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Some thoughts on Graham and Comstock

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Monday's decisions in the Graham and Comstock cases represent the latest edition in the Court's jurisprudence (albeit indirectly) on mental health law.  What is fascinating about this area of the law is how much it changes how we think about the criminal-civil divide.  Conventional wisdom holds that the nexus between mental illness and criminal justice shifted during the era of deinstitutionalization of the 1960s and 1970s.  This is surely true on many levels but it's often asserted as a straightforward matter:  with the emptying of state psychiatric hospitals the criminal justice system has simply absorbed those who have trouble controlling their behavior.   That is, institutionalization has remained steady - all that's changed is what institution is doing the heavy lifting.   And while there's some merit behind that idea it obscures the larger picture.  What has really changed during the past fifty years is how we think about crime, punishment and responsibility.


The 1960s witnessed a surge of penological interest in rehabilitation moderated through the social sciences.  But with the sharp increase in violent crime that accompanied the 1960s, that trend reversed itself quite strongly during the late 1970s and the ensuring decades of the 80s and 90s.  This accompanied the landmark decisions of O'Connor v. Donaldson and others which hastened the exodus of people with mental illnesses from state hospitals.   The concerns heavily implicated in decisions like Donaldson was that civil commitment often amounted to lifetime commitment without any meaningful judicial review - that those who suffered from mental illnesses and problematic behaviors faced endless confinement without any real treatment.   Similar concerns run through the majority's opinion in Graham:

A sentence of life imprisonment without parole, however, cannot be justified by the goal of rehabilitation. The penalty forswears altogether the rehabilitative ideal. By denying the defendant the right to reenter the community, the State makes an irrevocable judgment about that person's value and place in society. This judgment is not appropriate in light of a juvenile nonhomicide offender's capacity for change and limited moral culpability. A State's rejection of rehabilitation, moreover, goes beyond a mere expressive judgment. (Graham pp.22-23).

Quite plainly the Court in Graham was troubled by sentences of LWOP for juveniles because it permanently foreclosed rehabilitation for these offenders.  In other words, it was a rebuke of the message that retribution and incapacitation make in assessing as appropriate lifetime incarceration for some juvenile offenders irrespective of their future conduct.   But on the same day that Graham was decided, the Court also passed judgment on the civil commitment of sex offenders in the Comstock case.   And while the issue before the Court in Comstock was not whether civil commitment was constitutionally permitted per se, it followed a series of prior holdings which did.  In these prior cases the Court has found no constitutional violation for civil commitment statutes which provide for indefinite confinement of sex offenders after completion of their criminal sentences because the confinement is civil rather than criminal in nature and presumably such confinement entails rehabilitation instead of punishment.   Yet the Court surely knows that the reality of these commitments is quite less than its rhetoric:  there is little effective treatment for those with sexual disorders which meet the statutory criteria of mental abnormality upheld by the Court in Hendricks and Crane.  What is called rehabilitation is really lifetime commitment with modest judicial review.   

And that's the rub.  What Graham and Comstock really might be saying is that lifetime confinement is permissible as long as it takes place in the civil sphere under the guise of rehabilitation and mental health.  A cynical view might be that the outcome of lifetime confinement which forecloses meaningful rehabilitation is permissible as long as it is communicated as a therapeutic sentence instead of punishment - that it is civil instead of criminal.   By so doing, however, it ignores the expressive function of punishment and the dangers inherent in allowing lifetime confinement for behaviors deemed mental illnesses by experts who are outside of the political process.  Graham and Comstock might be more about the process of lifetime confinement than its substance.

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My favorite part of the Hendricks opinion:

Hendricks readily agreed with the state physician’s diagnosis that he suffers from pedophilia and that he is not cured of the condition; indeed, he told the physician that “treatment is bull——.”

Kansas v. Hendricks, 521 U.S. 346, 355 (1997).

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