Beyond normative constraints: Declining institutionalism and the emergence of substantive and procedural justice

Popular notions of what it means to be put on trial invariably generate thoughts of the adversarial criminal trial, most often before a judge and jury. However, the criminal trial as the site for the testing of evidence of wrongdoing via a model of proof that proceeds according to prescribed processes in a normative institutional milieu is in decline. Controversially, this decline has been met with resistance from the legal profession, academics, policy makers and other stakeholders seeking to preserve the due process model that defines the criminal trial as an adversarial exchange between state and defendant. While the due process model continues to dominate as popular conceptualisation, the twenty-first century criminal trial has changed to such an extent that it is no longer seen as the quintessential form for the meting out of procedural fairness and testing of state's evidence, that emerged toward the end of the seventeenth century. Rather, the rise of control orders, modifications to the law of evidence, and the right of the accused to confront their accuser, together with the inclusion of non-traditional agents of justice, specifically victims and the community, has brought forward an era of substantive and procedural justice that lies beyond the normative constraints of the criminal trial. Robed counsel and bewigged judges beware; the advent of substantive and procedural justice has allowed for greater innovation transgressing the orthodoxies of criminal law in common law systems of justice. This paper will consider the virtues of the introduction of a transgressive criminal procedure.     

Suicide and civil commitment

The contemporary approach to suicide prevention relies primarily on involuntary commitment of the suicidal individual. While there is generally widespread acceptance of the principle of society's right, even its moral obligation, to intervene to prevent a suicide, there is much less agreement concerning the conditions under which such an action should proceed. Most of the debate centers on the widely applied commitment criteria of mental illness and dangerousness to self and others. Questions have also been raised regarding the efficacy of commitment as a preventive measure. In this paper, these controversies are placed in a broader historical context. We examine empirical evidence concerning prevailing commitment criteria and the prophylactic value of involuntary hospitalization, and discuss the appropriateness of our current approach to civil commitment in light of existing data.     

The structure of civil commitment

The contents and provisions of civil commitment codes are shaped by a number of influences. This article examines those influences and categorizes them as either falling within the civil commitment system itself or as being external to that system. From an analysis of those internal and external influences, it is concluded that the structure of civil commitment is very much dependent upon the environment in which such laws operate and upon the intricate and integral relationship between civil commitment and other important forms of mental health legislation (incompetence to stand trial, the insanity defense, etc.).     

Dangerousness of civil commitment candidates

This study followed a large, statewide sample of civil commitment candidates both in and out of the hospital for 6 months following their postcourt hearings to determine their postcourt dangerousness. It objectively measures dangerousness by dividing it into five legal components of behavior: (1) type, (2) object, (3) frequency, (4) weapon/means, and (5) severity of outcome. Using data from ward charts, readmission evaluations, recommitment affidavits, and arrest and community mental health center records, it describes candidates' dangerousness in terms of those, five components and compares that dangerousness with the alleged dangerous behavior that brought them into the civil commitment process. It finds that candidates do not tend to be dangerous in the 6 months following their court hearings.     

Outpatient civil commitment: a dangerous charade or a component of a comprehensive institution of civil commitment?

This article examines three criticisms frequently directed toward preventive commitment as one form of outpatient commitment. These criticisms contend that preventive commitment (a) abandons the dangerousness criteria for civil commitmnet, (b) promotes unwarranted inpatient commitment of those who do not meet civil commitment criteria, and (c) undermines important individual liberties by diluting the right to refuse treatment. Understanding and evaluating these criticisms requires analysis of the intersection among empirical, conceptual, and justificatory claims. According to the analysis presented here, advocates of preventive commitment can defend a legitimate role for preventive commitment. This analysis applies to preventive commitment as a dispositional alternative within a comprehensive institution of civil commitment involving distinct parens patriae and police power components.