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.
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.
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.
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.
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.
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.
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.
THE FEDERAL GOVERNMENT’S OBSESSION WITH JOHN HINCKLEY
Overwhelmingly public opinion will be on the side of federal prosecutors should they decide to try John Hinckley in the recent death of James Brady, who Hinckley shot 33-years ago while Brady served as President Reagan’s White House press secretary. Nevertheless, a successful prosecution would weaken our judicial system and perpetuate another assault on the rights of people with mental disabilities. These assaults are a basic theme of Mental Disability, Violence, Future Dangerousness: Myths Behind the Presumption of Guilt (Rowman & Littlefield, October 2013). [Brief excerpts without references that apply to the Hinckley affair appear below in bold italics, along with other related observations.]
Our Constitution was established to protect even the most despised individuals from wrongful prosecutions and other abusive governmental actions. Hinckley should be entitled to the full protections of our legal system, whether or not the public approves. To try Hinckley now, after he was found in 1982 to be not guilty by reason of insanity of the shooting that is alleged to have caused Brady’s death, would be a blatant injustice.
What makes matters much worse is that Hinckley already has been incarcerated for more than thirty years. Also, both his treatment team and the court overseeing his detention have determined that he has been rehabilitated and is no longer dangerous. These new trumped up charges would further demonstrate the federal government’s obsession to punish Hinckley. As noted in the previous essay, our government already has taken extraordinary measures to prevent his release from St. Elizabeth’s Hospital, where for many years he has been unjustly detained. Now that there is a possibility that Hinckley will become a free man, federal prosecutors are floating the idea of using James Brady’s death to permanently thwart Hinckley’s freedom.
Such a prosecution, if successful, would not only violate Hinckley’s right to fair judicial proceedings, but also substantially diminish the rights of every American. First, in order to pursue this ill-advised agenda, the federal government would have to convince a judge that double jeopardy is insufficient to prevent a defendant from being tried twice for the same criminal action. Based on revisionist history, prosecutors would likely argue that double jeopardy does not apply as long as the criminal charge is different. Thus, the not guilty by reason of insanity verdict that Hinckley received in the shooting of James Brady would be irrelevant because Brady’s death 33 years later created a new crime.
Second, to be successful federal prosecutors would have to convince a trial court to further embellish the legal notion of proximate causation at the expense of actual causation. A jury would have to conclude that Hinckley was guilty beyond a reasonable doubt based largely on expert testimony that an otherwise natural death, involving a myriad of possible intervening factors, could be reliably attributed to a shooting that occurred 33 years ago. A similar kind of attenuated logic allows mental health experts to testify about the dangerousness of defendants based on predictions about a future, which is unknowable.
How our legal system applies the concept of proximate causation, particularly against people with mental disabilities, often has produced arbitrary and scientifically sloppy and unsophisticated results. The main problem, as the psychologist and linguist Steven Pinker has noted more generally, is that courts “somehow distinguish just one of the necessary conditions… as its cause and the others are mere enablers or helpers, even though all are equally necessary”…. By using a flawed method of framing reality to match …our beliefs…, the law can appear to be rationally and reasonably assigning total responsibility to individuals for illegal or socially inappropriate actions, whether or not the persons involved are only partially blame or responsible, and/or external intervening forces significantly influenced [the outcome]….
In addition, federal prosecutors would have to pretend that Hinckley was not insane in 1982, even though a jury found him to be so and the federal government has maintained ever since that he had a severe mental disorder, which has never improved sufficiently to justify his release. Unfortunately, such a pretense would not be the first time that a preposterous leap of logic about the insanity defense was used to convict a defendant with a severe mental impairment. The Georgia Supreme Court, for example, affirmed logically inconsistent verdicts in which a jury found a defendant not guilty by reason of insanity on a charge of murder with malice, yet the same jury was allowed to find him guilty but mentally ill of felony murder for the same criminal actions…With regard to felony murder, the defendant had told the state’s psychologist that as a convicted felon, he realized that in purchasing the firearm that he had used in the killing, he realized that he was violating the law…[T]he court found that while he was insane in forming the intent to commit murder, he was deemed to have “known” that as a felon he was prohibited from purchasing a firearm….
Hinckley should have been and still could be a positive illustration of the benefits of treatment and rehabilitation. Instead, if the federal government has its way, he likely will continue to be a symbol for the criminalization of persons with mental disabilities. Ironically—and unfortunately for the rule of law in our country—this predominantly inhumane predisposition towards people with mental disabilities is a situation Hinckley inadvertently helped create when he attempted to assassinate a president of the United States, who was committed to a law and order platform.
1. Nick Corasaniti, “Coroner Is Said to Rule James Brady’s Death a Homocide, 33 Years After a Shooting,” The New York Times (Aug. 8, 2014).
How President Reagan and John Hinckley Helped to Scuttle Humane Treatment for Defendants and Offenders with Mental Disabilities
The remarkable aspect of John Hinckley’s thirty-two years of being confined in a mental hospital—and closely supervised and monitored whenever he has been allowed to leave on day passes or home visits—is the comparison to other inmates, who have been dumped into the criminal justice system with little or no meaningful treatment or hope of improvement. For all the legal injustices Hinckley has incurred at the hands of the federal government, he has been far better served than most offenders with mental disabilities. What began with Ronald Reagan’s presidency and was accelerated by Hinckley’s “insane” delusions exemplifies the fundamental inhumanity of our criminal justice system for persons with serious mental impairments. The tragic consequences of these changes in laws and policies are one important focus of Mental Disability, Violence, Future Dangerousness: Myths Behind the Presumption of Guilt (Rowman & Littlefield, October 2013).
The Reagan Revolution Begins
Ronald Reagan was elected President, in part, on a law and order platform. His administration promised to get tough on crime, while at the same time reducing government spending for social programs. There was little wiggle room for compassion, or promoting notions of diminished culpability or rehabilitation for anyone who engaged in criminal or criminal-like behaviors, especially if they had a mental impairment. The longest possible sentences and dispositions that states and federal government could impose were embraced as being needed to ensure the safety of our communities. At the same time, deinstitutionalization of residents of inhumane civil mental institutions and facilities was now legally required. Moreover deinstitutionalization was saving states and the federal government considerable sums of money when they largely decided not to shift mental health resources from institutions into our communities. Civil mental institutions were being depopulated, while prisons, jails, and secure detention facilities were about to overflow.
Until President Regan took office, sympathy for people with mental disabilities had been growing, including an acceptance of the obvious reality that serious mental impairments were likely to diminish a defendant’s culpability. Two of the more critical obstacles were trying to find good ways to make reasonable legal assessments of the impact of those cognitive impairments on the culpability of particular individuals charged with crimes and determining when those individuals were suitable to be released into the community. These were difficult challenges that in the 1970’s American society seemed willing to confront in humane ways.
