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THE LIMITS OF LIBERTY:
DEINSTITUTIONALIZATION, HOMELESSNESS,
AND LIBERTARIAN THEORY
by
Nancy K. Rhoden*
I. INTRODUCTION
"From Country Asylums to City Streets,"1 "From Back Wards to

Back Alleys,' 2 "Rotting with Their Rights On" 3-such are the in-
creasingly common adages used to describe the results of the wide-
spread release of mental patients into the community. Deinstitu-
tionalization, once hailed as an ideal social reform, is now decried
as a near disaster. Expos6s of neglect and abuse in institutional
"snake pits"' 4 have been replaced by accounts of similar abuse in
community "snake pits." 5 According to one writer:
[Deinstitutionalization] has meant a nightmare existence in
the blighted centers of our cities, amidst neighborhoods
crowded with prostitutes, ex-felons, addicts, alcoholics, and
the other human rejects now repressively tolerated by our so-
ciety. Here they eke out a precarious existence, supported by
welfare checks they may not even know how to cash. They
spend their days locked in or out of dilapidated "community-
based" boarding houses.6
* Assistant Professor, Ohio State University School of Law. B.A., Oberlin College, 1974;
J.D., New York University, 1977. The author has worked as a consultant to the Coalition for
the Homeless. The helpful comments of John Arras, Alexander Brooks, Cindy Friedmutter,
Robert Hayes, and Ruth Macklin are gratefully acknowledged.
' OFFICE OF THE PRESIDENT OF THE NEW YORK CITY COUNCIL, FROM COUNTRY ASYLUMS
TO CITY STREETS: THE CONTRADICTION BETWEEN DEINSTITUTIONALZATION AND STATE MENTAL
HEALTH FUNDING PRIORITIES (1979) [hereinafter cited as COUNTRY ASYLUMS].
2 NEW YORK STATE ASSEMBLY SUBCOMM. ON COMMUNITY AFTERCARE, FROM BACK WARDS
TO BACK ALLEYS (1978) [hereinafter cited as BACK ALLEYS].

3 Appelbaum & Gutheil, Rotting With Their Rights On: Constitutional Theory and
Clinical Reality in Drug Refusal By PsychiatricPatients, 7 BULL. AM. AcAD. PSYCHIATRY &
L. 306 (1979).
4 See, e.g., A. DEUTSCH, THE SHAME OF THE STATES (1948); E. GOFFMAN, ASYLUMS (1961).
5 See, e.g., Ex-State Mental PatientsLive in Neglect in Queens, N.Y. Times, Aug. 28,
1979, at B3, col. 5; Fowler, Panel Told of Fear and Abuse in "Adult Homes," N.Y. Times,
Feb. 3, 1979, § 1, at 21, col. 3.
6 A. SCULL, DECARCERATION: COMMUNITY TREATMENT AND THE DEVIANT: A RADICAL VIEW
2 (1977).
EMORY LAW JOURNAL [Vol. 31
Social reformers, health planners, and legal advocates of the

rights of mental patients worked long and hard to obtain patients'
releases. But release to the community did not guarantee commu-
nity care. The extent of community neglect is perhaps most graph-
ically illustrated by the advent of a type of litigation hitherto un-
known-litigation seeking shelter and services for homeless
persons.7 The ranks of the homeless, many of whom are former
mental patients, have increased dramatically.8 Their "homes" are
subways, doorsteps, or patently inadequate shelters:
The New York City Men's Shelter resembles nothing so much
as a 19th century insane asylum. A large room off the lobby is
filled with over 100 men. Some lie curled up on the dirty
floor; a few are in various stages of undress; others gesture
wildly in the air talking to themselves. Some just sit staring
into space. The stench of urine and unwashed bodies is
strong.9
A state court recently ordered New York City to provide shelter
for these "helpless and homeless" men of the city.10 Ironically, the
first shelter established was in an unused building on the grounds
of a now under-utilized state mental hospital." The site differs in
two ways from when it was a hospital: first, no one is sheltered
involuntarily, and second, sheltered persons, unlike patients (or at
least involuntary patients), have no constitutional right to receive
treatment.
The reason deinstitutionalization has failed is simple: adequate
community facilities have not been created. Political desires to
save money, bureaucratic pressures to use mental health funds pri-
marily for state institutions, neighborhood resistance to the estab-
7 See, e.g., Callahan v. Carey, No. 42582/79 (N.Y. Sup. Ct., N.Y. Cty. Aug. 26, 1981).
8 A report, aired January 17, 1982 on the television program Sixty Minutes, estimated
the number of homeless persons nationwide at 500,000 to 1,000,000. The number of home-
less men in Manhattan alone is estimated at 30,000. K. HOPPER & E. BAXTER, PRIVATE
LIvES/PUBLIC SPACES: HOMELESS ADULTS ON THE STRETS OF NEW YORK CITY 8 (1981) [here-
inafter cited as PRIVATE LIVES]. Of course, only some of the homeless are mentally ill. See
notes 192-96 infra and accompanying text.
9 COUNTRY AsYLuMs, supra note 1, at 30.
," Callahan v. Carey, No. 42582/79 (N.Y. Sup. Ct., N.Y. Cty. Aug. 26, 1981).
"1See Plaintiff's Trial Memorandum at 23, Callahan v. Carey, No. 42582/79 (N.Y. Sup.
Ct., N.Y. Cty. Aug. 26, 1981); text accompanying notes 185-97 infra.
1982] LIMITS OF LIBERTY
lishment of group homes, and other factors have contributed to

this situation. These political and economic factors are by far the
most important explanations for deinstitutionalization's failures.
But this article will explore the more difficult question of whether
the theoretical biases of deinstitutionalization's leading advocates
caused them to underestimate the importance of establishing com-
munity programs before large numbers of patients were released.
This article will suggest that early advocates of deinstitutional-
ization harbored an idealized notion of "community" and tended
to exaggerate the extent to which labeling a person mentally ill
produces and perpetuates pathology. Consequently, they were
overly optimistic in their assessment of the ability of released pa-
tients to survive, unaided, in society. The article also will suggest
that many legal advocates of patients' rights shared these assump-
tions and coupled them with a skepticism, albeit often healthy,
about psychiatric diagnosis and treatment. Therefore, they focused
far more heavily on obtaining liberty for patients than on seeking
services for them. Since judicial decrees can grant rights against
government infringement of liberty far more easily than they can
establish positive entitlements to care and services, the result was
that mental patients obtained their liberty, but at the expense of
the community care they so desperately needed.
This article was inspired by Dr. Jonas Robitscher, both by his
writings and by the author's conversations with him. Dr. Robit-
scher was one of those rare scholars who saw all sides of an issue.
As a humane and caring psychiatrist he was sensitive to patients'
needs, and as a lawyer and civil libertarian he was concerned about
protecting their rights. Most unusual of all, he was acutely aware
of those most troubling situations where patients' rights and needs
conflict. In his thoughtful critiques of psychiatry he showed that a
profession must be receptive to criticism of its assumptions. In
dedication to Dr. Robitscher, this article, while recognizing the
enormous contribution that patients' rights advocates have made,
argues that they should have focused earlier and more explicitly on
the danger that patients would go "from back wards to back
alleys."
378 EMORY LAW JOURNAL [Vol. 31
II. DEINSTITUTIONALIZATION: ITS BACKGROUND AND CAUSES
Deinstitutionalization-the movement of patients from state

psychiatric hospitals to alternative community facilities such as
halfway houses, private residences, or the street-has occurred on
a massive scale. The number of patients in public mental hospitals
decreased from 559,000 in 1955 to 215,000 in 1974,"2 and to 171,000
in 1976.13 Although this decline began before the goal of moving
patients to the community was articulated,'1 4 state and federal gov-
ernments in recent years have explicitly adopted the policy that
confinement in state hospitals' highly restrictive environments
should be a last resort. 15 Deinstitutionalization clearly was a re-
form whose time had come. As such, a number of factors contrib-
uted to its emergence and widespread acceptance.
A. Initial Causes of Deinstitutionalization
1. Antipsychotic Drugs
One of the earliest explanations for the decrease in state hospital
12 GENERAL ACCOUNTING OFFICE, RETURNING THE MENTALLY DISABLED TO THE COMMU-

NITY: GOVERNMENT NEEDS TO Do MORE 8 (1977) [hereinafter cited as GAO REPORT].
13 Mental Health Systems Act: Hearings on H.R. 4156 Before the Subcomm. on Health
and Environment of the House Comm. on Interstate and Foreign Commerce, 96th Cong.,
1st Sess. 122 (1979) (material submitted for the record by the American Federation of State,
County, and Municipal Employees). The hospital population decline continues, though its
rate has slowed dramatically. In 1980, the inpatient census was listed as 138,000. NEW YORK
STATE OFFICE OF MENTAL HEALTH, TRENDS IN THE MENTAL HEALTH CENSUS 5 (1981).
14 Inpatient populations actually began to decrease in 1955. Deinstitutionalization was
first articulated as a formal policy of the federal government in 1961 by the Joint Commis-
sion on Mental Illness and Health, which stated that hospitals were extremely costly, had
debilitating effects on long-term residents, and were little more than large-scale, custodial
warehouses. See generally JOINT COMMISSION ON MENTAL ILLNESS AND HEALTH, ACTION FOR
MENTAL HEALTH (1961) [hereinafter cited as ACTION FOR MENTAL HEALTH]. The Commission
recommended short-term hospitalization when necessary, and rehabilitation through com-
munity-based services. Id. at xiv. In 1963, President Kennedy adopted these suggestions and
proposed a bold new program for establishing community based treatment facilities. The
resulting Mental Retardation Facilities and Community Mental Health Centers Construc-
tion Act, Pub. L. No. 88-164, 77 Stat. 282 (1963), repealed by Pub. L. No. 97-35, §
902(e)(2)(B), 95 Stat. 560 (1981), became the basis for a major part of the federal govern-
ment's involvement in deinstitutionalization. See GAO REPORT, supra note 12, at 3.
15See GAO REPORT, supra note 12, at 3-4, 8-10. See generally H. SANTIESTEVAN, OUT
OF THEIR BEDS AND INTO THE STREETS 22-37 (1977) (describing certain aspects of deinstitu-
tionalization in selected states).
1982] LIMITS OF LIBERTY 379
populations was the introduction of antipsychotic drugs for the

treatment of psychoses. Chlorpromazine, the first such drug, was
marketed in the United States in 1954 under the name
Thorazine, 16 and the next year, for the first time in a century, the
number of patients in state mental hospitals actually declined. 17
The conjunction of the introduction of a new treatment modality
with the decrease in psychiatric inpatients naturally enough led
commentators to the conclusion that the new treatment's success
had caused the decline. 8 For example, the Joint Commission on
Mental Illness and Health stated:
[Tranquilizing] drugs have revolutionized the management of
psychotic patients in American mental hospitals, and proba-
bly deserve primary credit for reversal of the upward spiral of
the state hospital inpatient load .... 19
Attributing the decrease in patient population to the new drugs

has been attacked as being a convenient explanation which ignores
the actual nature of the decrease. Studies which are often cited as
demonstrating the causal connection between drug treatment and
declining patient populations have been criticized for essentially
attributing an unexplained decline to the use of these drugs be-
cause no other explanation could be found.20 Critics also have
noted that in both the United States and England discharge rates
were increasing and durations of hospitalization were decreasing
for several years before the trend resulted in an actual decline in
11 See A. SCULL, supra note 6, at 80.

17Up until this time, the number of hospitalized mental patients had increased relent-
lessly. See ACTiON FOR MENTAL HEALTH, supra note 14, at 7.
1SBrill & Patton, Analysis of the 1955-56 Population Fall in New York State Mental
Hospitals during the First Year of Large-Scale Use of Tranquilizing Drugs, 114 AM. J.
PSYCHIATRY 509, 511 (1957); Brill & Patton, Analysis of PopulationReduction in New York
State Mental Hospitals during the First Four Years of Large-Scale Therapy with Psycho-
tropic Drugs, 116 AM. J. PSYCHIATRY 495 (1959).
'1 ACTION FOR MENTAL HEALTH, supra note 14, at 39.
20 See A. SCULL, supra note 6, at 84. Brill and Patton did not compare release rates of
treated patients with those who were not given drugs, but rather compared release rates in
two time periods, 1954-1955 and 1955-1956, and concluded that "we know of no other major
change in operating conditions which took place between 1954-55 and 1955-56. . ." which
could have produced the fall in hospital populations. Brill & Patton, Analysis of the 1955-56
PopulationFall in New York State Mental Hospitals during the First Year of Large-Scale
Use of TranquilizingDrugs, 114 AM. J. PSYCHIATRY 509, 512 (1957).
the number of inpatients. 21 Although the effects of the drugs were

important, the critics probably are correct that the introduction of
psychotropic drugs did not directly cause the inpatient population
to decline, but simply helped ease the transition to
22
the new policy
of releasing mental patients into the community.
2. Exposes of Institutions
Humanitarian impulses also have been credited with helping
bring about the release of mental patients to the community. Soci-
ological studies in the 1950's and 1960's revealed that public
mental hospitals, rather than being therapeutic communities, were
vast dehumanizing warehouses whose neglected, ill-fed, and abused
inmates could, with little exaggeration, be counted among the liv-
ing dead. s Such expos6s helped educate both professionals and the
general populace about the deplorable conditions in institutions. In
1958, the president of the American Psychiatric Association stated
that institutional conditions were so inadequate that hospitals
were "bankrupt beyond remedy. '24 Sociological and psychological
studies also revealed the extent to which the very structure of the
asylum helped to create and perpetuate the pathology it was
designed to cure. Institutional requirements of order and routine
usurped patients' control of their life decisions, and the endless
idle hours rendered the inmates passive, dependent, and "institu-
2' The number of inpatients in England began to decline in 1954, but statistics show
that the duration of stay decreased steadily from 1949 on, well before the introduction of
psychotropic drugs in 1953. Certain more progressive United States hospitals showed the
same pattern, with an increase in discharge rates starting well before 1954. A. SCULL, supra
note 6, at 82; D. MECHANIC, MENTAL HEALTH AND SOCIAL POLICY 61-62 (1969). The decline in
duration of stay in English hospitals is described in an address by Aubrey Lewis at the First
International Congress of Neuro-psychopharmacology, in NEURO-PSYCHOPHARMACOLOGY:
PROCEEDINGS OF THE FIRST CONGRESS OF THE INTERNATIONAL CONGRESS OF NEURO-
PSYCHOPHARMACOLOGY 207-12 (P. Bradley, P. Deniker, & C. Raducco-Thomas eds. 1958). A
description of the increasing rate of discharge at a United States hospital between 1947 and
1958 can be found in R. CHITTrICK, G. BROOKS, & W. DEANE, VERMONT PROJECT FOR THE
REHABILITATION OF CHRONIC SCHIZOPHRENIC PATIENTS: PROGRESS REPORT (1959).
2 See generally L. BELLAK, HANDBOOK OF COMMUNITY PSYCHIATRY AND COMMUNITY
MENTAL HEALTH (1964).
'3 See generally A. DEUTSCH, supra note 4; E. GOFFMAN, supra note 4, at 12-74.
24 Statement of Harry Solomon, quoted in Robitscher, Implementing the Rights of the
Mentally Disabled: Judicial,Legislative and Psychiatric Action, in MEDICAL, MORAL AND
LEGAL ISSUES IN MENTAL HEALTH CARE 145, 146 (F. Ayd ed. 1975).
19821 LIMITS OF LIBERTY
tionalized. ''2 5 Thus the institution itself was exposed as being

antitherapeutic.
While expos6s of institutional conditions and effects were highly
effective and undoubtedly contributed to the movement for
change, reformers are most effective when conditions are otherwise
ripe for change. Previous generations of reformers had described
the horrifying conditions in institutions and insisted that "the in-
mates of an asylum... are in point of fact in a prison."26 They too
had asked whether "a treatment which would be injurious to a
'27 But public
sane mind could tend to restore a deranged one?
opinion resisted the urgings of these past reformers, and their ad-
vice was ignored. While modern advocates of deinstitutionalization
played an important role, it is probable that their demands were
well received because other social conditions made deinstitutional-
ization a viable reform.
3. Economic Motives
In the first half of the twentieth century, the number of patients
in public mental hospitals increased relentlessly. State hospitals
became grossly overcrowded, 28 and many existing institutions were
in an advanced state of physical decay. 29 Had the upward spiral
continued, new and costly facilities would have been required, and
mental health expenditures would have constituted an ever in-
creasing proportion of the state budget. Fortuitously, in the late
1950's and 1960's, while admissions continued to increase,30 inpa-
E. GOFFMAN, supra note 4. See text accompanying notes 103-17 infra.
ANONYMOUS, ON THE PRESENT STATE OF LUNATIC ASYLUMS: WITH SUGGESTIONS FOR
THEIR IMPROVEMENT 16 (1839), quoted in A. SCULL, supra note 6, at 108.
27 Id. at 39, quoted in A. SCULL, supra note 6, at 109. Scull states that "with due defer-
ence to the claims of sociologists convinced that understanding of society waits on advances
in their peculiar discipline, recognition of the baneful effects of [institutions] emerged early
in the history of the asylum and took sophisticated forms." A. SCULL, supra note 6, at 104.
23 By 1955, the New York state system officially was short 23,000 beds and suffered
from an overcrowding of approximately 33%. Other states faced similar problems. A. SCULL,
supra note 6, at 66; J. SWAZEY, CHLORPROMAZINE IN PSYCHIATRY: A STUDY OF THERAPEUTIC
INNOVATION 22 (1974).
29 See E. BARDACH, THE SKILL FACTOR IN POLITICS 27-30 (1972); K. JoNES, A HISTORY OF
THE MENTAL HEALTH SERvICEs 306-40 (1972).
'o Admissions increased from 178,000 in, 1955 to a peak of 390,000 in 1972, although a
large proportion were readmissions. Bassuk & Gerson, Deinstitutionalizationand Mental
tient populations began to decline. As they did so, states canceled

plans to construct new hospital facilities. 3 1 These decisions brought
about a great cost savings, and the continuing decrease in inpatient
services has been accompanied by a significant reduction in the
percentage of state funds allocated to public mental hospitals.32
Andrew Scull, among others, has argued that these economic fac-
tors are the primary explanation for deinstitutionalization
-numbers of patients were increasing, hospitals were becoming
costlier to run, and something had to be done.3 3 Moreover, with the
rise of the welfare state, patients whose inability to support them-
selves would formerly have mandated their continued hospitaliza-
tion now could be released and receive welfare payments, disability
benefits, or other federal aid.34 Once state administrators and fiscal
conservatives realized that deinstitutionalization would save
money, it became the ideal social reform: "it permitted liberal poli-
ticians to free mental patients, and at the same time allowed con-
35
servative politicians to save millions of dollars. The view that
deinstitutionalization is best understood as an economic policy has
been criticized as an overly cynical one, and one which ignores the
importance of humanitarian and civil libertarian factors in social
change."6 But whether or not economic motives were the primary
impetus for deinstitutionalization, they clearly played a critical
role.
Health Services, 238 SciENTiFIc AM. 46, 49 (1978).
31 Brill & Patton, Analysis of PopulationReduction in New York State Mental Hospi-
tals during the FirstFour Years of Large-Scale Therapy with PsychotropicDrugs, 116 AM.
J. PSYCHATRY 495, 495 (1959).
32A. SCULL, supra note 6, at 146.
" See id. See generally Rose, DecipheringDeinstitutionalization:Complexities in Pol-
icy and Program Analysis, 57 MLBANK MEMORiAL FUND Q. 429 (1979).
Changes in Social Security laws in the late 1950's allowed persons released from state
institutions and placed in private "convalescent homes" to collect Social Security. Other
benefits soon became available. See text accompanying notes 43-52 infra.
35Clark, In Defense of Deinstitutionalization,57 MLBANK MEMoRIAL FUND Q. 461, 468
(1979).
38 Kaplan, State Control of Deviant Behavior: A Critical Essay on Scull's Critique of
Community Treatment and Deinstitutionalization,20 ARiz. L. REV. 189, 203-06; Clark,
supra note 35, at 468. Clark notes that early advocates of deinstitutionalization went out of
their way to convince state budget agencies that there were fiscal as well as humane incen-
tives for depopulating state institutions. Id., citing Goodman, The Constitution v. the
Snake Pit, N.Y. Times, Mar. 17, 1974, § 6 (magazine), at 22.
B. Legislative and Judicial Developments Contributing to

