1 Mary Douglas, Risk as a Forensic Resource, Daedalus, J. Am. Acad. Arts & Sci., Fall 1990, at 14.

2 The term “mental disability” includes individuals diagnosed as mentally ill and persons who are mentally retarded (also referred to as developmentally disabled). See Jan C. Costello & James J. Preis, Beyond Least Restrictive Alternative: A Constitutional Right to Treatment for Mentally Disabled Persons in the Community, 20 Loy. L.A. L. Rev. 1527, 1527 n.2 (1987). For a discussion of the differences between the two groups, see infra part I.A. This article strives to promote the use of appropriate terminology in reference to persons with disabilities. Thus, generic labels for various groups of persons with disabilities (“the retarded,” “the mentally ill,” etc.) are generally avoided, and “people first language” is used instead (putting the person or individual before the disability, such as “woman with arthritis,” “person who uses a wheelchair,” etc.) where possible. the Research & Training Center on Independent Living, Guidelines for Reporting and Writing about People with Disabilities (3d ed. 1990) [hereinafter Guidelines]; Goodwill Industries of America, INC., People with Disabilities Terminology Guide (1992). Although the editorial demands of succinctness do not always allow people first language, it is necessary to become aware of and sensitive to preferred terminology. See Guidelines, supra.

3 See, e.g., Mona Hughes, Problems with the Mentally Ill Must Be Solved Early, Not Later, Orlando Sentinel, Mar. 24, 1994, at 12; Jackie Fitzpatrick, Mental Patients Work to Rejoin Daily Life, N.Y. Times, Nov. 8, 1992, § 13CN, at 19; Costello & Preis, supra note 2, at 1530-31 (citing Kiesler, Mental Hospitals and Alternative Care-Noninstitutionalization as Potential Public Policy for Mental Patients, 37 Am. Psychologist 349, 358 (1982)).

4 Jillane T. Hinds, Involuntary Outpatient Commitment for the Chronically Mentally Ill, 69 NEB. L. REV. 346, 348-53 (quoting Treffert, The Obviously Ill Patient in Need of Treatment: A Fourth Standard for Civil Commitment, 36 HOSP. & COmmunity Psychiatry 259, 264 (1985)).

The freedom to be wandering the streets, psychotic, ill, deteriorating, and untreated, when there is a reasonable prospect of effective treatment, is not freedom; it is abandonment. The liberty to be naked in a padded cell in a county jail, hallucinating and tormented, without treatment that ought to be given is not liberty; it is another form of imprisonment …. The right to be seriously and obviously mentally ill but to have to deteriorate to being dangerous before treatment can be given is not a right; it is insensitivity, purism, and suspicion cruelly presented as concern.

5 Joe Holleman, Commitment: Should It Be Easier? Children of Slain Couple Want Laws Changed, St. Louis Post-Dispatch, Oct. 16, 1994, at lD; Victoria Benning, Lack of Treatment Options Hurts Mental Health System, Boston Globe, Aug. 27, 1994, at 17 (46-six-year-old man with a history of mental illness received inadequate treatment, charged with killing police officer); Jennifer Dokes Garcia, A Little Girl Named Amber Needs What Taxpayers Are Paying For, ARiz. Republic, Apr. 15, 1993, at A 10 (state agency's Division of Developmental Disabilities fight, parents and doctors who want to institutionalize severely mentally retarded girl).

6 Costello & Preis, supra note 2, at 1531. Deinstitutionalization refers to the philosophy of treating persons with mental disabilities in the community rather than in institutions to the maximum extent possible. Id.

7 Nancy K., Rhoden The Limits of Liberty: Deinstitutionalization, Homelessness, and Libertarian Theory, 31 Emory L.J. 375, 376–77 (1982).Google Scholar See S.M. Saccomando Burke, Deinstitutionalization Has Failed-Miserably, Wash. Post, Apr. 21, 1989, at A26.

8 Costello & Preis, supra note 2, at 1532.

9 Id.

10 Id.

11 113 s. Ct. 2637 (1993).

12 See infra part I.A.

13 Heller, 113 S. Ct. at 2641.

14 Id. at 2644.

15 Id. at 2645.

16 Id. at 2643-47.

17 For convenience, the term “nondisabled” is used here to refer to persons not meeting the statutory commitment standards.

