Joshua’s Children: Constitutional Responsibility for Institutionalized Persons After DeShaney v. Winnebago County

Table of ContentsI. Introduction 794II. DeShaney and the Real World of Institutionalized Psychiatric Patients 797III. Chaos in the Circuits: The Interpretation of DeShaney's Application to Institutionalized Patients 802A. The DeShaney Decision is not Concerned with Institutionalized Individuals 803B. The Patient's Legal Status on Admission as Voluntary or Involuntary is not Determinative of Constitutional Rights 805C. Functional Custody: An Alternative to Formal Legal Status in Determining the Affirmative Constitutional Rights of Institutionalized Patients 814D. State-Created Harm and State Increase of Danger in the Context of Institutionalized Patients 8161. Actions by State Actors vs. Private Individuals 8162. State-Created or -Exacerbated Harm in the Context of Suicidal Patients 817TV. Ms. Hagan's Proposed Standard of Analysis ........819V. Conclusion 821I. Introduction"Poor Joshua!"1I cried when I read those words. It isn't often that a Justice of the Supreme Court expresses understanding that real people are affected by the Court's rulings, let alone grieves for them. It was an extraordinary moment in a Supreme Court dissent, a heartfelt response to a majority opinion in which the heart played no part.But, as Claire Hagan's Note2 makes clear, it is not only in matters of the heart that the majority opinion in DeShaney v. Winnebago County3 falls short. The Supreme Court used DeShaney to set out a framework limiting the power of citizens to claim affirmative constitutional rights under the Constitution,4 but its chosen framework is far less workable than the majority would have us believe. While federal constitutional protections are obviously not boundless, the lines drawn by the Supreme Court have led lower courts to chaotic and inconsistent interpretations and outcomes in cases involving institutionalized individuals.Ms. Hagan presents this case in a detailed and well-argued piece. She persuasively contends that in deciding DeShaney, the Supreme Court set the stage for the inevitable confusion and division among the circuits that continues to this day.Ms. Hagan begins by describing the DeShaney decision, pointing out errors in the assumptions on which the majority based its holding.5 Then, linking DeShaney with the Court's decisions in Youngberg v. Romeo6 and Zinermon v. Burch,1 she surveys the intersection of these cases in six different circuits, summarizing the current divergent approaches to determining the affirmative rights of institutionalized individuals.8 She gives the reader a sense of how people in psychiatric institutions actually experience their admission and institutional treatment, and she exposes the pretextuality of the concept of voluntariness in the institutional setting.9 Finally, she proposes a clear test that could be effectively applied by courts in determining whether an institutionalized individual may claim affirmative constitutional rights.10This is an excellent Note, and there is little to disagree with in its approach. My Comment will begin by summarizing what I have learned from almost thirty years of experience about what actually happens in institutional settings.11 Ms. Hagan accurately sets forth both the coercion and the loss of even the most elementary forms of choice and control represented by life in an institution. …