OCTOBER TERM, 1992
Syllabus
HELLER, SECRETARY, KENTUCKY CABINET FOR HUMAN RESOURCES
v. DOE, BY HIS MOTHER AND NEXT FRIEND, DOE, ET AL.
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SIXTH
CIRCUIT
No.92-351. Argued March 22, 1993-Decided June 24,1993
Kentucky permits the involuntary commitment of mentally retarded
or mentally ill individuals who present a threat of danger to
themselves, family, or others, who can reasonably benefit from the
available treatment, and for whom the least restrictive alternative
is placement in the relevant facility. However, the statutory
procedures for the commitment of the two groups differ in the two
respects at issue here. First, the applicable burden of proof in
mental retardation commitment proceedings is clear and convincing
evidence while the standard in mental illness proceedings is beyond
a reasonable doubt. Second, guardians and immediate family members
of the subject of a mental retardation proceeding may participate
as if parties to those proceedings, with all attendant rights. In
this action, respondents, a class of involuntarily committed
mentally retarded persons, claimed that the distinctions are
irrational and therefore violate the Fourteenth Amendment's Equal
Protection Clause, and that granting close family members and
guardians the status of parties violates the Due Process Clause.
The District Court granted them summary judgment, and the Court of
Appeals affirmed.
Held:
1. Respondents' claim that the statutes should be reviewed under
a heightened scrutiny standard is not properly presented, since it
was not raised below and the lower courts ruled only on the ground
of rationalbasis review. Pp. 318-319.
2. The distinctions between the two proceedings are consistent
with the Equal Protection Clause. Pp. 319-330.
(a) Classifications neither involving fundamental rights nor
proceeding along suspect lines do not run afoul of the Equal
Protection Clause if there is a rational relationship between the
disparity of treatment and a legitimate governmental purpose. A
legislature need not articulate its rationale, and a State need not
produce evidence to sustain the classification's rationality.
Moreover, courts are compelled to accept a legislature's
generalization even when there is an imperfect fit between means
and ends. Pp.319-321.
313
(b) Kentucky has proffered more than adequate justifications for
its burden of proof scheme. Mental retardation, which is a
developmental disability usually well documented throughout
childhood, is easier to diagnose than is mental illness, which may
have a sudden onset in adulthood. Thus, it could have assigned a
higher burden of proof to mental illness to equalize the risk of
erroneous determination that the subject of a commitment proceeding
has the condition in question. Ease of diagnosis could also result
in a more accurate dangerousness determination for the mentally
retarded, who have a relatively static condition and a
well-documented record of previous behavior. In contrast, since
manifestations of mental illness may be sudden, past behavior may
not be an adequate predictor of future actions. A higher standard
for the mentally ill is also justified on the ground that, in
general, their treatment is much more intrusive than that received
by the mentally retarded. Pp.321-328.
(c) There is also a rational basis for Kentucky to allow
immediate family members and guardians to participate as parties in
proceedings to commit the mentally retarded but not the mentally
ill. Kentucky could rationally conclude that close relatives and
guardians may have intimate knowledge of the subject's abilities
and experiences which provides valuable insights that should be
considered during the involuntary commitment process. By contrast,
mental illness may arise only after minority, when the afflicted
person's immediate family members have ceased to provide care and
support, and the proper course of treatment may depend on matters
not related to observations made in a household setting. In
addition, adults previously of sound mental health who are
diagnosed as mentally ill may have a need for privacy that
justifies confining a commitment proceeding to the smallest group
possible. Whether Kentucky could have chosen a less-restrictive
means than party status for achieving its legislative end is
irrelevant in rationalbasis review. Pp. 328-330.
3. Allowing close relatives and legal guardians to participate
as parties does not violate due process. Consideration of the
factors set out in
Mathews v.
Eldridge, 424 U. S. 319, 335-the
private interest that will be affected, the risk of an erroneous
deprivation of such interest, and the government's interest-compels
this conclusion. Rather than increasing the risk of an erroneous
deprivation, allowing close relatives and guardians to participate
as parties actually increases a proceeding's accuracy by putting
valuable information before the court. It also implements the
State's interest in providing family members a voice in such
proceedings. And even if they favor commitment, their participation
does not undermine the interest of the individual facing
commitment. The only individual interest that is protected by
the
314
Due Process Clause is in an accurate decision, not a favorable
one. Pp. 330-333.
965 F.2d
109, reversed.
KENNEDY, J., delivered the opinion of the Court, in which
REHNQUIST, C. J., and WHITE, SCALIA, and THOMAS, JJ., joined.
O'CONNOR, J., filed an opinion concurring in the judgment in part
and dissenting in part,
post, p. 334. BLACKMUN, J., filed a
dissenting opinion,
post, p. 334. SOUTER, J., filed a
dissenting opinion, in which BLACKMUN and STEVENS, JJ., joined, and
in Part II of which O'CONNOR, J., joined,
post, p. 335.
William K. Moore argued the cause for petitioner. With
him on the briefs were
Edward D. Klatte and
Charles P.
Lawrence.
Kelly Miller argued the cause for respondents. With her
on the brief was
Brian Wolfman. *
JUSTICE KENNEDY delivered the opinion of the Court.
In the Commonwealth of Kentucky, involuntary civil commitments
of those alleged to be mentally retarded and of those alleged to be
mentally ill are governed by separate statutory procedures. Two
differences between these commitment proceedings are at issue in
this case. First, at
*Briefs of
amici curiae urging reversal were filed for
the State of New Jersey et al. by
Robert J. Del
Tufo, Attorney General,
Joseph L. Yannotti, Assistant
Attorney General,
Mary C.
Jacobson, Senior Deputy
Attorney General, and
Sharon M. Hallanan, Deputy Attorney
General, joined by the Attorneys General for their respective
States as follows:
Linley E. Pearson of Indiana,
Frank J. Kelley of Michigan,
Hubert H.
Humphrey III of Minnesota,
Don Stenberg of Nebraska,
Mark Barnett of South Dakota, and
Mary Sue Terry of
Virginia; for Concerned Families of Hazelwood Center, ICR/MR, Inc.,
et al. by
Frank Coryell; and for Voice of the Retarded et
al. by
William F.
Sherman.
Briefs of
amici curiae urging affirmance were filed for
the American Association on Mental Retardation et al. by
James W
Ellis and
Maureen A. Sanders; and for Focus on Community
Understanding and Services, Inc., et al. by
Ronald L. Smith
and
Michael Kirkman.
John Townsend Rich, Christopher E. Palmer, and Leonard S.
Rubenstein filed a brief for the Mental Health Law Project as
amicus curiae.
315
a final commitment hearing, the applicable burden of proof for
involuntary commitment based on mental retardation is clear and
convincing evidence, Ky. Rev. Stat. Ann. § 202B.160(2) (Michie
1991), while the standard for involuntary commitment based on
mental illness is beyond a reasonable doubt, § 202A.076(2). Second,
in commitment proceedings for mental retardation, unlike for mental
illness, "[g]uardians and immediate family members" of the subject
of the proceedings "may participate ... as if a party to the
proceedings," with all attendant rights, including the right to
present evidence and to appeal. § 202B.160(3). Respondents are a
class of mentally retarded persons committed involuntarily to
Kentucky institutions. They argue that these distinctions are
irrational and violate the Equal Protection Clause of the
Fourteenth Amendment. They claim also that granting close family
members and guardians the status of parties violates the Due
Process Clause. We reject these contentions and hold the Kentucky
statutes constitutional.
I
This case has a long and complicated history. I t began in 1982
when respondents filed suit against petitioner, the Kentucky
Secretary of the Cabinet for Human Resources, claiming that
Kentucky's failure to provide certain procedural protections before
institutionalizing people on the basis of mental retardation
violated the Constitution. Kentucky has amended its civil
commitment statutes several times since 1982, with each new statute
being attacked in court by respondents. As the previous
incarnations of this lawsuit have little effect on the issues
currently before this Court, we limit our discussion to the current
round of the litigation. See
Doe v.
Cowherd, 770 F.
Supp. 354, 355-356 (WD Ky. 1991) (recounting the procedural
history).
At issue here are elements of Kentucky's statutory procedures,
enacted in 1990, for the involuntary commitment of the mentally
retarded. In many respects the procedures
316
governing commitment of the mentally retarded and the mentally
ill are parallel. The statutes recognize a large class of persons
who can petition for an individual's involuntary commitment,
whether on grounds of mental retardation or mental illness. Ky.
Rev. Stat. Ann. § 202B.100(3) (Michie 1991) (mental retardation); §
202A.051 (mental illness). Upon filing of the petition, the trial
court must appoint counsel to represent the individual in question,
unless he retains private counsel. § 202B.210 (mental retardation);
§ 202A.121 (mental illness). The trial court also must examine the
person who filed the petition and, if there is probable cause to
believe that the individual who is the subject of the petition
should be involuntarily committed, the court must order his
examination by two qualified professionals. §§ 202B.100(5), (6)(c)
(mental retardation); §§ 202A.051(5), (6)(c) (mental illness). The
subject of the proceeding has the right to retain a professional of
his own choosing, who may "witness and participate in any
examination" of him. § 202B.140 (mental retardation); § 202A.066
(mental illness). In cases of commitment for mental retardation, a
professional retained by the subject's "parent or guardian" also
must be permitted to witness and participate in any examination. §
202B.140.
