Protecting the Rights of People With Mental Illness Ch 2

II. SECTION 12 AND THE FAILURE OF THE MASSACHUSETTS GOVERNMENT The indefinite deprivation of liberty prescribed by section 12 poses a unique challenge for due process. First and foremost, section 12 is facially unconstitutional because it permits significant, temporally unlimited deprivations of liberty without any meaningful process.115 Additionally, by allowing for indefinite detainments, the state subjects individuals to a “massive curtailment of liberty,” similar to that of an emergency commitment.116 However, unlike in an emergency commitment, section 12 does not consider the countervailing interests of the patient that are inalienable from involuntary treatment cases. Indefinite detainment periods should not be permitted, and certainly not with less process than what is required for an emergency commitment.117 As previously discussed, to comply with due process, the time period of emergency commitments must be strictly limited or otherwise preceded by procedural safeguards.118 Section 12 disregards both of these mandates by permitting indefinite detainment without any process.119 Precedent dictates that unlimited detainment under section 12 is plainly unconstitutional.120 The question that we must now ask ourselves is why such a bald-faced violation of constitutional due process has gone unaddressed for nearly four decades.121 Why have legislators, judges, and state officials, all of whom have 115 See U.S. CONST. amend. XIV, § 1; MASS. GEN. LAWS ch. 123, § 12(a)–(b); McNeil, 407 U.S. at 249–50 (finding that due process may only be ignored for strictly limited time periods in emergency situations where detainment is an immediate necessity); C.R., 142 N.E.3d at 559–60 (finding that that section 12(a) does not have a temporal limit). 116 Vitek v. Jones, 445 U.S. 480, 491, 495 (1980) (quoting Humphrey v. Cady, 405 U.S. 504, 509 (1972)) (finding that state has interest in segregating and treating mentally ill patients); see Lessard v. Schmidt, 349 F. Supp. 1078, 1091 (E.D. Wis. 1972), vacated, 414 U.S. 473 (1974); McNeil, 407 U.S. at 249. 117 See McNeil, 407 U.S. at 249–50. 118 See discussion supra Part I(B). 119 See ch. 123, § 12(a)–(b); C.R., 142 N.E.3d at 547. 120 O’Connor v. Donaldson, 422 U.S. 563, 575 (1975); see U.S. CONST. amend. XIV, § 1; ch. 123, § 12(a)–(b); Zinermon v. Burch, 494 U.S. 113, 131 (1990); Vitek, 445 U.S. at 491– 92; McNeil, 407 U.S. at 249; Lessard, 349 F. Supp. at 1091. 121 Although the earliest versions of section 12 allowed for a ten-day emergency commitment that was later shortened to three days, and a ten-day post-evaluation hold that was later shortened to three days as well, the absence of a detainment limit has been a feature of the law since its inception. See 2010 Mass. Legis. Serv. 278 (West); 1988 Mass. Legis. Serv. 1 (West); McNeil, 407 U.S. at 249–50 (concluding that emergency holds that do not provide process must be strictly limited in duration). time limits . . . .”131 Given that C.R.’s detainment lasted just over five days, it seems that Justice Kafker may be indicating that the statute intended to apply a three-day time limit but failed to do so.132 A common sense reading of the statute favors an interpretation that the words “3-day period” apply to section 12(a), not section 12(b), because only 12(a) mentions a time period.133 This is evidenced by the fact that many legal scholars and advocates continue to misread section 12 as imposing a three-day limit to detainments.134 It would be reasonable, then, to speculate that the Massachusetts legislature intended to enforce a finite limit on detainments but misworded the final statute. Secondly, the legislature may have simply failed to abide by the constitutional requirement to limit detainments when no process is given. 135 Mental health laws cannot allow for indefinite detainment of a person that the law has not yet deemed mentally ill and dangerous.136 “Or, to put it more colorfully, purgatory cannot be worse than hell.”137 However, let us assume that the legislature shares in the court’s rationale from C.R.—that detainment is permissible if it is limited to the period necessary “to find an appropriate facility to evaluate the patient.”138 It is clear from the rest of the state’s mental health laws that the Massachusetts legislature intended to delegate a great deal of emergency decision making power to medical professionals.139 Perhaps then, the only limit the legislature thought necessary to impose was a malleable one. However, the Constitution prevents law makers from impinging upon certain entitlements, and the right to physical liberty is, without question, one of them.140 If the legislature knowingly authorized Massachusetts’ hospitals to detain hundreds of patients, without any process of law, for undefined periods of time, and for no other reason than 131 Mass. Gen. Hosp. v. C.R., 142 N.E.3d 545, 558, 560 (Mass. 2020). Id. at 558–60. 133 See ch. 123, § 2(a)–(b). 134 See Hedman et al., supra note 57, at 530, tbl.1 (listing detainment duration in Massachusetts as seventy-two hours); Emergency Hospitalization for Evaluation Assisted Psychiatric Treatment Standards by State, TREATMENT ADVOC. CTR. (June 2011), https://www.treatmentadvocacycenter.org/storage/documents/Emergency_Hospitalization_f or_Evaluation.pdf (citing to portion of section 12(a) that limits detainments in Massachusetts to three days). 135 See McNeil v. Dir., Patuxent Inst., 407 U.S. 245, 249–50 (1972). 136 O’Connor v. Donaldson, 422 U.S. 563, 575 (1975). 137 Jones v. Blanas, 393 F.3d 918, 933 (9th Cir. 2004). 138 Mass. Gen. Hosp. v. C.R., 142 N.E.3d 545, 559 (Mass. 2020). 