"It Takes a Lot to Get into Bellevue": A Pro-Rights Critique of New York's Involuntary Commitment Law

Article excerpt

Introduction
I. Article 9 and the Constitutional Limits on Confinement
       A. The Federal Framework
          1. Substantive limits--O'Connor, Addington, and the
             "Danger" Standard
          2. Procedural Limits--Vitek v. Jones
       B. How Article 9 Works
          1. Voluntary
          2. Involuntary
          3. Emergency Commitment
          4. Retention Orders, Release Hearings, and Other
             Procedural Protections
II. Problems with Article 9, and More Protective Alternatives
       A. Delegated Discretion--the Problem with Article 9
       B. More Protective Alternatives
          1. Automatic Hearings
          2. Elevated Standards of Proof
          3. The Definition of "Danger".
             4. Procedural Standards: Objective Evidence
III. Civil Rights Litigation as an Alternative Boundary to
       Article 9
       A. Potential Benefits of Case-by-Case Litigation
       B. Limitations on Case-by-Case Litigation
Conclusion

INTRODUCTION

Involuntary commitment case law continues to demonstrate that mental illness is not only a physical and psychological affliction, but also a de facto legal status. (1) Suffering from or being diagnosed with--that is, being alleged to have--a mental illness makes one eligible for involuntary treatment, including inpatient commitment tantamount in many ways to incarceration. (2) The key difference between incarceration and commitment is that a person must be adjudged beyond a reasonable doubt to have actually committed a crime to be incarcerated for a set period, whereas members of a select, frequently institutionalized class, the mentally disabled, may be confined indefinitely upon a physician's assessment that they may at some future date commit a harmful act. (3) Mental disabilities affect a remarkably broad range of New Yorkers: a recent survey by the New York City Department of Health and Mental Hygiene (DOHMH) found that 430,000 New Yorkers--7.3% of the City's population--suffered from a major depressive disorder, and 200,000 or 3.5% of the City's population suffered from a generalized anxiety disorder. (4) Another 6.3% reported "nonspecific psychological distress." (5) Even more troubling, a 2005 DOHMH survey of teenagers found that 9.6% of respondents had attempted suicide within the past twelve months. (6) Under current state law standards, any of these conditions could make one eligible for involuntary civil commitment] State law designates twenty-seven hospitals for inpatient treatment of mental illness under the direction of the Office of Mental Health (OMH). (8) A 2009 report by OMH indicated that 173,682 New Yorkers were receiving treatment in residential OMH programs, including 12,853 in inpatient residential treatment facilities. (9) Despite the fact that mental disability affects an enormous percentage of its population, New York State's statutory scheme for involuntary confinement of the mentally disabled, Mental Hygiene Law Article 9 (10) (Article 9) is among the least rights-protective in the country, allocating an enormous amount of discretion to physicians. (11) Periodically, patients and advocacy organizations have challenged this arrangement, but since the Second Circuit found Article 9 facially valid in Project Release v. Prevost, (12) District Courts have upheld it consistently. (13)

This Note will examine New York State's involuntary civil commitment statute, Mental Hygiene Law Article 9, in light of developments in the due process case law and scientific literature relating to involuntary commitment since the Second Circuit Court of Appeals last heard a wholesale facial challenge to the statute in Project Release. Part I will analyze New York State's commitment law in its constitutional context. Part I.A will analyze the constitutional framework around which New York's statute is constructed, starting with the Supreme Court's foundational rulings in O'Connor v. Donaldson, (14) Addington v. Texas, (15) and Vitek v. …