If both qualified professionals certify that the individual
meets the criteria for involuntary commitment, the trial court must
conduct a preliminary hearing. § 202B.130 (mental retardation); §
202A.061 (mental illness). At the hearing, the court must receive
as evidence the reports of these two professionals and any other
professional retained under the statute. § 202B.160(1) (mental
retardation); § 202A.076(1) (mental illness). The individual whose
commitment is sought may testify and may call and cross-examine
witnesses. § 202B.160(1) (mental retardation); § 202A.076(1)
(mental illness). In cases of mental retardation, at both the
preliminary hearing and, if there is one, the final hearing,
317
Kentucky law provides particular rights to guardians and
immediate family members:
"Guardians 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; may cross-examine witnesses if desired; and shall have
standing to appeal any adverse decision." § 202B.160(3)
See also § 202B.230. If the trial court determines that there is
probable cause to believe that the subject should be involuntarily
committed, it proceeds to a final hearing. § 202B.100(8) (mental
retardation); § 202A.051(9) (mental illness).
At the final hearing, the State, through the county attorney for
the county in which the person subject to the proceeding lives,
prosecutes the petition, § 202B.019 (mental retardation); §
202A.016 (mental illness); Tr. of Oral Arg. 33-35, and counsel for
the person defends against institutionalization,
id., at 31,
34, 54. At this hearing, "[t]he manner of proceeding and the rules
of evidence shall be the same as those in any criminal proceeding."
§ 202B.160(2) (mental retardation); § 202A.076(2) (mental illness).
As in the preliminary hearing, the subject of the proceedings may
testify and call and cross-examine witnesses. § 202B.160(2) (mental
retardation); § 202A.076(2) (mental illness). In proceedings for
commitment based on mental retardation, the standard of proof is
clear and convincing evidence, § 202B.160(2); for mental illness,
the standard is proof beyond a reasonable doubt, § 202A.076(2). For
commitment of the mentally retarded, four propositions must be
proved by clear and convincing evidence: "(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
318
residential treatment center]; and (4) Treatment that can
reasonably benefit the person is available in [a residential
treatment center]." § 202B.040. The criteria for commitment of the
mentally ill are in substance identical, requiring proof beyond a
reasonable doubt that an individual "is a mentally ill person: (1)
Who presents a danger or threat of danger to self, family or others
as a result of the mental illness; (2) Who can reasonably benefit
from treatment; and (3) For whom hospitalization is the least
restrictive alternative mode of treatment presently available." §
202A.026. Appeals from involuntary commitment proceedings are taken
in the same manner as other appeals from the trial court. §
202B.230 (mental retardation); § 202A.141 (mental illness).
After enactment of the 1990 modifications, respondents moved for
summary judgment in their pending lawsuit against petitioner. They
argued, among other things, that the differences in treatment
between the mentally retarded and the mentally ill-the different
standards of proof and the right of immediate family members and
guardians to participate as parties in commitment proceedings for
the mentally retarded but not the mentally ill-violated the Equal
Protection Clause's prohibition of distinctions that lack a
rational basis, and that participation by family members and
guardians violated the Due Process Clause. The District Court for
the Western District of Kentucky accepted these arguments and
granted summary judgment to respondents on these and other grounds
not at issue here, 770 F. Supp. 354 (1991), and the Court of
Appeals for the Sixth Circuit affirmed,
Doe v.
Cowherd, 965 F.2d
109 (1992). We granted Kentucky's petition for certiorari, 506
U. S. 939 (1992), and now reverse.
II
Respondents contend that, in evaluating the constitutionality of
the distinctions drawn by Kentucky's statutes, we should apply not
rational-basis review, but some form of
319
heightened scrutiny. Brief for Respondents 23-32. This claim is
not properly presented. Respondents argued before the District
Court and the Court of Appeals only that Kentucky's statutory
scheme was subject to rational-basis review, and the courts below
ruled on that ground. Indeed, respondents have conceded that they
pressed their heightened scrutiny argument for the first time in
their merits brief in this Court.
Id., at 23 ("[R]espondents
did not argue this particular issue below ... "). Even if
respondents were correct that heightened scrutiny applies, it would
be inappropriate for us to apply that standard here. Both parties
have been litigating this case for years on the theory of
rational-basis review, which, as noted below, see
infra, at
320, does not require the State to place any evidence in the
record, let alone the extensive evidentiary showing that would be
required for these statutes to survive heightened scrutiny. It
would be imprudent and unfair to inject a new standard at this
stage in the litigation. See
Tennessee v.
Dunlap, 426
U. S. 312, 316, n. 3 (1976);
Ernst &
Ernst v.
Hochfelder, 425 U. S. 185, 215
(1976). We therefore decide this case as it has been presented to
the courts whose judgments are being reviewed.
III
We many times have said, and but weeks ago repeated, that
rational-basis review in equal protection analysis "is not a
license for courts to judge the wisdom, fairness, or logic of
legislative choices."
FCC v.
Beach Communications,
Inc., 508 U. S.
307, 313 (1993). See also,
e. g., Dandridge v.
Williams, 397
U. S. 471, 486 (1970). Nor does it authorize "the judiciary
[to] sit as a superlegislature to judge the wisdom or desirability
of legislative policy determinations made in areas that neither
affect fundamental rights nor proceed along suspect lines."
New
Orleans v.
Dukes, 427 U. S. 297, 303 (1976)
(per curiam). For these reasons, a classification neither
involving fundamental rights nor proceeding along suspect lines is
accorded a strong presumption of validity.
320
See,
e. g., Beach Communications, supra, at 314-315;
Kadrmas v.
Dickinson Public Schools, 487 U. S. 450, 462
(1988); Hodel v.
Indiana, 452 U. S. 314, 331-332
(1981);
Massachusetts Bd. of Retirement v.
Murgia,
427 U. S. 307,
314
(1976) (per curiam). Such a classification cannot
run afoul of the Equal Protection Clause if there is a rational
relationship between the disparity of treatment and some legitimate
governmental purpose. See,
e. g., Nordlinger v.
Hahn,
505 U. S. 1, 11 (1992);
Dukes, supra, at 303. Further, a
legislature that creates these categories need not "actually
articulate at any time the purpose or rationale supporting its
classification."
Nordlinger, supra, at 15. See also,
e.
g., United States Railroad Retirement Bd. v.
Fritz,
449 U. S. 166,
179
(1980); Allied Stores of Ohio, Inc. v.
Bowers, 358 U.
S. 522, 528 (1959). Instead, a classification "must be upheld
against equal protection challenge if there is any reasonably
conceivable state of facts that could provide a rational basis for
the classification."
Beach Communications, supra, at 313.
See also,
e. g., Nord linger, supra, at 11;
Sullivan
v.
Stroop, 496
U. S. 478, 485 (1990);
Fritz, supra, at 174-179;
Vance v.
Bradley, 440 U. S. 93, 111 (1979);
Dandridge v.
Williams, supra, at 484-485.
A State, moreover, has no obligation to produce evidence to
sustain the rationality of a statutory classification. "[A]
legislative choice is not subject to courtroom factfinding and may
be based on rational speculation unsupported by evidence or
empirical data."
Beach Communications, supra, at 315. See
also,
e. g., Vance v.
Bradley, supra, at 111;
Hughes v.
Alexandria Scrap Corp., 426 U. S. 794, 812
(1976);
Locomotive Firemen v.
Chicago, R. 1. &
P. R. Co., 393
U. S. 129, 139 (1968). A statute is presumed constitutional,
see
supra, at 319, and "[t]he burden is on the one attacking
the legislative arrangement to negative every conceivable basis
which might support it,"
Lehnhausen v.
Lake Shore Auto
Parts Co., 410 U.
S. 356, 364 (1973) (internal quotation marks omitted), whether
or not the basis has a foundation in the
321
record. Finally, courts are compelled under rational-basis
review to accept a legislature's generalizations even when there is
an imperfect fit between means and ends. A classification does not
fail rational-basis review because it "'is not made with
mathematical nicety or because in practice it results in some
inequality.'"
Dandridge v.
Williams, supra, at 485,
quoting
Lindsley v.
Natural Carbonic Gas Co., 220 U.
S. 61, 78 (1911). "The problems of government are practical ones
and may justify, if they do not require, rough
accommodations-illogical, it may be, and unscientific."
Metropolis Theatre Co. v.
Chicago, 228 U. S. 61, 69-70
(1913). See also,
e. g., Burlington Northern R. Co. v.
Ford, 504 U.
S. 648, 651 (1992);
Vance v.
Bradley, supra, at
108, and n. 26;
New Orleans v.
Dukes, supra, at 303;
Schweiker v.
Wilson, 450 U. S. 221, 234
(1981). We have applied rational-basis review in previous cases
involving the mentally retarded and the mentally ill. See
Cleburne v.