139 See, e.g., MASS. GEN. LAWS ch. 123, § 7(a) (allowing facility superintendent to petition for patient’s commitment if superintendent “determines that the failure to hospitalize would create a likelihood of serious harm by reason of mental illness”); ch. 123, §§ 10–11 (allowing superintendent to file for involuntary commitment of any voluntary patient that gives notice of their intent to leave facility); ch. 123, § 21 (permitting superintendent to authorize one hour of non-chemical restraints when deemed necessary). 140 See U.S. CONST. amend. XIV, § 1; O’Connor, 422 U.S. at 575; Vitek v. Jones, 445 U.S. 480, 495–96 (1980). 132 administrative issues, there can be little doubt they did so in violation of the Constitution.141 Finally, and perhaps most pessimistically, it is possible that the legislature has simply failed to consider or care about the liberty of people with mental disabilities. Such a disregard for the liberty interest of people with mental health issues would hardly be a departure from national or state history. 142 It would not come as a shock if section 12, rather than owing its ambiguity to miscalculation and error, was borne of the wholesale indifference with which society regards the freedom of people many consider to be a burden.143 Many advocates of longer detainment and commitment periods believe that confinement and segregation are necessary to contain the threat that the violently mentally ill pose to society.144 Instead of fortifying community treatment and intervention, there are undoubtedly lawmakers that approach mental health legislation with the perspective that the socially optimal solution is a carceral one.145 However, if imprisoning individuals for their disability is truly the route the legislature intended to go—setting aside for a moment the abhorrence of such a position—then an application of anything short of criminal due process to detainments and imprisonments would likely be unconstitutional.146 141 See McNeil v. Dir., Patuxent Inst., 407 U.S. 245, 249 (1972). In 2016, the Boston Globe’s Spotlight team ran a series of articles called The Desperate and the Dead that chronicled the myriad ways in which the Massachusetts government has failed to implement a system that effectively treats mental illness. See BOS. GLOBE, The Desperate and the Dead, https://apps.bostonglobe.com/spotlight/the-desperate-and-the-dead/ (last visited Nov. 12, 2021). The stories include reports on police violence toward people with mental disabilities, cuts to mental health programs, and inaccessibility of community care. 143 See Mental Illness and Violence, 27 HARV. HEALTH PUBL’G 1 (Jan. 2011), http://www.biblioteca.cij.gob.mx/Archivos/Materiales_de_consulta/Drogas_de_Abuso/Artic ulos/55984270.pdf (“A 2006 national survey found, for example, that 60% of Americans thought that people with schizophrenia were likely to act violently toward someone else, while 32% thought that people with major depression were likely to do so.”). 144 See ARK. CODE ANN. § 20-46-601 (2019) (“Persons who suffer from mental illness and who abuse various chemical substances contribute disproportionately to the problem of violence in our society . . . .”). 145 Massachusetts is one of the few states that houses civilly committed patients in a facility run by the state Department of Corrections, in which a civil patient may be housed next to patients convicted of violent crimes. See Bridgewater State Hospital, MASS.GOV, https://www.mass.gov/locations/bridgewater-state-hospital (last visited Nov. 12, 2021). Furthermore, 90% of inmates with mental illness get little or no help from Department of Mental Health as they try to find treatment upon release and are more likely to return to prison as a result. See Jenna Russell & Maria Cramer, The Desperate and the Dead: Prisons, BOS. GLOBE (Nov. 25, 2016), https://apps.bostonglobe.com/spotlight/the-desperate-and-the-dead /series/prisons/?p1=Spotlight_MI_Overview_Read. 146 If the focus of commitment was segregation and punishment rather than treatment, then it would be indistinguishable from incarceration, and would therefore require more stringent safeguards. See Lessard v. Schmidt, 349 F. Supp. 1078, 1086 (E.D. Wis. 1972), vacated, 414 U.S. 473 (1974). 142 Regardless of what spurred the creation of section 12, the reasons behind its persistence are multitudinous, complex, and rooted in the inconvenient truth that adding a duration limit now would have messy outcomes. Given that the already over-burdened mental health system in Massachusetts has acclimated to openended detainment periods, the imposition of tighter deadlines for emergency room detainments would almost certainly exacerbate their already encumbered workload.147 Furthermore, the primary reason why so many detainments are prolonged, as a practical matter, results from a shortage of mental health beds; a shortage that has worsened as “Massachusetts has reduced state-funded inpatient psychiatric beds by more than ninety-seven percent” since 1953.148 Although we may speculate over the original intent of section 12, we can be sure that the present-day Massachusetts legislature has made a deliberate choice regarding detainments. The legislature has been made repeatedly aware of the seriousness of the problem.149 After recognizing the existence of this budding constitutional issue and weighing the policy considerations for and against fixing it, the liberty interest of individuals with mental disabilities ultimately lost, and the legislature chose inaction.150 The highest court in Massachusetts has urged the legislature to address the detainment problem.151 The executive has illustrated in detail how serious the problem presently is.152 Section 12’s detainment procedures were an egregious violation of due process requirements when they were written into existence thirty-four years ago, and “the Legislature has not yet chosen to include a specific deadline despite its recognition of the issue.”153 B. The Failure of the Massachusetts Judiciary The American court system exists to uphold the law, and the Constitution is the highest law of the land.154 Although it is not in the job description of a judge 147 See Scott Helman, The Desperate and the Dead: Community Care, BOS. GLOBE (Nov. 25, 2016), https://apps.bostonglobe.com/spotlight/the-desperate-and-the-dead/series /community-care/?p1=Spotlight_MI_Overview_Read. 148 See id. 149 See supra note 53. 