Deinstitutionalization
Once deinstitutionalization became a recognized social policy,
legislatures acted to aid and encourage it. For example, in 1963,
Congress adopted the Mental Retardation Facilities and Commu-
nity Mental Health Centers Construction Act,3" which represented
the first comprehensive federal commitment to developing commu-
nity residences and programs for the mentally retarded and men-
tally ill. Under this act, community mental health centers
(CMHC's) qualified for federal funding if they offered certain ser-
vices, including outpatient and inpatient care, emergency aid, tran-
sitional care and follow-up, and treatment for alcohol and drug
abuse.38 Such centers served a growing number of mental patients
in the community. 39 Other federal40 and state41 legislation has-like-
wise emphasized and provided incentives for community care. Al-
though it generally is agreed that community mental health cen-
ters have fallen short of their promise,42 federally sponsored
incentives to establish such centers clearly contributed to the ac-
celeration and widespread acceptance of deinstitutionalization.
37 Pub. L. No. 88-164, 77 Stat. 282 (1963), repealed by Pub. L. No. 97-35, §
902(e)(2)(B), 95 Stat. 560 (1981).
38 42 U.S.C. § 2689(b)(1) (Supp. II 1978), repealed by Pub. L. No. 97-35, § 902(e)(2)(B),
95 Stat. 560 (1981). Community mental health centers were established under a catchment
area concept in which each center was responsible for assuring that mental health services
were available to persons in its area. GAO REPORT, supra note 12, at 68.
39 In 1978, the President's Commission on Mental Health noted that such centers ac-
counted for 25% of episodes of care provided for the mentally ill. 1 PRESIDENT'S COMMISSION
ON MENTAL HEALTH, REPORT TO THE PRESIDENT: MENTAL HEALTH IN AMERICA 17 (1978)
[hereinafter cited as 1 REPORT TO THE PRESIDENT].
40 See, e.g., Special Health Revenue Sharing Act of 1975, Pub. L. No. 94-63, 89 Stat.
304 (1975) (amended 1976, 1977, 1978, 1979, 1980, 1981); Community Mental Health Cen-
ters Amendments of 1975, Pub. L. No. 94-63, 89 Stat. 308 (1975), repialed by Pub. L. No.
97-35, § 902(e)(2)(B), 95 Stat. 560 (1981). See also Ewing, Health Planning and Deinstitu-
tionalization:Advocacy Within the Administrative Process, 31 STAN.'L. REV. 679, 681 n.10
(1979) (discusses additional legislation that has provided support or incentives for deinstitu-
tionalization); GAO REPORT, supra note 12, at 204-22 (summarizes federal legislation con-
tributing to deinstitutionalization).
41 See, e.g., Community Mental Health Services and Mental Retardation Centers Act,
N.Y. MENTAL HYG. LAW §§ 75.01-75.35 (McKinney 1978) (providing for establishment of
community mental health centers).
42 See GAO REPORT, supra note 12, at 67-80; 1 REPORT TO THE PRESIDENT, supra note
39, at 17-19.
Various federal aid programs which were not necessarily in-

tended to encourage deinstitutionalization nonetheless had that ef-
fect. In 1965, Medicaid 3 and Medicare" were enacted to provide
federal funding for health care for our nation's aged and poor.
Medicaid, which assists states in providing health and habilitative
services to the needy, has been one of the most important federal
programs affecting deinstitutionalization."5 While Medicaid does
not cover treatment for mental illness in a state mental hospital
for persons between twenty-one and sixty-five, 6 it will reimburse
up to seventy-eight percent of a mentally ill person's health care
,costs if he or she resides in a certified private facility such as a
nursing home.47 Thus, it is in a state's economic interest to transfer
mentally ill patients from state facilities to private nursing
homes.48 Medicare provides funds for treatment of the elderly and
persons who have been eligible for Social Security Disability Insur-
ance for a certain period. Medicare will pay for only 190 days of
care in a psychiatric hospital over a person's lifetime, although
there is no similar restriction on care for physical illness. 49 Other
federal programs, such as the Supplemental Security Income pro-
gram,50 have contributed to deinstitutionalization by providing a
minimally adequate income to disabled persons who return to the
4- 42 U.S.C. §§ 1396-1396i (1976 & Supp. IV 1980).

4" 42 U.S.C. §§ 1395-1395pp (1976 & Supp. IV 1980).
48 See GAO REPORT, supra note 12, at 81. The federal government reimburses the
states for between 50% and 78% of the allowable costs for providing such care to eligible
persons. Within certain limits, each state can define the extent of Medicaid benefits it will
provide and the classes of persons who will be eligible for various services. Id. at 82.
48 The 1965 Medicaid Act excluded state mental hospital patients except those over 65;
in 1972 the Act was amended to allow benefits to state hospital patients under 21. See id. at
82-83. There are no similar restrictions for care of retarded persons in state institutions for
the retarded.
47 42 U.S.C. § 1396d(a)(4), (a)(14), (a)(16), (a)(17), (h) (1976 & Supp. H 1978). See GAO
REPORT, supra note 12, at 82.
4' Clark, supra note 35, at 468-69. The number of nursing home residents with mental
disabilities has increased dramatically in recent years, according to a 1974 survey by the
National Center for Health Statistics which showed a 48% increase from 1969 to 1974. Rap-
son, The Right of the Mentally Ill to Receive Treatment in the Community, 16 COLUM. J.L.
& Soc. PROBS. 193, 214 n.88 (1980). See generally H. SASTmsmVAN, supra note 15, at 17-21.
4' See GAO REPORT, supra note 12, at 118-23, for a discussion of Medicare's somewhat
limited impact on deinstitutionalization.
50 42 U.S.C. §§ 1397-1397f (1976 & Supp. II 1978).
community. 51 Since mental patients could receive federal subsidies

for their cost of living in the community, states could save money
52
by discharging large numbers of patients from state hospitals.
Another development which helped accelerate the release of pa-
tients to the community was the advent of patients' rights advo-
cacy. In the 1960's and 1970's, public interest lawyers began to
challenge various mental health practices. A number of actions
were brought to enforce patients' "right-to-treatment," on the the-
ory that due process of law is violated if a person is deprived of
liberty for purposes of treatment but does not actually receive such
treatment.53 The first right-to-treatment suits were habeas corpus
actions seeking the alternative remedies of treatment or release for
individual patients;5 ' later suits were often class actions challeng-
ing institutional conditions and quality of care.5 5 Judicial decrees
in right-to-treatment cases often have mandated significant im-
provements in conditions and patient/staff ratios.5 Since improve-
ments in patient/staff ratios can be accomplished either by hiring
additional staff or by releasing patients, and since the right to
treatment is triggered by state confinement, institutions often re-
:1 See GAO REPORT, supra note 12, at 124-32.

2 See id. at 5-6, for a discussion of various studies comparing the cost of maintaining
patients in institutions versus the community. See also Rose, supra note 33, at 446-48
(1979).
8" This concept was first advanced by Morton Birnbaum in 1960. See generally Birn-
baum, The Right to Treatment, 46 A.B.A. J. 499 (1960).
" See, e.g., Rouse v. Cameron, 373 F.2d 451 (D.C. Cir. 1966) (right based on District of
Columbia statute, though dicta in the opinion suggested the possibility of a constitutional
basis).
" See, e.g., Wyatt v. Stickney, 325 F. Supp. 781 (M.D. Ala.), enforced, 334 F. Supp.
1341 (M.D. Ala. 1971), orders entered, 344 F. Supp. 373 (M.D. Ala.) and 344 F. Supp. 387
(M.D. Ala. 1972), rev'd in part sub nom. Wyatt v. Aderholt, 503 F.2d 1305 (5th Cir. 1974)
(right to treatment determined to exist for institutionalized mentally ill). The constitutional
right to treatment has not been accepted by the Supreme Court. In O'Connor v. Donaldson,
422 U.S. 563 (1975), however, the Court did state that involuntary confinement without
more (the "more" presumably meaning treatment) violates a nondangerous mentally ill per-
son's constitutional rights. Id. at 576. The derivation and ramifications of this right have
been discussed frequently; as of 1978 more than 50 law review articles had been written
about the right to treatment. 4 PRESDENT's COMMISSION ON MENTAL HEALTH, REPORT TO THE
PRESIDENT: MENTAL HEALTH IN AMERICA 1422 (1978).
" See, e.g., Wyatt v. Stickney, 325 F. Supp. 781 (M.D. Ala.), enforced, 334 F. Supp.
1341 (M.D. Ala. 1971), orders entered, 344 F. Supp. 373 (M.D. Ala.) and 344 F. Supp. 387
(M.D. Ala. 1972), rev'd in part sub nom. Wyatt v. Aderholt, 503 F.2d 1305 (5th Cir. 1974).
sponded to such suits by releasing large numbers of patients."

Federal courts also have held that patients have a right to re-
ceive treatment in the least restrictive environment that will
achieve the purposes of commitment.5 8 Although early cases such
as Lake v. Cameron,59 held merely that the hospital must assess
less restrictive placement possibilities before resorting to commit-
ment,6 0 in the 1975 case of Dixon v. Weinberger,"' the Federal Dis-
trict Court for the District of Columbia held that since patients
have a right to treatment in the least restrictive setting, states and
local governments must take steps to create and fully utilize com-
munity treatment programs."2 This clear judicial preference for
community treatment also contributed to the widespread and
rapid implementation of deinstitutionalization in the 1970's.
Patients' rights advocates also have challenged standards and
procedures for involuntary commitment.6 In cases such as Lessard
v. Schmidt,6 4 courts have analogized civil commitment to criminal
confinement and deemed it constitutionally defective unless it in-
corporates due process protections such as notice to the alleged pa-
tient of the reasons asserted for confinement, a right to counsel, a
right to a jury trial, and consideration of less restrictive alterna-
57 See Robitscher, Moving Patients Out of Hospitals-In Whose Interest? in STATE

MENTAL HosprrALS: WHAT HAPPENS WHEN THEY CLOSE? 141, 148, 168 (P. Ahmed & S. Plog
eds. 1976) [hereinafter cited as STATE MENrTAL HoSPrTALS].
" Wyatt v. Stickney, 344 F. Supp. 373, 379 (M.D. Ala.), enforced, 334 F. Supp. 1341
(M.D. Ala. 1971), orders entered, 344 F. Supp. 373 (M.D. Ala.) and 344 F. Supp. 387 (M.D.
Ala. 1972), rev'd in part sub nom. Wyatt v. Aderholt, 503 F.2d 1305 (5th Cir. 1974).
5' 364 F.2d 657 (D.C. Cir. 1966) (holding based on District of Columbia Hospitalization
of the Mentally Ill Act, 21 D.C. CODE ANN. §§ 501-591 (Supp. V 1966) (currently codified at
21 D.C. CODE ANN. §§ 501-592 (1981)).
60 Ironically, on remand it was determined that no appropriate less restrictive alterna-
tives existed, so Mrs. Lake was retained in the institution. Lake v. Cameron, 267 F. Supp.
155 (D.D.C. 1967).
61 405 F. Supp. 974 (D.D.C. 1975) (right to treatment in the least restrictive setting
based on statutory grounds).
" See also cases discussed in text accompanying notes 161-66 infra.
'3See generally Note, Developments in the Law-Civil Commitment of the Mentally
Ill, 87 HARv. L. REv. 1190 (1974).
" 349 F. Supp. 1078 (E.D. Wis. 1972), vacated, 414 U.S. 473 (1974), modified, 379 F.
Supp. 1376 (E.D. Wis. 1974), vacated and remanded, 421 U.S. 957 (1975), prior judgment
reinstated, 413 F. Supp. 1318 (E.D. Wis. 1976).
tives.6 5 Judicial decisions and statutes have reduced the length of

time a person can be involuntarily confined without a full-blown
commitment hearing.66 These restrictions on involuntary confine-
ment have likewise contributed to deinstitutionalization.67
III. THE FAILURES OF DEINSTITUTIONALIZATION
It is abundantly clear that deinstitutionalization has failed to

live up to its initial promise. Although it has resulted in the release
of many patients from large, impersonal institutions where they
were "warehoused," and has improved the lot of many such per-
sons, the "community" to which many patients are released is a
large and hostile metropolis, and the "treatment" which they re-
ceive is often nothing more than a renewable prescription for tran-
quilizing drugs.68 Deinstitutionalization has been described as a
policy which offers former patients "a quart jar of valium and a
shopping bag" and sends them out to the street.69 Many patients,
whether they have gone to nursing homes, halfway houses, welfare
hotels, or to the streets, are abused and neglected in their new
"homes" just as they were in the public hospitals from whence
they came.
A. Conditions in Community Facilities

Large numbers of mentally ill persons of all ages now reside in
private nursing homes.7 0 While some such establishments provide
349 F. Supp. at 1084-93.

See, e.g., id.; CAL. WELF. & INST. CODE § 5304 (West Supp. 1982).
' Studies have shown, for example, that chances of being involuntarily confined de-
crease when the person is represented by counsel. See Wenger & Fletcher, The Effect of
Legal Counsel on Admissions to a State Mental Hospital: A Confrontation of Professions,
10 J. HEALTH & Soc. BEHAv. 66 (1969). This is particularly true if counsel takes a strong
adversarial role in representing the person being committed. See generally Note, The Role
of Counsel in the Civil Commitment Process:A Theoretical Framework, 84 YALE L.J. 1540
(1975).
s See GAO REPORT, supra note 12, at 17.
" Community Support for Mental Patients:Hearings on Programsin the Community
for the ChronicallyMentally Ill Adults; State and Local Efforts to Make Such Care Possi-
ble, and the Barriers Which Inhibit Such Care Before the Subcomm. on Health and the
Environment of the House Committee on Interstate and Foreign Commerce, 96th Cong.,
1st Sess. 26 (1979) (remarks of Congresswoman Barbara Mikulski).
70 See GAO REPORT, supra note 12, at 10-11. While the percentage of Americans living
high quality care to patients, many nursing homes are large and
impersonal, and provide little or nothing in the way of therapy.7 '
They usually are run by private operators, some of whom tend to
maximize profits by providing inadequate food, shelter, and ser-
vices.7s Unscrupulous operators of such homes can readily exploit
their vulnerable clients: many nursing home patients live in
squalid, filthy conditions, abused, ignored, and drugged into
73
passivity.
Other types of alternative facilities for the mentally ill have sim-
ilar problems. Adult group homes, board and care homes, halfway
houses, and other community facilities have been criticized for pro-
74
viding substandard living conditions and inadequate treatment.
Frequently such homes are unlicensed and located within the most
decayed neighborhoods and cities.75 Shunned and victimized by re-
sidents of the community, ex-patients in these new community in-
stitutions 6 often are no better off than they were in their former
in institutions of all types has remained steady at 1%, from 1950 to 1970 the proportion of
this number residing in nursing homes rose from 19% to 44%, while the proportion in state
hospitals fell from 39% to 20%. N. KRAMER, PSYCHIATRIC SERVICES AND THE CHANGING IN-
STITUTIONAL SCENE (1975). Medicaid reimbursement is available to nursing homes treating
the mentally ill as long as the individual home does not have such a high proportion of
mental patients that it is reclassified as a facility for the mentally ill. In 1977, nursing homes
received over 50% of the total Medicaid funds used for mental health care. 1 REPORT TO THE
PRESIDENT, supra note 39, at 32.
71 GAO REPORT, supra note 12, at 10-16. Few homes provide activities for patients
other than watching television, and qualified staff are seldom available. H. SANrmESTEVAN,
supra note 15, at 20.
7' See Regan, When Nursing Home Patients Complain: The Ombudsman or the Pa-
tient Advocate, 65 GEo. L.J. 691 (1977). In Chicago, a nursing home operator told Senate
investigators that he made a profit of $185,000 a year while spending only 54t a day per
patient for food. H. SANTrEsTvAN, supra note 15, at 20.
" See H. SANTIESTEvAN, supra note 15, at 17-21.
74 See DEPUTY ATTORNEY GENERAL FOR THE STATE OF NEW YORK, PRIVATE PROPRIETARY
HOMES FOR ADuLTs (1970); H. SANTESTEvAN, supra note 15, at 28-33; Herman, Mental Pa-
tient Release ProgramLeaves Many to Face HarshFate, N.Y. Times, Nov. 18, 1979, § 1, at
1, col. 5.
7' Zoning in residential neighborhoods often bars group homes, and community mem-
bers frequently oppose the establishment of such homes in their neighborhoods. For a dis-
cussion of tactics used to overcome such restrictions, see Lippincott, "A Sanctuaryfor Peo-
ple". Strategies for Overcoming Zoning Restrictions on Community Homes for Retarded
People, 31 STAN. L. REV. 767 (1979).
" The process of putting patients into community facilities that are large and imper-
sonal has been sometimes called "reinstitutionalization." GAO REPORT, supra note 12, at 16.
quarters.77
Community mental health centers also have failed to solve the
problem. They have been criticized for failing to provide adequate
services and ignoring the chronically ill patients who need them
the most.7 8 Although such centers perform a needed function and
are a step in the right direction, they generally have little or no
connection with state hospitals and therefore do not provide con-
tinuity of care
79
for state hospital patients being released to the
community.
B. Welfare Hotels in the Community

Many discharged patients are not placed in alternative facilities
which, at least theoretically, provide care. Rather, large numbers of
them cluster in dreary single residence occupancy hotels (SRO's)
or welfare hotels, which have become "mini-institutions." In New
7 This is not to imply that there are no adequate community programs or facilities.
See, e.g., Gudeman, Dickey, Rood, Nettman & Grinspoon, Alternative to the Back Ward:
The Quarterway House, 32 Hosp. & COMMUNITY PsYcHATRY 330 (1981) (describes the
Quarterway House of Massachusetts Mental Health Center, a small residential program for
chronic patients formerly considered unplaceable); Sandall, Community Alternatives in
Mental Health Care, in PAPER VICTORIEs AND HARD REALrrms: THE IMPLEMENTATION OF THE
LEGAL AND CONSTITUTIONAL RIGHTS OF THE MENTALLY DisABLED 23 (V. Bradley & G. Clark
eds. 1976) (describes programs such as the St. Louis Community Homes Program and the
Madison, Wisconsin "Training in Community Living" Program).
78 Community mental health centers often cater to persons who are not severely ill
and
who are not candidates for hospitalization. GAO REPORT, supra note 12, at 73. Such centers
may exclude indigent patients or the most severely disturbed. See generally F. CHu & S.
TROTTER, THE MAnNEss ESTABLISHMENT: RALPH NADER'S STUDY GRoup REPORT ON THE NA-
TIONAL INSTrruTE OF MENTAL HEALTH (1974).
79 See GAO REPORT, supra note 12, at 67-80. The report notes that the lack of a formal
link between community mental health centers and the public mental hospital system hin-
dered the goal of providing a coordinated system of care for the mentally ill. Id. at 72. It has
been noted that "most community mental health centers have little or nothing to do with
state mental hospitals. Discharged patients rarely venture into community centers, and the
centers do even less to search out and serve them." Mental Health Systems Act: Hearings
on H.R. 4156 Before the Subcomm. on Health and the Environment of the House Comm.
on Interstate and Foreign Commerce, 96th Cong., 1st Sess. 94 (1970) (statement of Anthony
P. Carnevale on behalf of the American Federation of State, County, and Municipal Em-
ployees). Again, some centers do provide a wide range of services and care for chronically ill
former state hospital patients. See, e.g., Shore, Alternatives to HospitalizationDeveloped
by An UrbanMental Health Center. An Overview, 32 HosP. & CoMMuNITY PSYcHIATRY 323
(1981).
York City, anywhere from 10,000 to 20,000 discharged state psychi-

atric patients live in SRO's, and on the upper west side of Manhat-
tan alone, the resident population of 3,000 chronically mentally ill
men and women rivals the most populated state hospital."0 Sub-
standard living conditions are the rule in such residences. Their
inhabitants maintain lonely and isolated existences "little different
from that in the state hospital; that is, eating (with encouragement
at times), sleeping, and minimally maintaining personal hygiene."8 1
Such released patients, like those in group homes or nursing
homes, are easy victims of crime or exploitation in the deteriorat-
ing neighborhoods to which they are relegated.
Released patients left to fend for themselves may be unable to

take advantage of the services for which they are eligible because
such services are not organized in any accessible fashion.8 2 In insti-
tutions, patients' food, clothing, shelter, medical, and psychiatric
needs were attended to, albeit in an inadequate manner, conse-
quently, "[t]o expect patients with major ego deficits and residual
dysfunctioning, without families and social networks, to suddenly
be able to obtain for themselves the professional and custodial ser-
vices they formerly took for granted in a total institution seems the
stuff of sheer fantasy."83
Patients released to the community frequently fall victim to the
80 COUNTRY ASYLUMS, supra note 1, at 28. Ironically, many such buildings are being
converted to residences for the middle and upper classes, thereby contributing to the rise in
homelessness. See PRIVATE LivEs, supra note 8, at 32.
SI Cohen, Sichel, & Berger, The Use of a Mid-ManhattanHotel as a Support System,
13 COMMUNrrY MENTAL HEALTH J. 76, 82 (1977). The authors note that placements in single
residence occupancy hotels can be beneficial if some services are provided. For example, in
New York City, a few SRO's sponsor on-site community support programs which provide
hot lunches, counseling, medication, and recreational opportunities, which can greatly bene-
fit residents. See id. at 77. Unfortunately this is the exception rather than the rule.
82 GAO REPORT, supra note 12, at 23-25. According to one commentator:
The constellation of mental health care facilities and programs in our communi-
ties is not a "system" in the meaningful sense of the term. At most it is a grouping
of functionally related but loosely linked sub-systems: federal, state, and local;
public and private; state hospitals and community health centers; residential and
non-residential.
Rapson, supra note 48, at 211.
1- Talbott, Deinstitutionalization:Avoiding the Disasters of the Past, 30 HosP. &
COMMUNITY PSYCHIATRY 621, 622 (1979).
"revolving door" syndrome, moving to dilapidated hotels or resi-

dences, relapsing, and then being rehospitalized, only to begin the
cycle over again.8 4 Although such patients spend fewer total days
in hospitals, they may account for many more admissions and
readmissions. 5 Thus the chronically ill patient often moves from
one inadequate environment to the next, the net result being that
what has been achieved is not deinstitutionalization but "transin-
stitutionalization" with the patient's locus of living and care trans-
ferred "from a single lousy institution to multiple wretched
ones."8' 6
C. Total Failure - Homelessness
Some former patients are not even so fortunate as to have a

dirty room in a crumbling SRO in which to live. Mental patients
who have been evicted from their SRO, or have in some other way
"fallen between the cracks," and failed to negotiate the bureau-
cratic requirements for receiving financial assistance may wind up
literally on the streets. It has been estimated that in New York
City alone, approximately 30,000 homeless men sleep on doorsteps,
unoccupied benches, heating ducts, or other such places. The New
York City subway system has been called "the largest SRO" in ex-
istence. s7 Large numbers of the homeless are mentally ill,88 and
they are without a doubt the ultimate victims of our carelessly en-
acted mental health reforms. Such persons frequently are preyed
upon by criminals or the violently disturbed, and they die in dis-
84 H. SANTIESTEVAN, supra note 15, at 32.

