ESSAY 22

07/08/2015

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THE RIGHT OF STATES TO EXECUTE PEOPLE WITH SEVERE MENTAL DISABILITIES REMAINS ALMOST SUPREME

By John Weston Parry, J.D.


              A recurring theme in this blog and the book upon which many of these essays are based--Mental Disability, Violence, Future Dangerousness: Myths Behind the Presumption of Guilt (Rowman & Littlefield, October, 2013)—is the notion that when addressing the rights of persons with mental disabilities, the legal system is guided by comfortable prejudices and beliefs, embracing sanism, stereotypes, subjective impressions and misleading presumptions and predictions, rather than knowledge gained from empirical evidence and rigorous observation. Nowhere are those prejudices more evident than in our criminal justice system.

             According to a new book written by Adam Benforado, an associate professor of law at Drexel University, entitled Unfair: The New Science of Criminal Injustice, our criminal justice system is “based on an inaccurate model of human behavior…, untested assumptions about what deceit looks like, how memories work and when punishment is merited.” This model has resulted in “fundamental flaws in our current legal processes and structures.” (See, Benforado’s article “Flawed Humans, Flawed Justice,” Sunday Review, International New York Times (June 13, 2015), www.nytimes.com) Professor Benforado ably illuminates how these misperceptions have negatively affected our criminal justice system through such flawed practices as: the admissibility of eyewitness testimony; so-called “objective forensic evidence… [including] DNA; decisions based on misunderstanding about consent and voluntariness; and the inability to distinguish between bias and racism. The solution, he argues, is using “an evidence-based approach” to the law.

            Unfortunately, his solution while well-intentioned and based on a compelling analysis, would only address part of the problem. The evidence-based perspective can only be as good as the quality of the evidence itself. As was discussed in an earlier essay on this blog, the “evidence-based approach” itself is subject to manipulation and distortion, depending on how it is used. Many of the policymakers and politicians who embrace this pseudo-scientific perspective are unwilling to rely on the typically difficult and time-consuming empirical and observational studies to verify their preferences and pet theories before trying to incorporate them into our laws and policies.

            Moreover, as has been revealed too many times in recent years, much of what passes as science has been based on shortcuts, fraud, and/or deception. According to a New York Times Op Ed piece, “[e]very day, on average, a scientific paper is retracted because of misconduct.” Also, as a recent New York Times editorial pointed out, this type of “junk science” has infected those who investigate and prosecute crimes, including even the FBI and Justice Department, leading to numerous improper criminal convictions. What goes on during state and local prosecutions is anybody’s guess, but the historical patterns strongly suggest that the science is no better than at the federal level, and probably far less reliable overall.

            With respect to the rights of people with mental disabilities, junk science, pet theories, presumptions, predictions, and sanism combine to create especially toxic results. Too often our laws and policies that affect people with mental disabilities embrace prejudicial beliefs about the world and how it should be. When people with mental disabilities are being prosecuted or sentenced for crimes, these misleading presumptions include beliefs such as: severe mental disorders should not be used to substantially reduce criminal culpability; individuals with serious mental disorders are likely to be dangerous and thus deserve greater punishment; and cognitively and emotionally damaged young people who commit crimes should be treated as if they have the same culpability as mature adults.

            Elements of all three of these prejudices can be found in a significant, but overlooked, recent U.S. Supreme Court opinion involving the execution of people with mental disabilities. What is frightening is that even the most sympathetic justices seem to accept these sanist predilections as the law of the land; then they craft their reasoning in ways that will not disturb the status quo. The least sympathetic justices would expand sanist policies much further if they could, illustrating that enhanced intellect does not always translate into intelligence, especially when its informed by popular prejudices.

Blumfield v. Cain   

            The U.S. Supreme Court's 5-4 decision in Blumfield v. Cain, No. 13-1433 (June 18, 2015), granting an admittedly vicious murderer his first legitimate opportunity to prove that his intellectual disabilities meet Louisiana's standards for voiding the death penalty, as constitutionally required under Atkins v. Virginia, 536 U.S. 304 (2002), appears to be a small victory for the rights of people with mental disabilities, as well as for the unsympathetic appellant, Kevan Blumfield.  The underlying context, however, is that in much of the majority and virtually all of the dissenting opinions those rights are cast in extremely restrictive and/or sanist terms, which reaffirm the view that people with severe mental disabilities continue to be disadvantaged in our legal system.

             That discouraging reality was previewed in another 2015 Supreme Court decision discussed in the previous blog essay. There, a 6-2 majority of the Court dismissed the rights of a woman with a severe mental illness, who was shot multiple times in her room during a misguided and unnecessarily violent effort by two police officers to involuntarily commit her to a psychiatric facility.  (City and County of San Francisco v. Sheenan, (No. 13-1412, May 18, 2015).

            In the present case, Blumfield, accompanied by an accomplice, fired multiple shots deliberately killing an off-duty Baton Rouge, Louisiana police officer during an unsuccessful attempt to commit a robbery. The year was 1993. Blumfield was convicted and sentenced to death for murder. Later, while on Lousiana's death row and shortly after Atkins had been decided, Blumfield sought to prove that he had intellectual disabilities that would preclude his being executed. The police officer Blumfield murdered happened to be the mother of Warrick Dunn, who would later become a star running back in the National Football League and a respected member of his community. That happenstance, according to Justice Thomas’ dissent, made Blumfield less deserving of constitutional protections.

            There were three aspects of the Atkins decision that would be critical in this case. First, the constitutional protections in Atkins applied retroactively, which meant that Blumfield could not be executed if he had a covered intellectual disability. Second, according to spurious reasoning in Atkins, the constitutional right not to be executed, when one has an intellectual disability, may be implemented somewhat differently based on state preferences, as long as the end-result is not demonstrably unfair or unreasonable. In other words, the U.S. Constitution means different things depending on the jurisdiction in which one resides.

            And third, the implementation of most constitutional criminal rights, including those promised under Atkins, have been further restricted—and arguably marginalized—by federal limitations on defendants’ rights to appeal established under the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA). That act grants extreme deference to state courts in making determinations that obviously impinge upon fundamental constitutional rights. In order to overcome what the dissent notes is a “`highly deferential standard for evaluating state-court rulings… the prisoner must rebut any… factual findings he seeks to challenge by clear and convincing evidence.”

            Under the criteria that the Louisiana Supreme Court established in State v. Williams, 831 So. 2d 835 (2001), the existence of a qualifying intellectual disability—then referred to as mental retardation—has three essential components, which Blumfield had to prove under a “reasonable ground to believe” evidentiary standard. There is no automatic entitlement to an Atkins hearing. Those three “distinct” requirements were: an objective standardized IQ test result that showed “subaverage intelligence”; “significant impairment in several areas of adaptive skills”; and “manifestations” of these intellectual impairments “in the developmental stage,” meaning before a person becomes an adult, which itself is a matter of continuing scientific and scholarly debate.

            Under Blumfield's original Atkins claim, made to a Louisiana lower court the year after Atkins had been decided, his lawyer reprised retrospective “mitigating evidence introduced at the sentencing phase of the trial.” This evidence included Blumfield’s mother's observations about him as a child, a social history compiled by an expert with a doctorate in social work, and the results of tests that a clinical neuropsychologist had performed. The most persuasive evidence, according to the state judge, was the neuropsychologist's apparent conclusion that Blumfield’s IQ test score was 75. That expert also testified Blumfield had been confined in psychiatric hospitals as a child, had various learning impairments, and had been placed in special education classes. Blumfield also had asked for publicly financed expert assistance to retain an expert to further document his claims with new and more current evidence, which was not limited to the carefully selected mitigating evidence, which probably had been culled of information that could be used to justify the death penalty.

            The Louisiana trial court, seemingly intent on preventing Blumfield from escaping the death penalty, appeared to create a scenario that would deny the appellant an opportunity to prove the existence of his intellectual disability, so that the state could move forward with the execution. The court simply ignored Blumfield’s request for expert assistance, which undoubtedly would have provided additional evidence needed to prove that he had an intellectual disability. The judge then observed, without any specific documentation in the record, that another expert had implicitly opined that Blumfield's IQ was “`a little higher” than 75. The judge also implied that Blumfield could not possibly demonstrate that he had a protected intellectual disability, because Blumfield had been diagnosed as an “antisocial personality” or a “sociopath,” which somehow precluded the defendant from having a protected intellectual disability as well.

            Blumfield attempt to convince the state supreme court to review the lower court's denial of his application for an Atkins hearing was summarily denied. Thus, the appellant’s only recourse was to apply for relief under the extreme limitations of the AEDPA. Under this draconian law, Blumfield had to establish that either the denial of his petition was “`contrary to, or involved an unreasonable application of, established Federal law'” or was “based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.'”

            A federal district court concluded that the conduct of the Louisiana court was so out-of-line that it satisfied both prongs of the AEDPA for granting an appeal. First, federal due process clearly had been violated in denying Blumfield funding to develop his Atkins claim. Second, the state court's factual conclusions constituted “`an unreasonable determination of the facts in light of the evidence presented....'” In addition, based on a separate evidentiary proceeding, which the federal court had presided over, Blumfield clearly established that he had an intellectual disability that satisfied the three requirements mandated by Louisiana's Atkins criteria. In particular, various IQ tests “indicated that Blumfield had an IQ score between 65 and 75,” and expert testimony established marked deficiencies in Blumfield’s “adaptive behavior and `significantly limited conceptual skills.'”

            The U.S. Court of Appeals reversed, finding that Blumfield's federal petition “fail[ed] to satisfy either of [the AEDPA's] requirements.” To begin with, there was no clearly established federal law requiring a state court to provide Blumfield the “funds necessary to make a threshold showing of intellectual disability.” Furthermore, the state court “`did not abuse its discretion when it denied Blumfield an evidentiary hearing.'” As a result, there was no need to review the district court's finding that the appellant was “in fact, intellectually disabled.'” Apparently, according to Justice Thomas’ dissent, it was more just to execute Blumfield as expeditiously as possible based on the will of the jury, then to further anguish the victim’s family, even if there was a significant possibility Blumfield had an intellectual disability.

            Justice Sotomayor's majority opinion, joined by Justices Kennedy, Ginsburg, Breyer, and Kagan, took a narrow and circuitous path to overturn the Fifth Circuit. It relied almost exclusively on the factual evidence before the state court, which was ambiguous, in large part because it was incomplete. The Court focused on Blumfield's IQ score and evidence of “the existence of adaptive impairment.”

            Justice Sotomayor noted, however, that the standard for the Court’s review under the AEDPA “requires that we accord the state trial court substantial deference.” That deference was superseded in these individual circumstances because the state court's “critical factual determinations were unreasonable.” Under this principle of law, unless the state court acts unreasonably on the record, which most judges are smart enough to avoid doing, there is little that can be done to protect the constitutional rights of these capital defendants and death row inmates. In reaching the proper verdict in this case, the majority engaged in what Thomas’s dissent described as “a bit of legerdemain, recasting legal determinations as factual ones.” The majority’s conceit, however, allowed Supreme Court to conclude that the evidence Blumfield presented to the state court “was entirely consistent with intellectual disability as defined in Louisiana and thus sufficient to entitle him to an evidentiary hearing.”

            That conceit also made it possible for the majority to avoid having to address the substantially more important questions involving the due process rights of defendants and death row inmates to publicly-financed expert assistance when pursuing legitimate Atkins’ claims. In this particular case, Blumfield had to depend almost entirely on retrospective evidence gleaned from the original sentencing proceedings, which, as the majority noted, could have been used to impose the death penalty, as well as to support a plea for mitigation. The dissent dismissed this denial as being “neither contrary to, nor an unreasonable application of clearly established federal law as determined by this Court….No decision of this Court requires a State to afford a defendant funds to do so.’”

            For many years now, this type of publicly-funded expert assistance has been required when a defendant decides to plead insanity. See, Ake v. Oklahoma, 470 U.S. 68 (1985). Certainly the life and death aspect of an Atkins proceeding is no less important. Furthermore, while the Court has never ruled that an insanity defense is constitutionally required, it has ruled that a defendant with a protected intellectual disability has a constitutional right not to be executed.

            Nevertheless, the fact that Justice Kennedy’s vote—once again—was crucial in forming the five justice majority in Blumfield, suggests that he—and perhaps other justices forming the majority—either would have voted with the four dissenters on this particular issue, or just preferred not to address it at all. In any case, it appears that there were not enough votes on the Court to go forward. In bypassing the opportunity to decide this compelling issue, the justices ensured that the right to essential expert assistance in these constitutionally mandated death penalty proceedings would remain a grey area. Unfortunately, this continuing silence provides courts in death penalty jurisdictions with a strong justification for denying such assistance, which is usually essential to establish an Atkins claim.  

            The majority opinion also chose to “presume that a rule according an evidentiary hearing only to those capital defendants who raise a `reasonable doubt' as to their intellectual disability is consistent with... Atkins.” As the dissent pointed out, this meant that “the burden was on the prisoner to bring forward objective evidence to put his mental retardation in issue.” Moreover, without expert assistance, raising such a doubt is likely to be an unreasonable burden to overcome, especially for most such defendants who are not represented by highly competent lawyers.

            In fact, the entire procedural landscape that surrounds Atkins’ claims is tainted with an unfair deference to the states, both with respect to implementing the constitutional requirements of that opinion and short-circuiting appeals when defendants believe their constitutional rights have been denied. This high deference is especially problematic when one considers that Atkins only is relevant in those jurisdictions that continue to execute capital defendants. In many of those jurisdictions, the entire governmental apparatus seems hell-bent on executing as many capital defendants as possible, regardless of their mental status. For example, a New York Times story in early July profiled the acting district attorney of Louisiana’s Caddo Parish, who is a strong proponent for more executions. Although his parish already sentences more defendants to death per capita than any other jurisdiction in the United States, he contends the death penalty is “rightly about revenge and…the state needs to `kill [even] more people.’”   

            If extreme deference to those states that still use the death penalty was not disturbing enough, the majority points out that in all of those jurisdictions there is another major inequity. Capital defendants, who present evidence at sentencing supporting the position that they have intellectual disabilities (or any mental disorder for that matter), run the “risk” that it will “'enhance the likelihood of … future dangerousness be[ing] found by the jury.” Such a finding justifies the imposition of the death penalty. In fact studies indicate that it is the single most important consideration. Thus, strategically, “penalty-phase evidence of intellectual disability can be a `two-edged sword....'” It can be used as mitigation by the defense, as well as the proof needed for the prosecution to obtain a death penalty verdict.

            The logic behind the existence of this cruel paradox is steeped in sanist beliefs, which generally allow a person's diminished culpability due to a mental condition or disorder to be ignored for the purpose of mitigation, but to be used instead to further punish that individual or deprive him or her of liberty and other constitutional rights. As a result, defendants and inmates with mental disabilities are far more likely to be viewed as dangerous—deserving greater periods of confinement, custodial care, and deprivations of their fundamental rights, including the death penalty—than as being less culpable, and thus eligible for mitigated sentencing. Yet, the Supreme Court continues to ignore this obvious injustice and instead embraces its past rulings on dangerousness, especially Barefoot v. Estelle, 463 U.S. 880 (1983), which amplify this inequity.

            As a practical matter, the Blumfield ruling bolsters the view that if states are intent on executing a defendant with an intellectual disability, there remain many opportunities to accomplish this result, legally. The best—albeit very limited—hope for these defendants is if they happen to find a particularly diligent and competent lawyer, who has access to the necessary expert assistance to build a persuasive Atkins appeal, and the judge selected to hear that plea has an open mind regarding mental disorders. Otherwise, these mostly despised and feared defendants and prisoners are likely to become trophies for zealous prosecutors, who typically have access to almost unlimited resources to ensure that the death penalty is obtained and an execution is carried out.

            In this truly extraordinary case, all the stars appear to have converged to temporarily block the injustice that was about to befall Blumfield, giving him an improbable opportunity for the Supreme Court to review his case and to overcome the high deference due the state court, which had denied him his constitutional rights. Furthermore, Blumfield overcame a threshold layer of deference, which mandates that states be allowed to create their own criteria for determining the existence of a qualifying intellectual disability. Louisiana, like many states that still have the death penalty, takes a restrictive view as to what constitutes an intellectual disability and continues to try to find ways to make it more restrictive.

            As described earlier, Louisiana has three separate prongs to its definition and requires defendants or prisoners to prove the existence of all three just to obtain a hearing. In instances in which there is likely to be a close call, these states want the criteria to favor execution, regardless of the possibility that mistakes are being made in the process. These jurisdictions, along with the dissenters in this case, appear to view such mistakes as being justified in protecting the interests of the victims and their families. In Thomas’ words,

            What is perhaps more disheartening than the majority’s disregard for both AEDPA and our precedents is its disregard for the human costs of its decision. It spares not a thought for the 20 years of judicial proceedings that its decision so casually extends…. Betty Smothers [the victim]… and her family—not to mention the legal system—deserve better.

            The reality is that the constitutional right articulated in the Atkins decision is extremely limited and the tiny window opened by the majority in this case demonstrates how difficult it is for an Atkins applicant to succeed on appeal, even if a state court makes a clear error. As the Supreme Court observed in a previous decision, Harrington v. Richter, 562 U.S. 86 (2011), the standard for review is “`difficult to meet… because it was meant to be.’”

            The extremely limited constitutional right in Atkins has much less to do with the totality of a defendant's cognitive impairment at the time he or she is facing execution, and everything to do with the unique nature of the mental impairment involved. The right only applies to a very narrow definition of intellectual disability because it was originally based on mental retardation alone. Defendants with comparable or even worse cognitive impairments that do not meet that narrow, politically popular definition cannot successfully petition for dispensation from the death penalty under Atkins, because it does not apply to them.

            No amount of evidence about the severity of various other mental conditions has made much of an impact on the courts or our legislatures with regard to expanding the right of people with severe mental disabilities not to be executed under the Atkins rationale. Even the combined voices of the American Bar Association, the American Psychiatric Association, the American Psychological Association, the National Alliance on Mental Illness, and the National Mental Health Association have failed to quell this continuing desire to execute capital defendants with severe mental disabilities.  