150 See id. 151 See id. (“We do, however, encourage the Legislature to include a time deadline for the § 12 (a) evaluation process as expeditiously as possible to clarify the statute and ensure the protections of the important liberty interests at stake.”). 152 See EPIA PRESENTATION, supra note 12, at 1, 4, 6. 153 Mass. Gen. Hosp. v. C.R., 142 N.E.3d 545, 560 (Mass. 2020); see MASS. GEN. LAWS ch. 123, § 12(a)–(b). 154 See U.S. CONST. art. VI, cl. 2 (“This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.”). to enact or amend legislation, it is squarely within their duty to strike down unconstitutional conduct on challenge.155 As discussed above, the legislature has demonstrated a resolve for inaction.156 Here, the judiciary’s failure was less glaring, and more avoidant in nature. As the Supreme Judicial Court severally stated in C.R., it avoided the constitutional question in this case out of an abundance of caution to prevent deciding the issue “prematurely.”157 Some may argue that the decision in C.R. was not a failure at all, and merely an exercise of the court’s duty to “avoid[] unnecessary decisions of serious constitutional issues.”158 However, this Note posits that the judicial avoidance—or partial avoidance—of the detainment question in this case was an unjust refusal to engage meaningfully with the unconstitutional conduct of MGH authorized by section 12.159 Although the C.R. court acknowledged a potential constitutional issue with section 12, it deflected the question of the facial constitutionality of the detainment law to the legislature despite the necessity of addressing the lack of due process provided to C.R.160 After all, the court’s duty is an imperative “to interpret statutes in a manner that avoids unnecessary decision of a serious constitutional question.”161 Here, the statute was interpreted as one that permitted for C.R.’s unlimited detainment, thus squarely facing the question of whether such conduct is constitutional.162 “In this context, we decide only the constitutional questions necessary to resolve this case and to provide required guidance to the governmental and nongovernmental actors involved in resolving the ED boarding crisis.”163 The appropriate exercise of judicial restraint is, historically, quite common in Massachusetts jurisprudence, but there are circumstances in which a constitutional ruling is unavoidable.164 Here, avoidance would only be 155 See Marbury v. Madison, 5 U.S. 137, 177 (1803) (“It is emphatically the province and duty of the judicial department to say what the law is. Those who apply the rule to particular cases, must of necessity expound and interpret that rule. If two laws conflict with each other, the courts must decide on the operation of each.”); Matal v. Tam, 137 S. Ct. 1744, 1755 (2017) (quoting Spector Motor Serv., Inc. v. McLaughlin, 323 U.S. 101, 105 (1944)) (“[W]e ought not to pass on questions of constitutionality . . . unless such adjudication is unavoidable.”). 156 See discussion infra Part II.A. 157 See C.R., 142 N.E.3d at 559. 158 Beeler v. Downey, 442 N.E.2d 19, 21 n.4 (Mass. 1982). 159 See Marbury, 5 U.S. at 178 (“If then the courts are to regard the constitution; and the constitution is superior to any ordinary act of the legislature; the constitution, and not such ordinary act, must govern the case to which they both apply.”); C.R., 142 N.E.3d at 560; Matal, 137 S. Ct. at 1755. 160 See C.R., 142 N.E.3d at 560. 161 Beeler, 442 N.E.2d at 21. 162 See C.R., 142 N.E.3d at 558. 163 Id. 164 See Thomas A. Barnico, The Public Law Decisions of Chief Justice Herbert P. Wilkins, 84 MASS. L. REV. 109, 109 (1999) (finding that Chief Justice Herbert Wilkins of the Supreme Judicial Court, “generally gave greater deference to the products of direct democratic action— repeatedly acknowledged that there is a problem, chosen not to remedy a clear mistake?122 A. The Failure of the Massachusetts Legislature Every state legislature in the country has implemented a time limit to emergency detainments of individuals in crisis, except for Massachusetts. 123 Although some states limit detainments to less than a single day while others allow over a week, patients in every state but Massachusetts, at the very least, can see an end in sight.124 Many states that permit longer periods of preplacement detainment provide for probable cause hearings after the first few days the patient spends in the emergency room.125 Why then, has Massachusetts chosen a course of unlimited detainment periods? Given that the Massachusetts legislature explicitly established procedures that are required for emergency commitment orders,126 it makes little sense that its detainment law—a tool that must be limited in its use127—should permit for a longer period of detention with markedly less process.128 If anything, the decision to allow for unlimited detainment seems to contradict the legislature’s general policy goal for its amendments to section 12, aimed at protecting “the individual’s due process rights by minimizing the length of time for which he or she could be involuntarily committed prior to judicial review.”129 This Note suggests three conceivable explanations for why the state legislature wrote