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One of the great tensions of mental disability law is the unresolved, trompe d’oeil question of whether it is a subset of the civil law, of the criminal law, or something entirely different. The resolution of this question is not an exercise in formalism or pigeonholing, but is critical to an understanding of the future direction of mental disability law, the deeper meaning of US Supreme Court cases and important state legislative initiatives, and the whole array of hidden issues and agendas that lurk under the surface of mental disability law-decision making. As mental disability law has matured, a dual system appeared to have fallen into place: in civil cases, a patient was generally entitled to a relatively broad panoply of procedural and substantive due process rights in involuntary civil commitment and institutional rights decision making; on the other hand, the Supreme Court has made it explicit that defendants convicted of crimes would have fewer substantive treatment rights, specifying that at least in the area of the right to refuse treatment, “penological interests” would “trump” fundamental civil libertarian interests, and that insanity acquittees could have fewer substantive and procedural due process rights at retention and review hearings than would civil patients. Yet, subsequent important developments cast new light on this separation and call into question the future of a two-tiered mental disability law system: • the proliferation of so-called assisted outpatient treatment (AOT) statutes, of which New York’s Kendra’s Law is the most well-known example; • the expansion of sexually violent predator acts (SVPA), of which New Jersey’s Megan’s Law is often seen as the exemplar but which have been subject to Supreme Court scrutiny in cases from other jurisdictions such as Kansas v. Hendricks, Seling v. Young, Crane v. Kansas, and United States v. Comstock, • the policy implications of a system that provides no meaningful continuity of care, resulting in large numbers of persons continually “shuttling” between jails (or prisons) and mental hospitals, • and the sanctioning of the imprisonment of insanity acquittees in prison facilities.

These overlaps blur the borderline between civil and criminal mental disability law in very troubling and problematic ways, and threaten to make this area of the law even more pretextual than it currently is. Laws such as these enforce social control in punitive ways under the guise of the beneficence of civil commitment. Although the universes of individuals subject to statutes such as Kendra’s Law or Megan’s Law, those who are shuttled from jail to hospitals to the street for minor crimes, or those who have been found not guilty by reason of insanity appear quite different – in the first instance, persons not subject to the inpatient involuntary civil commitment power but who may be in danger of deterioration in the absence of forced treatment; in the second, persons who have been charged and/or convicted of violent sexual offenses who are targeted as potentially recidivistic pedophiles; in the third, persons charged with crimes that basically involve “nuisance activities,” and, in the fourth, individuals who have been found not responsible for the antecedent criminal action – there are important, and troubling, points in common in the structures of these kinds of laws. Moreover, they all demonstrate comfort with a system in which many functions of civil and criminal mental disability law merge. Remarkably, until now, virtually no attention has been paid to this phenomenon. In this paper, we will first trace the development of the two-tiered mental disability law system (with a special focus on the right to refuse treatment). We will then review developments in AOT law (focusing on Kendra’s Law), SVPA law, continuity of care issues, and the imprisonment of insanity acquittees, and the blurring effects of each area and implications for the rest of mental disability law. We will next discuss those “blur” areas that may serve to, optimally, limit pretextuality (the creation and expansion of mental health courts, and the application of the Americans with Disabilities Act to cases arising out of the criminal justice system). We will then look at these issues from the perspectives of therapeutic jurisprudence, and then conclude with some modest recommendations.


Texas Journal on Civil Liberties & Civil Rights, Vol. 24, Issue 1 (Fall 2018), pp. 59-118