            Thirteen years later, the Atkins decision now appears to be a one-time judicial fluke, which will not be expanded to cover other mental disabilities, and has been substantially narrowed by states’ rights preclusions. This extreme deference to states’ rights has meant that in Atkins, as in many other fundamentally important matters, what the Constitution demands is different depending on the state involved, unless the protection involves the Second Amendment. When such arguably unconstitutional and unconscionable deference is combined with ignorance and stereotypes about people with mental disabilities, the outcomes can be especially dismissive and pernicious as demonstrated in Justice Thomas' dissent, joined for the most part by Chief Justice Roberts and Justices Scalia and Alito.

            The dissenters appeared to be offended that a convicted murderer would be given an opportunity to prove that he had an intellectual disability. Ostensibly they objected because “`[f]ederal collateral review of state convictions interrupts the enforcement of state criminal laws and undermines the finality of state-court judgments.” (Of course, nothing can be more final than an execution.) In reality, though, as Thomas makes abundantly clear, this case is about “contrasts.” Good people versus bad people; a police officer victim versus a murder defendant with obvious mental disabilities. The fact that Blumfield’s impairments appear to have been caused in part by his being physically abused in awful ways by his stepfather brought him not an ounce of sympathy. In fact, it was used to make the argument that it made Blumfield a dangerous “sociopath” or “antisocial personality,” deserving of the death penalty, regardless of his other cognitive impairments.  

 

ESSAY 21

05/28/2015

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THREE RECENT CASES ILLUSTRATE HOW OUR LEGAL SYSTEM FACILITATES INJUSTICES AGAINST PEOPLE WITH MENTAL DISABILITIES

By John Weston Parry, J.D.

                Why is it that today when an African-American male is viewed as having been brutalized by the police there is likely to be an outpouring of outrage in the community and nationally, but if the alleged victim of similar brutality is a person with a mental disorder people generally look the other way?  The most notable recent exception appeared to be a man in Los Angeles with a mental illness who was shot three times while on the ground. What turned out to be the spark that caused community outrage, however, was the fact that he was an African-American. That he was shot due to his mental illness was a secondary concern. According to his neighbors, this was one more example of “`racial bullshit.’”

            While there are many reasons why Americans tend to look the other way or even applaud when people with mental disorders are victimized, the fact that those vulnerable individuals are likely to be perceived as being dangerous or violent—or more dangerous or violent than they really are—is high on the list. Yet, it is how our legal system implements that bias, which creates the greatest injustices. It usually is an uphill struggle for a person with a mental disability to be treated fairly in the criminal justice system. The law tends to be stacked against them from the time they are subject to detainment or arrest, during trial and sentencing, and when decisions are made about their release. Three recent cases illustrate, in very different ways, how these types of inequities manifest themselves.

The Supreme Court Strongly Favors the Police At the Expense of the Rights of a Woman with Mental Illness

            In a 6-2 decision, with Justice Breyer abstaining, the U.S. Supreme Court found that two San Francisco police officers did not have to provide a suspect, who had a known mental disorder, with reasonable accommodations for her disability before they shot her multiple times after she resisted being whisked away to a secure treatment facility. The Court, in an opinion by Justice Alito, dismissed as being improvidently granted the primary question of the case, whether Title II of the Americans with Disabilities Act applied. Instead, the majority decided the secondary issue of the police officers’ liability under section 1983 of the Civil Rights Act. That provision requires plaintiffs to overcome the very difficult to satisfy standard that a “`clearly established’” federal statutory and constitutional right was violated when the “`challenged conduct’” was carried out. The Court overruled the Ninth Circuit in favor of the police. Justice Scalia in his dissent called the outcome an undeserved “bait and switch.” City and County of San Francisco v. Sheenan, (No. 13-1412, May 18, 2015).

            The federal district court—in a decision by Justice Breyer’s brother—had granted summary judgment to the city and county of San Francisco, ruling that the officers in question were not required to consider the ADA in making a violent, forcible arrest of a person with a known mental illness because they thought they were protecting themselves and others. Also, the lower court found that neither police officer had violated the Constitution with her actions.

            The Ninth Circuit disagreed in part, finding that the ADA applied to this situation. A jury should have been allowed to decide whether San Francisco had violated the ADA by not accommodating the plaintiff. The appeals court also ruled that the police officers had not been entitled to qualified immunity. As with any suspect, the police had to have an objective need to immediately enter the room in a group home where the woman lived, which they failed to establish at trial.

            The facts of the case were unfortunate for people with mental disabilities complaining about mistreatment at the hands of the police because generally the accepted facts—many of which were in dispute—allowed the courts to dismiss the rights of the plaintiff, a woman who had been diagnosed with schizoaffective disorder, because she was mischaracterized as “violent.” Teresa Sheenan lived in a group home for people with mental illness. A supervising social worker became concerned about her welfare after Sheenan stopped taking her medication and declined treatment from her psychiatrist. Also, rumors had circulated that she was no longer eating food or changing her clothes. When the social worker knocked on her door and no one answered, he used a duplicate key to enter her private room. She responded by telling the social worker to leave because he did not have a warrant and, according to his version, hysterically threatened to kill him with a knife, which was never in view. Based on this exchange, the social worker filed to have Sheenan temporarily evaluated and treated at a secure facility because he said she was a threat to others and “gravely disabled.”

            He then telephoned the police to effectuate the transfer of the difficult to manage and allegedly dangerous group home resident to the designated inpatient facility. In our legal system, this type of medical transfer is considered to be a criminal arrest with all the attendant police discretion that is allowed when apprehending criminals. Two female officers arrived separately, one after the other. They knocked at Sheehan’s door, “announced who they were,” and indicated they were there to “help” Sheehan, which was only true if her being arrested and involuntarily committed could be viewed as helpful. When the woman failed to answer, the officers used the social worker’s key to enter her room. She brandished a relatively small kitchen knife that had a 5-inch blade and allegedly moved towards the officers telling them that she did not need help and yelled that she was going to kill them if they did not leave.

             The officers wisely left the room and called for “back up….” defusing the situation, at least temporarily. This decision was consistent with police training in San Francisco and elsewhere when “arresting” someone who has an active mental illness, especially if the arrest is for the purpose of effectuating civil commitment for treatment. Officers in San Francisco are instructed to: contain the subject, respect the subject’s “`comfort zone,’” use time to defuse the situation, and employ “`non-threatening verbal communication….”

            Nevertheless, the officers soon changed their minds for reasons that appeared to be manufactured after the tragedy had happened. For whatever the reason(s), they decided not to wait for reinforcements, who were already on the way and nearby, and to arrest Sheehan using deadly force if necessary. Their ill-conceived plan was for one of them to “push the door open while [the other one] used pepper spray on Sheehan.” Both of them reentered the room with their guns drawn, however. Sheehan yelled for them to leave holding the smallish kitchen knife in her hand. Without issuing a warning, one of the officers began pepper spraying Sheehan “in the face.” When Sheehan did not immediately drop the knife, one of the officers shot her twice. Because Sheehan did not collapse right away, the other officer shot her multiple times. The fifth bullet to strike her allegedly was fired after Sheehan had fallen to the floor. At that moment back-up arrived and a third officer kicked the knife out of Sheehan’s hand while she was on the ground.

            The two police officers, despite their dangerous tactics, which had led to an unnecessary confrontation that precipitated police violence, were deemed to be immune from civil liability, much less criminal prosecution, or even administrative discipline. It was Sheehan who was prosecuted for assault with a deadly weapon and for making criminal threats. A jury acquitted her of making those threats, presumably because the evidence was lacking. As to the assault with the smallish kitchen knife, the jury could not reach a verdict and San Francisco decided not to retry her.

            At almost every stage of the legal proceedings, the fact that Sheehan had a mental disability either worked to her disadvantage or was ignored as a mitigating factor, beginning with the incredible decision to prosecute her for assaulting the officers who had spayed her with a toxic chemical and then shot her five times. It was only by extremely good fortune that she was not killed. Instead of reasonable accommodations that are required under the Americans with Disabilities Act, she received a presumption of dangerousness that eviscerated her rights and almost led to her being killed. The police in turn received qualified immunity, which was granted based on implausible justifications after-the-fact.

            Some of the gems that emerged from the Supreme Court’s opinion leave one wondering what the hell is going on in our legal system. Alito began his opinion by noting that because Sheehan was the person against whom the summary judgment had been awarded, she was entitled to have the facts viewed “in the light most favorable to [her].” Yet, it should be obvious to anyone reading the opinion that the accepted facts were skewed at almost every critical juncture to favor San Francisco and the two police officers, and to disfavor Sheehan.

            Perhaps the most significant examples of this bias were the after-the-fact recollections of the officers, combined with Alito’s ad hoc ruminations, as to why the officers might have been justified in going against their training and rushing into Sheehan’s room a second time after they had contained the situation and were waiting for back-up to arrive. Most of those recollections were legal buzz words that would mitigate or excuse their own recklessness. If it had not been a Supreme Court opinion, one would be justified in believing that these essential parts of the opinion were a bad joke.

            First, it was argued that “the officers were concerned… that Sheehan, out of their sight, might gather more weapons…,” meaning more kitchen knives, which they had seen in her room. The two armed officers, awaiting more officers to arrive, apparently were concerned that Sheehan might assemble an arsenal of kitchen knives, which might make her even more dangerous than before. They also “may have feared that another person was with Sheehan,” even though there had been no evidence whatsoever to support such a concern and Sheehan clearly was a loner.  

            Second, even though Sheehan’s overwhelming concern for several days had been to be left alone in her room, the officers surmised that she might be a threat to flee through the back window in her second floor room, which had no fire escape. The officers who did not know whether such a fire escape existed chose not to ask the social worker about this possibility. The Court then went out of its way to note that the social worker said later that if he had been asked he “`probably’ would have said there was one,’” even though he would have been wrong and quite possibly lying. There is no rational reason why the social worker would want to state that there was a fire escape, unless his primary concern was to use the police to effectuate the woman’s removal from the group home. He like the police was not really a helper.

            Third, the Court decided to try to get inside the officers minds by making conjectures about what the officers might have perceived at the time they made their tragic mistakes. All the officers supposedly “knew was that Sheehan was unstable, she had just threatened to kill three people, and she had a weapon.” (But of course they knew or should have known many other things, including that the women had a serious mental illness, desperately wanted to be left alone, and was extremely unlikely to hurt anyone while inside her room guarded by police.) Even though they could hear the “sirens” approaching, the officers decided to “reenter the room and try to subdue Sheehan before more time elapsed.” The more experienced officer now “believed that the situation `required [their] immediate attention,” even though nothing had changed.

             In making that decision, the officers “did not pause to consider whether Sheehan’s disability should be accommodated.”  Her condition was “`a secondary issue given that they were `faced with a violent woman who had already threatened to kill her social worker’ and ‘two uniformed police officers.’” The way the Court presented these facts one might think that time was of the essence, so stopping to reflect on the fact the “suspect” had a mental illness would be asking too much. Yet, the officers knew that the women’s mental illness was the primary reason they had been called to “help” in the first place. Also, since they had defused the situation, time clearly was not of the essence.

            In addition, although Sheehan might have appeared to be potentially dangerous, she was not violent under any common definition of the term, since she had only made hysterical threats of acting violently. This is a critical distinction, since the case revolves around the necessity and propriety of the officers re-entering the room after the threat had been contained. At that point, she was not and had not been violent. As it turned out, she never was violent. In our legal system, however, it was enough that the police had grounds to believe she was “[potentially] dangerous, recalcitrant, law-breaking, and out of sight.”

            Under closer scrutiny the majority’s dubious reasoning based on plausible conjectures after the fact, which could neither be verified nor challenged, is hard to swallow, unless one is intent on giving every benefit of the doubt to the police officers, and none to the woman with the mental illness. As the Ninth Circuit held, the police cannot forcibly enter a home without there being exigent circumstances, which establish “an objective need for immediate entry.” The existence of those circumstances must be present even if the subject of the home invasion has a mental illness, “has been acting irrationally, and has threatened everyone who enters [her private space].” In order to negate fundamental constitutional rights, the potential for violence should not only be more likely than not, but immediate as well.  

            The Supreme Court used smoke and mirrors to overcome the exigent circumstance barrier by conflating the two instances in which the officers entered Sheehan’s room into one continuous circumstance. Because the first entry was justified, the second was presumed to be as well. That the circumstances had changed once the officers contained the situation, left the room, and were waiting for reinforcements became marginalized, if not ignored altogether. In addition, the Court determined, even if the circumstances had changed enough that the second entry could not be conflated with the first, there were independent exigent circumstances justifying entry by the police the second time based on the aforementioned implausible conjectures.

            Moreover, under the Fourth Amendment as interpreted in the Ninth Circuit, a police “entry… is not rendered unreasonable because it provokes a violent reaction,” whether or not the person has a known mental illness that has made her unstable. Once again the police gained cover because their attempt to detain and transport a person with a mental disorder to a secure treatment facility was equated with a criminal arrest, as opposed to being a medical intervention. The Court was very precise in distinguishing situations in which qualified immunity would not apply to police officers, but completely disinterested in distinguishing criminal arrests from medical interventions.  

            The only way a plaintiff with a mental disorder, who is presumed to be dangerous, has a realistic chance of recovering damages against the police for misconduct would be under Title II of the Americans with Disabilities Act. This is why the issue of whether the police should have provided Sheehan with a reasonable modification became the overriding reason the Court had decided to grant certiorari in the first place. The lower court had dismissed the issue by reflexively concluding that the officers in making an arrest were not required to determine whether their actions complied with the ADA. The Ninth Circuit reversed, ruling that the ADA was applicable and it was up to a jury to decide whether in this case Sheehan should have been accommodated. The Supreme Court accepted certiorari to decide the question posed by San Francisco on appeal: whether Title II “`requires law enforcement officers to provide accommodations to an armed, violent, and mentally ill suspect in the course of bringing the suspect into custody.’” Because it already was agreeing to decide that loaded question, the Court also agreed to review the Ninth Circuit’s less significant ruling that the officers were not entitled to qualified immunity.

            In arguments before the Court, however, the appellants changed their ADA argument contending that Sheehan was not entitled to protection under Title II because she posed a “direct threat” to the health or safety of others, which could not “`be eliminated by a modification of policies, practices or procedures….’” The majority dismissed the ADA Title II issue as improvidently granted with respect to both the original argument and the revised version. Using this duplicitous tactic San Francisco, with the Supreme Court’s blessing, had done away with the more problematic ADA issue. At the same time the appellants convinced the majority to reverse the Ninth Circuit on the Fourth Amendment qualified immunity issue, which never would have been considered had the Court not decided to review the Title II issue.

            Justice Scalia joined by Justice Kagan agreed that the ADA issue had been improvidently granted, but strongly objected to allowing San Francisco to benefit from this “bait and switch’ by having the justices consider its appeal of the qualified immunity issue. Scalia framed the issue as the Court “reward[ing] such… tactics by proceeding to decide the independently `uncertworthy’ second question.” He added that there was “no injustice … [in] dismiss[ing] both questions as improvidently granted.”

            What he purposefully failed to mention, and Kagan might have chosen to point out, however, is that the overriding injustice was granting the appeal on the “uncertworthy” question at the expense of a woman with a mental illness, who had been shot five times, with the last shot being allegedly fired when she was on the ground. True to form, Alito pointed out that even if Sheehan had been on the ground, presumably with four bullets in her body, the Ninth Circuit had found that “`she was certainly not subdued.’” How one could possibly arrive at such a conclusion boggles the mind. Perhaps Alito and the appeals court assumed that Sheehan could have been writhing in pain, criminally calculating how to best use her smallish knife should the officer try to shoot her a fifth time.              

The Hinckley Debacle

            As covered in this blog previously, John Hinckley has been falsely imprisoned in a secure detention facility and had his liberties and freedoms curtailed for more than 20 years after being successfully treated for the mental disorders that a jury had determined were responsible for him attempting to assassinate President Reagan and members of his entourage, including press secretary Jim Brady. The federal civil commitment law has been manipulated ever since in a thinly veiled attempt by the federal government to guarantee that Hinckley will continue to be confined and live in as restrictive circumstances as possible, regardless of what his treatment providers recommended.

            Since that attempted assassination, nationwide the not guilty by reason of insanity verdict has become an extremely rare outcome when a major crime is involved. Usually only if the defendants are likely to spend more time confined in a secure “treatment” facility than in a prison will a person’s lack of responsibility due to mental disease or defect be a relevant judicial consideration. Otherwise, the insanity defense involving serious felonies is reserved for highly sympathetic figures, such as mothers with post-partum depression or soldiers with combat-related mental disorders. For those who many years ago successfully asserted an insanity defense for a major felony, obtaining a release has been extremely difficult, if not impossible.

            Despite the fact that Hinckley has been stable and in full remission for more than two decades, the federal government continues to invent reasons why he should not be discharged. In turn, the federal court that has been supervising his transition all these years has required him to meet conditions that serve no legitimate treatment purpose in order to project the image that the larger community is being fully protected from a potential danger that has not existed for many years. To make matters worse, less than a year ago the federal government publicly contemplated prosecuting Hinckley for Brady’s death when a Virginia medical examiner curiously ruled that the gunshot wound Brady had received over thirty years ago in the assassination attempt was cause of Brady’s death at age 73. Fortunately, the tenuous nature of the medical examiner’s conclusion, along with the even more tenuous conclusions that Brady’s death was a homicide and Hinckley could be prosecuted for the same criminal action for which he had been found not guilty by reason of insanity, led the federal government to finally stop pursuing such a vindictive prosecution.   

            Nevertheless, the legal nonsense entrapping Hinckley continues in the guise of paternalism and community safety. Since the late 1990’s, Hinckley has been permitted to leave St. Elizabeth’s hospital on family visits that have become more frequent and less restrictive. Clearly he has not been a danger to himself or others for many years, but until 2013 he could not convince a federal judge to formally acknowledge this fact as part of a public legal document. The problem has been that unlike traditional criminal sentencing, once people are found not guilty by reason of insanity they remain in the custody of the government, until a judge chooses to release them, even if they no longer satisfy the legal criteria under which they were originally committed. Judicial discretion can be good or bad. In Hinckley’s case this injustice has been magnified and distorted because a sitting U.S. President was the intended victim of his delusional actions.

