ABSTRACT
This chapter concerns the legal principles which apply to the choice between a person's civil commitment and use of an alternative mechanism for their detention or control. It describes the central features of the three main regimes for initiating a person's compulsory care. These are: the criminal prosecution, civil commitment, and adult guardianship. The chapter considers in more depth three illustrative choices between civil commitment and the criminal process. The first two choices to be examined are pre-trial diversion and diversion at sentencing. The third choice to be examined involves a switch in the other direction: from civil commitment to the criminal process. All three of these decisions contain elements of discretion, particularly discretion on the part of the prosecution, concerning the commencement or continuation of the criminal proceedings against the mentally disordered person. The public safety principle and the need for continuing control will almost certainly be dominant in cases of homicide and other very serious crime.