such a law. First, it is possible that the legislature initially intended to impose a three-day limit to detainments but has failed to remedy its mistake after realizing that the law had been applied improperly. Section 12(a) states that physicians “may restrain or authorize the restraint . . . and apply for the hospitalization of [a mentally ill and dangerous patient] for a 3-day period . . . .”130 Although C.R. made clear that the three-day period addressed in section 12 does not apply to pre-evaluation detainment under 12(a), the court suggested that C.R.’s detainment “extended beyond the Legislature’s original expectations” and that the Mental Health chapter generally “provides for tight 122 See C.R., 142 N.E.3d at 556–60 (identifying efforts of executive and legislative branches to remedy what they recognize to be an “ED boarding crisis” and imploring legislature to enact a time limit “expeditiously”); EPIA PRESENTATION, supra note 12, at 1. 123 See infra Table 1. 124 See id. 125 See id.; ALA. CODE § 22-52-8(a) (2020) (guaranteeing probable cause hearing to determine necessity of continued detainment); IDAHO CODE § 66-329(4) (2020) (guaranteeing probable cause ex parte hearing to determine propriety of detainment). 126 See MASS. GEN. LAWS ch. 123, § 12(e). 127 See McNeil v. Dir., Patuxent Inst., 407 U.S. 245, 249–50 (1972). 128 See ch. 123, § 12(a)–(b). 129 Matter of N.L., 71 N.E.3d 476, 480 (Mass. 2017). 130 See ch. 123, § 12(a). appropriate if the case could be resolved without addressing the constitutional question of whether an indefinite detainment period is constitutional.165 Justice Kafker navigates this requirement by pointing out that C.R. did not levy a facial challenge against the constitutionality of section 12.166 What possible guidance can the court give in its constitutional analysis if the court avoids discussing the constitutionality of section 12 altogether? The truth of the matter is that the treatment of C.R. was very likely unconstitutional, but if the Supreme Judicial Court said as much, it would cause problems for the EOHHS and the legislature. Justice Kafker came close to saying as much in his opinion.167 But perhaps worse still, the court claimed the plaintiff raised no constitutional challenge, yet proceeded to comment on the constitutionality of C.R.’s treatment anyway.168 The Supreme Judicial Court found—much to the detriment of C.R., and people with mental disabilities generally—that C.R.’s detainment, despite its unconstrained duration, was not in violation of due process.169 This maneuver to buy the legislature time to fix a mistake it should have addressed years ago comes at a steep cost.170 By writing into Massachusetts common law that it was constitutional to detain C.R. for nearly a week without so much as the courtesy of providing a timeline for when she might be able to explain herself, the Supreme Judicial Court has continued Massachusetts’ tradition of telling people with mental disabilities: hold on while we figure out what to do with you.171 Furthermore, it risks setting a precedent that the hundreds of prolonged detainments that happen annually in Massachusetts—which look just like C.R.’s—also survive constitutional muster.172 Although Justice Kafker openly acknowledges the constitutional concerns that would arise from a facial challenge of section 12, the court explains that a laws enacted by the legislature or by the people through the initiative process” and avoided constitutional questions on legislation whenever possible). 165 See id. at 110. 166 See C.R., 142 N.E.3d at 560. 167 Id. at 559 (“Our precautionary approach also is informed and influenced by the concerted, ongoing efforts on the part of the Commonwealth to address the ED boarding crisis . . . and the active engagement of the executive branch with the Legislature to attempt to address the problem.”). 168 Id. at 560 (“As applied to C.R., we conclude that the statute did not violate due process, as the § 12 (a) period of confinement was no longer than necessary given the difficulty of finding her an appropriate placement.”). 169 Id. 170 See EPIA POLICY, supra note 102, at 1 (“Each day residents of the Commonwealth in need of inpatient psychiatric hospitalization wait in hospital emergency departments (EDs) for extended periods of time . . . .”). 171 See Helman, supra note 147 (“The daily struggle to find and pay for care is an indictment of political leadership in Massachusetts and beyond that spans generations.”). 172 See EPIA PRESENTATION, supra note 12, at 5 (identifying 839 patients who were kept in prolonged detainments in Massachusetts in 2019 alone). ruling on its constitutionality in C.R. would be “premature[]” because the resolution of the constitutional question was unnecessary to decide the case. 173 However, the court also expresses the expediency with which the legislature should impose a time limit on detainments.174 Perhaps the court recognized that running the clock on this issue could have dire consequences.175 After all, despite its acknowledgement of the legislature and executive’s efforts to “address the ED boarding crisis,”176 the necessity of prolonged detainments was unavoidably caused by those same legislators and administrative officials.177 After decades of budget cuts, red tape, and persistent inaction, leaving just a few hundred state-sponsored psychiatric beds in existence, all the legislative and executive branches have to show for their newfound concern for mental illness detainments is a protocol for emailing insurers sooner.178 The court recognized that the duration of C.R.’s detainment “was not exceptional” and elaborated that “the record describes a widespread problem of ED boarding exceeding ninetysix hours.”179 C.R. asked the court to fix the