1 445 U.S. 480 (1980).

2 For the purposes of this Note, the term “criminal commitment” indicates the act of committing a person presently under sentence for conviction of a crime to a mental institution.

3 Vitek v. Jones, 445 U.S. at 487-88.

4 Id. at 496.

5 Id. at 494-95, 497-500.

6 See infra note 47-95 and accompanying text.

7 Arnett v. Kennedy, 416 U.S. 134, 167 (1974) (Powell, J., concurring); Perry v. Sindermann, 408 U.S. 593 (1972).

8 See infra notes 83-91 and accompanying text.

9 See Baxstrom v. Herold, 383 U.S. 107, 111 (1966).

10 Vitek v. Jones, 445 U.S. at 484.

11 Brief for Appellee at 9, Vitek v. Jones, 445 U.S. 480 (1980). Neither the brief nor the opinion gives any indication of why Jones was in the penitentiary hospital at the time he set fire to his mattress.

12 The transfer statute provides, in part:

Neb. Rev. Stat. § 83-180(1) (Reissue 1976).

13 Vitek v. Jones, 445 U.S. at 484.

14 Miller v. Vitek, 437 F. Supp. 569 (D. Neb. 1977).

15 Id. at 575.

16 Vitek v. Jones, 436 U.S. 407 (1978) (per curiam).

17 Memorandum of Decision Regarding Mootness CV 75-L-172 (D. Neb., filed Oct. 27, 1978) (unreported).

18 Vitek v. Jones, 445 U.S. at 486.

19 Id. at 487-88.

20 Id. at 490.

21 408 U.S. 471 (1972).

22 Morrissey v. Brewer, 408 U.S. at 488.

23 Id. at 482. Other decisions also have recognized that state statutes can give prisoners due process liberty interests. See, e.g., Wolff v. McDonnell, 418 U.S. 539 (1974) (good time credits create liberty interest although of lesser magnitude than parole); Gagnon v. Scarpelli, 411 U.S. 778 (1973) (probation is a form of conditional liberty of equal magnitude to parole).

24 Vitek v. Jones, 445 U.S. at 492.

25 The term “behavior modification” encompasses a variety of therapeutic methods. Operant therapy, for example, reinforces desired behavior by rewarding the patient for such behavior. One type of operant therapy is token economies. Here, desired behavior, such as good hygiene or getting up in the morning, is rewarded with tokens which are exchangeable for various privileges. Aversion therapy requires that undesired behavior be punished. The punishment can take the form of a denial of privileges (such as sending child to bed without dinner) or even forced drugging. See, e.g., Mackey v. Procunier, 477 F.2d 877 (9th Cir. 1973) (prison used electroshock and drugs that brought on suffocation as part of behavior modification). See generally, Erwin, E., Behavior Therapy 187, 196-217 (1978)Google Scholar; R. Martin, Legal Challenges to Behavior Modification (1975).

26 The greater limitations on freedom of action are detailed in Katz, Goldstein & Dershowitz, Psychoanalysis, Psychiatry and Law 701-02 (1967). They include: limits on both amount and selection of personal clothing; lack of unassigned free time; lack of a hearing before punishment is imposed; minimum prison wages for state jobs; hurried meals; the use of only spoons for meals; stringent controls on furnishings in cells; lighting only outside of cells; regulated personal appearance; lack of running water in cells; schedules for showering; absence of a minimum security section; monitoring of lawyers’ visits by guards; mail censoring, and frequent delays in mail.

27 Vitek v. Jones, 445 U.S. at 492.

28 Id.

29 Id. at 493. “A criminal conviction and sentence of imprisonment extinguish an individual's right to freedom from confinement for the term of his sentence, but they do not authorize the State to classify him as mentally ill and subject him to involuntary psychiatric treatment without affording him additional due process protection.” Id. at 493-94.

30 This test was first formally identified in Mathews v. Eldridge, 424 U.S. 319, 335 (1976).

31 Vitek v. Jones, 445 U.S. at 495.

32 Id.

33 Id. at 495-96.

34 Miller v. Vitek, 437 F. Supp. at 573 (referring to Neb. Rev. Stat. § 83-180(1) (Reissue 1976)). See supra note 12 for the text of this statute.

35 vitek v. Jones, 445 U.S. at 495-97.

36 Id. at 496.

37 Id.

38 The plurality consisted of Justices White, Brennan, Marshall and Stevens.

39 411 U.S. 778, 790(1973).

40 418 U.S. 539, 569-70 (1974).

41 Vitek v. Jones, 445 U.S. at 496-97.

42 Id. at 497.

43 Id. at 499.

44 Id.

45 Id.

46 Id. at 500.

47 408 U.S. 471 (1972).

