Questions about our Constitution often arise in the context of a policy debate. This is hardly surprising. The Constitution defines the boundaries that constrain the work of policymakers. Placing limitations upon the political branches is, perhaps, the most critical function that our Constitution serves. For instance, let’s assume the President outlines a new policy initiative regarding immigration status. The President, along with his appointees at U.S. Immigration and Customs Enforcement (“ICE”), has the power to interpret and enforce this nation’s immigration laws. In doing so, however, the President and ICE are restricted by certain constitutional limitations. Notably, the Fourteenth Amendment guarantees U.S. citizenship to all those born inside this nation’s borders. Policymakers cannot enforce the laws in a manner that would violate this constitutional guarantee, even if such a policy enjoyed widespread support. This is typical of how the Constitution operates. It protects civil liberties, quite often by constraining the popular majority.
Let’s explore a more nuanced example of the Constitution’s protection of civil rights, one that I suspect will challenge conventional views regarding an often-debated topic. We represent two anonymous individuals, who the Commonwealth of Pennsylvania unfairly branded as ‘mentally ill.’ In the past, our clients were held for a temporary involuntary commitment under Section 302 of Pennsylvania’s Mental Health Procedure Act (“MHPA”). This means that, at least, one person made a statement claiming our clients “pose[d] a clear and present danger of harm to others or to [themselves],” and that an examining physician decided to detain them for further evaluation. A treating facility may only hold an individual for a maximum of 120 hours under Section 302. After that time elapses, the individual must be released or certified for an extended involuntary commitment under Section 303 of the MHPA. Both of our clients were released within the initial 120-hour period, without any suggestion of the need for an extended commitment. Years passed with no additional incident, nor any basis to conclude either has ever suffered from mental illness. Today, each leads a normal productive life.
We filed an action in the Eastern District of Pennsylvania on behalf of our clients, asserting violations of the Due Process Clause of the Fourteenth Amendment. A Pennsylvania statute, we contend, deprives our clients of a constitutionally protected interest without the due process of law. This statute imposes the deprivation on anyone who has been held under Section 302 for temporary involuntary commitment. For now, let’s assume that the right to vote is the protected interest at stake.
Such a policy decision would not be unprecedented. Historically, state governments have enacted laws prohibiting certain individuals from voting based upon perceived mental capacity. These statutes use terms like “mentally incompetent,” “insane,” “of unsound mind,” or even “idiot.” To this day, the laws in nearly 40 states authorize judges to remove voting rights from individuals with mental disorders, typically adjudicated as “mentally incapacitated” through a conservatorship process. Likewise, nearly all states deprive convicted felons – both violent and non-violent alike – of their voting rights. Requirements for restoration of voting rights vary widely among states, with some states restoring voting rights after the period of incarceration has been completed while other states requiring direct authorization from the Governor for restoration. Roger Clegg and Hans A. von Spakovsky advocate for a lengthier period of deprivation for convicted felons, reasoning there are “certain minimum, objective standards of responsibility and commitment to our laws that we require people to meet before they are given a role in the solemn enterprise of self-government.” For them, the policy calculus is not complicated. “People who have committed serious crimes against their fellow citizens,” they explain, “don’t meet those standards.”
Policymakers make policy, whether it be through enacting legislation, issuing regulations or announcing executive orders. In fact, this is the very task we elect our politicians to carry out. We expect the political branches to make policy, and we become frustrated when they fail to do so. Here, in Pennsylvania, policymakers determined that individuals could be deprived of a constitutionally protected interest solely because – at one time in their lives – they were held under Section 302 for up to 120 hours. Does this policy comport with our Constitution? Does it implicate the same concerns as a deprivation based on an adjudication of mental capacity or an individual’s status as a convicted felon?
The first question to consider is whether the process under Section 302 aligns with our standard conceptions of due process and – in particular – the Supreme Court’s jurisprudence regarding involuntary civil commitment. The procedures afforded to those held under Section 302 do not meet the minimum requirements of due process for involuntary civil commitment.
