilities. 18. Holdsworth, History of English Law, 373· 19. Graveson, Status in the Common Law, 12. 20. Holdsworth, History of English Law, 385, 386. 21. Graveson, Status in the Common Law, 13. 22. Sir Frederick Pollock and Frederic William Maitland, "The Sorts and Conditions of Men," in The History of English Law before the Time of Edward I, 2d ed. (Cambridge: Cambridge University Press, 1968), 1:407. 23. Ibid. For Pollock and Maitland, the sixteen statuses included noble men, unfree men, monks and nuns who were "dead to the world," clergy (who were part of a separate estate), Jews, aliens, excommunicates, outlaws, convicted felons, infants, unmarried women, married women, lunatics, idiots, lepers, and juristic persons (corporations). Holdsworth identified seventeen-many, but not all, of which were defined in contrast to the normal person. Some were justified because of differences in their holders' mind or body (infants, lunatics, lepers, married women, women). Others stemmed from social differences (peers, commoners, traders, villeins) or perceived differences in the soul (priests, Jews, the King, excommunicates). Of course, many statuses stemmed from political or economic ideas (corporate "persons," outlaws, persons attained, aliens) that did not depend directly on the status-holder's difference from the normal man. Holdsworth, History of English Law, 457· 24. Pollock and Maitland, "Sorts and Conditions of Men," 1:407. Or, as Sir Matthew Hale argues, "all Persons are (presum'd) in Law able in either of those formal Capacities (of Taking, or Disposing), which by Law are not disabled; And those that are so disabled come under the Title of Non-ability, though that Non-ability is various in its Extent, viz. To some more, to some less ...." Sir Matthew Hale, The History of the Common Law of England, Written by a Learned Hand (London: J. Nutt, 1712), 3· 25. Graveson, Status in the Common Law, 14.

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26. Sir Henry Sumner Maine, Ancient Law: Its Connection with the Early History of Society and Its Relation to Modern Ideas (London: J. Murray, 1920), 100. 27. Graveson, Status in the Common Law, 34· In other words, people could create some new rights for themselves by contracting with each other. 28. Declaration of Independence, para. 2. The Constitution also rejected an overt hierarchy of citizens when it provided in Article I, section 9, para. 8 that "no Title of Nobility shall be granted by the United States." As we know, the Founding Fathers' renunciation of England's hierarchical government did not imply that they envisioned an egalitarian citizenry in their new country. Blacks, women, children, and the mentally ill were secondclass citizens from the start. 29. Again, it is important to note that Civil War amendments went only so far in equalizing citizenship in the first quarter-century following their ratification. 30. U.S. Constitution, 19th Amendment. 31. Gerald N. Grob, From Asylum to Community: Mental Health Policy in Modern America (Princeton, N.J.: Princeton University Press, 1991), 288. 32. Women, for example, gained the vote in 1920 with the ratification of the 19th Amendment to the U.S. Constitution. Despite this important formal change, women's legal standing remained severely limited until the Women's Movement effected massive changes in the 1960s and 1970s. 33· As Dan Lewis notes, the mentally ill gained more rights at the same time as did disabled children and juvenile delinquents. Dan A. Lewis, William R. Shadish Jr., and Arthur J. Lurigio, "Policies of Inclusion and the Mentally Ill: Long-Term Care in a New Environment," Journal of Social Issues 45, no. 3 (1989): 173, 182. See also M. Levine, "Congress (and Evaluators) Ought to Pay More Attention to History," American Journal of Community Psychology 7 (1979): 1. 34· Roscoe Pound, "Introduction," in Graveson, Status in the Common Law, viii. 35· Graveson, Status in the Common Law, 45· 36. Pound, "Introduction," ix. 37· Holdsworth, History of English Law, 455· 38. Roscoe Pound, ed., Readings on the History and System of the Common Law, 2d ed. (Boston: Boston Book Company, 1913), 433· 39· Sir Frederick Pollock, Jurisprudence and Legal Essays, ed. A. L. Goodhart (Westport, Conn.: Greenwood Press, 1978), 66. 40. Maine, Ancient Law, 99-100. 41. Pollock, Jurisprudence, 66. 42. See, for example, New York Consolidated Laws Services, Criminal Procedure Law (NY CLS CPL) § 220.15ff (2000) (re insanity defense) and NY CLS CPL § 730.10ff (1999) (redeterminations of capacity to stand trial).

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43· 42 United States Code Service (USCS) § 416 (2ooo). 44· Moreover, the bundles assigned vary with the particular version of the status of the mentally ill person (e.g., insane versus mentally disabled). Of course, different states formulate each of these statuses in different ways; each state has its own version of the insanity defense, for instance, but they all make mental illness a necessary but not sufficient condition of eligibility for the defense. 45· Citing Stamus v. Leonhardt, 414 F. Supp. 439, 451 (S.D. Iowa 1976), for example, Robert Weissbourd argues that the doctrine requiring laws to provide fair notice to criminals regarding which actions are proscribed should not apply to mentally ill people who might be committed because "commitment statutes focus on an individual's status as mentally ill and/or dangerous, and not on the individual's conduct." Weissbourd, "Involuntary Commitment: The Move toward Dangerousness," John Marshall Law Review 15 (1982): 83, 93· While Weissbourd is right to point out that civil commitment entails the assignment of a legal status, he fails to acknowledge here what role an individual's conduct might play in determining which status attaches. 46. We could also examine the legal standards governing competency to stand trial or determination of insanity at the time of the alleged crime to understand why the law views mentally ill persons as different from other persons. However, those other standards would not be as useful for my analysis. I am concerned about the law's qualification of civil rights, and legal standards governing civil commitment illuminate that qualification much better than legal standards for criminal rights. Hence, my examination of the status of the mentally ill person focuses exclusively on that form of the status that attaches to those mentally ill persons who are subject to long-term civil commitments rather than to those who are caught up in other civil or criminal proceedings. 47· Rogers v. Okin, 478 F. Supp. 1342 (D. Mass. October 29, 1979), affirmed in relevant part, 738 F. 2d 1 (1st Cir. June 14, 1984). The rights bundles that attach to both of these statuses differ from the bundle afforded voluntarily committed patients, who usually retain the same right to refuse treatment afforded full citizens. Those who are committed on an outpatient basis, in contrast, have fewer rights against forced medication. Mentally ill persons also have various qualifications on the right to refuse medication in the context of criminal law if they are awaiting trial, are pleading insanity, are awaiting a judicial determination of incompetency to stand trial, have been found incompetent to stand trial, have been found guilty of a crime, are awaiting execution, or have been found to be "guilty but mentally ill." See Michael L. Perlin, Law and Mental Disability (Charlottesville, Va.: Michie Co., 1994), 253--75·

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48. Raymond L. Spring, Roy B. Lacoursiere, and Glen Weissenberger, Patients, Psychiatrists, and Lawyers: Law and the Mental Health System, 2d ed. (Cincinnati, Ohio: Anderson Publishing, 1997). 49· Recall that the law allocates different bundles of rights, duties, capacities, and incapacities to all people living in the polity. Because all of these people constitute the community-as well as stand in relation to others there-I treat them as citizens, whether or not they are eligible for passports. For clarification of my use of "citizen" as someone who has "status" in the political community, see the discussion in the introduction to this volume. CHAPTER

4·

THE HISTORY OF COMMITMENT LAW

IN THE UNITED STATES 1. While there is extensive historical literature on English and Continental mental health, similar U.S. histories remain much less common. Gerald Grob's excellent work stands out as the best. David Rothman and Norman Dain have also made important contributions. Of the older literature, Albert Deutsch's classic study warrants careful examination. See Gerald N. Grob's Mental Institutions in America: Social Policy to 1875 (New York: Free Press, 1973), Mental Illness and American Society, 1875-1940 (Princeton, N.J.: Princeton University Press, 1983), and From Asylum to Community: Mental Health Policy in Modern America (Princeton, N.J.: Princeton University Press, 1991); David Rothman, The Discovery of the Asylum: Social Order and Disorder in the New Republic (Boston: Little, Brown, 1979); Norman Dain, Concepts of Insanity in the United States, 1789-1965 (New Brunswick, N.J.: Rutgers University Press, 1964); and Albert Deutsch, The Mentally Ill in America: A History of Their Care and Treatment from Colonial Times (Garden City, N.Y.: Doubleday, Doran, 1937). 2. Mormon Church v. United States, 136 U.S. 1, 57 (1890). 3· Prerogativa Regis, 17 Edw. 1, ch. 9· Historians disagree about when the statute was enacted. The dates cited range from 1255 to 1290. 4· Ibid., 68. Blackstone defines an idiot as a person who "hath no understanding from his nativity." William Blackstone, Commentaries on the Laws of England: A Facsimile of the First Edition of 1765-1769, vol. 1: Of the Rights of Persons, ed. Stanley Katz (Chicago: University of Chicago Press, 1979). 5· Prerogativa Regis, 68. 6. Blackstone, Commentaries, 1:304. 7· Mormon Church v. U.S., 57· 8. Mormon Church v. U.S., 57, citing Fontain v. Ravenel, 17 How. 369,384 (date omitted). 9· Mormon Church v. U.S. involved the federal government's efforts to take possession of land in Utah that the Mormon Church-a charity under law-controlled when the state was still a territory.