48 Morrissey v. Brewer, 408 U.S. at 480.

49 Id. at 481-82.

50 The term “nonprisoner” refers to all persons who are not presently incarcerated in prison and includes parolees, probationers, and ex-convicts. This term was coined to avoid the ambiguities surrounding the words “civilian” (a person “not on active duty in a military, police, or fire-fighting force,” Webster's New Collegiate Dictionary 204 (8th ed. 1974)) and “noncriminal” (one who has not committed a criminal act), and the term “nonconvict” (either a person who has not been convicted of any criminal act or a person who was convicted of a criminal act but who was not imprisoned for that conviction).

51 Morrissey v. Brewer, 408 U.S. at 482.

52 Id.

53 Id. at 483.

54 Id. at 484.

55 Id. at 485.

56 Id. at 486.

57 Id. at 487 (quoting Goldberg v. Kelly, 397 U.S. 254, 271 (1970)).

58 Morrissey v. Brewer, 408 U.S. at 487.

59 They include (a) written notice of the claimed violation of parole; (b) disclosure to the parolee of the evidence against him; (c) opportunity to be heard in person and to present witnesses and documentary evidence; (d) the right to confront and cross-examine adverse witnesses (unless the hearing officer specifically finds good cause for not allowing confrontation; (e) a “neutral and detached” hearing body such as a traditional parole board, members of which need not be judicial officers or lawyers; and (f) a written statement by the factfinder as to the evidence relied on and the reasons for revoking parole.

Id. at 489.

60 Id.

61 411 U.S. 778 (1973).

62 Gagnon v. Scarpelli, 411 U.S. 778, 782 (1973).

63 Id.

64 Id. at 790. In a later decision, the Court commented on its right to counsel decision in Gagnon.

Wolff v. McDonnell, 418 U.S. 539, 559-60 (1974) (commenting on and quoting from Gagnon v. Scarpelli, 411 U.S. at 790).

65 418 U.S. 539(1974).

66 NEB. Rev. Stat. § 83-185 (Cum. Supp. 1972).

67 Wolff v. McDonnell, 418 U.S. at 558.

68 Id. at 557.

69 Id. at 560-61.

70 Prison disciplinary proceedings … take place in a closed, tightly controlled environment peopled by those who have chosen to violate the criminal law and who have been lawfully incarcerated for doing so. Some are first offenders, but many are recidivists who have repeatedly employed illegal and often very violent means to attain their ends. They may have little regard for the safety of others or their property or for the rules designed to provide an orderly and reasonably safe prison life… . Guards and inmates co-exist in direct and intimate contact. Tension between them is unremitting. Frustration, resentment and despair are commonplace. Relationships among inmates are varied and complex and perhaps subject to the unwritten code that exhorts inmates not to inform on a fellow prisoner.

It is against this background that disciplinary proceedings must be structured by prison authorities; and it is against this background that we must make our constitutional judgments… . [D]isciplinary hearings and the imposition of disagreeable sanctions necessarily involve confrontations between inmates and authority and between inmates who are being disciplined and those who would charge or furnish evidence against them. Retaliation is much more than a theoretical possibility.

Id. at 561-62.

71 Id. at 568-69.

72 The Court did recommend that the disciplinary committee state its reasons for refusing to call witnesses, finding such action “useful.” Id. at 566.

73 Id. at 570.

74 Id. at 564.

75 Id. at 564-65. This will protect the prisoner from adverse collateral consequences, such as parole denial, based on misunderstandings of the nature of the disciplinary action as well as from a record for judicial review.

76 434 U.S. 1052 (1978), aff'g mem. 462 F. Supp. 397 (N.D. Cal. 1976).

77 Perry v. Sindermann, 408 U.S. 593 (1972) (job security); Graham v. Richardson, 403 U.S. 365 (1971) (welfare benefits); Bell v. Burson, 402 U.S. 535 (1971) (driver's license); Boddie v. Connecticut, 401 U.S. 371 (1971) (divorce in pauperis); Goldberg v. Kelly, 397 U.S. 254 (1970) (welfare benefits); Shapiro v. Thompson; 394 U.S. 618 (1969) (welfare benefits); Sherbert v. Verner, 374 U.S. 398 (1963) (unemployment benefits); Willner v. Committee on Character & Fitness, 373 U.S. 96 (1963) (license to practice law).

78 See Reich, , The New Property, 73 Yale L.J. 733 (1964)Google Scholar (discussing emergence of rights in government largess).

79 Arnett v. Kennedy, 416 U.S. 134, 167 (1974) (Powell, J., concurring).

80 Graham v. Richardson, 403 U.S. 365 (1971); Goldberg v. Kelly, 397 U.S. 54 (1970); Shapiro v. Thompson, 394 U.S. 618 (1969); Sherbert v. Verner, 374 U.S. 298 (1963).

