Warren E. Burger: We'll hear arguments first this morning in Addington against Texas. Ms. Boston you may proceed whenever you are ready.
Martha Boston: Mr. Chief Justice and May it please the court. The appellant in this case is confined in Austin State Hospital as a result of an order of indefinite commitment. The appellant came from a disturbed family and in December of 1975 following a family argument, he was taken to jail and minor criminal charges were filed against him. Those charges were subsequently dismissed and in their place the state instituted indefinite commitment proceedings. The commitment trial lasted for five days, during which time the jury heard conflicting testimony as to the need to commit the appellant. The appellant urged that the standard of proof in his case should be beyond a reasonable doubt but the jury was instructed to make its finding on clear unequivocal and convincing evidence.
Warren E. Burger: The appellant is an adult, isn't he?
Martha Boston: Pardon me.
Warren E. Burger: He is an adult, is he not?
Martha Boston: He is. He is approximately thirty one.
Warren E. Burger: He has been in mental institutions on how many occasions before this?
Martha Boston: The record isn't clear on exactly how many occasions. There have been several, I believe.
Warren E. Burger: Somewhere in the record it suggested that he has been in ten times in the last five years.
Martha Boston: I believe it was something like eight or nine within the last five years. The appellant had urged that "beyond a reasonable doubt" be required but that was overruled and the court instructed clear and convincing evidence or clear unequivocal and convincing evidence. The jury found that he was to be committed for an indefinite period of time and the appellant filed his appeal in the intermediate state appellate court on the basis that proof beyond a reasonable doubt is required by the due process clause. That court agreed with the appellant and reversed the order of commitment, but on appeal to the State Supreme Court, that Court found that a mere preponderance of the evidence was all that was necessary to indefinitely confine a person in a mental hospital. That court therefore reversed the Court of Civil Appeals and affirmed the order of commitment from the Trial Court. As a result of this order of commitment, the appellant has been confined behind the locked doors of Boston State Hospital for almost three years. He can't leave the facility, his movements, his activities; his visitors within the hospital are all restricted subject to supervision by the staff. He's been subjected to chemical therapy and to twenty-two electroshock treatments. He faces very real possibility that he may never leave the walls of Austin State Hospital.
Warren E. Burger: If we go back to the standard, what was required to be proved to bring about a commitment in the jury trial that you say lasted five days?
Martha Boston: The substantive standard in Texas is two issues. The first is that the person is mentally ill and second, that the person requires hospitalization for his own welfare and protection or for the protection of others. It's possible under the statute; it is actually required under the statute to reach a third issue regarding mental incompetency, but the state failed to plead that, so it was not submitted to the jury.
Warren E. Burger: And there was psychiatric testimony on both sides.
Martha Boston: There was a psychiatric testimony on the state's side. On the appellant's side, there was a social worker and psychological testimony and our psychologist was stipulated to be an expert.
Warren E. Burger: And the psychiatric testimony was to the effect that he was schizophrenic, is that correct?
Martha Boston: A schizophrenic, yes. They were -- some said he was chronic schizophrenic and then there was - that was said, he was schizophrenic paranoid type, paranoid schizophrenic, variations of schizophrenia, yes Your Honor. The appellant has been confined for three years, but in addition to the confinement, the appellant also has been stigmatized -- the state by labeling him a mentally ill person, has labeled him a social deviant. And if he ever leaves the hospital, he will be a former mental patient and the studies are replete with evidence that this is a form of social deviancy that is most feared and rejected in our society.
Potter Stewart: Does Texas provide any periodic review?
Martha Boston: Texas has a requirement that each patient be examined at least every six months. There is a provision whereby he, the patient, may petition for reexamination. He is limited to doing that the first time a year from his commitment and then after that he can only do it every two years.
Potter Stewart: Has the appellant sort that review?
Martha Boston: He has not.
Potter Stewart: But there have been six month reviews?
Martha Boston: There had been, but this appeal has been pending all at that time. The interests that are at stake for an appellant in this case and indeed for anyone facing an indefinite commitment are very much the same interests that were at stake in Winship. Those are the interests of the juvenile delinquent or a criminal defendant. The interests are that of the total loss of his unconditional liberty and the freedom from being stigmatized. The interests were found by this Court in that case to be of such transcending value that proof beyond a reasonable doubt would be required of the state before those interests could be sacrificed, that argument was made or that decision rather was made regardless of the fact that the state's motives in juvenile delinquency proceedings were benevolent and very worthwhile motives. The motives in fact are very similar here, those of protecting and those of giving treatment. The Court's reasoning was very clear in Winship that the reason for requiring the higher standard of proof is that the interest for the individual at stake are so great that the risk of an erroneous confinement cannot be any higher than that. The Texas Supreme Court in its decision totally ignored the teaching of Winship. In fact it relied on the very reasoning that was rejected in Winship, that is that the benevolent state motivations justify a lower standard of proof. As I said, the state's motivations are almost identical and there seems to be no real justification for using a lower standard of proof based on that and based on Winship.
William H. Rehnquist: Ms. Boston am I right in thinking that you do not here press the contention that although the beyond a reasonable doubt requirement might not be required by the Fourteenth Amendment, there is a requirement that a proof be at least by a clear and convincing evidence.
Martha Boston: Well, Your Honor it's my position that proof beyond a reasonable doubt is required. I recognized that there is a very real possibility that this court would consider clear and convincing as any other mediate ground and in deed that was the instruction–-
William H. Rehnquist: What makes you think that?
Martha Boston: Well, there is a number of states that use clear and convincing and that has been argued in the briefs on the other side, well the amici briefs have suggested clear and convincing might be an alternative.
William H. Rehnquist: Well don't you think though that the rule of proof beyond a reasonable doubt, which was applied at Winship, had great historical roots in the common law as proof for a criminal case. Whereas clear and convincing evidence simply comes over from the fraud type of case and a civil action, it's a fairly recent origin and so far as I know it hasn't been implanted in the constitution historically.