unlimited detainment problem.180 The court responded by agreeing there was a problem, denying to say anything about the constitutionality of the law, and handing over the decision on what to do about it to the group that has failed to resolve that very problem for the better part of a half century.181 If what happened to C.R. was deemed constitutional, what incentive does the legislature have to amend the statute to help people just like her? If “no significant deprivation of liberty can be justified without a prior hearing on the necessity of the detention,” how can section 12 be permissible?182 If the constitutionality of mental health detainments must be assessed on the basis of the “panoply of predeprivation and postdeprivation process provided by the state,” why is detainment not afforded the same process as emergency 173 C.R., 142 N.E.3d at 558. Id. at 559–60. 175 See EPIA PRESENTATION, supra note 12, at 3, 5. 176 C.R., 142 N.E.3d at 490. 177 See Helman, supra note 147 (“The result, the Legislature’s Mental Health Advisory Committee concluded in 2014, is a system in which accountability for the care of the most severely ill people is often ‘lost or nonexistent.’ They bounce from hospital to hospital, caregiver to caregiver, until, with some frequency, something awful happens.”). 178 See TREATMENT ADVOC. CTR., supra note 43, at 8; EPIA PRESENTATION, supra note 12, at 3. 179 C.R., 142 N.E.3d at 559. 180 Id. at 547. 181 Id. at 559–60. 182 Lessard v. Schmidt, 349 F. Supp. 1078, 1091 (E.D. Wis. 1972), vacated, 414 U.S. 473 (1974). 174 commitments when detainments regularly last twice as long? 183 These are just some of the pressing questions the court chose to ignore here. The Supreme Judicial Court has stated that the entitlement “to be free from physical restraint is a paradigmatic fundamental right.”184 Furthermore, the court has severally affirmed that “[t]he restraint must be narrowly tailored to protect that compelling patient and public safety interest,” and that “[a]ny unnecessary delay is unconstitutional.”185 It seems that even as applied to the facts of C.R., a blank check approach to detainment does not lend itself well to characterizations such as “narrowly tailored” or avoiding “unnecessary delay.”186 The court’s excuse in C.R. that the detainment took no longer than was necessary to place C.R. in a DMH bed is nonsensical. If Massachusetts continues to cut DMH beds, it will not be long before the wait times for availability last months. The deprivation of liberty of a person with mental disabilities must not be prolonged solely because of administrative friction stemming from the state’s mismanaged system. Furthermore, the Supreme Judicial Court has previously construed amendments to section 12 as “intended to protect the individual’s due process rights by minimizing the length of time for which he or she could be involuntarily committed prior to judicial review.”187 This principle should be applied in C.R.. The Constitution does not hold sway over the law only when it is convenient.188 The level of judicial avoidance in this case controverts the obligations of the judiciary by intentionally bypassing a clear constitutional violation in fear of stepping on the legislature’s toes. It punts the issue to the legislature, and perhaps more realistically, to the executive. C. The Failure of the Massachusetts Executive The EPIA task force has been attempting to “understand the problem” for nearly two years. However, the summary of the EPIA Policy on the Massachusetts state website identifies the problem quite succinctly: “Each day residents of the Commonwealth in need of inpatient psychiatric hospitalization wait in hospital emergency departments (EDs) for extended periods of time . . . .”189 What more is there to understand? If nothing else, the goals and direction of the EPIA task force illuminates the motives behind maintaining the status quo. Ultimately, after coming to “understand” the problem, the EPIA’s solution did very little to prevent further obfuscation of due process or relieve 183 Fields v. Durham, 909 F.2d 94, 97 (4th Cir. 1990) (citing Zinermon v. Burch, 494 U.S. 113, 125–26 (1990)). 184 Matter of E.C., 92 N.E.3d 724, 730 (2018) (quoting Commonwealth v. Knapp, 804 N.E.2d 885, 891 (2004)); see Vitek v. Jones, 445 U.S. 480, 491 (1980). 185 C.R., 142 N.E.3d at 559. 186 Id. 187 See Matter of N.L., 71 N.E.3d 476, 480 (2017). 188 See U.S. CONST. art. VI, cl. 2. 189 See EPIA POLICY, supra note 102, at 1. patients of unreasonable emergency room stays.190 Instead, it elected to validate and reinforce the administrative machinery that keeps patients waiting in emergency rooms in the first place.191 By putting forward a policy solution that focused on communications with insurance providers, the administration proved that communications about funding the patient’s stay and the administrative need for complete paperwork takes priority over a mentally disabled person’s liberty.192 Rather than set a deadline for a hospital to secure a transfer to a DMH facility, the EPIA sets its sights on the tedium of deskwork. This is unsatisfactory. Undefined and unlimited emergency room detainment is unacceptable. That should be the end of the conversation. It is not something to be avoided, mitigated, or optimized; it is something that must be dealt with swiftly and directly, if not flatly disallowed for violating the Constitution. III. WHERE TO GO FROM HERE Ultimately, the solution to the unlimited detainment problem is as simple as implementing a limit. All that is required to fix this unconstitutional, ableist, unjust law, is the addition of the following sentence: The patient will be held for no longer than seventy-two hours without a hearing. It is painfully straightforward. And