'5Talbott, supra note 83, at 622, citing Bachrach, A Conceptual Approach to Deinsti-
tutionalization, 29 Hosp. & COMMUNrrY PSYCHIATRY 573 (1978) and Talbott, Stopping the
Revolving Door: A Study of Readmissions to a State Hospital, 48 PsYcHTRmc Q. 159
(1974). See GAO REPORT, supra note 12, at 22 (readmissions account for an increasingly
large proportion of admissions to public hospitals).
0' Talbott, supra note 83, at 622 (1979).
87Altman, Release of Mentally Ill Spurring Doubts, N.Y. Times, Nov. 20, 1979, at B1,
col.2, B4, col. 3. See PRIvATE LIvEs, supra note 8,at 20-21.
" See CoUNTRY ASYLUMS, supra note 1, at 30-31. A study at the New York City Men's
Shelter in 1976 found that nearly 50% of the men sheltered on the night of the study exhib-
ited overt mental illness, and a study at a shelter in May 1980 found 70% of the inmates to
be mentally ill. Plaintiff's Trial Memorandum at 11-12, Callahan v. Carey, No. 42582/79
(N.Y. Sup. Ct., N.Y. Cty. Aug. 26, 1981). See text accompanying notes 185-97 infra.
proportionate numbers.8 9 Some incidents gain notoriety, such as

the mentally ill young Vassar graduate who lived at Union Station
in Washington, was not committed because she was not dangerous,
and was soon found brutally stabbed near her "home." 90 Many
more such incidents go unreported because no one cares.9 1
IV. REASONS FOR THE FAILURES
In one sense, the reason deinstitutionalization has failed is sim-

ple and obvious-when mental patients were released to the com-
munity, there were virtually no adequate alternative facilities in
which to care for them and few were subsequently created. Good
mental health care, whether in institutions or community facilities,
is costly, and neither federal, state, nor local governments ex-
pended the funds necessary to establish needed community alter-
natives. When it seems so clear today that deinstitutionalization
can improve the lives of the mentally ill only if adequate commu-
nity care is actually provided, why did politicians, legal advocates,
and mental health planners so vigorously promote deinstitutional-
ization without first ensuring that such care would be available?
A number of reasons have been suggested. First, there was no
planning either before or, to a large extent, during deinstitutional-
ization, partly because it did not begin as a policy but simply as an
unarticulated, unexplained process.9 2 Even after it became a de-
fined goal of the federal government, health planners and politi-
cians frequently assumed that when patients were released from
state hospitals, communities would develop alternatives. 3 How-
89 See Plaintiff's Trial Memorandum at 13, Callahan v. Carey, No. 42582/79 (N.Y. Sup.
Ct., N.Y. Cty. Aug. 26, 1981) (describing the poor physical health of many homeless men).
" See Hodge, Murder Victim's Last Years Were a Confused Call for Help, Washing-
ton Post, Mar. 19, 1973, at 1, col. 1, discussed in Robitscher, Moving Patients out of Hospi-
tals-In Whose Interest? in STATE MENTAL HosPrrALS, supra note 57, at 158-59.
91 Mr. Callahan, the named plaintiff in a New York case on behalf of the homeless, was
found dead in October 1980 on a Bowery street at age 54. Plaintiff's Trial Memorandum at
1, Callahan v. Carey, No. 42582/79 (N.Y. Sup. Ct., N.Y. Cty. Aug. 26, 1981). The New York
medical examiner listed natural causes as the cause of death. Conversation with Robert M.
Hayes, plaintiff's attorney in Callahan.
92 See Talbott, supra note 83, at 622.
93 Id., citing Cumming, Screening of Admissions, Memorandum No. 68-27, N.Y. STATE
DEP'T MENTAL HYGIENE (1968), and noting that over a decade after the beginning of deinsti-
ever, local officials often simultaneously assumed that federal so-

cial welfare programs would provide sufficient care for the former
patients. One writer has stated that deinstitutionalization was an
acceleration of the trend to transfer financial responsibility for the
mentally ill from state mental health departments to the social
welfare system and that the present crisis of abandonment has
arisen because "no similar transfer of responsibility for their care
and treatment has taken place. ' 94
Moreover, the services that are available for released patients
seldom are provided in any organized, systematic manner. Deinsti-
tutionalization has revealed the extent to which our mental health
"delivery system" is not a system at all but a "non-system. ' 95 This
lack of organization prevents former patients who are incapable of
negotiating the various bureaucratic hurdles from obtaining neces-
sary services in the community.
It also has been suggested that the absence of a societal consen-
sus about the best method for dealing with the chronically men-
tally ill patient contributed to the failures of deinstitutionaliza-
tion,9 e because without community support deinstitutionalization
could not be implemented effectively. For example, efforts to es-
tablish group homes in residential areas often were thwarted by
zoning laws and organizations of residents opposing such facili-
ties, 97 thereby contributing to the concentration of mental patients
in deteriorating neighborhoods.
The problems have been intensified by rigid funding policies
which disfavor chronic illness and make it difficult for money to
tutionalization, planners were still expecting that the release of patients would force com-
munities to develop alternatives.
" Gruenberg & Archer, Abandonment of Responsibility for the Seriously Mentally Ill,
57 MBANK MEMoRIAL FuND Q. 485, 498 (1979).
95 Talbott, supra note 83, at 623. See generally GAO REPORT, supra note 12 (describing
lack of organization and making recommendations for improving the coordination of
services).
" Scherl & Macht, Deinstitutionalizationin the Absence of Consensus, 30 Hosp. &
COMMUNrrY PsYcHiATRY 599 (1979).
97 See Lippincott, "A Sanctuary for People". Strategies for Overcoming Zoning Re-
strictions on Community Homes for Retarded Persons, 31 STAN. L. REv. 767 (1979); Kres-
sel, The Community Residence Movement: Land Use Conflicts and PlanningImperatives,
5 N.Y.U. REv. L. & Soc. CHANGE 137 (1975).
follow patients from institutions to community settings.9s Despite

vast decreases in hospital populations, most hospitals remain
open. 99 Politicians are loath to close even under-utilized hospitals,
since many such hospitals are located in isolated communities
whose economies depend upon the hospital, and because unionized
personnel at such facilities strongly oppose any closing or reduc-
tion in staff.100 Thus, savings from deinstitutionalization have not
been fully realized, and funds have not been made available for
community care.' 0 '
While deinstitutionalization's failures do not indicate a problem

with the policy itself, they do show that it was implemented in a
disorganized and unrealistic manner. When deinstitutionalization
has been undertaken more responsibly, with community alterna-
02
tives developed first, it has been a generally positive experience.1
11 According to Talbott:
Deinstitutionalization also revealed the rank discrimination against long-term care
and chronic illness by governmental and private third-party reimbursers, by hous-
ing agencies, under labor laws, and so forth. It revealed how inflexible our funding
structure is, and how vested are the interests that constitute the mental health
structure-so that, try as one might, it was impossible to have money follow pa-
tients from state to community settings. It also pointed up the intolerable lack of
cooperation both between hospitals and agencies in the community and between
agencies up the administrative ladders to Washington.
Talbott, supra note 83, at 623.
99 No New York hospital has been closed t6 date, although the New York state hospital
population has declined by over 60,000 since 1965. Conversation with Cindy Friedmutter,
counsel, Office of the President of the New York City Council, Jan. 12, 1982. See also A.
SCULL, supra note 6, at 71 (noting that as of 1977, although the number of mental patients
in state hospitals had fallen by more than 50%, only 14 of the more than 300 state hospitals
had been closed).
100 See A. SCULL, supra note 6, at 71-73.
101 Although releasing patients saves some money, failure to close under-utilized hospi-
tals prevents the full savings from being realized since hospitals have high fixed costs which
bear little direct relationship to the number of patients. Maintenance of buildings and
grounds is costly, and security guards, laundry, maintenance, and clerical workers are re-
quired regardless of the patient load. COUNTRY AsYLuMs, supra note 1, at 18-20.
102 See Lafave, Grunberg, Woodhouse, & Barrington, Is the Community Ready, in
STATE MENTAL HOsPITALs, supra note 57, at 177, for a description of the closing of the state
hospital in the southern part of Saskatchewan. The article states that the program was suc-
cessful because the administrators realized that "careful development of community pro-
grams must precede rapid rates of discharge." Id. at 184. The authors note that the Sas-
katchewan program did not simply dump large numbers of unprepared patients on
communities ill-equipped to receive them, but rather achieved a gradual decrease in patient
However, without disputing that deinstitutionalization is desirable

if properly implemented, we can ask whether the psychological, so-
ciological, or political theories of its proponents have contributed
to its failures in this country.
V. THEORETICAL CONTRIBUTIONS TO THE FAILURE OF

DEINSTITUTIONALIZATION
As discussed previously, sociological expos6s of institutional con-

ditions and the effects of confinement, as well as the patients'
rights movement, contributed to professional disenchantment with
institutional care and to the movement toward deinstitutionaliza-
tion. This section will suggest that these forces also could have
contributed, albeit to a small extent, to deinstitutionalization's
failures. The underlying notion is that excessive reliance upon the
influential sociological theory suggesting that behavior is deviant
largely because society labels it as such, when combined with an
idealized view of the benefits of community care, could have led
adherents to underestimate both the need to establish adequate
community facilities before releasing patients and the difficulty of
this task. Moreover, to obtain support for deinstitutionalization
from fiscally conservative politicians, advocates emphasized its
cost-saving potential, which made the movement ripe for exploita-
tion by fiscal conservatives uninterested in patient care. With re-
gard to the patients' rights movement, this section will suggest
that advocates of patients' rights have emphasized liberty over ser-
vices to such an extent that the release of patients has been re-
garded as a victory even when adequate community facilities were
not available. Since judicial decrees can safeguard liberty far more
easily than they can create new entitlements to services, patients
have obtained liberty, but not community care.
A. The "Labeled" Deviant

Proponents of deinstitutionalization relied not only on expos6s
of the hideous conditions in mental hospitals, but also on sociologi-
cal studies suggesting that institutions were a contributing cause,
population through the provision of alternative community services. Id. at 190.

rather than a cure, of their inmates' pathology.0 3 This argument,

presented in a compelling form by Erving Goffman, is that pa-
tients' regressed, dependent, and passive behavior is not caused
solely by their illness, but is a predictable response to their condi-
tions of confinement. Deprivation of meaningful work and relation-
ships, combined with the artificial hospital routine and restric-
tions, creates behavior which is appropriate for an institution, but
not for the outside world. 10 4 Studies showing such behavioral ef-
fects not only in underfunded state hospitals, but also in university
research hospitals and exclusive private facilities, suggested that
the problem was inherent in the nature of "total institutions" and
could not be cured by improving institutional conditions. 10 5 The
conclusion was that "patients are infantile . . . because we infan-
tilize them" 106 and that "in the long run the abandonment of the
state hospitals might be one of the greatest humanitarian reforms
and the greatest financial economy ever achieved ....
Some critics took one step further the recognition that institu-
tional treatment produces institutionalized behavior and theorized
that mental illness is largely a function of society labeling a person
mentally ill and treating him differently. 108 One proponent of the
See generally E.GOFFMAN, supra note 4.

103
See generally R. BARTON, INSTITUTIONAL NEUROSIS (1966); E. GOFFMAN, supra note

204
4; Kantor & Gelineau, Making Chronic Schizophrenics, 53 MENTAL HYGIENE 54 (1969).
105See generally I.BELKNAP, HUMAN PROBLEMS OF A STATE MENTAL HOSPITAL (1956); A.
STANTON & M. SCHWARTZ, THE MENTAL HOSPITAL: A STUDY OF INSTITUTIONAL PARTICIPATION
IN PSYCHIATRIC ILLNESS AND TREATMENT (1954).
106Redlich, Forewordto W. CAUDILL, THE PSYCHIATRIC HOSPITAL AS A SMALL SOCIETY at
xi (1958).
11 I. BELKNAP, supra note 105, at 212.
108According to Howard Becker, an early theorist who analyzed deviance in this man-
ner: "[D]eviance is not a quality of the act the person commits, but rather a consequence of
the application by others of rules and sanctions to an 'offender.' The deviant is one to whom
the label has successfully been applied; deviant behavior is behavior that people so label."
H. BECKER, OTrsIERs: STUDIES IN THE SOCIOLOGY OF DEVIANCE 9 (1963). And according to
Thomas Scheff, another early proponent of the "labeling theory" of mental illness:
[M]ental illness may be more usefully considered to be a social status than a dis-
ease, since the symptoms of mental illness are vaguely defined and widely distrib-
uted, and the definition of behavior as symptomatic of mental illness is usually
dependent upon social rather than medical contingencies. Furthermore . . .the
status of the mental patient is more often an ascribed status, with conditions for
status entry and exit external to the patient, than an achieved status with condi-
tions for status entry dependent upon the patient's own behavior.
labeling theory, Thomas Scheff, suggests that just as persons who

violate explicit societal rules, such as the prohibition against steal-
ing, are labeled criminals, persons who violate our unexpressed,
but highly important social norms, are labeled mentally ill. Thus
"symptoms" of mental illness essentially are violations of implicit
social rules. 109 The labeling theory of mental illness contrasts with
the medical model, which assumes that mental illness, as its name
implies, is a disease caused by peculiarities in a person's genetic
makeup, biochemistry, or family relationships. 10 1 Scheff contends
that medical science, by viewing "mental illness" as a disease, le-

gitimizes the labeling of nonconformity as mental illness and the
stigma and deprivations stemming from this label.,
Labeling theory provides the important insights that society, by
labeling a person mentally ill, can affect his pathology, and that a
person confined in a mental hospital is likely to be perceived by
others as mentally ill and to accept his sick role. 112 The writings of
T. SCHEFF, BEING MENTALLY ILL 128-29 (1966). Scheff uses the term "status" in the sociolog-
ical sense of a socially acknowledged position in a group. See L. BROOM & P. SELZNICK,
SOCIOLOGY 42 (3d ed. 1963).
109 Scheff, Schizophrenia as Ideology, in LABELING MADNESS 5, 7 (T. Scheff ed. 1975).
Scheff presents his labeling theory of deviance, as applied to mental illness, as a series of
nine hypotheses:
(1) Residual rule breaking arises from fundamentally diverse sources (that is, or-
ganic, psychological, situations of stress, volitional acts of innovation or defiance).
(2) Relative to the rate of treated mental illness, the rate of unrecorded residual
rule breaking is extremely high.
(3) Most residual rule breaking is "denied" and is of transitory significance.
(4) Stereotyped imagery of mental disorder is learned in early childhood.
(5) The stereotypes of insanity are continually reaffirmed, inadvertently, in ordi-
nary social interaction.
(6) Labeled deviants may be rewarded for playing the stereotyped deviant role.
(7) Labeled deviants are punished when they attempt to return to conventional
roles.
(8) In the crisis occurring when a residual rule breaker is publicly labeled, the
deviant is highly suggestible and may accept the label.
(9) Among residual rule breakers, labeling is the single most important cause of
careers of residual deviance.
Id. at 9-10.
110 See generallyBIOLOGICAL BASES OF PSYCHIATRIC DISORDERS (A. Frazer & A. Winokur
eds. 1977) (a physiological approach); A. CHAPMAN, TEXTBOOK OF CLINICAL PSYCHIATRY (2d
ed. 1976) (an interpersonal approach).
1 Scheff, supra note 109, at 11-12. See also T. SCHEFF, supra note 108, at 169.
11 Sociologists have shown us how persons labeled mentally ill are treated differently
labeling theorists have performed the laudable function of showing

that long-term confinement, even in a good institution, can be seri-
ously antitherapeutic. Their writings have helped influence legisla-
tors to set stricter standards and procedures for involuntary com-
mitment, to restrict the duration of involuntary confinement, and
to support community care. 113
Labeling theory does not necessarily imply that persons are
mentally ill only because they are labeled as such. It does not ex-
plain why some individuals and not others violate societal norms
and therefore are labeled mentally ill.114 Many labeling theorists
specifically state that the theory is only a partial explanation, with
its own theoretical limitations, which provides a useful counter-
weight to the medical model but does not displace it.""' However,
by medical personnel and society. See, e.g., Rosenham, On Being Sane in Insane Places, in
LABELING MADNESS 54, 54-56 (T. Scheff ed. 1975). In Rosenham's famous study, sane per-
sons gained admission to mental hospitals by claiming that they were hearing voices. Upon
admission the "pseudo-patients" ceased simulating any symptoms of psychiatric abnormal-
ity. Their status as patients in the hospital clearly influenced hospital staff in the way they
treated the pseudo-patients. For example, often pseudo-patients would ask in a perfectly
normal manner, "Pardon me, Dr. X. Could you tell me when I am eligible for grounds privi-
leges?" The physician would reply, "Good morning. How are you today?" and would move
away without waiting for a response. Id. at 65. Also, behavior which would otherwise be
considered normal was interpreted as a sign of illness. For example, the pseudo-patients
took copious notes, and the nursing records of three of them contained the notation, "pa-
tient engages in writing behavior." Id. at 61.
213 Scheff, On Reason and Sanity: Some PoliticalImplicationsof Psychiatric Thought,
in LABELING MANESS 12, 17 n.8 (T. Scheff ed. 1975). See generally E. BARDACH, THE SKILL
FACTOR IN POLITICS: REPEALING THE MENTAL COMMIT4ENT LAWS IN CALIFORNIA (1972)
(describing the influence of the writings of labeling theorists upon the enactment of Califor-
nia's Lanterman-Petris-Short Act). Patients' rights advocates have likewise relied on the
fact that involuntary treatment of mentally ill persons causes such persons to be stigmatized
by being labeled as mentally ill. See Brief for Appellant, Addington v. Texas, 441 U.S. 418
(1979), reprinted in 1PRACTICING LAW INSTITUTE, LEGAL RIGHTS OF MENTALLY DISABLED
PERSONS 281, 289-93 (1979).
" Scheff notes that:
To be sure, some residual-rule violations are expressions of underlying physiologi-
cal processes: the hallucinations of the toxic psychoses and the delusions associ-
ated with general paresis, for example. Perhaps future research will identify fur-
ther physiological processes that lead to violations of residual rules.
Scheff, supra note 109, at 7.
I' Scheff states:
[T]he purpose of this theory is not to reject psychiatric and psychological formula-
tions in their totality. It is obvious that such formulations have served, and will
continue to serve, useful functions in theory and practice concerning mental ill-
labeling theory has been oversimplified and misused. Emphasizing

only the force of the label and ignoring possible psychological or
physiological causes of unusual behavior can lead to the conclusion
that persons are mentally ill only because society has labeled them
as such. When relied upon in this "rigid and caricatured" '116 form,
the theory implies that the plight of the mentally ill will be signifi-
cantly improved if only the label "mentally ill" and its societal im-
plications are eliminated. 11 7 If mental hospitals produce and per-
petuate pathology, and if persons are relegated to institutions
primarily because they have been labeled deviant by society, then
the simple solution is to release the patients and abolish the insti-
tutions. By implying that the label is the problem, this outlook
also obscures the difficulties former patients may have in coping
with community life and underestimates their need for continuing
care.
B. The Romanticized Community

