|Youngberg v. Romeo
644 F.2d 147, vacated and remanded.
[ Powell ]
[ Blackmun ]
[ Burger ]
Youngberg v. Romeo
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT
JUSTICE BLACKMUN, with whom JUSTICE BRENNAN and JUSTICE O'CONNOR join, concurring.
I join the Court's opinion. I write separately, however, to make clear why I believe that opinion properly leaves unresolved two difficult and important issues.
The first is whether the Commonwealth of Pennsylvania could accept respondent for "care and treatment," as it did under the Pennsylvania Mental Health and Mental Retardation Act of 1966, Pa.Stat.Ann., Tit. 50, § 4406(b) (Purdon 1969), and then constitutionally refuse to provide him any "treatment," as that term is defined by state law. Were that question properly before us, in my view, there would be a serious issue whether, as a matter of due process, the State could so refuse. I therefore do not find that issue to be a "frivolous" one, as THE CHIEF JUSTICE does, post at 330, n. [n1]
In Jackson v. Indiana, 406 U.S. 715 (1972), this Court, by a unanimous vote of all participating Justices, suggested a constitutional standard for evaluating the conditions of a civilly committed person's confinement:
At the least, due process requires that the nature and duration of commitment bear some reasonable relation to the purpose for which the individual is committed.
Id. at 738. Under this standard, [p326] a State could accept a person for "safekeeping," then constitutionally refuse to provide him treatment. In such a case, commitment without treatment would bear a reasonable relation to the goal for which the person was confined.
If a state court orders a mentally retarded person committed for "care and treatment," however, I believe that due process might well bind the State to ensure that the conditions of his commitment bear some reasonable relation to each of those goals. In such a case, commitment without any "treatment" whatsoever would not bear a reasonable relation to the purposes of the person's confinement.
In respondent's case, the majority and principal concurring opinions in the Court of Appeals agreed that,
[b]y basing [respondent's] deprivation of liberty at least partially upon a promise of treatment, the state ineluctably has committed the community's resources to providing minimal treatment.
644 F.2d 147, 168 (CA3 1980). [n2] Neither opinion clarified, however, whether respondent in fact had been totally denied "treatment," as that term is defined under Pennsylvania law. To the extent that the majority addressed the question, it found that "the evidence in the record, although somewhat contradictory, suggests not so much a total failure to treat as an inadequacy of treatment." Ibid.
This Court's reading of the record, ante at 311-312, and n. 7, supports that conclusion. Moreover, the Court today finds that respondent's entitlement to "treatment" under Pennsylvania law was not properly raised below. See ante [p327] at 316, n.19. Given this uncertainty in the record, I am in accord with the Court's decision not to address the constitutionality of a State's total failure to provide "treatment" to an individual committed under state law for "care and treatment."
The second difficult question left open today is whether respondent has an independent constitutional claim, grounded in the Due Process Clause of the Fourteenth Amendment, to that "habilitation" or training necessary to preserve those basic self-care skills he possessed when he first entered Pennhurst -- for example, the ability to dress himself and care for his personal hygiene. In my view, it would be consistent with the Court's reasoning today to include within the "minimally adequate training required by the Constitution," ante at 322, such training as is reasonably necessary to prevent a person's preexisting self-care skills from deteriorating because of his commitment.
The Court makes clear, ante at 315-316 and 324, that even after a person is committed to a state institution, he is entitled to such training as is necessary to prevent unreasonable losses of additional liberty as a result of his confinement -- for example, unreasonable bodily restraints or unsafe institutional conditions. If a person could demonstrate that he entered a state institution with minimal self-care skills, but lost those skills after commitment because of the State's unreasonable refusal to provide him training, then, it seems to me, he has alleged a loss of liberty quite distinct from -- and as serious as -- the loss of safety and freedom from unreasonable restraints. For many mentally retarded people, the difference between the capacity to do things for themselves within an institution and total dependence on the institution for all of their needs is as much liberty as they ever will know.
Although respondent asserts a claim of this kind, I agree with the Court that,
Ante at 318. Since the Court finds respondent constitutionally entitled at least to "such training as may be reasonable in light of [his] liberty interests in safety and freedom from unreasonable restraints," ante at 322, I accept its decision not to address respondent's additional claim.
If respondent actually seeks habilitation in self-care skills not merely to reduce his aggressive tendencies, but also to maintain those basic self-care skills necessary to his personal autonomy within Pennhurst, I believe he is free on remand to assert that claim. Like the Court, I would be willing to defer to the judgment of professionals as to whether or not, and to what extent, institutional training would preserve respondent's [p329] preexisting skills. Cf. ante at 321-323. As the Court properly notes,
[p]rofessionals in the habilitation of the mentally retarded disagree strongly on the question whether effective training of all severely or profoundly retarded individuals is even possible.
Ante at 316, n. 20.
If expert testimony reveals that respondent was so retarded when he entered the institution that he had no basic self-care skills to preserve, or that institutional training would not have preserved whatever skills he did have, then I would agree that he suffered no additional loss of liberty even if petitioners failed to provide him training. But if the testimony establishes that respondent possessed certain basic self-care skills when he entered the institution, and was sufficiently educable that he could have maintained those skills with a certain degree of training, then I would be prepared to listen seriously to an argument that petitioners were constitutionally required to provide that training, even if respondent's safety and mobility were not imminently threatened by their failure to do so.
The Court finds it premature to resolve this constitutional question on this less than fully developed record. Because I agree with that conclusion, I concur in the Court's opinion.
1. See also Garvey, Freedom and Choice in Constitutional Law, 94 Harv.L.Rev. 1756, 1787-1791 (1981); Welsch v. Likins, 550 F.2d 1122, 1126, and n. 6 (CA8 1977); Wyatt v. Aderholt, 503 F.2d 1305 (CA5 1974), aff'g Wyatt v. Stickney, 325 F.Supp. 781, 785 (MD Ala.1971).
2. In the principal concurring opinion, Chief Judge Seitz, for himself and three other judges, stated:
The state does not contest that it has placed the [respondent] in Pennhurst to provide basic care and treatment. Indeed, he has a right to treatment under state law, . . . and the fact that Pennhurst has programs and staff to treat patients is indicative of such a purpose. I believe that, when the purpose of confining a mentally retarded person is to provide care and treatment, as is undoubtedly the case here, it violates the due process clause to fail to fulfill that purpose.
644 F.2d at 176.
3. At trial, respondent's attorney requested a jury instruction that
[u]nder the Eighth and Fourteenth Amendments, state officials at a state mental hospital have a duty to provide residents of such institutions with such treatment as will afford them a reasonable opportunity to acquire and maintain those life skills necessary to cope as effectively as their capacities permit.
App. to Pet. for Cert. 94a-95a (emphasis added).
In this Court, respondent again argued that
without minimal habilitative efforts -- basic training in fundamental life skills -- institutionalized retarded persons not only will fail to develop such skills independently but also will lose the skills they may have brought with them into the institution. . . . Indeed, putting aside increased risks of physical harm, if a retarded individual loses all of his previously acquired skills through prolonged institutional neglect, then the State has worked positive injury. . . . Once [retarded persons] have been confined, they have no one but the State to turn to for help in gaining additional skills or, at least, preserving whatever skills and abilities they have.
Brief for Respondent 22-23 (emphasis added).