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SUPREME COURT OF THE UNITED STATES
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No. 92-351
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LEONARD HELLER, SECRETARY, KENTUCKY CABI-
NET FOR HUMAN RESOURCES, PETI-
TIONER v. SAMUEL DOE, by his mother
and next friend, MARY DOE, et al.
on writ of certiorari to the united states court
of appeals for the sixth circuit
[June 24, 1993]

  Justice Souter, with whom Justice Blackmun and
Justice Stevens join, and with whom Justice O'Connor
joins as to Part II, dissenting.
  Because I conclude that Kentucky's provision of different
procedures for the institutionalization of the mentally
retarded and the mentally ill is not supported by any
rational justification, I respectfully dissent.

                            I
  To begin with, the Court declines to address Doe's
argument that we should employ strict or heightened
scrutiny in assessing the disparity of treatment challenged
here.  While I may disagree with the Court's basis for
its conclusion that this argument is not -properly pre-
sented,- ante, at 5, I too would decline to address the
contention that strict or heightened scrutiny applies.  I
conclude that the distinctions wrought by the Kentucky
scheme cannot survive even that rational-basis scrutiny,
requiring a rational relationship between the disparity of
treatment and some legitimate governmental purpose,
which we have previously applied to a classification on the
basis of mental disability, see Cleburne v. Cleburne Living
Center, Inc., 473 U. S. 432, 446-447 (1985), and therefore
I need not reach the question of whether scrutiny more
searching than Cleburne's should be applied.  Cleburne
was the most recent instance in which we addressed a
classification on the basis of mental disability, as we did
by enquring into record support for the State's proffered
justifications, and examining the distinction in treatment
in light of the purposes put forward to support it.  See
id., at 450.  While the Court cites Cleburne once, and does
not purport to overrule it, neither does the Court apply
it, and at the end of the day Cleburne's status is left
uncertain.  I would follow Cleburne here.

                           II
  Obviously there are differences between mental retarda-
tion and mental illness.  They are distinct conditions, they
have different manifestations, they require different forms
of care or treatment, and the course of each differs.  It is
without doubt permissible for the State to treat those who
are mentally retarded differently in some respects from
those who are mentally ill.  The question here, however,
is whether some difference between the two conditions
rationally can justify the particular disparate treatment
accorded under this Kentucky statute.
  The first distinction wrought by the statute is the
imposition of a lesser standard of proof for involuntary
institutionalization where the alleged basis of a need for
confinement is mental retardation rather than mental
illness.  As the Court observes, four specific propositions
must be proven before a person may be involuntarily
institutionalized on the basis of mental retardation: -that:
(1) [t]he person is a mentally retarded person; (2) [t]he
person presents a danger or a threat of danger to self,
family, or others; (3) [t]he least restrictive alternative
mode of treatment presently available requires placement
in [a state-run institution]; and (4) [t]reatment that can
reasonably benefit the person is available in [a state-run
institution].-  Ky. Rev. Stat. Ann. 202B.040 (Michie
1991).  At issue in this case is only the application of this
provision to adults who have not been shown to be
mentally retarded, but who are simply alleged to be.  The
subject of such a proceeding retains as full an interest in
liberty as anyone else.  The State of Kentucky has
deemed this liberty interest so precious that, before one
may be institutionalized on the basis of mental illness, the
statutory prerequisites must be shown -beyond a reason-
able doubt.-  202A.076(2).  However, when the allega-
tion against the individual is one of mental retardation,
he is deprived of the protection of that high burden of
proof.  The first question here, then, is whether, in light
of the State's decision to provide that high burden of proof
in involuntary commitment proceedings where illness is
alleged, there is something about mental retardation that
can rationally justify provision of less protection.
  In upholding this disparate treatment, the Court relies
first on the State's assertion that mental retardation is
easier to diagnose than mental illness.  It concludes that
the discrimination in burdens of proof is rational because
the lessened -`risk of error'- resulting from the higher
burden of proof, see ante, at 9 (quoting Addington v.
