Alberta Lessard has died. Lessard was the plaintiff in the landmark case that carries her name that dramatically changed the way civil commitment is handled in the United States. Before Lessard, people with mental illness were routinely committed to mental hospitals on the basis of informal testimony of a psychiatrist without much opportunity to oppose the proceedings. It was a system that didn't take seriously the right to be free from forced confinement by the government and the propensity of such a system to allow people committed to the asylums to linger regardless of their improved mental health. In short, it was a system that needed reform.
But the Lessard decision has a dark side. It changed the way we think about civil commitment and mental illness. Before Lessard, commitment was largely premised on the government's parens patriae powers - the need to care for the sick. In its place, commitment focused almost exclusively on dangerousness and hence the lens in which we view the mentally ill was now focused on seeing them as dangerous people. As the district court ruefully noted, Lessard's commitment was devoid of the safeguards afforded criminal defendant's and so, the thinking goes, the mentally ill ought to at least have those rights when deprivation of liberty is at stake. And so the court and subsequently most state legislatures obliged by providing the mentally ill subject to commitment rights enjoyed by criminal defendants including notice, silence, counsel and even a jury. Unsurprisingly, civil commitment was now wed to criminal procedure and with the requirement of overt acts of harm, adjudication now was about a system responding to scary and dangerous behavior instead of care for the sick.
It is no small wonder then that present day civil commitment includes sex offenders. They are viewed as dangerous people who lack control over their behavior and need significant management and even confinement. They are commonly thought of as criminals and even punished as so yet somehow have a mental abnormality that requires treatment. Sadly, many people with severe mental disorders such as schizophrenia now find themselves routinely in and out of jails and prisons with long-term asylum care almost unheard of except in the obligatory forensic hospital. The distinction between the sick and the bad has largely vanished.
What has the Lessard decision wrought? We no longer cabin commitment to people we feel sorry for because they are sick. Commitment is for the dangerous; those on the cusp of criminality. To invoke its power requires many of the formalities of the criminal justice system because it is a police power, not an obligation of a virtuous society to care for its citizens.
But the Lessard decision has a dark side. It changed the way we think about civil commitment and mental illness. Before Lessard, commitment was largely premised on the government's parens patriae powers - the need to care for the sick. In its place, commitment focused almost exclusively on dangerousness and hence the lens in which we view the mentally ill was now focused on seeing them as dangerous people. As the district court ruefully noted, Lessard's commitment was devoid of the safeguards afforded criminal defendant's and so, the thinking goes, the mentally ill ought to at least have those rights when deprivation of liberty is at stake. And so the court and subsequently most state legislatures obliged by providing the mentally ill subject to commitment rights enjoyed by criminal defendants including notice, silence, counsel and even a jury. Unsurprisingly, civil commitment was now wed to criminal procedure and with the requirement of overt acts of harm, adjudication now was about a system responding to scary and dangerous behavior instead of care for the sick.
It is no small wonder then that present day civil commitment includes sex offenders. They are viewed as dangerous people who lack control over their behavior and need significant management and even confinement. They are commonly thought of as criminals and even punished as so yet somehow have a mental abnormality that requires treatment. Sadly, many people with severe mental disorders such as schizophrenia now find themselves routinely in and out of jails and prisons with long-term asylum care almost unheard of except in the obligatory forensic hospital. The distinction between the sick and the bad has largely vanished.
What has the Lessard decision wrought? We no longer cabin commitment to people we feel sorry for because they are sick. Commitment is for the dangerous; those on the cusp of criminality. To invoke its power requires many of the formalities of the criminal justice system because it is a police power, not an obligation of a virtuous society to care for its citizens.
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