John Hinckley’s assassination attempt in 1981, which almost killed President Ronald Reagan and decimated parts of James Brady’s brain, effectively reversed the momentum for humane mental health care and rehabilitation in the United States, particularly the notion that mental impairments diminish culpability. A double standard was created, which encouraged federal and state laws and policies that would ensure far fewer people with serious mental disabilities were allowed to pursue diminished culpability defenses or dispositions, while many more of them would be incarcerated longer and with far more restrictions if they were released. The ends may have appeared to justify the means to many, but fundamental legal and social principles were marginalized or cast aside in an unrelenting pursuit of retribution and community safety.
John Hinckley was a deeply troubled individual who was estranged from his family, had no real friends, was seriously depressed, and had an extraordinary obsession for the young female co-star of the movie Taxi Driver, Jodie Foster. Hinckley’s obsession was so deep that he traveled from Texas in September 1980 to stalk Foster when she was an undergraduate at Yale, professing his love for her in several different ways. This obsession continued for more than six months. The assassination attempt in Hinckley’s confused and distorted mind was the ultimate declaration of love, which he explained in a well-written letter to Foster about an hour before launching his attack. Among other things, he wrote:
Jodie, I would abandon this idea of getting Reagan in a second if I could only win your heart and live out the rest of my life with you….
I will admit…that the reason I’m going ahead with this attempt now is because I just cannot wait any longer to impress you. I’ve got to do something… to make you understand, in no uncertain terms, that I am doing all of this for your sake! By sacrificing my freedom and possibly my life, I hope to change your mind about me…Jodie, I’m asking you to please look into your heart and at least give me the chance, with this historical deed, to gain your respect and love.
I love you forever,
Before Hinckley’s trial, it was obvious to both sides that an insanity defense was the only reasonable defense strategy. Vincent Fuller, the private attorney who had been hired to defend Hinckley, knew he had a compelling case to make, although there was no way to know how a jury would react to the evidence under the District of Columbia’s insanity standard, which would focus on Hinckley’s cognitive abilities to appreciate right from wrong. That standard was based on the traditional M’Naghten approach, which was less inviting to the defense than the American Law Institute standard that was found in a majority of jurisdictions, including most federal circuits. What helped the defense, immeasurably, is that in D.C. the burden to establish Hinckley’s sanity, as with all the basic elements of a crime, was on the prosecution to prove beyond a reasonable doubt. This made sense because historically in Anglo-American law sanity was viewed as being an essential component of a defendant’s state of mind.
Because this trial was such a high profile case, the experts on both sides had plenty of time to comprehensively view Hinckley’s psychiatric history from several vantage points. Not surprisingly, for those of us who are convinced that psychiatric experts in criminal and quasi-criminal cases tend to be hired guns, who normally testify the way the side that is paying them expects them to, the Hinckley trial proved to be a decisive confirmation. All the defense experts provided evidence that supported the view that the defendant was insane, while all the prosecution experts tried to refute that conclusion.
A Colorado psychiatrist, who had treated Hinckley months before the assassination attempt, admitted that he had misdiagnosed his patient as a chronic underperformer, who the doctor and Hinckley’s family hoped could be motivated by intensive behavioral therapy. This family psychiatrist had not delved into the emotional turmoil Hinckley was experiencing, nor did he know about his patient’s other disturbing proclivities, which otherwise should have led the therapist to diagnose a serious mental illness. This lack of insight about disturbed individuals, who have gone on to commit acts of violence, is typical, not only for trained mental health professionals, but for the patient’s parents, and those who interact with the individual. Except with the benefit of hindsight, there usually is very little to reliably distinguish those emotionally disturbed individuals who act out violently from the much larger set of disturbed individuals who never do.
Both defense psychiatrists found that Hinckley had a serious mental illness, which had produced psychotic symptoms. For one expert the psychosis appeared to manifest itself as a strong compulsion to be with Jodie Foster that could only be acted out by killing the President. Hinckley may have had an intellectual appreciation that what he was about to do was morally wrong, but on an emotional level there was no such appreciation. The other psychiatrist saw Hinckley’s actions as being part of a delusion. A third defense expert, who was a psychologist, testified that based on Hinckley’s performance on the Minnesota Multiphasic Personality Inventory, the defendant’s answers were so extraordinarily abnormal virtually everyone with a comparable score had a serious mental illness.
The government’s first expert was Dr. Park Dietz, who would gain notoriety some twenty years later by either making an inexcusable mistake or deliberately lying in the Andrea Yates case, that a depressed mother, who had drowned her five children in a bathtub, was faking her psychotic symptoms in order to appear to be insane. In Hinckley’s trial, Dietz acknowledged that the defendant had various personality disorders, but Dietz concluded that none of them rose to the level of psychosis, much less constituted insanity. What appeared to be an abnormal, delusional obsession with Jodie Foster that had turned Hinckley into a stalker, Dietz dismissed as a type of reaction that a fan would have for a star that he felt a strong emotional attachment to. On the day of the attempted assassination, Hinckley had carried out a carefully designed plan that had worked as he had hoped, which indicated to Dietz that the defendant must have had an awareness of the consequences of what he had been doing. A second psychiatric expert for the government reiterated and supported Dietz’s testimony.
In essence, while Hinckley was on trial, federal prosecutors argued that he did not have a serious mental illness, so he could not have been insane. According to their expert witnesses, the defendant’s condition was similar to what Hinckley’s Colorado psychiatrist had incorrectly imagined: an underperforming, lazy rich kid who had personality disorders. After the not guilty by reason of insanity verdict, the federal government’s position about Hinckley’s mental state would change radically, as would the position of the lawyers representing Hinckley. Both sides would deliberately switch their opinions in order to promote or discount the seriousness of Hinckley’s ongoing mental illness in the context of his confinement. This reversal of perceptions, which has occurred in many other legal cases as well, illustrates the Achilles heel of our advocacy system when it is used to determine an individual’s mental state.
The Insanity Verdict’s Effect on Mental Health Law and Policies Going Forward
It is doubtful that the effects of Hinckley’s not guilty by reason of insanity verdicts on all thirteen counts against him would have been as consequential, if he had carried out his assassination attempt against President Jimmy Carter, as he had originally contemplated, rather than President Reagan. Carter was sympathetic to mental health treatment in a very compassionate and non-coercive way, in large part because of his First Lady, Rosalynn. He also was sympathetic to the notion of rehabilitating prisoners and criminal justice reforms.
