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"[T]he liberty secured by the Constitution of the United States to every person within its jurisdiction does not import an absolute right in each person to be, at all times and in all circumstances, wholly free from restraint. There are manifold restraints to which every person is necessarily subject for the common good. On any other basis organized society could not exist with safety to its members." Jacobson v. Massachusetts (1905).
Georgia Criteria for Commitment of Alcoholic, Drug Dependent Individual or Drug Abuser
Alcoholic • "Alcoholic" means a person who habitually lacks self-control as to the use of alcoholic beverages or who uses alcoholic beverages to the extent that his health is substantially impaired or endangered or his social or economic function is substantially disrupted.
“Drug Dependent Individual" or “Drug Abuser" • "Drug dependent individual" or "drug abuser" means a person who habitually lacks self-control as to the use of opium, heroin, morphine, or any derivative or synthetic drug of that group, barbiturates, other sedatives, tranquilizers, amphetamines, lysergic acid diethylamide or other hallucinogens, or any drug, dangerous drug, narcotic drug, marijuana, or controlled substance, as defined in Article 2 or Article 3 of Chapter 13 of Title 16 or Chapter 3 of Title 26; [800+ items]
Commitment Criteria • The person presents a substantial risk of imminent harm to that person or others, as manifested by either recent overt acts or recent expressed threats of violence which present a probability of physical injury to that person or other persons; or (ii) Who is incapacitated by alcoholic beverages, drugs, or any other substances listed in paragraph (8) of this Code section on a recurring basis; and (B) Who is in need of involuntary inpatient treatment.
“Drug Dependent Individual" or “Drug Abuser" … continued • …or a person who uses such drugs to the extent that his health is substantially impaired or endangered or his social or economic function is substantially disrupted
“Drug Dependent Individual" or “Drug Abuser" … continued • provided, however, that no person shall be deemed a drug dependent individual or abuser solely by virtue of his taking, according to directions, any such drugs pursuant to a lawful prescription issued by a physician in the course of professional treatment for legitimate medical purposes.
"Incapacitated by Alcohol or Drugs • "Incapacitated by alcohol or drugs" means that a person, as a result of the use of alcoholic beverages, any drug, or any other substances listed in paragraph (8) of this Code section, exhibits life-threatening levels of intoxication, withdrawal, or imminent danger thereof, or acute medical problems; or is under the influence of alcoholic beverages or drugs or any other substances listed in paragraph (8) of this Code section to the extent that the person is incapable of caring for himself or protecting himself due to the continued consumption or use thereof
The Guy on Peachtree • Picked up after shouting that he was commanded by the Lord God Molloch to free the blood diamonds. Living under a parking facility, no visible means of support, exhibiting some signs of disorientation. Declares that he has several “friends” but no family to speak of. Medical review suggests some impairment of cognition as a result of lead poisoning and ingestion of alcohol. Is he committable?
Consider the following legal definitions in a statute allowing civil commitment of drug abusers
"The word `addicted' means, strongly disposed to some taste or practice or habituated, especially to tobacco. In order to inquire as to whether a person is addicted to the use of tobacco is in effect an inquiry as to his habit in that regard. Does he use it habitually. To use it often or daily is, according to the ordinary acceptance of those words, to use it habitually." "any person who habitually uses tobacco to the extent of having lost the power of self-control”
The Guy on Peachtree • Picked up after shouting that he was commanded by the Lord God Molloch to free the blood diamonds. Living under a parking facility, no visible means of support, exhibiting some signs of disorientation. Numerous empty packages of cigarettes found in his pockets; hands yellow with nicotine. • Is he committable under the statute?
Does the Jacobson precedent help?What about O’Connor v. Donaldson?Or Mayock v. Martin?
Unpacking Civil Commitment Substance abuse Sex criminals
Subjects of Civil Commitment • What are the variables common to these groups that would justify special treatment? • Mentally Ill • Mentally Retarded • Children • Substance Abusers • Sex Criminals
Impairments in Cognition and Volition • Lessened ability to exercise rational faculty • Lessened ability to exercise volitional faculty What is the significance of recognizing these impairments? How do they change the moral calculus and our subsequent legal response?
The Man on Peachtree • Picked up in front of a jewelry store after shouting that he was commanded by the Lord God Molloch to free the blood diamonds. No crime committed yet. No threats made. Should we treat him differently? [Should there be any legal response to this behavior?] Why?
Consider two perspectives: • Your role as a citizen and a potential contributor to public policy formation • Voter • Legislator • Source of information to lawmakers and bureaucrats • Your role as a lawyer, who works as an advocate for specific clients with specific needs
Social Contract Theory from the “Original Position” • (I) conceive what human beings were like (or would have been like) before the creation of organized societies under governments and laws, • and then (II) ask • (A) what reasons would have motivated people to form an organized society and • (B) what principles people in this pre-political condition would have chosen to guide their interaction in a society under an established government.
In the Original Position • Representative persons [think, lawyers] in the Original Position are to choose principles of justice that would govern the basic structure of a (just and fair) social order • Representative persons (or advocates) operate behind a veil of ignorance
Behind the “Veil of Ignorance” • You do not know the following about the persons you represent: their sex, race, physical handicaps, social class, or conception of the good. They assume that the persons represented have these features but they do not know what it is.