Cleburne Living Center, Inc., 473 U. S. 432 (1985);
Schweiker v.
Wilson, supra. In neither case did we
purport to apply a different standard of rational-basis review from
that just described.
True, even the standard of rationality as we so often have
defined it must find some footing in the realities of the subject
addressed by the legislation. That requirement is satisfied here.
Kentucky has proffered more than adequate justifications for the
differences in treatment between the mentally retarded and the
mentally ill.
A
Kentucky argues that a lower standard of proof in commitments
for mental retardation follows from the fact that mental
retardation is easier to diagnose than is mental illness. That
general proposition should cause little surprise, for mental
retardation is a developmental disability that becomes apparent
before adulthood. See American Psychiatric Assn., Diagnostic and
Statistical Manual of Mental Dis-
322
orders 29 (3d rev. ed. 1987) (hereinafter Manual of Mental
Disorders); American Assn. on Mental Retardation, Mental
Retardation: Definition, Classification, and Systems of Support 5,
16-18 (9th ed. 1992) (hereinafter Mental Retardation); S. Brakel,
J. Parry, & B. Weiner, The Mentally Disabled and the Law 16-17,
37 (3d ed. 1985) (hereinafter Mentally Disabled); Ky. Rev. Stat.
Ann. § 202B.Ol0(9) (Michie 1991). By the time the person reaches 18
years of age the documentation and other evidence of the condition
have been accumulated for years. Mental illness, on the other hand,
may be sudden and may not occur, or at least manifest itself, until
adulthood. See,
e. g., Manual of Mental Disorders 190
(onset of schizophrenia may occur any time during adulthood);
id., at 220, 229 (onset of depression usually is during
adulthood). Furthermore, as we recognized in an earlier case,
diagnosis of mental illness is difficult. See
Addington v.
Texas, 441 U.
S. 418, 430 (1979). See also Mentally Disabled 18. Kentucky's
basic premise that mental retardation is easier to diagnose than is
mental illness has a sufficient basis in fact. See,
e.
g., id., at 16; Ellis & Luckasson, Mentally Retarded
Criminal Defendants, 53 Geo. Wash. L. Rev. 414, 438-439 (1985).
This difference between the two conditions justifies Kentucky's
decision to assign a lower standard of proof in commitment
proceedings involving the mentally retarded. In assigning the
burden of proof, Kentucky was determining the "risk of error" faced
by the subject of the proceedings.
Addington v.
Texas,
supra, at 423. 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.1 See G. Keppel, Design and Analysis
65-68 (1973).
IJU8TICE SOUTER suggests that this description of the function
of burdens of proof is inconsistent with
Addington v.
Texas, 441 U.
S. 418 (1979). See
post, at 339-341 (dissenting
opinion). His reasoning, however, would
323
From the diagnostic standpoint alone, Kentucky's differential
burdens of proof (as well as the other statutory distinction at
issue, see
infra, at 328-329) are rational.
There is, moreover, a "reasonably conceivable state of facts,"
Beach Communications, 508 U. S., at 313, from which Kentucky
could conclude that the second prerequisite to commitment-that
"[t]he person presents a danger or a threat of danger to self,
family, or others," Ky. Rev. Stat. Ann. § 202B.040 (Michie 1991)-is
established more easily, as a general rule, in the case of the
mentally retarded. Previous instances of violent behavior are an
important indicator of future violent tendencies. See,
e.
g., J. Monahan, The Clinical Prediction of Violent Behavior
71-72 (1981) (hereinafter Monahan); Kozol, Boucher, & Garofalo,
The Diagnosis and Treatment of Dangerousness, 18 Crime &
Delinquency 371, 384 (1972). Mental retardation is a permanent,
relatively static condition, see Mentally Disabled 37, so a
determination of dangerousness may be made with some accuracy based
on previous behavior. We deal here with adults only, so almost by
definition in the case of the retarded there is an 18-year record
upon which to rely.
This is not so with the mentally ill. Manifestations of mental
illness may be sudden, and past behavior may not be an adequate
predictor of future actions. Prediction of future behavior is
complicated as well by the difficulties in-
impose the due process conception of burdens of proof on a
State's policy decision as to which standard is most appropriate in
the circumstances. The Due Process Clause sets the minimum standard
of proof required in particular contexts, based on consideration
both of the respective interests of the State and individual and of
the risk of erroneous decisions.
Addington, supra, at
425. A State is free to adopt any burden of proof that meets or
exceeds the constitutional minimum required by due process, and a
State may select a standard of proof based on any rational policy
of its choice. It may seek, as JUSTICE SOUTER would require, to
balance the respective interests of the affected parties. See
post, at 339. But it may also calibrate its standard of
proof in an effort to establish the risk of error at a certain
level.
324
herent in diagnosis of mental illness. Developments in the
Law-Civil Commitment of the Mentally Ill, 87 Harv. L. Rev. 1190,
1242-1243 (1974). It is thus no surprise that many psychiatric
predictions of future violent behavior by the mentally ill are
inaccurate. See,
e. g., Steadman, Employing
Psychiatric Predictions of Dangerous Behavior: Policy vs. Fact, in
Dangerous Behavior: A Problem in Law and Mental Health 123,125-128
(C. Frederick ed. 1978); Monahan 47-49. For these reasons, it would
have been plausible for Kentucky to conclude that the dangerousness
determination was more accurate as to the mentally retarded than
the mentally ill.
A statutory classification fails rational-basis review only when
it "'rests on grounds wholly irrelevant to the achievement of the
State's objective.'"
Holt Civic Club v.
Tuscaloosa,
439 U. S. 60, 71
(1978), quoting
McGowan v.
Maryland, 366 U. S. 420, 425
(1961). See also,
e. g., McDonald v.
Board of Election
Comm'rs of Chicago, 394 U. S. 802, 809
(1969); Kotch v.
Board of River Port Pilot Comm'rs for
Port of New Orleans, 330 U. S. 552, 556
(1947). Because ease of diagnosis is relevant to two of the four
inquiries, it is not "wholly irrelevant" to the achievement of
Kentucky's objective, and thus the statutory difference in the
applicable burden of proof survives rational-basis review. In any
event, it is plausible for Kentucky to have found that, for
purposes of determining the acceptable risk of error, diagnosis and
dangerousness are the most critical factors in the commitment
decision, so the appropriate burden of proof should be tied to
them.
There is a further, more far-reaching rationale justifying the
different burdens of proof: The prevailing methods of treatment for
the mentally retarded, as a general rule, are much less invasive
than are those given the mentally ill. The mentally ill are
subjected to medical and psychiatric treatment which may involve
intrusive inquiries into the patient's innermost thoughts, see
Meissner & Nicholi, The Psy-
325
chotherapies: Individual, Family, and Group, in The Harvard
Guide to Modern Psychiatry 357-385 (A. Nicholi ed. 1978)
(hereinafter Harvard Guide), and use of psychotropic drugs, see
Baldessarini, Chemotherapy, in Harvard Guide 387-431; Berger,
Medical Treatment of Mental Illness, 200 Science 974 (1978);
Mentally Disabled 327-330; Brief for American Psychological
Association as
Amicus Curiae in
Washington v.
Harper, O. T. 1988, No. 88-599, pp. 10-11. By contrast, the
mentally retarded in general are not subjected to these medical
treatments. Rather," 'because mental retardation is ... a learning
disability and training impairment rather than an illness,'"
Youngberg v.
Romeo, 457 U. S. 307, 309, n. 1
(1982), quoting Brief for American Psychiatric Association as
Amicus Curiae in
Youngberg v.
Romeo, O. T.
1981, No. 80-1429, p. 4, n. 1, the mentally retarded are provided
"habilitation," which consists of education and training aimed at
improving self-care and self-sufficiency skills. See
Youngberg,
supra, at 309, n. 1; M. Rosen, G. Clark, & M. Kivitz,
Habilitation of the Handicapped 47-59 (1977); Mentally Disabled
332.
It is true that the loss of liberty following commitment for
mental illness and mental retardation may be similar in many
respects; but the different treatment to which a committed
individual is subjected provides a rational basis for Kentucky to
decide that a greater burden of proof is needed before a person may
be committed for mental illness. The procedures required before the
government acts often depend on the nature and extent of the burden
or deprivation to be imposed. See
Addington v.
Texas,
441 U. S., at 423424. For example, because confinement in prison is
punitive and hence more onerous than confinement in a mental
hospital,
id., at 428, the Due Process Clause subjects the
former to proof beyond a reasonable doubt,
In re Winship,
397 U. S. 358
(1970), whereas it requires in the latter case only clear and
convincing evidence,
Addington v.
Texas, supra. It
may also be true that some persons committed for mental retardation
are subjected to more intrusive treatments while
326
confined. See
post, at 342-346 (SOUTER, J., dissenting).
Nonetheless, it would have been plausible for the Kentucky
Legislature to believe that most mentally retarded individuals who
are committed receive treatment that is different from, and less
invasive than, that to which the mentally ill are subjected.