Martha Boston: I think you are right although of course this court has recognized clear and convincing is a standard in some cases, deportation for instance. But the “beyond a reasonable doubt” standard as it comes down through the common law and as it was stated in Winship, the purposes of using that standard are to reduce the risk of an erroneous confinement and that's exactly what's at stake here, regardless of the fact that this is labeled as winship, and we found labeled a civil proceeding.
Thurgood Marshall: Ms. Boston assuming the case in Texas and you have three equivalent psychiatrists of equivalent standards, I recognize, I didn't know two were exactly alike, but there are three of equivalent standing on each side. Three will say yes and three will say no. How in the world will a layman find beyond a reasonable doubt?
Martha Boston: Well, I believe Your Honor that -- well, first of all the Jury's function of course is to weigh the believability of each of those three or six equivalent psychiatrists.
Thurgood Marshall: But if it were a criminal case.
Martha Boston: That's right.
Thurgood Marshall: But this is not.
Martha Boston: That's right but very much the same thing is its state but additionally I don't believe that the state has to rely solely on psychiatric testimony in a vacuum. I think psychiatric testimony or psychiatric assessments are based upon observations, history, they are based upon facts. It's an opinion drawn from facts. And there's enough--
Thurgood Marshall: Well, can a layman do that without any help?
Martha Boston: Well I would suggest that the state bring in witnesses perhaps eye witnesses to acts of dangerous conduct or continuing history of self neglect. It seems to me that it would be quite easy to buttress the psychiatrists' opinion by bringing in the evidence that the psychiatrist is basing his opinion on.
Thurgood Marshall: The average person without a motive can find out that this is a schizophrenic person?
Martha Boston: Well that is an expert--
Thurgood Marshall: Well, you'd at least have to tell him what a schizophrenic person was.
Martha Boston: That's true, but being a schizophrenic person alone is not sufficient under the standard to lock a person in a mental hospital.
Potter Stewart: Well, would you tell us again what the standard is in Texas?
Martha Boston: Yes it's for-- requires hospitalization for his own welfare and protection or the protection of others.
Potter Stewart: So that's an opinion, that's a predictive opinion rather than any factual determination, isn't it?
Martha Boston: Well it's really hard to distinguish what's predictive, what's historical, what's factual, it's all very much tied in together but it seems to me that the assessment comes from a factual basis.
Warren E. Burger: Did jury-- did this jury hear from some witnesses that there had been ten episodes which previously led to his confinement in mental institutions over a period of five years?
Martha Boston: Yes, it did.
Warren E. Burger: So that that would be a basis on which they could draw some influences about the future?
Martha Boston: That's right; there were also factual witnesses there. And this court recognized in Minnesota ex Rel. Pearson, which was a sex offender statute I believe that, which is not exactly in point, but the language of the court recognized the ability of a jury or fact finder to look at acts of past conduct as pointing to probabilities of future conduct.
Potter Stewart: The reason I asked my question Ms. Boston is that it occurs to me that what standard of proof may be required is inevitably connected with what the standards are for involuntary commitment in any particular state. If they're historic factual standards, it may be one thing. If they are opinion standards, or experts, it might be something else. And if it's a very strict standard before substantively before a person can be involuntarily committed, it may be one thing. If it's very a loose, slow threshold, it may be something else. Doesn't matter this substantive criteria for involuntary commitments and each state or court I suppose is different.
Martha Boston: Well I would think that that would be the area where we will allow the states their flexibility in drafting within of course guidelines of broadness and vagueness, allow the states the flexibility of creating, writing out their substantive criteria.
Potter Stewart: It isn't there where perhaps the real constitutional wise might lie. It would certainly -- there are—it metes and bounds -- the constitutional metes and bounds I suppose which a state could not exceed, it couldn't say that anybody with hair of a certain color should be involuntarily committed.
Martha Boston: Certainly that's true, but the wise, it seems to me is in the basic question of how much proof regardless of what we're proving, how much proof we are going to have, and that's what was addressed in Winship.
Potter Stewart: Well, wouldn't that depend on what is necessary to show before somebody can be involuntary committed, aren't the two just inevitably connected?
Martha Boston: Well they are connected but I don't think--
Potter Stewart: Can one say, can one say for the nation of fifty states, fifty individual states each with different standards for involuntary commitment that the constitution requires a certain level of proof because doesn't the level of proof isn't it as I say inexorably connected with what the substantive criteria are for involuntary commitment?
Martha Boston: Well Your Honor it is connected but in the same sense in the criminal context we don't vary the quantum of proof based on the elements of the offense.
Potter Stewart: But generally those are historic facts we're talking about in a criminal prosecution.
Martha Boston: Generally--
Potter Stewart: -- and other things.
Martha Boston: Certainly, but again the predictive nature of these hearings of this evidence as it has been cast is not solely predictive it's-- there's very much factual evidence there and as I said the psychiatrists' assessments are based on factual evidence.
Potter Stewart: But they're giving their expert opinions.
Martha Boston: That's true. But the fact finder does not have to rely on that in a vacuum if the state or the respondent brings forward other factual evidence. And I would think that that would be the most responsible way to conduct a commitment hearing for the state would be to rely not just on psychiatric testimony but to bring in as much evidence but as much--
Potter Stewart: What if a state said that anybody can be involuntarily committed in our state, if in the opinion of two qualified psychiatrist, he should be?
Martha Boston: Well I think –
Potter Stewart: And those were the substantive standards for involuntary commitment, now where's your burden of proof there if two qualified psychiatrists simply testified on opinion he should be involuntary committed.
Martha Boston: Well I think those are two separate questions, I think--
Potter Stewart: But what if a state did do that as a matter of a substantive law of involuntary commitment?
Martha Boston: Are you asking me if “beyond a reasonable doubt” could be met?
