41 San Diego Law Review #3 (2004)


This essay, written as part of a symposium issue to commemorate the 50th anniversary of the University of San Diego Law School, discusses the evaporating distinction between sentence-serving convicts and mentally disordered nonconvicts who are involved in, or who were involved in, the criminal process–people we label as both bad and mad. By examining one Supreme Court case from each of the decades that follow the opening of the University of San Diego School of Law, the essay demonstrates how the promise that nonconvict mentally disordered persons would be treated equally with other civilly committed mental patients was made and then broken and forgotten. The essay discusses the shift in Supreme Court jurisprudence shift from the Warren Court’s liberal application of the Constitution to prohibit the special categorization of sentence-expiring prisoners and permanently incompetent criminal defendants for civil commitment, to the Burger and Rehnquist Court’s conservative application of the Constitution to permit the special categorization of persons acquitted of crime by reason of insanity and sexually violent predators for civil commitment, and to permit the coerced treatment of competent, though dangerous, criminal defendants. The essay begins by discussing Baxstrom v. Herold, 383 U.S. 107 (1966). A unanimous Supreme Court held that equal protection “demands” that sentence-expiring convicts receive the same procedural safeguards that all others receive in the civil commitment process; they cannot be specially classified to avoid the standard procedural roadblocks to civil commitment. Six years later, the promise of equal treatment was extended to criminal defendants found mentally incompetent to stand trial. In Jackson v. Indiana, 406 U.S. 715 (1972), a unanimous Supreme Court ruled that equal protection is denied when incompetent criminal defendants are subjected to a more lenient commitment standard and to a more stringent release standard than is applicable to all other persons who could only be detained under the state’s civil commitment laws. In 1983, the equal protection promise was broken, however, in Jones v. United States, 463 U.S. 354 (1983). In Jones, a narrowly divided Court held that persons acquitted of crime by reason of insanity constituted a special class who can be subjected to automatic, indeterminate commitment without first undergoing the civil commitment process. In 1997, the Supreme Court forgot its Baxstrom promise to sentence-expiring convicts. In Kansas v. Hendricks, 521 U.S. 346 (1997), the Court upheld the constitutionality of a statute creating a separate civil commitment process for a limited subclass of dangerous sentence-expiring convicts who could be identified as sexually violent predators. In 2003, the Supreme Court forgot its Jackson promise to mentally incompetent criminal defendants. In Sell v. United States, 539 U.S. 166 (2003), the Court ruled that incompetent criminal defendants do not have the same right to medical self-determination that other civilly committed patients possess. Relying heavily on a case involving a mentally ill, sentence-serving convict, the Court upheld the forced medication of dangerous criminal defendants, even if they are competent to understand the risks, benefits, and alternatives to the proposed treatment.


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Date of this Version

September 2004