"States are not required to convince the courts of the correctness
of their legislative judgments."
Minnesota v.
Clover Leaf
Creamery Co., 449
U. S. 456, 464 (1981). Thus, since "'the question is at least
debatable,'"
Western &
Southern Life Ins. Co. v.
State Bd. of Equalization of Cal., 451 U. S. 648, 674
(1981), quoting
United States v.
Carolene Products
Co., 304 U. S.
144, 154 (1938), rationalbasis review permits a legislature to
use just this sort of generalization.
These distinctions may explain, too, the differences in
treatment between the mentally retarded and the mentally ill that
have long existed in Anglo-American law. At English common law
there was a "marked distinction" in the treatment accorded "idiots"
(the mentally retarded) and "lunatics" (the mentally ill). 1 F.
Pollock & F. Maitland, The History of English Law 481 (2d ed.
1909) (hereinafter Pollack and Maitland). As Blackstone explained,
a retarded person became a ward of the King, who had a duty to
preserve the individual's estate and provide him with
"necessaries," but the King could profit from the wardship. In
contrast, the King was required to "provide for the custody and
sustentation of [the mentally ill], and preserve their lands and
the profits of them," but the King was prohibited from profiting
thereby. 1 W. Blackstone, Commentaries *302-*304. See Pollack and
Maitland 481; S. Herr, Rights and Advocacy for Retarded People 9-10
(1983).
Ancient lineage of a legal concept does not give it immunity
from attack for lacking a rational basis. That the law has long
treated the classes as distinct, however, suggests that there is a
commonsense distinction between the men-
327
tally retarded and the mentally ill. The differentiation
continues to the present day. A large majority of States have
separate involuntary commitment laws for the two grOUpS,2
2 Ala. Code §22-52-50
et seq. (1990) (mental
retardation); §22-52-1
et seq. (Supp. 1992) (mental
illness); Alaska Stat. Ann. §47.30.700
et seq. (1990)
(mental illness); Ariz. Rev. Stat. Ann. § 36-533
et seq.
(1986 and Supp. 1992) (mental illness); Ark. Code Ann. § 20-48-404
(1991) (mental retardation); §20-47-207 (mental illness); Calif.
Welf. & Inst. Code Ann. § 6500
et seq. (West 1984 and
Supp. 1993) (mental retardation); § 5200
et seq. (mental
illness); Colo. Rev. Stat. §27-1O-105
et seq. (1989 and
Supp. 1992) (mental illness); Conn. Gen. Stat. § 17a-274
et
seq. (1993) (mental retardation); § 17a-495
et seq.
(mental illness); Del. Code Ann., Tit. 16, § 5522 (1983) (mental
retardation); § 5001
et seq. (1983 and Supp. 1992) (mental
illness); D. C. Code Ann. §§6-1924, 6-1941
et seq. (1989)
(mental retardation); § 21-541
et seq. (mental illness);
Fla. Stat. § 393.11
et seq. (Supp. 1992) (mental
retardation); §§ 394.463, 394.467 (1986 and Supp. 1992) (mental
illness); Ga. Code Ann. § 37-4-40
et seq. (Supp. 1992)
(mental retardation); § 37-3-40
et seq. (1982 and Supp.
1992) (mental illness); Haw. Rev. Stat. § 334-60.2
et seq.
(1985 and Supp. 1992) (mental illness); Idaho Code § 66-406 (1989)
(mental retardation); § 66-329 (Supp. 1992) (mental illness); Ill.
Rev. Stat., ch. 911/2, , 4-500
et seq. (1991) (mental
retardation); , 3-700
et seq. (mental illness); Ind. Code §
12-26-7-1
et seq. (Burns 1992) (mental illness); Iowa Code §
222.16
et seq. (1987) (mental retardation); § 229.6
et
seq. (mental illness); Kan. Stat. Ann. § 59-2912
et seq.
(1983 and Supp. 1990) (mental illness); Ky. Rev. Stat. Ann.
§§202B.040, 202B.100
et seq. (Michie 1991) (mental
retardation); §§ 202A.026, 202A.051
et seq. (mental
illness); La. Rev. Stat. Ann. § 28:404 (West 1989) (mental
retardation); § 28:54
et seq. (West 1989 and Supp. 1993)
(mental illness); Me. Rev. Stat. Ann., Tit. 34-B, § 5474
et
seq. (1988) (mental retardation); § 3864 (mental illness); Md.
Health Code Ann. § 7-502
et seq. (1990) (mental
retardation); § 10-613
et seq. (mental illness); Mass. Gen.
Laws ch. 123, § 5
et seq. (1989) (mental illness); Mich.
Compo Laws § 330.1515
et seq. (1981) (mental retardation); §
330.1434
et seq. (mental illness); Mo. Rev. Stat. § 632.300
et seq. (1988) (mental illness); Mont. Code Ann. §
53-20-121
et seq. (1991) (mental retardation); §53-21-121
et seq. (mental illness); Neb. Rev. Stat. §83-1020
et
seq. (1987 and Supp. 1992) (mental illness); Nev. Rev. Stat.
§435.123
et seq. (1991) (mental retardation); § 433A.200
et seq. (mental illness); N. H. Rev. Stat. Ann. §
171-A:10(II) (1990) (mental retardation); §
135-C:34 et seq.
(mental illness); N. J. Stat. Ann. § 30:4-27.10 (West Supp. 1993)
(mental illness); N. M. Stat. Ann. §43-1-13 (1989) (mental
retardation); §43-1-10
328
and many States as well have separate agencies for addressing
their needs.3
Kentucky's burden of proof scheme, then, can be explained by
differences in the ease of diagnosis and the accuracy of the
prediction of future dangerousness and by the nature of the
treatment received after commitment. Each of these rationales,
standing on its own, would suffice to establish a rational basis
for the distinction in question.
B
There is a rational basis also for the other distinction
challenged by respondents: that Kentucky allows close relatives
et seq. (mental illness); N. Y. Mental Hyg. Law § 15.27
et seq. (McKinney 1988) (mental retardation); § 9.27
et
seq. (mental illness); N. D. Cent. Code §25-03.1-07
et
seq. (1989) (mental illness); Ohio Rev. Code Ann. §5123.71
et seq. (1989 and Supp. 1992) (mental retardation); §
5122.11
et seq. (mental illness); Okla. Stat., Tit. 43A, §
5-401 (Supp. 1993) (mental illness); Ore. Rev. Stat. § 427.215
et seq. (1991) (mental retardation); § 426.070
et
seq. (mental illness); Pa. Stat. Ann., Tit. 50, § 4406 (Purdon
1969 and Supp. 1992) (mental retardation); § 7301
et seq.
(mental illness); R. 1. Gen. Laws § 40.1-22-9
et seq. (1990)
(mental retardation); § 40.1-5-8 (mental illness); S. C. Code Ann.
§44-20-450 (Supp. 1992) (mental retardation); §44-17-510
et
seq. (1985) (mental illness); S. D. Codified Laws §27B-7-1
et seq. (1992) (mental retardation); §27A-10-1
et
seq. (mental illness); Tenn. Code Ann. §33-6-103
et seq.
(Supp. 1992) (mental illness); Tex. Health & Safety Code Ann. §
593.041
et seq. (1992) (mental retardation); § 574.001
et
seq. (mental illness); Utah Code Ann. § 62A-5-312 (Supp. 1992)
(mental retardation); § 62A-12-234 (mental illness); Vt. Stat.
Ann., Tit. 18, § 8822
et seq. (1987) (mental
retardation); § 7612
et seq. (mental illness); Va. Code Ann.
§ 37.1
67.1 et seq. (1984 and Supp. 1992) (mental
illness); Wyo. Stat. §25-5-119 (1990 and Supp. 1992) (mental
retardation); §25-10-110 (mental illness).
But see Minn. Stat. § 253B.07
et seq. (1992) (mental
retardation and mental illness); Miss. Code Ann. §41-21-61
et
seq. (Supp. 1992) (mental retardation and mental illness); N.
C. Gen. Stat. §
122C-261 et seq. (1989 and Supp.
1992) (mental retardation and mental illness); Wash. Rev. Code §
71.05.150
et seq. (1992 and Supp. 1993) (mental retardation
and mental illness); W. Va. Code § 27-5-2
et seq. (1992)
(mental retardation and mental illness); Wis. Stat. § 51.20
(1989-1990) (mental retardation and mental illness).
3 See Brief for New Jersey et al. as
Amici Curiae 7,
1a.
329
and guardians to participate as parties in proceedings to commit
the mentally retarded but not the mentally ill. As we have noted,
see
supra, at 321-322, by definition, mental retardation has
its onset during a person's developmental period. Mental
retardation, furthermore, results in "deficits or impairments in
adaptive functioning," that is to say, "the person's effectiveness
in areas such as social skills, communication, and daily living
skills, and how well the person meets the standards of personal
independence and social responsibility expected of his or her age
by his or her cultural group." Manual of Mental Disorders 28-29.