Potter Stewart: Then there would be no question of burden of proof, the question would be are those substantive standards constitutionally permissible?
Martha Boston: That's right but that's goes to the question, the substantive standards aren't in question here the only issue –
Potter Stewart: No, I suggest though that what is in question is the burden of proof, I mean that's the what does a constitution require by a way of burden of proof and my suggestion and my question is that there maybe no one answer applicable to 50 different states because each State has different criteria for involuntary commitment.
Martha Boston: I understand.
Warren E. Burger: Are there not some states where the statute provides precisely what Mr. Justice Stewart has just outlined that a commitment involuntarily maybe made on the testimony of two physicians?
Martha Boston: I'm not aware of there being any states that don't require other criteria. I'm not aware of any states that will allow commitment based just upon mental illness, to mental illness plus something and it maybe cast in terms of welfare and protection as Texas is. Some other states cast them in very distinct, very orderly requirements but whatever the state is requiring to be proved--
Warren E. Burger: Are there not some jurisdictions which provide that after the return of the verdict of not guilty by reason of insanity that commitment to a mental institution maybe had simply on a preponderance of evidence?
Martha Boston: Yes.
Warren E. Burger: Federal statutes and at least in the District of Columbia Code and in many states, is that not so?
Martha Boston: I believe it is, I am not a criminal law practitioner and I am not familiar with the statutes all across the line.
Warren E. Burger: But don't you think that's relevant?
Martha Boston: Well the question of the insanity defense, it seems to me as if the state, my understanding of Leland versus Oregon is that the state can require proof of the insanity defense beyond a reasonable doubt and therefore there is the imbalance that might--
Thurgood Marshall: Do you believe the state could commit without a trial?
Martha Boston: Do I believe the state can commit without a trail?
Thurgood Marshall: Yes.
Martha Boston: No I do not; I believe that would be a clear violation.
Thurgood Marshall: But do you have -- many states can still do it?
Martha Boston: That commit without a trial?
Thurgood Marshall: Yes, on the written statement of two members of the medical profession even if they are obstetricians.
Martha Boston: Well-
Thurgood Marshall: Or eye specialists.
Martha Boston: In Texas for instance that-- there does have to be that-- there but the hearing is required unless you are talking about commitment pending adjudication.
Thurgood Marshall: How important is that? I don't think if you take them on the other states, -- you want to stick with Texas.
Martha Boston: Well I think if the state is going to commit somebody without a hearing just on the basis of that, I think that's a clear violation of defense.
Potter Stewart: Well in many states, well they may have a hearing they don't have a jury trial.
Martha Boston: That's true, but that's a very different analysis. This court has considered the issue of a jury trial or right to counsel separately through the situations in which it's considered the standard of proof.
Lewis F. Powell, Jr.: Ms Boston may I ask you a question, it's somewhat similar to Justice Stewart's question. Suppose you had statute that required proof beyond a reasonable doubt of three facts, one mental illness, two some past act of violence and thirdly say that in that commitment would be in the best interest of the patient. I assume that would be a perfectly constitutionally statute in your view, if those were the three substantive requirements?
Martha Boston: Accepting the notion that that is, yes I mean--
Lewis F. Powell, Jr.: Now supposing if-- after that statute was enacted constitutionally, legislature said, “Well, we are going to add a fourth requirement that there be a prediction of future dangerousness either to the person himself or to others. But that fourth requirement shall only be required to be required to proof of beyond-- clear and convincing evidence.” The statute has now become unconstitutional by your analysis even though it's more protective of the person.
Martha Boston: Well all the state has to do is change the last criteria.
Lewis F. Powell, Jr.: But it cannot include the last criteria under your analysis unless it requires proof of beyond a reasonable doubt of that element of the determination.
Martha Boston: That's right. But I think any element that is going to result in total confinement; the total deprivation of liberty has to be proved beyond a reasonable doubt. I have reserved 10 minutes for rebuttal if there are any further questions, I would be glad to answer.
Warren E. Burger: Very well Ms. Boston.
Martha Boston: Thank you.
Warren E. Burger: Mr. Hury.
James Hury: Mr. Chief Justice may it please the Court. It is the position of the State of Texas that I humbly represent here concerning the due process question. And we feel that the question involving the statute are the provisions as recognized by the State of Texas concerning reasonable doubt or preponderance does not exist in a vacuum. The due process that is followed by the State of Texas does not hinge on the question of whether it should be preponderance of the evidence or beyond a reasonable doubt. It hinges, we feel, on the other necessities of due process which are granted in this particular case and indeed every case of someone who used to be committed in the State of Texas. The whole procedure does not begin merely from the question of indefinite commitment. The procedure begins basically with the question of whether or not a temporary commitment should be allowed and it indeed is necessary for temporary commitment before indefinite commitment. A person or a physician must notify court that physician or persons must be recognized by that court and that court then sets aside two physicians who are responsible for evaluating the condition of the person who is to be evaluated. And then you have a notice, have a hearing before a judge and maybe committed for some 90 days in the Texas Mental Health hospital. The judge is able to stop this proceeding at any point up until the time that the person has entered into that procedure and indeed upon entering the particular mental institution he could be discharged immediately. In the event that a person is discharged and comes before a judge again concerning his mental capacity, there is no guarantee that the temporary commitment will not be tried again, and indeed it has in this particular case there were some eight temporary commitments.
Warren E. Burger: Can you tell us a little bit at some point about the review procedures, the periodic reviews, do that at your own convenience.