18 Probability analysis may not be the most satisfactory method of determining how and when fundamental rights should be protected. However, if one chooses this method, as the Court did, it is crucial to include the correct variables to avoid skewing the outcome.

19 American Association on Mental Retardation, Mental Retardation: Definition, Classification, and Systems of Support 2 (9th ed. 1992).

20 See Penry v. Lynaugh, 492 U.S. 302, 308 n.l (1989). Persons with profound mental retardation may have some motor and speech development, are capable of very limited self-care, and require nursing care. Individuals in the severe range normally have primitive language development, and mutism is common. With proper training, they can learn to communicate or talk, exercise basic health habits, and contribute partially to self-care in a completely controlled environment. Persons with moderate retardation usually have moderate to extreme speech limitations. They may achieve intellectual development at the second grade level and may be capable of self-maintenance in unskilled or semi-skilled work under sheltered conditions. They generally need supervision and guidance when under mild social or economic stress. Those in the mild category may have problems with speech, but they can attain some degree of social conformity and academic development up to the sixth grade level. Juliet L. Ream, Capital Punishment for Mentally Retarded Offenders: Is It Morally and Constitutionally Impermissible? 19 Sw. U. L. Rev. 89, 107 n.130 (1990).

21 Ream, supra note 20, at 107. See generally, Marvin Rosen et al., Habilitation of the Handicapped (1977).

22 American Psychiatric Association, Psychiatric Glossary 89 (5th ed. 1980).

23 James W., Ellis & Ruth A., Luckasson Mentally Retarded Criminal Defendants, 53 GEO. Wash. L. Rev. 414, 423 (1985).Google Scholar

24 Id. at 424.

25 Id.

26 Id.

27 Id. (citing F., Menolascino, Challenges in Mental Retardation: Progressive Ideology and Services, 126–27 (1977)).Google Scholar

28 Romeo v. Youngberg, 644 F.2d 147, 158 (3d Cir. 1980), cert. granted, 451 U.S. 982 (1981), and vacated on other grounds, 457 U.S. 307 (1982).

29 Under the doctrine of parens patriae, the state assumes the role of guardian over individuals whom it has deemed unable to manage their own lives, for the sake of their own health, welfare, safety, and sometimes even morals. Howard R., Hawkins Jr. & Paul O., Sullivan Due Process and the Development of “Criminal” Safeguards in Civil Commitment Adjudications, 42 Fordham L. Rev. 611, 615–17 (1974).Google Scholar

30 The American Psychiatric Association explains: “The word ‘habilitation’ … is commonly used to refer to programs for the mentally retarded because mental retardation is … a learning disability and training impairment rather than an illness. [T]he principal focus of habilitation is upon training and development of needed skills.” Youngberg, 457 U.S. at 309 n.l. See generally, Rosen, supra note 21.

31 Romeo, 644 F.2d at 158.

32 422 U.S. 563, 567 (1975) (finding that the state had violated the respondent's constitutional right to liberty by confining him for almost 15 years as a mental patient against his will, even though he was not shown to be dangerous).

33 Id.

34 See, e.g., Suzuki v. Yuen, 617 F.2d 173 (9th Cir. 1980); Doe v. Gallinot, 486 F. Supp. 983 (C.D. Cal. 1979); Colyar v. Third Judicial Dist. Court, 469 F. Supp. 424 (D. Utah 1979).

35 Hinds, supra note 4, at 402-03 (citing Johnson v. Solomon, 484 F. Supp. 278 (D. Md. 1979); Goldy v. Beal, 429 F. Supp. 640 (M.D. Pa. 1976); Stamus v. Leonhardt, 414 F. Supp. 439 (S.D. Iowa 1976)).

36 Hinds, supra note 4, at 403.

37 Christopher, Slobogin Treatment of the Mentally Disabled: Rethinking the Community-First Idea, 69 Neb. L. Rev. 413, 413 (1990).Google Scholar

38 Deinstitutionalization began in the 1950s in response to various factors. First, anti psychotic drugs were introduced. In conjunction with this new treatment modality were sociological studies revealing public mental hospitals to be “vast dehumanizing warehouses.” Third, economic motives forced state administrators and fiscal conservatives to slash state funds allocated to public mental hospitals. Furthermore, courts began to recognize the civil rights of institutionalized persons. Rhoden, supra note 7, at 378-87.

