The aged and the dangerousness criterion in involuntary civil commitment

Using data from official court records and observations in court hearings throughout one state with a typical reform statute, this study investigates the elderly against whom petitions are brought for involuntary civil commitment. In relation to their proportion in the population, the aged are only slightly more likely than younger persons to become respondents in commitment proceedings; but they are over three times more likely to remain involuntarily hospitalized and to be subjected to recommitment proceedings. Once brought into the process, they are more likely than younger respondents to be committed and are more likely to be successively recommitted. In analyzing court testimony, focus is on evidence of dangerousness since involuntary commitment is limited to the mentally ill who are dangerous. Almost half of the young old initial respondents with formal hearings have no testimony alleging dangerous behavior and more than half of the old old have no such testimony. The alleged dangerous acts of the aged tend to be unintentional harm rather than assault.     

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.     

Assessment and conceptualization of competency to stand trial

Based on an examination of current methods used to define and assess a defendant's competency to stand trial, the authors propose an assessment and research instrument, referred to as the Interdisciplinary Fitness Interview (IFI). The IFI is a structured interview and rating scale designed to take into account both legal and mental health issues, and calls for an interdisciplinary approach to the assessment of competency. The purpose of the present study was to provide preliminary reliability and validity data on the use of the IFI in one jurisdiction. The results are discussed in terms of policy implications and the development of methods for evaluating competency with brief screening interviews in less restrictive settings.Support for this project was provided by a grant from the National Institute of Mental Health, Center for Studies in Crime and Delinquency (Grant No. 1 RO 1 MH 33669-01) to the Social Science Research Institute. The data reported here are taken from a larger research project designed to assess the use of a number of methods for assessing competency. Our principal concern in this article is with preliminary analyses of the Interdisciplinary Fitness Interview, a measure developed expressly for this project. The authors thank William Glackman and George Tien for their assistance in data analysis and Amiram Elwork and anonymous reviewers for their helpful comments on earlier drafts.     

Juror decision making

Much of the research on juror decision making is concerned with whether jurors are swayed by irrelevant-or extralegal-issues in their judgments of defendants. Such studies examine whether jurors' attitudes and victims' and defendants' characteristics have a measurable impact on these decisions. Yet, in the typical study, evidential issues are either poorly measured or ignored, hence the effects of extralegal issues may be exaggerated. Moreover, jury simulations are often chosen to study these questions despite critics' concerns about the generalizability of the results. The present study uses data gathered from actual jurors to assess whether the emphasis on juror competence is justified. The results indicate that these jurors' decisions are dominated by evidential issues, particularly evidence concerning the use of force and physical evidence. Jurors were considerably less responsive to characteristics of victims and defendants, although some of these factors significantly affected their decisions.The research reported here was supported by the National Institute of Mental Health under grant No. R01 MH29727 and the National Institute of Justice under grant No. 82-IJ-CX-0015. The author would like to thank Douglas Smith, Barbara Reskin, and Lowell Hargens for helpful comments on earlier drafts.     

Outpatient commitment: a therapeutic jurisprudence analysis.

This article analyzes the legal and therapeutic jurisprudence considerations raised by outpatient commitment. Although older forms of outpatient commitment have both legal and therapeutic advantages, preventive outpatient commitment raises serious legal problems and potential antitherapeutic consequences that may outweigh its claimed therapeutic value. As a result, alternatives are proposed, including wider availability of community treatment and outreach and case management services, assertive community treatment, police and mental health court diversion programs, and creative uses of advanced directive instruments and behavioral contracting. Proposals also are made for how preventive outpatient commitment can be applied more therapeutically, including hearings that accord patients a sense of procedural justice and techniques designed to motivate individuals facing such hearings to agree to accept treatment voluntarily.     

