How Involuntary Commitment Could Become Indefinite Detention

In July 2025, President Donald Trump issued an executive order vowing to end “crime and disorder on America’s streets” caused, the administration asserted, by the record number of homeless people, many of them with mental illnesses. The president promised that, among other measures, involuntarily committing more Americans with mental illnesses  would “restore public order.” The risks to civil liberties that executive order created are now impossible to ignore. 

A recent lawsuit involving a man who has been involuntarily committed, despite the dismissal of his criminal charge, shows that involuntary commitment can lead to permanent federal detention for people who have not been convicted of any crime.

The executive order asserted that certain judicial decisions currently stand in the way of its implementation, so the president directed federal authorities to challenge these. He also encouraged involuntary commitment as an alternative to outpatient treatment and urged that federal resources “be directed toward ensuring, to the extent permitted by law, that detainees with serious mental illness are not released into the public because of a lack of” detention spaces.

The order is brief and vague. It does not name the case law that government lawyers plan to challenge, though one possibility is Olmstead v. L.C., a landmark 1999 case requiring the government to provide mental-health services “in the most integrated setting appropriate,” rather than defaulting to involuntary commitment. The order also lacks detail as to who should be detained and under what circumstances.

Enter the case of Duane Berry. Berry was indicted a decade ago on a count of conveying false information and hoaxes—a federal crime—for leaving a fake bomb outside a Bank of America branch. He bizarrely claimed that he was the legitimate owner of all the bank’s assets and was using the fake bomb as a way of repossessing them “in a stealth manner.” Berry’s charge carried a maximum of five years in prison. Following two rounds of competency hearings, the district judge found that he was incompetent to stand trial and dismissed the charges against him in December 2019.

Half a decade past the maximum date Berry could have been imprisoned had he been convicted, he remains in federal custody. This is because, several months after the dismissal of Berry’s criminal charge, he was transferred to a federal medical facility, and a few months after that, the district court ordered his involuntary commitment, citing the potential danger he posed to the public. The 4th Circuit affirmed that decision last June. Berry has yet to be released.

Nor is there any sign that he ever will be. In Berry’s case, the federal government is asserting a power to indefinitely detain any mentally ill person charged with a federal crime, even after charges are no longer pending.

My Cato Institute colleague Mike Fox and I filed a legal brief today at the Supreme Court arguing that Berry’s continued detention violates the principles of federalism. Whatever one’s thoughts are on the efficacy of or justification for involuntary commitment, Berry’s case is for the state government, not federal authorities, to address. 

It is worth highlighting the extraordinarily broad theory of involuntary commitment the federal government is raising in Berry’s case, because it previews what officials could try to do under Trump’s executive order. The government argues that it can seek to involuntarily commit anyone within its physical custody, even after losing any legal basis for holding them. In other words, no pending criminal charge, no problem: because the federal government was still holding Berry, albeit without a clear constitutional justification, nothing stood in the way of trying to commit him permanently. As our brief explains, most federal courts have rejected this gambit. Thank goodness we say: were the law otherwise, prosecutors could “unlawfully incarcerate defendants in perpetuity to initiate civil commitment proceedings.” 

The federal government never lacks imaginative ways to take people into physical custody. Just ask people arrested at recent immigration protests, many of whom were never even told why they were being detained. If the 4th Circuit is right, any of these people who have mental illnesses could be eligible for perpetual detention. Why bother going through the hassle of due process when the government could just arrest someone, identify a mental illness, dismiss the charges, and then seek commitment? After all, the federal government estimates that nearly half of all jail inmates have mental health problems.

Narrow contexts may exist where involuntary commitment is necessary for a patient’s safety or to protect the community. But replacing the constitutional rights of accused Americans with a shadow system of federal involuntary commitment is a haunting prospect when so many people are diagnosable as mentally ill and so many federal crimes exist to detain them for. Federal authorities should not be able to turn civil commitment into a life sentence for anyone the government deems inconvenient.

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