A definite maybe: Proof and probability in civil commitment.

Abstract

With the United States Supreme Court's decision to hear Addington v. Texas) the issue of the required standard of proof in civil commitment cases has finally come to the fore. Addington was involuntarily committed for an indefinite period under a "preponderance of the evidence" standard. His commitment was upheld by the Texas Supreme Court. Now, Addington is arguing on appeal that his committability must be supported by evidence "beyond a reasonable doubt." In its present posture, Addington is not concerned with the proper substantive standard for commitment. Instead, appellant assumes 2 the constitutionality of the Texas test, which authorizes the indefinite commitment of a mentally ill person found to require hospitalization "for his own welfare and protection or the protection of others. ''3 When a commitment statute speaks, as does the Texas one, of the "protection of others," it requires mental health and judicial decision-makers to assess an individual's potential for future dangerousness. That public protection rationale is part and parcel of modern commitment statutes. This essay will briefly explore the criterion of dangerousness and will begin to probe the relationship between standards of proof and the dangerousness standard of commitment. According to Alan Stone, President-elect of the American Psychiatric Association, "the predictive success appropriate to a legal decision can be described in three levels of increasing certainty: preponderance of the evidence, 51 percent successful; clear and convincing proof, 75 percent successful; beyond a reasonable doubt, at least 90 percent successful" (1975, p. 33). Based on his review of the research literature,