Emphasis on the role of labeling often goes hand in hand with a
romanticization of the nature of today's "community" and its ben-
eficial effect on the mentally ill. In his critique of deinstitutional-
ization, Scull points out that after discussing the effects of institu-
tions upon their inmates, advocates of deinstitutionalization
attempted to conjure up "a mythical 'golden age': an innocent, ro-
bust society uncorrupted by bureaucracy, where neighbor helps
neighbor and families willingly minister to the needs of their own
troublesome members, while a benevolent and indulgent squirear-
chy looks on, always ready to lend a helping hand."1 18 Advocates
also implied that modern communities would readily accept and
care for various groups of persons who had been institutionalized,
ness. The author's purpose, rather, is to develop a model which will complement
the individual system models by providing a complete and explicit contrast.
T. SCHEFF, supra note 108, at 25. Scheff maintains that his purpose is to further scientific
progress through the dialectical process of proposing a theory which is an antithesis to the
currently prevailing one, in the hopes that a new synthesis will be achieved. Id. at 27.
,, Kaplan, supra note 36, at 198.
M1See generally A. SCULL, supra note 6, for a criticism of labeling theory as obscuring
the difficulties with deinstitutionalization and ignoring the importance of the cost cutting
motive in bringing about deinstitutionalization.
,,8 A. SCULL, supra note 6, at 43.
such as criminals, the mentally ill, the mentally retarded, and juve-
nile delinquents:
The institution as a means of coping with the problems of
specific sectors of our population seems at this point to have
run its course. Whether one is aged, below par intellectually
or emotionally, delinquent, alcoholic or drug-addicted, the
source-and the remedy-of the problem lie in the communi-
ties where such people come from. By bringing them back
into the community, by enlisting the good will and the desire
to serve, the ability to understand which is found in every
neighborhood, we shall meet the challenge which such groups
of persons present, and at the same time ease the financial
burden of their confinement in fixed institutions.119
Thus, in the community, with all that word's connotations of a
warm, caring group of neighbors and friends, the deviant mysteri-
ously would be reconstituted. 120
It is not unusual for the proponents of a policy to optimistically
overestimate its benefits, ease of implementation, and cost effec-
tiveness. However, in this case the inflated rhetoric may have con-
tributed to the current problems with deinstitutionalization by im-
plying that being in the community was per se therapeutic.
Advocates frequently suggested that "keeping [persons] out of in-
stitutions, even if the community is not geared to serve them, is all
to the good."121
' Such rhetoric obscured both the difficulties inher-
ent in establishing community facilities and the desperate need for
I" Alper, Forword to CLOSING CORRECTIONAL INSTITUTIONS at vii-viii (Y. Bakal ed. 1973)
[hereinafter cited as CLOSING CORRECTIONAL INSTITUTIONS]. Though the particular popula-
tion focused upon here was juvenile delinquents, the writer was clearly extending his con-
cept of the therapeutic nature of the community to other populations, such as the mentally
ill.
SOKaplan, supra note 36, at 205. The community that these persons were to reenter
sounded much more like Gheel, the Belgian town where the mentally disturbed are cared for
by families, than the upper west side of Manhattan or the south side of Chicago. See Du-
mont & Aldrich, Family Care After a Thousand Years-A Crisis in the Tradition of St.
Dympha, 119 AM. J. PSYCHIATRY 116 (1962) (describing the ancient tradition of community
care in Gheel). Even Scull's critics agree that this rehetoric about the community was in-
flated and unrealistic, and that Scull is at his best when debunking it. Kaplan, supra note
36, at 205.
"2 Foster, Youth Service Systems: New Criteria, in CLOSING CORRECTIONAL INSTITU-
TIONS, supra note 119, at 33.

such facilities. It also misrepresented the nature of the community

to which most ex-patients would return; had the "community care"
movement been called "subsistence in slums," there might have
been a more widespread recognition that mere release to the com-
munity would not be enough. Similarly, had advocates considered
the treatment that many of the mentally disturbed had received
back in the golden age before institutions, they might have ques-
tioned the wisdom of releasing patients first and creating commu-
nity programs afterwards. After all, the institution itself was a re-
form designed to protect the mentally ill from neglect and abuse in
122
the community.
Perhaps most important was the effect of exaggerated predic-
tions of financial savings, which won support for deinstitutionaliza-
tion from fiscal conservatives. As Scull notes:
The promise of such cost savings largely explains the curious
political alliance which has fostered and supported decarcera-
tion. Social policies which allegedly benefit the poorest and
most desperate segments of the community do not ordinarily
arouse particular enthusiasm among the so-called fiscal con-
servative. The goal of returning mental patients to the com-
munity is clearly an exception, for in addition to the liberal
adherents one might expect, it has attracted prominent,
sometimes decisive, support from their ranks.123
To predict some degree of savings was not necessarily unrealistic;
large institutions have high fixed costs, and if the inpatient popu-
lation had continued to increase, substantial expenditures to im-
prove existing structures and build new ones would have been re-
quired. But good care anywhere costs money, 24 and expenditures
for patients in inadequate state institutions had, of course, been
low. Although providing even slightly better care in the community
122 See Gruenberg & Archer, Abandonment of Responsibility for the Seriously Men-
tally III, 57 MLBANK MEMORIAL FUND Q. 485, 487-88 (1979). Ironically, nineteenth century
reformers had relied on humanitarianism and cost savings as reasons for building institu-
tions. See generally A. DEUTSCH, supra note 4.
" A. SCULL, supra note 6, at 147.
121See GAO REPORT, supra note 12, at 5-6, noting that various studies have shown
community care costing somewhat less than institutional care, while other studies have
shown the costs to be about the same.
was sure to be costly, its expense was often downplayed. Thus con-
servative politicians could support the release of patients as a cost
cutting measure while avoiding responsibility for providing com-
munity care. Meanwhile, advocates of deinstitutionalization
greeted the release of patients with enthusiasm, but, at least ini-
tially, ignored the fact that the care in the community also was
inadequate or nonexistent.
C. The Patients' Rights Movement

The pace of deinstitutionalization accelerated substantially in
the late 1960's and early 1970's. Between 1955 and 1965 hospital
populations decreased only from 559,000 to 475,200,125 but by 1976,
the number of inpatients had declined to 171,000.126 Among the
many reasons for this acceleration was the patients' rights move-
ment. As discussed previously, advocates of patients' rights suc-
cessfully challenged commitment standards and procedures, elimi-
nating many abuses and making involuntary commitment more
difficult. They won for involuntary patients the right to either re-
ceive treatment or be released, which made hospitalization more
costly and further reduced the ranks of inpatients. And they
achieved judicial recognition of the principle that patients should
be treated in the least restrictive setting, a tenet likewise favoring
noninstitutional care.
Within the ranks of patient advocates are those having a prima-
rily civil libertarian focus and those who focus on treatment or ser-
vices. Advocates with a predominantly civil libertarian orientation
emphasize due process restrictions on civil commitment, stricter
substantive standards for civil commitment, protection against
long-term confinement, and rights against forcible treatment
within institutions. 127 They may favor the elimination of involun-
125 A. SCULL, supra note 6, at 668.

126 Mental Health Systems Act: Hearings on H.R. 4156 Before the Subcomm. on
Health and Environment of the House Comm. on Interstate and Foreign Commerce, 96th
Cong., 1st Sess. 122 (1979) (material submitted for the record by the American Federation
of State, County, and Municipal Employees).
17 Major groups in the forefront of the civil libertarian approach include the American
Civil Liberties Union (ACLU) and the Mental Health Law Project. Wald & Friedman, The
Politics of Mental Health Advocacy in the United States, 1 INT'L J.L. & PSYCHIATRY 137,
tary treatment altogether and, in right-to-treatment cases, may

prefer the alternative remedy of release for many patients. Advo-
cates who emphasize services, on the other hand, also may seek
due process protections in the civil commitment process, but may
favor involuntary commitment under some circumstances. Their
emphasis, like that of consumer groups, is on obtaining more and
better services for the mentally disabled.1 28 In right-to-treatment
cases they may focus on improving hospital conditions rather than
obtaining patients' releases, and they may be more closely aligned
with mental health professionals.1 2 9 The two groups focus on two
distinct types of rights-rights to liberty, or option rights, and
rights to services, or welfare rights.13 0
The civil libertarian approach h'as been dominant among legal

advocates for various reasons. 1 ' As abuses of the civil commitment
process and mistreatment within institutions were exposed, respect
for psychiatric diagnosis, treatment, and authority declined. Em-
phasis on self-determination in all aspects of life increased. More-
over, since the civil libertarian approach seeks the kind of rights
against government that our Bill of Rights was designed to pro-
tect,132 such suits are more likely to win judicial approval than are
suits seeking services, which have typically met with little suc-
cess.23 3 The civil libertarian approach has helped mental patients
gain their liberty. But has it done this at the expense of their need
for care and services?
142 (1978).
128 Associations such as the Mental Health Association, the National Association for
Retarded Citizens, and various local ex-patient groups have organized to seek more and
better mental health services. Id. at 143.
121 Id. at 145.
130See Golding, The Concept of Rights, in Biosrrmcs AND HUMAN RIGHTS 44 (E.
Bandman & B. Bandman eds. 1978); Golding, Towards a Theory of Human Rights, 52
MONIST 521, 540-49 (1968).
131 See Klein, Mental Health Law: Legal Doctrine at the Crossroads,MENTAL HEALTH
LAW PROJECT SUMMARY OF ACTWTmS, Mar. 1976, at 7, 7.
18 Id. at 9.
133Id. See, e.g., Maher v. Roe, 432 U.S. 464 (1977) (no constitutional right to medical
treatment); Lindsey v. Normet, 405 U.S. 56 (1972) (no constitutional right to housing); Dan-
dridge v. Williams, 397 U.S. 471 (1970) (no fundamental right to welfare benefits).
1. Abolition of Civil Commitment
In the civil commitment area, there has been a sequence of cases
first seeking more rigorous due process procedures for civil com-
mitment, then seeking to limit involuntary confinement to persons
found dangerous to themselves or others, and then seeking to re-
quire an overt act or threat as proof of dangerousness.1 34 While
litigating for the Mental Health Law Project, Joel Klein wrote that
this sequence of cases in part has been intended to eradicate civil
commitment by making it extremely cumbersome and applicable
to only a narrow class of persons who could probably be handled
by the criminal justice system. 3 5 Similarly, it often has been noted
that right-to-treatment suits are sometimes brought partly to
render institutional confinement so costly that few patients will be
confined, forcibly or otherwise. 8 For example, in Wyatt v.
Stickney,137 service-oriented advocates straightforwardly desired
improvement in hospital conditions while civil libertarian advo-
cates initially feared that obtaining such improvements could have
the undesirable effect of legitimizing institutions and involuntary
confinement. 38 The compromise which allowed the litigation to
proceed has been described as follows:
The civil libertarians, aware that as a practical matter the
people of the United States were not ready to abandon the
13 See, e.g., Gross v. Pomerleau, 465 F. Supp. 1167, 1173 (D. Md. 1979) (procedures
that permit involuntary confinement of the mentally ill are unconstitutional if they fail to
define conduct or symptoms constituting mental illness); Lynch v. Baxley, 386 F. Supp. 378,
390 (M.D. Ala. 1974) (requiring proof of recent violent behavior); Lessard v. Schmidt, 349 F.
Supp. 1078 (E.D. Wis. 1972), vacated on other grounds, 414 U.S. 473 (1974), modified, 379
F. Supp. 1376 (E.D. Wis. 1974), vacated on other grounds, 421 U.S. 957 (1975), order rein-
stated on remand, 413 F. Supp. 1318 (E.D. Wis. 1976) (requiring various due process proce-
dures, proof beyond a reasonable doubt, and dangerousness as demonstrated by a recent
overt act).
" KLEIN, supra note 131, at 7-8.
1M6 See, e.g., Birnbaum, The Right-To-Treatment: Some Comments on Its Develop-
ment, in MEDICAL, MORAL AND LEGAL ISSUES IN MENTAL HEALTH CARE 97, 131-38 (F. Ayd ed.
1975); Ferleger & Boyd, Anti-Institutionalization:The Promise of the Pennhurst Case, 31
STAN. L. REV. 717, 723 (1979).
137 325 F. Supp. 781 (M.D. Ala.), enforced, 334 F. Supp. 1341 (M.D. Ala. 1971), orders
entered, 344 F. Supp. 373 (M.D. Ala.) and 344 F. Supp. 387 (M.D. Ala. 1972), rev'd in part
sub nom. Wyatt v. Aderholt, 503 F.2d 1305 (5th Cir. 1974). See notes 55-56 supra and ac-
companying text.
138 See Wald & Friedman, supra note 127, at 146.
civil commitment process, decided that forcing states to pro-

vide substantially more physical resources to institutionalized
persons could be justified as creating a disincentive to unnec-
essary institutionalization and would cut down on overuse of
commitment, albeit not eliminating it.139
It undoubtedly has become more difficult to commit people in-

voluntarily. In general, this has been an improvement because the
commitment power has been seriously abused. Opponents of all in-
voluntary confinement have a cogent intellectual position, in that
medical treatment typically requires consent, and their position is
bolstered by the vagaries of psychiatric diagnosis, 140 the inaccuracy
of predictions of dangerousness, 4 the ineffectiveness and dangers
of psychiatric treatment,1 42 and the stigmatizing effects of institu-
tionalization.14 3 But just as doctors have underestimated the seri-
ousness of the deprivation of liberty and the hazards of psychiatric
treatment, opponents of all involuntary confinement may underes-
timate the suffering that can result from the failure to treat.14 4 And
just as doctors may have overemphasized health, lawyers may have
overemphasized liberty, 4 5 and consequently ignored the needs of
239 Id.
140 See generally Ennis & Litwack, Psychiatry and the Presumption of Expertise:
FlippingCoins in the Courtroom, 62 CALIF. L. Rlv. 693 (1974) (discussing the weaknesses of
psychiatric evaluations of mental illness).
,41 See generally id.; Rubin, The Prediction of Dangerousness in Mentally Ill
Criminals, 72 ARCHIVEs GEN. PSYCHIATRY 397 (1972).
142 See generally Crane, Clinical Psychopharmacology in Its 20th Year, 181 SCIENCE
124 (1973); Dubose, Of the Parens PatriaeCommitment Power and Drug Treatment of
Schizophrenzia: Do the Benefits to the PatientJustify Involuntary Treatment? 60 MINN.
L. Rav. 1149, 1160-1209 (1976).
143See B. ENNIS, PRISONERS OF PSYCHIATRY-MENTAL PATIENTS, PSYCHIATRISTS AND THE
LAW 145-78 (1972); Armstrong, Conference Report-Stigma: Its Impact on the Mentally
11, 31 Howr. & COMMUNITY PSYCHIATRY 342 (1980).
'4 Some opponents of involuntary treatment tend to consider primarily the possible
legal consequences, such as crimes and suicide. For example, Eugene DuBose, in concluding
that the benefits of forceable treatment of schizophrenzia with antipsychotic drugs do not
justify the risks, measures the dangers of failure to treat only in terms of these legal conse-
quences. Dubose, supra note 142, at 1211.
145 Robert Plotkin states: "Inherent in this view of medical authority is the proposition
that 'health' and 'liberty' are distinct concepts. Under this tenet, only the trained medical
professional can adequately understand and deal with the 'complex human problem' of
health. To the contrary, 'liberty' includes the freedom to decide about one's health."
Plotkin, Limiting the Therapeutic Orgy: Mental Patients' Right to Refuse Treatment, 72
severely ill patients unable to recognize their need for treatment. 14"
Civil libertarians have argued that "the right to eat garbage or to
47
be a shopping bag lady is still a very important right,1 and they
are correct, if this sort of lifestyle is chosen with some degree of
competency. But the notion of a ,competent choice is complex, 14
and not all of the homeless mentally disturbed have competently
chosen to forego treatment. Opponents of all involuntary commit-
ment would do well to ask themselves whether the emphasis on
liberty does not sometimes lead to unacceptably great sacrifices of
health, safety, and well being.
2. Anti-Institutionalization
Some patients' rights advocates believe that not only should
there be no involuntary confinement, but that large state mental
hospitals should be eliminated. 149 Such advocates acknowledge
that anti-institutional sentiments "have found expression in suc-
cessful efforts to constitutionalize commitment procedures (reduc-
ing the risk of commitment) and to make incarcerating facilities
Nw. U.L. REV. 461, 463 (1977). Although Plotkin is right that liberty includes the freedom
to care for one's health, the concepts are nonetheless distinct. Combining them entirely sug-
gests that when, people are given their liberty they will be able to care for their health, and
ignores the reality that extremely poor mental health may undermine the value of a person's
liberty by making him or her unable to fulfill basic needs for food, clothing, and shelter. See
id. at 482-97.
148As one writer has expressed it:
A right to life includes more than merely being left alone; it also includes being
able to acquire what one needs to live. Anyone who recognizes the right to life of a
human child acknowledges this. One. . . cannot simply leave a baby alone, unat-
tended, to fend for himself or herself. One must see to it that babies have the
necessary food, shelter, and so on. Access to what they need to live must also be
included in the rights to life of adults, although this requirement is often over-
looked, especially by so-called libertarians, who suppose that we respect persons'
rights to life by merely [leaving them alone and] not attacking them.
Held, Abortion and Rights to Life, in BIoETHics AND HUMAN RIGHTS 103, 103 (E. Bandman
& B. Bandman eds. 1978).
"' Statement of Paul Friedman, Practicing Law Institute Conference on the Mentally
Disabled and the Law (March 14, 1980).
14" See generally Meisel, The "Exceptions" to the Informed Consent Doctrine:Strik-
ing a Balance Between Competing Values in Medical Decision Making, 1979 Wis. L. REV.
413, 439-49; Roth, Meisel, & Lidz, Tests of Competency to Consent to Treatment, 134 AM.
J. PSYCHIATRY 279 (1977).
14, See, e.g., Ferleger & Boyd, supra note 136.
more humane (raising the cost of commitment)."' 150 They note that
such hedging of true motives still persists:
Even now, supporters of anti-institutional results tend to
wrap their agenda with the bows and ribbons of "deinstitu-
tionalization," "least restrictive alternative," or "noninstitu-
tional care, where appropriate." These less controversial
terms suggest to the public and institutional professionals
that simple reduction in inmate population might be enough,
that perhaps not everyone need leave the facility, that the
walls may still stand, and that, in any event, all decisions re-
garding institutionalized persons must be about individual
15
people, not the institutional system itself. 1
These advocates suggest that working toward less drastic reforms
has been useful in laying a foundation for openly advocating the
abolition of institutions, because such circumlocution avoids pre-
mature confrontation, allows anti-institutionalization advocates to
"work within the system and. . . reassures legitimately concerned
family and friends of the institutionalized."' 152 But ultimately, they
suggest, these lesser reforms will not be enough.
Advocates favoring the elimination of public hospitals are, natu-
rally enough, wary of suits seeking services. They could justify
right-to-treatment suits on the ground that they make hospitaliza-
tion more costly, 153 but they could not support certain other claims
for services. An example of this approach arose in the Wyatt case.
As noted previously, Medicaid does not reimburse states for psy-
chiatric hospitalization of persons aged twenty-one to sixty-five.
One of the plaintiffs' attorneys, Morton Birnbaum, sought to in-
clude in Wyatt a challenge to this Medicaid exclusion on the the-
ory that federal reimbursement would perniit the right to treat-
ment to be implemented effectively. 1 4 According to Birnbaum,
however, the principal attorneys for the plaintiffs refused to in-
150Id. at 723.
1681Id. (emphasis in original).
II5 Id. This tactic
has been referred to as the "noble lie." Rothman, DecarceratingPris-
oners and Patients, 1 Civ. Lm. REv. 8, 21-22 (1973).
153See B. ENNIS, supra note 143, at 23-32 (noting with approval that certain reforms
would be so costly that hospitals would be forced to close).
184 Birnbaum, supra note 136, at 131.
clude this challenge because they believed that the state hospital
system should be abolished. 155 Birnbaum relates that he tried to
interest various groups participating as amici in the challenge, but
they too believed that increased funding would only perpetuate an
evil. 15 6 Birnbaum eventually mounted an unsuccessful challenge to
the Medicaid exclusion in the New York case of Legion v. Richard-
son.1 5 7 While a large number of amicus curiae briefs were filed sup-
porting Birnbaum's position, 58 organizations with a predominantly
civil libertarian orientation did not join in.15
More recently, a few advocates have gone so far as to argue that
civil rights groups should not devote substantial resources to suits
seeking treatment in less restrictive community settings, on the
ground that if community facilities are created, patients may be
coerced into using them. According to one such advocate:
[T]he existence of a large number of community mental
health facilities will lead to pressure that they be used ....
[J]udges, faced with a person who needs help but isn't really
committable, will be very tempted to "commit" that person
to a community60 facility, either illegally or after a change in
the legislation.
It is probably safe to say that this rather extreme viewpoint is a
15 Id.
106Id.
111355 F. Supp. 456 (S.D.N.Y. 1973), aff'd sub nom. Legion v. Weinberger, 414 U.S.
1058 (1973), reh'g denied, 415 U.S. 939 (1974).
158 Groups that filed amicus curiae briefs seeking to eliminate the Medicaid exclusion
included the American Orthopsychiatric Association, the Association of Black Psychologists,
the Black Psychiatrists of America, the Congress of Racial Equality, the National Black
Feminist Organization, and the National Urban League. Birnbaum, supra note 136, at 134.
119 Neither the Mental Health Law Project nor the ACLU joined in this suit or filed
amicus briefs. Id. at 138. The question whether to seek Medicaid reimbursement for care in
public hospitals was, to some extent, a difficult one. Libertarian advocates feared, not with-
out reason, that mental health funds would remain tied up in large institutions rather than
going for community care. Nonetheless, Birnbaum's point is well taken-somehow, adequate
care must be financed.
160 Hansen, Thorny Problems with LRA Cases, MENTAL HEALTH LAW PROJECT SUM-
MARY OF ACTIVITIES, Summer 1977, at 9, 10. Margaret Ewing, on the other hand, argues that
community facilities are badly needed and that least restrictive alternative suits are neces-
sary to ensure that this need is met. Ewing, Nobody Promised Us a Rose Garden, MENTAL
HEALTH LAW PROJECT SUMMARY OF AcTIVITIEs, Summer 1977, at 9, 11.
minority one, even among advocates with a strongly civil liberta-