81 Perry v. Sindermann, 408 U.S. 593 (1972); Bell v. Burson, 402 U.S. 535 (1971); Boddie v. Connecticut, 401 U.S. 371 (1971); Willner v. Committee on Character & Fitness, 373 U.S. 96 (1963).

82 Recently, the Court has diminished the importance of the property-liberty dichotomy.

Lynch v. Household Finance Corp., 405 U.S. 538, 552 (1972) (citing J. Locke, Of Civil Government; J. Adams, A Defense of the Constitutions of the Government of the United States of America; 1 W. Blackstone, Commentaries 138-40. See also Gunther, , Foreword: In Search of Evolving Doctrine on a Changing Court: A Model for a Newer Equal Protection, 86 Harv. L. Rev. 1, 37-40 (1972)Google Scholar.

83 See Monaghan, , Of “Liberty” and “Property,” 62 Cornell L. Rev. 405, 434-36 (1977).Google Scholar

84 See id. at 413-14.

85 Meyer v. Nebraska, 262 U.S. 390, 399 (1923).

86 See Monaghan, supra note 83, at 414.

87 Id. But see id. at 426 (discussing Paul v. Davis, 425 U.S. 693 (1976) (Court decided that state defamation of a private person without more was insufficient to implicate a liberty interest), and concluding that the common law right of security in one's reputation is no longer protected by the constitution).

88 Kelley v. Johnson, 425 U.S. 238 (1976); Nebbia v. New York, 291 U.S. 502 (1934).

89 Vitek v. Jones, 445 U.S. at 488. See Arnett v. Kennedy, 416 U.S. 134, 151-52 (1974) (plurality opinion).

90 See Meachum v. Fano, 427 U.S. 215, 228 (1976).

91 Ingraham v. Wright, 430 U.S. 651, 673 (1977).

92 Vitek v. Jones, 445 U.S. at 492 (quoting Addington v. Texas, 441 U.S. 418, 425-26 (1979)).

93 See Comment, Due Process and Public Employment in Perspective: Arbitrary Dismissals of Non-Civil Service Employees, 19 U.C.L.A. L. Rev. 1052, 1061 n.43 (1971-72).

94 Nebbia v. New York, 291 U.S. 502 (1934).

95 Vitek v. Jones, 445 U.S. at 491-94.

96 See supra notes 84-92 and accompanying text.

97 441 U.S. 418(1979).

98 Addington v. Texas, 441 U.S. 418, 431-33 (1979).

99 Id. at 423 (quoting In re Winship, 397 U.S. 358, 370 (1970) (Harlan, J., concurring)).

100 Addington v. Texas, 441 U.S. at 423.

101 Id. at 423-24.

102 Id. at 425.

103 Id. at 426.

104 Id.

105 Id. at 427.

106 Id. at 429-30.

107 See supra note 104 and accompanying text; see also Humphrey v. Cady, 405 U.S. 504, 509 (1972); cf. Jackson v. Indiana, 406 U.S. 715, 728 (1972) (interpreting ambiguous commitment statute to require independent showing of dangerousness).

Although this author would prefer to interpret the Supreme Court's opinion in O'Connor v. Donaldson, 422 U.S. 563 (1975), as requiring a showing of dangerousness before the state may commit a mentally ill person to a mental institution, such an interpretation would not be accurate. The Court's opinion contains statements that support the interpretation and others that contradict it. Early in the opinion, the Court writes:

Id. at 573-74 (footnotes and citations omitted). Clearly, this statement admonishes would-be expansionists to construe narrowly the remainder of the opinion.

Yet later in the opinion, the Court seemed to state otherwise.

Id. at 575. The first sentence seems to assert that the State must justify confinement of the mentally ill through either an additional showing of dangerousness or provision of treatment. If the gloss placed on the word “confinement” does not include the act of commiting a person to a mental institution, this interpretation is consistent with the Court's earlier admonition. The second statement in the quote must be read in the context of the case: that is, whether the superintendent of a mental institution can be held personally liable for compensatory and punitive damages under 42 U.S.C. § 1983 because he refused to release a patient who was neither dangerous to himself nor to others and who, if mentally ill, had not received treatment. The case did not concern which facts a State must prove to initially commit a person.

This interpretation accords with the Court's summary of its opinion. “In short, a State cannot constitutionally confine without more a nondangerous individual who is capable of surviving safely in freedom by himself or with the help of willing and responsible family members or friends.” O'Connor v. Donaldson, 422 U.S. at 576 (emphasis added).

