Looking for “a sustained, systematic constitutional violation to get outraged about?” Try civil commitment laws [David Post; Cato Unbound symposium]
Looking for “a sustained, systematic constitutional violation to get outraged about?” Try civil commitment laws [David Post; Cato Unbound symposium]
12 Comments
I wonder if those concerned about civil commitment have studied the “Dangerous Offender” designation used in Canada, which arguably accomplishes a similar purpose but as far as I know, without abuse. Basically, if someone is convicted of a serious crime of violence that does not call for a life sentence, the Crown may ask the court to designate him as a “Dangerous Offender” and present evidence that he is very likely to continue to present a serious danger to others if released. If the court designates someone a “Dangerous Offender”, it may, for present purposes, ignore the designation (which, however, persists and provides opportunities for enhancement of future sentences), sentence the offender to an indefinite term, or sentence the offender to a fixed term followed by a ten year period of special restrictions. The “Dangerous Offender” designation is used sparingly and to my knowledge is not considered by civil libertarians to be abused.
Canada has civil libertarians?
Or perhaps they have better politicians.
Yes, there are civil libertarians in Canada. There is, for example, a Canadian Civil Liberties Association, not unlike the ACLU.
“Canadian Civil Liberties Association, not unlike the ACLU.”
If they are like the ACLU, they are not libertarian.
I said that they are “civil libertarians”, which means that they care about civil liberties. There are significant differences between the advocacy of civil liberties and libertarianism.
I said that they are “civil libertarians”, which means that they care about civil liberties.
No, if they are like the ACLU, they do not care about all “civil liberties”, only those that are popular with the far left.
The ACLU no longer gives cares about religious freedom and never cared about the right to keep and bear arms.
Even more premature, from my home state (and, seemingly, the preferred way for law enforcement to dump drunks and vagabonds they don’t want to process paperwork for onto the health care system), Baker Act The act requires little in the way of oversight before its 72 hour involuntary commitment can be invoked – no due process here, just the say so of law enforcement or other persons empowered by the statute.
It occurs to me that habitual drunks might actually prefer this, as it leaves their driving license intact, and without prior record of intoxication for purposes of sentencing enhancement…
I remain at a loss as to how the Act makes Florida a better state in which to live, as it nets (apparently) far more false positives (several orders of magnitude?) than it seemingly protects the public from those who can not comport with our social compact.
Actually the Baker Act is far preferable to what came before it. People in the old mental hospitals had almost no due process. The Baker Act was necessary because of the closing of those human warehouses.
The Baker Act requires an evaluation within 24 hours, and if the decision of the doctor or law enforcement officer is that the individual needs treatment, then a court hearing within 5 days.
Some 2/3 of evaluations result in the immediate release of the subject.
The alternative for law enforcement confronting people with temporarily violent or self-harming behaviors or who are so incoherent they are a danger to themselves would be to arrest them on some small charge – which would likely entail longer confinement at greater expense to all parties.
Yes, it is sometimes misused, as any process relying on an official’s discretion will be. Sometimes the judge at the hearing will also get it wrong. That’s regrettable but as with any human process, unavoidable.
About 1/3 of the chronically homeless are mentally ill. Most people don’t have to deal with them but the cops & doctors do. This is a tool in their bag.
IMO, the Baker Act balances due process & public safety reasonably well. You have something better? Lets’ hear it.
I cannot address abuses of Florida’s Baker Act. However, I have heard of systemic abuses of California’s similar Welfare and Institutions code section 5150, also known as the Lanterman–Petris–Short Act. I expect the abuses are similar.
As I understand it, both laws were enacted as reforms to previous commitment procedures which allowed (among other things) greedy relatives to easily institutionalize grandma so that they could plunder her assets.
The abuses of the reformed laws which I have heard involve government agencies doing precisely the same thing. They pick a target who owns property, then trump up a legally cognizable (but usually frivolous) reason to place them under a 72 hour psychiatric hold. They then bill the target for the costs of the institutionalization.
If the target succeeds in getting released after the 72 hour hold, he still faces an enormous bill from the county, for the privilege of having been targeted for plunder. If he is not released, he is billed for ongoing institutionalization. In either case, liens are placed against his property for payment.
If he demands a trial on the issue of his competence (as the law provides), he is in for large bills for the trial and all its expenses, whether he wins or loses at trial. It is, after all, a civil matter, not a criminal matter. So there is no “public defender” to handle his case.
Either way: heads, government wins; tails, citizen loses.
There is no downside risk for government officials who engage in such abuses. Reforms in the 1970s, such as Florida’s Baker Act and California’s Lanterman–Petris–Short Act, merely cut some private corrupt actors out of the plunder.
Mr. Harris,
Understanding that anecdotes are not data, I invite you to sit around the ER of Tampa General on a Friday, Saturday, or Sunday night and watch the steady stream of law enforcement appearing, drunks in hand, and dropping them off on the overworked hospital staff rather than letting them sleep it off in the local jail – all the while delaying those patients waiting in the ER for (admittedly, believed non-critical) evaluation of cuts that won’t stop bleeding, chest pains, tightness of breath, and the full panoply of mid-grade fevers, wet coughs, and the like.
That has been my experience, and in that experience, it appears that misuse is rampant. I’d like to see a bit more due process on the front end.
Carlitguy, I keep hearing the mantra “Anecdotes are not data.” I disagree. They may not be rigorously structured data, but they are information, which fits the profile. Otherwise, what is the purpose of this site?
Bob
@BobLipton – i meant it only to indicate that my experiences in the greater Tampa Bay area re: the Baker Act might be unique within the whole state of Florida. For reasons of police department structure and human nature in general, I don’t believe that to be true, but it is a warning of sorts that my opinion is based on an incomplete data set.