rian approach.
In one case, Halderman v. Pennhurst State School & Hospi-
tal,1 " the court dealt explicitly with anti-institutionalization argu-
ments. Although Pennhurst started out as a relatively standard
suit seeking improved conditions in a facility for mentally retarded
persons and increased community care, the plaintiffs eventually
came to openly challenge the need for the institution.1, 2 The dis-
trict judge agreed that minimally adequate habilitation could not
be provided in an institution like Pennhurst. 6 3 He ordered the in-
stitution closed and the inmates transferred to community facili-
ties, warning the authorities to ensure that "each and every re-
tarded resident who is moved from Pennhurst can be
accommodated in a community facility which will provide mini-
mally adequate habilitation.' '8 4 The holding that Pennhurst had
to be closed was reversed by the Third Circuit, which stated that
"there may be some individual patients who, because of advanced
age, profound degree of retardation, special needs or for some
other reason, will not be able to adjust to life outside of an institu-
tion and thus will be harmed by such a change."116 5 Despite this
reversal the Pennhurst case is notable for the plaintiffs' open ad-
vocacy of anti-institutionalization and the lower court's acceptance
1 8
of this position. 6
161 446 F. Supp. 1295 (E.D. Pa. 1977), rev'd in part, 612 F.2d 84 (3d Cir. 1979), rev'd,
451 U.S. 1 (1981).
162 See generally Ferleger & Boyd, supra note 136, for a description of the development
of the Pennhurst case.
16s 446 F. Supp. at 1318.
16 Id. at 1325.
165 612 F.2d at 114. The Third Circuit approved the appointment of a special master to
decide which of the Pennhurst inmates should remain and which should be removed to
community based facilities. Id. at 111. The Supreme Court, however, reversed the Third
Circuit's recognition of a right to rehabilitation in the least restrictive setting based upon
the Developmentally Disabled Assistance and Bill of Rights Act of 1975, Pub. L. No. 94-103,
89 Stat. 486 (1975). The Court held that this statute is merely a federal funding act and
creates no such enforceable right. 451 U.S. at 19. On remand, the court of appeals reinsti-
tuted the deinstitutionalization order, basing its decision entirely on state law. See Halder-
man v. Pennhurst State School & Hosp., 673 F.2d 647 (3d Cir.) (en banc), cert. granted,
U.S. -, 102 S. Ct. 2956 (1982). See notes 248-59 infra and accompanying text.
I" It should be noted that the Pennhurstcase involved only the mentally retarded, and
therefore raised some problems which differ from those of the mentally ill. Deinstitutional-
Opponents of all institutionalization are undoubtedly correct

that, ideally, our society should rid itself of the large, isolated pub-
lic institutions which all too readily become impersonal human
warehouses. But public institutions have at least sheltered the
mentally disabled, and they should not be eliminated until there is
something to take their place. Working to close institutions, with-
out placing equal emphasis on the need to develop good, humane
community facilities, can lead to patient abandonment, and the
anti-institutional focus of some of the patients' rights advocates
may have inadvertently contributed to this result.
3. The "Myth" of Mental Illness

Arguments against involuntary commitmelit and institutional
care derive a great deal of support from the fact that mental ill-
ness' cause is unknown and its symptoms are simply unusual
thoughts and actions. There is no medical test for mental illness,
and psychiatric diagnoses are both fallible and influenced by extra-
neous social and personal factors. Involuntary confinement for
such a nebulous condition obviously must be undertaken only with
the utmost caution; however, some advocates of patients' rights
may be excessively influenced by theories that question the very
existence of mental illness.
According to Thomas Szasz, unless persons believed to be "men-
tally ill" have a recognizable physical cause for their unusual be-
havior, such as a brain tumor, they are not ill; they merely have
"problems in living. ' 167
Szasz states that diagnosing a disease on
the basis of a person's communications concerning his bizarre be-
ization of the mentally retarded has proceeded much more slowly than deinstitutionaliza-
tion of the mentally ill. See GAO REPORT, supra note 12, at 8-9. Mentally retarded persons
generally face long-term institutionalization and are less apt to simply be released to the
community without placement in an alternative facility because many of them have never
acquired basic skills in independent living. Even advocates who oppose least restrictive al-
ternative suits for the mentally ill note that much of their criticism does not apply to such
suits for the retarded. Hansen, supra note 160, at 10.
167 Szasz, Repudiation of the Medical Model, in PSYCHOPATHOLOGY TODAY: EXPERIMEN-
TATION, THEORY AND RESEARCH 47, 48 (W. Sahakian ed. 1970) (hereinafter cited as Repudia-
tion]; T. SZASZ, SCHIZOPHRENIA: THE SACRED SYMBOL OF PSYCHIATRY 110 (1976). See gener-
ally T. SZASz, LAW, LIBERTY AND PSYCHIATRY 11-39 (1963).
liefs or hallucinations simply is erroneous."' 8 Moreover, it entails

ethical judgments about the person's beliefs and comparisons be-
tween the patient's beliefs and those of the observer or of society
in general.1 69 Such judgments are about difference or deviance, not
about disease. Thus, "mental illness" is a myth, and taking a medi-
cal approach to "problems in living" has wrongly cast some per-
sons into the role of patient and, frequently, into the role of invol-
untary patient. Szasz's solution is to abolish the concept of mental
illness.170 Szasz's theory bears some similarity to sociological label-
ing theory; a major difference, however, is that while labeling the-
ory need not displace the medical model of mental illness, Szasz's
theory does.
Szasz's views are controversial and have been criticized at
length.17 1 Without dwelling on the possible criticisms, we can see
that his sharp distinction between physical disease and mental ill-
ness is problematic, since the causes for many physical ills remain
unknown, and scientists continue to discover organic causes for va-
rious types of mental disturbances. 17 2 Moreover, Szasz's criteria for
"disease" are not always met in the physical realm; for example, a
marked deviation from a physical norm, such as greatly elevated
blood pressure, is ordinarily considered a disease whether or not a
"'Repudiation, supra note 167, at 47-48; T. SzAsz, LAW, LIBERTY AND PSYCHIATRY 13
(1963).
1-"Szasz states: "The notion of mental systems is therefore inextricably tied to the
social, and particularly the ethical, context in which it is made, just as the notion of bodily
symptoms is tied to the genetic context." Repudiation, supra note 167, at 48.
170 T. SzAsz, THE MYTH OF MENTAL ILLNESS ix-xii, 1-13, 267-68 (1974).
171 See generally Ausubel, Personality Disorder is Disease, 16 AM. PSYCHOLOGIST 69
(1961); Brody, Szasz on Mental Illness, in MENTAL HEALTH: PHILOSOPHICAL PERSPECTIVES

251 (H.T. Engelhardt & S. Spicker eds. 1978); Macklin, The Medical Model in Psychoanal-
ysis and Psychotherapy,14 COMPREHENSIVE PSYCHIATRY 49 (1973).
172 It has been discovered that deficiencies of certain vitamins, such as niacin or B12,
and metabolic abnormalities such as hypothyroidism, can cause symptoms that resemble
schizophrenia. A. FREEDMAN, H. KAPLAN, & B. SADOCK, MODERN SYNOPSIS OF COMPREHENSIVE
TEXTBOOK OF PSYCHIATRY 277-80 (1972). Concussions, brain tumors, syphillis, and temporal
lobe epilepsy can also cause emotional disorders, as can various drugs such as amphet-
amines. Id. at 286-302. A recent study disclosed that 9.1% of psychiatric patients at one
hospital had medical disorders such as hypertension, diabetes, hypoglycemia, arteriosclero-
sis, or infectious diseases that were causing their psychiatric symptoms. Hall, Physical Ill-
ness Presenting as Psychiatric Disease, 35 ARCHIVES GEN. PSYCHIATRY 1315 (1978).
cause has been identified. 173 Nevertheless, whatever their validity,

Szasz's views clearly have influenced some patients' rights advo-
cates. In his introduction to a book by Bruce Ennis, a leading
mental health activist, Szasz states:
In short, Prisoners of Psychiatry must be seen as a manifes-
tation of the growing rejection of the viciously mendacious
psychiatric rhetoric about "mental illness;" and of the corre-
sponding recognition that individuals incriminated as men-
tally ill do not need guarantees of "treatment" but protection
against their enemies-the legislators, judges, and psychia-
74
trists who persecute them in the name of mental health.'
Ennis, on his part, stresses that the causes of mental illness remain
unknown and that a few psychiatrists "with much reason" deny its
existence and claim that there are only physiological illnesses and
75
learned patterns of "maladaptive behavior.'
Authors of many influential legal articles resolve conflicts be-
tween patients' interests in liberty and their need for treatment in
favor of liberty, on the basis of the unreliability of psychiatric di-
agnoses and the fact that mental illness often is "diagnosed" by
looking to statements and beliefs that are protected by the First
Amendment.17 1 Some judicial decisions reflect a similar view. For
example, the district court in Rogers v. Okin7 upheld a patient's
'73Ausubel, supra note 171, at 69. Another relevant criticism is that Szasz blurs the
distinction between unusual or extreme values and false factual beliefs. One can argue that
there are firmer grounds for questioning the mental processes of a person who clings to
patently false beliefs than one who simply holds extreme political opinions. But Szasz, by
denying that delusions can be symptoms of a disease unless underlying organic pathology is
proven, implies that false factual beliefs are no different from extreme beliefs about ques-
tions of value. See generally CRITICISM AND THE GROWTH OF KNOWLEDGE (I. Lakatos & A.
Musgrave eds. 1970); R. HARE, LANGUAGE OF MOALS 111-27 (1952) (detailed discussions of
the differences between statements about values and statements about facts).
174 B. ENNIS, supra note 143, at xvii.
175 Id. at 216.
176See A. STONE, MENTAL HEALTH AND LAW: A SYSTEM IN TRANSITION xv (1975). See
generally Ferleger, Loosing the Chains:In-Hospital Civil Liberties of Mental Patients, 13
SANTA CLARA LAW. 447 (1973); Plotkin, supra note 145; Note, Conditioningand Other Tech-
nologies Used to "Treat?" "Rehabilitate?""Demolish?" Prisoners and Mental Patients,45
S. CAL. L. REV. 616 (1972).
177 478 F. Supp. 1342 (D. Mass. 1979), rev'd in part, 634 F.2d 650 (1st Cir. 1980), va-
cated sub nom. Mills v. Rogers, - U.S. -, 102 S. Ct. 2442 (1982).
right to refuse psychotropic drugs not only on the basis of the pri-
vacy interest in making treatment decisions oneself, but also on
the theory that forcible medication is "involuntary mind control,"
which interferes with the mental patient's freedom of thought. The
implication was that hallucinations were more akin to unusual po-
litical beliefs than to symptoms of a disease. 1 8 Szasz's views also
lend support to efforts to close institutions since, if mental illness
is a myth, institutions dedicated to treating it are an anachronism
based on a faulty diagnosis of mere "problems in living."
Szasz's theory is useful in highlighting the problems inherent in
medical diagnoses and involuntary treatment based on a person's
unusual thoughts and behavior. Excessive reliance on his views,
however, can lead one to ignore the reality of mental suffering and
the need to care for its victims. Judge Bazelon, an influential advo-
cate of the rights of the mentally ill, has observed that some activ-
ists seeking liberty for the mentally ill may be overly influenced by
Szasz's views. 7 9 Noting that just as the benevolent purpose of in-
stitutionalization can be perverted into excessive state interven-
tion, the benevolent purpose of deinstitutionalization can become a
justification for neglect, Judge Bazelon has warned that civil liber-
tarians, "in their proper concern with limiting state intervention in
the lives of disturbed or disturbing individuals may fail to account
for the reality of mental disability."'' 10 He has asked "[h]ow real is
the promise of individual autonomy for a confused person set
adrift in a hostile world?"1 " Unfortunately, denying the reality of
mental illness may lead one to forget that many chronically men-
tally ill persons need something more than merely to be left alone.
4. The Limits on JudicialReform
Whatever their beliefs about involuntary confinement or the na-

ture of mental illness, it appears today that patients' rights advo-
178 See generally Rhoden, The Right to Refuse PsychotropicDrugs, 15 HARv. C.R.-C.L.
L. REV. 363, 388-96 (1980).

179 Bazelon, Institutionalization,Deinstitutionalizationand the Adversary Process, 75
COLUM. L. REV. 897, 908-09 (1975).
:80 Id. at 907.
81 Id.
cates should have placed greater emphasis on securing services for

the mentally ill. In making this criticism, however, it must be rec-
ognized that the nature of the judicial system strongly favors the
civil libertarian focus. Rights to be left alone are protected by our
Constitution and Bill of Rights and are relatively inexpensive to
implement. Suits challenging civil commitment procedures have a
built-in advantage-commitment is similar to criminal confine-
ment in that a person's liberty is impaired, and criminal safeguards
can readily be invoked. And in right-to-treatment suits, the man-
date for institutional reform is conditioned on the fact that the
patient is being deprived of liberty, such that the duty to provide
treatment can be evaded by the alternative remedy of releasing
patients.
But lawsuits are less useful as a method of establishing positive
entitlements to benefits. Attempts to gain such entitlements
through the legal process generally have been unsuccessful. 18 2
Thus, whatever the beliefs of advocates, or the strength of their
desire to seek community facilities for their clients, the fact that a
right to treatment is typically based upon a deprivation of liberty,
and that judges are reluctant to devise new systems of mental
health care, has hampered efforts to achieve community care
through the legal system.
Recognition of this basic feature of the judicial system is nothing
new. Perhaps it should have led to an earlier realization that judi-
cially enforced rights to liberty, when unaccompanied by a societal
commitment to establishing community treatment facilities, could
result in the abandonment of responsibility for the mentally ill.
Perhaps it also should have suggested that the decline in numbers
of inpatients, without more, was not cause for great enthusiasm. It
did not, and we have now proceeded for many years to release pa-
tients first, and assume that somehow, someone would care for
them. But the present crisis clearly demonstrates that liberty is
not enough; advocates on behalf of mental patients must now seek
services.
1 See, e.g., San Antonio Indep. School Dist. v. Rodriguez, 411 U.S. 1, 29-39 (1973) (no
constitutional right to education); Jefferson v. Hackney, 406 U.S. 535, 545-51 (1972) (no
constitutional right to welfare).
VI. TURNING TOWARD SERVICES: LEGAL APPROACHES TO

OBTAINING COMMUNITY CARE FOR THE MENTALLY ILL
Once it is recognized that advocacy that stresses liberty to the

exclusion of services may hurt the very population it is designed to
help, the question then becomes: how can advocates accomplish
the far more difficult task of obtaining necessary care for their cli-
ents? While it is certain we should not revert to large-scale hospi-
talization of the mentally ill-the detrimental effects of long-term
institutionalization being too well documented to ignore-we must
not forget that mental hospitals provided patients with certain es-
sentials of life such as food and shelter. If deinstitutionalization is
to be something more than patient abandonment, the basic needs
of ex-patients in the community must be satisfied. Thus, at this
most fundamental level, litigation efforts must seek shelter for the
homeless. Besides room and board, mental hospitals provided med-
ication, supervision, social contacts, and, theoretically, counseling,
social and vocational rehabilitation programs, and structured activ-
ity. Although hospitals seldom provided all of these, mentally ill
persons in the community need some such services, in addition to
training in the skills necessary for independent or semi-indepen-
dent community living. Thus, future lawsuits must attempt to es-
tablish a right to aftercare, or community care in general. Finally,
political and administrative advocacy is needed to encourage states
to divert funding from large, public hospitals to smaller, residential
facilities.
A. Seeking Shelter for the Homeless Mentally Ill

The rise in homelessness among the mentally ill graphically il-
lustrates the fact that their need for housing cannot be divorced
from their need for mental health treatment, despite the conten-
tions of some mental health officials.1 8 3 Experts studying homeless-
""3
In 1974, the Associate Commissioner in the New York State Department of Mental
Hygiene stated: "We want to provide programs for ex-patients, but many of their problems
are due to housing, not mental health and we don't want to get involved in the housing
business." The DischargedMental Patient:A Medical Issue Becomes a PoliticalOne, MED.
WORLD NEws, Apr. 12, 1974, at 15, 57 (statement of Robert McKinley). In New York the
state and city departments of mental health have offered to finance the mental health com-
ponents of shelter and nothing else, while the Department of Social Services refuses to be-
ness have observed that the mentally ill need decent shelter as
much or more than they need additional mental health services,
because their therapeutic and survival needs are inseparable and1 84
because "pathologies of place compound disorders of mind.
While it may be impossible to "cure" or "rehabilitate" many of the
mentally disabled, they can be afforded decent shelter, which
should be recognized as a basic human right.
In New York, advocacy on behalf of the homeless has taken a
major step in this direction. In Callahanv. Carey, s55 a class of des-
titute and homeless men""8 asserted a constitutional and statutory
right to shelter. Plaintiffs alleged that conditions at the Men's
Shelter, at that time the only public facility in New York City pro-
viding shelter services to homeless men, 87 were grossly inadequate
come a housing broker for discharged mental patients. PRIVATE LIVES, supra note 8, at 108.
As recently as 1981, the New York State Office of Mental Health asserted that the needs of
the "street people" are the responsibility of the social welfare system. NEW YORK STATE
OFFICE OF MENTAL HEALTH, FIVE YEAR COMPREHENSIVE PLAN FOR MENTAL HEALTH SERVICES
49 (1981).
184 Baxter & Hopper, Pathologies of Place and Disorders of Mind, HEALTH PAC/BULL.,
Mar.-Apr. 1980, at 21. Baxter and Hopper have noted that several recent studies suggest
that a mental patient's successful reintegration into the community is affected more by the
quality of his surroundings and social ties than by the sophistication of the mental health
service package delivered. PRIVATE Lwvs, supra note 8, at 31, citing Bromet, Community
Environments of DeinstitutionalizedPatients (paper delivered at the 107th Annual Meet-
ing of the American Public Health Association, New York City, Nov. 4, 1979).
185 No. 42582/79 (N.Y. Sup. Ct., N.Y. Cty. Aug. 26, 1981).
18 Work in this area has been done primarily by Robert M. Hayes, counsel to the Coa-
lition for the Homeless.
187 The Men's Shelter, located near the Bowery on Manhattan's lower east side, is not
really a shelter, but rather is a processing center. It dispenses lodging vouchers which are
redeemable, according to plaintiffs, in "one of six dangerous and unhealthful Bowery lodg-
ing houses." Plaintiff's Trial Memorandum at 1, Callahan v. Carey, No. 42582/79 (N.Y. Sup.
Ct., N.Y. Cty. Aug. 26, 1981). Prior to the order in Callahan,in the winter, when the Men's
Shelter had exhausted its supply of lodging vouchers, homeless men were permitted to sleep
on the floor or in plastic chairs in the "big room" at the shelter. When the big room was
filled, the remaining men were turned back into the street. The Men's Shelter has been
described as follows:
The fetid odor of unclean bodies and the gray-blue haze of cigarette smoke hang
like smog about the destitute clientele of the Men's Shelter on the Bowery in
Manhattan .... On the first floor, ragged men with vacant eyes sit in the "Big
Room" on plastic chairs attached in rows. As many as 250 men will sit all night if
there are no beds available in nearby flop-houses.
Herman, Mental PatientRelease Program Leaves Many to Face HarshFate, N.Y. Times,
Nov. 18, 1979, § 1, at 1, col. 1.
and that the violence and brutality associated with the shelter de-
terred many men from even applying for shelter.'88 In December
1979, a temporary injunction was issued pursuant to which defen-
dants were ordered to provide shelter for the "helpless and hope-
less men of the Bowery.""' The ruling was based on the state con-
stitution which makes New York responsible for providing food
and lodging to the needy, 90 and on state and city statutory
provisions."9
Plaintiffs' experts estimated that there were approximately
30,000 homeless men in New York City. 92 They pointed to studies
lS Plaintiffs Amended Complaint at 4, Callahan v. Carey, No. 42582/79 (N.Y. Sup. Ct.,
N.Y. Cty. Aug. 26, 1981).
'8,Callahan v. Carey, N.Y.L.J., Dec. 11, 1979, at 10, col. 4 (N.Y. Sup. Ct., N.Y. Cty.
1979).
'go The New York State Constitution provides: "The aid, care and support of the needy
are public concerns and shall be provided by the state and by such of its subdivisions, and
in such manner and by such means, as the legislature may from time to time determine."
N.Y. CONST. art. XVII, § 7.
"I The state and city statutes relied upon by the court were:
(1) section 62(1) of the Social Services Law, which provides:
Subject to reimbursement in the causes hereinafter provided for,
each public welfare district shall be responsible for the assistance
and care of any person who resides or is found in its territory and
who is in need of public assistance and care which he is unable to
provide for himself.
N.Y. Soc. SERV. LAW § 62(1) (McKinney 1976).
(2) section 131(3) of the Social Services Law, which provides in part:
Whenever practicable, assistance and service shall be given a needy
person in his own home. The commissioner of public welfare may,
however, in his discretion, provide assistance and care in a boarding
home, a home of a relative, a public or private home or institution, or
in a hospital.
N.Y. Soc. SERv. LAW § 131(3) (McKinney 1976).
(3) section 604.1.0(b) of the New York City Administrative Code, which provides:
It shall be the duty of the commissioner of or the superintendent of
any municipal lodging acting under him, to provide for any appli-
cants for shelter who, in his judgment, may properly be received,
plain and wholesome food and lodging for a night, free of charge, and
also to cause such applicants to be bathed on admission and their
clothing to be steamed and disinfected.
N.Y.C. ADMIN. CODE § 604.1.0(b) (1977).
192 Plaintiffs Trial Memorandum at 9, Callahan v. Carey, No. 42582/79 (N.Y. Sup. Ct.,
N.Y. Cty. Aug. 26, 1981). See PmvATE LivEs, supra note 8,at 8.This figure is taken from an
internal memo from the New York State Office of Mental Health dated October, 1979, and
the estimate is based on the report that approximately 9,000 homeless men sought assis-
showing that the characteristics of homeless men have changed in