See also Mental Retardation 5-6, 15-16, 38-41. Based on these
facts, Kentucky may have concluded that close relatives and
guardians, both of whom likely have intimate knowledge of a
mentally retarded person's abilities and experiences, have valuable
insights that should be considered during the involuntary
commitment process.
Mental illness, by contrast, may arise or manifest itself with
suddenness only after minority, see
supra, at 322, when the
afflicted person's immediate family members have no knowledge of
the medical condition and have long ceased to provide care and
support. Further, determining the proper course of treatment may be
far less dependent upon observations made in a household setting.
Indeed, we have noted the severe difficulties inherent in
psychiatric diagnosis conducted by experts in the field.
Addington v.
Texas, 441 U. S., at 430. See also
Mentally Disabled 18. In addition, adults previously of sound
mental health who are diagnosed as mentally ill may have a need for
privacy that justifies the State in confining a commitment
proceeding to the smallest group compatible with due process. Based
on these facts, Kentucky may have concluded that participation as
parties by relatives and guardians of the mentally ill would not in
most cases have been of sufficient help to the trier of fact to
justify the additional burden and complications of granting party
status. To be sure, Kentucky could have provided rel-
330
atives and guardians of the mentally retarded some participation
in commitment proceedings by methods short of providing them status
as parties. That, however, is irrelevant in rational-basis review.
We do not require Kentucky to have chosen the least restrictive
means of achieving its legislative end.
San Antonio Independent
School Dist. v.
Rodriguez, 411 U. S. 1, 51 (1973). As
long as Kentucky "rationally advances a reasonable and identifiable
governmental objective, we must disregard" the existence of
alternative methods of furthering the objective "that we, as
individuals, perhaps would have preferred."
Schweiker v.
Wilson, 450 U. S., at 235.
IV
We turn now to respondents' claim that one aspect of the
involuntary commitment procedures violates procedural due process.
We note at the outset that respondents challenge as violative of
due process only those provisions of Kentucky's comprehensive
involuntary commitment procedures that allow participation in the
proceedings by guardians and immediate family members. See Ky. Rev.
Stat. Ann. §§ 202B.140, 202B.160(3), 202B.230 (Michie 1991).
Respondents claim that by allowing the participation of persons
whose interests may be adverse to those of the individual facing
possible involuntary commitment, the statute "skews the balance"
against the retarded individual and therefore imposes a burden on
him. Brief for Respondents 32-36. Both courts below apparently
accepted this argument, almost without explanation. See 965 F. 2d,
at 113; 770
We evaluate the sufficiency of this procedural rule under
Mathews v.
Eldridge, 424 U. S. 319 (1976).
There we held that determining the dictates of due process requires
consideration of three factors:
"First, the private interest that will be affected by the
official action; second, the risk of an erroneous depriva-
331
tion of such interest through the procedures used, and the
probable value, if any, of additional or substitute procedural
safeguards; and finally, the Government's interest, including the
function involved and the fiscal and administrative burdens that
the additional or substitute procedural requirement would entail."
Id., at 335.
We think that application of the
Mathews v.
Eldridge factors compels the conclusion that participation
as parties by close relatives and legal guardians is not a
deprivation of due process. Even if parents, close family members,
or legal guardians can be said in certain instances to have
interests "adverse to [those of] the person facing commitment," 965
F. 2d, at 113, we simply do not understand how their participation
as formal parties in the commitment proceedings increases "the risk
of an erroneous deprivation," 424 U. S., at 335, of respondents'
liberty interest. Rather, for the reasons explained,
supra,
at 329, these parties often will have valuable information that, if
placed before the court, will increase the accuracy of the
commitment decision. Kentucky law, moreover, does not allow
intervention by persons who lack a personal stake in the outcome of
the adjudication. Guardians have a legal obligation to further the
interests of their wards, and parents and other close relatives of
a mentally retarded person, after living with and caring for the
individual for 18 years or more, have an interest in his welfare
that the State may acknowledge. See
Parham v.
J.
R., 442 U. S.
584, 602-603 (1979). For example, parents who for 18 years or
longer have cared for a retarded child can face changed
circumstances resulting from their own advancing age, when the
physical, emotional, and financial costs of caring for the adult
child may become too burdensome for the child's best interests to
be served by care in their home. There is no support whatever in
our cases or our legal tradition for the "statist notion,"
id., at 603, that the State's expertise and concern in these
matters is so superior to that of parents and other close family
members that the State must
332
slam the courthouse door against those interested enough to
intervene. Finally, "the state has a legitimate interest under its
parens patriae powers in providing care to its citizens who
are unable ... to care for themselves," as well as "authority under
its police power to protect the community" from any dangerous
mentally retarded persons.
Addington, 441 U. S., at 426.
To be sure, if the additional parties involved in the
proceedings favor commitment, their participation may increase the
chances that the result of the proceeding will be a decision to
commit. That fact, however, is beside the point. "The Due Process
Clause does not ... require a State to adopt one procedure over
another on the basis that it may produce results more favorable to"
the party challenging the existing procedures.
Medina v.
California, 505 U. S. 437, 451
(1992).
"The function of legal process, as that concept is embodied in
the Constitution, and in the realm of factfinding, is to minimize
the risk of erroneous decisions. Because of the broad spectrum of
concerns to which the term must apply, flexibility is necessary to
gear the process to the particular need; the quantum and quality of
the process due in a particular situation depend upon the need to
serve the purpose of minimizing the risk of error."
Greenholtz v. Inmates of Neb. Penal and Correctional
Complex, 442 U. S.
1, 13 (1979).
See also
Fuentes v.
Shevin, 407 U. S. 67, 97 (1972)
(due process functions to "prevent unfair and mistaken
deprivations"). At least to the extent protected by the Due Process
Clause, the interest of a person subject to governmental action is
in the accurate determination of the matters before the court, not
in a result more favorable to him. So long as the accuracy of the
adjudication is unaffected, therefore, the Due Process Clause does
not prevent a State from allowing the intervention of immediate
family members and legal guard-
333
ians, even if in some instances these parties will have
interests adverse to those of the subject of the proceedings.
Neither respondents nor their
amici have suggested that
accuracy would suffer from the intervention allowed by Kentucky
law, and as noted above we think quite the opposite is true.
Because allowing guardians and immediate family members to
participate as parties in commitment proceedings increases the
accuracy of those proceedings and implements the State's interest
in providing family members a voice in the proceedings, without
undermining those interests of the individual protected by the Due
Process Clause, these Kentucky statutes do not run afoul of due
process. "We deal here with issues of unusual delicacy, in an area
where professional judgments regarding desirable procedures are
constantly and rapidly changing. In such a context, restraint is
appropriate on the part of courts called upon to adjudicate whether
a particular procedural scheme is adequate under the Constitution."
Smith v.
Organization of Foster Families for Equality
&
Reform, 431 U. S. 816, 855-856
(1977).
v
In sum, there are plausible rationales for each of the statutory
distinctions challenged by respondents in this case. It could be
that "[t]he assumptions underlying these rationales [are]
erroneous, but the very fact that they are 'arguable' is
sufficient, on rational-basis review, to 'immunize' the
[legislative] choice from constitutional challenge."
Beach
Communications, 508 U. S., at 320, quoting
Vance v.
Bradley, 440 U. S., at 112.4
4 Under a previous version of Kentucky's laws relating to the
commitment of the mentally retarded, application by the parents or
guardian of a mentally retarded person for placement in a mental
retardation treatment center was treated as a voluntary commitment
to which the procedural requirements of involuntary commitments
were inapplicable. See Ky. Rev. Stat. Ann. § 202B.040 (Michie 1982
and Supp. 1986). In a previous
334
The judgment of the Court of Appeals for the Sixth Circuit
is
Reversed.
JUSTICE O'CONNOR, concurring in the judgment in part and
dissenting in part.
I agree with JUSTICE SOUTER that Kentucky's differential
standard of proof for committing the mentally ill and the mentally
retarded is irrational and therefore join Part II of his opinion. I
conclude, however, that there is a rational basis for permitting
close relatives and guardians to participate as parties in
proceedings to commit the mentally retarded but not the mentally
ill. As the Court points out, there are sufficiently plausible and
legitimate reasons for the legislative determination in this area.
I also agree with the Court that allowing guardians and immediate
family members to participate as parties in commitment proceedings
does not violate procedural due process. Like my colleagues, I
would not reach the question whether heightened equal protection
scrutiny should be applied to the Kentucky scheme.
JUSTICE BLACKMUN, dissenting.
I join JUSTICE SOUTER'S dissenting opinion, for I agree with him
that this statute is not even rational. I write sepa-
decision, the Court of Appeals held that persons committed upon
application of parents or guardians must be considered to have been
admitted involuntarily.
Doe v.
Austin, 848 F.2d
1386, 1391-1392
(CA6 1988). We denied Kentucky's
petition for certiorari from this decision, 488 U. S. 967 (1988),
and Kentucky subsequently amended its statutes to remove this
provision. In its brief, however, Kentucky again attacks this prior
holding of the Court of Appeals. See Brief for Petitioner 20-28.
Even were this issue not mooted by the repeal of the provision at
issue, see,
e. g., Department of Treasury v.