The effects of statutory change on the civil commitment of the mentally ill

Several states have revised their civil commitment statutes in recent years. A majority of the recent revisions reflect judicial directives to provide more explicit commitment criteria, but in some instances, criteria have been broadened in reaction to the difficulty of getting some individuals hospitalized under strict criteria. Such statutory changes have impacted considerably on both process and outcome of the civil commitment system. Adoption of explicit commitment criteria has resulted most visibly in substantial reduction of hospital admissions and census. The present study examines the impact of explicit changes in commitment criteria in Florida following the 1982 enactment of amendments to the Baker Act. A total of 80 commitment hearings are reviewed before and after the law took effect to determine procedural effects of the law on degree of defense counsel advocacy, client dispositions, and on the court's adherence to more explicit criteria. State hospital admissions, discharge, and census information is examined in order to identify the larger impact of 1982 statutory changes on the commitment system. Evidence from hearings and state data suggests that changes in the Florida law impacted significantly on both process and outcome of the civil commitment system. Clients referred to commitment hearings are more dangerous, and may represent a new hard-core group remaining after more explicit eligibility criteria are applied by local intake, and emergency detention facilities. State hospital admissions and census in Florida declined significantly following enactment of the 1982 law, consistent with findings from other states enacting similar statutory reforms. Implications for deinstitutionalization policy and administration are discussed.     

Conformance to Attorney Performance Standards

Legal representation of clients facing involuntary commitment to a maximum security hospital was investigated. Eighty-nine hearings were observed during a 5-week period immediately following implementation of Attorney Performance Standards, which define minimally adequate representation. The 10 participating attorneys reported their preparation for each case, and a summary measure of advocacy was derived. Generally, attorneys engaged in all required activities that could be accomplished in a single preparatory visit to the hospital. The level of advocacy in cases where clients faced civil commitment was compared to cases where the client faced criminal commitment. The unexpected finding that the level of advocacy for civil clients was significantly lower than that for clients facing commitment under any other legal category, was discussed in light of the degree of dangerousness presented by civil clients, the effects of deinstitutionalization, and emerging social policy.     

Psychiatric expertise in civil commitment: Training attorneys to cope with expert testimony

The learned treatise approach to challenging the psychiatric expert witness in civil commitment proceedings was investigated in the present study. An Ad Litem's Handbook, modeled after Ziskin (1975), was written and distributed to a group of attorneys who also received workshop training in aggressively defending the proposed patients at civil commitment hearings. TheseTRAINED attorneys were compared with control groups of attorneys not receiving the training intervention in terms of trial tactics, cross-examination profiles, and other courtroom behaviors in order to assess the impact of such training and the impact of the learned treatise approach in civil commitment hearings. Results indicated that, in spite of explicit endorsement of such tactics by the court,TRAINED attorneys did not alter their courtroom behaviors significantly in directions suggested by the special training and, like their untrained counterparts, did not aggressively challenge the psychiatric expert whose testimony argued for commitment of their clients.The research reported here is based primarily on the author's doctoral dissertation, completed at the University of Texas at Austin, May 1977. The author would like to acknowledge the assistance of Joseph Horn, Ph.D., dissertation committee chairman and the other members of the committee for their guidance.     

The effect of witnesses, attorneys, and judges on civil commitment in North Carolina: a prospective study

A total of 388 commitment hearings were observed and analyzed for demographic information on patients, name of judge, duration of hearing, identities of those present and those actually testifying, outcome of any procedural challenges, and concurrence of the judges with attorney and physician recommendations. Age, race, and gender of the patient were found to have no significant effect on the outcome of the cases. Disposition of the cases correlated with recommendations by physicians, witnesses, and state attorneys in an overwhelming number of cases. Possible harmful influences of plea-bargaining in commitment hearings are discussed.     

Investigators' and judges' opinions about civil commitment

As part of our work with the Oregon Task Force on Civil Commitment, we surveyed the judges and commitment investigators involved in the state's involuntary treatment program. In Oregon the investigators recommend whether or not a commitment hearing should be held. These mental health professionals indicated that current confidentiality laws restrict their access to important information. The investigators also expressed concern about the lack of resources with which to divert clients out of the commitment system. Judges too felt that relaxing the rules of evidence would improve the quality of commitment hearings. Regarding changes in the system, investigators and judges indicated that outpatient treatment (including compliance with medications) should be required of committed patients. These professionals noted that involuntary outpatient treatment could only be enforced if the system included a mechanism for hospitalizing patients who were noncompliant. Although the investigators believed commitment criteria should be broadened so that their clients could receive treatment before becoming dangerous, judges did not generally endorse this view. We discuss the implications of these findings for new civil commitment legislation.     

Judicial Dispositions of Ex-Parte and Domestic Violence Protection Order Hearings: A Comparative Analysis of Victim Requests and Court Authorized Relief

This paper presents findings from a study on judicial dispositions of ex-parte orders and domestic violence protection order hearings. Findings are presented with an emphasis on delineating the types of relief which are requested by victims of domestic violence in relation to the types of relief which the courts grant. Results indicate that disparity exists between what types of relief victims request and the types of relief which are awarded by the courts. Research questions are analyzed in order to further define these discrepancies with diverse policy implications and further research issues being recommended as a result of these analyses.     

