Unpublished Papers

Due Process in Civil Commitments

Alexander Tsesis, Loyola University School of Law


In one of its most controversial decisions to date, United States v. Comstock, the Roberts Court upheld a federal civil commitment statute requiring only an intermediate burden of proof. The statute provided for the postsentencing confinement of anyone proven by “clear and convincing evidence” to be mentally ill and dangerous. The law relied on a judicial standard established more than thirty years before. The majority in Comstock missed the opportunity to reassess the precedent in light of recent psychiatric studies indicating that the ambiguity of available diagnostic tools can lead to erroneous insanity assessments and mistaken evaluations about patients’ likelihood to engage in dangerous activities.

I contend that the “clear and convincing standard” of proof inadequately protects patients’ due process rights because civil commitment hearings can result in severe deprivations of liberty. The beyond a reasonable doubt standard of proof is in order because it requires a closer evaluation of the facts. The multidisciplinary approach I pursue offers a unique framework for resolving a social problem that has been inadequately described in extant legal writings. I reflect on Supreme Court precedents in light of psychiatric studies about the limited reliability of emergency commitments and set out a standard adopted from criminal proceedings to better prevent unnecessary mental hospitalization.

Part 1 of this article sets out some of the core problems with the current standard for civil commitment. Part 2 surveys Supreme Court precedents on the topic. Part 3 discusses state statutory schemes for involuntary mental hospitalization, while Part 4 describes the current state of sexual violent predator statutes. Part 5 delves into professional psychiatric literature about the ambiguity of psychiatric diagnoses. Part 6 synthesizes the article’s findings to identify the appropriate burden of proof required to prevent the wrongful infringement on patients’ due process rights.

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