Galioto, 477
U. S. 556, 559-560 (1986);
Kremens v.
Bartley,
431 U. S. 119,
128-129 (1977), it is not "fairly included" within the questions on
which we granted certiorari, this Court's Rule 14.1(a). See Pet.
for Cert. i.
335
rately only to note my continuing adherence to the view that
laws that discriminate against individuals with mental retardation,
Cleburne v.
Cleburne Living Center, Inc., 473 U. S. 432, 455 (1985)
(opinion of Marshall, J., joined by Brennan and BLACKMUN, JJ.), or
infringe upon fundamental rights,
Foucha v.
Louisiana, 504
U. S. 71, 84-86 (1992) (plurality opinion of WHITE, J., joined
by BLACKMUN, STEVENS, and SOUTER, JJ.), are subject to heightened
review.
JUSTICE SOUTER, with whom JUSTICE BLACKMUN and JUSTICE STEVENS
join, and with whom JUSTICE O'CONNOR joins as to Part II,
dissenting.
Because I conclude that Kentucky's provision of different
procedures for the institutionalization of the mentally retarded
and the mentally ill is not supported by any rational
justification, I respectfully dissent.
I
To begin with, the Court declines to address Doe's argument that
we should employ strict or heightened scrutiny in assessing the
disparity of treatment challenged here.1
1 Doe relies, first, on the nature of the right at stake, citing
our decision last Term in
Foucha v.
Louisiana,
504 U. S. 71
(1992). There we were faced with an equal protection challenge to a
Louisiana statute authorizing continued commitment of currently
sane insanity acquittees under standards that were not applied to
criminal convicts who had completed their prison terms or were
about to do so. The insanity acquittee was kept incarcerated in a
mental institution unless he could prove he was not dangerous, see
La. Code Crim. Proc. Ann., Art. 657 (West Supp. 1993), whereas
"Louisiana law," as JUSTICE WHITE wrote, did "not provide for
similar confinement for other classes of persons who have committed
criminal acts and who cannot later prove they would not be
dangerous. Criminals who have completed their prison terms, or are
about to do so, are an obvious and large category of such persons
.... However, state law does not allow for thEe] continuing
confinement [of criminals who may be unable to prove they would not
be dangerous] based merely on dangerousness . . . . Freedom from
physical restraint being a fundamental right, the State must have a
particularly convincing reason, which it has not put forward,
336
While I may disagree with the Court's basis for its conclusion
that this argument is not "properly presented,"
ante, at
319, I too would decline to address the contention that strict or
heightened scrutiny applies. I conclude that the distinctions
wrought by the Kentucky scheme cannot survive even that
rational-basis scrutiny, requiring a rational relationship
for such discrimination against insanity acquittees who are no
longer mentally ill."
Foucha, 504 U. S., at 85-86 (plurality
opinion of WHITE, J., joined by BLACKMUN, STEVENS, and SOUTER,
JJ.); see also
id., at 88 (O'CONNOR, J., concurring in part
and concurring in judgment) ("Although I think it unnecessary to
reach equal protection issues on the facts before us, the
permissibility of holding an acquittee who is not mentally ill
longer than a person convicted of the same crimes could be
imprisoned is open to serious question"). Because of the "'massive
curtailment of liberty' " undoubtedly involved in involuntary civil
commitment and institutionalization, see
Vitek v.
Jones, 445 U.
S. 480, 491 (1980) (quoting
Humphrey v.
Cady,
405 U. S. 504,
509 (1972)), Doe argues that heightened scrutiny applies under
Foucha when those alleged to be mentally retarded are denied
the protection afforded another "obvious and large category" of
potential civil committees, those said to be mentally ill.
Doe also argues that the discrimination here has a second aspect
that justifies application of strict or heightened scrutiny, in its
classification on the basis of mental retardation. Although he
recognizes that this Court held in 1985 that retarded individuals
are not a quasi-suspect class, see
Cleburne v.
Cleburne
Living Center, Inc., 473 U. S. 432, 442-447
(1985), he argues that the subsequently enacted Americans With
Disabilities Act of 1990 (ADA) amounts to an exercise of Congress's
power under § 5 of the Fourteenth Amendment to secure the
guarantees of the Equal Protection Clause to the disabled. See
Katzenbach v.
Morgan, 384 U. S. 641, 651
(1966). The ADA includes findings that people with disabilities
(among whom are included those with mental impairments that Doe
argues include mental retardation, see 42 U. S. C. § 12102(2)(A)
(1988 ed., Supp. III)) "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 in our society .... " §
12101(a)(7). Doe argues that this and other findings, together with
expressions of purpose contained in the ADA, amount to a clear
indication from Congress "that all individuals with disabilities,
including individuals with mental retardation should be treated as
a suspect class." Brief for Respondents 29-30.
337
between the disparity of treatment and some legitimate
governmental purpose, which we have previously applied to a
classification on the basis of mental disability, see
Cleburne v.
Cleburne Living Center, Inc., 473 U. S. 432, 446-447
(1985), and therefore I need not reach the question of whether
scrutiny more searching than
Cleburne's should be applied.2
Cleburne was the most recent instance in which we addressed
a classification on the basis of mental disability, as we did by
enquiring into record support for the State's proffered
justifications, and examining the distinction in treatment in light
of the purposes put forward to support it. See
id., at 450.
While the Court cites
Cleburne once, and does not purport to
overrule it, neither does the Court apply it, and at the end of the
day
Cleburne's status is left uncertain. I would follow
Cleburne here.
II
Obviously there are differences between mental retardation and
mental illness. They are distinct conditions, they have different
manifestations, they require different forms of care or treatment,
and the course of each differs. It is without doubt permissible for
the State to treat those who are mentally retarded differently in
some respects from those who are mentally ill. The question here,
however, is whether some difference between the two conditions
ration-
2 This approach complies with "two of the cardinal rules
governing the federal courts: one, never to anticipate a question
of constitutional law in advance of the necessity of deciding it;
the other never to formulate a rule of constitutional law broader
than is required by the precise facts to which it is to be
applied,"
Brockett v.
Spokane Arcades, Inc., 472 U. S. 491, 501 (1985)
(citations, internal quotation marks, and brackets omitted), and is
consistent with our past practice. See,
e. g., Hooper v.
Bernalillo County Assessor, 472 U. S. 612, 618 (1985)
(declining to decide whether to apply heightened scrutiny where
classification failed rational-basis test); cf.
Mississippi
Univ.for Women v.
Hogan, 458 U. S. 718, 724, n. 9
(1982) (declining to decide whether to apply strict scrutiny where
classification could not survive heightened scrutiny).
338
ally can justify the particular disparate treatment accorded
under this Kentucky statute.
The first distinction wrought by the statute is the imposition
of a lesser standard of proof for involuntary institutionalization
where the alleged basis of a need for confinement is mental
retardation rather than mental illness. As the Court observes, four
specific propositions must be proven before a person may be
involuntarily institutionalized on the basis of mental retardation:
"that: (1) [t]he person is a mentally retarded person; (2) [t]he
person presents a danger or a threat of danger to self, family, or
others; (3) [t]he least restrictive alternative mode of treatment
presently available requires placement in [a state-run
institution]; and (4) [t]reatment that can reasonably benefit the
person is available in [a state-run institution]." Ky. Rev. Stat.
Ann. § 202B.040 (Michie 1991). At issue in this case is only the
application of this provision to adults who have not been shown to
be mentally retarded, but who are simply alleged to be. The subject
of such a proceeding retains as full an interest in liberty as
anyone else. The State of Kentucky has deemed this liberty interest
so precious that, before one may be institutionalized on the basis
of mental illness, the statutory prerequisites must be shown
"beyond a reasonable doubt." § 202A.076(2).3 However, when the
allegation against the individual is one of mental retardation, he
is deprived of the protection of that high burden of proof. The
first question here, then, is whether, in light of the State's
decision to provide that high burden of proof in involuntary
commitment
3 As the Court notes, the statutory prerequisites are
substantially identical for commitment on the basis of illness and
retardation. Commitment on the ground of mental illness requires
proof beyond a reasonable doubt that an individual "is a mentally
ill person: (1) [w]ho presents a danger or threat of danger to
self, family or others as a result of the mental illness; (2) [w]ho
can reasonably benefit from treatment; and (3) [f]or whom
hospitalization is the least restrictive alternative mode of
treatment presently available." Ky. Rev. Stat. Ann. § 202A.026
(Michie 1991).
339
proceedings where illness is alleged, there is something about
mental retardation that can rationally justify provision of less
protection.
In upholding this disparate treatment, the Court relies first on
the State's assertion that mental retardation is easier to diagnose
than mental illness. It concludes that the discrimination in
burdens of proof is rational because the lessened "'risk of error'"
resulting from the higher burden of proof, see
ante, at 322
(quoting
Addington v.