            Even in recent years when his treatment providers have agreed that he should be released, Hinckley has been treated like a misbehaving child. Yet, the federal government objects to this unnecessary paternalism because it grants Hinckley too much freedom. The court has compromised between what Hinckley’s federal treatment providers have recommended and the federal government would prefer when, legally, there should be no restrictions at all. Even Hinckley’s lawyer must play this Kafkaesque game to get his client the best possible outcome. Recently the lawyer decided to publicly acknowledge in a Washington Post article that Hinckley is “ready for the next step,” when in fact the lawyer knows and has argued there should be no further steps at all. Thus, even if Hinckley was granted what has mistakenly been referred to as a full discharge, it is likely that he will have to reside in his elderly mother’s home and, if she dies or becomes incapacitated, his siblings have had to agree to take care of him for as long as they are able.

            Currently there are other juvenile-like restrictions on Hinckley. He “must limit his access to the Internet, log his daily activities, carry a trackable cellphone, and stay away from the president and members of Congress.” In addition, when the actress Jodie Foster appears on a television screen, he has to either shut off the television or leave the area. At the same time, when he is in Washington and often elsewhere as well, a team of secret service agents are assigned to follow him around. How much money has that wasted over the years? With his so-called full discharge pending, the federal government is still urging—assuming federal attorneys cannot block the discharge entirely—that Hinckley be compelled to “submit to more frequent weekly phone calls and monthly visits to Washington, weekly local treatment sessions and a pre-approved itinerary….” If the federal government has any say, it appears Hinckley will never be a free man, no matter what the law may mandate.

Sexual Predators Who Are Innocent of the Crimes They Have Been Charged With

            Finally there is the tragic Virginia case reported in the Washington Post of Michael McAlister who in 1986 was “wrongly convicted… [of] attempted rape and kidnapping.” He had served nearly thirty years in prison and as his release date grew near, he faced the “`prospect’ of being locked away for many more years under a Virginia law that allows the “civil” commitment of sexual predators after they have completed their criminal sentences.” For years, McAlister had maintained his innocence and provided convincing evidence of that assertion, but nothing was done until “a serial rapist who bore an uncanny resemblance to [the offender]… confessed [to the crimes in question.]”

            His wrongful criminal status continued even after the serial rapist was convicted in 1988 and the lead detective and prosecutor concluded that they probably had had made a grave error in arresting and prosecuting McAlister based on eye witness testimony because they realized he closely resembled the serial rapist. Together they “told the state parole board in 1993 and then-Gov. Mark R. Warner (D) in 2002 that they would not have presented McAlister’s photo to the witness or charged him based on what they later learned.”  Nevertheless, because there was no conclusive DNA evidence, McAlister continued to be imprisoned. It was not until July 2004, that Virginia courts would even “consider non-biological evidence of innocence.”

            At this point, however, the case became particularly compelling and frightening because of the other legal obstacles that Virginia places in the way of sex offenders seeking their release. Just after the state changed the law regarding non-biological evidence of innocence the parole board granted McAlister his release, but it was conditional. A year later when he was “arrested for driving under the influence,” he was returned to prison without even being tried for the alleged misdemeanor. For nearly ten more years he languished in prison before he was scheduled for release again. The date was supposed to be in January 2015. Unfortunately, under Virginia’s draconian sexual predator “civil” commitment law, McAlister could be held for months without a hearing, pending a “civil” trial to determine whether he should be indeterminately confined as a sexual predator.

            The fact that he was probably innocent of the only offense that allowed him to be characterized as a dangerous sexual predator in the first place did not seem to persuade the state’s attorneys that going through with this travesty of justice would be a bad idea. This resistance to doing the right thing was especially disturbing since there was no suggestion that McAlister had a mental disorder that caused him to commit dangerous acts comparable to the crime he did not commit. Making matters worse, in these quasi-civil commitment hearings “[j]udges are prohibited from considering evidence of innocence. In fact, a defendant’s refusal to admit guilt makes additional punishment more likely….” Thus, in Virginia and most other states that have such laws, if a person happens to be innocent of the sexual offenses for which he or she is convicted, then he or she faces a catch-22, which is all but impossible to overcome, short of the type of miraculous circumstances that eventually saved McAlister. Those being tried in such hearings must either admit to committing the offenses that they were convicted of or face a longer period of incarceration.     

            For McAlister, the first part of his miracle occurred when, after all those years keeping silent, the convicted serial rapist that resembled him confessed to McAlister’s crimes. Yet, because McAlister was no longer subject to the criminal justice system that reality could not guarantee his freedom. The sexual predator civil commitment system was not obliged to recognize McAlister’s innocence, since the basis for a commitment is sexual dangerousness due to a broadly conceived mental disorder. In the nick of time, however, his “legal team’ gathered enough evidence—on top of the confession—to convince Virginia’s Governor McAuliffe (D), to grant McAlister a full pardon without DNA evidence. Otherwise, he would have been scheduled to be tried in a quasi-civil proceeding in which innocence is no excuse. This “probably would have resulted in McAlister’s indefinite detention at a secure state rehabilitation facility” for many years, and quite possibly until he died. As it was, he spent over twenty years in prison after persuasive evidence was presented that he had been wrongly convicted.

 

ESSAY 20

04/29/2015

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GOVERNMENTS SHOULD MOVE VERY CAUTIOUSLY WHEN ASKED TO ACT BASED ON PRESUMPTIONS ABOUT INDIVIDUAL MENTAL INCAPACITIES

By John Weston Parry, J.D.

            Three recent news stories illustrate, in different ways, the limits of science and medicine in drawing useful conclusions about mental capacities. When viewed together these stories suggest that in dealing with the potential consequences of impaired mental functioning, it would be wise for governments to act cautiously. The temptation to intervene based on incomplete scientific or medical evidence, which is informed by impressionist beliefs and/or the urge to just do something, is more likely to result in errors and injustices than doing nothing at all.

            What can and should be done is to create social and economic conditions and environments that benefit and support people subject to the types of potential mental incapacities and impairments that create concerns. Utilizing that type of broad-based public health approach would substantially reduce the possibility that such incapacities would have negative impacts on the affected individuals and/or others. This would be far more effective in the long run than trying to act based on predictions or presumptions about human behaviors, which overwhelmingly tend to be unreliable and/or prejudicial.   

The Implications of Children in Poverty Having Reduced Brain Sizes

            A recent study by Kimberly Noble and Elizabeth Sowell concludes that the confluence of social factors that contribute to poverty negatively affect brain development in children as measured by the size of their brains. Poor children have smaller brains than affluent children. This is a startling revelation no doubt, but why this differential exists and what it means remains unclear. Three possible explanatory theories have been presented and others are likely to emerge. Unfortunately, academics already are misusing the results of this study to support their preconceived notions, which may have unsettling and counterproductive policy implications. 

            So far three theories have been put forward to explain the brain size discrepancy. All of those theories by themselves or in combination appear to be at least plausible. First, is the intuitively satisfying explanation that generally poor children are more likely to have inadequate nutrition and health and mental health care and fewer opportunities for positive educational stimuli than affluent children. The second related theory is that the increased stress and chaos of living in poverty produces unhealthy bodily manifestations in children, including reductions in brain size. Finally, there is the socially uncomfortable theory, which cannot be excluded based on known evidence, that people who are poor tend to marry other people who are poor and thus the trait of having a smaller brain is passed on genetically from generation to generation. The worrisome implication of this view is that it somehow supports the conclusion that poor people tend to be less intelligent and thus less able to learn. 

            Before discussing the possible social policy implications of these three theories further, it is important to understand that all of these possibilities are based on a presumption that a statistically relevant difference in brain size has a substantial negative impact on intelligence, the ability to learn, or other aspects of mental capacity or functioning. Yet, that may well not be the case, since the statistically relevant brain size differences that have been found are small as compared to a whole brain.

            There is little persuasive evidence to support the view that small brain size differences would have any meaningful functional consequences, unless what is missing is part of a specific area of the brain. Moreover, what we do know is that brains can be highly adaptable when parts are missing or not functioning properly, and even the smartest people only use a fraction of their brain capacities. Thus, how we care for, train, educate, and use the brain are far more likely to be significant factors in learning and brain functioning than small variations in size, no matter which theory or combination of theories is used to explain this phenomenon that has been linked to poverty.

             No matter how the science turns out in the empirical realm of testing and retesting the results and the theories associated with those results, the ultimate conclusions are not likely to be significant in terms of their social policy implications. What should be done with respect to the negative educational impact of poverty on children would remain largely unchanged no matter what we learn empirically. There might be some recalibrations and better targeting, but the basic thrusts would be the same. Reduced brain size, whether or not it is more symbolic of the learning disadvantages of poverty on children or it is an additional significant contributor, the social solutions remain clear, regardless of why this brain size differential exists.

            Begin first with the more controversial and socially uncomfortable genetic theory. Even if  the best explanation for brain size differentials in children based on their relative income turns out to be that it is an inherited trait, the social and governmental response, both now and then, should be the same: improve the learning environments for poor children by ensuring that the vestiges of poverty are addressed. This means providing those children with good nutrition, health and mental health care, and educational stimuli, which approximate what more affluent children receive, and taking steps to minimize the stigma associated with poverty or its vestiges.     

             On the other hand, if, as the first two theories suggest, the reduced brain size reflects or is a symptom of the more obvious consequences of poverty—lack of nutrition, health and mental health care, and educational stimuli, and/or increased environmental stress and chaos—the two prescribed antidotes of improving essential social services and reducing stigma would also be highly beneficial. Logically, the most reasonable courses of action, no matter which theory proves to be the best, would be largely the same. Whatever happens, however, the study should not be used to diminish or elevate the value of people based on perceived differences in their mental capacities.

Suicidal and Homicidal Behaviors of Airline Pilots 

            What should airlines and national governments do now that a co-pilot with a history of depressive symptoms and behaviors deliberately crashed a commercial airliner full of passengers killing everyone on board including himself? Retrospectively it appears—from a New York Times investigation by Nicholas Kulish and Nicola Clark—that the co-pilot had been reinstated into the airline’s pilot training program after a month-long absence without having to undergo anything more than the airline’s normal medical screening and testing program for applicants who want to become pilots. Yet, during a two or three month period before the crash, he apparently sought or received treatment from many different health care professionals for undisclosed ailments that later were presumed to be psychological problems. In addition, among his possessions, found after he had died, were notes indicating that more than one of those professionals had concluded the co-pilot was unfit to work at the time they had examined him. How long it would take him to recover was not addressed.

             Unlike most of the individuals who have committed mass murders in American public schools, this co-pilot had access to mental health care, used that care on multiple occasions, and was subject to mental health screening by the airline. The key missing link appears to  have been fact that because of strict confidentiality laws and rules in Germany, which also would be present in the United States and elsewhere, the onus was on the co-pilot to either inform his employers about his emotional problems, or decide on his own he was unable to fly. There has been no evidence presented to date that the co-pilot in his confidential sessions with his health care providers threatened to harm himself or his future passengers. In the United States such a threat would be the minimum required to allow or compel a health care professional to breach therapeutic confidentiality.

            The reason confidentiality remains important is that many and perhaps most individuals needing mental health care will not obtain such treatment unless their privacy is preserved. It is far more likely that a threat to do harm will be quelled in an environment in which quality mental health care is readily available and valued, than in an environment in which it is not, but mental health providers are encouraged or compelled to make unreliable predictions about which of their patients they believe are likely to be suicidal or homicidal. Unfortunately, whatever approach is used, there are no reliable means to prevent such awful occurrences. What can be done is to contain and further reduce their prevalence.

            Even if governments were to take the draconian step of banning anyone from being a pilot who has ever had a severe episode of depression, mania, delusions, or other indicated psychotic symptoms this would only capture a small percentage of pilots and potential pilots who might conceivably be capable of deliberately crashing a plane due to some mental disorder. It certainly would not capture those applicants who had such an episode and/or developed symptoms after becoming a pilot, but chose to keep it to themselves. Every potential solution will have significant gaps, but only some options would unnecessarily harm the vast majority of pilots and potential pilots with mental health issues who could lose their jobs or potential employment as pilots based on mental health concerns that never would have materialized into suicidal or homicidal actions.

            Pilots deliberately crashing their airplanes are highly extraordinary events, representing what in recent years has been described as black swan scenarios with catastrophic outcomes. Given the statistical parameters involved, in forging a future policy the following questions should be asked and answered: What percentage of false positives should we tolerate in attempting to reduce the number of these extraordinary events, if the result of an incorrect forecast is to seriously harm or ruin a person's livelihood?  Is it 10%, 25%, 50%, 75%, or 90% false positives? Assuming an acceptable level of tolerance could be agreed upon would it even be possible to reliably achieve that level? Probably not. 

            Unfortunately, those inquiries represent only part of an extremely difficult decision-making process. The other important question is what percentage of false negatives are likely to result, given the lack of reliability of the leading prediction tools, especially as applied in a corporate management environment? In other words given the criteria that are established, what percentage of current pilots and applicants to be who should be identified as potentially suicidal or homicidal, would be undetected?

            The impressionistic reactions of most of the commentators who have spoken out on the need for more interventions to prevent pilots with mental disorders from flying appear to be based on a belief that making such a judgment is a matter of common sense and thus easily made. Yet, their reactions are terribly misleading. Predictions of human behaviors involve a complex calculus, which is notoriously unreliable, unless they are based on verifiable empirical data. This is particularly true with regard to either suicidal or homicidal behaviors, much less the two in combination. No amount of impressionistic expertise or degrees can overcome the need for verifiable empirical data that can ensure only a reasonable percentage of false positives and false negatives result. In many ways such calculations are far more complex than so-called “rocket science.”

            What does this all mean with respect to substantially reducing the already rare incidence of airline pilots with mental disorders killing themselves and their passengers? The best approach is to reduce the prevalence of such occurrences further without having to use highly unreliable predictions of human behaviors. Instead, sound public health principles and other positive human incentives should be applied as follows:

·         require airlines to provide pilots and potential pilots with fully subsidized access to high quality and comprehensive mental health care;

·         encourage pilots and potential pilots to use that care when needed by reducing stigma and ensuring confidentiality; and

·         require airlines to provide generous disability payments and/or pensions comparable to the pilot’s salary, if that person is directed to stop flying temporarily or permanently due to a mental impairment.

Consent for Sexual Relations Given By a Person with a Mental Impairment

                  Individuals with intellectual or developmental disabilities, dementia, or some other mental disorder that significantly affects their mental capacities may be prevented from engaging in healthy sexual activities by people who do not fully understand the situation, or understand but object because it conflicts with their personal sensibilities or biases about people with mental disabilities. For many decades there have been countless examples in which the rights to self-expression and self-determination of people with mental impairments have been unfairly or unjustly limited or denied based on: (1) misperceptions about their mental capacities; (2) moral or religious beliefs of others; and/or (3) unscrupulous people who have used the courts for their own personal gain at the expense of those unprotected individuals.   

                  One of the most contentious life choices for people with mental disabilities has been the right to engage in sexual relationships. For years many state and local governments would forcibly sterilize women and girls with severe—and sometimes not so severe—mental incapacities so they would not become pregnant and have children. Today, these types of draconian restrictions on sexual rights are rare. The abuses tend to be somewhat more nuanced. They tend to arise when people in authority interfere based on their own personal agendas, which may involve religious intolerance, self-serving political correctness, or good old-fashioned American prejudice.

            Since the 1960’s, protocols have evolved in the law that allow people with diminished mental capacities to make personal decisions about their lives, which do not necessarily conform with what other people think they should do or believe is in their best interests. The basic idea is to allow individuals to make the decisions themselves if possible, or have decisions made for them that conform to their own beliefs, values, and preferences. The legal mechanism involved is known as substituted consent or judgment, which has worked well using a four-step analysis.

             The essential first step is to determine whether there is clear and convincing evidence that the subject has a mental condition or disorder that substantially interferes with his or her decision-making capacities, and if so whether that incapacity precludes the person from making the specific decision in question. If the person cannot make the decision at that moment, the second step is to determine whether the individual is likely to have lucid intervals in which the decision can be made in a reasonable amount of time later. With many types of mental disorders lucidity is variable rather than a constant condition. The third step, assuming the person is not be able to make the decision now or later, is to determine whether that person has provided clear indications about what his or her preference would be with regard to the specific type of decision at issue. Clear indications may be found in a living will, any other type of written or audio communication, or what the person has said to other people in the past that can be verified.

            Finally, if there are no clear indications of what the person would have wanted, then—and only then—a decision should be made by a substitute decision-maker from the point of view of the subject involved. Ideally that person should be someone who has been selected by the subject in advance or who otherwise has a close relationship to the subject, such as a spouse or close friend or family member. The decision should be based on what is known about that individual, which would help ascertain what decision that person would be most likely to make with regard to the specific type of question at issue.

             In arriving at that answer it is irrelevant what the substitute decision-maker, the judge, or anyone else might think the decision should be. The best interests of the individual should be reflected in the values and preferences of the subject for whom the decision is being made. The overriding concern is to remove—or at least substantially minimize—prejudice and religious and moral values of others from the equation. The only exception would be if the subject never had the capacity to indicate what his or her values and preferences were, such as a person who was born with profound mental impairments that never improved.

             Unfortunately, in a widely reported Indiana criminal case against the husband of a nursing home patient who had Alzheimer's disease, the facility, the woman’s care givers, the local community, and the prosecutor all failed to engage in any type of systematic analysis of what the woman would have wanted and whether her spouse was best able to represent her interests. For a variety of reasons, all of the people involved in investigating and prosecuting this already distressed husband decided to justify their actions with what appears to have been some kind of distorted political correctness involving lack of consent by women who have been sexually assaulted. The actions of the defendant, who had sexual relations with his wife of seven years while she was confined in the nursing home, apparently were equated with sexual assaults in which women are rendered unconscious or immobile by drugs or alcohol or compelled to participate by force. Making matters worse, the case was prosecuted shortly after the so-called victim had died and the husband was still grieving over the loss of his wife.   