108 Bension v. Meredith, 455 F. Supp. 622, 668 (D.D.C. 1978); Stamus v. Leonhardt, 414 F. Supp. 439, 450-51 (S.D. Iowa 1976); Doremus v. Farrell, 407 F. Supp. 509, 513-15 (D. Neb. 1975); Lynch v. Baxley, 386 F. Supp. 378, 390 (M.D. Ala. 1974).

109 E.g., French v. Blackburn, 428 F. Supp. 1351, 1357 (M.D.N.C. 1977), aff'd, 443 U.S. 901 (1979).

110 French v. Blackburn, 428 F. Supp. at 1356; Stamus v. Leonhardt, 414 F. Supp. at 446; Doremus v. Farrell, 407 F. Supp. at 515; Lynch v. Baxley, 386 F. Supp. at 388.

111 Stamus v. Leonhardt, 414 F. Supp. at 446; Doremus v. Farrell, 407 F. Supp. at 515; Lynch v. Baxley, 386 F. Supp. at 388-89.

112 E.g., Doremus v. Farrell, 407 F. Supp. at 515.

113 French v. Blackburn, 428 F. Supp. at 1357 n.10.

114 See, e.g., Lynch v. Baxley, 386 F. Supp. at 389.

115 Bension v. Meredith, 455 F. Supp. at 668; French v. Blackburn, 428 F. Supp. at 1355; Stamus v. Leonhardt, 414 F. Supp. 447; Doremus v. Farrell, 407 F. Supp. at 515; Lynch v. Baxley, 386 F. Supp. at 388.

116 Stamus v. Leonhardt, 414 F. Supp. at 447; Doremus v. Farrell, 407 F. Supp. at 515; Lynch v. Baxley, 386 F. Supp. at 388.

117 Stamus v. Leonhardt, 414 F. Supp. at 447-48; Doremus v. Farrell, 407 F. Supp. at 515-16; Lynch v. Baxley, 386 F. Supp. at 394.

118 Heryford v. Parker, 396 F.2d 393, 396 (10th Cir. 1968); Stamus v. Leonhardt, 414 F. Supp. at 448; Doremus v. Farrell, 407 F. Supp. at 516; Lynch v. Baxley, 386 F. Supp. at 389; Lessard v. Schmidt, 349 F. Supp. at 1099; Dixon v. Attorney General, 325 F. Supp. 966, 974 (M.D. Pa. 1971).

119 Doremus v. Farrell, 407 F. Supp. at 516; see Bension v. Meredith, 455 F. Supp. at 669. But cf. Lynch v. Baxley, 386 F. Supp. at 389 (waiver of right to be present at commitment hearing is “valid only upon acceptance by the court following a judicial determination that … [the subject] understands his rights and is competent to waive them”) (emphasis added).

120 Doremus v. Farrell, 407 F. Supp. at 517; see also Lynch v. Baxley, 386 F. Supp. at 394.

121 Lynch v. Baxley, 386 F. Supp. at 394.

122 Although one might argue that a heightened standard of scrutiny should apply to invalidate Nebraska's transfer statute, because criminal commitment implicates a negative liberty interest, see supra notes 91-92 and accompanying text, such a standard is not necessary. Moreover, the Court has not expanded the fundamental rights strand of equal protection theory (some “fundamental” rights trigger strict scrutiny equal protection analysis) beyond interests in interstate travel, voting, and criminal appeals. Gunther, supra note 82, at 12-16.

123 383 U.S. 107 (1966).

124 Id.

125 The petitioner had spent the final six months of his two and one-half to three-year sentence at Dannemora State Hospital, an institution under the auspices of the New York Department of Corrections used for confining criminally committed prisoners. At the expiration of his sentence, he was civilly committed to Dannemora and, after numerous denials of petitions for writs of habeas corpus, petitioned the Court for a writ of certiorari. Baxstrom v. Herold, 383 U.S. at 108.

126 Id. at 111.

127 Id. at 114.

128 Id. at 111.

129 410 F.2d 1071 (2d Cir. 1969).

130 United States ex rel. Schuster v. Herold, 410 F.2d 1071, 1081 (2d Cir.), cert. denied, 396 U.S. 847 (1969).

131 410 F.2d'at 1084.

132 The court said:

Id. at 1081-82 (quoting Cameron v. Mullen, 387 F.2d 193, 201 (D.C. Cir. 1967)).

133 386 U.S. 605 (1967) (convicted sex offender entitled to a separate hearing on the question of mental illness prior to receiving indefinite sentence as mentally ill habitual offender).

134 420 F.2d 607 (D.C. Cir. 1969), cert. denied, 397 U.S. 1010 (1970).

