Insane Fear: The Discriminatory Category of 'Mentally Ill and Dangerous'

25 New England Journal on Criminal & Civil Confinement 341 (1999)

26 Pages Posted: 18 Dec 1999 Last revised: 10 Jun 2013

See all articles by Sherry F. Colb

Sherry F. Colb

Cornell University - Law School

Date Written: 1999

Abstract

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.

Suggested Citation

Colb, Sherry F., Insane Fear: The Discriminatory Category of 'Mentally Ill and Dangerous' (1999). 25 New England Journal on Criminal & Civil Confinement 341 (1999), Available at SSRN: https://ssrn.com/abstract=200754

Sherry F. Colb (Contact Author)

Cornell University - Law School ( email )

Myron Taylor Hall
Ithaca, NY 14853
United States

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