Crime,deportation and the regulation of immigrants in Canada

Criminality is now one of the most frequently used provisions for deporting non-citizens from Canada. Individuals who are convicted of crimes outlined in current immigration policies can find themselves subject to deportation proceedings after they have served their sentences unless they are eligible to make an appeal and can do so successfully. This paper examines 177 reported immigration appeal hearings in Canada involving non-citizens who are ordered deported on the basis of criminality. Using documentary analysis along with basic statistics to analyze the appeal hearing decisions, I demonstrate how gender and racial ideologies shape the outcome of these decisions. Theories of moral regulation, social control and governmentality are employed to develop an understanding of the state's treatment of immigrants. That a significant number of immigrants in this study were not deported, but were granted stays with strict conditions highlights how deportation hearings are one mechanism for differentiating between ‘deserving’ and ‘undeserving’ immigrants. This study illustrates how, through the use of racial and gender ideologies, deportation practices are as much about differential exclusion as they are about enforced assimilation. Concerns around criminality rationalizes the ongoing regulation and surveillance of immigrants and the threat of deportation ensures their compliance.This research was funded by the Social Sciences and Humanities Research Council of Canada (SSHRC Grant No. 31-632203). An earlier version of this paper was presented at the British Society of Criminology Annual Meetings in Bangor, Wales, July 2003 and at the Canadian Law and Society Association Annual Meetings in Halifax, Canada, June 2003.     

In the wake of a negligent release law suit

Several staff members at a state psychiatric hospital were found negligent in a jury trial for having released a psychiatric patient who subsequently killed a member of the plaintiff's family. This study explored the impact of the law suit on the hospital staff members as individuals and on the functioning of the institution. Self-report measures revealed that both named defendants and nondefendant staff experienced symptoms of emotional disturbance associated with the litigation. Self-report measures suggest that the law suit was not instructive in any meaningful way regarding improved procedures for subsequent release decision making. Archival data indicate that the staff did release significantly fewer patients during the trial and follow-up period than prior to the litigation. Results are discussed in the context of Wexler's concept of therapeutic jurisprudence.This study was supported by a grant from the Research Grants Committee of the University of Alabama. The results are the opinions of the authors and do not reflect the opinions of the Research Grants Committee or the University of Alabama. We are indebted to Saleem Shah for his suggestions regarding methodology and particularly the need to investigate positive and instructive aspects of law suits.     

Matching Judicial Supervision to Clients' Risk Status in Drug Court

This article reports outcomes from a program of experimental research evaluating the risk principle in drug courts. Prior studies revealed that participants who were high risk and had (a) antisocial personality disorder or (b) a prior history of drug abuse treatment performed better in drug court when scheduled to attend biweekly judicial status hearings in court. In contrast, participants who were low risk performed equivalently regardless of the court hearings schedule. This study prospectively matches drug court clients to the optimal schedule of court hearings based on an assessment of their risk status and compares outcomes to clients randomly assigned to the standard hearings schedule. Results confirmed that participants who were high risk and matched to biweekly hearings had better during-treatment outcomes than participants assigned to status hearings as usual. These findings provide confirmation of the risk principle in drug courts and yield practical information for enhancing the efficacy and cost-efficiency of drug courts.     

REPRESENTING RESPONDENTS UNDER NEW CIVIL COMMITMENT STATUTES: An Analysis of Counsel's Role In and Out of the Courtroom

Using quantifiable attorney behavior measures, instead of outcome measures, both before and during court hearings, this study attempts to evaluate legal representation under reform civil commitment procedures. Counsel representing involuntary commitment respondents full time were well prepared. Court appointed counsel, though better prepared than reported in studies done prior to reform, did not fully investigate their cases. Lack of adequate preparation was associated with a passive role and a non adversary position in court.     