39 Lake v. Cameron, 364 F.2d 657 (D.C. Cir. 1966) (concluding that prior to involuntary institutionalization, the government must bear the burden of demonstrating that no less restrictive alternatives are available). Forty-seven states provide by statute that involuntarily committed patients have the right to treatment in the least restrictive environment available. logo Keilitz et al., Least Restrictive Treatment of Involuntary Patients: Translating Concepts into Practice, 29 ST. Louis U. L.J. 691, 709 (1985). However, the U.S. Supreme Court declared in Youngberg v. Romeo that persons with mental disabilities have a narrower right to “minimally adequate treatment.” 457 U.S. at 322. Some courts and commentators have interpreted this decision to mean that there is no federal constitutional right to treatment in the least restrictive environment because the “least intrusive means” test does not determine the adequacy of treatment. Slobogin, supra note 37, at 415; Costello & Preis, supra note 2, at 1528-29.

40 Slobogin, supra note 37, at 413.

41 Id. According to its proponents, the community-first ideal is founded on five basic rationales. First, community treatment is thought to infringe less on individual liberty than institutionalization. Second, some in the mental health care field believe that integrated treatment, habilitation, and education (“the“) within the community is at least as effective, if not more so, than that available in an institutional setting. Third, community-first the places the person with the disability closer to the emotional support of family and friends. Fourth, community the supposedly facilitates individual integration by allowing greater contact with potential employers and offers the individual more role models and practice in dealing with the world. Finally, community the exposes persons with disabilities to mainstream society, thereby hopefully eroding false stigmatization and prejudice. Slobogin, supra note 37, at 418-19.

42 Howard H., Goldman & Joseph P., Morrissey The Alchemy of Mental Health Policy: Homelessness and the Fourth Cycle of Reform, 15 Am. J. of Pue. Health 727, 728 (1985).Google Scholar

43 Rhoden, supra note 7, at 402.

44 Id. at 402-03.

45 Id. at 405.

46 See id. at 405-06. However, the conditions in some hospitals made institutionalization a more painful option. See Henry A. Beyer, Diagnosing Law and Psychiatry, 21 Harv. C.R.-C.L. L. Rev. 305, 315-17 (1986).

47 Hinds, supra note 4, at 397.

48 Rhoden, supra note 7. at 387.

49 Id. at 402.

50 Id. at 403.

51 Since this Comment later argues that the Heller Court has created barriers to treatment for persons with mental illness, this section focuses exclusively on this population.

52 E. Fuller Torrey, Nowhere to Go 6 (1988).

53 Id. at 7.

54 Id. at 8. A study of persons living in doorways, alleys, abandoned buildings, and heating grates in New York City found that 60% showed symptoms of schizophrenia. Id.

55 Rhoden, supra note 7, at 391-92. 56

56 Torrey, supra note 52, at 10.

57 Id. at 11.

58 Id.

59 Id. at 13. For example, persons with mental disabilities in Los Angeles County are involuntarily hospitalized through a common practice known as “mercy bookings,” in which police officers arrest mentally disabled persons in order to facilitate their transfer from jail to mental hospitals. Mental Health Ass'n v. Deukmejian, No. Ca 000540 slip op. (Cal. Super. Ct. May 8, 1985), aff'd, 186 Cal. App. 3d 1531, 233 Cal. Rptr. 130 (1986) (ordered depublished).

60 Torrey, supra note 52, at 16. Studies of arrest rates and violent acts by persons with mental illness prior to 1950 consistently showed that the mentally ill had lower arrest rates than the general population. Id. at 18. Since 1965 (after deinstitutionalization was implemented), at least eight studies found arrest rates and violent acts by persons with mental illness to be considerably higher than rates for the general population. Id.

61 Id. However, persons with mental disabilities might be more likely to be arrested or convicted of crimes, which artificially inflates the statistics of crimes committed.

