Insane Fear: The Discriminatory Category of Mentally Ill and Dangerous

This article considers the constitutional and moral implications of the distinction the law draws between different classes of dangerous people, depending upon their status as mentally ill or mentally well. Those who are mentally well benefit from the right to freedom from incarceration unless and until they commit a crime. By contrast, dangerous people who are mentally ill are subject to potentially indefinite civil preemptive confinement. In a relatively recent case, Kansas v. Hendricks, the United States Supreme Court upheld the post-prison civil confinement of Leroy Hendricks, a man who had served prison time after pleading guilty to child molestation. This decision calls into serious question the continuing vitality of the line drawn between criminal and civil confinements. The article argues that this move is an appropriate one, though it carries with it the risk of generalized preventive detention. In safeguarding our liberty, the article concludes that we must tighten the qualitative and quantitative dimensions of the dangerousness criterion for civil confinement rather than relying upon the status of mental illness to protect our liberty from incarceration