Dubious Delegation: Article III Limits on
Mental Health Treatment Decisions
A common condition of supervised release requires a defendant, post-
incarceration, to participate in a mental health treatment program. Federal
district courts often order probation officers to make certain decisions an-
cillary to these programs. However, Article III delegation doctrine places
limits on such actions. This Note addresses the constitutionality of delegat-
ing the “treatment program” decision, in which a probation officer decides
which type of treatment the defendant must undergo; the choice is often be-
tween inpatient treatment and other less restrictive alternatives. The
resolution of this issue ultimately depends on whether this decision consti-
tutes a “judicial act.” Finding support in lower court case law, this Note
argues that a “judicial act” encompasses decisions affecting the defend-
ant’s significant liberty interests. The Supreme Court case law and the
mental health literature make clear that significant liberty interests are at
stake in these “treatment program” decisions. Thus, delegating the
“treatment program” decision to probation officers is unconstitutional un-
der Article III. The Note concludes by suggesting a constitutionally
permissible scheme whereby the judge orders a maximally intrusive treat-
ment while giving the probation officer the discretion to choose a less
Table of Contents
Introduction .................................................................................... 1554
I. Background on Conditions of Supervised Release
and Probation Officers ..................................................... 1557
A. Conditions of Supervised Release ................................... 1557
B. Probation Officers ........................................................... 1559
II. Supreme Court Delegation Framework ....................... 1561
A. Development of the Doctrine .......................................... 1561
B. Application of the Adjunct Theory ................................... 1565
1. Article III Oversight .................................................. 1566
2. Presence of a Judicial Act ......................................... 1568
III. A Liberty-Centered Framework...................................... 1568
A. Confusion in the Circuits ................................................. 1569
B. A Proposed Framework: Finding a Judicial Act
Where There Has Been a Significant Deprivation
of Liberty ......................................................................... 1572
1. Case Law on Delegation to Probation Officers ......... 1572
2. Case Law on Delegation to Federal Parole Boards ... 1574
Michigan Law Review
3. Other Potential Tests ................................................. 1575
IV. Liberty and Inpatient Mental Health Treatment ..... 1577
A. Application of the Test ..................................................... 1577
B. Possible Solutions ............................................................ 1580
Conclusion ....................................................................................... 1582
In the federal criminal justice system, individual liberty is placed in the
hands of an array of decisionmakers. There is the police officer who decides
whether to investigate a suspicious character; the magistrate judge who ap-
proves a warrant to search someone’s home; the jury which decides whether
or not to convict; the district judge who orders a sentence; and the probation
officer who oversees the conditions of supervised release. Sometimes, these
roles bleed together. For example, a police officer may conduct a warrant-
less search in certain situations,1 and a judge may override a jury conviction
not supported by the evidence.2 This Note addresses the overlapping roles of
a probation officer and a judge in determining the type of mental health
treatment a defendant must undergo pursuant to a condition of supervised
Imagine that you have been convicted of a federal drug crime and you
have a history of addiction and mental health issues. You are now in court to
be sentenced. Once you hear that you will be spending the next five years in
prison, you do not even give a second thought to everything else the judge is
saying. You do your time, you are released from prison, and you meet your
probation officer. At that point, the officer, not the judge, decides you need
to spend more time confined—this time, in a restrictive inpatient mental
health facility. In fact, the judge, five years ago at sentencing, ordered the
probation officer to make such a decision.
This situation has become surprisingly common: judges, in their orders
regarding conditions of supervised release, regularly delegate to probation
officers certain mental health treatment decisions. While potentially trou-
bling from a policy perspective, this issue also has a constitutional
dimension. Article III limits the exercise of the judicial power to federal
courts,3 and thus may impose constitutional restraints on this practice. This
* J.D., May 2012, University of Michigan Law School. I would like to thank my Note
Editors, Rob Boley and Ted Koehler, as well as the entire Volume 110 Notes Office for their
friendship and support. Thanks are also due to Professors Nina Mendelson and Margaret Jane
Radin, along with the student participants in the Fall 2011 Student Scholarship Workshop, for
their candid comments and criticisms. Most importantly, I would like to thank all of the
Teitelbaums, Martins, and Heidts for their constant love and support.