Reagan, on the other hand, was a law and order advocate, who as Governor of California joined President Nixon in pushing for much harsher criminal penalties and opposing efforts to rehabilitate prisoners. Thus, Hinckley’s insane actions, while devastating to all Americans, also proved to be a unique and powerful opportunity to push the new President’s law and order agenda by emasculating the notion of diminished culpability and cutting expenditures for mental health and rehabilitation programs for prisoners and other inmates.
Many people have written about the effects of specific changes to the insanity standards and switching the burden of proof to the defense in these cases. A verdict that was used only 1% of the time in felony prosecutions and proved unsuccessful nearly three times out of four became almost a practical impossibility, except in those cases with highly sympathetic defendants, such as mothers with post-partum depression, or defendants with enough wealth that they could pay for the very best defense and expert witnesses, regardless of the cost.
Unfortunately, curtailment of the insanity defense was the tip of the iceberg and a relatively modest legal transformation in comparison to other changes that were set into motion. The far greater legal and social impacts were what became known collectively as the criminalization of persons with mental disabilities. The Hinckley verdict helped the Reagan Administration change the public and academic perception that people with mental impairments were ill and should be treated compassionately with the presumption that people with such impairments are inherently dangerous. Civil institutions were no longer a practical solution for a vast majority of people with serious mental disabilities and committing them involuntarily was legally prohibited in most cases. Thus, the overwhelming desire to protect the public from the dangers that people with mental disabilities were presumed to pose had to be satisfied within the criminal justice system.
Legal fictions were created, which allowed the states and the federal government to detain and control these presumptively dangerous people by curtailing diminished culpability defenses and dispositions, while using predictions of dangerousness to incarcerate and otherwise control offenders with mental disabilities for much longer periods of time than other individuals, who committed comparable crimes. In addition, in order to save money by not wasting it on the rehabilitation of inmates, adequate mental health care would rarely be provided for in our criminal justice system going forward. We decided to adopt laws and policies that allowed governments to simply lock these impaired individuals up and throw away the key indefinitely, which increasingly has meant for a very long time, or until they die. With little available treatment within or outside the criminal justice system and predictions of dangerousness being based, in large part, on an inability to get better, an ominous catch-22 was put in place that tended to be devastating to anyone who had a mental disability and was ever deemed to be dangerous.
John Hinckley’s Incarceration At St. Elizabeth’s Hospital
After a jury found John Hinckley not guilty by reason of insanity, he was transferred to St. Elizabeth’s Hospital for an indefinite period of time, which has lasted for well over thirty years. He should have been the poster-patient for the benefits of mental health treatment and rehabilitation. There was no legitimate therapeutic reason why he was not transformed rather quickly into a relatively high-functioning citizen, who posed little danger to anyone.
In fact, he has been that model patient for many years now, but the federal government has been unwilling to admit success in its reflexive efforts to keep him permanently constrained by inventing reasons why he might be dangerous. Many of those reasons have revolved around his trying to have relationships with various women at St. Elizabeth’s, which were typically conceptualized, without any real proof, as a continuation of the type of obsessive behaviors he expressed with regard to Jodie Foster. The fact that he had largely concluded his Jodie Foster obsession, as soon as she failed to recognize him at his trial, never impressed federal authorities.
On many different occasions over many years, Hinckley has tried to obtain conditional release and gain more freedoms. Each time the federal government has opposed his applications. As the federal prosecutor, who failed to convict Hinckley and has steadfastly opposed his release observed, “we [meaning the federal government] do not believe that anyone who tries to nullify a national election with a bullet deserves the privilege of moving freely in a civilized society.” Various court decisions document how absurd and conniving this governmental obsession has become.
The man who federal prosecutors said did not have a serious mental illness when he was tried, suddenly became so ill after he was committed to St. Elizabeth’s that for decades representatives of the federal government have contended that Hinckley has made no substantial progress, despite receiving much better mental health care and treatment than a vast majority of people with mental impairments receive in the criminal justice system. In order to make that legal argument, however, the federal government has had to bypass or neutralize the treatment staff at St. Elizabeth’s on numerous occasions.
For example, in 1997, a lower federal court decided that even after fifteen years in captivity, Hinckley’s condition precluded him from spending 12 hours a week under the supervision of his parents as his treatment team had recommended. What raised suspicions of possible impropriety by the federal government was that the hospital’s review board had countermanded the treatment team behind closed doors for reasons that Hinckley and his legal counsel were not allowed to be privy to because such sessions were deemed confidential. The D.C. Court of Appeals upheld the lower court, including its decision not to compel the review board to make public its decision-making process.
A year later, however, Hinckley’s treatment team, presumably with the review board’s acquiescence, granted him a one-time, six-hour holiday pass to leave the grounds in the company of his parents, but with the direct supervision of hospital staff. True to form, U.S. attorneys successfully opposed this pass, at least initially, by convincing a lower federal court that the staff-instituted action constituted a conditional release, which required the court’s approval. The judge in that case also decided to agree with the federal government that any type of release for any amount of time would pose a danger to the community. A divided D.C. Court of Appeals reversed, ruling that this pass was not a conditional release, which required the lower court’s approval.
Since 1998 Hinckley has been granted incrementally longer and more frequent visitation opportunities falling well-short of full conditional release, all of which the federal government has opposed using spurious arguments. For example, in 2012, nearly fifteen years after he received his first pass, the government contended that Hinckley should still be denied his freedom because he was having a sexual relationship with a woman, which “increased the risk for violence due to depression or…to demonstrate his love for a woman.” Also, Hinckley had supposedly demonstrated his proclivity for violence because, while on a pass from St. Elizabeth’s, he had stared intently at a bookshelf in Barnes & Noble, which, along with many other titles, contained a history book on the assassination of President McKinley. Apparently, whenever Hinckley was allowed to leave St. Elizabeth’s, the secret service assigned agents to follow him.
As political commentator Roger Simon concluded back in 2009, “John Hinckley is a political prisoner. Or at least a prisoner of politics.” Hinckley became such a prisoner as soon as he was committed to St. Elizabeth’s and has remained so, even though since 1985 his “doctors have been saying he is in ‘full remission.’” Now there is a real possibility that Hinckley may become a free man in the foreseeable future.
The court that has been overseeing Hinckley’s release status has decided that as long as certain strict guidelines are followed, he may visit his mother in Williamsburg, Virginia up to 17 days a month. The nearly 60-year-old patient also will be permitted to drive a car to and from appointments and locations where someone is expecting him, which would include his volunteer job. Previously, if he wanted to drive while on these visits he had to be accompanied by family. Whenever he is unsupervised, however, he must carry a cell phone that has GPS capability, which is turned on. Hinckley also is restricted in how and when he may use the internet. Greater freedoms may be granted later on, but only after he has made at least eight successful visits with his mother—and presumably only if the political pressure to keep him confined does not increase too much.
