The use of plea bargaining in civil commitment

Abstract

As attorneys, courts, and legislatures have taken greater interest in the process of involuntary civil commitment, critics have reacted with protests that what had been (and should continue to be) a clinical process was being “criminalized” (Abramson, 1972; Kumasaka, Stokes, & Gupta, 1972; Slovenko, 1977; Stone, 1982). Requirements for dangerousness as a criterion for commitment, increased attention to due process safeguards, and adversarial representation of patients at stricter commitment hearings have come under considerable scrutiny; there is, however, another criminal justice procedure which has been grafted onto civil commitment to which much less attention is being paid-plea bargaining. There is essentially nothing in either the legal or clinical literature concerning this process as used in civil commitment; in a leading textbook on forensic psychiatry, Dr. Seymour Halleck (1980, p. 142) even states “There is no analogy to plea bargaining in civil commitment cases.” There is, however, a large body of literature on plea bargaining in the criminal justice system, which will be used in the discussion in this paper. We will show that a process comparable to plea bargaining is assuming increasing importance in civil commitment as the procedures become more formalized; this paper will examine the issue generally, and present specific data from several jurisdictions to illustrate varying current uses of plea bargaining. Although most states now have formal requirements for patient representation by attorneys in commitment hearings, the roles of those attorneys vary widely, even within a given state. There is little question, however, that where activist attorneys have argued vigorously for release of their clients, they have been quite successful (Kumasaka, Stokes, & Gupta, 1972; Litwack, 1974; Miller & Fiddleman, 1982; Warren, 1977). Prior to these reforms of commitment practice, many states had few due process protections for patients; as attorneys were added, so was their accustomed arena of operation, the court hearing, to determine disposition for involuntarily hospitalized patients. Initially, most such hearings were rather perfunctory and informal affairs in which judges, doctors, and court-