Pre-trial Civil Commitment of Criminal Defendants

Abstract

Individuals with serious mental illness and cognitive impairment are grossly overrepresented in the criminal justice system, as they are among the exonerated. Recent research indicates that these same individuals are also at higher risk of failing in supervised release for technical and administrative reasons. Based on these data, criminal justice reform advocates have argued that the mentally ill are a problem best addressed by the mental health treatment system, and not by criminal courts. One result of their advocacy has been the increased use of several long-standing statutory mechanisms – competence to stand trial (CST), dangerousness, and criminal responsibility (CR) – which enable involuntary pre-trial commitment and subsequent institutionalization of criminal defendants. In this chapter, the authors offer a review of case law and research findings regarding pre-trial commitments of criminal defendants. While well-intentioned, the once-rare application of CST, dangerousness, and CR statutes may perpetuate many of the same disparities highlighted by research on pre-trial detention of criminal defendants. That is, committed defendants are often similarly unable to contribute to their defense or maintain any community living responsibilities they have. Simultaneously, commitment proceedings place presumably vulnerable defendants in a recurring civil process that is subject to fewer procedural and statutory safeguards, and which nonetheless can carry criminal consequences. Yet scientific debate around the benefits of commitment is ongoing. The authors conclude by highlighting both direct (i.e. treatment-related) outcomes and collateral consequences of this practice, along with research-supported and promising alternatives to commitment.