Texas, 441 U. S. 418, 423 (1979)), can be understood to
offset a greater -ris[k] of an erroneous determination that
the subject of a commitment proceeding has the condition
in question- when the allegation is one of mental illness
rather than mental retardation, ante, at 8-9.  The Court
reaches essentially the same conclusion with respect to the
second prerequisite, that the individual present a danger
or threat of danger to himself or others.  See ante, at
9-10 (a determination of dangerousness may be made with
-more accura[cy]- with respect to the mentally retarded
than the mentally ill).
  In concluding, however, that the demands of minimal
rationality are satisfied if burdens of proof rise simply
with difficulties of proof, the Court misunderstands the
principal object in setting burdens.  It is no coincidence
that difficult issues in civil cases are not subject to proof
beyond a reasonable doubt and that even the most garden
variety elements in criminal cases are not to be satisfied
by a preponderance of evidence.  The reason for this is
that burdens of proof are assigned and risks of error are
allocated not to reflect the mere difficulty of avoiding
error, but the importance of avoiding it as judged after a
thorough consideration of those respective interests of the
parties that will be affected by the allocation.  See
Addington, 441 U. S., at 425.
  In a civil commitment proceeding, on the State's side of
the balance, are the interests of protecting society from
those posing dangers and protecting the ill or helpless
individual from his own incapacities.  Id., at 426.  On the
other side, it is clear that -[i]n cases involving individual
rights, whether criminal or civil, `[t]he standard of proof
[at a minimum] reflects the value society places on
individual liberty,'- id., at 425 (brackets in original and
citation omitted), which encompasses both freedom from
restraint and freedom from the stigma that restraint and
its justifications impose on an institutionalized person.
Id. at 425-426.
  The question whether a lower burden of proof is ratio-
nally justified, then, turns not only on whether ease of
diagnosis and proof of dangerousness differ as between
cases of illness and retardation, but also on whether there
are differences in the respective interests of the public and
the subjects of the commitment proceedings, such that the
two groups subject to commitment can rationally be
treated differently by imposing a lower standard of proof
for commitment of the retarded.  The answer is clearly
that they can not.  While difficulty of proof, and of
interpretation of evidence, could legitimately counsel
against setting the standard so high that the State may
be unable to satisfy it (thereby effectively thwarting efforts
to satisfy legitimate interests in protection, care, and
treatment), see id. at 429, that would at most justify a
lower standard in the allegedly more difficult cases of
illness, not in the easier cases of retardation.  We do not
lower burdens of proof merely because it is easy to prove
the proposition at issue, nor do we raise them merely
because it is difficult.  Nor do any other reasonably
conceivable facts cut in favor of the distinction in treat-
ment drawn by the Kentucky statute.  Both the ill and
the retarded may be dangerous, each may require care,
and the State's interest is seemingly of equal strength in
each category of cases.  No one has or would argue that
the value of liberty varies somehow depending on whether
one is alleged to be ill or retarded, and a mentally
retarded person has as much to lose by civil commitment
to an institution as a mentally ill counterpart, including
loss of liberty to -choos[e] his own friends and compan-
ions, selec[t] daily activities, decid[e] what to eat, and
retai[n] a level of personal privacy,- among other things.
Brief for American Association on Mental Retardation
(AAMR), et al. as Amici Curiae 12 (AAMR Br.).  We do
not presume that a curtailment of the liberty of those who
are disabled is, because of their disability, less severe
than the same loss to those who are ill.  Even if the
individuals subject to involuntary commitment proceedings
previously had been shown to be mentally retarded, they
would thus still retain their -strong,- legally cognizable
interest in their liberty.  Cf. Foucha, 504 U. S., at ___
(O'Connor, J., concurring in part and concurring in judg-
ment).  Even assuming, then, that the assertion of differ-
ent degrees of difficulty of proof both of mental illness and
mental retardation and of the dangerousness inherent in
each condition is true (an assertion for which there is no
support in the record), it lends not a shred of rational
support to the decision to discriminate against the re-
tarded in allocating the risk of erroneous curtailment of
liberty.
