American Journal of Law & Medicine

Heller v. Doe: involuntary civil commitment and the 'objective' language of probability.

Since it is inherently difficult to be aware of liminal groups in a society organized under the principles of competitive individualism, it is easier to write them off as human derelicts.(1)


During the past three decades, the pages of major newspapers, magazines, and professional journals across the country have chronicled a tragic dilemma confronting persons with mental disabilities.(2) On the one hand are the horror stories of thousands of individuals with mental disabilities locked away in institutions. They live years in isolation or neglect when many could have received treatment and enjoyed fuller lives in the community.(3) Thousands more have endured a different hell in the "freedom" of the outside world, receiving no treatment or support services necessary for their survival,(4) often causing harm to themselves or others as their condition deteriorated.(5) This lack of treatment and support is largely the result of states' failure to shift mental health resources into the community when state institutions released their patients under the policy of deinstitutionalization.(6)

Political goals to save money, bureaucratic pressures to allocate mental health funds primarily to state institutions, and neighborhood resistance to the establishment of alternative community facilities have brought about the failure of deinstitutionalization.(7) These forces have created a "revolving door" for persons with mental disabilities.(8) This revolving door draws them into a cycle of multiple hospitalizations, short-term involuntary treatment, and release, until they have deteriorated to the point where they are hospitalized in acute crisis, frequently via the criminal justice system.(9) The general public has become aware of this issue through publicity about the "mentally disabled homeless."(10) Unfortunately, the legislative response at the state level, shaped by political and fiscal pressures, does not adequately weigh the interests of this population. It is therefore a significant responsibility of the judiciary to evaluate the liberty and treatment interests of persons with mental disabilities as well as the costs to society for protecting (or compromising) those interests.

In June 1993, a sharply divided United States Supreme Court decided Heller v. Doe,(11) defining the rights of persons with mental retardation in comparison to the rights of persons with mental illness in cases of involuntary civil commitment.(12) The Court upheld Kentucky statutory provisions against an equal protection challenge. These provisions: (1) permit a lower standard of proof for committing adults with mental retardation than that required for committing adults with mental illness, and (2) allow guardians and immediate family members of adults with mental retardation to participate as if parties to the commitment proceedings, while families of adults with mental illness have no such standing.(13) The Heller Court justified the two differing standards of proof and procedures as necessary to equalize the risks of improper judicial determination in such proceedings.(14) The majority opinion relied on the premise that individuals with mental retardation are diagnosed with greater ease and certainty than are persons with mental illness, and that treatment methods for persons with mental illness are more intrusive than for persons with mental retardation.(15) Based on these assumptions, the majority concluded that a lower standard of proof for persons with mental retardation meets constitutional requirements.(16)

This Comment argues that the Heller Court failed to create the appropriate framework for analyzing the rights and interests of persons with mental disabilities facing involuntary civil commitment. The Heller Court used ostensibly objective risk analysis to place a higher value on the interests of the nondisabled majority(17) over those interests of persons with mental illness. Furthermore, the Court never considered the significance of the committed individual's liberty interests in its analysis. Part I provides the context for Heller: background information on mental illness and mental retardation as distinct conditions, the realities of involuntary commitment for both groups, and the costs to all when those who need treatment cannot get it. Part II is an overview of case law which explores the major analytical tools of the Heller decision. Part III introduces the facts of the Heller case, the reasoning of the majority, and the vigorous dissenting opinion. Part IV critically examines the majority's methodology of probability analysis in determining the correct outcome in involuntary civil commitments.

In effect, the majority was primarily concerned with minimizing the risk of erroneously committing nondisabled persons, rather than minimizing the risk of error. This risk of error should take into account all possible incorrect outcomes: the risks of erroneous commitment of nondisabled persons, the erroneous noncommitment of persons with mental disabilities, and the costs to society at large when such errors are made. Thus, the Heller analysis shows a willingness to compromise the interests of the individuals whom these civil commitment statutes were designed to help. Part V offers an alternative equation of probability analysis, taking into account variables which the majority did not include in its approach.(18) Part VI concludes that the Heller Court implicitly encourages discriminatory practices toward persons with mental illness and retardation by preserving the interests of the nondisabled majority. The Court's application of risk analysis allowed the state of Kentucky to promote majoritarian value judgments, establishing barriers to treatment for persons with mental illness and bias against persons with mental retardation.