             The jury acquitted the husband of sexual abuse charges, which otherwise could have resulted in a ten-year prison term. The evidence proved that the sexual encounter being prosecuted was a mutually-pleasing sexual exchange between two married individuals who by all accounts loved each other very much. The best decision, however, would have been—in the absence of any observable signs of actual abuse—for the nursing home, its care givers, and the community to have resisted the temptation to investigate and prosecute the husband.

 

Essay 19

03/23/2015

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WELCOME TO THE “MODERN PSYCHIATRIC ASYLUM”:
A BAD IDEA OF LAST RESORT

By John Weston Parry, J.D.


The Unfortunate Role of Many in the Medical Establishment

            To add gravitas to the legally dubious, economically unsustainable, and morally corrupting idea of forcing more people with mental disabilities into long-term civil institutions that would be deceptively characterized as “modern psychiatric asylums,” a faction of the medical establishment is relying on three “ethicists” and a hospital staff psychiatrist to make the case in the Journal of the American Medical Association and a New York Times editorial, respectively. When one removes the 1984 double-speak about ushering in the wonderful new world of psychiatric asylums, the arguments in favor of this bad idea boil down to two unfortunate realities: a legal history of neglect and abuse of persons with mental disabilities that almost makes this idea sound like a plausible alternative to the status quo; and the American Medical Association (AMA) potentially satisfying the perceived interests of its pharmaceutical benefactors and many of its psychiatrist members.

            The medical, psychiatric, and pharmaceutical entrepreneurs pushing this proposal conveniently ignore the fact that the medical profession, especially psychiatry, opposed and derailed proper funding of community-based services when deinstitutionalization was being implemented in the mid-1970’s, and thereafter. Essential community-based services have never been funded even close to adequately, which has led to the unconscionable criminalization of persons with mental disabilities lacking those essential services. Nevertheless, representatives of this AMA trial balloon want to piously declare deinstitutionalization a social miscalculation and conceptual failure, rather than one born of medical, legal, and political neglect, and ill will.

            Instead of endorsing increased funding for prevention and community-based services, this AMA-supported collective is proposing a return to a system of institutional care and treatment, which for a vast majority of people who have been confined in coercive mental institutions—whether civil, quasi-civil, or criminal—has proven to be inhumane, abusive, and counterproductive. Since the 1950’s, it has been widely known and understood by sociologists and other scholars that coercive institutional care and treatment, with very few exceptions, is dehumanizing, both for the residents and care givers. Erving Goffman, widely considered the most influential North American sociologist of the Twentieth Century, concluded during the 1960’s that this dehumanization process was inevitable. Nevertheless, it is being argued that coercive institutionalization is the best available solution for people with severe, chronic mental disorders because these new asylums probably will not be as bad for their patients as homelessness, other forms of abject poverty, or residing in prisons, jails, or other secure detention centers—all without any meaningful care and treatment.  

            Also—not coincidentally—this “new” form of coercive long-term, civil institutionalization will provide a significant source of income for those who own, operate, manage, and staff psychiatric asylums. These facilities will become non-profit, profit centers for pharmaceutical companies and some ethically-challenged doctors. Perhaps there even will be enough money left over to provide minimally adequate care and treatment to some of the residents of these involuntary psychiatric facilities. The vast majority of patients, however, are very likely to be administered powerful anti-psychotic drugs without much else, at the convenience of staff, with little or no oversight because that has proven to be the most cost-efficient way to manage residents in these expensive, dehumanizing facilities.  

            Every type of large scale, long-term institutionalization of Americans with mental or physical impairments has provided a vast majority of their residents with inhumane care with high levels of abuse and neglect, especially if the residents have cognitive and other mental issues to contend with. An unconscionably high percentage of the people in the United States, currently receiving long-term institutional care—including children and adolescents in psychiatric facilities, people with developmental disabilities in residential centers, and people in nursing homes—are being neglected and abused. No system of oversight has worked effectively on a national basis. Long-term institutional care in this country has never benefited a majority of the people who are forced to accept such care. Nonetheless, a faction of the medical profession’s psychiatric branch wants to be authorized to place more people with mental disabilities into these long-term institutional care facilities because they claim that—magically or perhaps mystically—these coercive, long-term facilities will be relieved of their proven deficiencies by rebranding them as “psychiatric asylums.”

            Things will be different Lucy tells Charlie Brown sweetly as she pretends to hold the football securely, tricking him one more time into trying to kick the football without predictably falling on his ass. As with predictions more generally, past performance is the best indicator of future results. The performance of the psychiatric profession with regard to coercive institutionalization has been poor, often negligent and abusive, and in certain instances criminal.        

            There are three important reasons—beyond distrusting the medical establishment’s judgment in this particular psychiatric policy arena—why the idea of involuntarily institutionalizing more people with mental disabilities is a horrendous idea: (1) it would be and should remain illegal; (2) it would waste precious resources that could be much better used for prevention and community-based services; and (3) it is very likely to produce inhumane results for those it is supposed to help. 

These Asylums Would Be and Should Remain Illegal

            Legally, fewer—not more—people with mental disabilities should be permitted to be placed in settings in which they are extremely vulnerable to being victimized by coercive civil institutional care and treatment. The U.S. Supreme Court, the Americans with Disabilities Act, and long-established legal principles dictate that coercive institutionalization only be used as a last resort, meaning where less restrictive alternatives would not be reasonable or feasible. The continued failure to provide the necessary funds to provide less restrictive alternatives should not be a legal justification to deprive people with mental disabilities of their constitutional and other legal rights.

            Normally lack of funding would not be a proper legal, much less a moral, justification for these types of rights deprivations, unless courts succumb to political pressures or convoluted legal reasoning to find there is no money available to provide humane alternatives. Such a finding, however, would be more difficult to make with any sense of legitimacy, if funds intended for people with severe, chronic mental disabilities were being targeted elsewhere in order to confine them in asylums, coercively. Unfortunately, when respondents with mental disabilities have been tried in quasi-civil, criminal proceedings that involve their fundamental freedoms, too often courts have given their rights short shrift in order to benefit the government’s position. This is a primary reason why so many of the most vulnerable people with mental disabilities have been sent to jails, prisons, and secure detention facilities.

            In order to compel involuntary civil care and treatment, especially in institutional settings, which deprive “patients” or “residents” of their fundamental rights, the Constitution as interpreted by the courts, requires that (1) there be a compelling governmental reason for doing so and (2) the means to achieve that objective be implemented in the least constitutionally-intrusive way possible. (For people with disabilities facing coercive institutionalization least intrusive has long been known as the “least restrictive setting.”) The general constitutional principle is clear: long-term, coercive institutionalization is to be avoided, if at all possible.

            The potential rub comes in deciding when a compelling governmental interest is required, and what “compelling,” “least restrictive,” and “possible” mean, legally. To date the courts—with certain painful exceptions—have been reasonably protective of due process rights when it involves civil involuntary inpatient and outpatient commitments of adults, who have not been adjudicated as legally incompetent. The legal obstacles for those wishing to do away with these due process safeguards remains high, although not insurmountable, given how the law has been stretched in the past with little substantive justification to favor governments over people with mental disabilities.       

             For many years, court interpretations about what types of deprivations of rights must be justified by a compelling, rather than a legitimate governmental interest, have been almost unanimous that this higher standard applies to involuntary commitments to a psychiatric hospital or other type of civil institution. The grey areas have involved forms of coercion that may be distinguishable from traditional inpatient involuntary commitments. These potential distinctions have included: circumstances in which patients were coerced into taking powerful prescribed drugs under the threat of possible involuntary commitment; and coercive commitments to settings in small residential facilities. Generally, for the purpose of imposing the compelling interest standard, courts have interpreted both of these civil commitment situations as being largely indistinguishable from involuntary commitments to a hospital or other institution. The decisive factor has been the government’s custodial control of the individual’s basic life choices.

            The grey area that has tended to alter this legal definition of involuntary commitment, but inconsistently from jurisdiction to jurisdiction, are third-party commitments by parents or guardians of legally incompetent adults or minors. The minimum constitutional requirements for these types of coercive commitments are different, depending on the age, maturity, and competency of the proposed patients involved. Yet, any of these types of coercive commitments involve substantially less constitutional due process protections than what has been required for involuntary commitments of adults who have not been adjudicated as incompetent.

            Reading between the lines, one would anticipate that going forward, were these so-called long-term psychiatric asylums be created and initially licensed, the operators would try first to enroll the least legally-encumbered patients: anyone who is committed by a parent, guardian, or the state as the guardian. Litigation would then likely focus on whether those proposed patients are being coerced and, if so, whether the deprivation of rights can be excused because they would be residing in a setting that might be marginally different from the psychiatric hospitals and other institutions of the past.

            If new precedents were to be established, which effectively distinguish these modern asylums from the more traditional civil psychiatric hospitals and institutions, the legal strategy would be obvious. The psychiatric proprietors would attempt to apply these distinctions as justifications for involuntarily confining in these asylums any adults with a severe, chronic mental disability. In doing so, proprietors might even be allowed to dilute the safeguards provided by traditional due process standards. This should never be allowed to happen because the results would be fraught with the potential for the type of legal abuses that have been present so frequently and consistently in the past.

Asylums Would Be a Waste of Precious Resources

            From a strictly economic perspective, experience has proven that long-term institutional care—whether civil, quasi-civil, or criminal in nature—tends to be far more expensive than community-based services, no matter who is being “cared for.” It is especially expensive if, as the asylums proposal appears to suggest, treatment services might include for some more than minimal humane custodial care and the administration of powerful mind-altering drugs. Even antipsychotic drugs, however, are becoming increasingly more expensive. This is especially true of the newer editions, which do not seem to be much of an improvement in terms of treatment efficacy, but allow pharmaceuticals to make more money and avoid competition from generic substitutions.

            What could be better for drug companies than to have a new “captive audience” to medicate inside cost-conscious psychiatric asylums, with harried staff psychiatrists deciding what drugs should be favored and how much should be given? Dozens of articles have demonstrated how pharmaceutical companies often successfully ply doctors with a variety of economic incentives to prescribe higher dosages of more expensive medications. Furthermore, the studies that promote the supposed relative safety of these drugs are often slanted or even rigged—at the behest of the pharmaceutical companies—by the medical journals and doctors who write, edit, and publish these unscientific articles.

            Too frequently near exclusive reliance on mind-numbing drugs to treat severe mental disorders has been counterproductive. It also has been bad medicine. Inappropriate dosages compelled in long-term institutional settings tend to ensure that patients do not improve enough to leave. Over time many—and arguably most—of these patients become significantly worse. If the first order of patient care is “do no harm,” then asylums appear to be a very risky—and arguably irresponsible—choice.  

            More importantly, from a cost standpoint and the welfare of society, the population of people with severe, chronic mental disorders and developmental disabilities would be substantially less prevalent if prevention was a high priority. Rather than pouring money into long-term coercive institutionalization strategies, it would be far more cost effective and humane to substantially increase public funding for early detection, prevention, and treatment. Unfortunately, in America’s socio-political math, programs that demonstrate future benefits typically are discounted or dismissed based on the number of years in the future the benefits will be realized.

            This calculus is a major reason why we no longer have a publicly-funded space program of any consequence, our infrastructure is in near-shambles, public education and even the health of the planet are in jeopardy, and public health prevention programs receive so little funding. For politicians, the tangible economic and electoral benefits of supporting the current interests of the pharmaceutical companies, the AMA, and American Psychiatric Association (APA), rather than the future interests of people who will develop or be born with severe mental disabilities, have become overwhelming.

Asylums Are Very Likely To Be Inhumane

            Has there ever been a period in modern United States history when large scale, long-term institutional care has been advantageous and humane for a large group of Americans with disabilities who are being subjected to such care? One may be able to cite individual pilot programs in institutional settings that have worked relatively well for short periods of time because they had sufficient funding while they were being tested for broader use, but even those examples are relatively scarce. The primary reason for this scarcity is simple: large scale coercive institutionalization has proven to be inhumane for a vast majority of patients. By the early 1950’s Mary Switzer and other scholars and policymakers realized that community-based alternatives were the only reasonable care and treatment options, which Goffman’s classic works later confirmed. The evidence was persuasive enough to convince what was then a very conservative American Bar Association that the laws authorizing coercive institutional care for persons with mental disabilities had to be replaced.

            Tragically, deinstitutionalization proved to be a failure for most of the people with mental disabilities who could have benefitted from this legally-mandated policy. The problem with its implementation had little to do with the basic concept, but everything to do with a failure to properly fund the community-based alternatives that were supposed to replace institutional care. Due in large measure to the concerted efforts of the AMA, APA, and fiscal conservatives in opposing public funding of community care by insisting that the available public funds remain in the institutions, deinstitutionalization never was given a meaningful chance to succeed on a comprehensive basis.

            The shameful truth is that the United States has never been substantially committed to properly caring for and treating persons with severe, chronic mental disabilities. Every comprehensive national program—or the absence of such programming—has led to widespread institutionalization in inhumane circumstances. In the 1950’s and 60’s the default solution was civil detention facilities, which were mostly large, isolated state institutions in which humane care and treatment was scarce and abuses very common. More recently various types of correctional detention facilities have been the default solution, most prominently prisons and jails. Now it is being proposed that once again we coercively detain people with severe, chronic mental disabilities in civil institutions that will be rebranded by calling them psychiatric asylums.  

            Few individuals in our society would chose institutionalization over being cared for in their homes or communities. Most people want to remain in their homes for as long as possible. This would happen even more frequently if the resources being spent to institutionalize them were used to provide humane care and treatment in the community, which they or their representative could choose. Even homeless people refuse institutional care, but seem to do pretty well—or at least better—when they are given housing and essential services in their communities, which is far cheaper to provide than institutionalization.

            The supposedly humane counterargument has been that most of these individuals do not know what is best for themselves because they are acting irrationally or as part of some delusion. Yet, why is it that almost all people with severe mental disabilities, over so many years, have acted in the same manner, wanting at almost any cost to avoid long-term institutional care? Are their concerns a mass, cult-like delusion? Or do they have a justified—and ultimately rational—belief and fear, based on many decades of experience in this country by people similar to themselves, that publicly-funded mental health care and treatment provided in long-term institutional settings has proved to be coercive, abusive, inhumane, and/or nonexistent?

 

ESSAY 18

02/17/2015

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BELIEF-BASED PSYCHIATRY AND MENTAL HEALTH: RECURRING PATTERNS OF BAD PRACTICES

By John Weston Parry, J.D.

            Whether it is climate-change, vaccinations, or mental health, progress is repeatedly stifled in this country by what Washington Post columnist Catherine Rampell describes as an “anti-intellectual, anti-science epidemic, one that prioritizes populist punch lines over smart policy….” This epidemic embraces beliefs over facts and confuses cultural values with knowledge. Unfortunately, irreparable damage may already have occurred to our planet and the environment.

            In addition, there is a growing potential for the deaths of many people as a result of irrational beliefs about vaccinations, which have been falsely and misleadingly characterized as ineffective or dangerous based on rumors from gossip magnets, including media personalities and politicians. States—not the federal government—have the power to ensure community safety by requiring everyone to be vaccinated, except for those who have a medically-indicated exemption. Unfortunately, extreme pandering to the ill-informed beliefs of various political constituencies have rendered states and localities substantially impotent if faced with legitimate public health emergencies, such as the spread of measles or some other more lethal infectious disease.   

            This epidemic of ignorance is made much worse by what New York Times columnist Frank Bruni identifies as “all those God invocations” to determine social policy. “Faith and government shouldn’t be so cozy as they are in this country.” It certainly should not invade our judicial decisions as it has in Alabama where the state’s Chief Justice Roy Moore has said “`[R]ights… contained in the Bill of Rights, do not come from the Constitution, they come from God.’” From this skewed and imperious perspective, Moore sees gay marriage as “pervert[ing] God’s will” and has attempted to preempt federal courts on this issue. Similarly, for many years now religious views and related pro-life beliefs about the right to die have forced millions and millions of people in the United States to experience awful deaths that could have been avoided were those patients allowed to die on their own terms, with intelligent safeguards, like people in Canada soon will be able to do because of their enlightened national Supreme Court.      

            Whether beliefs are based on the Bible, the Internet or social media, they become most destructive in the United States when they inform or determine public policies and governmental actions. This is not to say that experts who pretend to embrace logic and scientific methods when issuing subjective opinions to benefit themselves, their employers, or their untested beliefs are any better. They may be even worse or more hypocritical. The point is that there should be rational and rigorous processes for determining public education curricula, public policies, and the enactment and implementation of our laws, which prevent subjective beliefs and opinions, no matter what the source, from dominating the discussion and manipulating outcomes at the expense of knowledge, logic, and empirical evidence.      

            The consequences of not acting intelligently have become increasingly apparent in a multitude of settings. Sporadic brilliance and insight, which seems to be declining in this country, is not nearly enough to overcome widespread ignorance. One of the most damaged settings is mental health. Beliefs informed by stereotypes, stigma, sanism, and unbridled fear have produced a broad array of dysfunctional and inhumane laws and policies governing the burgeoning population of people with mental disabilities. Instead of curtailing abuses against this population, we are expanding the policies that produce these indignities and cruelties to encompass others who are poor and devalued. Perceptions and beliefs about possible intrusions on community safety, comfort, and convenience have overwhelmed social justice. Decisions about what should happen to those who are devalued and viewed as possibly dangerous too often have been placed in the hands of people who spout ignorance, intolerance, and fear cloaked as popular public policies.