1. United States v. Robinson, 414 U.S. 218 (1973) (holding valid a warrantless search
made incident to a lawful arrest).
2. Fed. R. Crim. P. 29.
3. “The judicial Power of the United States, shall be vested in one supreme Court, and
in such inferior Courts as the Congress may from time to time ordain and establish.” U.S.
Const. art. III, § 1; see also N. Pipeline Constr. Co. v. Marathon Pipe Line Co., 458 U.S. 50,
Article III Limits on Mental Health Treatment 1555
Note examines the constitutionality of delegating the “treatment program”4
decision: when judges order mental health treatment upon a defendant’s
release but allow the probation officer to determine—at a later time—the
type of treatment program the defendant must undergo.
The pressure on district judges to delegate more duties to probation of-
ficers is not surprising. Undoubtedly, it is necessary that probation officers
assume certain tasks in order to “support judicial functions,”5 as probation
officers “play a vital role in effectuating the sentences imposed by district
courts.”6 District court judges face an “ever-increasing workload.7 For ex-
ample, in California from 1983 to 1992, judges’ caseloads grew by 73
percent.8 This puts pressure on all facets of the judicial system, and it sug-
gests that judges will be driven to delegate more duties to probation officers.
As a practical matter, “courts cannot be expected to map out every detail of
a defendant’s supervised release.”9
It is also intuitive to leave certain decisions to a probation officer, who is
“a liaison between the sentencing court, which has supervisory power over
the defendant’s term of supervised release, and the defendant, who must
comply with the conditions of his supervised release or run the risk of revo-
cation.”10 With regard to mental health decisions, probation officers are
closer to the situation and can monitor the defendant’s progress over time,
making adjustments when necessary.11 If these decisions were left to judges,
judges would be forced to choose between making a single determination at
the time of sentencing or delaying a hearing for a later date.12
Despite the administrability and efficiency justifications for delegating
decisions to probation officers, there are benefits to having an Article III
judge make this decision. The Constitution imparts to Article III judges cer-
tain important protections; it ensures that (1) they have life tenure, unless
59 (1982) (plurality opinion) (“The judicial power of the United States must be exercised by
courts having the attributes prescribed in Art. III.”).
4. This phrase was created for the purposes of this Note and does not appear in the
5. United States v. Nash, 438 F.3d 1302, 1305 (11th Cir. 2006) (per curiam) (quoting
United States v. Taylor, 338 F.3d 1280, 1284 (11th Cir. 2003) (per curiam)).
Taylor, 338 F.3d at 1284.
7. S. Scott MacDonald & Cynthia Baroody-Hart, Communication between Probation
Officers and Judges: An Innovative Model, 63 Fed. Probation, no. 1, 1999, at 42, 42.
9. United States v. Pruden, 398 F.3d 241, 250 (3d Cir. 2005). Further, “district courts,
to remain efficient, must be able to rely as extensively as possible on the support services of
probation officers.” United States v. Johnson, 48 F.3d 806, 809 (4th Cir. 1995).
10. United States v. Bernardine, 237 F.3d 1279, 1283 (11th Cir. 2001) (quoting United
States v. Davis, 151 F.3d 1304, 1306–07 (10th Cir. 1998)) (internal quotation marks omitted).
11. Heather Barklage et al., Probation Conditions Versus Probation Officer Directives:
Where the Twain Shall Meet, 70 Fed. Probation, no. 3, 2006, at 37, 37 (“Because every
change in circumstance cannot be anticipated at the time of sentencing, it is helpful if the
conditions of supervision can be adjusted and modified, sometimes on very short notice, in
order to meet a particular offender’s needs or answer a particular concern in the community.”).
