Academic journal article Jones Law Review

Access to Civil Commitment Proceedings & Records in Alabama: Balancing Privacy Rights and the Presumption of Openness

Academic journal article Jones Law Review

Access to Civil Commitment Proceedings & Records in Alabama: Balancing Privacy Rights and the Presumption of Openness

Article excerpt

INTRODUCTION

From several perspectives, civil commitment proceedings are problematic. There is no question that involuntary commitment involves a substantial deprivation of liberty, comparable to criminal incarceration. (1) The decision to commit a person, against his or her will, to a mental institution demands practical evaluation of the degree of danger the person poses as well as the application of the labyrinthine legal theory of substantive due process. (2) And yet, at least in Alabama, probate judges who may not be lawyers (3) are authorized to commit individuals with mental disabilities, or perceived disabilities, to institutions that have historically been, and may yet be, far worse than the condition from which they were "saved." (4) Serious issues of coercion, exploitation, and the right to refuse treatment have been raised with respect to civil commitment proceedings. (5) Beyond the deprivation of liberty that is involved, these proceedings and the records they generate raise important questions with regard to the hazy "right to informational privacy," that the Supreme Court has recognized but failed to develop. (6) This privacy right is in danger of significant erosion due to the increasing on-line availability of judicial records. (7)

It is suggested that public access to trials and open court records is an important check on the power of the courts and the government. (8) Constitutional authority for public access to courts and court records has been found in the First, Sixth, and Fourteenth Amendments. (9) There are good policy reasons why the public and the press should not be barred from judicial proceedings, and why judicial records should be open, but there are also persuasive reasons to protect the privacy of individuals who are subject to civil commitment. (10) As powerful as the legal and practical arguments for open records and hearings may be, (11) American law has never required complete public access to the courts. (12)

Civil commitment procedures in Alabama and around the nation have been scrutinized and revised in recent decades. (13) However, according to the legal and academic commentators who comprise the "therapeutic jurisprudence" movement, further revision is in order. (14) Therapeutic jurisprudence is an interdisciplinary perspective that studies the consequences of the law on the psychological functioning of those it affects. (15) The perspective proposes that the impact of legal proceedings be examined and that, where possible, actors in the legal process seek therapeutic outcomes over anti-therapeutic actions. (16) Therapeutic jurisprudence has given rise to "problem-solving courts," such as drug courts, domestic violence courts and family treatment drug courts, but the perspective began in the field of mental health. (17)

One of the founders of the therapeutic jurisprudence movement, Professor Bruce Winick, has examined the movement's impact on commitment hearings. (18) Professor Winick describes anti-therapeutic consequences that have traditionally resulted from the common practice of conducting brief, non-adversarial commitment hearings in which judges appear to "rubber-stamp" the recommendations of clinical expert witnesses. (19) Furthermore, Professor Winick is critical of the paternalistic role played by some attorneys in civil commitment proceedings and of judges who do not treat the subjects of these hearings with dignity and respect. (20)

Serious issues of social policy are raised by the civil commitment process, and specifically by commitment proceedings in Alabama. (21) While this article touches on some of these fundamental issues, they are largely beyond this article's scope. The focus of this article is on the relatively narrow issue of public access to hearings and records in civil commitment proceedings in Alabama. This article suggests that at least with respect to court records and hearings in involuntary commitment proceedings in Alabama, the better policy is to restrict, rather than increase public access. …

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