            We consistently fail to provide housing, non-coercive treatment, and other social services that can substantially reduce the incidence of what we label as mental disorders, as well as the relatively small percentage of crimes that people with mental disabilities may commit. Instead, we put our resources into policies and programs to incarcerate, detain, monitor, and supervise anyone who fits—or we think might fit—inherently unreliable risk profiles of actual perpetrators of the types of events that we fear. In the process, a vast majority of those with serious mental health issues escape attention until it is too late, and those who would have been released if they did not have a diagnosed mental disorder are ensnared in a governmental and psychiatric belief system about dangerousness that is virtually impenetrable using empirical knowledge and logic. Moreover, we choose to deny minimally adequate mental health services to those who we place in government detention, almost guaranteeing that the inmates who need those services will be held longer than is justified by their legal circumstances.

            Two recent compelling threads of knowledge provide valuable insights into what might be done to improve our mental health and detention systems, as well as the obstacles that need to be overcome to make any substantial progress. The Vera Institute on Justice issued a comprehensive report, which focuses on the increasing number of people who populate our jails. These locally-run criminal detention centers have become warehouses not only for people with so-called mental disorders, but also people with substance abuse problems and those who lack the financial resources to post bail—in other words the poor. Not surprisingly a high percentage of people with mental health issues in jail, including those with addictions, also are poor. Thus, they experience a double whammy.   

            Every day our jails confine about three-quarter of a million people. In this setting, what has been termed the criminalization of persons with mental disorders, including those with addictions and other substance abuse problems, has been expanded to ensnare any defendant who is poor. Jails, even more so than our intolerably inhumane prisons, are known for being dangerously overcrowded, unsanitary, and lacking in adequate treatment and other basic social services that are essential in preventing inmates with mental health or disability issues from deteriorating further. Inmates needing care and treatment and do not receive it—which is about 80%  of those in need—tend to spend much more time in custody as a result.

            Moreover, judges, due to political pressures, are far less likely than in the past to release defendants who commit misdemeanors and other minor crimes on their own recognizance. Thus, the ability to pay for bail mostly determines which of those defendants awaiting trial will be released or held in inhumane captivity. Often, because speedy trials are so rare and indeterminate delays so frequent, many of these defendants awaiting trial spend more time incarcerated before trial than their sentence requires after they have been convicted. Even worse, those who are found not guilty have been confined for no good reason other than that they were poor and/or needed mental health treatment, which they did not receive.    

            On the civil side, those who need mental health treatment and other basic services encounter obstacles that prevent them from receiving adequate, much less good, care. In particular, how psychiatrists diagnose and treat people with mental disorders has come under close scrutiny from both sides of the Atlantic. There is increasing—and arguably persuasive— evidence, writes T.M. Luhrmann in the New York Times, that how we treat and care for individuals with mental disorders in the United States is badly flawed. The psychiatric model appears to be broken and dysfunctional. Exclusive and/or unquestioning reliance on the Diagnostic Statistical Manual of Mental Disorders (DSM 5) for diagnoses and pharmaceutical drugs for treatment is counterproductive in concept, and too often inhumane and unnecessarily coercive in its implementation.

            To begin with, according to researchers representing the British Psychological Association, the dividing line between mental disorders—including what we label as psychoses—and so-called “normal experience” is arbitrary, variable, and individualized. This is a version of the argument that Thomas Szasz made in the early 1960’s that psychiatry, which was using DSM I at the time, was inappropriately labeling various inabilities to function in society as illnesses, which need to be treated. In other words, much of what we view as being mental diseases are components of a person’s character that sometimes lead to behaviors that society labels as dysfunctional, anti-social, or unlawful. To a certain extent, psychiatry already recognizes this dynamic in the category of illnesses called personality disorders. What the British researchers have found is that a similar dynamic exists for schizophrenia and other psychoses.  

            Many—and arguably most—of these unwanted behaviors are traceable to character traits that have developed as a result of “trauma, abuse or deprivation….” Stated another way, “social experience plays a significant role in [determining] who becomes mentally ill, when they fall ill and how their illness unfolds.” Antipsychotic drugs “are sometimes helpful, but…`there is no evidence that [using them] corrects an underlying biological abnormality,’” much less improves social inequities that trigger many of the episodes that lead to coercive interventions, including imprisonment, compelled hospitalizations, and inappropriate and excessive medication.

            At the same time, these powerful pharmaceutical drugs have serious negative side effects, which typically accumulate the longer one takes them and which the drug companies deliberately try to downplay. Thus, there is a broad range of circumstances where antipsychotic drugs are not useful, not wanted, dangerous, or counterproductive, which demonstrates that other care and treatment approaches, including decent housing, should be readily available. These other approaches embrace voluntary, non-coercive community-based services, including various “talk therapies.” They also should include preventive services that target the social risk factors of mental illness by providing more humane environments, especially for infants, children, young adults, and families.

            In the United States, the National Institute of Mental Health has radically changed the ways in which it funds research into mental illness. This is because the prior approach to its research, which presumed that specific diagnoses, particularly as defined in the DSM, represented “biologically distinct diseases…didn’t pan out.” The identified genetic markers or “neural circuits were…common across diagnostic groups.” Thus, the idea that those who are diagnosed with conditions described in the DSM have diseases that necessarily need to be treated with specific drugs for that condition runs counter to the leading current research into mental illness both here, and for other reasons, in England.

            Instead, mental illness should be viewed as “complex individual responses… in which a collection of risk factors increases your chance of … disease.” In other words, a public health approach is required. This research also calls into question the reliability and validity of all the expert opinions about legal notions of dangerousness that depend upon diagnoses from the DSM, which is the legal shortcut for admitting those diagnoses in the courtroom as reliable and valid with a minimum of judicial scrutiny.

            Modern psychiatry with its heavy reliance on the DSM and antipsychotic medications may have arrived at a juncture that is similar to where Freudian-based psychoanalysis was a half a century ago. Apparently psychiatry has been rebuilt on an intricately and magnificently jeweled thrown, supplied in large part by the financial contributions of the pharmaceutical companies. Unfortunately, the legs of that thrown have been eaten away by empirical evidence. Hopefully, meaningful changes will come before there is a complete collapse. However, given over sixty years of experiences with deinstitutionalization and the criminalization of people with mental disabilities, whatever happens in response is likely to be at the expense of those most in need of treatment and other services, who also are the least likely to be heard and most likely to be abused.

            There also is the strong possibility that nothing much will change. Psychiatry will continue to function as it has in the past, based more on myths and past practices than science. The psychiatric branch of medicine will continue to focus on: providing treatment for the well-to-do and well-insured; and serving as salespeople and shills for the pharmaceutical companies, jailers in detention and coercive-care settings, and fortune tellers in the legal system. Those most in need of non-coercive mental health assistance and services will continue to go without, while many gifted and compassionate psychiatrists and psychiatrically trained mental health professionals will continue to do work they do not particularly like or admire.

 

ESSAY 17

01/17/2015

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POLICE VIOLENCE AGAINST DEVALUED AMERICANS:
PATTERNS AND PRACTICES OF DISCRIMINATION THAT SHOULD BE UNACCEPTABLE IN A CONSTITUTIONAL DEMOCRACY

By John Weston Parry, J.D.
 

            That police officers across the nation sometimes “choke first, ask questions later” has been known for a long time, but has been brought to light once again by a report by the New York City Policy Department’s inspector general. As a New York Times editorial explains, “this much-reviled, supposedly disavowed tactic has never gone away….” The actual prevalence of excessively violent rogue police practices such as these cannot be easily measured.  

            However, there is little doubt that these types of police abuses continue to occur at rates that are unacceptable in a constitutional democracy. That policing can be a dangerous profession, which most adults would choose to shy away from, should not be an acceptable excuse for ignoring or minimizing travesties of justice when they take place. Certainly better enforcement of department rules, along with improved training of officers, can help to stem criminal-like police practices, which have been implicitly—and occasionally explicitly—tolerated or sanctioned in police departments throughout the United States.

             Nonetheless, improved enforcement and training alone will never be enough to prevent police violence against Americans, who either do not present an immediate danger or present a minimal danger that can be reasonably controlled using nonviolent means. Perceiving the possibility of harm to oneself should not be enough by itself to justify the use of excessive and potentially lethal force. For the example, the mere perception that a suspect might have a gun should only be a recognized excuse for lethal police force if under the given circumstances most trained officers also would believe they were about to be shot. Otherwise, anyone who is stopped by the police is in danger of being harmed or killed, which is what is happening now and makes the decision as to who should be stopped in the first place critical. In particular, allowing young men and male adolescents of color and people with mental impairments to be profiled by police as deserving enhanced police attention is an injustice that can produce devastating results.  

                There are several threshold questions that need to be answered—and policies implemented based on those answers—in order to protect the public from excessively violent police practices that diminish the constitutional rights of all Americans.

·                 What potentially lethal tactics, including chokeholds, should police officers be authorized to use in order to provide security and protection in our communities and for the officers themselves, and in what circumstances?

·                 What standards should police officers who violate police procedures and state and federal laws governing police misconduct be held to when their transgressions are discovered and what special enforcement apparatus should be in place to ensure compliance with those procedures and laws?

·                 Are there particular groups of people that are significantly more likely to experience abuse and excessive violence from the police and what special measures should be implemented to protect them from this                           intolerable form of discrimination?

Police Tactics That Should Be Allowed: Beliefs and Perceptions Versus Knowledge

              Generally it is understood that the police should be authorized to use weapons, pursuit tactics, and defensive measures that are necessary to protect their communities, themselves, and their fellow police officers. While there can be reasonable differences of opinion about what is actually necessary to accomplish sound policing objectives, the slippery slope towards police overreaching and brutality has been accelerated by the uncritical acceptance of the perceptions and beliefs of police officers themselves as to what is necessary. Throughout American society the refusal to embrace knowledge and critical insights based on that knowledge leads to many different forms of abuse, neglect, and discrimination.

              The beliefs and perceptions of all human beings are inherently skewed and weighted towards conclusions that support themselves, their own values, and those people and groups closest to them. For police officers their shared biases tend to be skewed towards self-protection, protection of their fellow officers, and a perception of dangerousness based on their coming in contact with a disproportionate percentage of potentially violent people. Knowledge and critical thinking are the primary tools that are required in order to overcome this perceptual imbalance. What police officers believe or perceive as being necessary to perform their jobs and to meet the policing objectives of their communities should only be given credence in policymaking once those notions have been properly vetted.

            Police officers obviously have a great deal of practical expertise to contribute to policing, but they also have inherent biases that need to be purged when policing policies are being determined. As Charles Blow of the New York Times has correctly observed, the police “encounter a disproportionate percentage of people who break the law… [which] warps their perception of citizens in general,” and the potential for those citizens to be dangerous.  As a result, police unions and police departments should not be making policies about deadly police tactics. These decisions should be made independently with substantial opportunities for the police to contribute to the fact-finding process. The police should be in charge of implementing these policies with vigorous independent oversight to ensure that the implementation is reasonably consistent with the stated policies.  

            Three of the most controversial police tactics in recent years have involved the aforementioned chokeholds, the unnecessary shooting of suspects, and pursuit measures that endanger innocent citizens. With regard to all of these tactical excesses, the perceptions and beliefs of the police—and those who represent the police—have distorted reality and on too many occasions created unreasonable outcomes that threaten and take the lives of innocent Americans. Policing should not resemble the “wild west” where suspects could be taken into custody “dead or alive” without any questions being asked.

            There is no legitimate reason to use chokeholds in policing, except in the very limited situation in which an officer is engaging in hand-to-hand, physical combat with a suspect or is the victim of a surprise attack and cannot otherwise protect him or herself. As a method of self-defense, the chokehold should be viewed as a policing option of last resort, which can too easily cause unnecessary harm or death. Too often it is used as a way to punish and injure a suspect, rather than to obtain reasonable control.

            The excessive use of deadly force with a firearm in policing has been perpetuated by two popular beliefs supported and cultivated by the police themselves. The first notion is that the life of a police officer is more important than almost anyone else, which is one of the main reasons why whenever an officer dies so many fellow officers, police officials, and politicians attend the funeral. Unfortunately, as long as society treats the death of a police officer as being more important than the death of almost anyone else, it will be difficult to protect devalued and less-valued Americans from police abuses and violence. A second belief is that whenever a police firearm is used it should be fired with the intent to kill, which has been generalized to mean that if there is more than one officer present as is frequently the case, all the officers should draw their weapons and fire in order to shoot to kill. The too familiar results of such excessive force are the tragic scenarios in which persons making threats, but who do not constitute an immediate danger, or making no threats at all are riddled with bullets, shot in the back, or shot even though they have no deadly weapon.

            Finally, high speed car chases by police to catch fleeing criminals, especially those who have committed non-violent offenses, continue to wreak havoc on the civilian populations who happen to be in the way. This is reflective of an attitude that places the privilege of police to engage in dangerous practices they covet over the safety of the people and communities they are suppose to protect. To say this is self-defeating and counterproductive is to state the obvious. Yet, what should be obvious frequently does not penetrate the aura of the blue shield. Thus, reckless car chases by police become romanticized in the movies and television as evidence of manliness or macho feminism carried out by those who are celebrated as the best of the police profession.   

Policing Standards and Enforcing Accountability

            There is a strong tradition in the United States and elsewhere that aggressive actions of the police while on duty should be governed by standards that are reasonably different from those that govern the rest of society. This also is a tradition that has confused and conflated two very different principles, creating an intractable dilemma. There is little disagreement that providing police with the special authority needed to do their stated jobs more competently, which necessitates certain exceptions to the normal laws and rules that govern other Americans, is an appropriate delegation of police powers. As discussed above, care still needs to be paid in deciding what special allowances are to be made. In addition, certain specified limitations need to be placed on those powers. Nevertheless, as a general principle our laws need to provide for specific allowances and accommodations that are tied directly to the roles the police are supposed to fulfill in protecting their communities, themselves, and their fellow officers.

             At the same time, what can be a laudable police tradition also has been responsible for overwhelming sensible government because too often those in charge have not enforced laws when police violate them, or have enforced them with less vigor. Police should be held to a higher standard of accountability than other Americans, if they violate the law. They certainly should not be held to a lower standard. The current double standard has created a situation in which rational measures to account for the special dangers and burdens of policing have been expanded to implicitly excuse police officers who engage in reckless and excessively violent behaviors, such as unnecessarily choking, shooting, or running over civilians.

            This double standard not only infects police departments, but also the state and federal prosecutors who are tasked with upholding the law because they are beholden to the police in order to effectively prosecute other criminals. In other words, there is an obvious conflict of interest. The grand jury system in particular has been subject to prosecutorial manipulations favoring the police. Prosecutors, more than anyone else, guide and control those proceedings. At the very least, prosecutors tend to extend professional courtesy to police officers, and often extend much more than that.

            Thus, a system of justice that should hold law enforcement to the highest legal standards has created conditions that result in the standards being lowered for police. In such an environment, the best police officers are compromised by the actions of the least qualified and the policing profession continues to attract and retain too many individuals of questionable character. An officer, who does not make a reasonable decision regarding the use of lethal force, should face an independent judicial inquiry, in lieu of a grand jury, to determine whether probable cause exists to conclude laws were broken. If probable cause exists, that officer should be tried as a criminal defendant. Special rules, which would implement this independent judicial inquiry, should be enacted into law as limitations on the special powers that are granted to the police.  

Young Men of Color and Persons With Mental Impairments Are Much More Likely To Be Victims of Bad Policing

            One of the most reprehensible aspects of allowing excessively violent policing is that it empowers existing biases, prejudices, and personality problems of police officers. While anyone who is subject to an interaction with the police could be a victim, overwhelming anecdotal evidence suggests that the likelihood increases geometrically when the individual is either a young man or male adolescent of color or a person who exhibits, or is known to have, symptoms of a mental impairment. This is primarily due to false and misleading generalizations that are embraced throughout American society.

            While it appears to be true that members of criminal gangs and a relatively few actively psychotic individuals are more likely to be dangerous individuals, it does not follow that young men or male adolescents of color and people with mental impairments are substantially more dangerous than anyone else in society. Any increases in dangerousness that may exist are minimal and certainly do not justify profiling members of these groups as individuals who should receive special attention from the police. A vast majority of young men and male adolescents of color and people with mental impairments have done and will do nothing criminal to warrant such special attention.

            In addition, both of these stigmatized groups of people have been victims of social biases and prejudices, which are reflected in bad policing. Furthermore, a small minority of police officers are simply disturbed individuals, who want to aggressively confront or cause harm—or enjoy harming—young men of color or people with mental impairments. When these officers act out on these base impulses, the aura of the blue shield, along with police covering for each other, tends to protect them from discovery, much less successful prosecutions.

            In the current political environment in which community safety and homeland security have become preeminent values, the perfect storm of bad police practices is much more likely to strike those in society who are devalued, feared, or least able to resist. As a result, these discriminated against groups of individuals need special protections that go beyond improved police training and more rigorous enforcement when police misconduct occurs. It is the very people who are most likely to be profiled by police, who tend to be the victims of such misconduct and are the least likely to receive justice as a result.

            Ultimately profiling to identify criminals based on racial, ethnic, socio-economic or psychological criteria is counterproductive because it is almost always inaccurate, unreliable, or distorted by biases and prejudices. There are way too many false positives and false negatives, which hinder rather than assist police investigations. Following the evidence is replaced by so-called “gut feelings.” Moreover, once individuals are mistakenly identified as suspicious, their risk of being falsely arrested, physically harmed, or killed by the police increases dramatically.

            As empirical studies have shown in a related area, psychiatric risk assessments used to predict dangerousness are only reliable when they are used to exclude individuals as being dangerous (See John Weston Parry, Mental Disability, Violence, Future Dangerousness: Myths Behind the Presumption of Guilt (Rowman and Littlefield Oct. 2013 at 115-132, 141-145.) Similarly, police profiling based on racial, ethnic, socio-economic or psychological criteria (which constitutes an even more subjective form of risk assessment), now—and probably for many years—only has the potential to be reliable in determining who is not likely to be a criminal. Otherwise the use of such profiling is counterproductive, if being right more often than being wrong is to be valued.