135 Matthews v. Hardy, 420 F.2d at 610.

136 Id.

137 Id. (quoting United States ex rel. Schuster v. Herold, 410 F.2d at 1073).

138 Matthews v. Hardy, 420 F.2d at 611.

139 Id.

140 In considering the problem posed we are faced with the obvious but terrifying possibility that the transferred prisoner may not be mentally ill at all. Yet … he will be exposed to physical, emotional and general mental agony. Confined with those who are insane, told repeatedly that he too is insane and indeed treated as insane, it does not take much for a man to question his own sanity and in the end to succumb to some mental aberration.

Id. (quoting United States ex rel. Schuster v. Herold, 410 F.2d at 1078).

141 Matthews v. Hardy, 420 F.2d at 611.

142 21 D.C. Code §§ 541-551 (1967). The court stated that “a court ‘will often strain to construe legislation so as to save it against constitutional attack.’ ” Matthews v. Hardy, 420 F.2d at 611 (quoting Scales v. United States, 367 U.S. 203, 211 (1961)).

143 377 F. Supp. 887 (D. Conn. 1974).

144 The court rejected the administrative transfer characterization and stated that the defendant prison officials had previously accepted the term “commitment” as applied to the case. Chesney v. Adams, 377 F. Supp. at 894.

145 Id. at 892.

146 Id. at 893 (quoting United States ex rel. Schuster v. Herold, 410 F.2d a t 1080).

147 Chesney v. Adams, 377 F. Supp. at 893.

148 Id. at 894. In Connecticut, a prisoner must first receive medical parole before being considered for general parole. He or she will be presumed to be mentally ill without the medical parole. One court has held that the denial of parole because a prisoner is confined in a mental hospital is unconstitutional. Sites v. McKenzie, 423 F. Supp. 1190, 1194-95 (N.D. W. Va. 1976).

149 Chesney v. Adams, 377 F. Supp. at 894.

Id.

150 The court declined to consider the plaintiff's claim under the due process clause. Id. at 895.

151 Id.

152 See, e.g., Powell v. Florida, 579 F.2d 324 (5th Cir. 1978); Sites v. McKenzie, 423 F. Supp. 1190 (N.D. W. Va. 1976); Liles v. Ward, 424 F. Supp. 675 (S.D.N.Y. 1976); United States ex rel. Souder v. Watson, 413 F. Supp. 711 (M.D. Pa. 1976).

153 See cases cited supra note 152.

154 The phrase “equal protection of the law” does not apply to case law.

155 Neb. Rev. Stat. §§ 83-320, -322, -322.01, -323, -325, -325.01-.04, -326, -328, -328.02-.03 (1971 & Supp. 1974).

156 Doremus v. Farrell, 407 F. Supp. 509 (D. Neb. 1975).

157 The old statutes provided for a hearing, provision of counsel, and appeal to a district court from the commitment order. Neb. Rev. Stat. §§ 83-320, -322, 325.01-.04, -328.02 (Reissue 1976).

158 Under the new civil commitment statutes, the state may commit only persons who are mentally ill and dangerous to either themselves or others. This may be evidenced by recent violent acts or threats of violence. Neb. Rev. Stat. § 83-1009 (Cum. Supp. 1980). A defendant in a commitment action is given seven days notice and is served with a summons, copies of the petition to commit, a list of his or her legal rights and a compilation of the names, addresses and telephone numbers of local mental health professionals who can do an independent mental evaluation prior to the commitment hearing. Neb. Rev. Stat. § 83-1027 (Cum. Supp. 1981). The factfinder is a mental health board composed of one lawyer and two other persons, each of whom has a different profession including a “physician; a psychologist; a psychiatric social worker; a psychiatric nurse; or a lay person with a demonstrated interest in mental health issues.” Neb. Rev. Stat. § 83-1018 (Cum. Supp. 1981). The rules of evidence apply to commitment hearings. Neb. Rev. Stat. § 83-1059 (Cum. Supp. 1981).

Nebraska's statutory scheme also enumerates the rights of the subject of a commitment hearing. These rights include:

1. 1.

   1. Advance written notice of the time and place of the hearing, the alleged reasons for commitment, including the alleged label of the subject's mental disorder, Neb. Rev. Stat. § 83-1048 (Cum. Supp. 1981);

2. 2.

   2. The right to counsel if the mental health board finds that the subject is indigent, Neb. Rev. Stat. § 83-1049 (Cum. Supp. 1981);

3. 3.

   3. Provision to counsel of (a) names of all the State's witnesses; (b) location of and access to all written documents including reports of police and mental health professionals; (c) access to all other tangible evidence; (d) written records of any mental health facility, professional or physician that, at any time, has treated the subject, which are relevant to whether the subject is mentally ill and dangerous and, if so, what treatment should be ordered by the board, Neb. Rev. Stat. § 83-1053 (Cum. Supp. 1981);

4. 4.