Mental retardation is a debilitating mental defect which few people comprehend. The American Association on Mental Retardation (AAMR), the leading professional organization in the field of mental retardation, uses the following definition:

Mental retardation refers to substantial limitations in present functioning. It is characterized by:

1. Significantly subaverage intellectual functioning, existing concurrently with

2. Related limitations in two or more of the following applicable adaptive skill areas: communication, self-care, home living, social skills, community use, self-direction, health and safety, functional academics, leisure, and work.

3. Mental retardation manifests itself before age 18.(19)

In 1973, the AAMR changed the definition of mental retardation, eliminating the category of "borderline retarded" individuals, with full-scale IQ above 70. Although the AAMR has de-emphasized the significance of measured IQ, the traditional categories of mental retardation are as follows: (1) mild (IQ=70--55/50); (2) moderate (IQ=55/50--40/35); (3) severe (IQ=40/35--25/20); and (4) profound (IQ<25/20).(20) Eighty-nine percent of persons with developmental disabilities have mild mental retardation, with an IQ between 50 and 70.(21)

Many people do not know the differences between mental retardation and mental illness. The American Psychiatric Association defines "mental disorder" as:

[A]n illness with psychologic or behavioral manifestations and/or impairment in functioning due to a social, psychologic, genetic, physical/chemical, or biologic disturbance. The disorder is not limited to relations between the person and society. The illness is characterized by symptoms and/or impairment in functioning.(22)

Although there are some similarities in these two definitions, the primary difference is that mental retardation is not an illness.(23) Persons with mental illness experience disturbances in their thought processes and emotions, while persons with mental retardation have limited abilities to learn.(24)

Many forms of mental illness are cyclical, temporary or episodic.(25) In comparison, mental retardation is a permanent mental impairment. Accordingly, legal rules which focus on the "curing" of persons with mental illness do not apply to persons with mental retardation.(26) Mental illness and mental retardation are not mutually exclusive conditions; approximately thirty percent of persons with mental retardation are also mentally ill.(27)


To better understand the significance of the Heller decision, it is necessary to examine the legal, historical, and clinical contexts of involuntary commitment. The subsection below provides an overview of the following: (1) the legal theories which support state authority to commit persons with mental disabilities; (2) treatment trends and alternatives to involuntary commitment and their impact on liberty interests; and (3) the costs to disabled individuals and to society when necessary treatment is unavailable.

1. The Legal Underpinnings of Involuntary Commitment

Courts have reached a general consensus that there are three legitimate state justifications for the confinement of persons with mental illness and mental retardation.(28) These rationales have developed historically from (1) the protection of society from individuals who pose a danger, a concept stemming from the state's police power; to (2) the protection of persons incapable of caring for themselves or prone to self-destructive acts, based on police power and parens patrie authority;(29) and (3) rehabilitation often limited to habilitation(30) in the case of persons with mental retardation, also a parens patrie rationale.(31)

In 1975, the U.S. Supreme Court held in O'Connor v. Donaldson(32) that "a State cannot constitutionally confine, without more, a nondangerous individual who is capable of surviving safely in freedom by himself or with the help of willing and responsible family members and friends."(33) Although this holding may be understood to mean that a state cannot confine a nondangerous mentally ill person unless adequate treatment is given, many lower courts have interpreted Donaldson to mean that involuntary civil commitment statutes which do not require proof of dangerousness as well as mental disability are unconstitutional.(34) As a result, courts struck down statutes which permitted commitment based exclusively on standards of "in need of treatment" or "in the best interests of the patient."(35) Most jurisdictions revised their statutory provisions for involuntary commitment by requiring dangerousness to others or to self, which may include the inability to care for basic needs.(36)

2. The Realities of Involuntary Commitment--Treatment and Curtailed


Within the mental health system, there exist vastly differing views of involuntary commitment of persons with mental disabilities. The "community-first" trend has characterized the past several decades of treatment for individuals with mental disabilities.(37) This trend encompasses principles such as deinstitutionalization,(38) the least restrictive alternative theory,(39) normalization, mainstreaming, and outpatient commitment.(40) The premise of the community-first movement is that persons with mental disabilities should be placed in the community for care and treatment rather than segregated from the majority in institutions. …

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