The Man on Peachtree • Picked up in front of a jewelry store after shouting that he was commanded by the Lord God Molloch to free the blood diamonds. No crime committed yet. No threats made. Apply the Rawlsian perspective to this man’s situation
Resulting Rules • The Rawlsian perspective suggests that good public policy and/or good advocacy would urge the adoption of rules that did not disadvantage any person or group—in general this would amount to adoption of an nondiscriminatory policy
Principle of NonDiscrimination • The non-discrimination principle requires the equal treatment of an individual or group irrespective of their particular characteristics, and is used to assess apparently neutral criteria that may produce effects which systematically disadvantage persons possessing those characteristics
Nondiscrimination • The principle has been applied to sex, racial or ethnic origin, religion or belief, disability, birth status (legitimacy) and age; more controversially, to sexual orientation and citizenship • In general, it can be applied to characteristics over which individuals have little or no control
As an advocate would you embrace the principle of nondiscrimination as a protection of your client if you were in the Original Position, behind the Veil of Ignorance? • How would you apply that rule in representing the Guy on Peachtree if he were mentally ill, mentally retarded or addicted to drugs? Would the type of drug matter? Would current use matter?
Background:Sex Assault: Rates of Incidence Child sexual assault An estimated 10% of abused children are victims of sexual abuse. Rape One in six women and one in thirty-three men reported experiencing an attempted or completed rape at some time in their lives. Statutory Rape 9% of high school students reported being forced to have sexual intercourse. Recidivism: variable 32 %, with average time elapsed 3.64 years.
How persons convicted of felony sex offenses differ from those convicted of other felonies • Felony sex offense cases are more likely to result in a prison sentence (54 %) than other felony cases. • Offenders are usually male (98%) • European American (84 %) • Older (32 % over 39 years old) • Sex offenders tend to have fewer prior records generally, and • Fewer prior felony convictions (32 %) • 60% of rapists whose victims are age 18 to 29 are from prior relationship. • 90% of child rapists are known to the victim.
Sex Offenders: Treatment Therapy Group versus individual Family therapy Drug/Alcohol treatment Pharmacological Approaches Hormone levels Anti-depressants
History of SVP laws in the 20th Century Early laws Social purity, Progressive and Eugenics Movements. Challenges to dominant perspectives and practices: the 1960s and 70s. Rebirth in the 1990s: Washington State.
Skinner v. Oklahoma The power to sterilize, if exercised, may have subtle, far-reaching and devastating effects. In evil or reckless hands it can cause races or types which are inimical to the dominant group to wither and disappear. There is no redemption for the individual whom the law touches. Any experiment which the State conducts is to his irreparable injury.
Timeline 1984: Hendricks incarcerated for taking indecent liberties with two minors. May 1994: Kansas passes SVP legislation. Sept/Aug 1994: Hendricks eligible for release, but recommitted under SVP Act. Mar. 1996: Kansas Supreme Court finds for Hendricks. June 1997: U.S. Supreme Court reverses Kansas Supreme Court, Hendricks committed to Larned State Hospital.
Kansas Law • The Act defined a "sexually violent predator" as: • "any person who has been convicted of or charged with a sexually violent offense and who suffers from a mental abnormality or personality disorder which makes the person likely to engage in the predatory acts of sexual violence."
Antisocial Personality DisorderDiagnostic Criteria • Pervasive pattern of disregard for and violation of the rights of others occurring since age 15 years, as indicated by three (or more) of the following: • failure to conform to social norms with respect to lawful behaviors as indicated by repeatedly performing acts that are grounds for arrest • deceitfulness, as indicated by repeated lying, use of aliases, or conning others for personal profit or pleasure
Antisocial Personality Disorder Diagnostic Criteria • impulsivity or failure to plan ahead • irritability and aggressiveness, as indicated by repeated physical fights or assaults • reckless disregard for safety of self or others • consistent irresponsibility, as indicated by repeated failure to sustain consistent work behavior or honor financial obligations • lack of remorse, as indicated by being indifferent to or rationalizing having hurt, mistreated, or stolen from another
Anti Social Personality Disorder • Persistent disregard for, and violation of, the rights of others that begins in childhood or early adolescence and continues into adulthood. Deceit and manipulation are central features of this disorder. For this diagnosis to be given, the individual must be at least 18, and must have had some symptoms of Conduct Disorder (i.e., delinquency) before age 15. This disorder is only diagnosed when these behaviors become persistent and very disabling or distressing.
Thomas opinion • A "mental abnormality" was defined, in turn, as a "congenital or acquired condition affecting the emotional or volitional capacity which predisposes the person to commit sexually violent offenses in a degree constituting such person a menace to the health and safety of others
History of Pedophilia Leroy Hendricks
High Court Will Review State Sex Predator Laws By Joan Biskupic Washington Post Staff Writer Wednesday, December 11, 1996; Page A15National concern over sex offenders who prey on children reached the Supreme Court yesterday as the justices considered the constitutionality of a state law that forces sexual predators to be institutionalized even after they have served their criminal sentences. Kansas Appeals to the Supreme Court
No conflict with substantive due process Definition of “mental illness” Lack of volitional control Dangerousness Punitive? Public health and safety quarantine Supreme Court’s Decision Justice Thomas
Accord Compagnie Francaise de Navigation a Vapeur v. Louisiana Board of Health
To what extent does the citation to Accord Compagnie Francaise de Navigation a Vapeur v. Louisiana Board of Healthsignal the repudiation of O’Connor v. Donaldson?
Punitive. Treatment? Ex post facto. Dissent Justice Breyer
Reactions • “…the diagnosis of sexual predator is based on ‘a vague and circular determination that an offender has a 'mental abnormality' that has led to repeat criminal behavior. Thus, these statutes have the effect of defining mental illness in terms of criminal behavior. This is a misuse of psychiatry, because legislators have used psychiatric commitment to effect nonmedical societal ends.’” -Report by the APA Task Force on Sexually Dangerous Offenders
Defining “mental abnormality” • Criminal or patient? • Question of volition. • Why abnormality and not illness?
Paraphilia • Essential features: • recurrent, • intense • sexually arousing fantasies, sexual urges, or behaviors • that occur over a period of at least 6 months
