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 ancillary to these programs. However Article III delegation doctrine places limits on such actions. This Note addresses the constitutionality of delegating the “treatment program” decision, in which a probation officer decides which type of treatment the defendant must undergo; the choice is often between inpatient treatment and other less restrictive alternatives. The resolution of this issue ultimately depends on whether this decision constitutes a “judicial act.” Finding support in lower court case law, this Note argues that a “judicial act” encompasses decisions affecting the defendant’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 under Article III. The Note concludes by suggesting a constitutionally permissible scheme whereby the judge orders a maximally intrusive treatment while giving the probation officer the discretion to choose a less restrictive program.