James Hury: My understanding Mr. Chief Justice is that there is a minimum requirement of two mandatory reviews or one mandatory review every six months or two per year. I do believe in just my own knowledge that there is considerably more than that. I do not believe that the State of Texas allows someone to languish in a building somewhere and only see them once every six months. I am prepared to represent and I believe that we provide them with competent psychiatric evaluation as much as possible or as much as the facilities allow that they are under psychiatric evaluation and indeed that the drugs and the treatment which are recognized by the medical society is trying to help these people. The indefinite commitment which-- there were two in this particular case follows a sworn petition which is presented by the judge again two –- in this case two psychiatrists and I believe it is required that at least one be a psychiatrist that must evaluate this person within 15 days of a hearing of this particular type. An attorney can and is almost and I believe is always provided that seven days before the particular hearing notice must be given again, a jury is available and indeed at the end of that particular procedure if after a jury verdict, a judge does not agree with that verdict he might order the return of the lawsuit to another jury in ordering a new trial. This particular procedure, it is the hope of the State of Texas, forms the basis for an entire evaluation of some possibility of whether or not this person does represent a danger to himself or others and indeed try in some way to make this person available once again to society. There can be no doubt that the question involved here does involve some loss of liberty. The idea is whether or not this loss of liberty is analogous to a penal institution and that loss of liberty being a total and complete deprivation of liberty for a specified period of time. It is only pointed out that we do feel that the procedures whereby the commitment is -– the committed person is evaluated and indeed the very possibility that upon the day of his admission he could be released, points to the idea among other things that this is not analogous to a prison, it is not analogous to a set period of time in which a person must languish in prison before his release even considering parole. The provisions of the Mental Health Codes and the mental health provisions of these hospitals does not render this a prison. It renders it a place where we hope will assume small success to be able to help people. I think there's another basic problem here as to whether or not the person who is considered for both procedures, the criminal procedure and the civil commitment procedure, whether or not that person is of a mind to be able to adequately decide what is best for that person. The thought or idea of a culpable defendant in a criminal matter conspicuously concern someone who is available to input by counsel, by other persons who are trying to represent that person before a court of law, his ability to evaluate his position and his possibilities while confronted with the state are available to a person who we can -- who the system assumes is culpable if there's no question of psychiatric problem raised. The problem I think is particularly available as to what in the world are we going to do with someone who does not completely understand what's going on about him, as to someone whose ability to evaluate his ability to proceed in life, his ability to understand what the people around him need in addition to his own need, and I think the particular problem here is that if a person does not wish to seek help that the first problem in effective treatment is to getting that person into a position where he acknowledges that he does have a problem and that he is suffering from some abnormal condition. If this particular provision can be met, and it is the hope that after a person realizes that he has a problem, then the procedures under which this State of Texas proceeds is of hopeful nature that it would return this person to some sort of usable place in society.
Thurgood Marshall: As to change it to beyond a reason of doubt, intolerant to the State of Texas?
James Hury: As a question of whether it's intolerant or not, the problem I think pointed out by the State of Texas, and once again just pointing to Turner, is one of the inexact nature of psychiatric testimony, the inability of certain forms of the medical profession to predict what is going to happen in the future, and as to whether or not that particular ability to predict is available to the question of beyond a reasonable doubt. I think what it will certainly do sir is to reduce the number of people who are committed to treatment because of the ability of counsel to cross examine a psychiatrist and to have him admit that not all psychiatrists agree on what is to happen in a particular case.
Thurgood Marshall: It's also true in a criminal case but you have to do it?
James Hury: Yes, sir without a doubt.
Thurgood Marshall: And in this, it's your position that you can't do it?
James Hury: It's our position that in denying certain abilities to prove certain things that is that there are certain standards that would be much more difficult to meet, that there are people who would be excluded from that process.
Thurgood Marshall: It is not impossible, it could be done.
James Hury: It is being done; it is already the standard in several states.
Thurgood Marshall: That is what I mean.
James Hury: Yes, sir.
Harry A. Blackmun: Mr. Hury, one of the amicus briefs, one for the National Center for Law and the Handicapped makes the argument that the unreliability of predictions cuts the other way. That if you have a low standard of proof, it means that there will be a lot people committed who really should not be committed because psychiatrists tend to over predict dangerousness and the like in order to be conservative. I'm just wondering, isn't there some force to that suggestion that the whole fact that it is quite an unreliable and uncertain area is a reason for not putting – not depriving people of their liberty on doubtful evidence.
James Hury: The opposite argument is of course is valid. The only thing that I would like to point to is that this question does not exist in a vacuum, that there are other things, which are available to be proved. There are certain concrete things that can be proved concerning a person's past history. It is particularly the problem of predicting future problems that come within the psychiatric problems that you are talking about.
Harry A. Blackmun: This problem would be avoided if you adopted a system such as Wisconsin has relying on past acts rather than opinions as to what might happen in the future that I guess part of it really relates to the substantive standards doesn't it?
James Hury: I believe it does sir.
Warren E. Burger: Is this fundamentally very much different from the kind of predictive analysis which a parole board makes when it considers whether it should release a convicted prisoner half way or one-third the way through his commitment?
James Hury: There is some analogy there and we have pointed out in our brief that we believe that there is some ability to predict some types of future behavior. The parole situation does in effect place some very serious limitations on a person's movements upon their release from the penitentiary, and I would say that would be the only difference.
Warren E. Burger: Well, that is the reporting requirements, but they can't monitor a parolee 24 hours a day or even once a day. They report perhaps once a week or perhaps once a month depending on the nature of the background of the person, but the predictive element is quite similar, you agree?
James Hury: I agree that there is some similarity, but I think the difference here is that psychiatric testimony in the form of the mentally committed person is much less predictable than a mere idea of whether or not a person is going to back into a situation where they have committed crimes before.
Warren E. Burger: But a parole board in releasing a prisoner is making a decision that on balance is more unlikely not to engage in anti-social conduct than—that he will do so. That is the decision isn't it? Now frequently they are wrong of course, we know that.
James Hury: I definitely agree with you Your Honor.
Byron R. White: Are you defending the standard of proof that the Texas Court thought should obtain?
James Hury: Yes sir, I am.
Byron R. White: Preponderance would be all right with you?