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10. Mormon Church v. U.S., 58, quoting Sohier v. Massachusetts General Hasp., 3 Cush. 483, 497 (Mass., not dated). 11. For example, imagine that Insane Person Ida contracted with Sane Person Sam to allow Sam to use Ida's property under certain conditions. When Ida becomes so ill that she is incapable of monitoring the status of the arrangement, she becomes vulnerable to the possibility that Sam might unscrupulously use the property in ways not agreed to because he knows that she is too ill to stop him. Sam's interests are also endangered when no one steps in to force Ida to live up to her end of the bargain when she is unable to do so herself. Lacking an alternative trustee, Sam potentially loses the benefits of their contract if Ida's illness renders her incapable of following through on the arrangement. 12. Mormon Church v. U.S., 57· 13. Jacobson v. Massachusetts, 197 U.S. 11, 25 (1905). 14- Robert Weissbourd, "Involuntary Commitment: The Move toward Dangerousness," John Marshall Law Review 15 (1982): 83, 89. See also Jacobson v. Massachusetts. 15. New York Laws of q88, chap. 31, quoted in Deutsch, Mentally Ill in America, 419. 16. Ibid. 17. Grob, Mental Institutions in America, 9· 18. Ibid. 19. Nicholas Kittrie, The Right to Be Different: Deviance and Enforced Therapy (Baltimore: Johns Hopkins University Press, 1971), 64. 20. Deutsch, Mentally Ill in America, 420. 21. Ibid. 22. Ibid., 422; Kittrie, Right to Be Different, 64. 23. Colby v. Jackson, 12 New Hampshire Reports 53o-531 (1842). Hereafter cited in text as Colby followed by page number. 24. Quoting 17 Geo. II., ch. 5, sees. 20, 21. 25. In re Oakes, 8 L. Rep. (Chandler) 122 (Mass. 1845). Hereafter cited as Oakes, with page number. 26. The standards provide even worse protection for women and children. Commitment standards did not make significant progress in overcoming this kind of bias until well into the twentieth century. 27. Kittrie, Right to Be Different, 64. 28. Illinois Laws of 1851, sec. 10, 96, 98; quoted in Deutsch, Mentally Ill in America, 423. 29. Grob, Mental fllness and American Society, 47; Don Martindale and Edith Martindale, Mental Disability in America since World War II (New York: Philosophical Library, 1985), 171--72; and Kittrie, Right to Be Different, 64-65. According to Rael Jean Isaac and Virginia Armat, Packard claimed she had

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been committed not because she was mentally ill, but because her religious beliefs differed from those of her husband and his minister. See Isaac and Armat, Madness in the Streets: How Psychiatry and the Law Abandoned the Mentally Ill (New York: Free Press, 1990), 112. 30. Deutsch, Mentally Ill in America, 425. 31. Grob, Mental Illness and American Society, 47· This theory seems consistent with the more general conclusions of Ellen Dwyer, whose research on civil commitment in the mid- to late nineteenth century suggests that most people who were committed at the request of their family were hospitalized when the family objected to the allegedly insane person's attitudes or behavior. See Ellen Dwyer, Homes for the Mad: Life inside Two NineteenthCentury Asylums (New Brunswick, N.J.: Rutgers University Press, 1987). 32. Grob, Mental Illness and American Society, 47; and Deutsch, Mentally Ill in America, 426-27. New York State established the first such body in 1872, its permanent State Commission on Lunacy. 33· Grob, Mental Illness and American Society, 11. 34· Edward P. Mulvey, Jeffrey L. Geller, and Loren H. Roth, "The Promise and Peril of Involuntary Outpatient Commitment," The American Psychologist 42, no. 6 (June 1987): 571, 572. 35· Report of the Committee on Legal Measures and Laws to the First International Congress on Mental Hygiene, quoted in Deutsch, Mentally Ill in America, 438. 36. Mulvey, Geller, and Roth, "Promise," 573· 37· Even the police powers justifications in the 1930s through the 196os (and in some states, even into the 1970s) look more like a combination of parens patriae and police powers justifications than invocations of the latter alone. On closer inspection, standards justified in terms that look like they aim to protect the community frequently masked the society's (at least potentially) benevolent desire to care for individuals whose unconventional behavior indicated that they needed help to lead more normal lives. For example, Massachusetts allowed commitment of persons suffering from a "character disorder" that rendered the person so deficient in "judgment or emotional control" that he would probably act in a way that "clearly violates the established ... conventions of the community." Or, statutes in the District of Columbia provided for the commitment of persons suffering from a "psychosis or other disease which substantially impairs the mental health" in a way that rendered the person "likely to injure himself or other persons if allowed to remain at liberty" where "injury to others" was defined as "intentional or unintentional acts which result in harm to others, or cause trouble or inconvenience to others." Laws quoted in Kittrie, Right to Be Different, 67-68. These laws clearly aim to use civil commitment to control antisocial behavior. But a more generous reading of them and of the inten-

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tions of their advocates allows that they also aim to protect the person violating the norms from the mental illness that leads him to act in this presumably unhealthy and undesirable way. 38. Quoted in Grob, From Asylum to Community, 289. 39· Isaac and Armat, Madness in the Streets, 113. On the other hand, Massachusetts' new law also appealed to police powers in allowing commitment of a person who was "likely to conduct himself in a manner which clearly violates the established laws, ordinances, conventions or morals of the community" (quoted in Isaac and Annat, 113). 40. Kittrie, Right to Be Different, 67-68. 41. Conditions in the hospitals were horrible, and people would have been hard pressed not to see these conditions as violations of human rights. In addition to the governmental reports discussed below, there were a number of important journalistic exposes that contributed to the recognition of the need to invoke the language of rights to protect the civilly committed. For an account of one series of journalistic exposures and legal interventions, see David J. Rothman and Sheila M. Rothman, The Willowbrook Wars (New York: Harper & Row, 1984). 42. Grob, From Asylum to Community, 288. 43· Ibid., 289. 44· Ibid., 290. 45· People with legal statuses do not necessarily lose all of the rights associated with full citizenship insofar as the incidents of their legal status may include some of those rights. They often gain special (usually paternal) rights associated with their special legal standing. For a more extensive discussion of the legal rights incidental to the legal status of a civilly committed mentally ill person, see chapter 2 of this volume. 46. Of course, people being civilly committed do not yet have the status of a mentally ill person. Hence, it is not illogical that persons contesting their commitment-people who see themselves as full citizens and who do not want their legal standing qualified-would assert the rights associated with full citizenship while they can still claim to possess them. But courts had traditionally treated people being committed as persons whose status was (at best) in question (if not already altered) rather than as full citizens. In other words, courts had not presumed that persons being committed were legally healthy of mind (even if they did not actually assume they were mentally ill). 47· They also claimed to acquire special (paternal) rights once committed, including the right to treatment. The debates over whether there is a constitutional right to treatment loomed large in the 1960s and 1970s and contributed to the growth of rights-talk by, for, and about the mentally ill. Since my focus is on where the legal system draws the line between those

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with full standing (and the rights associated with full citizenship) and those with legal status (who may or may not get special rights incidental to their new standing), I have left aside consideration of the very important issue of which rights should be incidental to the legal status of a civilly committable mentally ill person. 48. Although the Senate drafted a model bill to make dangerousness the sole criterion for civil commitment in 1963 (Isaac and Armat, Madness in the Streets, 118), the legislative act most closely connected with the shift from parens patriae to police powers commitments was California's LantermanPetris-Short Act (LPS), which went into effect in 1969. This act made it both procedurally and substantively more difficult to civilly commit the mentally ill. By emphasizing the ''dangerousness" standard and discussing commitment in terms of the committed person's rights, the act came to be known to some as the Magna Carta of the Mentally Ill. See Isaac and Armat, Madness in the Streets, 118, 121. It also set the standard for statutory reform over the next fifteen years. Mulvey, Geller, and Roth, "Promise," 573; Paul S. Appelbaum, "Civil Commitment: Is the Pendulum Changing Direction?" Hospital and Community Psychiatry 33, no. 9 (1982): 703; A. H. Urmer, "Implications of California's New Mental Health Law," American Journal of Psychiatry 132 (1975): 251-54; Note, "Developments in the Law-Civil Commitment of the Mentally Ill," Harvard Law Review 87 (1974): 1190, 1205-6. 49· 349 F. Supp. 1078 (E.D. Wise. 1972), vacated on other grounds, 414 U.S. 473 (1974). Hereafter cited as Lessard, with page number. 50. The Court cites statistics that it believes indicate that an "individual committed to a mental institution has a much greater chance of dying than if he were left at large" (Lessard, 1089). These data were derived from a study comparing the death rate of mental patients in Pennsylvania with that of the general population of the United States. The data were consistent, however, with the death rate of patients in mental institutions in Wisconsin. Later in the opinion, the Court also cites expert testimony that suggests that "forcible detention may ... lead to all sorts of acute traumatic and iatrogenic symptoms and troubles" where 'iatrogenic' means "things that are caused by the very act of hospitalization which is supposed to be therapeutic; in other words, the hospitalization process itself causes the disturbance rather than the disturbance requiring hospitalization" (Lessard, 1091 n. 18, citing testimony of Arthur Cohen). 51. Quoting Heryford v. Parker, 396 F. 2d 393 (10th Cir. 1968), the court linked rights to procedural rights to counsel: [O]f utmost importance, we have a situation in which the liberty of an individual is at stake .... It matters not whether the proceedings be labeled "civil" or "criminal" or whether the subject matter be mental instability or juvenile delinquency. It is the likelihood of in-