The laws and policies that Hinckley’s insane actions helped spawn made it extremely difficult for him to be released into the community. What has happened to him is atypical in many respects. Even though he has been railroaded in the legal system, at least he has received relatively humane care and treatment. However, in other ways, his situation exemplifies what mental health care in the criminal justice system has become ever since Hinckley made an unwilling Jodie Foster a part of the lexicon of American history.
Fears of dangerousness, based on flawed beliefs and predictions, rather than empirical evidence, have overwhelmed the potential benefits of humane care, treatment, and rehabilitation. Criminal incarceration and other constraints on liberties have transformed America into being the most punitive industrialized society in the world, by far. Our most inhumane measures, however, have been reserved for people with mental disabilities, who are deemed to be dangerous. Public health, especially mental health, has been marginalized by various beliefs with no scientific or empirical basis that can infiltrate American society almost instantaneously. This is the postmodern version of tyranny of the majority in which scientific evidence and rational thought are viewed with distain, or simply ignored because it is inconvenient. Cognitive dissonance has become a national malady, especially with regard to our inhumane treatment of people with mental disabilities.
1. John Weston Parry, Mental Disability, Violence, Future Dangerousness: Myths Behind the Presumption of Guilt (Rowman & Littlefield, October 2013).
2. John W. Parry, Criminal Mental Health and Disability Law, Evidence and Testimony (American Bar Association 2009).
3. Back Issues of the ABA’s Mental & Physical Disability Law Reporter (1976-2011). In 2011, the Reporter ceased publication.
4. Douglas Linder, “John Hinckley,” (University of Missouri-Kansas City School of Law April 2002).
5. Andrew Cohen, “The Day John Hinckley Jr. Walked Into a Bookstore,” The Atlantic Monthly (Jan. 2012).
6. Roger Simon, “Time to Let John Hinckley Go?” (06/18/09) Politico.com (last visited July 27, 2014)
THE DONALD STERLING BASKETBALL AFFAIR:
FIGHTING RACISM WITH SANISM
By John Weston Parry
Nowhere in American life are stigmas, biases, and prejudices based on mental disabilities more pronounced than in the world of athletics, particularly with our most popular spectator sports. “Sanism” has a strong influence on our athletes, coaches, managers, owners, and leagues, which reflects a broader and more pernicious problem throughout our society. Sports not only mirror, but intensify, “sanism” in America. Having a mental disability is about the worst thing that can happen to an athlete or coach, which is why normally it is such a guarded secret. In today's sports world, as with society more generally, what would be clearly labeled as inappropriate if it involved any other type of illegal or illicit discrimination is embraced without much dissent if it involves mental disabilities. The disturbing Donald Sterling affair illustrates this bias.
Sterling, the disgraced owner of the Los Angeles Clippers National Basketball Association (NBA) team, is by most public accounts an unpleasant and racially insensitive man. He was transformed from an impending N.A.A.C.P. community service award recipient to racist villain, based on his private views that were recorded without his permission. Otherwise, his money and social status would have ensured that he received that award and continued to own his team and the social standing that brought him, even though it was strongly suspected that he held views that were racially suspect, if not actually racist. Instead, he became one of a slew of sports personalities, including Jimmy the Greek Snyder and Marge Schott, who have seen their elevated social standings disappear and been threatened with the loss of employment or other economic sanctions, after they uttered public words that were considered to be, or were, racist.
There is a definite line in polite society that cannot be crossed when it comes to race and ethnicity, gender, and lately sexual preference. No such line exists with respect to disability generally, and mental disabilities most of all. Sanist language rarely creates a public outcry. If Sterling had told his girlfriend not to bring her “psycho” or “retarded” friends to games because he was convinced they would have made him look bad, in all likelihood nothing of consequence would have happened.
Whether anyone should lose their possessions or be deprived of their economic interests due to their private discriminatory words pits anti-discrimination against privacy rights and freedom of speech. Reasonable people can embrace varying positions in trying to resolve this conflict between important social values. Assuming the answer is yes, however, as was the sports public's verdict in the Sterling affair, it is regrettable that a “sanist” double standard is being employed in order to attempt to civilly punish him for his offensive words.
What the NBA and much of the sports public and media wanted was for Sterling to go away by forcing him to sell his interest in his team. This would allow the other NBA owners to minimize the public relations damage and move on, while avoiding any potentially embarrassing questions about other racial inequities and insensitivities involving NBA teams, their owners, and the league. There was an important reason why the newly-installed NBA Commissioner, Adam Silver, was very careful not to say that the league was taking away Sterling’s interest in his team when Silver banished the Clipper’s owner from attending or participating in NBA games and events for life. Legally, it appeared very likely that the decision whether and how to sell his interest in the team was Sterling’s to make, regardless of what the NBA, its players, and the fans believed would be the best thing for him to do.
Yet, his having these seemingly inalienable legal rights did not really end the matter. It turns out that controlling interest in the team was not owned by Sterling himself, but rather a family trust that he had established with himself as trustee in order to mine certain short and long-term tax advantages. One of the major beneficiaries in this trust was his estranged wife, Rochelle, as well as other members of his extended family. Without securing Donald Sterling’s consent, Rochelle, who after Donald held the most power under the trust, unilaterally tried to sell the Los Angeles Clippers to Steve Ballmer, who once was the chief executive at Microsoft, for a reported $2 billion. She did this by declaring that her husband was mentally incompetent, making herself the acting executor of the trust. This shrewd business maneuver was hailed throughout the sports world and in much of the media. The unfortunate irony was that one form of pernicious discrimination, based on mental disability, was being used to justify popular retribution for another type of pernicious discrimination based on race.
One of the most disturbing aspects of American law is that the rights of persons with mental disabilities have been consistently shortchanged. There have been too many instances in which people who are legally competent have been deprived of their right to make decisions for themselves based on allegations of mental incapacity; or when people are found to be legally incompetent, someone else makes a decision for them, which ignores the stated preferences of the person with the mental disability in order to satisfy someone else’s agenda. This is exactly what Rochelle Sterling is trying to do to her estranged husband with the complicity of the sports media, and perhaps the courts. In the more distant past, it was usually the husband who deprived his wife or children of their legal rights based on dubious or entirely inaccurate allegations of mental incompetency. Apparently, this is a new form of gender equality.
Whether or not Donald Sterling is mentally incompetent cannot be reasonably assessed based on hearsay opinions of mental health experts, who reportedly believed that he may have a mental impairment. Mental incompetency is a serious legal determination that ultimately should be made by a court of law based on clear and convincing evidence submitted by both the respondent, whose rights are in jeopardy, and the party who is alleging the person is incompetent. The burden of proof is on the party alleging incompetency. Proving mental incompetency to make basic contractual and business-related decisions normally is a high threshold to meet. The minimum standard for individuals to retain their contractual rights is very low. Merely because Sterling reportedly has a “mild cognitive impairment consistent with early Alzheimer’s disease,” is not nearly enough to establish his mental incompetency as a legal matter. In fact, that description strongly suggests that he is not legally incompetent and his estranged spouse is trying to use her influence to undermine his legal rights.