  The Court also rests its conclusion on the view that -it
would have been plausible for the Kentucky legislature to
believe that most mentally retarded individuals who are
committed receive treatment which is . . . less invasive
tha[n] that to which the mentally ill are subjected.-  Ante,
at 12.  Nothing cited by the Court, however, demonstrates
that such a belief would have been plausible for the
Kentucky legislature, nor does the Court's discussion
render it plausible now.  Cf. United States Railroad
Retirement Bd. v. Fritz, 449 U. S. 166, 179 (1980) (under
rational-basis scrutiny disparate treatment must be
justified by -plausible reasons-).  One example of the
invasiveness to which the Court refers is the use of (and
the results of the administration of) psychotropic drugs.
I take no exception to the proposition that they are exten-
sively used in treating mental illness.  See ante, at 11-12,
(citing authorities for the proposition that drugs are used
in treating mental illness).  Nor do I except to the propo-
sition that the appropriate and perhaps characteristic
response to mental retardation, but not to mental illness,
is that kind of training in the necessities of self-sufficiency
known as -habilitation.-  See ante, at 12 (citing authori-
ties describing such training).
  Neither of these propositions tells us, however, that the
same invasive mind-altering medication prescribed for
mental illness is not also used in responding to mental
retardation.  And in fact, any apparent plausibility in the
Court's suggestion that -the mentally retarded in general
are not subjected to th[is] medical treatmen[t],- ante, at
12, dissipates the moment we examine readily available
material on the subject, including studies of institutional
practices affecting the retarded comparable to those
studies concerning the treatment of mental illness cited
by the Court.  One recent examination of institutions for
the mentally retarded in Kentucky's neighboring State of
Missouri, for example, found that 76% of the institutional-
ized retarded receive some type of psychoactive drug and
that fully 54% receive psychotropic drugs.  See Intagliata
& Rinck, Psychoactive Drug Use in Public and Community
Residential Facilities for Mentally Retarded Persons, 21
Psychopharmacology Bull. 268, 272-273 (1985).  Another
study, this one national in scope, found that 38% of the
residents of institutions for the mentally retarded receive
psychotropic drugs.  See Hill, Balow, & Bruininks, A
National Study of Prescribed Drugs in Institutions and
Community Residential Facilities for Mentally Retarded
People, 21 Psychopharmacology Bull. 279, 283 (1985).
-Surveys conducted within institutions [for the mentally
retarded] have generally shown prevalences in the range
of 30% to 50% of residents receiving psychotropic drugs
at any given time.-  Aman & Singh, Pharmacological
Intervention, in Handbook of Mental Retardation 347, 348
(J. Matson & J. Mulick eds., 2d ed. 1991) (hereinafter
Handbook of Mental Retardation).
  Psychotropic drugs, according to the available material,
are not only used to treat the institutionalized retarded,
but are often misused.  Indeed, the findings of fact by a
United States District Court in North Carolina, another
State nearby Kentucky, show that in three hospitals, 73%
of persons committed as mentally retarded were receiving
antipsychotic drugs.  Less than half of these individuals
had been diagnosed as mentally ill as well as mentally
retarded following their commitment on the latter ground.
See Thomas S. v. Flaherty, 699 F. Supp. 1178, 1187
(WDNC 1988), aff'd, 902 F. 2d 250 (CA4), cert. denied,
498 U. S. 951-952 (1990).  The District Court found that
the institutionalized retarded plaintiffs -have been seri-
ously endangered and injured by the inappropriate use of
antipsychotic drugs.-  Flaherty, supra, at 1186.  See also
Halderman v. Pennhurst State School Hospital, 446 F.
Supp. 1295, 1307-1308 (ED Pa. 1977), aff'd 612, F. 2d 84
(CA3 1979), rev'd on other grounds, 451 U. S. 1 (1981)
(discussing evidence that 51% of the residents of a state
institution for the mentally retarded received psychotropic
drugs though less than one-third of those who received the
drugs were monitored to determine the effectiveness of the
treatment); Bates, Smeltzer, & Arnoczky, Appropriate and
Inappropriate Use of Psychotherapeutic Medications for
Institutionalized Mentally Retarded Persons, 90 Am. J.