12. MacDonald & Baroody-Hart, supra note 7, at 42.
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impeached, and that (2) their compensation can never be diminished.13 Both
of these protections were meant to ensure the independence of the judiciary
from other branches of government, and this independence must be “jeal-
ously guarded.”14 Probation officers, by contrast, are not insulated by these
constitutional protections—it would be expensive and impractical to give
these employees life tenure and salary protections. Further, a defendant may
feel that he is being treated more fairly when a judge makes this type of de-
cision after hearing and weighing the arguments through the typical judicial
process—as opposed to the probation officer making the decision on his
own whims, potentially biased by his closer relationship to the defendant.15
While these practical concerns provide perspective, this issue must ulti-
mately be resolved according to Article III delegation doctrine. This Note
argues that it is unconstitutional for a judge to delegate to a probation officer
the decision regarding the type of mental health treatment a defendant must
undergo following his or her release from jail. Part I discusses the duties and
training of probation officers, as well as the mechanics of conditions of su-
pervised release.16 Part II argues that this delegation is impermissible under
the Supreme Court’s delegation precedent if and only if a “judicial function”
has been delegated—an issue on which the Court has provided no guidance.
Part III argues that a “judicial function” has been delegated when the proba-
tion officer is allowed to make a decision depriving the defendant of a
significant liberty interest. This framework finds support in the plentiful
lower court case law17 dealing with delegations to probation officers and
parole boards. Finally, Part IV analyzes the liberty interests at hand by fo-
cusing on Supreme Court civil commitment cases and inpatient treatment
literature and ultimately determines that this delegation is impermissible.
The Note concludes by outlining a proposed solution whereby a judge or-
ders the most restrictive treatment at the time of sentencing while giving the
probation officer discretion to choose a less restrictive alternative at a later
13. U.S. Const. art. III, § 1; see also N. Pipeline Constr. Co. v. Marathon Pipe Line
Co., 458 U.S. 50, 59 (1982) (plurality opinion).
N. Pipeline, 458 U.S. at 59–60.
See infra Section II.B.1.
16. This Note uses the term “supervised release” instead of probation, as this is the
terminology used for the federal system. E.g., 18 U.S.C. § 3583 (2006 & Supp. IV 2010).
17. Because Article III only applies to federal courts, state court delegation will not be
analyzed in this Note. ASARCO Inc. v. Kadish, 490 U.S. 605, 617 (1989) (“[T]he constraints
of Article III do not apply to state courts . . . .”). This applies even when state courts are adju-
dicating federal issues. Id.; see also Lucinda M. Finley, Note, Article III Limits on Article I
Courts: The Constitutionality of the Bankruptcy Court and the 1979 Magistrate Act, 80 Col-
um. L. Rev. 560, 572 (1980) (“[State courts do] not have to conform to article III requirements
but could nonetheless exercise some of the subject matter jurisdiction described in article III
. . . .”).
Article III Limits on Mental Health Treatment 1557
I. Background on Conditions of Supervised
Release and Probation Officers
This Part provides background information on the statutory and practical
considerations involved in the implementation of post-release mental health
conditions. Section I.A focuses on conditions of supervised release, specifi-
cally those dealing with mental health treatment. Section I.B details the
appointment, duties, and training of probation officers.
A. Conditions of Supervised Release
Several important statutory provisions enable judges to fashion condi-
tions of supervised release and allow courts to supervise a defendant
following his release from prison. These statutes limit the types of condi-
tions that can be placed upon a defendant, and conditions of supervised
release must comply with these statutes. However, compliance with a statute
is not sufficient to dispose of the challenge to delegation. Article III is a con-
stitutional provision, and it places limits even on these federal laws.18
18 U.S.C. § 3583(c) references factors to be used in determining condi-
tions of supervised release. These factors are also used in determining the
length of a sentence:
(1) the nature and circumstances of the offense and the history and charac-
teristics of the defendant;
(2) the need for the sentence imposed—
. . . 19
(B) to afford adequate deterrence to criminal conduct;
(C) to protect the public from further crimes of the defendant; and
(D) to provide the defendant with needed educational or vocational
training, medical care, or other correctional treatment in the most
. . . 20
(4) the kinds of sentence and the sentencing range established . . . ;
(5) any pertinent policy statement . . . ;
(6) the need to avoid unwarranted sentence disparities among defendants
with similar records who have been found guilty of similar conduct; and
(7) the need to provide restitution to any victims of the offense.21
See Marbury v. Madison, 5 U.S. (1 Cranch) 137, 180 (1803) (“[A] law repugnant to
the constitution is void . . . .”).