62 Id. at 22.

63 Rhoden, supra note 7, at 387-88.

64 Id. at 389.

65 Id. at 389-91.

66 Torrey, supra note 52, at 34-36. In November 1986, the director of the National Institute of Mental Health (“NIMH“) testified before a subcommittee of the Senate Committee on Appropriations about the distribution of persons with schizophrenia in the United States. NIMH staff admitted that they had no information on the follow-up care for 58% of all adult schizophrenics, or 937,300 individuals. Id. at 34-35. For a contrasting view of the rights of the mentally ill to be free from tracking, see Beyer, supra note 46, at 317.

67 Mathews v. Eldridge, 424 U.S. 319, 332 (1975).

68 See, e.g., Goldberg v. Kelly, 397 U.S. 254 (1970) (requiring that welfare recipients receive an evidentiary hearing before benefits could be terminated).

69 424 U.S. 319 (1975).

70 Id. at 334-35.

71 Id. at 335.

72 Id. at 343.

73 441 U.S. 418 (1979).

74 Id. at 419.

75 Id. at 419-20.

76 Id. at 431-33.

77 Id. at 428-31.

78 Id. at 430. According to the Addington Court, the reasonable doubt standard is suitable in the criminal law realm· because it applies to knowable, specific facts. “Psychiatric diagnosis, in contrast, is to a large extent based on medical ‘impressions’ drawn from subjective analysis and filtered through the experience of the diagnostician,” making it difficult to reach definite conclusions about a particular patient. Id.

79 Id.

80 Id. at 425.

81 Id. at 429.

82 Unlike the Addington analysis, the Heller decision neglects to examine the effects of barriers to treatment in its weighing of the interests at stake. See infra part IV.C. for a discussion of this issue.

83 Plyler v. Doe, 457 U.S. 202, 212 (1982) (footnote omitted).

84 City of Cleburne v. Cleburne Living Center, Inc., 473 U.S. 432, 439-40 (1985).

85 Id. at 440. See also Schweiker v. Wilson, 450 U.S. 221, 230 (1981); United States R.R. Retirement Bd. v. Fritz, 449 U.S. 166, 174-75 (1980); Vance v. Bradley, 440 U.S. 93, 97 (1979).

86 Fritz, 449 U.S. at 174; City of New Orleans v. Dukes, 427 U.S. 297, 303 (1976).

87 Graham v. Richardson, 403 U.S. 365, 371-72 (1971); McLaughlin v. Florida, 379 U.S. 184, 192 (1964). Race, alienage, or national origin are so rarely relevant to the achievement of a legitimate state objective that such considerations probably result from prejudice and antipathy. Cleburne, 473 U.S. at 440. These legislative classifications must be closely tailored to serve a compelling state interest. Id.

88 Kramer v. Union Free Sch. Dist. No. 15, 395 U.S. 621, 626 (1969); Shapiro v. Thompson, 394 U.S. 618, 638 (1969).

89 Mississippi Univ. for Women v. Hogan, 458 U.S. 718, 724-26 (1982); Frontiero v. Richardson, 411 U.S. 677, 688 (1973).

90 Cleburne, 473 U.S. at 435. It is interesting to note that the Americans with Disabilities Act of 1990 (“ADA“), which covers persons with mental retardation, is prefaced by findings that “individuals with disabilities are a discrete and insular minority who have been faced with restrictions and limitations, subjected to a history of purposeful unequal treatment, and relegated to a position of political powerlessness …, based on characteristics that are beyond the conirol of such individuals and resulting from stereotypic assumptions …. “ Pub. L. No. 101-336, 104 Stat. 327 (1990) (codified at 42 U.S.C. §§ 12,101-12,213 and 47 U.S.C. §§ 225, 6ll (Supp. II 1990). The Supreme Court has used identical language in the past to identify groups deserving heightened scrutiny. See, e.g., Regents of the Univ. of Cal. v. Bakke, 438 U.S. 265, 357 (1978) (Brennan, J., concurring); Massachusetts Bd. of Retirement v. Murgia, 427 U.S. 307, 313 (1976); United States v. Carolene Products Co., 304 U.S. 144, 152-53, n.4 (1938). For a discussion of how the congressional findings in the ADA provide a mandate for the Supreme Court to consider disabled persons a quasi-suspect class, see Amy Scott Lowndes, Note, The Americans with Disabilities Act of 1990: A Congressional Mandate for Heightened Judicial Protection of Disabled Persons, 44 Fla. L. Rev. 417 (1992).