   4. The right to be present at the hearing and present witnesses and tangible evidence. Neb. Rev. Stat. § 83-1056 (Cum. Supp. 1981);

5. 5.

   5. The right to confront and cross-examine adverse witnesses and evidence, equivalent to the confrontation rights embodied in the sixth and fourteenth amendments, Neb. Rev. Stat. § 83-1058 (Cum. Supp. 1981);

6. 6.

   6. A written statement by the mental health board listing the evidence relied on and reasons for finding clear and convincing proof that the subject is a mentally ill dangerous person, “that neither voluntary hospitalization nor other treatment alternatives less restrictive of the subject's liberty … are available … and for choosing the particular treatment specified.” Neb. Rev. Stat. § 83-1060 (Cum. Supp. 1981).

159 This is what the court did in Schuster, 410 F.2d at 1083.

160 One could conjure up a complex scenario in which the court, before it could compare Nebraska's transfer statute to its criminal commitment statutes, would have to determine the constitutionality of the civil commitment statutes. The scenario, however, would contravene judicially imposed requirements of deciding cases on their narrowest grounds and would probably violate the “case or controversy” requirements of article III of the Constitution. Moreover, the scenario ignores the thrust of equal protection analysis; that is, are the different levels of protection in the two sets of laws, as the laws presently exist, rationally related to the legislative purpose for which the distinction was made. United States ex rel. Schuster v. Herold, 410 F.2d at 1084.

161 This is the same injury that earlier caused the Court to determine that the case was not moot. Vitek v. Jones, 445 U.S. at 486, 502 n.1 (Blackmun, J., dissenting).

162 App. to Juris. Statement at 24, Vitek v. Jones, 445 U.S. 480 (1980).

163 See supra note 158.

164 But see supra note 160.

165 Humphrey v. Cady, 405 U.S. 504 (1972); Jackson v. Indiana, 406 U.S. 715 (1972).

166 405 U.S. 504 (1972).

167 Wis. Stat. Ann. § 959.15 (West 1958), amended by Wis. Stat. Ann. § 975 (West 1971).

168 383 U.S. 107 (1966).

169 386 U.S. 605 (1967).

170 The Court suggested that the parties present evidence bearing on whether commitment under the Sex Crimes Act required the same showing as in commitment under the Mental Health Act. If it did, then the district court would need to consider the justification for the distinct procedural protections under each Act. Humphrey v. Cady, 405 U.S. at 510.

171 406 U.S. 715 (1972).

172 Jackson v. Indiana, 406 U.S. at 724 (noting that same conclusion was reached in Commonwealth v. Drunken, 356 Mass. 503, 507, 254 N.E.2d 779, 781 (1969)).

173 Wolff v. McDonnell, 418 U.S. at 564; Enomoto v. Wright, 434 U.S. 1052 (1978), aff'g mem., 462 F. Supp. 397, 404 (N.D. Cal. 1976).

174 Wolff v. McDonnell, 418 U.S. at 564; Wright v. Enomoto, 462 F. Supp. at 404.

175 Chesney v. Adams, 377 F. Supp. at 893 (discussing United States ex rel. Schuster v. Herold, 410 F.2d 1071, 1081 (2d Cir.), cert. denied, 396 U.S. 847 (1969) and Matthews v. Hardy, 420 F.2d 607, 610 n.ll (D.C. Cir. 1969), cert. denied, 397 U.S. 1010 (1970)); see Vitek v. Jones, 445 U.S. at 489, 493. See Comment, Transfer of Prisoners to Mental Institutions, 69 J. Crim. L. & Criminology 337, 338-41 (1978)Google Scholar, for an in-depth analysis of the distinction between criminal commitment and administrative transfer.

176 Vitek v. Jones, 445 U.S. at 489-90.

177 Id. at 495. In characterizing a commitment proceeding, one court stated that although the decisionmaker considers medical evidence and opinion, he ultimately applies a legal standard to these facts. Bension v. Meredith, 455 F. Supp. 662, 670 (D.D.C. 1978).

178 Wolff v. McDonnell, 418 U.S. at 522 n.10 (testimony of prison warden).

179 Matthews v. Hardy, 420 F.2d at 611. See supra note 26 (discussing differences between mental institution and prison).