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Notes to Pages 83 to 84

voluntary incarceration ... which commands observance of the constitutional safeguards of due process. Where ... the state undertakes to act in parens patriae, it has the inescapable duty to ... see that a subject of an involuntary commitment proceedings is afforded the opportunity to [have] the guiding hand of legal counsel at every step of the proceedings, unless effectively waived. (Lessard, 1097-1098) 52. Lessard, 1101, quoting In re Gault. 53· Lynch v. Baxley, 386 F. Supp. 378, 387 and passim (M.D. Ala. 1974). 54· See Specht v. Patterson, 386 U.S. 1967 (right to be present, 610); Dixon v. Attorney General of Commonwealth of Pennsylvania, 325 F. Supp. 966 (M.D. Pa. 1971) (right to counsel, 974); Sarzen v. Gaughan, 489 F. 2d 1076 (1st Cir. 1973) (right for counsel to review record to be used in evidence against allegedly mentally ill, 1085 and 1086); In re Ballay, 482 F. 2d 648 (D.C. Cir. 1973) (rights to procedural due process are grounded in the interests and corresponding rights at stake, whether constitutional or otherwise); Bell v. Wayne County General Hospital, 384 F. Supp. 1085 (E.D. Mich. 1974) (rights to notice in sufficient time to prepare rebuttal, to counsel [for free if indigent], and to notice of right to trial by jury if desired); Doremus v. Farrell, 407 F. Supp. 509 (D. Neb. 1975) (rights to notice of charges, notice of all rights, preliminary inquiry within five days, full and formal hearing within fourteen days, be present at hearing, counsel, opportunity to confront and cross-examine witnesses against allegedly mentally ill person, opportunity to present witnesses on behalf of person contesting commitment, separate people serving as guardian and counsel); and Stamus v. Leonhardt, 414 F. Supp. 439 (S.D. Iowa 1976) (rights to notice, hearing, presence at hearing, participate at hearing, advisement of right to counsel, and counsel). 55· Dixon v. Attorney General of the Commonwealth of Pennsylvania, 325 F. Supp. 966 (M.D. Pa. 1971). 56. Humphrey v. Cady, 405 U.S. 504, 509 (1972). In implicit recognition of the fact that civil commitment involves the assignment of a legal status-a socially and legally constructed concept, Justice Marshall stresses in his opinion for the Court that a finding of suitability for civil commitment must reflect both medical and "social and legal judgment." 57· 422 U.S. 563 (1975). Hereafter cited as O'Connor, with page number. 58. Lessard, 1093. Although the court allows that civil commitment may be justified when the person's mental illness poses a threat of substantial danger to self or others, it makes the standards for proving a threat of danger to self much more stringent. In note 24, the court holds that "[e]ven an overt attempt to substantially harm oneself cannot be the basis for commitment unless the person is found to be (1) mentally ill and (2) in immediate danger at the time of the hearing of doing further harm to oneself." The court then qualifies this standard by writing that "[t]he considerations

Notes to pages 85 to 87

169

which permit society to detain those who because of mental illness are likely to harm others do not necessarily apply to potential harm to oneself." Specifically, the court implies that people who are committing suicide may not be committable because if we were to believe that "attempted suicide must always be the product of an irrational mind" then we would seriously undermine criminal responsibility for deciding to "intentionally take another person's life." 59· Lessard, 1093, quoting Humphrey. Emphasis added by the court in Lessard. 6o. For example, Bell v. Wayne County, 384 F. Supp. 1085; Doremus, 407 F. Supp. 509; and Stamus, 414 F. Supp. 439· 61. Lessard, 1094. 62. Christopher Jencks, The Homeless (Cambridge: Harvard University Press, 1994). 63. See E. Fuller Torrey, Nowhere to Go: The Tragic Odyssey of the Homeless Mentally Ill (New York: Harper & Row, 1988); and Isaac and Armat, Madness in the Streets. 64- See John Q. LaFond and Mary L. Durham, Back to the Asylum: The Future ofMental Health Law and Policy in the United States (New York: Oxford University Press, 1992); Joel Blau, The Visible Poor: Homelessness in the United States (New York: Oxford University Press, 1992); and Ann Braden Johnson, Out of Bedlam: The Truth about Deinstitutionalization (New York: Basic Books, 1990). 65. For example, New York State Senate Bill s-7009 passed the Senate on April 28, 1986; or, S-235 and A-6352, introduced in 1987- See the 1986 and 1987 volumes of New York State Legislative Record and Index (Albany: State of New York). 66. For example, New York State Assembly Bill A-5490 in 1986 and A-635 in 1987. N. Y Legislative Record for 1986 and 1987. 67. Remarks by Mayor Edward I. Koch at Annual Meeting of the Coalition of Voluntary Mental Health, Mental Retardation and Alcoholism Services, Inc., June 28, 1983, 5· 68. New York Mental Hygiene Law, sec. 9·32(a)(I), quoted in Project Release v. Prevost, 722 F. 2d at g66 (2d Cir. N.Y. 1983). 6g. Project Release v. Prevost, 972. 70. Matter of Harry M., 96 A.D. 2d 201, 206 (1983). 71. Ibid., 208, citing decisions from state courts in West Virginia and Massachusetts. 72. Matter of Carl C., 126 A.D. 2d 640 (1987); emphasis added. 73· First, he testified that he "was aware of his food needs, of where to get food, and of how to pay for it." His money came from his small income and "supportive friends and relatives." Clearly, the Court implies, Carl C. is not economically deficient. It also implies that he is probably not a bad fam-

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Notes to Pages 87 to 90

ily member-or at least not bad enough that his family is no longer willing to support him. Second, he stated that "he would never sleep outside ... that he has a bed in a rooming house where he had been paying rent for some two years." That he is not (and is not in danger of) living on the streets matters to the Court. What the Court finds legally objectionable about mental illness leading to homelessness is not clear. It may be that the homeless mentally ill are clearly "suffering." Or perhaps the Court worries that homelessness is equivalent to not surviving. Carl C., 640--41. 74· Appelbaum likens the shifting standards for civil commitment to a moving pendulum in his "Civil Commitment." 5. THE PRACTICE OF CIVIL COMMITMENT 1. Although it may seem strange that the legal standards for involuntary hospitalization do not make much difference in the practice of civil commitment, there are many sociological and psychiatric studies that support this assertion. See James A. Holstein, Court-Ordered Insanity: Interpretive Practice and Involuntary Commitment (New York: Aldine de Gruyter, 1993); John Q. LaFond and Mary L. Durham, "Does Legal Reform Make a Difference?" in Back to the Asylum: The Future of Mental Health Law and Policy in the United States (New York: Oxford University Press, 1992), 132-49; Carol A. B. Warren, The Court of Last Resorts (Chicago: University of Chicago Press, 1982) and "Involuntary Commitment for Mental Disorder: The Application of California's Lanterman-Petris-Short Act," Law and Society Review 11 (1977): 629. The discrepancy between law and practice is even more pronounced when people are being committed for the second or subsequent time. Charles D. H. Parry, Eric Turkheimer, and Paul L. Hundley, "A Comparison of Commitment and Recommitment Hearings: Legal and Policy Implications," International Journal of Law and Psychiatry 15 (1992): 25, 37, and passim. 2. Even if the implicit principles do not provide a better guide for deciding when to proceed with civil commitment, their persistence suggests that they describe the polity's values. Only after we uncover these values can we evaluate their justice. 3· I also hold to one side the possibility that the candidates for commitment are less than accurate about the nature of their own conditions. I recognize that in many cases, mental illness renders people less able to assess their own condition and abilities. Nevertheless, because my purpose is to expose how legal stories depict mental illness, the truth of the mental illness matters less for this analysis than how those facts get evaluated. Similarly, I bracket consideration of the accuracy of the psychiatric assessments of the candidates for involuntary hospitalization. What matters for this study is how the law evaluates that evidence, not whether the evidence itself is objectively true. CHAPTER

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4· In re Oakes, 8 L. Rep. (Chandler) 122 (Mass. 1845). I discuss this case at greater length in chapter 4· 5· Ibid., 126. Recall that what is most relevant for this part of the analysis is the evidence brought forward to support the stated standard, not the standard itself. That said, note that Chief Justice Shaw here identifies the standard for involuntary hospitalization as a change in character. In many ways this is a good standard since people who are very different from their true selves may well be unable to make good judgments about what is in their own best interest. Even if we were to accept this standard as the best way to justify civil commitment, our examination here is still far from complete. This is because, as a matter of legal and political practice, not all changes in character are typically used to explain why particular people should be hospitalized against their will. Indeed, courts consistently return to the same kinds of changes in character to justify civil commitment. If changes in character per se were important, then we might see commitment narratives that focus on changes in religious belief, for example, since such changes potentially reflect a change in one's conception of the good and might indicate mental illness (e.g., some forms of mental illness lead people to believe that they hear God or that they have godlike powers). But this is not a recurring theme in commitment hearings. What we find instead is that when discussions about whether to commit someone zero in on changes in the person's character, they typically focus on changes in either economic functioning or family life. It is significant that commitment narratives refer to changes in these areas and not in others; this explains my inclusion of them (rather than a general change of character) as an implicit justification of civil commitment. 6. Ibid., 126. In the discussion over the next two paragraphs, this case is cited by page number. 7· Much of the forthcoming evidence may strike contemporary readers as insufficient to justify hospitalizing Josiah Oakes. (The same kinds of doubts may strike you about the other illustrative cases, too.) From the court record, it is not even clear whether he was mentally ill, although I suspect he could have had a bipolar disorder, and his family was objecting to his behavior during a manic episode. For this analysis, however, the ontological truth of Oakes's (or any one person's) mental illness matters less than how the court construed it. It is the judge's interpretation of Oakes's behavior that tells us which kinds of personal qualities are necessary to maintain the standing of full citizenship and to retain all its attendant rights. 8. In re Billie Boggs, transcript of hearing, Supreme Court of the State of New York, County of New York, Special Term, Part 2 (November 5, 1987), 378. 9· Although a "change in character" is not New York's standard for as-