In California, as in many states, even if a person is found to be mentally incompetent, it is typically incumbent upon the court – or a substitute decision-maker – in making a decision on behalf of the incompetent person, to determine what that individual would have wanted. In this case, it should be pretty obvious from his public statements that Sterling has indicated in no uncertain terms that he does not want his interest in the team to be sold without exhausting all of his legal remedies, unless he gives his consent. Simply because most of America despises the man, does not mean he should lose his legal rights with regard to the Clippers, even if he were mentally incompetent, which apparently he is not.
Two billion dollars is what may bring Sterling to his senses, not unfortunate court theatrics that are unlikely to withstand judicial scrutiny on appeal should the lower court decide to allow the team to be sold by the Sterling Family Trust against the clearly-stated wishes of Sterling himself. Reportedly, two Los Angeles-based mental health experts, one a neurologist and the other a geriatric psychiatrist, retained by Rochelle Sterling, concluded that Donald lacked the capacity to serve as trustee of the family trust. They reportedly based their opinions in part on CT and PET scans, even though those “tests” have never been shown to be reliable in drawing this type of legal conclusion. In addition, the neurologist was a social acquaintance of Rochelle and is alleged to have based her opinion in part on what transpired when Donald took them all out to dine at the Polo Lounge in Hollywood, which if true would be unethical.
Let us suppose that Donald Sterling actually has had certain significant medical issues related to his mental condition. That would place his private “ravings, which became public, in an entirely different context. Even if his alleged impairments fell far short of meeting the legal threshold for establishing contractual incompetency, they could plausibly explain why an 80-year-old white man was so insecure about his lover’s social involvement with younger African-American athletes that he felt compelled to extrapolate on why she should not associate with them. He tried to bolster and defend his position using outrageous racist analogies, including the difference between white Jews and black Jews.
In the tape recordings of what he said, reproduced by Deadspin, Sterling never maintained that his racial beliefs were based on what was right or wrong. He discounted morality entirely. He emphasized that his views were all about how, in his mind, society viewed blacks as being inferior to whites, and there was little he could do about that. “I don’t want to change the culture, because I can’t.” According to Deadspin, his were the words of “a doddering racist….”
Logically, Donald Sterling either is responsible for his utterances and more than competent enough to make his own business decisions, or he is of questionable competence and only partially responsible for the views that were made public. The media and the courts should not have it both ways, but in our society that is what typically happens. Persons with a presumed mental disability receive little or no reduction in their culpability for their behaviors, but are punished or sanctioned more harshly or deprived of more rights than if they had no mental disorder at all. This is a basic theme in American law that is detailed in Mental Disability, Violence, Future Dangerousness: Myths Behind the Presumption of Guilt (Rowman & Littlefield, October 2013). Brief excerpts without references enlarging on various mental disability aspects that apply to the Sterling affair appear below in bold italics, along with other observations based on this book.
Civil Rights' Injustices
In America, injustices against persons with mental disabilities are well-entrenched both in the fabric of society and our laws based on legal, psychiatric, psychological, and governmental structures and public opinion... Even overwhelming [social science and empirical] evidence [that mental status expert evidence and testimony is] unreliable and discriminatory will be met with skepticism and broad-based resistance. To paraphrase the theoretical physicist, Lawrence Krauss, “unless science, [empirical evidence] and data become central to informing our public policies, our [nation] will [continue to] be hamstrung.
For people with mental disabilities their inability to think or act rationally is generally ignored in terms of assessing their culpability, while their mental conditions are used as justification for applying harsher penalties and deprivations of rights. This occurs in both the criminal and civil justice systems. Typically, such bias arises not only because these individuals are presumed to be particularly dangerous to others and themselves, but also because they are presumed to be mentally incompetent to make decisions for themselves. This is part of a long and often deplorable history of discrimination in the United States....[F]or over two centuries now most Americans with serious mental disabilities [or thought to have such disabilities] have been subjected to stigma, prejudice, abuse, neglect, and/or inadequate or nonexistent treatment....Such callousness toward people with mental disabilities has been a product of ...“sanism,” which... is no less, and often even more, pernicious than racism.
The language we continue to use in referring to persons with mental disabilities is dehumanizing and subjects them to blatant injustices especially in the legal system. Unlike racism and sexism, which generally are condemned when made public and subjected to heightened constitutional scrutiny..., sanism is practiced rather openly and its manifestations are ...subject to less judicial scrutiny....[O]ur legal system has adopted special rules for the admission of unreliable psychiatric and psychological evidence, which place persons with mental disabilities at a serious disadvantage.
Over the years, the language used to disparage and demean persons with mental disabilities has changed somewhat to keep up with the times. Nevertheless, our popular culture is still littered with terms like “retards”... “mental defectives... “going postal,” and other derogatory, stigmatizing, inflammatory, and alarming references targeted exclusively at persons with...mental disabilities..... While polite society scrupulously avoids such discriminatory references for other categories of people..., these...references continue to be commonly used to improperly describe or categorize people with mental disabilities.
Loss of Decision-making Rights
Historically, people who were institutionalized based on their mental disabilities lost their basic rights of citizenship....including personal and financial decision[making]...and privileges...such as voting, holding elected office, and driving. Many of their decision were made for them by [g]reedy, ill-informed, and/or unprincipled relatives [and] friends... [who] could, and often did, deplete the patients' estates, steal their possessions, or consent to highly questionable medical procedures....
Today, many different types of civil injustices based on prejudices and stereotypes about persons with mental disabilities remain in place. Donald Sterling was pretty much impervious to any legal attacks for his racist language, until issues regarding his mental competency were raised based on unreliable expert evidence, including purported CT and PET scan results. He was transformed from a man who uttered despicable words into a victim of sanism.
Michael Perlin defines sanism to mean “an irrational prejudice, due to a person's mental or emotional disability, that is `based predominantly on stereotype, myth, superstition, and deindividualization,' which infects ... our jurisprudence....” Sanist language disparages persons with mental disabilities by communicating that those negatively labeled individuals are somehow less worthy as human beings, and thus [may] be...treated differently from the rest of society to their detriment, particularly in our legal system.