            In large measure this is because behaviors that are thought to apply to a specified group rarely apply to the specific individuals in that group with any statistical validity or reliability, even if no biases or prejudices are present. Moreover, being more likely to offend has no meaningful statistical impact unless that likelihood is very high, since very few people actually commit serious crimes. If less than 10 percent of the population commit a serious crime, which is probably a high estimate to begin with, having a characteristic that is thought to double the incidence of criminal behaviors means that the odds of a given individual in that group being a criminal is still only 20 percent. Conversely, more than 80 percent of those individuals have done nothing criminal. They happen to share certain characteristics that suggest to the police that they are more likely to be criminals.      

            Ultimately, the groups of Americans who are the subjects of police profiling need enhanced protections from police overreaching. In addition, when they allege police misconduct their allegations deserve heightened scrutiny. Among the groups that most need such special attention are young men and male adolescents of color and persons with mental impairments, who repeatedly have been the subjects of invidious discrimination at the hands of the police.              

 

ESSAY 16

12/17/2014

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ABUSE, NEGLECT, MISTREATMENT, AND EVEN TORTURE ARE PERMITTED IN OUR LEGAL SYSTEM WHEN DUE PROCESS IS MARGINALIZED BY SITUATIONS WE SUBJECTIVELY EMBRACE AS NATIONAL AND STATE “EMERGENCIES”

                                                        By John Weston Parry, J.D.
 

            Precedent, which allows the Constitution to reasonably change in order to keep pace with social evolution or unexpected events, also can be a legal conceit with unintended or unjust consequences. Or precedent can be both unintended and unjust simultaneously, as it has been with court decisions expanding what are called “emergency” powers of federal and state governments. For over one hundred and fifty years, prejudice, fear, and hate have driven a vast expansion of these extraordinary government powers in ways that have diluted, skewed, and abridged the rights of unpopular groups in the United States. In the intensely partisan political environments that such raw emotions tend to create and fuel, due process, which is suppose to temper governmental excesses, too often is bypassed or unfairly diminished.

            Those who have suffered most are the people sentenced to government custody, especially to prisons, jails, detention and treatment centers, and cages at Guantanamo Bay. Tragically, the number of individuals who are ensnared by such draconian governmental “emergency” measures keeps increasing, while our courts continue to look the other way or actually enable this lawlessness to continue in the name of protecting our communities from perceived threats. In the process, our Constitution, especially the Bill of Rights, has been substantially weakened.

Lincoln Expands Presidential Powers Unilaterally

            This constitutional assault originated during the Civil War under the otherwise heroic leadership of Abraham Lincoln. In an historic struggle to keep the South from succeeding from the Union, to give slaves a greater opportunity to be free, and, most of all, to reflexively reduce any chances of being defeated in war, the President unilaterally suspended important parts of our Constitution. Most notably he dispensed with the writ of habeas corpus and placed the Declaration of Independence above our Constitution as an instrument to define our fundamental legal principles. He also declared Marshall Law, which he claimed gave him the authority to suspend the First Amendment by preventing antiwar newspapers from publishing and arresting protesters. All of his actions bypassed and thus diluted the powers of Congress, as well as the Constitution. History has judged that these imperial actions did little to aid the war effort and thus have been viewed as unnecessary, as well as ill-advised.

            For the most part, the third branch of government—the judiciary led by the U.S. Supreme Court—stood silent in the face of the power of the Presidency and the bravado of war. The lone exception occurred when the Court initially objected to the suspension of habeas corpus. The Justices directed Lincoln to bring those who had been arrested without due process before them for a hearing. Lincoln refused dismissing the High Court's authority based on his personal belief that he had not violated the Constitution. By silently capitulating to Lincoln’s assumption of powers that he was never authorized to possess, the Supreme Court helped to create an implicit precedent that would be relied upon to enable other presidential excesses in times of war and, more recently, self-declared national security crises. Judicial silence in the face of lawlessness by the federal government was then—and continues to be—an unfortunate pattern for the highest court of the land, and an abdication of its constitutional responsibilities.

Public Health Emergencies and State Governments

            The next substantial dilution of due process in an emergency involved the power of state governments to incarcerate and otherwise deprive individuals of their liberty and other freedoms when they appeared to pose a health threat to the community. Public health in a local community or within a state is a governmental concern that—until more recently—resided exclusively with the states and not the federal government. A landmark Supreme Court case, Jacobson v. Massachusetts (1905), empowered states to dispense with the normal rules of due process if a broadly conceived health emergency was plausibly thought to exist. The consequences of this ruling proved to be far reaching.

Congress and World War I Sedition Act

            The second major wartime contravention of the Constitution was the Sedition Act of 1918, which followed closely the United States’ entry into World War I. Unlike Lincoln’s unilateral actions during the Civil War, in this particular situation Congress exceeded its powers by approving a law that improperly curtailed the First Amendment without prior ratification by the states. Under that statute the federal government was authorized to prosecute and imprison, for up to 20 years, those who used “disloyal, scurrilous, or abusive language” referring to the United States government or symbols that could be taken to represent the federal government. In addition, the U.S. Post Office was directed not to deliver mail that contained this type of contemptuous language towards the United States, which necessitated opening and reading private mail, a governmental practice that has mushroomed in recent years with the widespread surveillance of private electronic communications.

            The sedition amendments to the Espionage Act of 1917 criminalized actions that interfered with military recruitment or other efforts by this country to generate support for a properly declared war. The original statute had been enacted in part because local citizens had been taking matters into their own hands in order to physically attack and harass individuals who were lawfully, and on occasion unlawfully, protesting the war effort—mainly socialists and a few communists and Quakers thrown in for good measure. In Abrams v. United States (1919), a divided U.S. Supreme Court upheld the Sedition Act, despite a vigorous dissent by Justice Oliver Wendell Holmes. When World War I ended, Congress repealed the law acknowledging that the prior restrictions had gone too far.

FDR and the World War II Internment of Japanese-Americans

            In World War II after the attack on Pearl Harbor, President Franklin D. Roosevelt presided over the most intrusive expansion of emergency powers in our history. Like Lincoln his management of the war effort was otherwise brilliant. Nevertheless, his politically popular emergency actions resulted in the internment of more than 100,000 Americans, mostly Japanese, but also Germans and Italians, in camps located throughout the western United States, especially California. A majority of the victims of this policy were American citizens; the rest residents or visitors. Most of them resided in states that bordered the Pacific, which appeared to be vulnerable from possible further attacks from Japan's air force and navy, greatly enhancing the nation's fear and hate of the Japanese, especially in western ocean communities.

            In February of 1942, Roosevelt signed an incredibly broad executive order empowering military commanders to designate geographical areas in which “any or all persons may be excluded.” Subsequently, local military authorities, influenced by community groups in those areas, implemented a multi-state policy in which anyone of Japanese ancestry was exiled from California and large portions of Oregon, Washington, and Arizona. These Americans, based on no substantial evidence other than their race or ethnicity, were suspected of being enemy sympathizers and potential terrorists. As a result, they and their families were placed in relocation camps throughout the western United States. In the process, any real estate or personal property that these Japanese-American citizens and residents were unable or not permitted to take with them was left to be appropriated by their former neighbors and other profiteers.

            The Supreme Court largely upheld these unconscionable policies in Korematsu vs. U.S. (1944). The 6-3 opinion, much like Bush v. Gore (2000), was decided substantially on party lines with all six Roosevelt appointees—including Justices Black and Douglas, who later would become champions of the Bill of Rights—voting in favor of these government excesses. Specific guarantees under the Constitution gave way to the perceived exigencies of war, specifically the need to protect the nation against presumed acts of espionage that had never occurred, much less proven to have been carried out by those taken into custody. The Court passively finessed the most important constitutional implications of the military dictate by only addressing the validity of the removal order itself, ignoring the critical issue of a large group of U.S. citizens and residents being incarcerated without due process.

The Mass Institutionalization of Persons with Mental and Other Disabilities During the 1950’s            

            After WWII, during the 1950’s, the full implications of the aforementioned Jacobson public health decision had now become apparent. What originally was perceived to be a narrow ruling, which authorized compelled vaccinations that are “reasonably required for the safety of the public,” had been transformed into nationwide incarceration and many other deprivations of civil rights for a variety of public health-related “emergency” concerns. These included having any sort of serious mental condition or contagious disease, such as tuberculosis. Hundreds of thousands of adults and children were incarcerated in large mental institutions that became known later as “warehouses” and “snakepits,” which also imprisoned people with physical or sensory disabilities.

            Also, during these intervening years the requirement that the public’s safety be directly implicated in these emergencies had been expanded under states’ parens patriae power to include the safety of at risk individuals themselves as the landmark Supreme Court decisions in O’Connor vs. Donaldson (1975) and Parham v. J.R. (1979) made clear. Individuals, who were deemed “gravely disabled,” “in need of care and treatment,” or a potential danger to themselves, were at risk of confinement and other rights deprivations, typically without adequate care and treatment.

The Reagan Years and Its Legacy

            In the 1980’s, during Ronald Reagan’s presidency, even the state’s rights limitation precluding federal action in these public health matters began to fray. The U.S. government discovered “new” ways to become “involved” because civil commitment was being criminalized as due process was being invoked successfully in civil commitment cases. Both states and the federal government began incarcerating hundreds of thousands of individuals with mental disabilities in correctional facilities without proper care or treatment. The Supreme Court eventually approved this type of quasi-civil commitment by the federal government in United States v. Comstock (2010).

            Also, during the 1980's, federally supported “wars” on violent crime and drugs began sensitizing the American public to the perceived benefits of fighting undeclared wars against those who are perceived to threaten our domestic national security by using extraordinary federal and state prosecutorial and judicial powers. As a result, the United States has a greater percentage of its citizens and residents in jail and prisons than any other major country in the world. A disproportionate percentage of those individuals are young African-American men and persons with mental disabilities.

            If those percentages have not been horrifying enough, according to the New York Times, the United States is about to embark in a greatly increased effort to indefinitely incarcerate illegal immigrants with a particular focus on families as a “deterrent to border crossings.” A new facility near Loredo, Texas, which has room for 2,400 “illegals…is especially designed to hold women and their children.” This new incarceration effort probably will not be designated as a war on illegal immigrants officially, but for all intents and purposes it is likely to be exactly that once the composition of Congress changes in January. Unfortunately, substantially-reduced due process is in place already, given the weak protections that exist, which govern individual rights in immigration hearings.

The Aftermath of September 11th

            After September 11, 2001 (9/11), the definition of a national emergency in the context of a war-like conflict, whether formally declared by Congress or not, expanded precipitously. The federal government began spying on people who were presumed to be dangerous to others due to their perceived terrorist activities or beliefs or participation in “dangerous” radical Muslim or Muslim-like religious activities. This electronic dragnet has intruded upon the rights of many individuals who have been mistakenly identified as potential terrorists and people who happened to be communicating with those under surveillance. Judicial scrutiny of these largely unmonitored surveillance activities is done secretly in proceedings in which national security is presumed to justify any intrusion into the privacy rights of those being spied upon.

            In addition, secret agencies of the federal government began arresting and interrogating suspected terrorists as national security risks without affording them any due process protections. A number of individuals were detained at Guantanamo Bay and other foreign detention facilities for years without their ever being given the opportunity to contest the presumed charges against them. Many of these suspected terrorists were badly mistreated and interrogated using methods that by international standards are considered torture. The recent Senate report on the CIA's activities during this period agreed that many of these methods constituted inhumane practices and a few torture.  Remarkably, a majority of Americans believe that these uncivilized methods are justified in order to protect our national security interests.

            Making matter worse, these methods have proven to be largely unnecessary or counterproductive as intelligence-gathering tools. There have been a series of rushed judgments by intelligence agencies and other government officials that was exemplified when the administration of the second President Bush fabricated the existence of weapons of mass destruction in Iraq. As one former C.I.A. interrogator recently told the New York Times, officials in charge were more concerned with getting any type of information fast, rather than harvesting reliable information that could be properly analyzed and utilized. Without the constraints of due process and judicial review, there was no one in a position to challenge these secret vigilante methods by overzealous government officials.

Conclusion     

            Under the cloak of emergency-like powers, we deprive large groups of Americans—those who are presumed to be dangerous due to mental disability, young African-American men, and suspected domestic terrorists—of rights supposedly guaranteed by our Constitution. We also deprive foreigners in our custody, who immigrate illegally to the United States or are suspected of being terrorists, of those rights and many more. The continued persecution of these individuals and the groups they belong to has been enabled by judicial neglect and constitutional malpractice. Dangerousness to self or others has become synonymous with a national or state emergency, while the circumstances that define either legal conceit—dangerousness or an emergency—have been expanded far beyond their original meanings.

            For many years “dangerousness” to others or to oneself has been legally defined to embrace speculative events in the future that have not yet occurred based on subjective predictions that they may happen. Furthermore, the current definition of an “emergency” encompasses any type of legally defined dangerousness, plus a wide variety of events that include such diverse occurrences as the inauguration of a President, the playing of a Super Bowl, illegal immigration, and the need to obtain information about individuals and international groups that are deemed—by unaccountable and self-interested secret government agencies—to have the potential to plan terrorist attacks in the United States.

            When any of these—and a multitude of other—threatening circumstances arise, many individuals working for federal and state governments to implement emergency measures believe or are told to believe that they are allowed or even obligated to dispense with the Constitution. Moreover, our judicial system, particularly the U.S. Supreme Court, rarely if ever directly interferes and often issues opinions that help facilitate such lawless behaviors. The ends—even ones that may be noble—do not justify the means, when fundamental principles, especially constitutional and human rights, are sacrificed in the process. Yet, as a nation, we continue to embrace or tolerate these human sacrifices because, one way or another, the outcomes appear to serve our narrow self-interests.       
 

ESSAY 15

11/24/2014

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                                                            POLITICO-MEDICO-LEGAL DYNAMICS
                                                                CAN PRODUCE GRAVE INJUSTICES

                                                                    By John Weston Parry, J.D.


            In our legal system what do people who have—or are thought to be potential carriers of—the Ebola virus, pregnant women in states with highly restrictive abortion laws, and people with mental disabilities, have in common? Because of their statuses as individuals with medical needs who are feared, disliked, or disfavored, they may be subjected to legal actions based on irrational prejudices, impressionistic opinions, or unreliable diagnoses that without rational justification penalize them for being threats to a particular community or its established beliefs. Emergent civil rights violations against potential carriers of contagious diseases and women who carry fetuses that are valued more than the women themselves, parallel in disturbing ways what has been happening to large numbers of people with mental disabilities for decades. All of these individuals and the groups they belong to are highly vulnerable to being victimized by politicians, judges, and juries, who have breached or minimized their responsibilities to implement laws fairly and justly.   

            Unfortunately, discriminatory laws and legal policies, which unfairly marginalize the rights of people, who are viewed as being a threat or affront to various communities based on subjective beliefs rather than actual knowledge, have been expanding. This has become a slippery slope of the communitarian ideal in which the views of empowered constituencies overwhelm science and empirical evidence with impressionistic opinions and cognitive dissonance. With too many of our most vital social issues, despite the existence of persuasive knowledge to the contrary, we continue to implement popular or politically convenient beliefs to our detriment. In this post-modern paradigm, anti-intellectualism is viewed as a virtue. Politicians, including Governors Rick Perry, Chris Christie, Andrew Como, and Paul LePage, become more politically viable by practicing demagoguery rather than nuanced leadership.

            Why should people take the time and effort to understand an issue if they can arrive at a far more popular outcome by embracing a widely-held belief? As long as Americans continue to ignore or minimize the collateral damage to the rights of vulnerable groups, which our empowered constituencies dislike, devalue, or fear, these types of laws and policies will have little or no opposition. In the process, groups such as the American Civil Liberties Union and the Centers on Disease Control, which are willing to challenge this nonsense, will be viewed with distrust and hostility based on irrational dissonance that makes those who challenge popular beliefs with knowledge the enemy. Making matters worse—as noted in a recent New York Times editorial—Attorney Generals, who strongly influence and implement the legal policies of our states, are now subject to crass lobbying efforts in which “companies [and other interested organizations] give hundreds of thousands of dollars (and often much more)…to elect [them].” Thereafter, “once in office, many of these officials are treated to expensive vacations at resort hotels, where they mingle with lobbyists…trying to make deals for their clients” and various other constituencies.

            Thus, in many ways, given the socio-political culture that we have in place, it is not surprising that much of our legal system has been used to marginalize the civil rights of potential carriers’ of infectious diseases, pregnant women, people with mental disabilities, and other disfavored groups. The most voluminous examples of such contempt for individual rights occur when people with mental disabilities are incarcerated in the criminal justice system. Inside almost any detention center where state and federal governments house inmates with mental disorders will be the most awful conditions of mistreatment, abuse and neglect. One disillusioned psychiatrist, Stephen Seagar, who works in a California forensic mental hospital, recently acknowledged that these types of facilities provide perpetual “`sorrow, sadness and hopelessness,'” rather than humane care and treatment, which could make the residents better. Tragically, conditions for the much larger number of inmates with mental disorders, who remain in the regular prison populations, are even worse. (See, John Weston Parry, Mental Disability, Violence, and Future Dangerousness: Myths Behind the Presumption of Guilt (Rowman & Littlefield, October 2013).

            Perhaps the surprise is that many more unpopular or devalued groups have not been affected by these politico-medico-legal dynamics, at least not yet. But what will happen if our health care system for poor and economically distressed Americans is further marginalized under the weight of profound greed and self-interest and immigrants become our enemies? As Americans in a post-modern world, we are resigned to accept wrongs we think cannot be changed or changed to benefit us.

            We have become a segmented society that appears to be immune to mass injustices when wrongs do not involve ourselves, our relatives, our friends, or a homogenous circle of people on social media. As David Brooks has observed, it is a “society almost perfectly suited for contagions of hysteria and overreaction” in which “feelings of intellectual inferiority toward people in authority...turns into corrosive cynicism...” Isolation and cynicism in turn breed “fear” which has become the “anti-science...fog that alters perception and clouds thought.” What this produces in the “American body politic” suggests Google and market strategist, Nicholas Colas, is “`an odd mixture of hostility and apathy.'” It also is a society in which justice has become a fungible commodity.  

