University of Miami Law Review


Modern nation-states have been trapped in recurring cycles of incarcerating and emancipating residents with psychiatric disabilities. New cycles of enthusiasm for incarceration generally commence with well-defined claims about the evils of allowing “the mad” to remain at liberty and the benefits incarceration would bring to the afflicted. A generation or two later, at most, reports of terrible conditions in institutions circulate and new laws follow, setting high burdens for those seeking to imprison and demanding exacting legal procedures with an emphasis on individual civil liberties. Today, we seem to be arriving at another turn in the familiar cycle. A growing movement led by professionals and family members of people with mental health disabilities is calling for new laws enabling earlier and more assertive treatment.

After reviewing the history of civil commitment law, this essay suggests that the time is ripe in the United States to end this recurring cycle and make conservation of human dignity the core legal authority behind the state’s power of civil commitment and the major normative guide for both legal procedure and treatment. We conclude that the dignity approach has the potential to move the debate beyond the current face-off between consumer and peer advocates, who wish to avoid any revision of the civil commitment reforms enacted forty years ago, and families and professionals, who favor significant changes.