CT And PET Scans
The use of neurologists, who depend on CT and Pet scans to make legally relevant diagnoses, is an emerging practice that has no sound empirical basis. As a scientific matter, such conclusions are bogus if used to prove a person's dangerousness or mental incompetency. The notion that Donald Sterling could lose his decision-making rights founded in part on such spurious evidence would be an indictment of our legal system. Such evidence should never be allowed to go forward in a court of law to prove a person’s mental status. Hopefully, such flawed neuroimaging results will not prove determinative in this case because, if they do, it not only will represent a miscarriage of justice in Sterling's case, but it will set a terrible legal precedent.
This use of “neuroimaging,” based on various types of brain scans, presumes that there is some meaningful correlation between perceived damage and irregularities in certain parts of the brain and [various].... types of behaviors.... The actual correlations appear to be very low, even as applied to large groups of people, much less particular individuals....[Overwhelming]practical limitations negate the legal value of trying to identify areas of the brain in specific individuals that are damaged or irregular.
THE DEATH PENALTY AND PEOPLE WITH MENTAL DISABILITIES:
The Implications of Hall v Florida
John Weston Parry, J.D.
The United States Supreme Court’s ruling in Hall v Florida, No. 12-10882 (U.S. Sup. Ct. May 27, 2014)—which struck down Florida’s (and by reference nine other states’) inflexible standards for determining whether defendants have an intellectual disability that makes them ineligible for the death penalty—should be viewed as critically important, beyond the narrow holding itself. First, the 5-4 majority opinion reprioritizes the relative importance of the two major rationales used to justify the ban on executing persons with intellectual disabilities established in Atkins v. Virginia, 536 U.S. 304 (2002). This shift in emphasis substantially increases the possibility that in the future, defendants with other types of severe mental disorders may be constitutionally protected from being executed. Second, even if “contemporary values” change and a majority of Americans come to believe that executing persons with intellectual disabilities should be permitted, Hall has embraced a persuasive independent constitutional basis for upholding Atkins.
The Supreme Court’s Opinion
Freddie Lee Hall was convicted of murder in 1981, for which he received the death penalty. After the U.S. Supreme Court rendered its historic decision in Atkins, Hall challenged his sentence in state court based on evidence that he had an intellectual disability (which was then called mental retardation) that exempted him from execution. As part of his evidence, Hall submitted an IQ test, which indicated that he had a score of 71. Because Florida’s legal definition of intellectual disability requires a score of 70 or less, no other evidence about his condition was admissible; he was automatically deemed eligible for the death penalty that he had received at sentencing. The Florida Supreme Court upheld Hall’s sentence, determining that the requirement that he have an IQ score of 70 or less in order to be eligible for the execution ban met constitutional standards under Atkins.
In an opinion written by Justice Kennedy, a divided U.S. Supreme Court struck down the Florida law as interpreted. The majority was convinced that the Eighth Amendment’s requirement that government “respect the dignity of all persons” prohibited the execution of persons with intellectual disabilities. No “penological purpose” would be served in executing this particular group of defendants. In addition, due to their impairments, defendants with intellectual disabilities are at an increased risk of being executed wrongfully. Not only is there a greater likelihood that they will make false confessions, but often they are poor witnesses and unable to provide meaningful assistance to their lawyers.
Discussion of the Majority Opinion: What Was Missing?
What was conspicuously absent in the Court’s opinion was the rationale in Atkins that at the time appeared to be the main reason that Court had overturned a prior decision in Penry v. Lynaugh, 492 U.S. 302 (1989), which had upheld the execution of persons with mental retardation. As explained in Mental Disability, Violence, Future Dangerousness: Myths Behind the Presumption of Guilt (Rowman & Littlefield, Oct. 2013) (excerpts in bold italics without references supplied),
The Atkins decision had two major intertwined rationales, which requires treating people with mental retardation differently than any other category of adult capital defendants… The first rationale was the one articulated by Kennedy in the majority opinion in Hall. This should have been sufficient to support the Atkins ruling.
Unfortunately it was not. A second—arguably even more decisive rationale—was needed to justify the Court’s overruling existing precedent. That rationale focused on a new national consensus [that] had evolved. This shift in attitudes made execution of persons with mental retardation morally offensive, which, under the Eighth Amendment… provided the necessary constitutional linchpin for overruling the prior decision…. As… necessary as… [this legal rationale] proved to be, it also reinforced and expanded a legal precedent that someday could have negative repercussions for persons with mental disabilities…[T]his particular rationale…has potential negative implications…for people with mental disabilities, whose lack of popularity has made them especially vulnerable to abuse and injustice by majority acclimation.
The “change in attitudes” rationale almost scuttled the majority decision in Hall. Four justices in their dissent embraced that part of the Atkins decision in challenging the majority’s reasoning and outcome. In Penry and Atkins it was Justice O’Connor who cast the deciding vote in each decision and changed her mind in the subsequent case. In Hall, as in a number of cases since O’Connor retired, Kennedy has been the justice who generally holds the balance of power in these types of criminally-oriented rights cases. Without his deciding vote, Justice Alito’s dissent probably would have been the majority opinion.
The dissent in Hall focused on the Eighth Amendment’s proscription that “whether a punishment is `cruel and unusual’ depends on currently prevailing social norms….” This was the basis for the prevailing rationale in Atkins. As the majority had explained in Penry, “the Court has long held that laws enacted by state legislatures provide the `clearest and most reliable objective evidence of contemporary values….” Thus, when the execution of persons with mental retardation (now called intellectual disabilities) was supported only in a minority of states, this reflected the necessary change in attitudes. “`[I]n a democratic society[,] legislatures, not courts, are constituted to respond to the will and consequently the moral values of the people….”
Utilizing this interpretation as the primary basis by which Atkins had been decided, the dissent challenged the majority with the following argument:
While Atkins identified a consensus against the execution of the intellectually disabled…there was `serious disagreement’ among the States with respect to the best method for `determining which offenders are retarded.’ The Court therefore `le[ft] to the States the task of developing appropriate ways’ to identify these defendants…Atkins `did not provide definitive procedural or substantive guides for determining when a person’ is intellectually disabled.
The majority opinion in Hall relied in part on the medical, psychological, and disability expertise of those who prepare the standards and guidelines by which intellectual disabilities are determined, nationally. This evidence had been presented by the leading professional organizations representing those disciplines, including the American Psychiatric Association and the American Association on Intellectual and Developmental Disabilities. It was clear using those accepted standards and guidelines that the use of an IQ score alone, much less one that was as low as Florida’s, did not comport with either the best evidence or best practices. Equally important to intellectual function in the definition of intellectual disability is the individual’s adaptive behavior, which cannot measured by an IQ score. Alito, however, as a matter of legal precedent, was able to counter such powerful medical, psychological, and disability evidence with this argument:
In… prior cases, when the Court referred to the evolving standards of a maturing `society,’ the Court meant the standards of American society as a whole. Now, however the Court strikes down a state law based on the evolving standards of professional societies…This approach cannot be reconciled with the framework prescribed by our Eighth Amendment cases.