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Notes to Pages 94 to 96

sessing committability, Justice Ross seems to appeal to this standard here. Still it is important to pay attention to the kind of evidence brought to support the claim of a change in character. In this case, the evidence focuses on Brown's economic deficiencies. 10. In re Boggs, 132 A.D. 2d 340, 366 (1st Dept. 1987). 11. In re Boggs, 366. See also the discussion on 363: "The undisputed evidence ... indicates that Ms. Boggs held responsible employment until1984. Following that time, her mental condition began to deteriorate, causing her admission to East Orange Hospital in 1985, and finally culminating in her involuntary commitment to Bellevue on October 28, 1987." Again, Ross contrasts the Brown who held responsible employment with the committable Brown who did not hold responsible employment. 12. In re Boggs transcript, 47*, 54-55*, 142*, 550. Page numbers with an asterisk are from November 2. On subsequent days, the court reporter repeated many of the page numbers already used on November 2. 13. Testimony of Robert Gould, In re Boggs transcript, 299. 14. Testimony of Joyce Brown, In re Boggs transcript, 373· 15. Testimony of Albert Sabatini, In re Boggs transcript, 184-85. 16. In re Boggs transcript, 293. 17· It is interesting to note that the designating psychiatrist from Project HELP who filled out the form justifying her involuntary transfer to and evaluation at Bellevue began his description of her danger-to-self by writing that "This lady has a well-documented history of homelessness." Form OMH 471B (Application for Hospitalization), completed by Lincoln Hess for admission under New York State Mental Hygiene Law sec. 9·37 of Billie Boggs a.k.a. Ann Smith to Bellevue Hospital Center, dated October 28, 1987. What are we to make of this diagnosis? In some cases, homelessness is a sign that a mentally ill person has deteriorated and could benefit from psychiatric help. In fact, Rael Jean Isaac and Virginia C. Armat come close to claiming that Brown's homelessness demonstrates the mental illness that renders her committable. Brown's sisters told them that Brown was consistently unwilling to pay rent, and that is why she was homeless. Isaac and Armat implicitly link Brown's unwillingness to pay rent with her mental illness and homelessness when they note that there was "considerable irony in Brown's solemn words ... 'My problems were not that I was mentally ill, my problems were that I did not have a place to live.'" Isaac and Armat, Madness in the Streets: How Psychiatry and the Law Abandoned the Mentally Ill (New York: Free Press, 1990), 347· But mental illness does not necessarily lead to homelessness. There are people whose mental illness makes them more vulnerable to homelessness, but this need not imply that the mental illness per se causes homelessness. In fact, most mentally ill people are domiciled. See G. Sullivan, A. Burnam,

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and P. Koegel, "Pathways to Homelessness among the Mentally Ill," Social Psychiatry and Psychiatric Epidemiology 35, no. 10 (October 2000): 44, arguing that mental illness may play a role in initiating homelessness for some, but is unlikely in and of itself to be a sufficient risk factor for homelessness. The claim of a causal link between homelessness and mental illness is also unfounded. True, dire poverty-involving homelessness or not-is a major life stressor. This can, in tum, make some people more vulnerable to some forms of mental illness. But poverty and homelessness need not lead to mental illness, and in fact most homeless people are not mentally ill. As a general matter, and Dr. Hess's observation about Brown's homelessness notwithstanding, homelessness should not affect committablity per se, although a candidate's attitudes toward and decisions about his or her own homelessness may well provide important information about the person's suitability for involuntary hospitalization. 18. See Robert E. Gould and Robert Levy, "Psychiatrists as Puppets of Koch's Roundup Policy," New York Times, November 27, 1987, op-ed page, arguing that it is "quite possible to mistake homeless, unconventional or unesthetic behavior for serious pathology. An invasion of a homeless person's privacy may provoke hostility or verbal abuse, as it did with Ms. Brown, yet not indicate pathology." 19. 132 A.D. 2d, 365. 20. In re Oakes, 8 L. Rep. (Chandler) 126 (Mass. 1845). Note that the opinion reads that he spent the night at "a house ... in the company of the person to whom he afterwards became engaged." The court calls the location "a house," not "the house of" or "the home of." It also calls the fiancee a "person" and not a "woman." Although the court never says it directly, these locutions, combined with its citation of the charges against the woman for "lewd conduct," imply that the woman was a prostitute. Again, the court's unspoken implication here is that his involvement with a prostitute shows Oakes to be less than successful in fulfilling his role as a family man. 21. Ibid., 127. 22. Ibid. 23. It is plausible to interpret the evidence the court cites in a way that makes Oakes look much more "ordinary." For example, perhaps Oakes was deeply upset by his wife's illness and death. Perhaps he was deeply in love with her and did not want to lose her. Or, maybe he did not want her vulnerability to remind him of the possibility of his own mortality-something that frightened him a great deal. If either of these feelings motivated him, he may well have avoided his wife as she lay dying and dead in order to avoid confronting his fears of losing her and/ or of dying himself. Similarly, his involvement with a younger woman may have served both to get him away from the demise of the family he loved and to reconnect him to life.

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Notes to Pages 97 to 99

24. Testimony of anonymous sister, In re Boggs transcript, 274-75. 25. Ibid., 273-74. 26. In re Boggs transcript, 273. 27. 132 A.D. 2d, 366. 28. Josh Barbanel, "Forcibly Detained Woman Identified: Sisters Identify Woman Taken from the Street," New York Times, November 5, 1987,

BL

29. Ibid., B2. 30. Interview with Joyce Brown's sisters, February 25, 1989, discussed and quoted in Isaac and Armat, Madness in the Streets, 258-59. 31. 422 u.s. 563 (1975). 32. Ibid., 576. 33· Project Release v. Prevost, 722 F.2d at 972. 34· Matter of Harry M., 96 A.D. 2d 201, 206 (1983), 208. 35· Matter of Carl C., 126 A.D. 2d 640 (1987); emphasis added. 36. Maureen McLeod and Vladimir Milstein, "Impact of the Legal System on Treatment," in Intensive Treatment of the Homeless Mentally Ill, ed. Steven Katz, David Nardacci, and Albert Sabatini (Washington, D.C.: American Psychiatric Press, 1993), 35· 37· Brown and her attorney refuted each of these arguments, arguing that (1) each action had a rational explanation, and (2) she was a survivor, whether measured immediately or over the reasonably foreseeable future. See chapter 1 for more details. 38. In re Boggs transcript, 282. 39· Levy, closing argument, In re Boggs transcript, 543, 539-40, citing O'Connor v. Donaldson, 422 U.S. 563 (1975). 40. In re Boggs, 136 Misc. 2d 1082, 1090 (1st Dept. 1987). 41. For example, New York State Senate Bill S-7009 passed the Senate on April28, 1986; see also S-235 and A-6352, introduced in 1987. New York State Legislative Record and Index (Albany: State of New York), 1986 and 1987 editions. 42. For example, New York State Assembly Bill A-5490 in 1986 and A-635 in 1987. Ibid. 43· "This existing law with its limitations ... sentences thousands of [homeless] people to a slow, painful death on the streets of New York City. They are suffering and dying-not imminently [as the law now demands for involuntary commitment]-but week by week, month by month, year by year. As long as they choose to refuse help which is offered, they die slowly and quietly. And there's nothing anyone can do for them under the current law." Remarks by Mayor Edward I. Koch at Annual Meeting of the Coalition of Voluntary Mental Health, Mental Retardation and Alcoholism Services, Inc., June 28, 1983, 5·

Notes to Pages 99 to

103

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44· Bruce Lambert, "Psychologists Back Koch's Policy on Hospitalizing Homeless People," New York Times, September 1, 1987, A1. 45· Suzanne Daley, "New York Expands Treatment Policy for the Homeless: Mentally Ill to Be Hospitalized Involuntarily if They Can't Care for Themselves," New York Times, August 29, 1987, 1, 30. 46. Holstein, Court-Ordered Insanity, 55; LaFond and Durham, Back to the Asylum, 141-43; Virginia Hiday, "Arrest and Incarceration of Civil Commitment Candidates," Hospital and Community Psychiatry 42, no. 7 (1991): 729; and Warren, Court of Last Resorts. 47· LaFond and Durham, Back to the Asylum, 141. 48. Ibid., 141-42 (cites omitted). 49· Note, "Developments in the Law: Civil Commitment of the Mentally Ill," Harvard Law Review 87 (1974): 1190, 1236. They go on to note that "some types of behavior, even if virtually certain to occur, may present too minimal a threat to society ever to justify indefinite confinement for the protection of others" (cites omitted). See also John Monahan and David B. Wexler, "A Definite Maybe: Proof and Probability in Civil Commitment," Law and Human Behavior 2, no. 1 (1978): 37, 39 ("the individual's dangerousness to society ... presumably depends not only on the probability of the predicted harm but also on its magnitude." Hence, the dangerousness of a potential political assassin or mass murderer could be calculated "pursuant to a standard of predictive accuracy substantially lower than would be required to confine a person potentially dangerous to property.") 50. Alexander D. Brooks, Law, Psychiatry, and the Mental Health System (Boston: Little, Brown, 1974), 68o-82. 51. Note, "Involuntary Civil Commitment: The Dangerousness Standard and Its Problems," North Carolina Law Review 63 (1984): 241, 249. 52. Jacobellis v. Ohio, 378 U.S. 184, 197 (1964) (Stuart, J., concurring). 53· The most recent work by a leading scholar on the prediction of violence in the mentally ill suggests that actuarial predictions provide the most accurate way to anticipate future violence. This kind of prediction may or may not tell us about the moral capacities of particular people who are mentally ill however. See John Monahan, "Violence and Mental Disorder: Recent Research," in Understanding and Treating Violent Psychiatric Patients: Progress in Psychiatry, #6o, ed. Martha L. Crowner (Washington, D.C.: American Psychiatric Press, 2000), and "Actuarial Support for the Clinical Assessment of Violence Risk," International Review of Psychiatry g, nos. 2-3 (June-September 1997): 167. 54· In re Oakes, 129. 55· Ibid.; emphasis added. 56. Jane F. Putnam, CSW, Project HELP Coordinator, memorandum to Luis R. Marcos, Vice President, Mental Health Services [of HHC], via Neal