if legislators prefer a different construction, they have forty-nine other examples to choose from.193 So why has it not happened yet? It is possible the legislature has failed to implement a detainment limit because there is much more wrong with Massachusetts mental health laws than just the detainment statute.194 The pervasive practice in Massachusetts— as well as other jurisdictions throughout the country—to dispose of normal due process in civil commitment demonstrates the obtuseness with which our legal system approaches mental health.195 It is long overdue that lawmakers reassess institutional procedures and build a commitment process that works.196 Treatment, involuntary or otherwise, 190 See EPIA PRESENTATION, supra note 12, at 1–6. See id. at 3–6 (establishing procedure by which communications are “expedited” after detainment has been deemed to be prolonged). 192 See id. at 1–6. 193 See infra Table 1. 194 See Helman, supra note 147 (reflecting on effects of decades of multi-million-dollar budget cuts and legislation that has rendered “accountability for the care of the most severely ill people . . . ’lost or nonexistent’”). 195 See Stone, supra note 3, at 809 (identifying incongruity between magnitude of punishment imposed by commitment orders and minimal process afforded to commitment defendants). 196 See id. at 791 (“As a person’s freedom is at stake, the serious nature of confinement warrants a critical review of how we address the need for psychiatric treatment of our dangerously mentally ill.”); Helman, supra note 147 (“The sudden closure of Comprehensive Outpatient Services—which left as many as 2,500 people temporarily without counseling, 191 should focus on serving citizens with mental disabilities rather than punishing them for something outside of their control.197 Civil commitment procedures should be structured around the definition of disability as championed by the Americans with Disabilities Act and strive for equal treatment of citizens with mental disabilities rather than an unnecessarily discriminatory one. 198 Massachusetts should cut all ties between the Department of Corrections and civil mental health services.199 Community treatment alternatives need to be made more widely accessible, especially in areas that are historically underserved and frequently subjected to over-policing and the criminalization of mental illness.200 Police should not be first responders to mental health crises.201 And most importantly, Massachusetts needs to invest in the mental health of its citizens.202 Despite being one of the most affluent states in the country, Massachusetts spends less per capita on mental health programs than the already low national average.203 A just commitment program requires more robust due process. Furthermore, the current Massachusetts procedures for civil commitment must no longer blur psychiatric prescriptions, and other critical assistance—was a sharp illustration of the destructive forces splintering the Massachusetts mental health care system.”). 197 See Russell & Cramer, supra note 145 (“There may be no worse place for mentally ill people to receive treatment than prison.”). 198 See David D. Doak, Theorizing Disability Discrimination in Civil Commitment, 93 TEX. L. REV. 1589, 1616 (2015) (“[T]here is a strong argument to be made that commitment decisions based on stereotypes or prejudice about people with mental illness are actionable under Title II of the ADA, properly construed.”). 199 Although Massachusetts has disallowed the civil commitment of women to facilities run by the Department of Corrections, men with mental disabilities are still sent to prisons despite being innocent of any crime. See WBUR News & Wire Servs., New Law Ends Civil Commitments to State Prison for Women, WBUR NEWS (Jan. 25, 2016), https://www.wbur.org/news/2016/01/25/new-law-ends-civil-commitments-to-state-prisonfor-women; Deborah Becker, Advocates Press Lawsuit Despite DOC Claims Of Improved Involuntary Addiction Treatment, WBUR NEWS (Oct. 20, 2020), https://www.wbur.org /commonhealth/2020/10/20/section-35-lawsuit-amended-addiction-state-prisons. 200 See Paul M. Grekin et al., Racial Differences in the Criminalization of the Mentally Ill, 22 BULL. AM. ACAD. PSYCHIATRY L., no. 3, 1994, at 415, tbl.2 (finding that white individuals experiencing crises were more than twice as likely to be sent to mental health facilities than prisons, while Black individuals were nearly twice as likely to be sent to prisons, and Hispanic individuals were more than three times as likely to be sent to prisons). 201 See Russell & Cramer, supra note 145 (“Nearly half of people killed by Massachusetts police over the last 11 years were suicidal, mentally ill, or showed clear signs of crisis, a Spotlight Team investigation shows.”). 202 See Helman, supra note 147 (finding that Massachusetts has reduced inpatient psychiatric beds by more than 97% since 1953). 203 Id. (“[A] 2013 study showed that the Massachusetts Department of Mental Health spent less money per capita than the national average even though the cost of living here is among the highest in the country.”). the line between civil and criminal law.204 Robust due process is necessary for just commitment decisions. First, Massachusetts should follow the example set by several states that require a pre-detainment hearing, and subsequent court order, for a detainment to be authorized.205 Individuals with mental disabilities that are innocent of any crime must not be deprived of their liberty without process, and preliminary hearings could help prevent abuses of the system that authorize unjust detainments.206 This protection could also decrease fatal interactions between people with mental disabilities and the police by reframing detainment as a deliberate action rather than one that is reactionary. 