Texas, 441 U. S. 418,423
(1979)), can be understood to offset a greater "ris[k] of an
erroneous determination that the subject of a commitment proceeding
has the condition in question" when the allegation is one of mental
illness rather than mental retardation,
ante, at 322. The
Court reaches essentially the same conclusion with respect to the
second prerequisite, that the individual present a danger or threat
of danger to himself or others. See
ante, at 324 (a
determination of dangerousness may be made with "more accura[cy]"
with respect to the mentally retarded than the mentally ill).
In concluding, however, that the demands of minimal rationality
are satisfied if burdens of proof rise simply with difficulties of
proof, the Court misunderstands the principal object in setting
burdens. It is no coincidence that difficult issues in civil cases
are not subject to proof beyond a reasonable doubt and that even
the most garden variety elements in criminal cases are not to be
satisfied by a preponderance of evidence. The reason for this is
that burdens of proof are assigned and risks of error are allocated
not to reflect the mere difficulty of avoiding error, but the
importance of avoiding it as judged after a thorough consideration
of those respective interests of the parties that will be affected
by the allocation. See
Addington, 441 U. S., at 425.
In a civil commitment proceeding, on the State's side of the
balance, are the interests of protecting society from those posing
dangers and protecting the ill or helpless individual from his own
incapacities.
Id., at 426. On the other
340
side, it is clear that "[i]n cases involving individual rights,
whether criminal or civil, '[t]he standard of proof [at a minimum]
reflects the value society places on individual liberty,' "
id., at 425 (brackets in original and citation omitted),
which encompasses both freedom from restraint and freedom from the
stigma that restraint and its justifications impose on an
institutionalized person,
id., at 425-426.
The question whether a lower burden of proof is rationally
justified, then, turns not only on whether ease of diagnosis and
proof of dangerousness differ as between cases of illness and
retardation, but also on whether there are differences in the
respective interests of the public and the subjects of the
commitment proceedings, such that the two groups subject to
commitment can rationally be treated differently by imposing a
lower standard of proof for commitment of the retarded.4 The answer
is clearly that they cannot. While difficulty of proof, and of
interpretation of evidence, could legitimately counsel against
setting the standard so high that the State may be unable to
satisfy it (thereby effectively thwarting efforts to satisfy
legitimate interests in protection, care, and treatment), see
id., at 429, that would at most justify a lower standard in
the allegedly more difficult cases of illness, not in the easier
cases of retardation. We do not lower burdens of proof merely
because it is easy to prove the proposition at issue, nor do we
raise them merely because it is difficult.5 Nor do any other
reasonably conceivable facts
4 In addition to the two prerequisites mentioned in the text,
the State must also prove that commitment would be beneficial and
the least restrictive alternative method of treatment. The Court
does not contend that there is any rational justification for
imposition of a lowered burden of proof with respect to these
prerequisites for institutionalization in those cases where the
allegation is one of retardation and not illness. See
ante,
at 324.
5 And indeed, to the extent
Addington v.
Texas,
441 U. S. 418
(1979), does discuss the difficulty of diagnosing mental illness,
see
id., at 429-430, it supports use only of a
lesser
standard of proof because of the practical problems created by a
supposed "serious question as to whether a state
341
cut in favor of the distinction in treatment drawn by the
Kentucky statute. Both the ill and the retarded may be dangerous,
each may require care, and the State's interest is seemingly of
equal strength in each category of cases. No one has or would argue
that the value of liberty varies somehow depending on whether one
is alleged to be ill or retarded, and a mentally retarded person
has as much to lose by civil commitment to an institution as a
mentally ill counterpart, including loss of liberty to "choos[e]
his own friends and companions, selec[t] daily activities, decid[e]
what to eat, and retai[n] a level of personal privacy," among other
things. Brief for American Association on Mental Retardation (AAMR)
et al. as
Amici Curiae 12 (AAMR Br.). We do not presume that
a curtailment of the liberty of those who are disabled is, because
of their disability, less severe than the same loss to those who
are ill. Even if the individuals subject to involuntary commitment
proceedings previously had been shown to be mentally retarded, they
would thus still retain their "strong," legally cognizable interest
in their liberty. Cf.
Foucha, 504 U. S., at 88 (O'CONNOR,
J., concurring in part and concurring in judgment). Even assuming,
then, that the assertion of different degrees of difficulty of
proof both of mental illness and mental retardation and of the
dangerousness inherent in each condition is true (an assertion for
which there is no support in the record), it lends not a shred of
rational support to the decision to discriminate against the
retarded in allocating the risk of erroneous curtailment of
liberty.
The Court also rests its conclusion on the view that "it would
have been plausible for the Kentucky Legislature to believe that
most mentally retarded individuals who are
could ever prove beyond a reasonable doubt that an individual is
both mentally ill and likely to be dangerous,"
id., at 429.
Of course, in this case Kentucky has determined that the liberty of
those alleged to be mentally ill is sufficiently precious that the
State should assume the risk inherent in use of that higher
standard.
342
committed receive treatment that is ... less invasive tha[n]
that to which the mentally ill are subjected."
Ante, at 326.
Nothing cited by the Court, however, demonstrates that such a
belief would have been plausible for the Kentucky Legislature, nor
does the Court's discussion render it plausible now. Cf.
United
States Railroad Retirement Bd. v.
Fritz, 449 U. S. 166, 179 (1980)
(under rational-basis scrutiny disparate treatment must be
justified by "plausible reasons"). One example of the invasiveness
to which the Court refers is the use of (and the results of the
administration of) psychotropic drugs. I take no exception to the
proposition that they are extensively used in treating mental
illness. See
ante, at 325 (citing authorities for the
proposition that drugs are used in treating mental illness). Nor do
I except to the proposition that the appropriate and perhaps
characteristic response to mental retardation, but not to mental
illness, is that kind of training in the necessities of
self-sufficiency known as "habilitation." See
ibid. (citing
authorities describing such training).
Neither of these propositions tells us, however, that the same
invasive mind-altering medication prescribed for mental illness is
not also used in responding to mental retardation. And in fact, any
apparent plausibility in the Court's suggestion that "the mentally
retarded in general are not subjected to th[is] medical
treatmen[t],"
ibid., dissipates the moment we examine
readily available material on the subject, including studies of
institutional practices affecting the retarded comparable to those
studies concerning the treatment of mental illness cited by the
Court. One recent examination of institutions for the mentally
retarded in Kentucky's neighboring State of Missouri, for example,
found that 76% of the institutionalized retarded receive some type
of psychoactive drug and that fully 54% receive psychotropic drugs.
See Intagliata & Rinck, Psychoactive Drug Use in Public and
Community Residential Facilities for Mentally Retarded Persons, 21
Psychopharmacology Bull. 268, 272-
343
273 (1985). Another study, this one national in scope, found
that 38% of the residents of institutions for the mentally retarded
receive psychotropic drugs. See Hill, Balow, & Bruininks, A
National Study of Prescribed Drugs in Institutions and Community
Residential Facilities for Mentally Retarded People, 21
Psychopharmacology Bull. 279, 283 (1985). "Surveys conducted within
institutions [for the mentally retarded] have generally shown
prevalences in the range of 30% to 50% of residents receiving
psychotropic drugs at any given time." Aman & Singh,
Pharmacological Intervention, in Handbook of Mental Retardation
347, 348 (J. Matson & J. Mulick eds., 2d ed. 1991) (hereinafter
Handbook of Mental Retardation).
Psychotropic drugs, according to the available material, are not
only used to treat the institutionalized retarded, but are often
misused. Indeed, the findings of fact by a United States District
Court in North Carolina, another State nearby Kentucky, show that
in three hospitals, 73% of persons committed as mentally retarded
were receiving antipsychotic drugs. Less than half of these
individuals had been diagnosed as mentally ill as well as mentally
retarded following their commitment on the latter ground. See
Thomas S. v.
Flaherty, 699 F. Supp. 1178, 1187 (WDNC
1988), aff'd,
902 F.2d
250 (CA4), cert. denied, 498 U. S. 951-952 (1990). The District
Court found that the institutionalized retarded plaintiffs "have
been seriously endangered and injured by the inappropriate use of
antipsychotic drugs."
Flaherty, supra, at 1186. See also
Halderman v.
Pennhurst State School Hospital, 446 F.
Supp. 1295, 1307-1308 (ED Pa. 1977) (discussing evidence that 51%
of the residents of a state institution for the mentally retarded
received psychotropic drugs though less than one-third of those who
received the drugs were monitored to determine the effectiveness of
the treatment), aff'd,
612 F.2d
84 (CA3 1979), rev'd on other grounds,
451 U. S. 1 (1981); Bates,
Smeltzer, & Arnoczky, Appropriate and Inappropriate Use of
Psychotherapeutic
344
Medications for Institutionalized Mentally Retarded Persons, 90
Am. J. Mental Deficiency 363 (1986) (finding that between 39% and
54% of medications prescribed to mentally retarded persons are
inappropriate for the conditions diagnosed).
These facts are consistent with a law review study of drugs
employed in treating retardation, which observed that the reduction
in the need for institutional staff resulting from the use of
sedating drugs has promoted drug use in responding to retardation
despite "frightening adverse effects [including the suppression of]
learning and intellectual development." Plotkin & Gill,
Invisible Manacles: Drugging Mentally Retarded People, 31 Stan. L.