19. 18 U.S.C. § 3553(a)(2)(A) is omitted because 18 U.S.C. § 3853(c) excludes this as
20. 18 U.S.C. § 3553(a)(3) is omitted because 18 U.S.C. § 3853(c) excludes this as a
21. 18 U.S.C. § 3553.
Michigan Law Review
significant liberty interest, and nonlegal mental health treatment literature
supports this conclusion. Because the delegation issue will be adjudicated
on appeal before the probation officer ever makes a decision, the analysis
must be facial rather than as applied. In other words, since it is impossible to
know ex ante what decision the probation officer would ultimately make, it
makes sense to look at the deprivation of liberty of the officer’s most restric-
tive option. Thus, the focus will be on inpatient mental health treatment.
The Supreme Court has mandated significant procedural protections for
involuntary civil commitment, primarily because inpatient treatment is ex-
tremely restrictive on liberty. The Court first addressed civil commitment in
O’Connor v. Donaldson,199 when it considered whether a state could confine
an individual solely because he or she is determined to have a mental ill-
ness.200 The Court acknowledged that civil confinement may in some cases
protect the individual from self-inflicted harm but rejected the notion that
the possible increased quality of life in an institution was sufficient to hold
him against his will.201 Because the individual was not dangerous, the state’s
confinement was deemed a violation of due process.202
Four years later, the Court addressed the proper burden of proof for civil
commitment decisions in Addington v. Texas.203 The Court noted the need to
balance the individual’s liberty interests against the state’s legitimate parens
patriae interests in caring for its citizens, as well as its police power inter-
ests in protecting its citizens from the dangerous mentally ill.204 In
conducting this balancing test, the Court determined that due process re-
quires at least a “clear . . . and convincing evidence” standard.205 At the core
of both of these decisions was the liberty interest being infringed by inpa-
tient commitment, and the Court used strong language to assert this. In
O’Connor, the Court spoke of the individual’s “constitutional right to free-
dom.”206 In Addington, the Court noted that “civil commitment . . .
constitutes a significant deprivation of liberty that requires due process pro-
tection.”207 Even where an individual has already been convicted of a crime
(and arguably has lesser liberty interests), the Court has deemed post-
incarceration civil commitment a “massive curtailment of liberty.”208 The
Court’s holding that the Due Process Clause requires certain procedures
199. 422 U.S. 563 (1975).
O’Connor, 422 U.S. at 575.
Id. at 576. The issue of due process is outside the scope of this Note.
203. 441 U.S. 418 (1979).
Addington, 441 U.S. at 426.
Id. at 433 (internal quotations marks omitted).
O’Connor, 422 U.S. at 576.
Addington, 441 U.S. at 425.
208. Humphrey v. Cady, 405 U.S. 504, 509 (1972).
Article III Limits on Mental Health Treatment 1579
before a defendant’s transfer from a prison to a mental health facility also
supports this proposition.209
Literature on inpatient treatment further confirms the Court’s conclusion
that a significant liberty interest is at stake in inpatient mental health treat-
ment decisions. The typical inpatient stay restricts liberty in a way mirroring
that of a prison sentence. For example, patients often have limited access to
cell phones or other forms of communicating with the outside world.210 The
hospital or treatment facility may also confiscate the patient’s belongings.211
Some patients are barred from leaving the facility under any circumstances
because the doors are locked twenty-four hours a day.212 At the very least,
most patients are restricted to the hospital unit’s boundaries for the first
twenty-four hours, with any subsequent increase in freedom left in the hands
of doctors and nurses.213
Inpatient treatment also entails a risk of physical harm. Even with in-
creasing quality of care,214 there are still significant dangers in inpatient
treatment. For example, it is estimated that 150 deaths are caused each
year in the United States from the use of seclusion and restraints in psy-
chiatric hospitals.215 Further, a random sampling of 31 psychiatric hospital
patients detected 2,194 medication errors during the patients’ collective
1,448 inpatient days.216 58 percent of those errors were judged to have the
potential to cause severe harm.217 More serious methods are used for dis-
ruptive patients: “Seclusion is the placement and retention of an inpatient
in a bare room for containing a clinical situation that may result in a state
of emergency. Restraint involves measures designed to confine a patient’s
bodily movements.”218 Patients may be subject to potentially more serious
See Vitek v. Jones, 445 U.S. 480, 494–96 (1980) (“[P]risoners facing involuntary
transfer to a mental hospital are threatened with immediate deprivation of liberty . . . .”).