Discussion of the Decision’s Implications
Alito and his fellow dissenters presented a strong legal argument that is convincing, unless you embrace the other major rationale that was used to support Atkins and was the primary rationale for the majority opinion in Hall. “Respect for the dignity of all persons” is a cornerstone of the Eighth Amendment, along with the prohibition against “cruel and unusual punishment.” Prohibiting executions of individuals, who have demonstrated that they have a “special risk of wrongful execution,” serves the fundamental interest of protecting the integrity of the trial process.
The narrow holding in Hall would make it a decision that, as the New York Times accurately observed, “may spare some inmates on death row” in nine states, including Alabama, Arizona, Delaware, Florida, Kansas, Kentucky, North Carolina, Virginia and Washington (L. Alvarez & J. Schwartz, May 28, 2014). The Courts change in emphasis, however, which embraces “respect for dignity,” fundamentally transforms the death penalty landscape for persons with any type of mental condition or disorder that makes them a “special risk [for] wrongful execution.” Those risks, as described by the majority opinions in Hall and Atkins, include: a tendency to make false or inaccurate confessions; an inability to perform ably as a witness; and an inability to “meaningful[ly]” assist counsel. Yet, there are many other substantial risks that capital defendants with mental disabilities share.
Many of the arguments for expanding the right not to be executed, from only persons with intellectual disabilities narrowly defined, to anyone with a mental impairment that seriously affects their abilities to be tried fairly, are articulated in Mental Disability, Violence, Future Dangerousness: Myths Behind the Presumption of Guilt (Rowman & Littlefield, Oct. 2013). Brief excerpts without references follow below in bold italics, along with other observations based on the book.
The most important reason that defendants with mental disabilities cannot obtain a fair trial by a jury or judge in a death penalty case is the future dangerousness standard that is used to decide whether executions are justified, coupled with the societal stereotype that persons with mental disabilities are inherently dangerous. As John Blume’s research has shown, [courts often—and arguably almost always—rely on future dangerousness to justify the death penalty, and this reliance can be either de facto or dejure. Unfortunately, how these assessments are made, particularly for persons with mental disabilities, remains a travesty of justice.
Assessments by state-retained experts have proven to be unreliable, generally failing to meet even the lowest standard of proof—a preponderance of the evidence—much less the most rigorous beyond a reasonable doubt standard…that our Constitution demands for criminal convictions, but not…for sentencing. In death penalty cases, the critical factor is what the jury believes, which has turned this … into an evidentiary free-for-all that is worse when inherently faulty predictions of dangerousness of or assumptions about dangerousness are relied upon to execute persons with mental disabilities….As Michael Perlin’s work has revealed, [s]tudies substantiate [that] `there is no question that the death penalty is disproportionately imposed in cases involving defendants with mental disabilities.’”
The second factor that makes the death penalty unfair with regard to persons with mental disabilities is what Michael Perlin has called “sanism,” which is bias, prejudice, and stigma that is analogous to racism. His book Mental Disability and the Death Penalty (Rowman & Littlefield 2013) and my book demonstrate convincingly that mental disability plays a much more significant role in contributing to the death penalty verdicts than in preventing them…. Defendants with mental illnesses, below normal intelligence, and other cognitive deficiencies, who are not protected by… Atkins… is particularly vulnerable to being executed. There are at least four reasons why this bias occurs.
To begin with, many, if not most, persons with serious mental disabilities are more likely to confess or be convinced to confess…. Such confessions often are false… [or] inaccurate, misleading, or overly damning….Also many interrogators deliberately use a suspect’s mental impairments to facilitate a confession…. In addition, most jurisdictions have narrowed, or all but repealed, the statutes that used to allow defendants… to pursue diminished culpability defenses…. Furthermore, mental impairments are much more likely to be used as an aggravating factor … than as a mitigating factor that would reduce their culpability. Finally, most capital defendants lack the means to hire their own mental health experts to help their lawyers prepare mental status defenses and mitigation strategies, and to testify at trial.
Thus, for these and other reasons, in 2006 the American Bar Association, the American Psychiatric Association, the American Psychological Association, and the National Alliance of the Mentally Ill jointly recommended that defendants with certain severe mental disorders—in addition to mental retardation—should not be executed. Nevertheless, not a single jurisdiction has passed legislation to require such an exemption….This lack of concern for persons with mental disabilities extends throughout our legal system.
As a result of how people with mental disabilities are treated with regard to the death penalty specifically, but more importantly in our criminal justice and civil detention and monitoring systems as a whole, I argue that persons diagnosed with mental disorders, conditions, or aberrations—or officially labeled as such—who are deemed by state or federal governments to be dangerous (or harmful), make up an insular minority, which should be recognized as a suspect classification under our Constitution.
VULNERABLE PEOPLE WITH MENTAL IMPAIRMENTS, WHO ARE THOUGHT TO BE POTENTIAL NUISANCES AND THREATS TO THEIR COMMUNITIES: RECOMMENDATIONS FOR REFORM
John Weston Parry, J.D.
In the United States, abused children, veterans, and people who are homeless have at least one thing in common. They are far more likely than members of other groups in our society to have or develop mental impairments, which will subject them to criminal or civil incarceration or other coercive restrictions on their rights and liberties. Members of these vulnerable populations are usually neglected as well, until—as a result of their mental impairments—they are viewed as being potential nuisances or threats to their communities; then incarceration and other coercive interventions are applied. It is a cycle that repeats itself many hundreds of thousands of times each year. Yet, almost no one objects or speaks out on behalf of those in jeopardy, even though the injustices against them have been steadily increasing.
Each of these special interest groups—abused children, veterans, the homeless, and those who have mental impairments—have their advocates, to a certain extent. However, once these vulnerable individuals are deemed to be potential threats or serious nuisances to their communities, their former advocates tend to disappear. This happens because the federal and corporate funding and media support that these non-profit advocacy organizations depend on would be jeopardized if their staffs actively advocated for these highly stigmatized individuals. Moreover, competent legal representation, which these individuals so desperately need in order to fight accusations that they are dangerous or harmful to the social order, is inadequate, in short supply, or practically nonexistent. Instead, we have created a legal system that denies individuals with mental impairments, who are accused of dangerousness, of the normal due process protections and guarantees others in our society receive.
Thus, once individuals are officially accused of being dangerous or harmful due to their perceived mental impairments, it is highly likely that they will be deemed dangerous or harmful, usually based on unreliable and misleading “expert” testimony. Thereafter, these vulnerable people are placed in government custody and supervision, indefinitely, until they can prove that they are no longer dangerous or harmful in a society that assumes that people with mental impairments are inherently dangerous.