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Notes to Pages 103 to

105

L. Cohen, Director, Department of Psychiatry [of Gouverneur Hospital], January 22, 1988. 57· Form OMH 471B (Application for Hospitalization). 58. Testimony of Maeve Mahon, In re Boggs transcript, 135*. 59· Eben Shapiro, "Fear Returns to Sidewalks of West g6th Street along with Homeless Man," New York Times, August 26, 1992, B3; Celia W. Dugger, "Threat Only When on Crack, Homeless Man Foils System," New York Times, September 3, 1992, A1. 6o. Testimony of anonymous psychiatrist, In re Boggs transcript, 56*, 72*, 76*. 61. Of course, Brown's case was also complicated by the fact that the judges and attorneys involved disagreed about both the standards that should apply and how she measured up to those standards. In other words, they (implicitly) disagreed about whether economic sufficiency mattered for civil commitment, and they also disagreed about whether Brown was economically deficient. What matters most for the general analysis is their disagreement about the standards. Nevertheless, we should not be surprised by their disagreement over the facts. Even though the facts of her case seem to be a distinct analytic matter, I suspect that the two sets of disagreements overlap-that those involved in the litigation construed the facts in such a way as to make her fit (or not fit) the standards as they construed them. This is true not only about Brown's case, of course, but about other cases of civil commitment as well. 62. Humphrey v. Cady, 405 U.S. 504, 509 (1972); emphasis added. 63. Ibid., 504 n. 4·

6. TO QUALIFY RIGHTS IN CIVIL COMMITMENT Thank you to David Orentlicher for helping me clarify my thoughts on this matter. 2. For a discussion of how I use the term "citizen," see the introduction to this volume. 3· The Politics of Aristotle, ed. and trans. Ernest Barker (London: Oxford University Press, 1946), 944· Ibid., 101. 5· Judith N. Shklar, American Citizenship: The Quest for Inclusion (Cambridge: Harvard University Press, 1991), 1: "In America [citizenship] has in principle always been democratic, but only in principle .... [C]laims for freedom and political equality were played out in counterpoint to chattel slavery.... The equality of political rights, which is the first mark of American citizenship, was proclaimed in the accepted presence of its absolute denial." See also Rogers M. Smith, Civic Ideals: Conflicting Visions of Citizenship in U.S. History (New Haven, Conn.: Yale University Press, 1997). CHAPTER 1.

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6. Mark E. Brandon, Free in the World: American Slavery and Constitutional Failure (Princeton, N.J.: Princeton University Press, 1998). 7· Of course, some rights presuppose moral qualities, such as intrinsic human dignity, rather than moral capacities per se. This is true, for example, of the right not to be tortured or the right not to be killed. In these cases, others have duties toward us regardless of our moral capacities. Because such rights are not typically at stake in civil commitment, I have saved analysis of them for another discussion. As Loren Lomasky argues, however, it is important to recognize that an adequate justification of rights is rarely-if ever-entirely internalist, that is, premised on whether "a being either has or does not have the crucial property that confers rights." Lomasky, Persons, Rights, and the Moral Community (New York: Oxford University Press, 1987), 189. One reason internal qualifications are necessary but not sufficient to justify the ascription of rights is that rights are, by their very nature, a moral relationship. To claim a right is to impose a duty on someone else. To link internal personal qualities with the imposition of duties on others necessarily involves a moral relationship, and relationships are almost always governed by social norms, practices, and/ or understandings. Hence, as important as it is to identify the moral (or, for Lomasky, "internalist") qualifications for rights, those qualifications need to be understood in light of the social practices that help the qualities impose duties on others. 8. W.N. Hohfeld, Fundamental Legal Conceptions (New Haven, Conn.: Yale University Press, 1919). 9· Some patients may enjoy privileges to leave the hospital temporarily, but even so, they are only privileges. The person has lost the right to leave, and can only leave with a physician's permission. 10. Of course, liberty is not the only political value implicated in civil commitment. Other values include (but are not limited to): autonomy, wellbeing, capacity to lead a good life, ability to deliberate and/ or to participate in politics. Some people might argue that some of these values matter more than liberty, and so should be taken into account when assessing the justice of particular standards for civil commitment. After all, decisions about involuntary hospitalization may require us to trade off some values against others (e.g., sacrifice some liberty in order to nurture and augment future autonomy). That may well be true, although my analysis need not reach that far. For my purposes, it is sufficient to point out the stakes of civil commitment in terms of liberty so that we may put that assessment on the table when deciding whether civil commitment is a justifiable practice. Moreover, my goal is not to justify the practice of civil commitment per se, but rather to evaluate how arguments about civil commitment reveal heretofore implicit political assumptions and values about who qualifies for rights.

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to 116

11. Shklar, American Citizenship, 63. 12. Ibid. 13. Ibid., 99· 14. Ibid., 98. 15. Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition (DSM-IV) (Washington, D.C.: American Psychiatric Association, 2000), 339-45· 16. Ibid., citing the Global Assessment of Functioning Scale. 17- Form OMH 471B (Application for Hospitalization), completed by Lincoln Hess for admission under New York State Mental Hygiene Law sec. 9·37 of Billie Boggs a.k.a. Ann Smith to Bellevue Hospital Center, dated October 28, 1987. Joyce Brown used the pseudonym Billie Boggs when she was committed in October 1987. 18. According to the constraints implied by the second generic principle developed above, this statement would only remain true as long as the person exercising her liberty did so in a way that did not violate the rights of others. 19. According to the American Psychiatric Association, unemployment and poverty are examples of severe psychosocial stressors. See DSM-IV, 32. 20. Of course, it is true that mental illness may remove inhibitions that keep people from expressing their feelings. But again, it is important to note that we only seem to commit for instances of bad feelings toward family members and not, say, toward the other members of one's church. 21. References to the potential patient's relations to her family are a common rhetorical device in commitment hearings. See James A. Holstein, Court-Ordered Insanity: Interpretive Practice and Involuntary Commitment (New York: Aldine de Gruyter, 1993), 166-72. As I have suggested, however, such rhetoric reflects important legal and moral assumptions that merit careful analysis. 22. In fact, the United States has a long (and relatively recent) history of allowing husbands to have their wives committed for not fulfilling their "wifely duties." See Carol A. B. Warren, Madwives: Schizophrenic Women in the 1950s (New Brunswick, N.J.: Rutgers University Press, 1987); Ellen Dwyer, Homes for the Mad: Life inside Two Nineteenth-Century Asylums (New Brunswick, N.J.: Rutgers University Press, 1987). As a general matter, this kind of evidence no longer suffices to justify commitment. Nevertheless, transcripts of commitment hearings reveal the recurrence-and persistence-of the legal image of the bad family member. See Holstein, Court-Ordered Insanity. 23. Recall that this is the standard that Justice Lippmann invokes in Joyce Brown's case; when he applied it to her, he found she was not com-

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mittable. Justice Lippmann, however, does not link the grounds of the standard with the qualifications for rights, which is our focus here. 24. John Q. LaFond and Mary L. Durham, Back to the Asylum: The Future of Mental Health Law and Policy in the United States (New York: Oxford University Press, 1992), 141-42 (cites omitted). 25. John Monahan, "The Prediction of Violent Behavior: Toward a Second Generation of Theory and Practice," American Journal of Psychiatry 141 (1984): 10, cited in Randy K. Otto, "On the Ability of Mental Health Professionals to 'Predict Dangerousness': A Commentary on Interpretations of the 'Dangerousness' Literature," Law and Psychology Review 18 (1994): 43· 26. John Monahan, The Clinical Prediction of Violent Behavior (Rockville, Md.: United States Department of Health and Human Services, 1981), 470. 27. Alan M. Dershowitz, "Dangerousness as a Criterion for Confinement," Bulletin of the American Academy of Psychiatry and the Law 2 (1974): 172-'79· 28. Bruce J. Ennis and Thomas R. Litwack, "Psychiatry and the Presumption of Expertise: Flipping Coins in the Courtroom," California Law Review 62 (1974): 693. 29. Otto, "On the Ability," 63. 30. John Monahan, "Actuarial Support for the Clinical Assessment of Violence Risk," International Review of Psychiatry 9, nos. 2-3 (June-September 1997): 167. 31. 17 Cal. 3d 358 (1976). 32. John Q. LaFond, "Law and the Delivery of Involuntary Mental Health Services," American Journal of Orthopsychiatry 64, no. 2 (April 1994): 209, 212-13 (cite omitted). 33· Ibid., 215. 34· Ibid., 216. 35· As it turns out, mental health professionals enjoy few advantages and suffer several disadvantages when it comes to identifying who will act violently. Indeed, there is evidence suggesting that nonprofessionals can predict violent behavior at least as accurately as can mental health professionals. Robert J. Menzies, Christopher D. Webster, and Diana S. Spejakhas found that "nonclinicians, with minimal exposure to forensic patients, can achieve levels of accuracy at least equal to those of psychiatrists demonstrated in earlier work [cites omitted]." Among their disadvantages for predicting violence are their perceived legal liability for false negatives and concerns about undermining the integrity of the doctor-patient relationship. Menzies, Webster, and Spejakhas, "The Dimensions of Dangerousness: Evaluating the Accuracy of Psychometric Predictions of Violence among Forensic Patients," Law and Human Behavior 9, no. 1 (1985): 67. 36. Moreover, Mulvey and Lidz note that "generally unaccounted for or-