210. Lauri Kuosmanen et al., Deprivation of Liberty in Psychiatric Hospital Care: The
Patient’s Perspective, 14 Nursing Ethics 597, 601 (2007). These results were based on inter-
views of fifty-one patients in two acute psychiatric inpatient wards. Id. at 597.
Id. at 601 (citing clothes, money, and other personal belongings).
Id. at 600.
213. Richard L. Munich & Pamela K. Greene, Psychosocial Approaches in Inpatient
Psychiatry, in Principles of Inpatient Psychiatry 17, 20–21 (Fred Ovsview & Richard L.
Munich eds., 2009).
214. Nancy P. Hanrahan & Linda H. Aiken, Psychiatric Nurse Reports on the Quality of
Psychiatric Care in General Hospitals, 17 Quality Mgmt. Health Care 210, 210–11 (2008),
available at http://www.ncbi.nlm.nih.gov/pmc/articles/PMC2582015/pdf/nihms-75082.pdf. This
study sample consisted of 456 registered nurses permanently assigned to psychiatric units, as
well as a larger sample of 11,071 registered nurses who work permanently on medical, surgi-
cal, or medical–surgical units. Id.
Id. at 211.
218. Eila ES Sailas & Mark Fenton, Seclusion and Restraint for People with Serious
Mental Illnesses, Cochrane Database Systematic Revs. at 2 (2000), available at
D7F8DDD61E434CC071B2A425FC.d03t02 (“The rate of seclusion and restraint in the 23
Michigan Law Review
deprivations of liberty by being forced to take medications either orally or
by injection.219 These dangers have led to legitimate fears. In 2008, of those
with unmet mental health care needs, 9.6 percent did not seek treatment for
fear of being committed or being forced to take medicine.220 While such
serious liberty deprivations may not be the norm, these risks are probative of
the liberty interests at stake.
The literature and cases make clear that inpatient mental health treat-
ment can result in a significant curtailment of a defendant’s liberty interests.
Because imposing deprivations of liberty is a function of the judiciary, it
follows that the “treatment program” decision is an exercise of a judicial
function. And because the court delegates a judicial function and Article III
oversight is inadequate, delegating the “treatment program” decision to a
probation officer does not pass scrutiny under the “adjunct theory.” There-
fore, as interpreted by the Supreme Court, Article III requires that an Article
III judge make the “treatment program” decision.
B. Possible Solutions
While the main purpose of this Note is to establish the impermissibility
of delegation of the “treatment program” decision to a probation officer, the
discussion prompts the obvious question: how can the current scheme be
made constitutional? This Note outlines some potential solutions.
At one extreme, judges can simply decline to delegate this decision, al-
ways specifying in their orders the type of treatment program to be
administered. This would, of course, skirt the constitutional issue. It would
also result in the policy benefits of a having neutral, insulated decisionmaker
weighing all of the relevant considerations.221 The main objection to this
proposal is that probation officers can make more individually tailored deci-
sions, while making adjustments to the treatment over time.222 Judges, on
the other hand, have much less flexibility. While they technically could
modify their decision upon rehearing,223 docket control concerns would like-
ly preclude this.224 The practical result is that judges would be forced to
make an untailored treatment decision at the time of sentencing.
hospitals [studied] ranged from 0.4 to 9.4% of patients.”). These conclusions were drawn from
a survey of multiple studies. Id.; see also Munich & Greene, supra note 213, at 31 (“The pa-
tient is physically held and escorted with force or possibly put on the floor, and then carried by
staff to a seclusion area.”).
219. Kuosmanen et al., supra note 210, at 601.
220. Substance Abuse & Mental Health Servs. Admin., U.S. Dep’t of Health &
Human Servs., Results from the 2008 National Survey on Drug Use and Health:
National Findings 102 (2009), available at http://oas.samhsa.gov/nsduh/2k8nsduh/
See supra notes 13–15 and accompanying text.
