Mental Disorder and the Civil/Criminal Distinction

Abstract:     
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 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.

Number of Pages in PDF File: 53

Keywords: law and medicine, law and psychiatry, criminal law, constitutional law

JEL Classification: K00, K10, K14

Accepted Paper Series