VIEWS: 13 PAGES: 23 CATEGORY: Law POSTED ON: 5/27/2010
The civil commitment of mentally ill individuals presents the legal system with an intractable question: When should the law deprive someone of the fundamental right to liberty based on a prediction of future dangerousness? Advocates of both increased and decreased levels of civil commitment offer compelling case studies to help resolve the question. Civil commitments cause "massive curtailment(s) of liberty." Hospitalized patients must remain within the institution, often with limited freedom inside the building. This note argues that the representation style used by an attorney in a civil commitment hearing can subvert the substantive standards mandated by due process. The due process guarantee that no person shall be deprived of life, liberty, or property, without due process of law faces unique challenges in the civil commitment context. This note argues that the best interests model of representation violates the dangerousness standard, which requires a due process balancing test in every civil commitment hearing, while an adversarial model upholds the heightened standards mandated by the Supreme Court and the Due Process Clause.
The Search for Due Process
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"The Search for Due Process in Civil Commitment Hearings: How Procedural Realities Have Altered Substantive Standards"Please download to view full document