t8o

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to

127

ganizational factors" such as medical decision rules, institutional/ regional base lines for treatment decisions, available resources, and accepted practices "introduce some systematic bias into the weighting of case characteristics." Edward P. Mulvey and Charles W. Lidz, "A Critical Analysis of Dangerousness Research in a New Legal Environment," Law and Human Behavior 9, no. 2 (1985): 212, cites omitted. 37- Ibid., cite omitted. 38. See H. L. A Hart, Punishment and Responsibility: Essays in the Philosophy of Law (New York: Oxford University Press, 1968), and Joel Feinberg, Harm to Others: The Moral Limits of the Criminal Law (New York: Oxford University Press, 1984). 39- Allen E. Buchanan and Dan W. Brock, Deciding for Others: The Ethics of Surrogate Decision Making (New York: Cambridge University Press, 1989), 328. 40. Note, "Developments in the Law: Civil Commitment of the Mentally Ill," Harvard Law Review 87 (1974): 1190, 1228. 41. Robinson v. California, 370 US. 66o (1962). 42. See Note, "Developments in the Law," 1229: "Even if states have the power to adopt a prediction-prevention approach to antisocial behavior, they have not chosen to apply it to authorize the confinement of all dangerous persons. Yet every state has enacted commitment laws for the preventive confinement of persons who are adjudicated mentally ill and dangerous to others. Thus, unlike other members of society, the mentally ill may be incarcerated for the protection of the community because of their potential for doing harm rather than because of the harm which they have caused. The equal protection clause demands that such disparate treatment of the mentally ill be justified." 43- These incidents are very rare and receive a disproportionate amount of press. Indeed, recent studies suggest that with the exception of persons suffering from one form of schizophrenia (with paranoia), mental patients are no more violent than others unless they are abusing drugs or alcohol. See John Monahan, "Major Mental Disorder and Violence: Epidemiology and Risk Assessment," in Clinical Assessment of Dangerousness: Empirical Contributions, ed. Georges Franck Pinard and Linda Pagani (New York: Cambridge University Press, 2001); and the MacArthur Violence Risk Assessment Study (data available on-line through links at http:/ I macarthur.virginia.edu/violence.html). See also Paul S. Appelbaum, Pamela Clark Robbins, and John Monahan, "Violence and Delusions: Data from the MacArthur Violence Risk Assessment Study," American Journal of Psychiatry 157, no. 4 (Apri12ooo): 566; and H. Steadman et aL, "Violence by People Discharged from Acute Psychiatric Inpatient Facilities and by Others in the Same Neighborhoods," Archives of General Psychiatry 55 (1998): 393-

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44· Dershowitz, "Dangerousness as a Criterion," 176. Robert Levy of the NYCLU made the same argument when I interviewed him about the case of Joyce Brown and the justifications of civil commitment. Interview with Robert Levy, August 30, 1991. 45· Even if we used a deterrent model of punishment, incarceration of mentally ill persons who acted dangerously would not be justified. It is unlikely, after all, that detention of the violent mentally ill will dissuade either detained or undetained imminent dangers from acting dangerously in the future. If they cannot control their actions, then giving them a disincentive to act in a particular way will be ineffective; these are not people for whom incentives or disincentives make any difference. See, for example, Note, "Developments in the Law," 1235: "The police power commitment test seeks to identify dangerous persons who cannot appreciate the deterrent aspect of the criminal law." From this the author concludes that the standard for police-power commitments should be consistent with those for criminal responsibility. 46. Buchanan and Brock, Deciding for Others, 329. 47· Ibid. The authors go on to illustrate the point by suggesting, admittedly "overdramatically," that "we lock them up as we would a dangerous animal because their behavior cannot be controlled by means of laws appropriate for rational agents. This why many involuntary commitment statutes quite properly require that a person be dangerous to others by reason of mental illness. More specifically, the requirement should be understood to be that persons' mental illness causes them to be both dangerous to others and not in control or nor thus responsible for their dangerous behavior as required under the criminal law." 48. Kozol, Boucher, and Garofalo, cited in Note, "Overt Dangerous Behavior as a Constitutional Requirement for Involuntary Civil Commitment of the Mentally Ill," University of Chicago Law Review 44 (1977): 562, 584. 49· Ibid., 585. 50. Frances Myrna Kamm, "The Insanity Defense, Innocent Threats, and Limited Alternatives," Criminal Justice Ethics 6, no. 1 (winter/spring 1987): 61, 62-63, citing and extending the analysis of Judith Jarvis Thomson, "Remarks on Causation and Liability," Philosophy and Public Affairs 13 (spring 1984): 101-133· 51. Kamm, "Insanity Defense," 65. 52· Ibid., 67-68. 53· Of course, when the state exercises this duty on behalf of a mentally ill person who cannot fulfill his duty toward his fellow citizens on his own, the government must act in such a way that it restricts the person as little as possible. Forcible detention based on police powers is only justified in qualifying those rights the imminent danger cannot exercise without harming oth-

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ers. Unless there is evidence to the contrary, we should assume that the imminent danger may retain all other rights he is qualified to possess. Depriving these people of rights for which they are qualified would amount to unjust punishment and would be morally impermissible. 54· My position that the qualifications for rights should depend on the rights-holder's capacities need not presuppose any particular understanding of rights. As I have assumed throughout the book, the understanding of the foundations of the rights at stake in civil commitment matters less than the fact that the rights are on the line (unless the justification involved a utilitarian calculation for each right for each individual). One might assume that if a person possesses some capacities, she qualifies for the connected rights regardless of where she lives. This need not be true, however, because people's capacities will vary by the nature of the community in which they live and the demands their community places upon them. Moral capacities may well have basic cores to them that do not change, but they also include aspects that are shaped by roles and tasks particular to that community. This is certainly consistent with the American Psychiatric Association's reasoning in allowing for a certain amount of diagnostic leeway when evaluating patients from other cultures. See DSM-IV 55· The classic statement on the dangers of paternalism is from John Stuart Mill's On Liberty. For more recent statements on the justification and limits of paternalism, see Gerald Dworkin, "Paternalism," in Morality and the Law, ed. Richard Wasserstrom (Belmont, Calif.: Wadsworth, 1971); Joel Feinberg, Harm to Self: The Moral Limits of the Criminal Law (New York: Oxford University Press, 1986); and Donald VanDeVeer, Paternalistic Intervention: The Moral Bounds of Benevolence (Princeton, N.J.: Princeton University Press, 1986). 56. '"Rotting with Their Rights On': Constitutional Theory and Clinical Reality in Drug Refusal by Psychiatric Patients," Bulletin of the American Academy of Psychiatry and Law 7 (1979): 306. 57· For an excellent discussion of the use of rights in this way, see Elizabeth Kiss, "Alchemy or Fool's Gold," Dissent 42, no. 3 (summer 1995): 342. 58. See Holstein, Court-Ordered Insanity. 59· See Velmer S. Burton Jr., "The Consequences of Official Labels: AResearch Note on Rights Lost by the Mentally Ill, Mentally Incompetent, and Convicted Felons," Community Mental Health Journal 26, no. 3 (June 1990): 267. 6o. Shklar, American Citizenship, 3· 61. Judith N. Shklar, "Injustice, Injury, and Inequality: An Introduction," in Justice and Equality Here and Now, ed. FrankS. Lucash (Ithaca, N.Y.: Cornell University Press, 1986), 25. 62. Note that I say that unequal rights "run the risk of creating" rather

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than "create" second-class citizenship. Because I contend that the justification of rights turns, in part, on the holder's capacities, it follows that people with different capacities may end up with different rights from their neighbors or family members. That people have different rights from each other need not imply that some sets of rights are better than others or should be held in higher esteem. Second-class citizenship only ensues if stigma attaches, or if the differences lead, whether through social or legal structures, to systematic disadvantage. See Cass R. Sunstein, The Partial Constitution (Cambridge: Harvard University Press, 1993), 338-46. 63. See generally Shklar, American Citizenship, for an illuminating discussion of the devastating effects these social and legal hierarchies have had on the United States and its commitment to equality. CONCLUSION 1. John Locke, "The Second Treatise of Government," in Two Treatises of Government, ed. Peter Laslett (New York: Mentor Books, 1965), 311. 2. David Orentlicher, "The Legalization of Physician-Assisted Suicide: A Very Modest Revolution," Boston College Law Review 38 (1997): 443, 462-67 (on the advantages of ''bright-line" distinctions in the law). 3· Recall, for example, that one of her psychiatrists objected to allowing Brown access to the press because that would feed her delusion that she had been unjustly committed. 4· All states provide committed patients with the right to petition for a writ of habeas corpus (or a way to contest their commitment). What was at stake for Brown was not the right to protest her hospitalization per se, but rather her access to the press. Since most psychiatric hospitals regulate patients' contacts with visitors to some extent (although not all restrict access to the press, as was the case for Brown), the issue remains live for those hospitalized against their will. 5· See Judith Lynn Failer, "The Status of Homelessness in the Criminal Law," in From Social Justice to Criminal Justice: Poverty and the Administration of Criminal Law, ed. John Kleinig and William Heffernan (New York: Oxford University Press, 2000).