James Hury: The -- having taken part in these particular procedures, I guess of course I am skewed in one direction or another, but there is another side to some of these procedures, which myself as –
Byron R. White: What about the preponderance standard, is that-- that is constitutional in your--?
James Hury: Yes sir, I believe so. Providing the other safeguards that we provide, it does satisfy the due process.
Byron R. White: Although clear and convincing has been adopted by many states I take it.
James Hury: Some of the states even Illinois suggest that clear and convincing is the same thing as beyond a reasonable doubt only in a civil sector. I am not too sure whether or not there is an absolute definition of what clear and convincing is, but –
Byron R. White: Or a preponderance?
James Hury: I think that there is a historical usage of preponderance and we would ask to able to rely on that.
William H. Rehnquist: Well, there comes a point doesn't it when the Jury's eyes just glaze even on charges on the substantive issues if the judge goes on for 20 or 25 minutes as he usually does and the difference between preponderance of the evidence, and clear and convincing evidence is often lost on Jury.
James Hury: I agree with the Court, yes sir.
William H. Rehnquist: I am not the Court, I am the one that–
James Hury: I beg your pardon sir. I agree with you.
Warren E. Burger: Here of course the trial judge gave a much stronger instruction and gave the one that Mr. Justice White alluded to as being required in some states is, if you know is that the general practice of trial judges in these hearings or do they stage the traditional preponderance test of civil cases?
James Hury: I believe that so far as the State of Texas is concerned that it has been a usage to use the clear unequivocal and convincing and indeed--
Warren E. Burger: Even though the Supreme Court of the State says they don't need to do it.
James Hury: Yes sir.
Thurgood Marshall: Mr. Hury I notice you're from Galveston, you're local.
James Hury: Yes sir.
Thurgood Marshall: Can you speak for El Paso or any place else in Texas?
James Hury: Only by hoping that we all act under the same Mental Health Code that is enacted by the legislature but the -- in particularly the two cases which were decided in this question by the Supreme Court of the State of Texas, Turner and Addington were both--
Thurgood Marshall: Those are the two in your brief?
James Hury: Yes sir. Those were decided on clear and convincing in the lower court and were in a short sentence in the bit, the end of the--
Thurgood Marshall: I assume what you are saying now is that you don't have to use the words “beyond a reasonable doubt” will you go that for? Because I agree with the Chief Justice about the Judges' instructions. It seemed to me, they went a little further than preponderance, but they didn't go to reasonable doubt.
James Hury: No sir they did not and here again just as a person who has taken part in it, we would ask to be able to prove it by preponderance.
Thurgood Marshall: You are telling us that as the state court say, the only ones you know are the two, say that that's okay and that's what's expected a little bit more than preponderance.
James Hury: That's what was submitted by lower court but the Supreme Court said that in the future they direct those courts to have a preponderance of evidence as the criteria from their own, as mentioned in virtue of the last paragraph of the State of Texas', the Supreme Court's opinion. If it pleases the court, I wish to reserve time for maybe week or so. Thank you.
Warren E. Burger: Very well. Mr. Klein.
Joel I. Klein: Mr. Chief Justice and May it please the court. I'm here today representing the American Psychiatric Association as amicus curiae. This court is well aware that psychiatrist who play a critical role in the actual civil commitment preceding, and based on the experience, with the association and its members, we would urge the court not to constitutionalize the burden of proof in civil commitment. We do so largely for the reasons that I think were being suggested by Mr. Justice Stevens when he asked about the relationship between criteria and substantive burden of proof that is a substance of criteria in the burden of proof. It seems to me as the court recognized in Patterson versus New York, only the term before last, that if you lock in a burden of proof, you in many ways limit the discretion of a State in terms of its criteria from liberalizing, from changing, from beginning to cope with new and different ways to deal with difficult and intractable problems such as mental health and involuntary commitment. Now as Mr. Hury has made claim from the State of Texas, this is not a Gault typed case. Texas gives civil committees a great deal of due process including a jury trail. In this particular case, this patient had a five day jury trail with I think as many as 12 to 14 witnesses. The single question is whether one procedure should be mandated to cut across the board in all 50 states in civil commitment? Now there is the simple analogy to Winship and juvenile proceedings that appellant relies on. I think the analogy doesn't hold water, and I think so for the following reason. After Gault, the juvenile proceeding was in fact formulized. You then had the issue of the burden of proof, that wasn't going to change the proceeding by and large that was simply going to require more evidence and protect against an erroneous conviction of a criminal charge. However when you go to McKeever the court would not constitutionalize the jury trial requirement and it didn't do so because it was concerned that a jury trial would affect the juvenile justice system in a way perhaps that the burden of proof would not and that was because it would strip the juvenile judge of his role. Now if we turn to civil commitment, I think the same thing applies when we are talking about burden of proof that is I think it's much more analogous to a jury trial requirement. And the reason I say that is as follows. It seems to me unlike a juvenile delinquency determination a civil commitment spans a host of different criteria. Juvenile delinquency deals with the commission of a criminal act. The burden of proof beyond a reasonable doubt is well suited to prove past acts. Civil commitment deals with a variety of things in a variety of States. Some of which do focus quite strongly on dangerousness and actually require as Wisconsin does proof of a passed over it act that it seems to me as a legislative decision and perhaps one that the legislature can responsibly make based on its experience, but I don't think this court should lock that process in by mandating a high burden of proof. The effects –
Byron R. White: Well, suppose the substantive standard does depend in part on a past act, a historical fact, which way would you run the argument a lower or a higher standard of proof should be required. You say if it's a past act --
Joel I. Klein: To the extent it's a past act, it's certainly more feasible to prove by a higher standard of proof.
Byron R. White: Yes.
Joel I. Klein: There's no doubt, but my argument would be that the constitution shouldn't require that because the state can then address its standard of proof to the given criteria.