91 Cleburne, 473 U.S. at 442-46. The Court based its conclusion on four factors: (1) persons with mental retardation have a “reduced ability to cope and function” in the world, justifying legislation that distinguishes them from others, id. at 442; (2) federal and state legislation have responded to their difficulties, which disproves that persons with mental retardation suffer continuing prejudice, id. at 443; (3) this positive legislative response is evidence that the mentally retarded are not politically powerless, id. at 445; and (4) ifthe mentally retarded were labeled quasi-suspect, the Court may then be forced to grant such status to the many other groups with immutable disabilities, id. at 445-46.

92 ld. at 446. See Zobel v. Williams, 457 U.S. 55, 61-63 (1982); United States Dep't of Agric. v. Moreno, 413 U.S. 528, 535 (1973).

93 Moreno, 413 U.S. at 534; Zobel, 451 U.S. at 63.

94 Cleburne, 473 U.S. at 447.

95 Heller v. Doe, ll 3 S. Ct. 2637, 2640 (1993 ).

96 Id. at 2641. “Beyond a reasonable doubt” is a more rigorous standard than the “clear and convincing” standard. Cf. supra note 77 and accompanying text.

97 Heller, 113 S. Ct. at 2641. The Kentucky statute provides that in proceedings for involuntary commitment of adults with mental retardation, “[g]uardians and immediate family members of the respondent shall be allowed to attend all hearings, conferences or similar proceedings; may be represented by private counsel, if desired; may participate in the hearings or conferences as if a party to the proceedings; cross-examine witnesses if desired; and shall have standing to appeal any adverse decision.” Ky. Rev. Stat. Ann.§ 202B.160(3) (Michie/Bobbs-Merrill 1991).

98 Heller, 113 S. Ct. at 2640.

99 Id. at 2641.

100 Id.

101 Id. at 2648.

102 Doe v. Cowherd, 770 F. Supp. 354, 358 (W.D. Ky. 1991).

103 Doe v. Cowherd, 965 F.2d 109, 112-13 (6th Cir. 1992). The court of appeals, in a 3-0 decision, held that the State was required to satisfy the “beyond a reasonable doubt” standard to commit adults with mental retardation involuntarily, and that the State was constitutionally prohibited from allowing their relatives to participate as parties to the proceedings. Id. at 113.

104 Heller, 113 S. Ct. at 2650.

105 See id. at 2642.

106 Id. at 2642-43 (quoting FCC v. Beach Communications, Inc., 113 S. Ct. 2096, 2100-01 (1993)).

107 Id. at 2642 (quoting Nordlinger v. Hahn, 112 S. Ct. 2326, 2334 (1992)).

108 Id. at 2643.

109 Id. (citing Cleburne, 473 U.S. 432, and Schweiker v. Wilson, 450 U.S. 221 (1981)).

110 Id. The Heller Court never acknowledges that freedom from physical restraint is a fundamental right. Foucha v. Louisiana, 112 S. Ct. 1780, 1788 (1992); United States v. Salerno, 481 U.S. 739, 750 (1987). Where fundamental rights and liberties are asserted under the Equal Protection Clause, classifications must be given close scrutiny. See, e.g., Kramer v. Union Free Sch. Dist., 395 U.S. 621, 626 (1969); Skinner v. Oklahoma, 316 U.S. 535, 541 (1942). Thus, the Court arguably should not have applied rational basis review in Heller, which involves a statute restricting personal liberty, as compared to Cleburne, which examined the constitutionality of a municipal zoning ordinance. Cleburne, 473 U.S. at 435. Assuming that the lowest level of judicial scrutiny should be applied, however, the rational basis test in Heller is not, as Justice Kennedy claims, the same test applied in Cleburne. See Craig C. Burke, Note, Fencing Out Politically Unpopular Groups from the Normal Political Processes: The Equal Protection Concerns of Colorado Amendment Two, 69 Ind. L.J. 275, 284-85 (1993). The Cleburne Court scrutinized the purported justifications for the zoning ordinance closely enough to strike it down. Cleburne, 473 U.S. at 447-50.