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Addington v. Texas, 441 U.S. 418 (1979). In re Ballay, 482 F.2d 648 (D.C. Cir. 1973). Bell v. Wayne County General Hospital, 384 F. Supp. 1085 (E.D. Mich. 1974). In re Boggs, 136 Misc. 2d 1082 (1987), rev'd 132A.D. 2d 340 (1987), appeal dismissed as moot, 70 N.Y. 2d 972 (1988). Boggs v. New York City Health and Hasp. Corp., 132 A.D. 2d 340 (1st Dep't 1987), appeal dismissed as moot, 70 N.Y. 2d 972 (1988). Matter of Carl C., 126 App. Div. 2d 640 (1987). Colby v. Jackson, 12 New Hampshire Reports 526 (1842). Dixon v. Attorney General of the Commonwealth of Pennsylvania, 325 F. Supp. 966 (M.D. Pa. 1971).

Doremus v. Farrell, 407 F. Supp. 509 (D. Neb. 1975). Matter of Harry M., 96 A.D. 2d 201 (2d Dep't 1983). Heryford v. Parker, 396 F. 2d 393 (10th Cir. 1968). Humphrey v. Cady, 405 U.S. 504 (1972). Jacobellis v. Ohio, 378 U.S. 184 (1964). Jacobson v. Massachusetts, 197 U.S. 11 (1905). Lessard v. Schmidt, 349 F. Supp. 1078 (E.D. Wise. 1972), vacated on other grounds, 414 U.S. 473 (1974). Bibliography

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O'Connor v. Donaldson, 422 U.S. 563 (1975). Olmstead v. L. C., 119 S. Ct. 2176 (1999). Parham v. J. R., 442 U.S. 584 (1979). Project Release v. Prevost, 722 F.2d 960 (2d Cir. N.Y. 1983). Robinson v. California, 370 U.S. 66o (1962). Rogers v. Okin, 478 F. Supp. 1342 (D. Mass. October 29, 1979), aff'd 738 F.2d 1 (1st Cir. 1984).

Rouse v. Cameron, 373 F.2d 451 (D.C. Cir. 1966). Sarzen v. Gaughan, 489 F.2d 1076 (1st Cir. 1973). Specht v. Patterson, 386 U.S. 605 (1967). Stamus v. Leonhardt, 414 F. Supp. 439 (S.D. Iowa 1976). Washington v. Harper, 494 U.S. 210 (1990). Wyatt v. Stickney, 344 F. Supp. 373 (M.D. Ala. 1972), aff'd in part and rev'd in part sub nom Wyatt v. Aderholt, 503 F.2d 1305 (5th Cir. Ala. 1974). Youngberg v. Romeo, 457 U.S. 307 (1982). OTHER LEGAL MATERIALS

"Conflict of Laws." 15A Corpus Juris Secundum: A Complete Restatement of the Entire American Law as Developed by All Reported Cases III, sec. 14(1). New York State Mental Hygiene Law. Sections 9.32(a)(1), 9·37, 9·39· Prerogativa Regis, 17 Edw. 1, chap. 9· In The Statutes: From the Twentieth

Year of the King Henry the Third to the Tenth Year of King George the Third, A.D. 1235-1770, 3d rev. ed. Vol. 1. London: His Majesty's Stationery Office, 1950. INTERVIEWS

Gould, Robert. Professor of Psychiatry, New York Medical College. September 1991. Levy, Robert. Staff Attorney, New York Civil Liberties Union. August 1991. Lippmann, Robert. Justice, Supreme Court of the State of New York. September 1991. Marcos, Luis V. Vice President of Mental Health, New York City Health and Hospitals Corporation. August 1991. McLeod, Maureen. Attorney, New York City Health and Hospitals Corporation. October 1991.

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In re Billie Boggs, transcript of hearing, Supreme Court of the State of New York, County of New York, Special Term, Part 2. November 2, 4, and 5, 1987. Coumos, Francine. "Interview and Review of Records of Billy Boggs." Handwritten document, January 14, 1988. Copy of document in author's possession. Form OMH 471B (Application for Hospitalization), completed by Lincoln Hess for admission under New York State Mental Hygiene Law sec. 9·37 of Billie Boggs a.k.a. Ann Smith to Bellevue Hospital Center. October 28, 1987. Koch, Mayor Edward I. "Remarks by Mayor Edward I. Koch at the Annual Meeting of the Coalition of Voluntary Mental Health, Mental Retardation and Alcoholism Services, Inc." June 28, 1983. - - . "Remarks by Mayor Edward I. Koch at the National Press Club." January 6, 1988. - - . "Remarks by Mayor Edward I. Koch on 1010 WINS Radio." August 29, 1987. Linville, John E. Memorandum from John E. Linville, Vice President, Legal Affairs, and Luis R. Marcos, Vice President, Mental Hygiene Services, New York City Health and Hospitals Corporation, to Directors of Psychiatry. September 9, 1987. "Program for Strengthening Services to the Homeless Mentally Ill in Need of Psychiatric Hospitalization." Not dated. Copy of document in author's possession. Putnam, Jane F., CSW, Project HELP Coordinator. Memorandum to Luis R. Marcos, Vice President, Mental Health Services [of HHC], via NealL. Cohen, Director, Department of Psychiatry [of Gouverneur Hospital]. January 22, 1988. Task Force to Study the New York Mental Hygiene Law. Report of the Task Force to Study the New York Mental Hygiene Law to Mayor Edward I. Koch. Draft, May 1985.

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195

Index Ackerman, Bruce, 159n. 52 Allen, C. K., 15g-6on. 1 American Bar Association, 81 Appelbaum, Paul, 171n. 74 and Thomas Gutheil, 134 Aristotle, 54, 58-59, 111 Annat, Virginia C. See Isaac, Rae! Jean "bad family member." See "person in need" Barber, Sotirios A., 8-10 Berlin, Isaiah, 46, 52 Blackstone, William, 69, 164n. 4 Blunt, Sir Thomas Pope, 59, 6o Boggs, Billie, 11-15, 17-18, 179n. 17. See also Brown, Joyce Boggs, Billie, In re, 25-26, 102-3, 173n. 11, 17g-8on. 23 transcript of, 153n. 27 Boggs v. Health and Hospital Corp., 26-27, 96,100, 172n. 9 Brandon, Mark E., 112, 150n. 30 Brock, Dan W. See Buchanan, Allen E. Brooks, Alexander, 104-5 Brown, Joyce, 148-49n. 23, 153nn. 30, 35, 184n. 3 as "bad family member," 99-100 case of, significance of, xi, x, 1, 3, 5-6, 51-52 commitment hearing of, 17-26, 49-52, 119 as danger to others, 24, 25 as danger to self, 2o-25 as "danger waiting to happen," 105-6 as "economically deficient person," 95-97,119-20,139,177n.61 and effects of commitment, 140 as "imminent danger," 106

legal appeals of, 26-28 legal image of, 106--7, 139 life after commitment of, 28 medicating, 27 as mentally ill, 18-20 as "nonsurvivor," 102-3 as "sufferer," 103-4 Buchanan, Allen E., and Dan W. Brock, 128, 13o-31, 158n. 40, 182n. 47 Burton, Velmer S., Jr., 146 n. 8

Carl C., Matter of, 90-91, 101-2, 107, 17~1n.73

Chesler, Phyllis, 149n. 23 citizenship and legal status, 136, 164n. 49 and rights, 111-16, 183-84n. 62 U.S. conceptions of, 2-3, 8, 62-63, 109, 111-14, 147-48n. 18, 184n. 63 civil commitment dangers of, 168n. 50 history of, xi, 68-gt, 164n. 1 and legal status, 4, 8, 65-67, 108 practice of, 7-9, 74, 92-108, 171 n. 1, 172nn. 5, 9, 178n. 10 role of law in, 171 n. 1 See also "dangerous person"; "person in need" civil commitment law efforts to change, 14-15,88-89, 103, 152n. 15, 168n. 48, 170nn. 65-66 loose standards for, 71-79 need-for-treatment standard in, 7g-81, 86,87 procedural protections in, 74,78-79, 83-86, 134-35, 157n. 32, 16gn. 54 and rights-talk, 81-82 Cohen, Howard, 156nn. 28,30

197

Colby v. Jackson, 73-75, 77-78, 107 Congress on Mental Hygiene, 79 Coumos, Francine, 27 Cover, Robert M., 15on. 31 Dain, Norman, 164n. 1 dangerousness, 104-5, 176nn. 49, 53, 180 n.35,182nn.45,47 "dangerous person," 92, 104--6 as "danger waiting to happen," 104-8, 110, 124-29 as "imminent danger," 104, 106, 129-34, 135, 156n. 30, 182n. 45, r82-83n. 53 "danger waiting to happen." See "dangerous person" deinstitutionalization, 87-88, 91 Dershowitz, Alan, 30, 130, 156n. 30 Deutsch, Albert, 73, 164n. 1 Durham, Mary L. See LaFond, John Q. Dworkin, Ronald, 5, 159n. 49 Dwyer, Ellen, 166n. 31 "economically deficient person." See "person in need" Ennis, Bruce, 125 Etzioni, Amitai, 157n. 35