Ebola and Other Contagious Diseases

            What has happened already when only a handful of people with the Ebola virus landed on our shores should be a warning of things to come if there were a potentially lethal epidemic or biologic attack. Popular opinions rather than medical science would heavily influence our policies with regard to quarantines and other rights deprivations aimed at suspected carriers. Our legal system would not be well-equipped to rebuff the hate, fear, and money-driven beliefs of many Americans, the demagoguery of our politicians, or the subjective impressions and opinions of self-interested medical and other health and pseudo-health experts. In fact, there is every reason to believe that it is far more likely that our laws and courts would be used to bring about increased rights deprivations, particularly since the appointment and election of judges have become more political and financial, and the definition of a national or state emergency continues to be broadened well beyond its constitutional origins.

            Some of the worst political excesses were on display in many parts of the country with the recent Ebola scare. Governors in a number of states viewed the need to take steps to control a small domestic outbreak of the deadly, but difficult to transmit, virus as an opportunity to manipulate their voters, rather than to support or initiate rational public health policies. Governor Perry of Texas began the procession of duplicity after the virus first visited the United States in Dallas. He erred on the side of plausible deniability and self-preservation for his state’s medical system. Perry and state health officials deliberately understated the potential threat caused by inadequate medical training and protocols in Texas for dealing with contagious diseases such as Ebola. In the end, the affected patient died and several health care workers were exposed unnecessarily, including two who were allowed to travel on an airplane and cruise ship, respectively, without any thought given that this might be a problem.

             Unfortunately, the national panic that was created morphed into liberty-constricting overreactions and rights violations in other states, most notably New Jersey, New York, and Maine. Not coincidentally, the governor making the most headlines in this regard was the one hoping to have a run at the presidency in 2016, who also happened to be the Chair of both the National and Republican Governor Associations: Chris Christie of New Jersey. Rather than being a leader by dealing with the Ebola crisis in a measured, medically-sophisticated manner, he used and inflamed the pre-existing fear as a platform to score political points. Both he and New York’s Democratic Governor Cuomo decided to ignore public health recommendations from the Center on Disease Control and other respected medical organizations and to invoke overly-broad, mandatory quarantines. Thus, the seeds for the possible future mass internment of American citizens and residents—reminiscent of the Japanese detention camps in World War II or persons with mental disabilities today—were planted should there ever be a full-blown epidemic involving a contagious disease.  

            Instead of establishing protocols for monitoring the health symptoms of individuals, including health workers arriving in the United States, who may have been exposed to the Ebola virus, these two governors established mandatory 21-day quarantines, regardless of the individual circumstances involved. Soon other jurisdictions followed, including Maine and Louisiana. The perpetuation of these narrow selfish interests left American doctors and health care workers, who wanted to help squash Ebola and other potentially lethal virus in parts of Africa and other areas of the world, which have poor medical infrastructures, in a quandary. These volunteers had to decide whether their commitment to do the right thing was worth the risk of lengthy quarantines and public antagonism.

            Making matters worse, the chill from such governmental legal actions will continue to deter dedicated health care workers in the future, unless our laws and policies are changed in light of this experience. According to the Voice of America, “infectious disease experts say the risk of getting Ebola, even from someone who has just started a fever, is very low.” Spread of the disease requires “`[i]ntimate contact with infectious bodily fluids....” Nevertheless, public opinion polls in New Jersey supported Governor Christie's intrusive actions about two to one, while less than 40 percent supported the federal government, which had followed the CDC’s public health guidelines. Overall, reported Aaron Blake in the Washington Post, “80 percent of Americans supported the concept of some kind of quarantine.”  

            Quarantine is a type of “emergency” involuntary civil commitment, which usually begins with some form of house arrest without due process, but can begin with prison-like incarceration right away, or turn into it for those who violate any of the restrictive conditions of their quarantines. It is very similar to what happens to people with mental disabilities when they are perceived as creating a threat to the community. The difference is that unlike extended civil commitment, which must be authorized by a judge after what at least resembles a due process hearing, extended quarantines may be imposed unilaterally by a governor or other designated state officials, in the guise of an emergency. In the past, an emergency required that there be a “real and present danger” to the public. Today, all that is required appears to be an irrational or unsubstantiated fear that something bad might happen if these extraordinary measures are not followed.

            Victims of quarantines may sue after they have been committed to government incarceration, but they must overcome difficult obstacles in the legal system that have little to do with justice. These include: a legal definition of “emergency” that continues to encompass more and more situations in which there is no clear and present danger; governments that have far more resources at their disposals than almost any of these detained individuals can muster; an ever increasing percentage of judges who are subjectively swayed by the perceptions of community safety and other political or financial considerations; paid experts who will testify on behalf of the prosecuting governments in ways that support their employer's or constituency’s positions whatever they may be; and most of all “concerned” citizens, who are convinced that quarantines and other restrictive measures are justified, even if a large percentage of false positives result in many people being quarantined, who were never a risk or whose risk could be managed successfully in less-intrusive ways.

            One person who had enough sense and courage to fight the recent American Ebola quarantine policies was Kaci Hickox, a nurse who went to West Africa as a volunteer to help people with the Ebola virus. When she returned, Hickox was—as she described to the Guardian--“`quarantined against [her] will by overzealous politicians [who used] fear… to disregard medical science and the Constitution in hopes of advancing their careers.’” Hickox’s ordeal began the moment she landed in Newark, New Jersey.

            Governor Christie had issued an order that anyone flying into Newark, who had been in contact with the Ebola virus, should be quarantined. Hickox was held indefinitely even though she had no symptoms of the disease and had tested negative for Ebola. Instead of relying on established public health protocols, Christie drummed up support for his actions by being deceitful. He falsely claimed that Hickox was “`obviously ill,” even though there was no evidence, either then or anytime thereafter, that she had symptoms of the virus. As a result, Hickox became widely known and often disparaged as “the Ebola Nurse.” After being held for three days in what the New York Daily News described as “Christie’s Ebola detention center at Newark Liberty Airport,” Hickox was subject to another political quarantine when she returned to her home in Maine.

            Hickox’s governor, Paul LePage, demanded that she be placed under house arrest. In addition, Hickox's life partner, who was a senior nursing student at a nearby branch of the state university, was barred from his campus. Irrational fears about Ebola spread to other jurisdictions as well. For example, in Louisville, Kentucky,  a religious studies teacher, who had visited Kenya as part of a missionary trip, was told not to come back to school for three weeks, even though Kenya has had no recorded cases of Ebola and the teacher had no symptoms. Hickox, however, cautiously resisted her quarantine, taking widely publicized bike rides with her boyfriend, but without coming into direct contact with other people. When state officials objected, she ignored them and the state took her to court to enforce its unilateral order.

            According to the New York Times, the chief judge for that state’s district courts decided to follow public health guidelines. He required Hickox to be monitored daily for symptoms of Ebola, to inform public health officials should any symptoms appear, and to coordinate any travel plans with those officials. His decision, however, precluded the state from imposing additional restrictions on Hickox. He understood “`that we owe [Hickox] and all professionals who give of themselves in this way a debt of gratitude.”

            The standard in Maine for quarantine is comparable to most other jurisdictions: whether the imposed restrictions are necessary “`to avoid a clear and immediate public health threat,’” which the state failed to establish in this case. Mere exposure or presumed exposure to the Ebola virus should not be enough to justify involuntary detention without the presence of actual symptoms, given the fact that until symptoms appear there is no significant health risk. Thus, close monitoring of symptoms for those who have come in direct contact with Ebola patients is all that the law should allow, both with respect to asymptomatic individuals who are in the United States and American citizens traveling abroad. This approach would reflect the protocols established by the Centers of Disease Control in the United States and the European Centre for Disease Prevention and Control in Europe, rather than fear-driven public opinion. 

Laws Protecting the “Unborn” That Violate the Rights of Pregnant Women

            A somewhat different public mindset has driven the enactment and enforcement of laws that violate the civil rights of pregnant women. It is a belief, which has been transformed into an unshakable conviction, fetuses are to be valued equally or more so than the women who are pregnant with those fetuses, especially if those women engage in antisocial behaviors or come from devalued socio-economic backgrounds. To a certain extent this reflects the essence of the abortion debate, but at the periphery it also involves some of the most extreme outcomes that anti-abortion laws can generate. As compared to quarantines, which are fueled mostly by fear-based beliefs, pregnant women may become victims of those who claim to be morally superior and thus dislike and even hate them based on the perception that these women may be morally inadequate.

            Abortion is a very difficult subject for many reasons, but in terms of morality, it is reasonable to conclude that there are two legitimate values that are set against each other. Thus, there must be a balancing of legitimate interests for there to be a just result. Ultimately, what the pro-choice side contends, and the Constitution as interpreted by the Supreme Court requires, is that fetuses may not be valued more than the women who are pregnant with those fetuses. In addition when their rights conflict, pregnant women are supposed to be valued more highly that fetuses. Yet, because of anti-abortion laws that are overly broad and ill-conceived—even for the controversial purpose of protecting the rights of a fetus to be born—women, who are pregnant and intend to give birth, have been placed in legal jeopardy of having their fundamental rights trampled on. Unfortunately, that jeopardy already has been realized by many women. 

            Regardless of what one believes about abortion, laws that indiscriminately try to advance the rights of not only fetuses, but embryos and fertilized eggs, in the guise of bestowing them with personhood—which would provide them with the same rights as citizens and residents of the United States—have created hundreds of injustices. Unfortunately, these numbers are likely to mushroom into the thousands, if more of these laws are enacted and enforcement is increased. In a New York Times op-ed piece, Lynn Paltrow, a lawyer and executive director of the National Advocates for Pregnant Women (NAPW) and Jeanne Flavin, a sociology professor on the NAPW board, recently explained, based on their own detailed nationwide study, what has been happening with these laws for over four decades.

            The problem is that these vague legal proscriptions have been used by overzealous prosecutors and judges to arrest, prosecute, penalize, and operate on pregnant women, if either perceived harm should come to their fetuses, even if it was accidental, or such perceived harm might—or might not—occur in the future. In the 32 years between 1973, when the Supreme Court decided Roe v. Wade and 2005, Paltrow and Flavin identified 413 such cases. In less than nine years since, they found 380 new cases, which represent a “`seismic shift,'” reflecting the number of additional anti-abortion laws that were enacted in recent years. Furthermore, for every case in which there is an official record, there undoubtedly are more instances in which coercion is delivered using the threat of official action.

            Essentially, there have been at least four different types of situations that have led to these kinds of intrusive and punitive actions against pregnant women. They have occurred in both our criminal and civil justice systems. Criminal arrests and prosecutions have involved a variety of charges against women who are presumed to have deliberately or negligently harmed their fetuses, not by getting an abortion, but by causing harm or perceived harm to themselves now or in the future. The most common prosecutions have been against women who have ingested drugs or alcohol while they are pregnant, particularly those who are viewed as being addicted. In jurisdictions where a fetus is given the rights of a child, these women may be jailed for child abuse until they give birth—or much longer than that. In addition, these mothers are likely to lose their parental rights or at least have them substantially diminished.

            Similarly, women who are pregnant and have a mental disorder are being arrested and jailed if their condition threatens their fetus, particularly if they have attempted suicide or it is thought they will commit suicide. Dangerousness to self like dangerousness to others is extremely difficult to predict reliably, even if it already has occurred once, and those predictions are subject to being influenced by impressionistic opinions with little empirical bases. If an actual suicide attempt takes place and the fetus is injured, then child abuse charges might be lodged. In South Carolina, for instance, a suicide attempt that resulted in a “lost pregnancy” led to a conviction of the women involved for “homicide by child abuse.”

            A third type of criminal arrest and potential prosecution and conviction may occur if a woman is injured or delays in getting medical treatment and authorities believe she did it to deliberately injure or kill her fetus. Paltrow and Flavin cited two examples of this. An Iowa woman was arrested for “`attempted fetal homicide'” after she fell down the stairs and later hospital staff reported her to the police. Also, a Louisiana woman was convicted of second-degree murder, after she went to the hospital “for unexplained vaginal bleeding,” which was presumed to be due to a self-inflicted abortion. Over a year later, she was released from jail when “medical records revealed she had suffered a miscarriage at 11 to 15 weeks of pregnancy.” Thus, there could not have been an illegal abortion as was alleged.

            Sometimes civil prosecutors and judges are the main culprits when they use laws to protect the fetus by forcing the pregnant women to undergo cesarean surgery to give birth. As outrageous as this might seem, it does happen, even if there is no specific law on the books permitting it. In Florida, a woman, opting for a home birth, was forcibly taken in an ambulance to a hospital and compelled to have cesarean surgery without a prior court order. Afterwards, a judge justified those draconian governmental actions because the rights of the plaintiff “'clearly did not outweigh the interests... in preserving the life of the unborn child.'” Similarly, a judge in Washington D.C. ordered a cesarean procedure for “a critically ill...woman... which he understood might kill her.” The judge was persuaded that in those circumstances “he had an obligation to give [the] fetus a chance for life.” Both the mother and baby died.

Conclusion

            Every day the rights of vulnerable people may be jeopardized, marginalized, or abused by true believers, who cannot or do not want to be persuaded by science, empirical evidence, and other types of knowledge. Somehow these prejudicial beliefs are allowed to prevail, whether they involve unreliable predictions or impressions about dangerousness, religious teachings, or the desire to advance other unsubstantiated convictions. This is primarily because our legal system is poorly designed to incorporate knowledge into our statutes, regulations and courtrooms.

            Legal fictions often are used to justify and explain these legal deficiencies under the convenient umbrellas of due process, the rules that govern the admissibility of evidence, judicial discretion, legislative prerogatives, and other traditional legal notions that in many contexts have served the legal system well. Unconscionable injustices have become commonplace, however, because the American legal system is way behind the times in terms of incorporating knowledge and too often resistant—and even incapable—of moving fast enough to ensure justice and fairness for those who are—or may be—victimized by popular ignorance.
 
 
AN OUNCE OF JUDICIOUS PREVENTION IS WORTH A POUND OF EXPENSIVE INCARCERATION AND INTRUSIVE COMMUNITY SUPERVISION

John Weston Parry, J.D.

                Three relatively recent New York Times articles help document a disturbing reality:  how our criminal justice and quasi-civil detention systems deal with offenders and ex-offenders who have sexual and other mental disorders does not correspond to good social science, justice, or humane treatment. The desire for retribution and perceived security at almost any cost, when combined with blatant discrimination and unfairness, distorts rational analysis and deprives us of cost-effective policies at a time when our total human resources are scarce and growing scarcer. Indeterminate incarceration followed by a lifetime of costly, highly intrusive supervision and monitoring—in lieu of meaningful care, treatment and rehabilitation—for only these “special” offenders and ex-offenders is a counterproductive approach, which also has become economically irresponsible.  

            Hundreds of thousands of individuals, who deserve to be released from government custody or to have a reasonable opportunity to earn their release, are either incarcerated or dumped into costly but barely livable residential situations, while highly dangerous offenders slip into or remain in our communities without ever having received the care and treatment they require in order to curb or eliminate their criminal proclivities. Mostly, we only can guess which individual offenders with sexual or other mental disorders might have responded well to meaningful care and treatment because so few actually receive those needed services. Not surprisingly, our guesses have tended to be inadequate both in terms of reliability and accuracy.

             Also, those guesses have been overwhelmingly biased towards not providing needed care and treatment, since, for the most part, that is what our criminal justice and quasi-civil detention systems are inclined and equipped to do. Some jurisdictions are better or worse than others, but few if any have the resources in place to be deemed rational, humane, or cost effective, much less all three, which should be a minimum requirement for any law that has been enacted. [See, John Weston Parry, Mental Disability, Violence, Future Dangerousness: Myths About the Presumption of Guilt (Rowman & Littlefield, October 2013) for a comprehensive discussion and analysis of these laws and why and how they should be reformed.]

 Our Criminal Justice and Quasi-Civil Detention Systems Are Often Based on Crowd-Pleasing, Unscientific Fictions

            A N.Y. Times op-ed piece by Erik Parens of the Hastings Center of Bioethics and Public Policy about the somewhat obscure philosophical notion of “binocularity”—viewing ourselves as individuals who are able to exercise free will, yet understanding that we are still manipulated and influenced by internal and external forces—makes the intriguing and controversial observation that “advances in neuroscience [may] move reasonable people to abandon the idea that criminals deserve to be punished.” In other words, if our neurological compositions largely determine what we are likely to do and how we are likely to behave, then the concept of free will is turned upside down and could be rendered irrelevant or substantially incomplete by future scientific developments.

             This perspective is very different from the popular contention that advances in neuroscience can or should be used to identify who among us are likely to behave in criminal or antisocial ways. The fundamental distinction is that while we already should be able to understand, based on persuasive evidence, that certain aspects of genetics and neuroscience have undermined traditional notions of free will, whether we will ever have the ability to use that growing body of information in order to make accurate and reliable predictions about future behaviors is highly uncertain. Regardless, these two divergent perspectives about the potential for neuroscience to affect the law raise a much larger concern, which reflects a far more encompassing socio-legal critique.

             Our criminal and civil justice systems and the laws that they rely on are surprisingly inadequate and naïve in how they incorporate social science and other knowledge in beneficial ways. In our courtrooms and tribunals legal fictions and procedures too frequently outweigh rational thought, especially where popular notions of justice should be put to the test. This has been true in America since well before the Salem Witch Trials. There continues to be no comprehensive and authoritative approach to bring the law up to date. The process is mostly ad hoc and uneven at best and practically nonexistent at other times. Getting it right should not mean balancing what we know or can prove with what popular constituencies want us to believe.

            Nowhere is this legal over-dependency on ignorance, fallacies, and fictions more pronounced than when people who have sexual and other mental disorders are the targets. There is a whole system of laws and policies, both criminal and civil, based on bad social science and prejudice that may unfairly intrude upon these people’s lives leading to indeterminate governmental interventions for many. Judges and juries in a system stacked against enlightenment and towards popular prejudices issue penalties and other intrusive dispositions against defendants and respondents, who are among the most despised and feared individuals in our society.