recent years. While in previous years alcoholism was the primary
disability of the majority of the men,193 recently the majority of
homeless men have come to exhibit mental illness, some with alco-
holism as a secondary characteristic.1 94 According to plaintiffs' ex-
perts, the two most significant forces contributing to homelessness
in New York are scarcity of decent low cost housing and massive
depopulation of mental hospitals. 19 5 Plaintiffs noted that in addi-
tion to releasing many patients, the New York State Office of
Mental Health has also tightened its admission criteria so that
"many mentally ill persons who formerly would have been admit-
ted to a psychiatric hospital-and at least sheltered there-must
6
9
now cope for themselves.'1
tance at the Men's Shelter, which comes in contact with approximately one-third of the
city's homeless men.
193 Plaintiff's Trial Memorandum at 11, Callahan v. Carey, No. 42582/79 (N.Y. Sup. Ct.,
N.Y. Cty. Aug. 26, 1981) (noting a study by Robert Reich, M.D., Director of the Office of
Psychiatry for the defendant, Human Resources Administration, which reported that before
1974, nearly 50% of the population showed alcoholism as a primary problem).
I" A study conducted at the Men's Shelter in 1976 found that 30% of the men shel-
tered on a given night had previous .psychiatric hospitalizations and that nearly 50%, or
over 600 of the 1,235 men sheltered that night, exhibited overt mental illness. Plaintiff's
Trial Memorandum at 11-12, Callahan v. Carey, No. 42582/79 (N.Y. Sup. Ct., N.Y. Cty.
Aug. 26, 1981). The proportion of the homeless with mental disabilities has continued to
increase. In late May, 1980, a group of the homeless men residing in the Keener shelter were
interviewed, and 70% of them were found to be mildly, moderately, or severely mentally ill,
with 60% of them moderately or severely so. Id. at 12. The team of physicians, psychia-
trists, and social workers who examined them believed that 16 of the 236 men interviewed
were in need of immediate hospitalization. Id.
"I Plaintiff's Trial Memorandum at 13, Callahan v. Carey, No. 42582/79 (N.Y. Sup. Ct.,
N.Y. Cty. Aug. 26, 1981); PRIVATE LivEs, supra note 8,at 31-32. In 1979, it was noted that
New York state hospitals had released 83,659 adult patients "to the community," with ap-
proximately 40,000 going to New York City. Herman, supra note 187, at § 1, at 1, col. 5.
Plaintiffs stated that deinstitutionalization plus the housing crisis,
when accompanied by certain "precipitating" events-eviction from a hotel, fail-
ure to receive public assistance or a disability check, a personal tragedy (e.g.,
death of a spouse), hospitalization for mental or physical illness or failure to re-
ceive appropriate mental health aftercare services-have been found to be com-
mon antecedents to a person becoming homeless.
Plaintiff's Trial Memorandum at 13-14, Callahan v. Carey, No. 42582/79 (N.Y. Sup. Ct.,
N.Y. Cty. Aug. 26, 1981). See generally BACK ALLEYS, supra note 2 (documenting the break-
down in the state plan to desinstitutionalize mental health care); Reich & Segal, The Emer-
gence of the Bowery as a Dumping Ground, 50 PSYCHOLOGY Q. 191 (1978).
I" Plaintiff's Trial Memorandum at 17, Callahan v. Carey, No. 42582/79 (N.Y. Sup. Ct.,
Callahan v. Carey ultimately was settled by consent decree, with

the city agreeing to provide food, shelter, supervision, and security
to each man who applies for shelter. 197 Although negotiations are
continuing concerning the location of shelters, thus far the shelters
have been established in isolated settings, 19 under conditions of
overcrowding, bleakness, and sterility.9 9 Plaintiffs' attorneys have
taken various approaches in attempting to secure smaller, residen-
tial shelters that would provide medical and psychiatric care for
their clients. They initially filed suit in federal district court seek-
ing necessary services and alleging that their clients were denied
equal protection of the law because men with similar disabilities
residing in similar types of facilities (i.e., mental hospitals) had a
right to care, services, and treatment. 0 0° For tactical reasons, the
federal suit was dismissed.20 ' Most recently the Coalition for the
Homeless filed suit on behalf of *thosehomeless persons who were
former state hospital patients, asserting a constitutional and statu-
tory right to aftercare. °2 Whatever the fate of this suit, the work
of the Coalition is vitally important because it has established a
right to shelter, although under state rather than federal law, and
has emphasized the need for care and services for released mental
N.Y. Cty. Aug. 26, 1981).

197 The consent decree provided that the city would provide beds with clean sheets,
reasonable access to shelter facilities, showers, security, and adequate heat in shelters. It
also set forth procedures for monitoring compliance with the order. See Callahan v. Carey,
No. 42582/79 (N.Y. Sup. Ct., N.Y. Cty. Aug. 26, 1981) (consent judgment). Although the city
voluntarily extended the agreement to homeless women, the adequacy of the shelter for
women recently has been challenged. See Eldredge v. Koch, No. 41494/82 (N.Y. Sup. Ct.,
N.Y. Cty. filed Feb. 24, 1982).
'"8 The Keener Building, the first shelter established pursuant to court order, is on the
grounds of the Manhattan Psychiatric Center on Wards Island. The various armories that
have been established as emergency shelters also are isolated.
' ' PRIVATE LIVEs, supra note 8, at 109.
20 See Murphy v. New York City Human Resources Admin., No. 80 Civ. 2035
(S.D.N.Y. filed Apr. 17, 1980) (voluntarily dismissed May 6, 1980).
20, Plaintiffs subsequently filed suit in state court relying upon the residents' status as
third party beneficiaries of the contract between the city and state which provided that the
residents' medical and psychiatric needs would be met. Jablonski v. Brezenoff, No. 41132/80
(N.Y. Sup. Ct., N.Y. Cty. filed May 22, 1980) (discontinued by stipulation Oct. 10, 1980).
See Memorandum of Understanding between the New York State Department of Social
Services, the New York State Office of Mental Health, and the New York City Human
Resources Administration 9, at 4-5 (Dec. 11, 1979).
202 Klostermann v. Carey, No. 11270/82 (N.Y. Sup. Ct., N.Y. Cty. filed May 20, 1982).
patients.
B. Seeking Community Care for the Mentally Disabled

It is relatively simple to describe the living arrangements that
are needed by chronically mentally ill persons in the community.
Those requiring supervision should be placed in small, well run
group homes which provide counseling, emergency services, voca-
tional training, training in skills necessary for independent living,
and so forth. Those capable of more independent living should
have access to low cost, good quality housing, community support
groups, and assistance in applying for federal benefits or employ-
ment. Although certain communities have established excellent
programs, it is beyond the scope of this article to examine such
alternatives.2 03 Here the question is how, by legal action, states and
cities lacking adequate residential programs can be required to cre-
ate them.
1. A ConstitutionalBasis for the Right to Community Care

As the need for community treatment has become increasingly
apparent, advocates and commentators have begun to argue that
former patients have a constitutional right to aftercare 0 4 or, more
broadly, that the mentally ill have a constitutional right to com-
munity treatment. 0 5 The major constitutional doctrines invoked to
support such a right are the right to treatment and the concomi-
tant right to be treated in the least restrictive setting. 0 After
203 See generally Sandall, supra note 77 (describing the St. Louis program, "Places for
People," for chronically mentally ill persons); Zanditon & Hellman, The ComplicatedBusi-
ness of Setting Up Residential Alternatives, 32 HosP. AND COMMUNITY PSYCHIATRY 335
(1981) (describing efforts to establish residential facilities in Massachusetts).
204 See generally Saphire, The Civilly-Committed Public Mental Patient and the
Right to Aftercare, 4 FLA. ST. U.L. REv. 232 (1976).
206 See generally Rapson, supra note 48; Note, The ConstitutionalRight to Treatment
Services for the Noncommitted Mentally Disabled, 14 U. SAN FRAN. L. REv. 675 (1980).
2I8 Analogous cases in the area of mental retardation have relied upon the right to free-
dom from harm, the right to habilitation, and the right to habilitation in the least restrictive
setting. See, e.g., Halderman v. Pennhurst State School & Hosp., 446 F. Supp. 1295 (E.D.
Pa. 1977), rev'd in part, 612 F.2d 84 (3d Cir. 1979), rev'd, 451 U.S. 1 (1981); New York State
Ass'n for Retarded Children v. Rockefeller, 357 F. Supp. 752 (E.D.N.Y. 1973), consent judg-
ment approved sub nom. New York State Ass'n for Retarded Children v. Carey, 393 F.
Supp. 715 (E.D.N.Y. 1975), enforced, 409 F. Supp. 606 (E.D.N.Y. 1976), afl'd, 596 F.2d 27
briefly discussing these doctrines, this section will consider the ex-
tent to which they support a constitutional right to care and treat-
ment in the community.
As discussed previously, due process is violated unless persons
involuntarily committed to state hospitals for purposes of treat-
ment are in fact provided such treatment. 0 7 This quid pro
quo-that involuntary confinement can be justified only by provi-
sion of treatment-is at the heart of the right to treatment.20 s The
treatment to be provided must "give [a patient] a realistic oppor-
tunity to be cured or to improve his mental condition, ' 20 9 and it
must reflect present medical and scientific knowledge.210 Since dis-
charges to inadequate environments often trigger relapses, and
since accepted medical practice today is to move the patient grad-
ually from a more structured environment to a less restrictive one,
appropriate treatment should include aftercare in the commu-
nity.211 Various right to treatment cases have recognized this need
for transitional services. The district court in Wyatt v. Stickney
held that the state must act affirmatively to "provide adequate
transitional treatment and care for all patients released after a p~e-
riod of involuntary confinement . . ." including "psychiatric day
care, treatment in the home by a visiting therapist, nursing home
(2d Cir.), cert. denied, 444 U.S. 836 (1979). This difference in terminology is due to the fact
that there is no treatment for mental retardation, consequently the mentally retarded are
instead entitled to receive, in return for their confinement, habilitation-that is, aid in im-
proving their ability to function.
107 See notes 53-56 supra and accompanying text.
2' The analysis may be different when a person is committed, not on parens patriae
grounds, but solely because of dangerousness. See Rapson, supra note 48, at 220-22. How-
ever, at least one court has found that the right to treatment does extend to police power
commitments. See Eckerhart v. Hensley, 475 F. Supp. 908 (W.D. Mo. 1979).
209 Wyatt v. Stickney, 325 F. Supp. 781, 785 (M.D. Ala.), enforced, 334 F. Supp. 1341
(M.D. Ala. 1971), orders entered, 344 F. Supp. 373 (M.D. Ala.) and 344 F. Supp. 387 (M.D.
Ala. 1972), reu'd in part sub nom. Wyatt v. Aderholt, 503 F.2d 1305 (5th Cir. 1974).
210 See Scott v. Plante, 641 F.2d 117, 133 (3d Cir. 1981); Romeo v. Youngberg, 644 F.2d
147, 173 (3d Cir. 1980), cert. granted, 451 U.S. 982 (1981).
211 Various studies have demonstrated that an unstructured release without referral to
a community aftercare or transitional service, or without involvement in other community
supported services, will result in a predictable and substantial increase in the rate of rehos-
pitalization. See H. FREEmAN & 0. SIMMONS, THE MENrAL PATIENT COMES HoME (1963);
Zolik, Lance, & Sommers, Hospital Return Rates and Pre-Release Referrals, 18 ARCHivES
GEN. PSYCHATRY 712 (1968).
or extended care, out-patient treatment, and treatment in the psy-

chiatric ward of a general hospital. ' 212 A similar order was issued
in Davis v. Watkins.21 3
Thus the constitutional right to treatment
readily supports an involuntary patient's right to aftercare in the
community, because the state has confined the patient for pur-
poses of treatment and appropriate treatment includes necessary
transitional services and aftercare.
When the government infringes upon a person's freedom it must 14
use the least drastic means available to accomplish its purpose.
In the mental health context, this means that when a state con-
fines a person in order to provide psychiatric treatment, it must do
so in the manner which least restricts the person's liberty and still
accomplishes the government's purpose. 215 Although a number of
least restrictive alternative cases have been decided on statutory
grounds, 1 6 the doctrine has been raised to constitutional propor-
tions both as a part of the general state duty to use the least dras-
21 7
tic means and as a facet of the constitutional right to treatment.
-In the mental health area the least restrictive alternative doc-
212325 F. Supp. at 386.

"1 384 F. Supp. 1196, 1197 (N.D. Ohio 1974), supplemented sub nom. Davis v. Balson,
461 F. Supp. 842 (N.D. Ohio 1978).
214 See Dunn v. Blumstein, 405 U.S. 330, 343 (1972) (right to vote); Schapiro v. Thomp-
son, 394 U.S. 618 (1969) (right to travel); Griswold v. Connecticut, 381 U.S. 479, 485-86
(1965) (right of privacy). See generally Note, Less Drastic Means and the First Amend-
ment, 78 YALE L.J. 464 (1969).
215 See generally Hoffman & Foust, Least Restrictive Treatment of the Mentally Ill: A
Doctrine in Search of Its Senses, 14 SAN DIEGO L. REV. 1100 (1977).

216 See, e.g., Covington v. Harris, 419 F.2d 617 (D.C. Cir. 1969); Dixon v. Weinberger,
405 F. Supp. 974 (D.D.C. 1975); Lake v. Cameron, 267 F. Supp. 155 (D.D.C. 1967) (all find-
ing that inherent in the D.C. commitment statute's guarantee of a right to treatment is a
right to be treated in the least restrictive environment). See Hospitalization of the Mentally
Ill Act, 21 D.C. CODE ANN. §§ 501-592 (1981).
2 7 See, e.g., Eubanks v. Clark, 434 F. Supp. 1022, 1028 (E.D. Pa. 1977); Welsch v. Li-
kins, 373 F. Supp. 487 (D. Minn. 1974), vacated in part, 550 F.2d 1122 (8th Cir. 1977)
(dealing with rights of mentally retarded persons); Morales v. Turman, 383 F. Supp. 53, 124
(E.D. Tex. 1974), rev'd on other grounds, 535 F.2d 864 (5th Cir. 1976), rev'd, 430 U.S. 322
(1977); Wyatt v. Stickney, 344 F. Supp. 387 (M.D. Ala. 1972), rev'd in part sub nom. Wyatt
v. Aderholt, 503 F.2d 1305 (5th Cir. 1974); Lessard v. Schmidt, 349 F. Supp. 1078 (E.D. Wis.
1972), vacated on other grounds, 414 U.S. 473 (1974), modified, 379 F. Supp. 976 (E.D. Wis.
1974), vacated on other grounds, 421 U.S. 957 (1975), order reinstated, 413 F. Supp. 1318
(E.D. Wis. 1976).
trine was first invoked in Lake v. Cameron,218 when Judge Bazelon,

relying on statutory grounds,2 1e held that a woman facing involun-
tary commitment must be treated in the least restrictive setting
available. Unfortunately, on remand, the district court found that
no residential settings were available, thus compelling Mrs. Lake
to continue her hospital confinement.2 2 Shortly thereafter, in Cov-
ington v. Harris,22 Judge Bazelon again wrote for the majority,
which held that the least restrictive doctrine also applied to partic-
ular placements within the hospital. Other jurisdictions have ap-
plied the doctrine to commitment decisions;222 to transfer of a pa-
tient to a more restrictive ward 223 or a more restrictive hospital;224
to the right of all patients to receive treatment in general; 225 to
227
conditional discharge; 226 and to outright release decisions.
The ultimate outcome in Lake v. Cameron illustrates that, all
too often, there are no community facilities available. 228 Although
the early cases assumed that the state's obligation was limited to
searching for alternatives, courts increasingly have recognized the
218 364 F.2d 657 (D.C. Cir. 1966).

See Hospitalization of the Mentally Ill Act, 21 D.C. CODE ANN. §§ 501-592 (1981).
229 Lake v. Cameron, 267 F. Supp. 155 (D.D.C. 1967).
221 419 F.2d 617 (D.C. Cir. 1969).

222 See, e.g., Stamus v. Leonhardt, 414 F. Supp. 439, 452-53 (S.D. Iowa 1976); Dixon v.
Attorney Gen. 325 F. Supp. 966, 974 (M.D. Pa. 1971).
222 Ploof v. Brooks, 342 F. Supp. 999 (D. Vt. 1972); In re D.D., 118 N.J. Super. 1, 285
A.2d 283 (1971).'

224 Kesselbrenner v. Anonymous, 33 N.Y.2d 161, 305 N.E.2d 903, 350 N.Y.S.2d 893
(1973).
225 See, e.g., Davis v. Watkins, 384 F. Supp. 1196 (N.D. Ohio 1974).
226 United States v. Ecker, 543 F.2d 178 (D.C. Cir. 1976), cert. denied, 429 U.S. 1063
(1977) (although, after balancing the factors the court did not allow conditional discharge);
State v. Carter, 64 N.J. 382, 395, 316 A.2d 449, 464 (1974) (Clifford, J., concurring in part
and dissenting in part).
227 In re Lublin v. Central Islip Psychiatric Center, 85 Misc. 2d 48, 378 N.Y.S.2d 590
(1976), rev'd, 56 A.D.2d 1, 391 N.Y.S.2d 603 (1977), rev'd, 43 N.Y.2d 341, 372 N.E.2d 307,
401 N.Y.S.2d 466 (1977).
228 There are, of course, other problems with the doctrine, such as defining "restrictive-
ness" and balancing it with effectiveness. For example, is it less restrictive to place a patient
in a community facility if that patient can function satisfactorily in the community only
when given (against his will) powerful and potentially dangerous drugs, or to keep him,
unmedicated, in the hospital? See generally Hoffman & Foust, supra note 215; Bachrach, Is
the Least Restrictive Environment Always the Best? Sociological and Semantic Implica-
tions, 31 Hosp. & COMMUNITY PSYCHIATRY 97 (1980).
424 EMORY LAW. JOURNAL [Vol. 31
emptiness of the right to treatment in the least restrictive environ-

ment if community facilities are nonexistent. Dixon v. Wein-
berger,22 9 was the first decision to order the comprehensive devel-
opment of community care facilities to implement patients' right
to treatment in the least restrictive environment, although it
should be noted that the decision was based entirely on statutory
grounds.2 30 The district court in Halderman v. Pennhurst State
31
School & Hospital,- subsequently held, on constitutional as well
as statutory grounds, that the right of mentally retarded persons to
receive habilitation in the least restrictive environment requires
the creation of a continuum of treatment facilities. Other courts
have since recognized a state duty to provide community facili-
ties.232 Moreover, in resolving various disputes surrounding the im-
plementation of a deinstitutionalization decree in which defen-
dants had agreed to establish community alternatives, one court
recently suggested that discharging mentally ill patients without
providing necessary community services simply may continue the
2
neglect and abuse of the mentally ill. 33
Although the quid pro quo analysis-that forcible confinement

triggers a right to the treatment-suggests that the rights to treat-
ment and treatment in the least restrictive environment are re-
stricted to involuntary patients, an extension of these rights to vol-
untary patients may be forthcoming. Courts have recognized for
229 405 F. Supp. 974 (D.D.C. 1975).