Rev. 637, 638 (1979). There being nothing in the record to suggest
that Kentucky's institutions are free from these practices, and no
reason whatever to assume so, there simply is no plausible basis
for the Court's assumption that the institutional response to
mental retardation is in the main less intrusive in this way than
treatment of mental illness.
The Court also suggests that medical treatment for the mentally
retarded is less invasive than in the case of the mentally ill
because the mentally ill are subjected to psychiatric treatment
that may involve intrusive enquiries into the patient's innermost
thoughts. See
ante, at 324-325. Again, I do not disagree
that the mentally ill are often subject to intrusive psychiatric
therapy. But the mentally retarded too are subject to intrusive
therapy, as the available material on the medical treatment of the
mentally retarded demonstrates. The mentally retarded are often
subjected to behavior modification therapy to correct, among other
things, anxiety disorders, phobias, hyperactivity, and antisocial
behavior, therapy that may include aversive conditioning as well as
forced exposure to objects that trigger severe anxiety reactions.
See McN ally, Anxiety and Phobias, in Handbook of Mental
Retardation 413-423; Mulick, Hammer, & Dura, Assessment and
Management of Antisocial and Hyperactive Behavior, in
345
Handbook of Mental Retardation 397-412; Gardner, Use of Behavior
Therapy with the Mentally Retarded, in Psychiatric Approaches to
Mental Retardation 250-275 (F. Menolascino ed. 1970). Like drug
therapy, psychiatric therapy for the mentally retarded can be, and
has been, misused. In one recent case, a Federal District Court
found that "aversive procedures [including seclusion and physical
restraints were] being inappropriately used with no evidence for
their effectiveness and no relationship between the choice of the
procedure and the analysis of the cause of the problem[,] ...
plac[ing] clients at extreme risk for maltreatment."
Lelsz
v.
Kavanagh, 673 F. Supp. 828, 850 (ND Tex.) (internal
quotation marks and citation omitted), rev'd on unrelated grounds,
824 F.2d
372 (CA5 1987). Invasive behavior therapy for the mentally
retarded, finally, is often employed together with drug therapy.
See McNally,
supra, at 413-423; Mulick, Hammer, & Dura,
supra, at 397-412.
The same sorts of published authorities on which the Court
relies, in sum, refute the contention that "[t]he prevailing
methods of treatment for the mentally retarded, as a general rule,
are much less invasive than are those given the mentally ill."
Ante, at 324.6 The available literature indicates that
psychotropic drugs and invasive therapy are routinely administered
to the retarded as well as the mentally
6 I also see little point in the Court's excursion into the
historical difference in treatment between so-called "idiots," and
so-called "lunatics." See
ante, at 326. Surely the Court
does not intend to suggest that the irrational and scientifically
unsupported beliefs of pre-19th-century England can support any
distinction in treatment between the mentally ill and the mentally
retarded today. At that time, "lunatics" were "[s]een as
demonically possessed or the products of parental sin [and] were
often punished or left to perish." See S. Herr, Rights and Advocacy
for Retarded People 9 (1983). The primary purpose of an
adjudication of "idiocy" appears to have been to "depriv[e] [an
individual] of [his] property and its profits."
Id., at 10.
Those without wealth "were dealt with like other destitute or
vagrant persons through workhouses and houses of correction."
Id., at 11.
346
ill, and there are no apparent differences of therapeutic
regimes that would plausibly explain less rigorous commitment
standards for those alleged to be mentally retarded than for those
alleged to be mentally ill.7
III
With respect to the involvement of family members and guardians
in the commitment proceeding, the Court holds it to be justified by
the fact that mental retardation "has its onset during a person's
developmental period," while mental illness "may arise or manifest
itself with suddenness only after minority."
Ante, at 329.
The Court suggests that a mentally ill person's parents may have
"ceased to provide care and support" for him well before the onset
of illness, whereas parents are more likely to have retained
connection with a retarded son or daughter, whose "proper course of
treatment" may depend on matters related to "observations made in a
household setting."
Ibid.
These suggested distinctions, if true, would apparently not
apply to guardians, whose legal obligations to protect the persons
and estates of their wards would seem to require as much connection
to the one class of people as to the other.
7 Petitioner also argues that mental retardation is different
from most cases of mental illness in being a permanent condition
that may require a lifetime of care. See Brief for Petitioner 31.
But petitioner completely fails to explain how the permanence of
the condition or the likely need of lifetime care can rationally
justify a regime in which those alleged to require
institutionalization based on mental retardation face a greater
risk of erroneous curtailment of liberty than those who are alleged
to require it based on mental illness. The distinction proffered by
the State (accepting it to be factually accurate and not based
merely on stereotype) cuts quite the other way. The possibility
that a condition once thought to justify commitment will last a
lifetime suggests that a person committed to an institution on the
basis of mental retardation is less likely to regain his liberty
than one institutionalized on some other basis. If this could
rationally justify any disparity in commitment standards, it could
only be in requiring stricter protection in mental retardation
cases than in those based on mental illness, not the other way
around.
347
In any event, although these differences might justify a scheme
in which immediate relatives and guardians were automatically
called as witnesses in cases seeking institutionalization on the
basis of mental retardation,S they are completely unrelated to
those aspects of the statute to which Doe objects: permitting these
immediate relatives and guardians to be involved "as parties" so as
to give them, among other things, the right to appeal as "adverse"
a decision not to institutionalize the individual who is subject to
the proceedings. Where the third party supports commitment, someone
who is alleged to be retarded is faced not only with a second
advocate for institutionalization, but with a second prosecutor
with the capacity to call and crossexamine witnesses, to obtain
expert testimony and to raise an appeal that might not otherwise be
taken, whereas a person said to require commitment on the basis of
mental illness is not. This is no mere theoretical difference, and
my suggestion that relatives or guardians may support curtailment
of liberty finds support in the record in this case. It indicates
that of the 431 commitments to Kentucky's state-run institutions
for the mentally retarded during a period between 1982 and the
middle of 1985, all but one were achieved through the application
or consent of family members or guardians. See Record, State's
Answers to Plaintiff's First Set of Interrogatories 2, 17.
The Court simply points to no characteristic of mental
retardation that could rationally justify imposing this burden of a
second prosecutor on those alleged to be mentally retarded where
the State has decided not to impose it upon those alleged to be
mentally ill. Even if we assumed a generally more regular
connection between the relatives and guardians of those alleged to
be retarded than those said to
8 Of course both guardians and relatives can already act as
witnesses in each kind of proceeding subject only to the
limitations of relevance and interest.
348
be mentally ill, it would not explain why the former should be
subject to a second prosecutor when the latter are not.
The same may be said about the Court's second suggested
justification, that the mentally ill may have a need for privacy
not shown by the retarded. Even assuming the ill need some
additional privacy, and that participation of others in the
commitment proceeding should therefore be limited "to the smallest
group compatible with due process,"
ante, at 329, why should
the retarded be subject to a second prosecutor? The Court provides
no answer. 9
Without plausible justification, Kentucky is being allowed to
draw a distinction that is difficult to see as resting on anything
other than the stereotypical assumption that the retarded are
"perpetual children," an assumption that has historically been
taken to justify the disrespect and "grotesque mistreatment" to
which the retarded have been subjected. See
Cleburne, 473 U.
S., at 454 (STEVENS, J., concurring) (internal quotation marks and
citation omitted). As we said in
Cleburne, the mentally
retarded are not "all cut from the same pattern: ... they range
from those whose disability is not immediately evident to those who
must be constantly cared for."
Id., at 442. In recent times,
at least when imposing the responsibilities of citizenship, our
jurisprudence has seemed to reject the analogy between mentally
retarded adults and nondisabled children. See,
e. g.,
Penry v.
Lynaugh, 492 U. S. 302, 338 (1989)
(controlling opinion of O'CONNOR, J.) (not "all mentally retarded
people ... by virtue of their mental retardation alone, and apart
from any individualized consideration of their personal
responsibility-inevitably lack the cognitive, volitional, and moral
capacity to act with the degree of culpability associated with the
death penalty"); see also
id., at 340 ("reliance on
mental
9 I also note that the 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
proceeding than an adult who is mentally retarded.
349
age to measure the capabilities of a retarded person for
purposes of the Eighth Amendment could have a disempowering effect
if applied in other areas of the law"). But cf.
ante, at 331
(citing
Parham v.
J. R., 442 U. S. 584 (1979), a
case about parents' rights over their minor children). When the
State of Kentucky sets up its respective schemes for
institutionalization on the basis of mental illness and mental
retardation, it too is obliged to reject that analogy, and to rest
any difference in standards for involuntary commitment as between
the ill and the retarded on some plausible reason.
IV
In the absence of any rational justification for the disparate
treatment here either with respect to the burdens of proof or the
participation of third parties in institutionalization proceedings,
I would affirm the judgment of the Court of Appeals. Because of my
conclusion, that the statute violates equal protection, I do not
reach the question of its validity under the Due Process
Clause.
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