Developing a Rational Jurisprudence for Non-Criminal Dangerousness

1. Dangerous People, Irrational Fears: Developing a rational jurisprudence for non-criminal dangerousness Edward P. Richards, JD, MPH Director, Program in Law, Science, and Public Health Louisiana State University Law Center richards@lsu.edu Slides and other info: http://biotech.law.lsu.edu/cphl/Talks.htm

2. Objectives for Today • The legal tools for managing dangerous people • What is administrative cost and why does it matter? • Is more due process and judicial review the right answer to concerns with overreaching state authority? • Is law the solution at all?

3. What is Non-Criminal Dangerousness? • No mens rea - guilty mind • Various legal tests • Would not be found criminally liable for their actions • Civil (tort) liability • Individuals or their care givers can be found liable for tort damages

4. Why does Criminal vs. Non-Criminal Matter? • Criminal dangerousness • Constitutional due process protections • The state can only act retrospectively to punish, based on crimes committed • Non-Criminal dangerousness • Cannot be punished • Individuals can be prospectively managed under the police powers to prevent harm

5. The Police Powers • Powers left to the states in the Constitution • Primarily public health and safety • Commerce clause regulation • While the federal government does not have police powers, the courts have allowed the commerce clause to substitute in most situations

6. Police Power Enforcement • Enforced through agencies such as health departments, departments of mental health, and other health and safety agencies • Historically, less of a separation between the police and public health/safety • Governed by administrative law jurisprudence, not criminal law jurisprudence

7. Criminal v. Administrative Due Process

8. Criminal Due Process - Just like on TV • Right to counsel • Trial by jury • No self-incrimination • Only searches based on probable cause with a court granted warrant • Law must be specific (void for vagueness) • Can only be applied for punishment after a crime is committed

9. Administrative Due Process • Expert agency decisionmakers rather than trial by jury • Judicial deference to agency action • Lower standard of proof • Preponderance or clear and convincing • Can take action to prevent harm • Cannot punish, only limit liberty as necessary to prevent harm

10. Example - Administrative Searches • Criminal law search • Probable cause to believe that there is specific evidence of a crime in a specific place • Must be approved by a judge • Administrative law search • Until 1967, no warrant at all • Post 1967, area warrant • Both public health and national security

11. Example - Traditional Tuberculosis Control • Jargon: Isolation (sick) - Quarantine (exposed) • Suspected carriers can be isolated until they test negative • No forced testing or treatment, but it is the key to release • Orders by health officer, subject to habeas corpus review by a judge • Can be kept in a jail (but not a good idea)

12. Tradition Review of Pubic Heath Detention: Habeas Corpus • Part of the US Constitution • State (health officer) must show: • Legal authority for the detention • The facts that support the detention • No right to appointed counsel • Judge will defer to the state's determination of the facts in administrative detentions • Must not be arbitrary or capricious

13. The New Direction • Push by civil libertarians for more rights since the 1970s • More judicial supervision - shift decisionmaking from the agency to the judge or jury • More due process rights, including counsel • Many states have adopted dramatic limits on traditional public health powers • Claimed to be constitutionally required

14. The Result for TB • Appointed counsel • Judicial determination of the appropriateness of the isolation order • In some place, a jury trial on the issues • Least restrictive alternative analysis, often without regard to departmental resources

15. Constitutional Cognitive Dissonance:Rehnquist (Roberts) Denial • Pretrial detainees in Rikers • Bail Reform Act and Fat Tony • Sexually dangerous persons laws and predator laws • Antiterrorism laws • Same constitutional roots as public health • From Guantanamo to NSA to FISA, all are based on the power to prevent • Criminal rights like 5th amendment are limited • Same language as public health decisions

16. Is More Due Process and Judicial Review Good Policy? • Why not just have more review by courts and more due process, including appointed counsel?

17. Administrative Cost • Limited budgets and staff • Many do not have lawyers • Limited ability to tolerate political criticism • Texas TB case in the 1980s

18. Do Courts do a Better Job? • Remember Korematsu? • How about how well the criminal courts do with all their protections, if you are not rich? • Look at the terrorism cases • Presenting a TB case • Is judicial review really only a protection to the extent that it keeps the agency from acting?

19. Does it Matter? • Most public health works well enough • You usually do not get sick eating in restaurants • Drinking water is generally safe • Restrictions on TB control mostly work because it is relatively rare • Would it scale?

20. Problem Areas • Legal overreaching • Assumption that the problem can be solved with law • Usually driven by fear combined with an unwillingness to face structural problems • Over-restrictive laws

21. Legal Overreaching: Pandemic Flu • Read the HHS report on Swine Flu • Pressure to pass emergency restriction and quarantine laws • Some people are even talking about shooting policies • Government requirements for surge planning and emergency preparedness plans • Is this the right answer?

22. Best Evidence-based Pandemic Planning • People need food, medical care, and financial support to stay home • We eliminated surge capacity as a health planning goal - we called it excess capacity • We do not have a working immunization program for the yearly flu pandemic • We cannot even get health care provides to get basic immunizations, including flu shots

23. Why Focus on Emergency Laws? • Cheap to pass • Do not require addressing expensive infrastructural needs • Federal and state agencies can point to the coerced plans to show that we are prepared • Hurricane Pam and Katrina • Systematically undermines confidence in government regulation because everyone has to lie

24. Over-restrictive Laws: HIV

25. Background on HIV • 1,000,000++ infected persons • More than 20,000/40,000 new cases a year • Significantly more deaths than homicides • Devastating minority communities • #1 cause of death young minority women • Much great risk than dangerous mentally ill persons and other politically high visibility risks • Now linked up with prostitution, Internet porn, and organized crime • Extra charge for bareback and bug chasers

26. Legal/Political Setup for HIV Epidemic • Swine flu scared public health officials, esp. CDC • Made it difficult for them to push for unpopular intrusive strategies • Bathhouses grew up in the early 1970s • Horrendous HBV data in 1976 • Bathhouse closings were seen as anti-gay civil rights violations • Bathhouses made the HIV epidemic possible

27. Legal Restrictions on HIV Control • Special legal limits on testing • Special exceptions to communicable disease reporting and investigation laws • Many states revised their public health laws to make it much more difficult to restrict disease carriers • Federal policy on HIV, which sets the norms for states because of funding restrictions, did not address these restrictions until 2005-6 • Public health officials do not have the legal power to act against dangerous persons and institutions

28. Why Pandemic Flu Preparedness and not HIV Control? • What is the real risk of a public health threat? • Why is preparation for theoretical risks so much more attractive than confronting real risks? • What is the role of politics (Wag the Dog)? • Did Katrina trigger the pan flu push? • Is this an extension of the national security state? • Should we push back? • Pan flu rationing plans are a good sign