Unfortunately, both our criminal justice and civil social service agencies are woefully ill-equipped to deal with these individuals and their accumulating problems, much less to prevent their problems from occurring or growing worse. The social safety net has numerous gaps, which are widening every day. Tragically, it is people with serious mental impairments—particularly those who have been abused as children, combat veterans, and those who are homeless—who suffer the most neglect and deprivations of their rights, typically because they do not receive the community services that they need to live independently or with the assistance of family and friends.
The state and federal laws and policies that we currently have to deal with these vulnerable populations are discriminatory, unnecessarily coercive, punitive, and counterproductive. They need to be revamped to incorporate the principles of therapeutic jurisprudence and basic notions of human rights, fundamental fairness, and due process. As a nation, we should everything within reason to: (a) prevent these human tragedies from occurring in the first place; (b) reduce the combined stigmas of having a mental disability and being perceived as harmful or dangerous; and (c) eliminate the travesties of justice that befall the many hundreds of thousands of individuals with mental disabilities each year who end up in our criminal and civil legal systems.
What is happening to people with mental impairments, who are perceived to be dangerous or harmful—including abused children, soldiers, veterans, and people who are homeless—is comprehensively addressed in Mental Disability, Violence and Future Dangerousness: The Myths Behind the Presumption of Guilt (Rowman & Littlefield, October 2013). Chapter 8 “A New System of State and Federal Laws and Public Health Approaches for Persons with Mental Disabilities Deemed to be Dangerousness,” sets out specific recommendations for reform. Copyrighted excerpts of some of those recommendations are reprinted below with permission of the publisher and author, along with reflections based on the book and other materials. Excerpts are in bold with italics.
Creation of a New Suspect Classification
A threshold recommendation urges the judicial system to recognize a new constitutionally protected suspect classification—in addition to those based on race, religion and ethnicity that have been upheld in the past—which would apply to persons diagnosed with mental disorders, conditions or aberrations—or officially labeled as such—who are deemed by state or federal governments to be dangerous (or harmful)…. As set out in Chapter 7, “Deemed Dangerous Due to a Mental Disability: An Extremely Suspect Classification,” no group in our society today has endured [such] a long and unrelenting history of stigma, invidious discrimination, abuse, and mistreatment as this particular population.
In fact, no group of Americans… continues to be treated worse. They are the epitome of a suspect classification under our Constitution. Instead of being specially protected under our legal system, these individuals are singled out for special deprivations of their rights that only apply to them based on flawed, unreliable, and misleading predictions about their potential dangerousness. These recommendations would establish three narrowly tailored criteria, which could be used to easily and accurately identify members of this suspect classification.
The Legal Concept of Future Dangerousness Should be Eliminated or Strictly Limited
For a number of reasons, badly flawed and grossly imprecise standards of future dangerousness have evolved as the primary bases for depriving people with mental disabilities of their fundamental rights and liberties. Unreliable predictions and impressions as to whether these defendants or respondents are likely to be dangerous or harmful have replaced persuasive legal proof. Making matters worse, likely does not even mean more likely than not. Thus, many people with mental impairments, who are unlikely to be dangerous, are subject to involuntary commitments and other harsh interventions based on the fear that they might be.
Generally, laws, legal standards, or procedures… based on predictions of dangerousness or harm …should be repealed or amended and narrowly tailored for specific purposes reflected in these recommendations. In addition, dangerousness evidence and testimony should not be admitted in any court or used by juries or judges…, unless there is persuasive… evidence that the dangerousness prediction…is more likely than not to contribute to a relevant, accurate, and reliable legal determination…. Currently, such persuasive evidence has been lacking both in the scientific and other empirical literature and the courtroom. Thus, the law has spawned various legal fictions to enable this faulty evidence to be used and relied upon with minimal—and often no—judicial scrutiny.
Generally, Dangerousness to Others Should Be a Criminal Disposition
Except where there is a legally recognized emergency or an individual enters into a contract to receive specified services from state or federal governments consistent with these recommendations, dangerousness or harmfulness to others… should be treated as criminal dispositions subject to… full due process protections…. Moreover, criminal offenders with mental disabilities… should receive humane mental health care and treatment….
Findings of Dangerousness to Oneself Should Require Serious and Imminent Bodily Harm; Consensual Care Is Always the Preferred Option
All involuntary or coerced care and treatment should require a finding of serious and imminent bodily harm. Due process requirements should increase as the length of the potential intervention increases. For a forty eight hour hold in what the recommendations refer to as a legally recognized emergency intervention without a court order…, there should be no less than persuasive evidence—more likely than not….” for the disposition to be carried out. After someone has been held for forty eight hours, there should be a formal judicial determination in a due process hearing in which the respondent has competent legal representation. The government should have the burden of proof by clear and convincing evidence. Those interventions should last no longer than seven days before a new hearing is required.
In special circumstances, thirty-day or indefinite interventions are permitted, but they require enhanced due process and are to be viewed as dispositions of last resort. At any time, a respondent or his or her duly authorized substitute decision-maker may accept contractually agreed-upon care and treatment, which would replace any type of forced interventions. These provisions …apply equally to adults, juveniles, and children.
Criminal Offenders Are Entitled to Humane Care and Treatment
Any individual with a serious mental disability, who is being detained in the criminal justice system, should receive a level of care, treatment, and /or rehabilitation, which would allow them to reasonably benefit as specified in an individual offender plan. When that level of care is denied, offenders should have a private right of action…. in order to demonstrate that the plan has not been carried out in a reasonable manner.
Death Penalty Exclusions for Persons with Severe Mental Disabilities
With regard to imposing the death penalty on persons with severe mental disabilities, these recommendations endorse the 2006 joint guidelines approved by the American Bar Association, the American Psychiatric Association, the American Psychological Association, and the National Alliance of the Mentally Ill. Under these guidelines, almost all such executions would be prohibited. The exceptions are carefully specified in those guidelines.
General Entitlement to Consensual Mental Disability Care and Treatment
Comprehensive consensual care in the community should be attempted before coercion is mandated. [E]very minor and adult with a serious mental disorder, condition, or aberration should have… access to consensual…services and assistance in the community…. For the purposes of these recommendations, serious means that concerns about that individual’s mental health have been documented by public…officials, which could result in that individual being subjected to…coercive government interventions or restrictions consistent with these recommendations.
Federal and state governments should organize and underwrite a national education campaign…to substantially … change public perceptions about (a) stigma… against persons with mental disabilities; and (b) violence…associate[d] with persons who have mental disabilities. These two strong prejudices are key components of sanism, which has led to the systematic neglect, abuse, and mistreatment of persons with serious mental impairments throughout the United States, particularly when they are viewed as being dangerous.