Mental Deficiency 363 (1986) (finding that between 39%
and 54% of medications prescribed to mentally retarded
persons are inappropriate for the conditions diagnosed).
  These facts are consistent with a law review study of
drugs employed in treating retardation, which observed
that the reduction in the need for institutional staff
resulting from the use of sedating drugs has promoted
drug use in responding to retardation despite -frightening
adverse effects [including the suppression of] learning and
intellectual development.-  Plotkin & Gill, Invisible
Manacles: Drugging Mentally Retarded People, 31 Stan.
L. Rev. 637, 638 (1979).  There being nothing in the
record to suggest that Kentucky's institutions are free
from these practices, and no reason whatever to assume
so, there simply is no plausible basis for the Court's
assumption that the institutional response to mental
retardation is in the main less intrusive in this way than
treatment of mental illness.
  The Court also suggests that medical treatment for the
mentally retarded is less invasive than in the case of the
mentally ill because the mentally ill are subjected to
psychiatric treatment that may involve intrusive enquiries
into the patient's innermost thoughts.  See ante, at 11.
Again, I do not disagree that the mentally ill are often
subject to intrusive psychiatric therapy.  But the mentally
retarded too are subject to intrusive therapy, as the
available material on the medical treatment of the men-
tally retarded demonstrates.  The mentally retarded are
often subjected to behavior modification therapy to correct,
among other things, anxiety disorders, phobias, hyperactiv-
ity, and antisocial behavior, therapy that may include
aversive conditioning as well as forced exposure to objects
that trigger severe anxiety reactions.  See McNally,
Anxiety and Phobias, in Handbook of Mental Retardation
413-423; Mulick, Hammer, & Dura, Assessment and
Management of Antisocial and Hyperactive Behavior, in
Handbook of Mental Retardation 397-412; Gardner, Use
of Behavior Therapy with the Mentally Retarded, in
Psychiatric Approaches to Mental Retardation 250-275 (F.
Menolascino ed. 1970).  Like drug therapy, psychiatric
therapy for the mentally retarded can be, and has been,
misused.  In one recent case, a Federal District Court
found that -aversive procedures [including seclusion and
physical restraints were] being inappropriately used with
no evidence for their effectiveness and no relationship
between the choice of the procedure and the analysis of
the cause of the problem[,] . . . plac[ing] clients at ex-
treme risk for maltreatment.-  Lelsz v. Kavanagh, 673 F.
Supp. 828, 850 (ND Tex.) (internal quotation marks and
citation omitted), rev'd on unrelated grounds, 824 F. 2d
372 (CA5 1987).  Invasive behavior therapy for the
mentally retarded, finally, is often employed together with
drug therapy.  See McNally, supra, at 413-423; Mulick,
Hammer, & Dura, supra, at 397-412.
  The same sorts of published authorities on which the
Court relies, in sum, refute the contention that -[t]he
prevailing methods of treatment for the mentally retarded,
as a general rule, are much less invasive than are those
given the mentally ill.-  Ante, at 11.  The available
literature indicates that psychotropic drugs and invasive
therapy are routinely administered to the retarded as well
as the mentally ill, and there are no apparent differences
of therapeutic regimes that would plausibly explain less
rigorous commitment standards for those alleged to be
mentally retarded than for those alleged to be mentally
ill.
                           III
  With respect to the involvement of family members and
guardians in the commitment proceeding, the Court holds
it to be justified by the fact that mental retardation -has
its onset during a person's developmental period,- while
mental illness -may arise or manifest itself with sudden-
ness only after minority.-  Ante, at 15-16.  The Court sug-
gests that a mentally ill person's parents may have
-ceased to provide care and support- for him well before
the onset of illness, whereas parents are more likely to
have retained connection with a retarded son or daughter,
whose -proper course of treatment- may depend on
matters related to -observations made in a household
setting.-  Ante, at 16.
