Introduction

John Hinckley Jr shot Ronald Reagan yet never went to prison. Instead, a jury found him not guilty by reason of insanity (NGRI), and he was subsequently committed to St. Elizabeths Hospital.1 The public was infuriated that Hinckley escaped conviction.2 To the extent most Americans believed he should have been punished,3 his commitment would be less punitive than they may have desired. For example, on one occasion the hospital gave Hinckley permission to leave the grounds for a holiday dinner with his family.4 According to the DC Circuit, not only could the hospital grant such a pass, they could do so without court approval.5

The hostile reaction to the shooting reflected many of the public’s misperceptions regarding the insanity defense. Although the vast majority of Americans believe that the defense is an easy “loophole that allows too many guilty people to go free,6 insanity pleas are actually exceptionally rare and mostly unsuccessful.7 Respondents in one survey estimated that the insanity defense is invoked forty-one times more often than it actually is and that the rate of success is almost twice as high as the real figure.8 Furthermore, while the public views the insanity defense as a get-out-of-jail-free card, the consequences to the defendant can actually be devastating, as the average NGRI patient is confined almost twice as long as he would have been if found guilty.9 And while Hinckley’s holiday dinner might have upset some, passes of that nature often serve an essential role in the treatment of the mentally ill.10

Given that backdrop, this Comment examines the due process rights that are implicated in the denial of passes. These passes include various on-grounds and off-grounds privileges, the nature of which can vary significantly. They might include anything from a walk around a hospital to a trip lasting several days. Some passes allow unsupervised privileges, while others do not. Because these passes affect treatment and reduce bodily restraint, this Comment argues that they are protected, under certain circumstances, by Youngberg v Romeo.11 In that case, the Supreme Court held that involuntarily committed patients have liberty interests, protected under the Due Process Clause of the Fourteenth Amendment, to safe living conditions and freedom from bodily restraint.12 The Court also held that there is a right to treatment that is “minimally adequate” to ensure that the interests in safety and freedom from restraint are protected.13 However, patients do not have absolute rights to these interests,14 so Youngberg requires that courts defer to professional judgment in suits against hospital administrators.15 Only a small number of courts have considered Youngberg claims with regard to passes. Most have rejected those claims, arguing that Youngberg does not apply to this issue at all,16 that there are no protected interests at stake,17 or that categorically banning passes does not violate the professional judgment standard.18 This Comment argues that there are several instances in which a patient seeking a pass would have a valid Youngberg claim.

Part I of this Comment discusses the law governing passes, the Youngberg decision, and the cases that have already considered due process claims in this context. Part II argues that Youngberg is the appropriate standard in cases involving passes and explores how to apply that standard to decisions made by hospital staff. Part III argues that two common practices—categorical bans on all passes in all cases and broad trial court discretion over granting passes—should be considered unconstitutional.

  • 1. Hinckley v United States, 163 F3d 647, 648 (DC Cir 1999).
  • 2. Valerie P. Hans and Dan Slater, John Hinckley, Jr. and the Insanity Defense: The Public’s Verdict, 47 Pub Op Q 202, 202 (1983) (“No verdict in recent history has evoked so much public indignation. . . . [T]hree-quarters of the Americans surveyed felt justice had not been done.”) (quotation marks omitted).
  • 3. One survey found that 59.5 percent of Americans believed Hinckley should receive both punishment and treatment, while another 26.4 percent believed he should receive punishment alone. See id at 206.
  • 4. See Hinckley, 163 F3d at 648.
  • 5. Id at 656.
  • 6. See Eric Silver, Carmen Cirincione, and Henry J. Steadman, Demythologizing Inaccurate Perceptions of the Insanity Defense, 18 L & Hum Behav 63, 64 (1994).
  • 7. According to one study, only 0.9 percent of indictments result in an insanity plea, and of those only 26 percent succeed. Id at 67.
  • 8. Survey respondents estimated that 44 percent of these pleas result in acquittal. The actual figure is 26 percent. Id.
  • 9. Michael L. Perlin, “Wisdom Is Thrown into Jail”: Using Therapeutic Jurisprudence to Remediate the Criminalization of Persons with Mental Illness, 17 Mich St U J Med & L 343, 356 (2013). One study has suggested that those found NGRI of nonviolent crimes in California are confined on average nine times longer than those convicted. See id.
  • 10. See, for example, In re Williamson, 564 SE2d 915, 917 (NC App 2002) (discussing a patient who “could not achieve further therapeutic gains until [ ] passes were authorized”).
  • 11. 457 US 307 (1982).
  • 12. See id at 315–16.
  • 13. Id at 319.
  • 14. Id at 319–20.
  • 15. See Youngberg, 457 US at 321–22.
  • 16. See Laney v State, 223 SW3d 656, 668–69 (Tex App 2007).
  • 17. See Williamson, 564 SE2d at 919.
  • 18. See Laney, 223 SW3d at 669–70.