Byron R. White: Is it your argument, your argument in a way is that the standard of proof should -- depends to some extent on the substantive standard?
Joel I. Klein: I think the standard of proof affects it, not that it depends upon, I think it is a matter of constitutional law.
Byron R. White: In which way do you run it, the looser the standard, the looser the standard-- what should happen to the burden of proof then or the standard of proof go up or down?
Joel I. Klein: As a matter of constitutional law, I think it should be unaffected.
Byron R. White: Now so that the standard you choose really doesn't depend on the substantive standard?
Joel I. Klein: The standard of proof will affect the substantive standard I'm arguing, because if you choose a high –
Byron R. White: Yes, but a substantive standard shouldn't affect the standard of proof?
Joel I. Klein: I think that's right. As a matter of constitutional law, now as a matter of policy I think it is appropriate and for example, if you look at the states that have looked and taken a prior act standard like Wisconsin, they've used as a matter legislative policy proof beyond a reasonable doubt.
Byron R. White: Because some of the arguments in the briefs at file the -- are that the looser the standard the higher -- the looser the substantive ground, the higher the standard of proof because the more margin for error.
Joel I. Klein: Well, there is more margin for error, but it depends what do you mean by “error” Mr. Chief Justice. And here I think it's very different from the criminal process and I think we have to get away from that kind of thinking unless we're going to take the position or this Court's going to rule that the Parens Patriae power of the state is nonexistent and that all state efforts in hospitalizing somebody or police power efforts -- it seems to me what the difference of an erroneous commitment is that in a criminal area, there's a lucky guy. The guy who should be convicted and is acquitted. He walks away and he has got a real windfall, if he commits another crime, the state suffers the burden, the laws. In civil commitment that's not the case.
William H. Rehnquist: Mr. Klein he does that I take it whether the offense with which he is charged is subject to a six months penalty or death penalty.
Joel I. Klein: That's correct, but in civil commitment that's not the case. The person who is allowed to go free so to speak --
Byron R. White: So if the lower standard of proof means the possibility of more error, we ought to just put up with it.
Joel I. Klein: Well, it depends on what kind of error.
Byron R. White: Because the consequences of error are not as disagreeable as in the criminal.
Joel I. Klein: They're far different. That's correct.
William H. Rehnquist: Well, and the consequences of error and erroneously sentencing somebody to a six-month sentence are considerably different than the consequences of error in sentencing someone to death are they not?
Joel I. Klein: Yes they are, but there is no higher standard of proof than proof beyond a reasonable doubt but even in this six-month case Mr. Justice Rehnquist, if he goes free, if the criminal walks out, he gets a windfall if he did it, whereas if the patient walks out, because society or psychiatry cannot adduce enough evidence to satisfy an unduly high burden, the patient is not helped, we do no favor to let somebody walk out of an arena and return in to freedom who is very, very ill. Now, if you look at the facts of this particular case, this particular gentleman engaged repeatedly in more and more serious behavior. Now, I assume we can wait as a society until somebody commits the ultimate act to proceed under the criminal law or we can try and intervene –
Thurgood Marshall: But if you keep developing this than you can prove beyond a reasonable doubt, if you say this man is so violent.
Joel I. Klein: This particular gentleman, that's right, that's the problem with the process. We don't want to reserve civil commitment for the violent people. I agree that if you if you turn the system toward the violent--
Thurgood Marshall: Then it's your submission then in this case Texas could without any problem prove beyond a reasonable doubt.
Joel I. Klein: Could prove the fact that this gentleman engaged in past threats and acts, that is true, they could not prove beyond a reasonable doubt, it seems to me, that his mental illness was so severe or that the effects of not treating him would be to have his condition deteriorate and his violence to increase in the future.
Warren E. Burger: But do we set a standard ordinarily in the law because of the potential of being able to meet the high standard that is simply because Texas could prove beyond the reasonable doubt as they might, well they've been able to do here. Is that a constitutional reason for requiring that standard?
Joel I. Klein: Absolutely not Your Honor, it seems to me that is a legislative determination which legislatures have and can make, but that's not a determination that this court as a matter of constitutional law should make.
Byron R. White: Mr. Klein you are arguing as I understand that if we-- unless we lower the standard, have a relatively low standard, there will people who will go free who ought to be committed? Isn't the adverse also true that if you have a low standard, there will be people who will be committed who should not be committed?
Joel I. Klein: I think that's right.
Byron R. White: And we must-- what you are saying it's better to accept the risk of a significant number of people being erroneously committed than the other side?
Joel I. Klein: Well, it depends again what an erroneous commitment is, this is a little different than the criminal law.
Byron R. White: Well one does not in fact satisfy the standard of danger to himself or others or being mentally ill. I suppose you can be wrong about the mental illness.
Joel I. Klein: That is correct and it does seem to me there is a potential for that erroneous commitment and it increases as you lower the standard.
Byron R. White: Do you disagree with the essence of the statistical material in the brief I referred to earlier about the probabilities? Are you familiar with what I'm talking about?
Joel I. Klein: Well, I certainly disagree with the issue on probabilities about mental illness. I think there are two issues that is there were numerous specific diagnoses and there's a great deal of disagreement about that. There is not a great deal of disagreement about severe mental illness in terms of psychosis.
Byron R. White: What in your judgment or the judgment of your client, what is the probability that a prediction of dangerousness to oneself or others by psychiatrist will be accurate?
Joel I. Klein: If by dangerous you mean physical?
Byron R. White: Well within the meaning of the Texas Standard, how reliably can you predict that?
Joel I. Klein: It's very hard to say, Your Honor, it could be, it depends on each individual case. Long-term dangerous -- if you are talking about in the next five to ten years, very low reliability. If you are talking about in the short term, reasonably high reliability.
Byron R. White: So then you would say to me you are necessarily conceding that if you have a low standard of proof there maybe 30 or 40% of the people that are committed, that should not be committed.