  These suggested distinctions, if true, would apparently
not apply to guardians, whose legal obligations to protect
the persons and estates of their wards would seem to
require as much connection to the one class of people as
to the other.  In any event, although these differences
might justify a scheme in which immediate relatives and
guardians were automatically called as witnesses in cases
seeking institutionalization on the basis of mental retarda-
tion, they are completely unrelated to those aspects of
the statute to which Doe objects: permitting these immedi-
ate relatives and guardians to be involved -as parties- so
as to give them, among other things, the right to appeal
as -adverse- a decision not to institutionalize the individ-
ual who is subject to the proceedings.  Where the third
party supports commitment, someone who is alleged to be
retarded is faced not only with a second advocate for
institutionalization, but with a second prosecutor with the
capacity to call and cross-examine witnesses, to obtain
expert testimony and to raise an appeal that might not
otherwise be taken, whereas a person said to require
commitment on the basis of mental illness is not.  This
is no mere theoretical difference, and my suggestion that
relatives or guardians may support curtailment of liberty
finds support in the record in this case.  It indicates that
of the 431 commitments to Kentucky's state-run institu-
tions for the mentally retarded during a period between
1982 and the middle of 1985, all but one were achieved
through the application or consent of family members or
guardians.  See Record, State's Answers to Plaintiff's First
Set of Interrogatories 2, 17.
  The Court simply points to no characteristic of mental
retardation that could rationally justify imposing this
burden of a second prosecutor on those alleged to be
mentally retarded where the State has decided not to
impose it upon those alleged to be mentally ill.  Even if
we assumed a generally more regular connection between
the relatives and guardians of those alleged to be retarded
than those said to be mentally ill, it would not explain
why the former should be subject to a second prosecutor
when the latter are not.
  The same may be said about the Court's second suggest-
ed justification, that the mentally ill may have a need for
privacy not shown by the retarded.  Even assuming the
ill need some additional privacy, and that participation of
others in the commitment proceeding should therefore be
limited -to the smallest group compatible with due pro-
cess,- ante, at 16, why should the retarded be subject to
a second prosecutor?  The Court provides no answer.
  Without plausible justification, Kentucky is being
allowed to draw a distinction that is difficult to see as
resting on anything other than the stereotypical assump-
tion that the retarded are -perpetual children,- an as-
sumption that has historically been taken to justify the
disrespect and -grotesque mistreatment- to which the
retarded have been subjected.  See Cleburne, 473 U. S.,
at 454 (Stevens, J., concurring) (internal quotation marks
and citation omitted).  As we said in Cleburne, the
mentally retarded are not -all cut from the same pattern
. . . they range from those whose disability is not immedi-
ately evident to those who must be constantly cared for.-
 Id., at 442.  In recent times, at least when imposing the
responsibilities of citizenship, our jurisprudence has
seemed to reject the analogy between mentally retarded
adults and nondisabled children.  See, e.g., Penry v.
Lynaugh, 492 U. S. 302, 338 (1989) (controlling opinion
of O'Connor, J.) (not -all mentally retarded people . . .
-by virtue of their mental retardation alone, and apart
from any individualized consideration of their personal
responsibility-inevitably lack the cognitive, volitional, and
moral capacity to act with the degree of culpability
associated with the death penalty-); see also id., at 340
(-reliance on mental age to measure the capabilities of a
retarded person for purposes of the Eighth Amendment
could have a disempowering effect if applied in other
areas of the law-).  But cf. ante, at 18 (citing Parham v.
J. R., 442 U. S. 584 (1979), a case about parents' rights
over their minor children).  When the State of Kentucky
sets up its respective schemes for institutionalization on
the basis of mental illness and mental retardation, it too
is obliged to reject that analogy, and to rest any difference
in standards for involuntary commitment as between the
ill and the retarded on some plausible reason.

                           IV
  In the absence of any rational justification for the
disparate treatment here either with respect to the
burdens of proof or the participation of third parties in
institutionalization proceedings, I would affirm the judg-
ment of the Court of Appeals.  Because of my conclusion,
that the statute violates equal protection, I do not reach
the question of its validity under the Due Process Clause.