Screening for severe mental disorder in jails

Despite the demonstrated prevalence of severe mental disorder among jail detainees and the legal mandate to provide mental health services, most jails do not have the resources to incorporate traditional, time-consuming psychological assessment techniques into their routine intake process. As a result, a number of mentally ill jail detainees remain undetected and untreated. This study outlines the development of the Referral Decision Scale (RDS), which detects persons who have a high probability of having a severe mental disorder so that they can be given a complete diagnostic evaluation. The 14-item RDS was statistically derived using discriminant analysis from data collected via the NIMH Diagnostic Interview Schedule on 728 randomly selected male jail detainees and then validated on 1,149 prison inmates. The final validated version of the RDS had an overall sensitivity of 0.791, specificity of 0.987, and positive and negative predictive value of 0.791 and 0.013, respectively. Since these statistics far exceed current detection rates, the RDS is likely to facilitate the diversion of mentally ill detainees in situations where it is impractical to administer psychological examinations to all incoming inmates. Training requirements for the RDS and directions for future research are discussed.This research was supported in part by National Institute of Mental Health under grant No. R01MH37988. We would like to thank Karl Kilgore, Stuart Michaels, John Lyons, Karen Abram, Richard White, and Christine Davidson for their statistical insights and helpful comments. James Collins is due special thanks for making his North Carolina prison data available. We are also grateful to Philip Hardiman, Thomas Monahan, and Ronald Simmons for their cooperation with the data-collection process.     

The parole hearing: Decision or justification?

A detailed content analysis of tape-recordings of 100 randomly selected California parole hearings revealed that these hearings take the form of short, unstructured diagnostic interviews in which the hearing officers ask questions of the prisoners who respond in a very minimal way. Different patterns of questioning and prisoner response occurred for hearings where the eventual decision was to grant parole as opposed to deny parole, and this decision outcome could be predicted with a high degree of accuracy by discriminant function analyses. In general, the hearing officers made their own psychological assessments of the prisoners, even though they lacked knowledge and training in this diagnostic skill. According to the results of this study, the parole decision-making process appears to be a reliable one, but nevertheless its validity is questionable.     

Mediation as an alternative to criminal prosecution

In several American communities, paraprofessional mediation has become a substitute for criminal prosecution when defendant and victim have been engaged in a prior relationship. This article describes such a mediation project and its training program. It present a detailed account of two actual mediation sessions. An analysis of these sessions highlights some of the problems in mediating interpersonal disputes, particularly questions about underlying cause and the effects of different perceptions about the role of conflict in human interaction. The article also suggests a series of hypotheses to be investigated in further research on mediation.The research on which this paper is based was partially supported by grant No. 77-NI-99-0019 from the National Institute for Law Enforcement and Criminal Justice, U.S. Department of Justice. The views expressed are those of the authors only. We appreciate the cooperation received from George Nicolau and Ann Weisbrod of the Institute for Mediation and Conflict Resolution and from the staff of the Fosterton mediation project.     

Court Discretion

All mention of specific types and dimensions of dangerous behavior, given by witnesses in testimony in 414 civil commitment hearings of allegedly dangerous mentally ill adults in one state, was recorded to see how such evidence affects court decision. A positive association between involuntary commitment and evidence of dangerous behavior as defined by appellate courts was found. Commitments increased with movement up a continuum of action and physical harm and with recency and recurrency. Much of the variance in involuntary commitment is explained by court concern with substantive justice.     

Community standards of criminal liability and the insanity defense

Two experiments (N=71) compare lay standards of insanity to standards incorporated in American legal codes. In Experiment 1, case vignettes provided only legally relevant information about defendants' degrees of impairment in cognition or in behavioral control. Respondents' judgments of criminal liability ornot guilty by reason of insanity (NGRI) reflected an exculpatory standard of substantial impairment in both cognition and control. In Experiment 2, case vignettes provided realistic information about defendants' psychiatric diagnoses; respondents had to infer levels of cognitive and control impairment. Results showed that respondents made highly idiosyncratic inferences based on diagnostic categories, but once made, these inferences predicted NGRI judgments. Implications of the concordance between laypeople's rules for assigning NGRI verdicts and the rules used in American legal codes are discussed.Daniel Bailis gratefully acknowledges the support of Public Health Service grant No. 5T32 MH18021-07 for Research Training in Social Psychology during the time in which the present research was conducted. John Darley wished to acknowledge the generous support of the John Simon Guggenheim Foundation and Princeton University. Study 2 presents work done for the Princeton University undergraduate thesis of Tracy Waxman. The authors are grateful to Norman J. Finkel, Valerie Hans, and three anonymous reviewers for comments on an earlier draft on this article.Northwestern University.