To follow up on Greenwald’s response to William Galston’s call to make more people subject to involuntary civil confinement, it’s worth discussing the case in which the Supreme Court held that the state cannot “constitutionally confine…a nondangerous individual who is capable of surviving safely in freedom by himself or with the help of willing and responsible family members or friends.” The underlying facts of O’Connor v. Donaldson are disturbing, and should (to put it mildly) give pause to those who would use the Tuscon shooting to expand the state’s powers of civil confinement. From Stewart’s opinion for the Court:
The testimony at the trial demonstrated, without contradiction, that Donaldson had posed no danger to others during his long confinement, or indeed at any point in his life. [Hospital superintendent] O’Connor himself conceded that he had no personal or second-hand knowledge that Donaldson had ever committed a dangerous act. There was no evidence that Donaldson had ever been suicidal or been thought likely to inflict injury upon himself. One of O’Connor’s codefendants acknowledged that Donaldson could have earned his own living outside the hospital. He had done so for some 14 years before his commitment, and, immediately upon his release, he secured a responsible job in hotel administration.
Furthermore, Donaldson’s frequent requests for release had been supported by responsible persons willing to provide him any care he might need on release.
This case receives a fairly lengthy discussion in The Brethren, because it was a classic example of Burger’s incompetent handling of the Court — he assigned the opinion to himself despite the other justices at conference seeming to want a different focus, and the result was that he ended up receiving zero joins for his would-be majority opinion. But what’s striking for our purposes is that while Woodward and Armstrong report significant disagreement about the appropriate remedy, with the possible exception of Burger every justice (including Rehnquist!) was appalled by what had been done to Donaldson; this wasn’t a Brennan/Marshall crusade.
There are very good reasons, in other words, to confine civil confinement to cases where a person poses a demonstrable danger to herself or others. In retrospect, we can see that Jared Lee Loughner was genuinely dangerous rather than merely unpleasant or eccentric, but making these calls before the fact is overwhelmingly likely to produce an intolerable number of false positives. Criminalizing mental illness is a bad idea, and we should not let the Giffords shooting lead us in that direction.