Health Hospital Corp (HHC), 13, 15-17, 26-27,49-50,151n. 12 Heryford v. Parker, 168-69n. 51 Hess, Lincoln, 173n. 17 Hogue, Larry, 106 Hohfeld, Wesley Newcomb, 47-48, 53, 157n. )6 Holdsworth, W. S., 59, 63--64, 16on. 14, 161n. 23 Holstein, James A., 147n. 12, 154n. 1, 171n. 1, 179nn. 21,22 Homelessness and legal status, 61 and mental illness, 173-74n. 17 role in civil commitment of, ix-x, 1}-17,24-26,88-g1,97,17D--71n.73, 173-74n. 17 Humphrey v. Cady, 86, 108, 169n. 56 Hundley, PaulL., 171n. 1 "imminent danger." See "dangerous person" involuntary hospitalization. See civil commitment Isaac, Rae! Jean, and Virginia C. Armat, 165-66n. 29, r67n. 39, 168n. 48, 173 n.17

Jacobellis v. Ohio, 176n. 52 Feinberg, Joel, 46, 155-56n. 27 Fleming, James E., 8-10 Foucault, Michel, 148-49n. 23 full citizenship and the civilly committed, xi, 7-8, 29, 167n. 46 legal visions of, 146 n. 9 method for analyzing, 147n. 11 qualifications for, 1-5, 108, no--11 Geller, Jeffrey L., 149n. 23 Gould, Robert E., 18-19, 21, 23-24, 97, 153n. 29, 174n. 18 Gutheil, Thomas, 134 Graveson, R. H., 57-58, 59, 61, 63, 146n. 10, 15g--6on. 1, 162n. 27 Grob, Gerald, 62, 72,78-81, 164n. 1, 166 n.)1 Hale, Sir Matthew, 161 n. 24 Harris, Maxine, 149n. 23 Harris, William F., II, 8-10, 145 n. 4, 149-50n. }0 Harry M., Matter of, go--g1, 107

198

Index

1Camrn,Frances, 132-33 1Cant, Immanuel, 29-30, 35-43, 44-45, 51-52, 6), 1)8, 142, 154n. 11, 155nn. 16,17 1Cellerrnan, Sara, 13, 151 n. 11 K.iss, Elizabeth, 183 n. 57 1Cittrie, Nicholas, 72""'i3 Koch, Mayor Edward, 5, 11, 14-17, 89, 103-4, 175 n. 43 1Corsgaard, Christine M., 158n. 40, 159n. 51 . LaFond, John Q., 126 and Mary L. Durham, 47, 92, 157n. 34 Law of Persons, 59, 64 legal images, xi, 92-108, rog-10, 139, 142-44. See also "dangerous person"; "person in need" legal status, x, 3-4, 7-8, 56-67, 108 biological basis for, 148 n. 20 and bundles of rights, 66--67, 142 definition of, 57-58 economics' role in shaping, 61, 62--63

history of, 56, 57, 58--63 incidents of, 146 n. 10 and the mentally ill, 63-67, 163nn. 44-46 and natural incapacity, 59-60, 64-65, r6on. 4, r6o-6rn. 17 and normal persons, 6o--64 social basis for, 6o Lessard v. Schmidt, 87, r68n. 50 and "imminent danger," 1o6, 107, 129, r68--69n. 51, 169-7on. 58 and procedural rights, 83-85 Levy, Robert, 17-26,49-50, 102, 151 n. 11, 163n. 47, 159n. 50, 182n. 44 and Robert E. Gould, 174n. 18 Lewis, Dan, 162n. 33 Liberty. See right to liberty Lidz, Charles W. See Mulvey, Edward P. Linville, John E., 16 Litwack, Thomas, 125 Locke, John, 29-32,43-48, 51-52, 138, 142, 154nn. J, 7 Lomasky, Loren, 178 n. 7 Lynch v. Baxley, 85-86 Macedo, Stephen, 46 Mahon,Maeve,19,21,22,23 Maine, Sir Henry Sumner, 61, 64 Maitland, Frederic William. See Pollock, Sir Frederick Marcos, Luis V., 13, 16, 17, 151n. 11 McLeod, Maureen, 18-26, 49, 50, 102, 158n. 46, 159n. 50 and Vladimir Milstein, 102 medication, side effects of, 153 n. 39 Mend us, Susan, 39, 155 n. 14 Menzies, Robert J., r8on. 35 Mill, John Stuart, 29, 30, 32-35, 43-46, 48, 51-52, 138, 142, 183 n. 55 Minow, Martha, r6on. 8 Monahan, John, 104-5,125-26, 176n. 53, r81n. 43 and David B. Wexler, q6n. 49 moral personhood, xi, 52-53, 141-44 Mormon Church v. United States, 69-70, 164n. 9 Morse, Stephen J., 156n. 30 Mulvey, Edward P., and Charles W. Lidz,r26-27,r8o--81n.}6 Murphy, Walter F., 8-ro National Institute of Mental Health (NIMH), So

New York Civil Liberties Union (NYCLU), 5, 16-17, 100 New York State Commission on Lunacy, r66n. 32 "nonsurvivor." See "person in need" normal person, 57-58, 6o-64 Oakes, In re, 75-78, 94-95, 98-99, 105, 107, 148n. 2}, 172nn. 5, 7' 174nl1. 20,23 O'Connor v. Donaldson, 86-87, 101, 107, 12}-24 Olmstead v. L.C., 157n. 31 Orentlicher, David, 145-46n. 5, 184n. 2 Packard, Elizabeth, 78 parens patriae in commitment law, 74-77, So--83, 88-8?,89,91,166-67n·37 origins of, 68-69 and "person in need," 92, 103, 107 Parry, Charles D. H., 171 n. 1 paternalism, 134, 167n. 47, 183 n. 55 paternal rights, x, 47-50, 82, 148 n. 22, 157n. 34, I67nn. 45,47 Perlin, Michael L., 163n. 47 personhood, changes in views of, 62-63 "person in need," 92-93 as "bad family member," 94, 98-100, 10?-8, 110, 122, 17D--71n. 73, 179nn. 21-22 as "economically deficient person," 94-97, 107, 110, 117-22, l?On. 73 as "nonsurvivor," 94, 101-3, 107, 110, 123-24,135 as "sufferer," 94, 103-4, 110, 122-23 police powers in commitment law, 74-77, So, 82-83, 87, 107, 166-67n. 37, 167n. 39 and dangerousness, 127-28, 131, 132, 18211. 45 and "dangerous person," 92, 104, 182-83n. 53 origins of, 68, 7o--71 persistence of, 91, 92 Pollock, Sir Frederick, 64-65 and Frederic William Maitland, 6o, 161n. 23 Polydore v. Prince, 161 n. 17 Pound, Roscoe, 62-63, 64 Prerogativa Regis, 68-69 preventive detention, 127-29, 131-34

Index

199

Project HELP, 11-24, 26, 96, 106, 15onn. 1, 4, 151 nn. 11, 12, 173 n. 17 HELP I, 13-14, 17 HELP II, 15-17 Project Release v. Prevost, 89, 9CJ--91, 101, 107 qualified rights, 109-36, 137-44, 178n. 7, 183n. 54, 183-84n. 62 for "bad family member," 122 for "danger waiting to happen," 124-29 for "economically deficient person," 117-22, 143 for "imminent danger," 129-34 for "nonsurvivor," 123-24 for "sufferer," 122-23 Rawls, John, 46 regular rights, x, 4, 7, 148n. 22 standards for, 4, 48-55 rights civil, 6, 53-54, 138 constitutional, 6 effects of qualification, 135-36 human, 6, 147-48n. 18 importance of, 14o--41 language of, 5-8,29,52-5 5, 81-82, 85-87, 157n. 34, 158n. 46 lost in civil commitment, 2 moral, 6 moral capacities for, 113-15, 117, 139-40 and mutual recognition, 112-13 procedural, 83-86, 168--Q9n. 51, 169n. 54 and rationality, 44-46, 48 to treatment, ix, x, 5, 17, 47, 156-57n. 31, 167--{)Sn. 47 to treatment decisions, 158n. 40 two-tiered system of, 46-52 rights, bundles of, 138-41 and citizenship, 2, 164n. 49 and civil commitment, 49, 121-22, 135 and justification of rights, 54-55 andlegalstatus,7,56-58,82,137 and mental illness, 65--{)7, 163nn. 44, 47

200

Index

rights, for children and bundles of rights, 2, 141, 156nn. 28, JO, 16o--{)1 n. 17, 162n. 33 and full citizenship, 144 Kant on,4o and legal status, 59-6o, 64, 138-39 rights, for women in civil commitment, 78, 122, 179n. 22 and full citizenship, 144 and legal status, 59--Qo, 64, 16o--{)1 n. 17, 162n. 32 Locke on, 154n. 3 voting, 62 right to liberty, ix, x, 2, 115-16, 49, 12o--21,122 for "dangerous person," 124-34 for "person in need," 117-24 Rothman, David, 164n. 1 and Sheila M. Rothman, 167n. 41 Sabatini, Albert, 18, 97 Shklar, Judith, 3-4, 47, 48, 117-18, 135-36, 147n. 17, 177n. 5 Siegel, Norman, 16, 100 Smith, Ann, 11-15, 17- See also Brown, Joyce Smith, Rogers M., 148-49 n. 23 Spejakhas, Diana S., 180 n. 35 Status. See legal status Statute of Labourers (1351), 6o "sufferer." See "person in need" Szasz, Thomas 5., 156n. 30

Tarasoff v. Regents of University of California, 126

Tarfon, Rabbi, xii Torrey, E. Fuller, 153n. 39 Treatment, right to. See rights Tsemberis, Sam, 151n. 5 Turkeimer, Eric, 171n. 1

U.S. Constitution, 2-3, 8-10, 159n. 54, 162n. 28 Vagrants Act, 75 Webster, Christopher D., 18on. 35 Weiner, Barbara, A., 156-57n. 31 Weissbourd, Robert, 163n. 45 Wexler, David B., 176n. 49