The Due Process Clause of the Fourteenth Amendment is triggered whenever state action threatens to deprive an individual of a constitutionally protected interest in life, liberty or property. Such interests derive from the Constitution, statutes and – on occasion – certain contractual agreements. The Supreme Court has held, “civil commitment for any purpose constitutes a significant deprivation of liberty that requires due process protection.” “[T]he root requirement of the Due Process Clause is that an individual be given an opportunity for a hearing before he is deprived of any significant protected interest[.]” At its most basic level, due process requires (i) prior notice and (ii) a proceeding on the record before a neutral arbiter with the ability to present evidence, cross-examine witnesses and confer with counsel. Of course, “the required procedures [for due process] may vary according to the interests at stake in a particular context[.]” Regardless, “[t]he fundamental requirement of due process is the opportunity to be heard ‘at a meaningful time and in a meaningful manner.’”
In O’Connor v. Donaldson, the Supreme Court ruled that the Constitution prohibits the involuntary civil commitment of a non-dangerous individual “who is capable of surviving safely in freedom by himself or with the help of willing and responsible family members or friends.” “A finding of ‘mental illness’ alone cannot justify a State’s locking a person up against his will and keeping him indefinitely in simple custodial confinement.” The Court did not equivocate. The due process analysis weighs in favor of involuntary commitment only where the allegedly mentally ill individual is found to be dangerous. “[T]here is still no constitutional basis for confining [mentally ill] persons involuntarily if they are dangerous to no one and can live safely in freedom.” In Addington v. Texas, a subsequent decision, the Supreme Court addressed the appropriate evidentiary standard during an involuntary civil commitment proceeding. The Court explained due process required that the subject be established as dangerous by “clear and convincing” evidence. A mere preponderance of the evidence is constitutionally inadequate. In rendering this holding, the Court further acknowledged that an involuntary civil commitment carries with it a stigmatizing effect. “[I]t is indisputable that involuntary commitment to a mental hospital after a finding of probable dangerousness to self or others can engender adverse social consequences to the individual.”
The procedures under Section 302 for temporary involuntary commitments lack virtually any recognizable element of due process. Section 302 offers no notice, no hearing, and no opportunity to cross-examine witnesses, address evidence or confer with counsel. In short, a temporary involuntary commitment requires only the authorization of a single treating physician. There is no form of adversarial process whatsoever. Our case, however, does not challenge whether the lack of due process procedures under Section 302 should prevent temporary involuntary commitment in Pennsylvania. Because of the emergency nature of Section 302 confinements, combined with the finite time allotted for detainment, a due process analysis may not require additional procedural safeguards for the limited 120-hour loss of liberty.
Pennsylvania, however, cannot use Section 302 as the procedure to involuntarily commit individuals for a more indefinite length of time. For a greater loss of liberty, Section 302 offers inadequate process under the Supreme Court’s holdings in O’Connor and Addington. As discussed, for an involuntary civil commitment, the Supreme Court explained that due process demands the subject individual be adjudicated dangerous by “clear and convincing” evidence. Section 302 provides no form of adjudication or evidentiary hearing whatsoever. It entirely fails to satisfy the due process requirements for extended involuntary civil commitment, and Pennsylvania recognizes this fact. After 120 hours, if the physician determines further treatment is necessary, the MHPA provides a separate process under Sections 303 and 304. Without delving into a detailed discussion of the procedures allotted, these sections ostensibly comport with the due process requirements for standard involuntary commitments.
The question becomes whether the Constitution allows Pennsylvania to use the existence of a prior Section 302 commitment as the sole basis for depriving an individual of some other protected interest – aside from loss of liberty. The same analysis should apply. At most, the lack of procedural safeguards available during the Section 302 process would justify only a very limited deprivation. Perhaps a temporary involuntary commitment could deprive an individual of a protected interest for the limited period of time during the 120-hour confinement. Pennsylvania could, without offending the Constitution, prohibit individuals from voting while they were held for evaluation. Continuing the deprivation after this 120-hour period is when it becomes problematic.