Joel I. Klein: If in fact your standard is dangerousness in a sense of acting physical violence--
Byron R. White: Yes.
Joel I. Klein: But those are people who maybe very ill and desperately needed help.
Byron R. White: But then if then-- if the dangerousness is not critical, you're really saying you are acting for the benefit of the patient, you need a low standard of proof because he doesn't know what's good for himself.
Joel I. Klein: I think that states are entitled to that option, that's all I'm saying. I think the states have gone the gamut. I think there are statutes that go very much into dangerousness direction and I think they're entitled to it. What I'm saying is that this issue should be left for the fair play of political forces. In McKeever where the court did not constitutionalize a jury trial, it didn't say a jury trial was a bad thing in juvenile cases, what it said was we're not ready for finality on that issue and I think that's the same thing when it comes to burden of proof. In some states, the APA has argued in the state legislatures for a lower burden of proof and for broad substantive criteria, frankly we've lost in some States. I assume no what matter this court does we will continue to lose some of those fights but I think society is entitled to that diversity.
Thurgood Marshall: Do you support commitment without trial?
Joel I. Klein: Not long term commitment, no there maybe emergency situations Your Honor, but not long terms commitment, absolutely not.
Potter Stewart: And that trail would be a jury trial?
Joel I. Klein: No sir, no sir we don't think that the constitution requires a jury trial. We think there are a lot of serious detriments to the processes if we do so.
Potter Stewart: How many states have a jury trial?
Joel I. Klein: I think approximately half have in place a statute Mr. Justice Stewart, yes sir.
Thurgood Marshall: You just want to leave it to the states.
Joel I. Klein: I think that's right because I think this is a terribly difficult source.
Thurgood Marshall: Why could not do with the due process clause?
Joel I. Klein: The due process clause is -- court realized I think in Partterson and numerous cases is well satisfied when you have the basics of due process and Texas certainly and I think all states now for a long term commitment.
Thurgood Marshall: Including Maryland?
Joel I. Klein: Including Maryland for long term.
Thurgood Marshall: When did Maryland change?
Joel I. Klein: I think Maryland changed in '76 Your Honor, don't hold me to the date but it has been an amendment to the statute.
Thurgood Marshall: It didn't change last time it was in this court.
Joel I. Klein: Well but I think that's a different problem and if a state would come in here and have a long term commitment statute with no due process, I think that would raise another issue. Fortunately, I think that's not the issue that we have here today.
Potter Stewart: Well, that's the claim here--
Joel I. Klein: The claim is that this particular--
Potter Stewart: Is a due process claim.
Joel I. Klein: Yes, with this particular procedure -- Mr. Justice Marshall was saying if they had no trial whatsoever.
Potter Stewart: But I am saying it is a due process claim.
Joel I. Klein: I understand and I think--
Potter Stewart: That is the case here.
Joel I. Klein: Absolutely. But I think this particular procedure is not mandated by the due process clause.
Potter Stewart: Well that's the issue in the case.
Joel I. Klein: Yes. I would just close in urging the court that to take a look at the argument in the brief that the appellant makes, what they are saying is, “Don't worry about proof beyond a reasonable doubt. We can do it because we can show past dangerous acts and that's what we'll turn civil commitment into if we lock in a high standard of proof.” The focus of the inquiry will become past dangerous acts, and I'd submit behalf of my client that there are a large number of Americans who are very seriously mentally ill, who are destroying their lives and their families' lives but who have not acted violent, who nevertheless under the standard set down in O'Connor Donaldson case, Humphrey versus Cady, Jackson versus Indiana, the states have the right to commit in their role as parens patriae to protect its citizen. And I'd hope that this court not take an isolated procedure and undermine the states power in that regard. Thank you Your Honor.
Warren E. Burger: You have anything further Ms. Boston?
Martha Boston: Yes, Your Honor. I would like to respond to Mr. Klein's statement about his parens patriae commitments. He seems to presuppose the very thing that we're there to decide that is or an element of what we're there to decide, and that is whether or not this person is mentally ill. Mr. Klein seems to assume that he is and that's why he is not seeking hospitalization on his own. If that's the case then there is no need for a hearing, but indeed that is the purpose of the hearing and that's what we're there to decide.
William H. Rehnquist: I understood, and let me say that there a lot of mentally ill people who have not committed acts of violence and that the state has an interest in seeing that they get help.
Martha Boston: I believe he said both Your Honor in relation to that latter statement. I think my statements earlier about proving a past act don't go just proving a past act of violence. A person who is severely, mentally ill to the extent that he is self neglectful-- surely there is family members or neighbors who've seen this sort of conduct and can testify to it. It seems to me that that's not that difficult to establish.
William H. Rehnquist: But you are not saying that a past act is constitutionally required as a substantive element of --
Martha Boston: No I am not; I am saying that that is way of buttressing psychiatric testimony so that you don't have to rely just on the inaccuracies.
William H. Rehnquist: Wouldn't it become pretty much mandatory if your view is adopted in order to get anybody committed?
Martha Boston: I don't believe it would become mandatory. I think psychiatry, well I think predictions are relied on in several contexts, and I can point to two specific legislative similar situations in Texas where proof beyond a reasonable doubt is required for predicting, if you will, future conduct. Not the least of which is the punishment phase of a capital felony trial in which the jury is required to answer yes or no beyond a reasonable doubt, the question of whether there is a probability that the defendant will engage in criminal violence so as to constitute a continuing threat to society.
William H. Rehnquist: But is-- the defendant convicted under that system doesn't get a one year reevaluation?
Martha Boston: No he doesn't. But I would bring that up not to say that because it's required in that situation, it should be required here. But to show that the legislature recognized in that situation that it's possible and that's virtually the same thing that we are trying to prove here. And additionally, the Mentally Retarded Person's Act in Texas which was passed since the time that this suit began requires proof beyond a reasonable doubt.