207 Second, commitment hearings must follow normal evidence rules without admitting excessive hearsay into the record.208 Watered-down hearsay rules will only serve to prevent effective advocacy on behalf of an individual with mental disabilities as they defend against involuntary deprivations of their liberty.209 Lastly, the right to counsel upon detainment for indigent defendants and meaningful notice of the commitment petition—along with a guarantee that the defendant will be allowed to attend and participate in their hearing—should be 204 See Stone, supra note 3, at 809 (“The confinement against one’s will is more akin to the criminal consequences of punishment than to pure treatment, necessitating greater adherence to due process, specifically with the applicability of the rules of evidence.”). 205 See, e.g., ARIZ. REV. STAT. ANN. § 36-535 (2016); COLO. REV. STAT. ANN. § 27-65-105 (2021); KY. REV. STAT. ANN. § 202a.076(2) (West 2021). 206 See Alexander Tsesis, Due Process in Civil Commitments, 68 WASH. & LEE L. REV. 253, 277 (2011) (identifying “tremendous potential for abuse of the emergency confinement” statutes in Alaska and Idaho by friends, relatives, and partners); Mariana Kay, “You’re Crazy”: My Abusive Partner Had Me Committed, SALTY (Aug. 10, 2019), https:/ /saltyworld.net/youre-crazy-when-your-partner-has-you-committed/; Jhilmil Breckenridge, My Family Colluded to Have Me Put in a Mental Health Facility. This is the Story of How I Survived., MEDIUM (Sept. 5, 2017), https://medium.com/skin-stories/my-family-colluded-tohave-me-put-in-a-mental-health-facility-this-is-the-story-of-how-i-survived-e0b8f11062c6. 207 Delaying police action that “overemphasizes rapid problem-solving” could allow for intervention by trained professionals and provide notice of detainment such that a violent confrontation becomes less likely. Russell & Cramer, supra note 145 (explaining that police in Massachusetts have “no in-depth training in handling mental health crises” and that most fatal shootings occurred within minutes of arrival of police). 208 See Stone, supra note 3, at 807–08 (“Often testimony presented at the civil commitment hearing relies on declarations of family members, employers, neighbors, mental health professionals, police, and other interested individuals who interacted with the mentally ill person prior to the hospital confinement.”). The numerous issues inherent to the haphazard and broadly inclusive use of evidence—including various types of evidence inadmissible under normal evidence rules—in commitment proceedings is outside the scope of this Note, but surely part of the steps necessary to make a healthier system of mental health laws. 209 See id. at 809 (“The patient who is subject to involuntary hospitalization is denied the opportunity to cross-examine the key individuals, whether the police, emergency room staff, or family members, when the testifying psychiatrist offers statements from said individuals as part of his testimony at the hearing.”). afforded to any defendant at risk of being deprived of their liberty. 210 Without guarantees to notice and representation, civil commitment defendants would be forced to prepare their defense without sufficient time or resources to contend with the typically prepared and sophisticated petitioner. Ultimately, if civil defendants are to be subjected to lasting stigma and significant deprivations of liberty, then they should receive the same level of process that is afforded to criminal defendants.211 Additionally, the Massachusetts government must begin taking responsibility for the effective and compassionate treatment of people with mental disabilities. The mental health system has stagnated and collapsed in the twenty-first century largely because each branch of government refused to address obvious issues, all while pointing at other branches to effect change.212 The complete lack of accountability and coordination concerning the betterment of mental health treatment led to ruin.213 Although the closing of mental hospitals in the state may have been founded in the well-intended pursuit of more community-based treatment, the execution lacked follow through, and the new system simply replaced old human rights abuses with new ones.214 210 Lessard v. Schmidt, 349 F. Supp. 1078, 1103 (E.D. Wis. 1972), vacated, 414 U.S. 473 (1974) (finding constitutionally insufficient a detainment law that “fails to require effective and timely notice of the ‘charges’ under which a person is sought to be detained; fails to require adequate notice of all rights, including the right to jury trial; [and] permits detention longer than 48 hours without a hearing on probable cause . . . .”). 211 See In re a Minor, 148 N.E.3d 1182, 1188 (Mass. 2020) (“[W]e have determined that the continuing stigma of a potentially wrongful commitment alone sufficed to defeat a claim of mootness.”). Despite the contention that civil commitments are “purely rehabilitative,” they are unlike any traditional rehabilitation in that treatment is involuntarily imposed on the patient. See Pesci v. Budz, 935 F.3d 1159, 1166 (11th Cir. 2019). 212 See Helman, supra note 147 (“Governors from Francis Sargent to Deval Patrick, House speakers, Senate presidents, and other legislative leaders, and federal officials together cut hundreds of millions of dollars in mental health spending over the last 50 years. They closed psychiatric hospitals but funneled comparatively little of the savings into community treatment programs—once successfully defying a federal court order requiring that they spend millions more.”); Mass. Gen. Hosp. v. C.R., 142 N.E.3d 545, 547 (Mass. 2020) (“The record and briefing, however, also establish that there is a concerted effort by the executive branch to address this crisis, including the establishment of specific time frames for hospitals and insurance providers to initiate escalation steps for placement searches within the § 12 (a) period, and ongoing communication between the executive branch and the Legislature regarding this effort.”). 