111 Heller, 113 S. Ct. at 2643.

112 Id. at 2644.

113 Id.

114 Id.

115 Id.

116 Id.

117 Id. at 2645. The four propositions which must be proven by clear and convincing evidence to commit an adult with mental retardation are the following: “(1) The person is a mentally retarded person; (2) The person presents a danger or a threat of danger to self, family, or others; (3) The least restrictive alternative mode of treatment presently available requires placement in [a residential treatment center]; and (4) Treatment that can reasonably benefit the person is available in [a residential treatment center].” Ky. Rev. Stat. Ann.§ 2028.040.

108 Heller, 113 S. Ct. at 2645.

119 Id. at 2643-45. Justice Kennedy explained that “[i]f diagnosis is more difficult in cases of mental illness than in instances of mental retardation, a higher burden of proof for the former tends to equalize the risks of an erroneous determination that the subject of a commitment proceeding has the condition in question.” Id. at 2644. As support for Kentucky's use of the equalization of the risks of erroneous commitment as a legitimate state purpose, Justice Kennedy cited Addington v. Texas. See id. (citing Addington, 441 U.S. at 423). However, the Addington Court examined the risk of error as a whole, not merely the risk of erroneously committing a nondisabled person. See Addington, 441 U.S. at 428-29.

120 Heller, 113 S. Ct. at 2645-46. The majority suggested that patients with mental illness are subjected to medical and psychiatric treatment which may require “intrusive inquiries into the patient's innermost thoughts” and the use of psychotropic drugs, while patients with mental retardation are not usually subject to such treatments. Id. at 2645.

121 Id. at 2647.

122 Id.

123 Id.

124 Id. at 2647-48. However, as Justice Souter notes in his dissent, “[T]he Court provides no support for its speculation that an adult who develops mental illness will have a greater need or desire for privacy in an involuntary commitment than an adult who is mentally retarded.” Id. at 2657 n.9 (Souter, J., dissenting with Blackmun, J., and Stevens, J.).

125 Id. at 2648.

126 Id.

121 Id. Justice Kennedy does not acknowledge the strong possibility that the contrary interests of the families may indeed affect accuracy of the information offered to the courts.

128 Id. at 2649 (explaining that the Due Process Clause ensures only an accurate determination, not in result more favorable to the individual affected by the governmental action).

129 Id. at 2650 (O'Connor, J. concurring in the judgment in part and dissenting in part).

130 Id.

131 1d.

132 Id.

133 Id. (Blackmun, J., dissenting).

134 Id. (Blackmun, J., dissenting) (citing Cleburne, 473 U.S. at 455 (opinion of Marshall, J., joined by Brennan, J., and Blackmun, J.)).

135 Id. at 2651 (Souter, J., dissenting).

136 Id.

137 Id. at 2653 (Souter, J., dissenting).

138 Id.

139 Id.

140 See id. at 2652-54 (Souter, J., dissenting).

141 Id. at 2653-54 (Souter, J., dissenting).

142 See id. at 2653 (Souter, J., dissenting).

143 Id.

144 Id.

145 Id. at 2654-56 (Souter, J., dissenting).

146 Id. at 2656-57 (Souter, J., dissenting).

147 Id. at 2656 (Souter, J., dissenting).

148 Id. at 2657 (Souter, J., dissenting).

149 See 473 U.S. at 454 (Stevens, J., concurring).

150 Heller, 113 S. Ct. at 2657 (Souter, J., dissenting).

151 For a general discussion on the subject of risk and how cultural and political biases are an integral part of any risk analysis, see Mary Douglas, Risk and Blame, Essays in Cultural Theory (1992); the Social and Cultural Construction of Risk: Essays on Risk Selection and Perception (Branden B. Johnson & Vincent T. Covello eds., 1987).

152 See Douglas, supra note 1, at 1.

153 See id. at 10.

154 Heller, 113 S. Ct. at 2644-45.

155 Id.

156 In other words, the court neglects the elements D₁ and D₂ in the equation (P₁)(D₁) + (P₂)(D₂)

157 See Heller, 113 S. Ct. at 2645.

158 Id.

159 Id. at 2652-54 (Souter, J., dissenting).

160 In re Winship, 397 U.S. 358, 361-64 (1970).

161 See Heller, 113 S. Ct. at 2653 (Souter, J., dissenting).

162 See Addington v. Texas, 441 U.S. 418, 428 (1979).

163 Some states have enacted statutes to allow involuntary commitment to outpatient treatment for persons with mental illness. Keilitz & Hall, State Statutes Governing Involuntary Outpatient Civil Commitment, 9 Mental & Physical Disability L. Rep. 378 (1985). For a discussion of the arguments promoting and opposing involuntary outpatient commitment, see Mulvey et al, The Promise and Peril of Involuntary Outpatient Commitment, 42 Am. Psychologist 571, 578 (1987).

