Freedom’s Just Another Word For Nothing Left to Lose: When Defendants Exchange Their Rights as Criminal Defendants for “Benefits” that Result in Greater “Civil” Deprivations of Liberty

Arthur Baer, J.D., and Dennis Feld, J.D.

State deprivations of liberty take place in criminal and civil settings. In criminal proceedings, those facing trial may be found to lack capacity to assist in their own defense and be subject to “restoration” services by the state to make them fit for trial. Similarly, those found to lack responsibility because of psychiatric impairment at the time of criminal acts may be subject to State confinement and/or supervision based on pleas or findings of being not culpable for their criminal behavior by reason of mental disease or defect. In this workshop we will explore what happens when the deprivation of liberty that results is greater under the civil system of “treatment” than would result from criminal conviction. We will also explore what happens when the severity of custody without conviction may be punitive in nature, e.g., confined in a jail with no treatment or prospect of trial, or in State facilities akin to a prisons that may be more restrictive than needed for restoration that was intended. We will explore what may be done to challenge such deprivations. To do so, we will use examples of cases involving Jackson v. Indiana, 406 US 715 (1972), sought over the objection that greater liberty would result through statutory rights; state and federal habeas corpus proceedings, including those seeking transfers to less restrictive settings, and challenges to an unconstitutionally coerced pleas.