213 See Helman, supra note 147 (explaining how Massachusetts’ decision to shut down mental health facilities without a proper plan to continue care has led to a “revolving door of emergency room visits, frequent run-ins with police, and nagging fears among family and providers that someone under their care will turn violent”). 214 JEFFREY A. LIEBERMAN & OGI OGAS, SHRINKS: THE UNTOLD STORY OF PSYCHIATRY 35 (2015) (stating that early mental health facilities were explicitly for segregation of people with mental disabilities from society, not for treatment). Section 12 is a clear example that civil commitment law—and mental health legislation in general—has not been given proper attention and consideration by the Massachusetts legislature. If the legislature once again fails to heed warnings that section 12 is unconstitutional, an explicit facial challenge of the law must be brought before the Supreme Judicial Court. But even after the most problematic aspects of section 12 are stricken from law, meaningful change cannot be accomplished with an apathetic legislature, an overly deferential judiciary, and a meandering executive. Before actual and lasting change can be realized in mental health programs, the Massachusetts government must listen to their constituents who have been advocating for decades for the protection and fair treatment of their friends, family, and loved ones with mental disabilities. It is imperative that our institutional structures stand up for people with mental disabilities in order to put an end to the latest chapter of ableist law and jurisprudence in Massachusetts. CONCLUSION The civil commitment system is broken. The Massachusetts government is, and has been, aware of the problem for decades. The individuals in power have done, and continue to do, nothing of substance to ameliorate the deprivation of liberty imposed on individuals with mental disabilities. Instead, judges, legislators, and administrative officials all offer the same empty reassurance that they are doing everything they can, and that there are complex policy decisions being weighed. But anyone who has seen a commitment hearing is likely to know that the reason for this failure is relatively uncomplicated: the American justice system treats people with mental disabilities with quiet but unrelenting distrust, and as a result, their liberty is simply not prioritized. Section 12 is not all that is wrong with Massachusetts commitment law, but it is an excellent indication of how woefully inadequate the current structure is for the appropriate, just, and constitutional treatment of people with mental disabilities. If the system as it exists today is to change, there must be accountability for the outcomes of mental health programs, due process for involuntary treatment, and significantly more funding directed to mental health facilities. Table 1. Detainment Limitations by States & District of Columbia State Duration Statute Alabama 7 Days ALA. CODE § 22-52-8(a) Alaska ALASKA STAT. 72 Hours § 47.30.730 (a) Arizona ARIZ. REV. STAT. § 3624 Hours 527 (A) Arkansas ARK. CODE ANN. § 2072 Hours 47-210 CAL. WELF. & INST. California 72 Hours CODE § 5171 COLO. REV. STAT. § 27Colorado 72 Hours 65-105 CONN. GEN. STAT. Connecticut 72 Hours § 17a-502(d) DEL. CODE ANN. tit. 16, Delaware 24 Hours (+48 Hours) § 5008(a) District of Columbia 3 Days D.C. CODE § 21-541 72 Hours (or 24 Hours FLA. STAT. Florida in Stabilization) § 394.875(1)(a) GA. CODE ANN. § 37-3Georgia 48 Hours 43 HAW. REV. STAT. § 334Hawaii 48 Hours 59 IDAHO CODE § 66Idaho 5 Days 329(4) 405 ILL. COMP. STAT. Illinois 24 Hours 5/3-607 Indiana 72 Hours IND. CODE § 12-26-5-1 Iowa 48 Hours IOWA CODE § 229.22 48 Hours (or 17 Hours KAN. STAT. ANN. § 59Kansas at MH Facility) 2953 KY. REV. STAT. ANN. Kentucky 72 Hours § 202a.031 Louisiana 72 Hours LA. STAT. ANN. § 28:53 ME. REV. STAT. tit. 34Maine 24 Hours B, § 3863 MD. CODE ANN., Maryland 30 Hours HEALTH-GENERAL § 10625 Unlimited (+3 Days MASS. GEN. LAWS ch. Massachusetts Post-Evaluation) 123, § 12(b) MICH. COMP. LAWS Michigan 24 Hours § 330.1429 Minnesota 72 Hours MINN. STAT. § 253b.051 MISS. CODE ANN. § 41Mississippi 72 Hours 21-67 MO. REV. STAT. Missouri 96 Hours § 632.305 MONT. CODE ANN. § 53Montana 72 Hours 21-1402 Nebraska 7 Days Nevada 72 Hours New Hampshire 6 Hours (+3 Days) New Jersey 72 Hours New Mexico 7 Days New York 72 Hours North Carolina 24 Hours North Dakota 23 Hours Ohio 48 Hours Oklahoma 72 Hours Oregon 5 Days Pennsylvania 120 Hours Rhode Island 72 Hours South Carolina 24 Hours South Dakota 5–7 Days Tennessee 12 hours (+ 72 Hours Extension) Texas 48 Hours Utah 24 Hours Vermont 24 Hours + 72 Hours Virginia 72 Hours Washington 72 Hours West Virginia Wisconsin 24 Hours 72 Hours Wyoming 72 Hours NEB. REV. STAT. § 71923 NEV. REV. STAT. § 433A.150 N.H. REV. STAT. ANN. § 135-C:28 N.J. STAT. ANN. § 30:427.10 N.M. STAT. ANN. § 431-10 N.Y. MENTAL HYG. LAW § 9.39-40 N.C. GEN. STAT. § 122C-266 N.D. CENT. CODE § 2503.1-25 OHIO REV. CODE ANN. § 5122.17 OKLA. STAT. tit. 43A, § 5-413 OR. REV. STAT. § 426.210 50 PA. CONS. STAT. § 7302 40.1 R.I. GEN. LAWS § 40.1-5-7(c) S.C. CODE ANN. § 4417-530 S.D. CODIFIED LAWS § 27A-10-8 TENN. CODE ANN. § 336-304 TEX. HEALTH & SAFETY CODE ANN. § 573.021(b) UTAH CODE ANN. § 62A-15-629 VT. STAT. ANN. tit. 18, § 7508 VA. CODE ANN. § 37.2809 WASH. REV. CODE § 71.05.153 W. VA. CODE § 27-5-2a WIS. STAT. § 51.20 WYO. STAT. ANN. § 2510-112