            The judiciary is aided in these legal fictions by many so-called experts, who pretend or convince themselves that they are able to reliably predict future behaviors—particularly dangerousness—even though the available empirical evidence overwhelmingly indicates that their predictive powers are woefully lacking as compared to the standards of proof that the law normally demands or should require. Perhaps the most blatant affront to truth and knowledge are the creation of registries and lists for people with sexual and other mental disorders that permanently deprive them of their fundamental rights with no fair opportunity to challenge the validity and accuracy of those computerized amalgamations. These listings are inherently deficient both in terms of the laws that are used to determine what information is gathered and the haphazard methods of compiling that information. In concept, it is similar to the most influential members of the community making these ex-offenders wear scarlet apparel with the words “sexual offender” or “mental offender” emblazoned on the front.   

A Mental Disorder Is Not a Crime

            Law Professor Margo Kaplan made a compelling argument in the N.Y. Times that what we call pedophilia, having an attraction to prepubescent children, is a status and not a crime. “[P]edophilia is [not] the same as child molestation….” Many individuals with pedophilia never act on their sexual preference or do so in virtual ways that do not involve child abuse.

             As the U.S. Supreme Court has ruled or noted on numerous occasions, a person’s mental or physical status should not be used to convict them of a crime or impose penalties or intrusive restrictions on their lives. Thus, people with pedophilia should have the right to live freely in our society without intrusive governmental interference, unless they commit a sexual offense. Moreover, by not providing these individuals with meaningful care and treatment and alternatives to offending, we fail to take advantage of “opportunities to prevent child abuse.”

            Scientific studies indicate that pedophilia may well be one of those conditions, which has “neurological origins…a failure in the brain to identify which environmental stimuli should provoke a sexual response.” At a minimum, it is clear that pedophilia creates compulsions or cognitive imbalances that tend to override free will. Whether those dysfunctions are due in large part to an individual’s neural make up, however, is debatable.

            Kaplan’s arguments could—and arguably should—be applied more widely to encompass all sexual or mental disorders that involve strong compulsions or that otherwise decimate or undermine free will. As with pedophilia, our laws intended for individuals with these disorders are “inconsistent and irrational.” They also are highly discriminatory and unfair in legally targeting, prosecuting, and sentencing people with these disorders differently than other Americans, typically to their detriment.

            As Kaplan points out, even the Americans with Disabilities Act (ADA) and other federal laws intended to protect people with disabilities have a specific exclusion for citizens and residents with pedophilia. That same broad exception to coverage applies to many other sexual or mental disorders, which she does not mention. The ADA (42 U.S.C. sec.12211(B)(1) excludes: “transvestism, transsexualism, pedophilia, exhibitionism, voyeurism… compulsive gambling, kleptomania, or pyromania, or … current illegal use of drugs.” Moreover, commonly mental disorders have been the ADA’s unwanted stepchildren, which, as a practical matter, have much lower levels of compliance and enforcement associated with them than physical or sensory impairments.

            Kaplan also discusses the fact that many individuals with pedophilia are able to control their compulsions—or to control them longer—if they receive care and treatment and other assistance, which helps ensure that they do not succumb to their sexual urges by abusing children. People correctly diagnosed with pedophilia are likely to always have these feelings, but “a combination of cognitive-behavioral therapy and medication can help [them]…manage urges and avoid committing crimes.” Unfortunately, we know very little about what prevents people with pedophilia from offending “because research has usually been limited to those who have committed crimes.” A similar research gap exists for people with other sexual or mental disorders that are thought to make them potentially dangerous. Thus, we really do not know much about the factors that explain why many people with sexual compulsions or other cognitive imbalances do not commit crimes.

            Beyond our general ignorance about treatment, we are further stymied in dealing with sexual offenders, including people with pedophilia, because one of the most obvious alternatives to sexually abusing children, adolescents, and adults has become increasingly illegal. What our society outlaws as obscenity, especially child pornography, include the very images that can provide alternative outlets for individuals with these sexual compulsions or desires. As a society we have had two overriding subjective reactions to pornography, which have prevented it from being used as a treatment tool or a pleasurable diversion.

            The first is a deeply seeded disgust or disapproval towards what we view as being “obscene,” especially if it involves anything that is considered to be outside societal or religious norms. Determining what is obscene has been a highly subjective, arbitrary, and prejudicial process. As Justice Stewart famously opined in Jacobellis v. Ohio, “I know it when I see it,” which often means “I will choose to condemn it if I don’t like it or those who practice it.” Thus, until 1967 when the U.S. Supreme Court decided Loving v. Virginia, interracial marriage was a criminal offense in over a dozen states.

            Hugh Heffner helped make certain types of sexual images and acts socially acceptable or more acceptable. (After all, even Gloria Steinem was a Playboy bunny, although she subsequently explained that her involvement was a sociological exercise.) Yet, many sexual images or acts have remained on the fringe or have been outlawed. They have included homosexual relations of any kind, sex between people of different races, sex between unmarried partners, and of course the broad umbrella of sodomy, which among other things has included oral and anal sex. Sodomy vaguely encompasses acts “against nature,” even though those who have passed such laws had no idea what science actually had discovered in nature. Through the early 1970’s, both the American Psychiatric Association and the American Psychological Association viewed homosexual conduct as a mental disorder, although apparently there was never a successful insanity or diminished capacity defense pleaded by “sodomy” defendants based on their being gay or bisexual.

            Today, we have various social prohibitions against people who change their gender or have an ambiguous relationship with their gender. Wellesley, which apparently tries to be a diverse college for women, cannot seem to figure what it should do about its current students who decide to become men, as if that requires a great deal of thought. How about helping them with their transitions? The Catholic Church still prohibits priests and nuns from having any type of sexual relations. And twelve states still have sodomy laws on their books ten years after the Supreme Court declared those statutes unconstitutional in Lawrence v. Texas.

            The second overriding reaction towards pornography is a belief or impression—which once again is not supported by empirical data—that providing alternative sexual outlets to people with nontraditional sexual preferences will somehow increase the likelihood of sexual crimes occurring. This is the same strained and often irrational argument that is used to try to limit birth control for minors. Yet, the most substantiated dangers have occurred by making the production of pornography illegal. Too often in the course of the black market operations, which produce these banned sexual materials, those who are filmed or videoed are exploited or abused, particularly children and young women.

            If these sexual images were produced and widely distributed in ways that were regulated and avoided such exploitation and abuse, they could provide potential sexual offenders with acceptable alternatives that would help manage any potentially criminal urges they might have. Instead, we put people in prison—often for many years—and place them on sexual offender registries—likely ruining their lives forever—not for sexually assaulting and abusing children, adolescents or adults, but rather for watching or sending images or representations that violate societal sexual norms.                     

Placing Highly Intrusive Restrictions on Offenders with Sexual and Other Mental Disorders

            Reporter Joseph Goldstein wrote an article in the N.Y. Times, which decried the fact that sexual offenders in New York City often are kept in “prison beyond their release dates… because … of a state law that governs where they can live.” Specifically, these ex-offenders are prohibited from “living within 1,000 feet of a school… [including even] in “homeless shelters.” What makes this law far more intrusive and counterproductive is that the “onus of finding a suitable residence … is on the sex offender…,” not the New York Department of Corrections and Community Supervision. However, that Department will not release these ex-offenders “until a suitable residence is available to them.” This means that if state officials are inclined to keep these ex-offenders incarcerated, which often they are, they may do so by helping to ensure that reasonable housing alternatives are unavailable or simply doing nothing constructive to help. 

            This singular injustice has much broader and more pernicious implications. To begin with, throughout the United States there are many similar types of restrictions and intrusions on the lives of ex-offenders with sexual and other mental disorders: where they may live, where they are allowed to walk and work, how they may use the Internet, who they may associate with, and prohibitions that prevent families and loved ones from receiving social services if they choose to reside with these ex-offenders. Such sanctions have little to do with the prison sentences that these ex-offenders have received and almost everything to do with the difficult or impossible to refute presumption that they remain dangerous after their prison sentences expire or would have expired. In addition, the same or a similar battery of restrictions is placed on anyone who has committed a sexual felony and/or ends up on a sexual offender registry.

            At the same time, many other similar living restrictions are imposed by judicial or pseudo-judicial fiat against offenders and ex-offenders with sexual or non-sexual mental disorders. The only requirement is that these restrictions be somehow justified by broadly interpreted legal standards or another vague umbrella known as “public safety.” There are plenty of experts or pseudo experts affiliated with the corrections departments and the courts, who will assert that reasonable legal standards have been complied with if any question arises about the propriety or fairness of those restrictions. The primary objectives tend to be maintaining plausible deniability and avoiding bad publicity.

            Perhaps the worst injustices involve individuals, who either never sexually abused any other human being, but violated felony laws against pornography, homosexual conduct, or exposing themselves in public areas, or found themselves on the sexual offender registries by an inadvertent or deliberate mistake that—even more so than identity theft—can be very difficult if not almost impossible to correct. Despite the fact that their offenses are non-violent and do not even involve nonconsensual touching, generally these offenders—or victims of mistaken identity—are subject to the same restrictions as serial rapists.  

Conclusion

            The complicated matrix of federal and state laws and policies that apply to defendants, respondents, inmates and ex-offenders, who have been diagnosed (or misdiagnosed) with sexual and other mental disorders in our criminal justice and quasi-civil detention systems, should be revamped. The existing laws and policies have been and continue to be counterproductive on many different levels. Furthermore, even those relatively poor results are unsustainable given the extent of the economic downturn and how it continues to negatively affect our governmental systems. We need to substantially reduce or even eliminate the burgeoning array of highly expensive, discriminatory, and often poorly managed detention facilities and programs that are intended to indefinitely incarcerate these offenders and then monitor and intrusively restrict them in the community should they be released. Increasingly, these individuals are being placed in government custody for the rest of their lives.

            Regardless of the approach that is used, there always will be a substantial percentage of recidivists. That is inevitable. We need to acknowledge, however, that ex-offenders already have served their sentences. Furthermore, recidivism rates can be highly deceptive and misleading because they are so difficult to measure and the measurements often are biased towards complying with predetermined outcomes. These difficulties are magnified substantially when recidivism predictions are applied to individual offenders rather than groups.

            The more important and reliable measure for our society should be the total number of violent offenses that are committed. Meaningful and targeted care, treatment, and other related services would be far less costly—and far more effective, just, and humane—in reducing the number of those offenses, than continuing to do what we have done in the past. The potential benefits would be much greater still if needed social services were provided voluntarily in the community well before a first offense might occur. An ounce of judicious prevention is worth a pound of expensive incarceration and intrusive community supervision.

 

ESSAY 13

09/22/2014

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USING UNRELIABLE RISK FACTORS TO DETERMINE CRIMINAL SENTENCES
IS BAD LAW AND BAD POLICY


By John Weston Parry, J.D.

            In a relatively recent New York Times article Michigan law professor, Sonja B. Starr, wrote an excellent op-ed piece on what she termed “sentencing, by the numbers.” She joined Attorney General Eric Holder in criticizing the “growing trend of evidence based sentencing” in which judges determine length of detention based on “data-driven predictions of defendants’ future crime risk….” This subjective and impressionistic judicial practice is being incorporated more widely into American criminal law in the guise of objectivity and greater reliability. Supporters of this sentencing trend reflexively claim “it’s a no brainer. Who could oppose `smarter’ sentencing?” Twenty states already use this approach and “some…require risk scores to be considered in every sentencing decision.” As many additional states contemplate adopting this practice in more formal ways, Congress and the U.S. Sentencing Commission will decide whether it should be introduced into the federal courts, and if so how.     

            Unfortunately, much of this sentencing “data” is nothing more than profiling based on socio-economic factors that unfairly target those who society devalues, including “poor people and minorities.” Professor Starr points out that this approach “sends the toxic message that … certain groups of people are dangerous based on their identity.” It “confirms the widespread impression that the criminal justice system is rigged against the poor,” a group which includes a disproportionately high percentage of persons with mental disabilities. Starr also identifies serious constitutional issues in using this impressionistic information in sentencing determinations. “The Supreme Court has consistently held that... impermissible discrimination cannot be justified by statistical generalizations about groups….”

            With very few exceptions, it is a fallacy in logic to use even empirically-vetted generalizations about groups in order to draw specific conclusions about individuals. It is much worse when the generalizations prove false or misleading. Until recently in the legal system the lone exceptions to this constitutional and logical limitation have been generalizations that apply to groups of people with mental impairments when such judicial profiling is cloaked as risk assessments and other expert and judicial impressions about future dangerousness. These dangerousness generalizations have been employed in every state and every federal jurisdiction against the interests of defendants and respondents with mental impairments in a wide variety of criminal, quasi-criminal, and civil proceedings. Rather than curtailing such intellectually bankrupt practices, it appears that legislatures and courts are poised to dramatically expand their reach in the name of progress.

            Evidence-based sentencing threatens to employ a variety of physical, mental, attitudinal, and socio-economic factors, in addition to criminal history and mental disability, in order to predict whether or not convicted defendants will create future risks to society. This brings us much closer to the science fiction nightmare in which risk predictions are employed to sentence people for crimes before they happen. Much of what are misleadingly characterized as “evidence-based” conclusions—as a practical matter—are predominantly biased opinions or presumptions with little or no scientific or empirical basis. In essence, we will punish, monitor, and intrude upon the lives of defendants based not on what they have done, but what they might do or be more likely to do.

            Over many years, empirical and other objective measures have demonstrated that using psychiatrists, clinical psychologists, other experts, judges, and/or juries to predict the dangerousness of people who have mental impairments based on various risk and related factors is highly misleading, unreliable, and inaccurate. Nonetheless, this type of flawed, unfair, and discriminatory evidence and testimony has been deemed admissible in criminal and civil courts because the judiciary has created “legal fictions” that allow them to be used, despite their obvious inadequacies and inequities. These risk assessments and other unreliable impressions about future human behaviors are politically popular because it is conveniently presumed, without empirical justification, that they enhance public safety and their targets tend to be individuals that our society devalues.   

            What until recently was limited to discriminatory legislative, regulatory, and judicial practices intended only for people with mental disabilities may soon include everyone in America who shares specified characteristics that federal, state, or local governments believe—without substantial proof—is likely to increase the risk of future crimes, violence, or other antisocial behaviors. Not surprisingly, given how our society tends to function, those who possess mainstream characteristics or values will be favored, while those who have characteristics or values that are presumed to be undesirable or less desirable will be in jeopardy. In the process, the United States judicial system will have successfully transformed racial and ethnic profiling, which is generally illegal, into permitted socio-economic, mental, and attitudinal profiling that promises to keep most of America’s “troublemakers” incarcerated longer and with highly intrusive monitoring and supervision should they be released. It also will promise to grant earlier freedom to those who are more highly valued in order to depopulate our overcrowded prisons and jails.

            Our judicial system will be used to try to ensure that those offenders, who share these unwanted characteristics—such as having family members with criminal histories, being a high school drop-out, being unemployed, not being legitimately married, being raised in a “bad” neighborhood, following a potentially terroristic religion or belief system, being or having been a member of a group which is designated as a “gang,” or viewing what are considered to be unacceptably pornographic, violent, or antisocial programs or materials—will be treated like offenders with mental disabilities. The criminalization of person with mental impairments will be expanded to become the criminalization of anyone who is socially devalued or deemed to be deviant.

            While the “slippery slope” argument often is misused and misapplied, it seems especially appropriate here as we embark on this sentencing evolution. Do we really want unreliable and inaccurate predictions of risky or dangerous future behaviors—based on physical, mental, social, economic, and attitudinal characteristics—to largely govern what happens to offenders in our criminal justice system? Evidence-based sentencing is little more than a promotional slogan. The emperor has no clothes. Any evidence based on this type of prediction should be deemed inadmissible in the courtroom (or as the basis of any policy decision) until its specific relevance, validity, and reliability can be established with clear and convincing empirical and other social science-based findings. Also, any type of profiling of this kind should be closely scrutinized to ensure that it does not discriminate based on constitutionally protected personal characteristics. What we confidently accept as common sense too often proves to be nonsense or improper discrimination when it affects people we devalue, fear, or distrust.

            The many flaws in using this type of evidence-based sentencing have been repeatedly demonstrated with respect to people with mental disabilities. Its use in this way has resulted in a criminal justice system in which offenders with mental disabilities serve longer sentences than other prisoners, despite their reduced culpability, and are deprived of the very treatment, rehabilitation, and other services they need to improve and avoid becoming worse. How this travesty of justice was created and operates in this country is detailed in Mental Disability, Violence, Future Dangerousness: Myths Behind the Presumption of Guilt (John Weston Parry, Rowman & Littlefield, October 2013).

            One can only hope that law- and policymakers will scrutinize how deficient risk assessments and other subjective impressions about dangerousness have been, when used against people with mental impairments, before we decide to apply similar methods to almost everyone who enters the criminal justice system. Using predictions of future dangerousness to incarcerate and deprive individuals with mental disabilities of their fundamental rights is a model that deserves condemnation, not replication and expansion.  


 

    Author

    John Weston Parry is the former director of the American Bar Association’s Commission on Mental and Physical Disability Law (1982–2012) and editor/editor-in-chief of the Mental and Physical Disability Law Reporter (1979–2011). His current book is Mental Disability, Violence, and Future Dangerousness: Myths Behind the Presumption of Guilt (Rowman & Littlefield, October 2013), which is featured on this site.  See About the Book.

    Since 1977 he has published numerous books and articles on mental disability law and the rights of persons with mental disabilities. In 1987, he was co-recipient of the Manfred Guttmacher Award from the American Psychiatric Association and the American Academy of Psychiatry and Law for his contributions in co-writing and co-editing The Mentally Disabled and the Law published by the American Bar Foundation.

    Earlier in his career, he was the first director of the Maryland protection and advocacy program for persons with intellectual and developmental disabilities. Before that he worked in a legal services program representing persons with mental disabilities as a Volunteer in Service to America (VISTA) and also was a law intern with the Mental Health Law Project. 

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