180 E.g., Matthews v. Hardy, 420 F.2d at 611-12 (court read D.C. civil commitment statute's requirements into criminal transfer statute to avoid a declaration of unconstitutionally); United States ex rel. Souder v. Watson, 413 F. Supp. 711 (M.D. Pa. 1976) (court held transfer statute unconstitutional; statute subsequently repealed and replaced with 50 Pa. Cons. Stat. § 7401(a) (Supp. 1981) which provides for application of civil commitment procedures); Chesney v. Adams, 377 F. Supp. 887 (D. Conn. 1974), aff'd mem., 508 F.2d 836 (2d Cir. 1975) (legislature replaced unconstitutional transfer statute with Conn. Gen. Stat. § 17-194c (Supp. 1981) which provides for application of civil commitment procedures); Commonwealth v. Drunken, 356 Mass. 503, 254 N.E.2d 779 (1969) (court read requirements of civil commitment statutes into transfer statute).

181 E.g., N.Y. Correct. Law § 402 (McKinney Supp. 1981) (requiring at least five days notice to inmate and close relative prior to transfer to mental institution). Current notice provisions and case law generally require at least 48 hours between the service of notice and the hearing. These statutes also provide for continuances to avoid prejudice resulting from insufficient preparation time. See, e.g., French v. Blackburn, 428 F. Supp. 1351, 1357 (M.D.N.C. 1977), aff'd, 443 U.S. 901 (1979); N.C. Gen. Stat. § 122-58.5, -58.7(a) (1981); see also Neb. Rev. Stat. § 83-1027 (Cum. Supp. 1981).

182 Miller v. Vitek, 437 F. Supp. at 574.

183 Chesney v. Adams, 377 F. Supp. at 895-96.

184 French v. Blackburn, 428 F. Supp. at 1356.

185 Cf. Addington v. Texas, 441 U.S. at 423 (due process requires a standard of proof in commitment proceedings that reflects the values at stake in the proceeding).

186 See Fed. R. Civ. P. 5(c).

187 See Fed. R. Crim. P. 4(d), 8(a).

188 Matthews v. Hardy, 420 F.2d at 610-11; United States ex rel. Schuster v. Herold, 410 F.2d at 1081-83; Chesney v. Adams, 377 F. Supp. at 892-95.

189 441 U.S. 418 (1979).

190 Addington v. Texas, 441 U.S. at 425-26.

191 445 U.S. at 492-93 (citing Addington v. Texas, 441 U.S. at 425 and O'Connor v. Donaldson, 422 U.S. at 580 (Burger, C.J., concurring)).

192 See, e.g., Stamus v. Leonhardt, 414 F. Supp. 439, 446 (S.D. Iowa 1976); Lynch v. Baxley, 386 F. Supp. 378, 388 (M.D. Ala. 1974) (“notice should include the date, time, and place of the hearing; a clear statement of the purpose of the proceedings and the possible consequences … ; the alleged factual basis for the proposed commitment, and a statement of the legal standard upon which commitment is authorized”); see also Neb. Rev. Stat. § 83-1027, -1048 (Cum. Supp. 1981). But see French v. Blackburn, 428 F. Supp. at 1356 (notice is adequate if it advises of the time, place, and purpose of the hearing, the right to counsel, the right to present evidence, and the fact that the presiding judge will decide whether the individual should be released, committed for up to 90 days, or undergo outpatient treatment).

193 Vitek v. Jones, 445 U.S. at 494.

194 Under Nebraska's present civil commitment statutes, the subject of the commitment proceeding is allowed complete discovery of the state's evidence. Neb. Rev. Stat. § 83-1053 (Cum. Supp. 1981). This approach also is followed in other states. See, e.g., Md. Ann. Code art. 31B, §§ 7(b), 8(b) (1957) (defective delinquent given access to all records and reports concerning commitment).

195 The latter alternative is inefficient and contrary to the state's interest in providing prompt psychiatric care. The former alternative, however, is a reasonable approach, particularly where a prisoner either does not need any treatment or needs treatment that can be provided at the prison. See, e.g., United States ex rel, Schuster v. Herold, 410 F.2d 1071, 1076 (2d Cir. 1969) (“we are forced to the unhappy conclusion that Schuster is simply a forgotten man in a mental institution which has nothing to offer him”); Chesney v. Adams, 337 F. Supp. 887, 889 (D. Conn. 1974), aff'd mem., 508 F.2d 836 (2d Cir. 1975) (“[t]he staff at Somers diagnosed him as paranoid, noting among his symptoms an exaggerated estimate of his legal rights and the delusion that he might be deprived of them… . [H]is basic claim that the transfer procedure denied him the equal protection of the laws is by no means a delusion; in fact, it is a well-founded view of constitutional requirements.”).

196 Vitek v. Jones, 445 U.S. at 495.

197 “The only certain thing that can be said about the present state of knowledge and therapy regarding mental disease is that science has not reached finality of judgment.” Greenwood v. United States, 350 U.S. 366, 375 (1956). “The Court appropriately takes notice of the uncertainties of psychiatric diagnosis and therapy.” O'Conner v. Donaldson, 422 U.S. 563, 579 (1975) (Burger, C.J., concurring).

