If You Think Judges Stink Now...

Trust me: there's some real diaper judge (they need changing often, and for the same reason) back in the 1970s. I'm reading Lessard v. Schmidt (E.D.Wisc. 1972). This is a landmark decision that struck down Wisconsin's commitment law, and apparently played a big role in starting us down the path we are on now. What a steaming pile this decision is.

There are aspects of this that I do not understand. Even though this was a federal district court decision--there was a three judge panel hearing it. It apparently never made it to Court of Appeals--but it was appealed (apparently directly) to the U.S. Supreme Court, which never rendered an opinion itself, but "vacated and remanded" (essentially, this decision is bad, but we're not going to make a decision ourselves) the case back to the trial court twice.

I agree that the Wisconsin commitment law (like most of the time) was a bit vague, and I don't doubt that it could be, and probably was occasionally abused. But the reasoning of this decision is judicial activism at its worst.

The traditional argument for why mental illness commitment was a civil matter was the patient wasn't considered a criminal, or at least wasn't competent to stand trial. There were two reasons for commitment: because the person was an actual or potential threat to society, or because they were a danger to themselves (either suicidal or neglecting themselves).

The patient, Alberta Lessard, was taken into custody after a suicide attempt. Significantly, while her attorney (from Wisconsin Legal Services, so the taxpayers paid some radical lawyer to create this mess) claimed that she had a right to an independent psychiatric examination, when the judge at the commitment hearing said, "No problem," the lawyer declined it. (I suspect that the diagnosis of paranoid schizophrenia was correct.)

Concerning the possibility that commitment was for the benefit of the patient, they decided that this wasn't a good enough reason, either, because while there was a legal right to be treated if you were committed, most mental illnesses weren't treatable. (By which they really meant, cure rates for paranoid schizophrenia were low, which isn't quite the same as "not treatable.")

Next, they argued that long-term treatment in mental hospitals made the mentally ill worse. (In this case, Lessard was committed for 145 days.) There was a burst of nonsense from sociologists in the early 1960s that claimed that mental hospitals caused mental illness because they were fundamentally denying the individual's self-reliance. As critics later pointed out, if this were really the case--that institutionalization made mentally ill people what they are--why didn't prison inmates, who suffered from many of the same denials of individualism--start to behave like mental patients after a few years?

They also insisted that because death rates in mental hospitals were about ten times higher than in the general population, that obviously, being in a mental hospital wasn't in a mental patient's best interest. They admitted that mental hospital populations were older than average, but would not admit that there might be other differences that might explain these much higher death rates. For example, until the 1960s, much of the population of mental hospitals were senile elderly people, and the syphilitic insane. Neither group ever recovered; both were destined to die in the hospital. It's depressing--but it also explains the high death rates, without being evidence that mental hospitals were dangerous for the mentally ill.

The complete lack of critical thinking shows in some of the quotes these idiots used, such as this one, explaining why even seven days for observation was a bad thing:

The effects may not be limited to those resulting from prejudice. Consider the testimony of Arthur Cohen, National Capital Area Civil Liberties Union and American Civil Liberties Union, 1970 Hearings, at 210:

“Although 7 days may not appear to some to be a very long time, experience has indicated that any kind of forcible detention of a person in an alien environment may seriously affect him in the first few days of detention, leading to all sorts of acute traumatic and iatrogenic symptoms and troubles. By ‘iatrogenic’ I mean things that are caused by the very act of hospitalization which is supposed to be therapeutic; in other words, the hospitalization process itself causes the disturbance rather than the disturbance requiring hospitalization.”

This is a remarkable statement. Hospitalization conceivably could aggravate a patient's problems. Whether it did so, and how often, would be a legitimate basis for inquiry. Phrasing this claim as “the hospitalization process itself causes the disturbance rather than the disturbance requiring hospitalization” would imply that a patient was not disturbed before being hospitalized—but only became that way after the fact. Lessard was hospitalized because of a suicide attempt. While there were almost certainly some patients who were improperly hospitalized, to suggest that hospitalization caused mental illness rather than mental illness causing hospitalization would mean that most people committed for observation were well when taken into custody. Remarkable claims require remarkable evidence--not facile phrase reversals that show a complete unawareness that times moves forward and thus if event B follows event A, A can cause B, but B can't cause A.

There are times it seems as though picking judges at random from the jury pool--or from a box of turnips--wouldn't have done any worse.