A long-term deprivation of a protected interest based solely upon Section 302 would violate due process for the same reasons Section 302 cannot support an extended loss of liberty. The Supreme Court has clearly delineated what due process requires for an involuntary civil commitment. Without debate, Section 302 does not comport with this standard. The Constitution forbids the indefinite loss of liberty based upon one doctor’s determination that an individual is dangerous. It requires an adjudication where the “clear and convincing” evidence establishes the subject individual as a danger to himself or others. The Supreme Court, therefore, imposed a more stringent evidentiary standard than normally applies in most civil matters. It would be a perverse result to deprive an individual of a constitutionally protected interest based upon a temporary involuntary commitment, which itself fails to afford the process that the Supreme Court demands.
In terms of substantive policy, only one reason exists to deprive individuals of a constitutionally protected interest based on Section 302. The belief that individuals who have been involuntarily committed are dangerous or severely mentally ill. This is precisely why due process demands more. Section 302 is not an adjudication of dangerousness, and should not be treated as such.
Consider how depriving convicted felons of their voting rights is both similar to and different from using Section 302 as the underlying predicate for the deprivation. The decision to deprive convicted felons of their rights derives from their status as convicted felons. These individuals were adjudicated and found guilty of a serious crime. Specifically, as convicted felons, they received a trial where they were afforded legal representation and the opportunity to confront the evidence against them. A judge or other neutral arbiter weighed the evidence and rendered a decision. Alternatively, if the felon accepted a plea agreement, he did so knowingly – with advice from his legal counsel – after reviewing the charges against him. The procedures afforded to criminal defendants exemplify the purest notions of due process.
At the beginning, I asked you to assume the right to vote was the constitutionally protected interest at stake – that Pennsylvania was denying voting rights to individuals who had been involuntarily committed under the Section 302 process. This offered a unique context for discussing how the constitutional requirements of due process interact with Pennsylvania’s procedures for temporary involuntary commitment. I posed the question of whether Pennsylvania could use temporary involuntary commitments as the basis for depriving individuals of a constitutionally protected interest – apart from the negligible loss of liberty. More precisely, would doing so raise significant due process concerns?
While Pennsylvania does – in fact – wield Section 302 as a delineated basis for depriving individuals of a specific constitutionally protected interest, the right affected is not the right to vote. In our matter pending before the Eastern District of Pennsylvania, we challenged Section 6105(c)(4) of the Uniform Firearms Act, which prohibits individuals from owning or possessing a firearm if they have ever been involuntarily committed under Section 302. Passions are always heightened when considering questions about the Second Amendment and firearms rights. These debates often risk devolving into emotional diatribes, which is entirely understandable. Discussions concerning gun control and firearms ask us to confront uncomfortable inquiries about life, death, individual rights and our society. Using voting rights to frame the due process question presented in our case was designed to provide a different perspective and, perhaps, challenge certain preconceived notions. Is the answer to the question different for voting rights than it is for firearms rights?
To be clear, no one is advocating that dangerous mentally ill individuals should have greater access to firearms. In District of Columbia v. Heller, the Supreme Court emphasized that Second Amendment rights are subject to reasonable regulations and limitations – most notably emphasizing “longstanding prohibitions on the possession of firearms by felons and the mentally ill[.]” Section 302 and the firearms prohibition under Section 6105(c)(4) simply highlight the question left open in Heller. What process is required before Pennsylvania – or any state – can categorize an individual as dangerous and/or mentally ill? Should the process for determining such a classification be required to comport with the Supreme Court’s jurisprudence for subjecting an individual to involuntary civil commitment? There is a natural tension between safeguarding civil liberties and enforcing policies that protect society as a whole. While it is critically important to enact and enforce laws prohibiting access to firearms by the dangerous and the mentally ill, it is equally important to ensure that state actors do not improperly brand individuals with these stigmatizing labels and limit their civil rights without solid justification for doing so.
Shawn M. Rodgers, Esq.
Shawn Rodgers is an associate at Goldstein Law Partners. He concentrates his practice in the areas of Appellate Practice, Employment Law, Complex Dispute Resolution & Litigation, Constitutional Law & Civil Rights, Municipal Law and Land Use, Election Law, and Business Law.