Warren E. Burger: You're emphasizing understandably so the parallelism to criminal system but then the administration of criminal justice we have in the country thousands, literally thousands of law enforcement officers who are roaming, looking for criminal conduct and then arresting people and probably thousands with fewer prosecutors who are constantly alluded to in charged with the duty of prosecuting. We don't have any such mechanism setup to look around for mentally ill people, do we, in the society.
Martha Boston: Not that I'm aware of although we have truly --
Warren E. Burger: Well, the police may bring it to the attention of hospitals incidentally but there is no comparable structure. I get reading, some of these briefs, an impression that there is some attitude, there are some elements of society to try to do in mentally ill people, and lock them up and keep them there. Of course we know that it costs vastly more to keep people in mental institutions than it does in prisons. Is there any basis for thinking that government in one way or another or others not in governments are trying to commit a lot of people unnecessarily?
Martha Boston: I don't think its as insidious as doing in. I think what it reflects is the severe lack of understanding about and knowledge about mental illness in our society and this goes to the question, stigmatized, people don't understand mental illness and consequently.
Warren E. Burger: See even the psychiatrists admit that they don't understand it very well.
Martha Boston: Certainly and Mr. Klein's, the American Psychiatrics Association's brief is full of references, as its appellant, to the kinds of problems that people face; that mental patients and former mental patients are feared and loafed in our society because people don't understand and its in the first place it sort of ease --
Warren E. Burger: How is the burden, how is the change to the maximum burden of proof, the criminal burden of proof trying to help that situation?
Martha Boston: Well, what it's going to do is keep those people who are not proper subjects of commitment from being committed, therefore stigmatized, being deprived of their liberty. And certainly we're not trying to just setup a hurdle to make psychiatrist in the state jump over for no reason. We want to increase the sureness of those assessments that result in commitment, we want to reduce the number of people who are erroneously locked in mental hospitals.
William H. Rehnquist: Do you think someone who has gone through a five day jury trial as your client did here and been acquitted after all the testimony and the evidence are found not mentally ill would be welcomed back into the bosom of society so to speak?
Martha Boston: Well, of course the society in which he was living was very aware of all of that and clearly he has been stigmatized to begin with. But the more-- well there's one study in our brief I believe it's on page 24 that says if the level of stigma increases with the level of state intervention. So that the more one is committed, the longer one is committed for, the greater the stigma. And certainly that can be seen clearly in employment applications if you have to try to explain a way of three year gap in your employment history you can have a big problem.
Lewis F. Powell, Jr.: Ms. Boston what is it, that has to be proved beyond a reasonable doubt under your new mentally retarded statute?
Martha Boston: The exact -- because of the retardation the person represents a substantial risk of physical impairment or injury to himself or others or is unable to provide for and is not providing for his most basic physical needs.
Lewis F. Powell, Jr.: That's predictive isn't it? And that has to be proved beyond the reasonable doubt?
Martha Boston: That's right.
Lewis F. Powell, Jr.: How is that differ from the issue we have here?
Martha Boston: Mental retardation is just about the only difference. But the State of Texas passed this statute only in it's last legislative session, which I believe was '77 and this proceeding was instituted--
Lewis F. Powell, Jr.: What's the nature of the trial under that statute, jury or non jury?
Martha Boston: They are entitled to a jury.
Warren E. Burger: Do you think Texas or any state is constitutionally required to have the same standard for retardation as they do for commitments of -- or schizophrenia?
Martha Boston: I think there's probably some very different considerations that go into them, but this proceeding of commitment to mental retardation facility is very similar in what it seeks to do. And I'm not presenting any protection claim at all, but just saying that that's another area in which it's been recognized that that sort of thing could be.
Lewis F. Powell, Jr.: You just read it to us that's wholly predictive element isn't it noting else?
Martha Boston: Well, it's in the same way that we're talking about prediction before it's-- it's prediction based on retardation and acts and so on.
Byron R. White: But there has to be a determination for mental retardation.
Martha Boston: Mental retardation, in the same way that the Mental Health Code requires a determination of mental illness. Okay, in terms of the necessity of psychiatrist being very sure about their predictions, their assessments, again I would just like to stress that and I believe Mr. Justice Stevens' broadly accepted it, is the inaccuracy of those assessments that's so concerning in this situation. And if we believe the statistics that are in the brief for amicus National Center for Law and the Handicapped, the incidence of error due to over prediction and over diagnose-- over prediction of dangerous and over diagnosis of mental illness is -- the error is going to occur in more in committing someone erroneously than in failing to commit someone erroneously and that's what the concern is.
Thurgood Marshall: Can you get a psychiatrist to testify and say in these words that, “I make this diagnosis beyond a reasonable doubt --” have you heard psychiatrist say anything close to that?
Martha Boston: I've never heard of psychiatrist say that.
Thurgood Marshall: They always say, “Well, on the other hand--”
Martha Boston: Medical-- reasonable medical certainty, but the question of burden of proof doesn't.
Thurgood Marshall: Back to my original point -- I mean get with this--
Martha Boston: Well, the jury doesn't-- I don't believe the jury has to apply that standard to each witness. We don't qualify the witnesses on how sure they are of the testimony they are about to give. The jury takes the whole picture and that's why I keep stressing the other things that can be brought in. The jury takes the whole picture --
Warren E. Burger: The jury can reject any particular witness or an individual jury can on the grounds that he doesn't believe him or it doesn't think he is very reliable or very sound.
Martha Boston: Certainly.
Warren E. Burger: That's credibility factor, isn't it?
Martha Boston: Certainly my point is that the creditability factor goes into the jury agreement, it doesn't happen when we bring -- we don't require a psychiatrist to be sure beyond a reasonable doubt, obviously. He can take -- the jury takes it all into the jury room with them.
Warren E. Burger: Thank you counsel.
Martha Boston: Thank you.
Warren E. Burger: The case is submitted.