164 Addington, 441 U.S. at 429.

165 Heller, 113 S. Ct. at 2642.

166 Id. (quoting New Orleans v. Dukes, 427 U.S. 297, 303 (1976)).

167 Cleburne is an example of a more rigorous application of rationality review. The Cleburne Court conceded that “there have been and there will continue to be instances of discrimination against the retarded that are in fact invidious …. “ 473 U.S. at 446. Therefore, historical and current prejudice against the affected minority group alone was enough to motivate the Court to apply a more exacting standard of rational review. The Heller Court had even greater justification for applying rigorous review, given the fundamental interest involved, as well as the prejudice against persons with mental illness and persons with mental retardation.

168 See Heller, 113 S. Ct. at 2644-45.

169 This critique of the Heller Court's risk analysis only focuses on the flaws in the Court's application of the chosen approach and does not address whether risk analysis is the most appropriate or effective approach to the fundamental rights at issue.

170 Heller, 113 S. Ct. at 2644 (stating that “[if] diagnosis is more difficult in cases of mental illness than in instances of mental retardation, a higher burden of proof for the former tends to equalize the risks of an erroneous determination that the subject of a commitment proceeding has the condition in question“).

171 Intuitively, one would think that an increase in the standard of proof would reduce the number of false positives and false negatives. This intuition is based on the notion that higher standards of proof are harder to meet and accordingly will be met less often. The intuition is reversed if one interprets a mandate of a higher standard of proof by the legislature as a requirement of and sanction for more accurate testing procedures. In other words, when a legislature raises the standard of proof from “clear and convincing evidence” (assume 75%) to “beyond a reasonable doubt” (assume 90%), this means that one must use testing procedures 91 % accurate rather than 76% accurate. In this case, since a higher standard of proof was actually a mandate for more accurate testing procedures, both the number of false positives and false negatives would be reduced. Stated differently, it is illogical to lower the burden of proof when something is easier to prove because lowering the burden means only that the test is less accurate (one is less sure if the person is mentally retarded and needs to be committed). One should still be just as certain of the accuracy of a conclusion in a matter that is easy to prove as in a matter more difficult to prove.

172 Given the retributive nature of the existing criminal justice system, it is not always likely that a mentally impaired person who physically harms others can avoid criminal sanctions and be provided with treatment instead. See, e.g., Penry v. Lynaugh, 492 U.S. 302, 319-28 (1989).

173 For a discussion of how societies make choices in allocating resources, see Gumo Calabresi & Philip Bobbitt, Tragic Choices (1978).

174 Psychologists who have studied perceptions of risk predict that bodies of decision-makers, such as the Supreme Court and the Kentucky legislature, will calculate risks in a manner similar to that of Heller. Most people, including expert decision-makers, tend to focus on risks that they perceive as possibly affecting them, or risks that the media emphasizes. In this case the risk is the erroneous commitment of a sane person. The risk of the mentally ill person not receiving treatment does not come readily to mind when thinking about the dangers of low standards of proof in commitment proceedings. Psychologists refer to this phenomenon as “availability” because decision makers use information that is readily available. See, e.g., Paul Slovic et al., Facts versus Fears: Understanding Perceived Risk, in Judgment Under Uncertainty: Heuristics and Biases 463, 465-72 (Daniel Kahneman et al. eds., 1982). For example, people think that there are more deaths caused by accidents than by disease, when in fact the reverse is true. Similarly, people think that there are many more homicides than suicides, even though suicides are far more frequent. Id. at 466-67. To avoid such errors in estimating risks, it is necessary to use proper models and data to analyze all the possible contingencies. Using intuition to estimate risks is especially dangerous when one is dealing with groups whose problems do not come to mind readily. See id. at 470-72; see also Douglas, supra note 1, at 13-16.