220As noted previously, district courts in Wyatt and Davis had ordered transitional
care for patients moved to the community pursuant to implementation of their right to
treatment in the least restrictive environment. See text accompanying notes 212 and 213
supra.
451 U.S. 1 (1981). See notes 161-66 supra and accompanying text.
232 See Patients v. Camden County Bd. of Chosen Freeholders, No. L-33417-74 P.W.
(N.J. Super. Ct., Camden Cty. Jan. 19, 1981), discussed in 5 MENTAL DIsABILITY L. REP. 108
(1981), vacated, Nos. A-3271-80T3, A-4402-80T3 (N.J. App. Div. Feb. 17, 1982). See also
Rone v. Fireman, 473 F. Supp. 92 (N.D. Ohio 1979) (duty to provide alternative facilities
recognized, although court did not order action by facility which had made "commendable
strides" in meeting its obligations); Medley v. Ginsberg, 492 F. Supp. 1294 (S.D. W. Va.
1980), consent decree entered, No. 78-2099 (S.D. W. Va. Oct. 8, 1981), discussed in 5
MENTAL DIsABILTY L. REP. 393 (1981) (denying defendant's motion for summary judgment
on plaintiffs' claim that the state unconstitutionally failed to provide adequate community
facilities and services and therefore caused them to remain institutionalized).
2'3 Brewster v. Dukakis, 520 F. Supp. 882, 892 (D. Mass. 1981).
some time that mentally retarded persons placed in institutions by

their families are not truly "voluntary" patients 2 34 Similarly, men-
tally ill persons often enter hospitals because of family or peer
pressure or lack of alternatives.2 s5 Some courts have recognized
that such persons' hospitalization is not truly voluntary. In Harper
v. Cserr,236 the First Circuit Court of Appeals held that the right to
a safe and humane living environment should apply at least to
those voluntary patients "who by reason of disability are to a great
degree helpless; and, if not confined de jure, are at least confined
5 5 the Eighth
de facto. 23 7 Similarly, in Goodman v. Parwatikar,
Circuit Court of Appeals reversed the district court's dismissal of a
voluntary patient's claim that she had not been protected from
harm, holding that both involuntary and voluntary patients have a
right to a safe and humane living environment. 239 A New York dis-
trict court recently refused to hold as a matter of law that volun-
tary patients have no right to treatment,24 0 and another New York
district court recently stated that the voluntary/involuntary dis-
tinction is a "distinction without a difference in the determination
of patients' rights to life and to personal liberty, and concomi-
tantly to treatment. ' 24 1 If, as these cases suggest, voluntary pa-
tients have a right to treatment in the least restrictive environ-
ment, then they too should have a right to community care upon
release.
234 See Halderman v. Pennhurst State School & Hosp., 446 F. Supp. 1295 (E.D. Pa.
1978), rev'd in part, 612 F.2d 84 (3d Cir. 1979), rev'd on other grounds, 451 U.S. 1 (1981);
New York State Ass'n for Retarded Children v. Rockefeller, 357 F. Supp. 752, 762 (E.D.N.Y.
1973), consent judgment approved sub nom. New York State Ass'n for Retarded Children
v. Carey, 393 F. Supp. 715 (E.D.N.Y. 1975), aff'd, 596 F.2d 27 (2d Cir.), cert. denied, 444
U.S. 836 (1979).
235 See, e.g., B. ENNIS & R. EMERY, THE AMERIcAN CIviL LIBERTIES UNIONHANDBOOK:
THE RIGHTS OF MENTAL PATIENTS 90-96 (1978); Gilboy & Schmidt, "Voluntary" Hospitali-
zation of the Mentally Ill, 66 Nw. U.L. REv. 429 (1971).
236 544 F.2d 1121 (1st Cir. 1976).
237 Id. at 1123.
-3 570 F.2d 801 (8th Cir. 1978).
239 Id. at 804.
240 Phiflipp v. Carey, 517 F. Supp. 513, 519 (N.D.N.Y. 1981).
241 Seide v. Prevost, 536 F. Supp. 1121, 1136 (S.D.N.Y. 1982). The court reasoned: "A
classification which would guarantee the right to life of persons committed to State institu-
tions but which would deny this right to persons voluntarily admitted could not stand strict
scrutiny required by the equal protection clause." Id. at 1136.
Some advocates of community care have gone even further and

argued that virtually all mentally ill persons have a constitutional
right to community care. According to Rapson:
If individuals seek care from the mental health system and
are channeled, either after hospitalization or in lieu of it, to
community-based programs for treatment, the state owes
them the same duty it would have owed them had they been
hospitalized prior to implementation of the state's deinstitu-
tionalization policy. The process of deinstitutionalization can-
not be allowed to obfuscate the essential purpose of deinstitu-
tionalization: to furnish in less restrictive, community settings
services that would in former times have been provided in
hospitals. In this sense, the degree of state control (i.e., the
restrictiveness of the environment) is less important to trig-
gering the
242
quid pro quo analysis than is the exercise of state
control.
Rapson argues that deinstitutionalization has blurred the divi-
sion between the admission, treatment, and release phases of
mental health care, in that persons who seek treatment may be
sent to a community care program rather than being hospitalized.
Because diversion to such a program may restrict a person's lib-
erty, and because community placement has assumed an integral
role in the treatment process, patients who seek mental health care
and are so diverted, likewise should have a right to adequate com-
munity treatment.24 3 Noting the often illusory nature of "volun-
tary" admissions, 244 Rapson argues that the right to community
care should inure to persons who "voluntarily" present themselves
for community treatment, as well as to those who are committed
by others.245
This sort of argument works for some classes of mentally ill per-
242 Rapson, supra note 48, at 238. See also Note, supra note 205, at 695-99.
24 Rapson, supra note 48, at 238-39.
24 For a discussion of the illusoriness of "voluntary" admissions, see Gilboy & Schmidt,
supra note 235.
2 Rapson, supra note 48, at 241. Rapson states that there must be some requirement
for the degree of contact patients have had with the system, stating that "the requisite
degree of contact need not be defined so broadly as to embrace every individual who tele-
phones an outpatient clinic. But neither should it be limited to those who have been hospi-
talized and released." Id. at 242. See also Saphire, supra note 204, at 234-36.
sons. We have seen that involuntary patients should have a consti-

tutional right to aftercare, and that equal protection may mandate
that voluntary patients have a similar right. Former involuntary
patients now facing serious problems in the community, such as
homelessness or life in community "snake pits," as a result of inap-
propriate placement upon discharge, would seem to have a similar
claim to community care, since their plight stems from improper
state action. Former voluntary patients now homeless or inappro-
priately placed may also have a constitutional claim, especially if
they were sufficiently helpless that they were de facto involuntarily
confined, or if lengthy confinement diminished their capacity for
independent living. But it is unlikely that courts can extend a con-
stitutional right to community care to mentally ill persons who
have never been confined, 46 or threatened with involuntary con-
finement, since there is no general constitutional right to health
care.2 47 Aside from this limitation, constitutionally based suits
seeking aftercare for patients and former patients have great po-
tential for forcing states to develop residential treatment facilities.
2. A Statutory Basis for the Right to Community Care
Until recently, the development of a federal statutory right to

treatment in the least restrictive setting appeared imminent. In
Halderman v. Pennhurst State School & Hospital,2 8 a district
248 Even Patients v. Camden County Bd.of Chosen Freeholders, No. L-33417-74 P.W.
(N.J. Super. Ct., Camden Cty. Jan. 19, 1981), discussed in 5 MENTAL DISADILrTY L. REP. 108
(1981), vacated, Nos. A-3271-80T3, A-4402-80T3 (N.J. App. Div. Feb. 17, 1982), the decision
that has gone the furthest in recognizing a right to community care, limits its holding to
patients and former patients.
247 See Maher v. Roe, 432 U.S. 464 (1977) (no constitutional right to medical treat-
ment). This is not to say that there should not be a right to mental health care and to
health care in general; there have been some arguments that there should be such a right.
See generally Michaelman, In Pursuit of Constitutional Welfare Rights: One View of
Rawl's Theory of Justice, 121 U. PA. L. REv. 962 (1973) (on "welfare" rights as constitu-
tional rights). But see Blackstone, On Health Care as a Legal Right: An Exploration of
Legal and Moral Grounds, 10 GA. L. R.v. 391 (1976) (arguing that a right to health care
involves a distortion of constitutional doctrines although health care is a human and moral
right); Carey, A ConstitutionalRight to Health Care: An Unlikely Result, 23 CATH. U.L.
REV. 492 (1974).
451 U.S. 1 (1981).

court in Pennsylvania found both a constitutional right to habilita-

tion in the least restrictive environment24 and a federal statutory
right based on section 504 of the Rehabilitation Act of 1973,250
which prohibits discrimination on the basis of handicap. 25 1 The
court found that since the habilitation at Pennhurst did not meet
minimally adequate standards, the isolation of the residents at the
institution constituted unlawful discrimination, and it held that
section 504 "impose[d] affirmative obligations on state and local
governmental officials . ,".On appeal, however, although the
Third Circuit found a federal statutory right to habilitation in the
least restrictive setting, it did not consider whether section 504
would support this right.2 5 3 Rather, it relied entirely on the Devel-
opmentally Disabled Assistance and Bill of Rights Act,25 which
contains a Bill of Rights provision granting developmentally dis-
abled persons a right to appropriate treatment and habilitation in
the least restrictive setting. 255 The Supreme Court subsequently
held that despite the Bill of Rights provision, the Act is simply a
funding statute, stating: "[W]e find nothing in the Act or its legis-
lative history to suggest that Congress intended to require the
States to assume the high cost of providing 'appropriate treatment'
in the 'least restrictive environment' to their mentally retarded cit-
izens '256 The Court's opinion bodes ill for the possibility of courts
249 446 F. Supp. at 1319 (relying on various cases establishing the right of the mentally
illto treatment in the least restrictive environment). See notes 161-66 supra and accompa-
nying text for additional discussion of Pennhurst.
250 Pub. L. No. 93-112, 87 Stat. 355 (1973) (amended 1974, 1976, 1978).
251 29 U.S.C. § 794 (1976 & Supp. IV 1980). This act applies only to programs or activi-
ties receiving federal funds.

252 446 F. Supp. at 1323-24. The court also held that there is a private right of action
under § 504 of the Act. Id. at 1323.

253612 F.2d at 108.
254 Pub. L. No. 94-103, 89 Stat. 486 (1975) (amended 1978). See 612 F.2d at 95-103.
This Act applies to the mentally retarded but not the mentally ill.
2" 42 U.S.C. § 6010 (1976 & Supp. IV 1980).
2 451 U.S. at 18. The Court interpreted the Bill of Rights provision as expressing a
congressional preference, but not requiring as a condition of federal funding, that adequate
habilitation in the least restrictive setting be provided. Id. at 19. As support for its holding,
the majority noted that other sections of the Act specifically state that certain actions by
states are a "condition" of receiving federal assistance. Id. at 12-13. While the Supreme
Court remanded for consideration of the federal constitutional claims, the state claims, and
the § 504 claim, the opinion in general contains somewhat negative implications concerning
a right to habilitation in the least restrictive alternative. Id. at 31. In an ominous footnote
finding that the Mental Health Systems Act,2 5 which contains a

Bill of Rights section similar to section 504,25 8 creates an enforcea-
ble right to treatment in the least restrictive setting. However,
courts still could base a federal statutory right to aftercare on sec-
tion 504 of the Rehabilitation Act.25"
State statutory provisions represent a more promising avenue for
finding a right to community aftercare. The district court in Pen-
nhurst, for example, relied on a Pennsylvania statute which pro-
vides that the Department of Public Welfare has the duty "to as-
sure within the State the availability and equitable provision of
adequate mental health and mental retardation services for all per-
sons who need them . 20 The court noted that this statute
"2...
had been interpreted to give civilly committed persons a right to
treatment in a facility best suited to their needs.2 6 ' On remand, the
Third Circuit held that this statute provides mentally retarded
persons with a right to treatment or habilitation in the least re-
strictive environment, and therefore was sufficient to support the
262
district court's deinstitutionalization order.
In many states, statutory derivation of this right is even easier,
because an increasing number of states now make explicit refer-
ence to the least restrictive alternative doctrine in their commit-
the court stated: "Although the court below held that 'section 6010 does not go beyond what
has been judicially declared to be the limits of the [F]ourteenth [A]mendment,' 612 F.2d at
98, this Court has never found that the involuntarily committed have a constitutional 'right
to treatment' much less the voluntarily committed." Id. at 16 n.12 (citing Sanchez v. New
Mexico, 396 U.S. 276 (1970); O'Connor v. Donaldson, 422 U.S. 563, 587-89 (1975) (Burger,
C.J., concurring)).
157 Pub. L. No. 96-398, 94 Stat. 1564 (1980), repealed in part by Pub. L. No. 97-35 §
902(e)(1), 95 Stat. 560 (1981). The Mental Health Systems Act extended appropriations
provided in the Community Mental Health Center Act, Pub. L. No. 94-63, 89 Stat. 309, 352
(1975), repealed by Pub. L. No. 97-35 § 902(e)(2)(B), 95 stat. 560 (1981).
258 42 U.S.C. § 9501 (Supp. IV 1980).
259 See Philipp v. Carey, 517 F. Supp. 513, 520 (N.D.N.Y. 1981); Medley v. Ginsberg,
492 F. Supp. 1294, 1305-07 (S.D. W. Va. 1980) (both courts holding that plaintiffs' allega-
tions that defendants unconstitutionally failed to provide adequate community facilities and
services stated a claim based on § 504 of the Rehabilitation Act).
11o446 F. Supp. at 1322 (citing PA. STAT. ANN. tit. 50, § 4201 (Purdon 1969)).
261 Id. (citing In re Joyce Z., No. 2035-69 (Pa. C.P., Allegheny Cty. Mar. 31, 1975)).
282 673 F.2d at 656. The Third Circuit relied heavily upon a Pennsylvania Supreme
Court decision, In re Joseph Schmidt, 494 Pa. 86, 429 A.2d 631 (1981), which had held that
treatment in the least restrictive setting was required by the statute.
ment statutes. 6 3 While the statutes in various jurisdictions do not

refer to it explicitly, they nonetheless implicitly recognize the doc-
trine by requiring judicial consideration of alternative courses of
treatment which will be in the best interest of the patient.26 It was
on the basis of this type of statute that the court in Dixon v.
Weinberger,"' held that the statutory right to treatment includes
treatment in the least restrictive setting suitable to the patient's
needs. 266 The court stated:
The responsibility and involvement of the Hospital ... does
not abruptly cease as a patient slowly moves from restrictive
confinement in the Hospital to the less restrictive atmosphere
of an alternative facility, pursuant to a plan of treatment dic-
tated by the Hospital staff. To determine otherwise would be
to disregard the fact that "housing" (as the government puts
it) is integrally related to "treatment" within the purposes of
the 1964 Act, and has been determined to be such by the
26 7
Hospital staff.
Relying upon the Dixon decision, a New Jersey superior court
has construed its state commitment statute, which explicitly re-
quires the least restrictive conditions of confinement,266 to support
a right to community aftercare. In Patients v. Camden County
Board of Chosen Freeholders,as the court first ordered improve-
'" See, e.g., N.C. GEN. STAT. § 122-158.1 (1981) (committed persons to be discharged as
soon as a less restrictive mode of treatment is appropriate); Wis. STAT. ANN. §
51.20(13)(c)(2) (West Supp. 1981). See Hoffman & Foust, supra note 215, at 1113 n.48 (list-
ing states that explicitly refer to this doctrine in their commitment statutes).
24 See, e.g., ARmZ. Ray. STAT. ANN § 36-540 (Supp. 1981) (suitable alternative treat-
ment); MICH. Comp. LAws ANN. § 330.1469 (1979) (alternatives adequate to meet treatment
need and sufficient to prevent harm to self or others). See Hoffman & Foust, supra note 215,
at 1113, n.49 (listing states that implicitly refer to the doctrine).
265 405 F. Supp. 974 (D.D.C. 1975) (construing 21 D.C. CODE ANN. §§ 501-592 (1981)).
The D.C. Code provides for judicial consideration of any alternative course of treatment in
the best interest of the person or the public. 21 D.C. CODE ANN. § 545(b) (1981).
26 405 F. Supp. at 978-79. The court noted that a D.C. superior court case had recog-
nized the propriety of placement in a least restrictive alternative facility during the course
of treatment (i.e., after an initial confinement) and had ordered the District of Columbia to
provide promptly for such placement despite lack of staff and facilities and despite budget-
ary limitation. In re Johnson, 103 WASH. L. REP. 1913 (1975).
21 405 F. Supp. at 979.
26 N.J. STAT. ANN. 30:4-24.2(e)(2) (1981).
26 No. L-33417-74 P.W. (N.J. Super. Ct., Camden Cty. Jan. 19, 1981), discussed in 5
ments in conditions at Lakeland Hospital and periodic reviews of

the status of patients confined there. As a result of the reviews,
many patients were ordered discharged. However, the medical di-
rector at Lakeland refused to discharge patients unless adequate
aftercare facilities were available, stating:
[T]here is no therapeutic virtue, there is no legal virtue, there
is no humanistic virtue in getting a psychiatric patient with a
chronic personality disturbance out of a psychiatric facility
into an environment which is incapable of appreciating his
needs or taking care of his
20
needs under the guise of taking
care of his civil liberties. 7
Plaintiffs then brought further proceedings seeking recognition

of a right to aftercare both for current patients and for former pa-
tients who faced the possibility of returning to confinement either
voluntarily or involuntarily. The court, relying solely on the New
Jersey Constitution and commitment statute, granted summary
judgment for plaintiffs, noting that the New Jersey commitment
statute both requires treatment under the least restrictive condi-
tions and recognizes a state responsibility for discharge planning
and aftercare.27 1 Although the appellate division found the issues
in this case too complex to support a motion for summary judg-
ment, in remanding the cause for further proceedings it explicitly
directed the trial judge to give full and careful attention to the
need for supervision, care, and medication after discharge, and to
consider "the nature of so-called 'after care'
272
treatment, including
both professional attention and facilities.
Some states also have statutory discharge planning requirements

upon which advocates of community care can rely. For example,
the New York Mental Hygiene Law mandates that patients in
state facilities be discharged under a written discharge plan which
specifies the patient's need for supervision and aftercare and rec-
MENrALDizsAmrru.rry L. REP. 108 (1981), vacated Nos. A-3271-80T3, A-4402-80T3 (N.J. App.
Div. Feb. 17, 1982).
270Nos. A-3271-80T3, A-4402-80T3, slip op. at 4 (statement of Dr. H. Edward Yaskin).
2711 Id. at 9.
272 Id. at 4.
ommends appropriate residential placement.2 3 The New York reg-

ulations further provide that the facility, in cooperation with other
public and private agencies, "shall take all necessary steps to ob-
tain an adequate supply of safe, convenient and appropriate hous-
' '274
ing for patients to be discharged or conditionally released.
Based on these provisions, as well as on constitutional and other
statutory grounds, the Coalition for the Homeless recently filed
suit seeking aftercare for homeless former state hospital
patients. 5
Suits seeking community care can be extremely effective. For ex-

ample, in Wuori v. Zitnay,7 e the plaintiffs alleged that the men-
tally retarded residents of Maine's Pineland Center were denied
appropriate care and were unnecessarily retained pending develop-
ment of community placements, and that former patients placed in
the community received inadequate 'assistance and services. The
suit was settled by consent decree. The first part of the decree gov-
erned treatment within the institution; the second part set stan-
dards for conditions, care, and training in the various community
facilities. Implementation of this decree has resulted in more
than 200 new beds in small, community-based facilities.2 78
While class actions seeking development of community alterna-

tives are highly important, there are problems with relying solely
on such suits. Such actions require a substantial commitment of
legal resources. With funding for legal services decreasing, the like-
lihood of federal involvement in such suits diminishes, and they
213 N.Y. MENTAL HYG. LAW § 29.15(9) (McKinney Supp. 1981).