198 See infra note 200.

199 See supra note 140.

200 For example, … it is still commonly held that an adjudication of mental incompetency gives rise to a rebuttable presumption of continued incompetency. In many jurisdictions, such a presumption may, in turn, affect the right to dispose of property, to execute contracts and to perform many similar and commonplace functions. Indeed, such an adjudication, while not always crippling, is certainly always an ominous presence in any interaction between the individual and the legal system… . Most significantly, records of commitments to a mental institution will certainly be used in any subsequent proceeding for civil commitment.

In re Ballay, 482 F.2d 648, 651-52 (D.C. Cir. 1973). Moreover, a prisoner confined in a mental institution may encounter difficulties in seeking parole. United States ex rel. Schuster v. Herold, 420 F.2d 1071, 1080 (2d Cir.), cert. denied, 396 U.S. 847 (1969); Chesney v. Adams, 377 F. Supp. 887, 894 (D. Conn. 1974); aff'd mem., 508 F.2d 836 (2d Cir. 1975).

201 Nebraska conditions transfer to a mental institution on a finding that a prisoner is in need of treatment. See supra note 12.

202 Miller v. Vitek, 437 F. Supp. at 574.

203 Goldberg v. Kelly, 397 U.S. 254 (1970). See Morrissey v. Brewer, 408 U.S. at 486. But see Arnett v. Kennedy, 416 U.S. 134, 199 (1974) (White, J., concurring in part and dissenting in part) (“Fairness and accuracy are not always threatened simply because the hearing examiner is the supervisor of an employee [who is challenging his dismissal].”).

204 vitek v. Jones, 445 U.S. at 496.

205 W. Gellhorn, C. Byse & P. Strauss, Administrative Law 754 (7th ed. 1979).

206 Neb. Rev. Stat. §§ 83-1018, -1035 (Cum. Supp. 1981).

207 Vitek v. Jones, 445 U.S. at 496.

208 Id. at 495.

209 See Wolff v. McDonnell, 418 U.S. at 565.

210 See Chensey v. Adams, 377 F. Supp. at 894.

211 See id.

212 Neb. Rev. Stat. § 83-1027 (Cum. Supp. 1981) insures effective notice to subjects of civil commitment proceedings of their rights by requiring the sheriff to append a list of the rights to the summons.

213 Miller v. Vitek, 437 F. Supp. at 575.

214 See Neb. Rev. Stat. § 83-1035 (Cum. Supp. 1981).

215 See id.

216 Bension v. Meredith, 455 F. Supp. 662, 668 (D.D.C. 1978); French v. Blackburn, 428 F. Supp, 1351, 1359-60 (M.D.N.C, 1977), aff'd, 443 U.S.. 901 (19,79); Stamus v. Leonhardt, 414 F. Supp, 439 (S.D. Iowa. 1976); Lynch v. Baxley, 386 F. Supp. 378, 390-92 (M.D. Ala. 1974); see O'Conner v. Donaldson, 422 U.S. 563, 575-76 (1975). Many courts have construed the due process clause to require a showing of both mental illness and dangerousness to self or others before a state may civilly commit an individual. E.g., Bension v. Meredith, 455 F. Supp. at 688-69; Doremus v. Farrell, 407 F. Supp, at 514-15; Kendall v. True, 391 F. Supp. 413, 417 (W.D. Ky. 1975); Lynch v. Baxley, 385 F. Supp. at 390; Bell v. Wayne County Gen. Hosp., 384 F. Supp. 1085, 1102 (E.D. Mich. 1974). The Supreme Court has yet to rule on this question but has suggested that both elements are required. O'Conner v. Donaldson, 422 U.S. at 389 (Burger, C.J., concurring); Jackson v. Indiana, 406 U.S. 715, 728 (1972); Humphrey v. Cady, 405 U.S. 504, 509 (1972).

217 See Jackson v. Indiana, 406. U.S. 715, 728 (1972) (criminal charges insufficient to prove dangerousness).

218 Hill v. County Bd. of Mental Health, 203 Neb. 610, 279 N.W.2d 838 (1979); Lux v. Mental Health Bd, of Polk County, 202 Neb. 106, 274 N.W.2d 141 (1979).

219 Evidence that supports a decision to transfer if a mere preponderance of the evidence standard is employed may not be sufficient if a clear and convincing evidence standard is used.

220 Addington v. Texas, 441 U.S. 425, 432 (1979).

221 Id.

222 Santosky v. Kramer, 101 S.Ct. 1388 (1982).

223 See supra notes 181-83, 188-92 and accompanying text.