Coercion, Consent, Compassion

Law, fundamentally, is about people. Everything a lawyer does, every case a judge decides, every piece of scholarship a legal academic writes, has the capacity to increase or to decrease human suffering. I want to thank the Law Review for inviting me to comment on Claire Hagan's excellent Note, Sheltering Psychiatric Patients from the DeShaney Storm: A Proposed Analysis for Determining Affirmative Duties to Voluntary Patients.1 I also want to thank Ms. Hagan for taking on such an important and complex set of issues. President Clarke kicked off this Notes Colloquium by saying that good legal scholarship covers topics that matter to people. That should seem obvious, of course, but those of you who have spent the last few months up in the Law Review office sifting through articles may wish that more of the legal academy took that advice to heart. Ms. Hagan's effort to explore the limits of protection offered to those who are "voluntarily" committed to psychiatric facilities is a critical topic that matters greatly to a lot of people.Attempts to distinguish "voluntary" actions and valid "consent" to an action in the legal sense often fail to comport with the average citizen's understanding of these terms. In the world I inhabit, criminal law, issues of voluntariness and consent play crucial roles in a defendant's journey through the justice system. The smooth operation of the criminal justice system is only achieved by the willingness of the vast majority of defendants to give up their constitutional rights. One context in which the issues of voluntariness and consent are particularly important is the waiver of the right to trial.2 Popular culture celebrates the criminal trial, the apex of our system, in which the truth is supposed to spring full grown from the structured clash of two well-armed adversaries. As we know, however, fewer than 5% of criminal cases ever reach that point.3 The other 95% of cases are resolved through plea bargaining and depend on an individual's consensual and voluntary waiver of her right to trial.4 To enter into a plea bargain, of course, the accused must voluntarily consent to a conviction.5 This raises complex issues concerning the meaning of voluntariness within a particular set of constraints.Another familiar criminal context is the circumstance surrounding interrogations and the right to remain silent. We all know that a statement made while in state custody is only admissible in court if it is voluntarily made.6 This designation of "voluntary" turns on whether the police gave Miranda warnings and whether the individual then voluntarily waived her right to remain silent.7 It is an unfortunate truth that the police can obtain this consent by any manner of intimidation, trickery, isolation, or any number of levels of coercion up to a point.8 And courts consistently uphold confessions given under coercive circumstances, as long as these waivers meet certain formalistic requirements of Miranda.9 To a large extent, the formalism of the "Miranda warnings" has swallowed the true meaning of what it means to voluntarily consent to waive a right.10As in the criminal law context, voluntariness and consent play an important role in the mental-health law issue of civil commitment.11 As Ms. Hagan explains in her Note, individuals committed to state mental hospitals have traditionally been labeled either "voluntary" or "involuntary" upon entrance into the hospital system.12 This label then dictates, for the most part, the state's relationship to the patient and the duty of care the state owes, if any, to the patient should harm befall the patient during her hospitalization.13 Ms. Hagan quite correctly points out the two major flaws in such a framework: (1) that the labels "voluntary" and "involuntary" may be misleading when the patient's individual circumstances are considered; and (2) that such a distinction may prevent courts from finding that a state has an affirmative duty to a voluntary patient, even when the patient fits within the existing functional custody or state-created danger exceptions. …