For forty years, we have known that involuntary civil commitment hearings are—in most jurisdictions—“charades.” When the Supreme Court noted, in Parham v. J.R., that the average length of a civil commitment hearing ranged from 3.8 to 9.2 minutes, the reaction of many who had done these cases was, “What? So long?!” The characterization of such hearings as being a “greased runway” to a state institution has never been disputed. Lawyers representing these individuals were bored or contemptuous; judges simply wanted to get cases moving; opposing counsel looked at their wrist watches to see when the cases would be done. This is not news to anyone who regularly did civil commitment hearings at any time since 1972 (the beginning of contemporary civil commitment law, coinciding with the Supreme Court’s decision in Jackson v. Indiana); I, and others, have written about this many times. Some sixteen years ago, I wrote the following (and to the best of my knowledge, it has never been contradicted): “[T]he overwhelming number of cases involving mental disability law issues are ‘litigated’ in pitch darkness. Involuntary civil commitment cases are routinely disposed of in minutes behind closed courtroom doors.” In this Article, I will contrast this shabby track record with the promises of those mental health courts (MHCs) that operate as problem solving courts are supposed to operate, and I will discuss how these courts may provide due process and fair hearings. I will assess—via traditional “compare and contrast” means—these two ways of adjudicating cases involving persons with mental disabilities via the models of procedural justice and therapeutic jurisprudence, and I will end with some thoughts about other topics that must be considered in this context.
Michael L. Perlin, “Who Will Judge the Many When the Game isThrough?”: Considering the Profound DifferencesBetween Mental Health Courts and “Traditional”Involuntary Civil Commitment Courts, 41 SEATTLE U. L. REV. 937 (2018).