See supra notes 11–12 and accompanying text.
See, e.g., United States v. Heath, 419 F.3d 1312, 1314 (11th Cir. 2005) (per curiam).
See supra notes 7–8 and accompanying text.
Article III Limits on Mental Health Treatment 1581
Another option is to create a framework with sufficient oversight by the
Article III judge so that delegation even of the judicial act can be permissi-
ble.225 Like the schemes in Crowell and Raddatz, the probation officers could
provide a proposal to be reviewed de novo by the district judge.226 Such a
scheme would be permissible, as it would avoid the main problem of having
all discretion delegated away in the judge’s final order. In fact, it would not
appear very different from the magistrate scheme approved in Raddatz.227
However, it is unclear whether this would be significantly less burdensome
than having a rehearing for the judge to modify the final decision. It still re-
quires further action taken by a judge and therefore raises the same efficiency
One proposal would likely avoid the constitutional issue while striking a
balance between the tailored decision by the probation officer and the neu-
tral decision-making of the Article III judge. The judge, at the sentencing
hearing, could set the maximum restrictiveness of the mental health program
while allowing the probation officer to choose a less restrictive program at
some point in the future. For example, the judge would order the defendant
to undergo “a health treatment program chosen by the probation officer, but
no more restrictive than an inpatient program [or program X].” This would
be consistent with the test outlined in this Note, as it would not allow the
probation officer to deprive the defendant of any additional liberty beyond
that which the judge ordered.228 The proposal would also allow probation
officers to tailor the decision over time, as long as they act within the con-
fines of the order. And here, as opposed to the impermissible wide-open
delegation, the judge must decide the maximum treatment after considering
its suitability for the particular defendant.
One may object that a judge can easily overcome this obstacle by rou-
tinely ordering inpatient treatment as the maximum, resulting in a delegation
of the entire decision to the probation officer. However, the same objection
could be made to other delegations the Supreme Court has deemed per-
missible. A judge could decide to always rubber stamp a magistrate’s
decision229 or the decision of an administrative agency.230 But we must
assume that the judge will follow the law—here, the law requires that the
judge give an independent judgment as to the propriety of the maximum
treatment. Further, as demonstrated above, a significant problem with this
See supra Section II.B.
See United States v. Raddatz, 447 U.S. 667, 681–82 (1980); Crowell v. Benson, 285
U.S. 22, 54 (1932).
See Raddatz, 447 U.S. at 682. Both magistrates and probation officers are appointed
by the courts. 18 U.S.C. § 3602 (2006); Raddatz, 447 U.S. at 685.
228. This is also consistent with the federal parole board case law, where judges were
permitted to set a maximum jail sentence and allow the parole board to shorten it. See supra
Section III.B. It is also consistent with the drug test cases, where the courts found it permissi-
ble for the judge to set a maximum number of drug tests in conditions of supervised release.
See supra notes 158–161 and accompanying text.
See Raddatz, 447 U.S. 667.
See Crowell, 285 U.S. 22.
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decision is that judges do not realize what it is they are delegating.231 Forc-
ing the judge to articulate the maximally intrusive treatment solves this
problem by bringing the delegation front and center. Under the proposed
solution, the judge would be required to contemplate the implications of the
treatment and its appropriateness for the particular defendant.
While “courts cannot be expected to map out every detail of a defend-
ant’s supervised release,”232 Article III places limits on which details must in
fact be mapped out by courts. The mental health “treatment program” deci-
sion is one such detail. Supreme Court precedent makes clear that the
scheme under which this decision is made does not provide sufficient over-
sight over judicial acts delegated from the Article III judge to the probation
officer. By applying the liberty-focused test proposed in this Note, the
“treatment program” decision—one with significant liberty ramifica-
tions—qualifies as a judicial act, and its delegation is therefore
impermissible. Instead of delegating this decision, judges should set a
maximum-restrictive treatment, allowing a probation officer to choose any
equally or less restrictive program.
See supra Section III.A.
232. United States v. Pruden, 398 F.3d 241, 250 (3d Cir. 2005).