27 N.Y. ADMIN. CODE tit. 14, § 36.4(a)(1) (1973).
"I Klostermann v. Carey, No. 11270/82 (N.Y. Sup. Ct., N.Y. Cty. filed May 20, 1982).
27'No. 75-80-SD (D.Me. July 14, 1978), discussed in 2 MENTAL DISABILITY L. REP. 693-
96, 729-40 (1978).
" The detailed order required, among other things, an individual plan of care and
education for each class member placed in the community, access to medical care and physi-
cal, occupational, and speech therapy as needed, and support services for families of re-
tarded persons who keep the retarded person in their home. It set standards for community
residences, including adequate privacy, and acceptable patient/staff ratios, and limitations
on medication and restraint of residents. See 2 MENTAL DsABmLrrY L. REP. 729, 730-40
(1978).
27 MENTAL HEALTH LAW PROJECT SUMMARY OF AcIvImEs, July 1979-June 1981, at 9, 9.
will become increasingly difficult to prosecute.17 9 Decrees ordering

the creation of residential facilities can be difficult to enforce, since
plaintiffs usually lack the resources to develop a plan for setting up 2
residential facilities and defendants may be reluctant to do So. 80
Also, state social and mental health services often are so frag-
mented that no one defendant may possess the power or responsi-
bility to implement a rational program of deinstitutionalization
and development of community facilities.28 1 It has been suggested
that perhaps the most such suits can require is establishment of an
administrative framework into which public 2and s2
private programs
essential to deinstitutionalization can be fit.
As well as seeking to establish community facilities through class

action suits, advocates for the mentally disabled can press claims
for treatment in residential facilities in individual commitment
hearings if the patients will agree to such placement. If community
facilities are scarce, the court's attention could be directed toward
this problem. In an Ohio case, after hearing evidence on the inade-
quacies of institutional placements for a retarded woman, the court
ordered state and local officials to develop a community placement
more suited to her needs. 283 Another court concluded that place-
279 Some mental health activists believe that such suits are virtually impossible to pros-
ecute without federal assistance, due to the immense amount of factual investigation and
proof required. See Civil Rights for Institutionalized Persons:Hearings on H.R. 2439 and
H.R. 5791 Before the Subcomm. on Courts, Civil Liberties, and the Administration of Jus-
tice of the House Comm. on the Judiciary, 95th Cong., 1st Sess. 141-42 (1977) (testimony of
Paul R. Friedman, Managing Attorney, Mental Health Law Project).
280 Ewing, supra note 40, at 685. Plaintiffs have sought special masters, funded by de-
fendants through the court, to aid in developing a deinstitutionalization plan. See, e.g.,
Plaintiff's Motion for Enforcement of Decree and Appointment of a Master and Expert
Panel, Dixon v. Weinberger, No. 75-285 (D.D.C. filed July 31, 1978). See generally Note,
Implementation Problems in InstitutionalReform Litigation, 91 HARv. L. REv. 428, 437-40
(1977).
181 Ewing, supra note 40, at 686.
211 Id. at 686 & n.37. In Wuori, state defendants agreed to seek the cooperation of
nondefendant state officials and agencies necessary for the successful placement of retarded
children and adults. In addition, defendants agreed to provide legal assistance to plaintiffs
in certain circumstances, such as when zoning objections to the locations of group homes
were raised. See 2 MENTAL DIsABmUrrY L. REP. 729, 734 (1978).
283 In re Deborah P., No. 76-26504 (Ohio C.P., Pickaway Cty. Apr. 6, 1977), discussed
in Herr, The New Clients:Legal Services for Mentally Retarded Persons,31 STAN. L. REv.
553, 601 (1979).
ment of a retarded girl in a foster home would be preferable to an
institution, and ordered the county to find suitable foster parents
and to pay for appropriate services."" Similar tactics can be used
in representing the mentally ill in cases where some sort of treat-
ment is necessary. Of course, individual advocacy, though impor-
tant, faces serious problems as well, since resources for legal ser-
vices are being cut back and since such advocacy simply cannot
effect large-scale changes in mental health policy.
C. Administrative and PoliticalAdvocacy

The central problem with providing community care for the
mentally ill is that funds have not followed patients from the insti-
tution to the community. Just as class actions seeking community
care are necessary to force state and local governments to create
community facilities, alternative modes of advocacy are needed to
encourage diversion of state funds from large institutions to resi-
dential facilities, to promote community support for such facilities,
to improve conditions at existing facilities, and to obtain state and
federal benefits for the mentally disabled. While exploration of al-
ternative modes of advocacy is a subject worthy of an entire arti-
cle, and this article cannot discuss such alternatives in detail, it is
possible to suggest various directions in which advocates for ser-
vices for the mentally ill can turn.
Health planning laws provide an opportunity for advocacy on
behalf of the mentally ill. Margaret Ewing has written a thorough
article discussing the use of these laws in promoting community
care for the mentally retarded. 85 She specifically discusses section
1122 of the Social Security Act, which authorizes the Secretary of
Health and Human Services to prevent the use of federal funds for
building or renovating health care facilities that are found to be
unnecessary or inappropriate by designated state planning agen-
"" In re Joyce A., 4 Pa. D. & C. 3d 596 (Pa. C.P., Allegheny Cty. 1975). See also In re
Stanley P., No. 14934 (Mass. Dist. Ct., Dorchester Cty. May 11, 1978) (officials ordered to
develop a suitable community placement by court-endorsed consent agreement); In re Ste-
phanie C., No. J-184929 (Pa. C.P., Philadelphia Cty. June 30, 1977) (court found mildly
retarded girl no longer in need of institutional placement and ordered the institution to
develop a community-based supervised living arrangement for her and another resident).
'85See generally Ewing, supra note 40.
cies,28 6 and the National Health Planning and Resources Develop-

ment Act, which requires the establishment of state planning pro-
cedures.28 7 Under section 1122, a designated state agency, which
must have either a governing board or an advisory board with one-
half of its members representing consumer interests, 288 must evalu-
ate proposals for construction or renovation and consider the need
for proposed services, the availability of alternative methods of
providing services, and the availability of alternative uses of re-
sources."8 " The state agency also must periodically review the ap-
propriateness of existing facilities. 9 0
Community care advocates can exert influence under these plan-

ning acts in various ways. They -can comment on proposed plans
and present testimony to state planning agencies concerning the
deficiencies of providing care in large institutions."' Persons di-
rectly affected by a proposed institution are entitled to a public
hearing before the state or local planning agency, and there they
can suggest alternatives to a proposed institutional construction or
renovation.29 2 Effective advocacy before such planning bodies
could educate them concerning the needs of the mentally ill and
the feasibility of various alternatives.9 Ewing also discusses the
possibility of judicial review of the section 1122 administrative pro-
:86 Id. at 687. See 42 U.S.C. § 1320a-1 (1976 & Supp. IV 1980).
287 Ewing, supra note 40, at 693-96. See 42 U.S.C. §§ 300e-4, 300m-300t (1976 & Supp.
IV 1980). Ewing also discusses the Mental Retardation Facilities and Community Health
Centers Construction Act, which requires that deinstitutionalization policies be considered
in state health planning decisions. Pub. L. No. 88-164, 77 Stat. 282 (1963) (amended 1965).
See Ewing, supra note 40, at 701-03.
288 42 C.F.R. § 100.105(b) (1981). The state agency is usually located in a state umbrella
agency such as a department of human resources. Ewing, supra note 40, at 693 n.58.
289 42 C.F.R. §§ 122.310, 123.412(a) (1981).
280 42 U.S.C. §§ 3001-2(g), 300m-2(a)(6), -2(b)(3) (1976 & Supp. IV 1980). This is dis-
cussed in detail in Ewing, supra note 40, at 697-99. She notes that some state agencies have
effectively closed unneeded or obsolete health care facilities by refusing them renovation
approval, and that this is a type of de facto decertification. Id. at 698-99.
:'I Ewing, supra note 40, at 699.
282 42 C.F.R. § 123.410(a)(8) (1981). Ewing notes that "these public hearings are not
due process hearings, or even full administrative hearings," and that "only the proponent of
a capital expenditure or a Health Systems Agency is entitled to an administrative fair hear-
ing on an adverse state agency decision." Ewing, supra note 40, at 701. See 42 U.S.C. §
1320a-l(d)(1)(B)(ii)(H) (1976 & Supp. IV 1980); 42 C.F.R. § 123.410(a)(11) (1981).
29 See Ewing, supra note 40, at 713.
cess 294 and of an implied private right of action against state plan-
ning bodies by persons adversely affected by their decisions. 29 5 An-
other possibility would be an action for specific performance by
persons who would benefit from the state's compliance with federal
requirements, on the theory that they are third party beneficiaries
of the section 1122 agreement between the states and the federal
government. 26 Also, various statutory provisions potentially could
support a private action to compel the federal government to re-
2 97
view state determinations.
Other types of actions also could be helpful to the mentally ill in
obtaining benefits in the community. For example, the Mental
Health Law Project has articulated the goal of seeking services in
the community for the mentally disabled by bringing actions to en-
force their rights to benefits such as Medicaid and Supplemental
Security Income, supported by section 504 of the Rehabilitation
Act of 1973.298 The Project also will encourage state professional
and consumer organizations to lobby for inclusion of nonmedical
services in state Medicaid programs.299 Seeking federally supported
housing is also important.300 In jurisdictions like New York, advo-
294 Id. at 705-06.

295 Id. at 706-09.
296 Id. at 708-09 & n.124. See NAACP v. Wilmington Medical Center, 453 F. Supp. 280,
329-30 (D. Del. 1978) (court recognized the right of plaintiff consumers, as third party bene-
ficiaries to a contract between HEW and the proponent of a health care facility, to seek
enforcement of the contract against the facility or to compel HEW to enforce the contrac-
tual assurances against the facility for their benefit).
", Ewing, supra note 40, at 711. Ewing suggests § 1122 of the Social Security Act, § 504
of the Rehabilitation Act of 1973, and the Developmentally Disabled Assistance and Bill of
Rights Act. Success under this last Act is unlikely because of the Supreme Court's decision
in Pennhurst.See notes 161-66, 248-59 supra and accompanying text.
290 MENTAL HEALTH LAW PROJECT SUMMARY OF AcTvlTrEs, July 1979-June 1981, at 3, 3.
299 Id.
20 Programs permitting federal rent subsidies for low income residents in independent
group living arrangements have been construed by HUD to permit more federal assistance
to community group living arrangements for the elderly and handicapped. See 24 C.F.R. §§
882.101-.217 (1982) originally amended in 43 Fed. Reg. 61,240 (1978) to aid the establish-
ment of independent group residences for elderly, handicapped, and disabled individuals.
The rent subsidies themselves are authorized by 42 U.S.C. § 1437f (1976 & Supp. IV 1980).
Jane Bloom Yohalem notes that although housing assistance legislation was amended in
1974 to authorize assistance to mentally disabled persons, very little federal funding has
actually been used for this purpose. She suggests various ways in which advocates can work
to obtain more funds for housing the mentally disabled. See Yohalem, Federal Housing for
cates can work to eliminate tax incentives that are given to owners
to convert SRO's, where many former patients reside, to more
profitable residences for the middle and upper classes.30 1
If community facilities are to be developed the money must
come from somewhere. Realistically, providing good community
care will not be inexpensive.3 0 2 But vastly increased mental health
allocations will not be necessary if states will only redirect their
funding priorities to reflect today's realities. Although large num-
bers of patients have been released, few hospitals have been
closed.303 While the hospitals remain open, their high costs for ser-
vices, staff, and facilities usurp funds that could be allocated to
community care.30 4 In hearings before state agencies, advocates
must support the closing of unnecessary state hospitals in order to
provide additional funds for community care. 305 Political action,
such as lobbying for the closing of state institutions, will become
increasingly important as judicial activism is diminished by cut-6
30
backs in the funding of legal services and public interest groups.
If the effort to phase out hospitals is to be successful, advocates
must address the local community's legitimate concerns about the
the Mentally Disabled, reprinted in 2 PRACTICING LAW INsrruTE, LEGAL RIGHTS OF MEN-
TALLY DISABLED PERSONS 1743, 1745 (1979).
301 PRIVATE LIVEs, supra note 8, at 32.
30 See GAO REPORT, supra note 12, at 5-6 (discussing various studies which show ei-
ther that community care costs less than institutional care or costs approximately the same
amount).
803 CouNTRY ASYLUMS, supra note 1, at 9. To date, no New York state hospitals have
been closed, although a college has offered to buy one of them. Conversation with Cindy
Friedmutter, counsel, Office of the President of the New York City Council, Jan. 12, 1982.
This is despite the fact that the number of residents in the 24 state institutions has fallen
from 85,000 in 1965 to 25,000 in 1979. CouNTRY ASYLUMS, supra note 1, at 1.
304 See generally CouNTRY AsYLuMs, supra note 1, which recommended the closing of
six state hospitals, the development of alternative uses for the closed hospitals, such as com-
munity care, and the retraining of the staff of the hospitals to provide community mental
health care.
805 The closing of state hospitals faces various obstacles. Some states permit the closing
of a hospital found to be unnecessary by state planning bodies, but require legislative ap-
proval. See, e.g., N.Y. MENTAL HYG. LAW § 13.15 (McKinney 1978 & Supp. 1981-1982); N.Y.
PuB. HEALTH LAW § 2806 (McKinney 1977 & Supp. 1981-1982).
306 In New York the State Communities Aid Association is setting up a statewide advo-
cacy network to attempt to change funding priorities. See NEW YORK STATE COMMuNITIES
AID ASSOCIATION, THE CASE FOR CORRECTING THE IMBALANCE: COMMUNITY MENTAL HEALTH
SERVICES AND THE STATE PSYCHIATRIC SYSTEM (1981).
threat to its economy by pointing out that staff can be retrained

and hospital facilities can be sold or leased for alternative uses
7
which will be beneficial to the community.30
As well as redirecting funding toward community alternatives,

advocates must gain community support for such residential facili-
ties. Barriers such as discriminatory zoning regulations which pre-
vent the establishment of group homes in residential areas can be
challenged by legal action s s and by lobbying for changes in zoning
regulations.30 9 Advocates also must make a serious attempt to ob-
tain community support for residential group homes, both because
community opposition can lead to the failure of a residential facil-
ity and because the community's concerns are legitimate. Taking
action to ensure that group homes and other community programs
are well run and adequately staffed will help diminish community
opposition.
Monitoring the conditions in residential facilities becomes in-

creasingly difficult as more such facilities are operated as private,
profit making ventures in which the patients' benefit checks go al-
most entirely to the owner of the facility. The desirability of per-
mitting this trend to continue is questionable; allowing entrepre-
neurs to maximize their profits through the suffering of the
mentally ill is not conducive to high quality care. But if this trend
cannot be reversed, advocates at least can work to ensure that con-
ditions in such facilities are adequately regulated. States are now
required by the Social Security Act to enact licensing standards for
307 See Lafave, Grunberg, Woodhouse, & Barrington, supra note 102, at 184.
308 See State ex rel. Ellis v. Liddle, 520 S.W.2d 644 (Mo. App. 1975) (holding that state
policy of caring for disabled persons in the community preempts local ordinance banning
group homes); White Plains v. Ferraioli, 34 N.Y.2d 300, 357 N.Y.S.2d 449, 313 N.E.2d 756
(1974) (group home for ten foster children held within definition of "family," since residents
would operate as a family unit and reside there permanently); Abbott House v. Tarrytown,
34 A.D.2d 821, 212 N.Y.S.2d 841 (App. Div. 1970) (holding that state policy of caring for
disabled persons in the community preempts local ordinance banning group homes). See
generally Yohalem, Exclusionary Zoning, reprinted in 2 PRACTICING LAW INSTITUTE, LEGAL
RIGHTS OF MENTALLY DISABLED PERSONS 1673 (1979).
'0 Legal advocates in Minnesota have effectively eliminated zoning exclusions against
group homes for mentally retarded persons by lobbying for new zoning regulations. Herr,
supra note 283, at 605.
community facilities. 10 Some jurisdictions have not passed such

statutes, other jurisdictions have inadequate statutes or statutes
which are poorly enforced."1 1 Enforcement actions could help im-
prove conditions in existing community facilities. Additionally, if a
major problem of such facilities is overcrowding, relief perhaps
could include an order to create additional, state financed facili-
ties. Action to upgrade community residences is necessary both to
improve the quality of life of persons in such facilities and to show
communities that group homes do not destroy neighborhoods.
Finally, we must recognize societal funding limitations and set

our priorities accordingly. It has been noted that in some areas,
where conditions are particularly bad, mental health services must
be moved down on the list of priorities, so that basic survival needs
are provided for first.3 12 Clearly, the released mental patient's most
desperate need is for adequate shelter. Provision of room, board,
and some degree of supervision will be enough to allow some for-
mer patients to function in the community. For example, New
York City provides some6 on-site programs at certain SRO's in the
city. 3 3 These programs include hot lunches, assistance with appli-
cations for social service benefits, and some recreational and reha-
bilitation programs. Professional staff are available to evaluate res-
idents' needs for counseling and medication. These programs are
not expensive to run;3 1 4 yet when such services are provided, for-
mer patients are less likely to relapse. 5 Also, a model for a decent,
humane, and feasible type of program can be found in private vol-
untary shelters which, without attempting to "cure" or "rehabili-
tate" residents, simply provide shelter, warmth, and companion-
ship in an environment that fosters hope and respect. 31 6 Perhaps if
we recognize that many former mental patients never will be
"cured" or completely self-sufficient, we can redirect our resources
toward encouraging independence while providing the support and
810 42 U.S.C. § 1382e(e)(1) (1976).

11 Ewing, supra note 40, at 687 n.38.
3,2 Lafave, Grunberg, Woodhouse, & Barrington, supra note 102, at 197.
313 COUNTRY ASYLUMS, supra note 1, at 29.
314 Id. at 30.
315 Id. See also Cohen, Sichel, & Berger, supra note 81, at 79.
316 PRivATE LivEs, supra note 8, at 110-16.
supervision necessary to prevent their liberty from becoming that

coldly libertarian "freedom" to eat garbage.
VII. CONCLUSION
Advocates of rights of the mentally disabled have performed a
great service by helping to secure the release of patients from de-
humanizing public institutions. Unfortunately, in many areas of
this country the humanitarian purpose of deinstitutionalization
has been perverted, and the policy has resulted in the abandon-
ment of the mentally ill to their fates on city streets. While fiscal
conservatism is primarily to blame, the tendency of some advo-
cates to inflate the therapeutic value of the community, to overes-
timate the benefits of eliminating the label "mental illness," and to
seek liberty rather than services, may have contributed to this
problem. Liberty too easily becomes neglect, especially in an era
struggling with diminishing resources. But the limitations of a
purely libertarian approach have become far too obvious to ignore,
and advocates must now turn to the task of obtaining shelter and
services for the mentally ill. Only when we combine our commit-
ment to protecting their rights with an equal commitment to car-
ing for their needs, will the mentally ill enjoy the freedom to
choose lives of quality over lives of neglect.

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Bluebook 21st ed.

ALWD 6th ed.

APA 7th ed.

Chicago 17th ed.

McGill Guide 9th ed.

AGLC 4th ed.

MLA 8th ed.

OSCOLA 4th ed.

"From Country Asylums to City Streets,"1 "From Back Wards to

TO BACK ALLEYS (1978) [hereinafter cited as BACK ALLEYS].

Social reformers, health planners, and legal advocates of the

lishment of group homes, and other factors have contributed to

II. DEINSTITUTIONALIZATION: ITS BACKGROUND AND CAUSES

Deinstitutionalization-the movement of patients from state

A. Initial Causes of Deinstitutionalization

12 GENERAL ACCOUNTING OFFICE, RETURNING THE MENTALLY DISABLED TO THE COMMU-

populations was the introduction of antipsychotic drugs for the

Attributing the decrease in patient population to the new drugs

11 See A. SCULL, supra note 6, at 80.

the number of inpatients. 21 Although the effects of the drugs were

tionalized. ''2 5 Thus the institution itself was exposed as being

tient populations began to decline. As they did so, states canceled

B. Legislative and Judicial Developments Contributing to

Various federal aid programs which were not necessarily in-

4- 42 U.S.C. §§ 1396-1396i (1976 & Supp. IV 1980).

community. 51 Since mental patients could receive federal subsidies

:1 See GAO REPORT, supra note 12, at 124-32.

sponded to such suits by releasing large numbers of patients."

57 See Robitscher, Moving Patients Out of Hospitals-In Whose Interest? in STATE

tives.6 5 Judicial decisions and statutes have reduced the length of

III. THE FAILURES OF DEINSTITUTIONALIZATION

It is abundantly clear that deinstitutionalization has failed to

A. Conditions in Community Facilities

349 F. Supp. at 1084-93.

B. Welfare Hotels in the Community

York City, anywhere from 10,000 to 20,000 discharged state psychi-

Released patients left to fend for themselves may be unable to

"revolving door" syndrome, moving to dilapidated hotels or resi-

C. Total Failure - Homelessness

Some former patients are not even so fortunate as to have a

84 H. SANTIESTEVAN, supra note 15, at 32.

proportionate numbers.8 9 Some incidents gain notoriety, such as

IV. REASONS FOR THE FAILURES

In one sense, the reason deinstitutionalization has failed is sim-

ever, local officials often simultaneously assumed that federal so-

follow patients from institutions to community settings.9s Despite

While deinstitutionalization's failures do not indicate a problem

However, without disputing that deinstitutionalization is desirable

V. THEORETICAL CONTRIBUTIONS TO THE FAILURE OF

As discussed previously, sociological expos6s of institutional con-

A. The "Labeled" Deviant

population through the provision of alternative community services. Id. at 190.

rather than a cure, of their inmates' pathology.0 3 This argument,

See generally E.GOFFMAN, supra note 4.

See generally R. BARTON, INSTITUTIONAL NEUROSIS (1966); E. GOFFMAN, supra note

labeling theory, Thomas Scheff, suggests that just as persons who

that medical science, by viewing "mental illness" as a disease, le-

labeling theorists have performed the laudable function of showing

labeling theory has been oversimplified and misused. Emphasizing

B. The Romanticized Community

TIONS, supra note 119, at 33.