Commentary

Should Mental Health Professions Honor Bazelon or Burger?

By Professor Ralph Slovenko

David L. Bazelon, who retired as chief judge of the United States Court of Appeals for the District of Columbia in 1986 after 35 years on the court, was particularly influential in the realm of insanity and criminal responsibility.  For his decisions, he is lionized by mental health professionals.  Among many honors by various mental health organizations, he was elected president of the American Orthopsychiatric Association.

A month after his death in 1993, at age 83, at a gala affair in Washington, D.C., the Mental Health Law Project, the preeminent national legal advocate for children and adults with mental disabilities, celebrated its renaming as the Judge David L. Bazelon Center for Mental Health Law.  Dr. Melvin Sabshin, medical director of the American Psychiatric Association, was on the celebration committee along with a number of other psychiatrists.  Dr. Emanuel Tanay, the well-known forensic psychiatrist, called it masochism.

Actually, for decisions on insanity and criminal responsibility, the honors belong to Chief Justice Warren Burger, who had served with Bazelon on the D.C. Court of Appeals before his appointment to the Supreme Court.  Between them there was spirited but bitter antagonism.  Burger was not on the list of the 200-plus members of the celebration committee.  He debunked Bazelon’s decisions in the realm of which he was honored.

In the District of Columbia, virtually the only jurisdiction to employ the test, it was a disaster.  It did not serve as a bridge between law and psychiatry but rather resulted in confusion and a plethora of appeals.  Dr. Karl A. Menninger, renowned as dean of American psychiatry, was later embarrassed to acknowledge that he made a statement at the time of the decision that it was “more revolutionary in its total effect than the Supreme Court decision regarding desegregation.”

In the 1960s, on the D.C. Court of Appeals, one of the bitterest Bazelon-Burger feuds was waged over the application of psychiatry to criminal law.  In memos and in published opinion, with Burger usually in dissent, the two judges battled over the handling of insanity pleas in criminal cases Judge Bazelon is best known for his 1954 decision involving a housebreaker named Monte Durham.  In the place of the M’Naghten right-wrong test of criminal responsibility, which limited psychiatric testimony, Bazelon formulated a test that “an accused is not criminally responsible if his unlawful act was the product of mental disease or defect.”  The test attracted enormous attention but little or no following.  By asking whether the crime was the “product” of a mental disease or defect, the Durham rule gave more leeway for psychiatrists and others to tell the jury about the defendant.  The term “mental disease or defect” was not modified by functional criteria as in M’Naghten, and as a result the courts had difficulty in dealing with the term.

In 1972 Judge Bazelon conceded his blunder in Durham, but he blamed psychiatric testimony, and in a number of writings he castigated psychiatrists for letting him down.  In an oft-quoted statement he said, “Psychiatry, I suppose, is the ultimate wizardry.  My experience has shown that in no case is it more difficult to elicit productive and reliable expert testimony than in cases that call on the knowledge and practice of psychiatry. . . .   Unfortunately in my experience they try to limit their testimony to conclusory statements couched in psychiatric terminology.”

Subsequently Judge Bazelon maintained that the law should eliminate any requirement of mental disease or defect and instruct juries to acquit whenever the defendant’s behavioral controls were so impaired “that he cannot justly be held responsible.”  Under a test so enlarged, a jury could conclude that the defendant’s “rotten social background” rendered his actions inevitable and therefore not responsible.  For “it is simply unjust to place people in dehumanizing social conditions, to do nothing about those conditions, and then to command those who suffer, ‘Behave–or else!’”

Law professor Alan Dershowitz, who clerked for Judge Bazelon, writes in his book Chutzpah: “Judge Bazelon opened up the insanity defense to the urban poor whose crimes were the product of their upbringing, social conditions, and other deprivations.”  Under that formulation, apparently only suburbanites would be held responsible for criminal activity.  Presumably there would be no point to criminal prosecution in areas of urban warfare.

Indeed, as it was said, Bazelon’s position would result in abandoning responsibility.  Courts administer a system of justice which is limited in its reach.  They deal only with those formally accused under laws which define criminal accountability narrowly.  The issue before a jury is not the shortcomings of society generally, but rather that of the accused’s criminal responsibility for the acts which he had committed.

In another well-known pie-in-the-sky opinion, Lake v. Cameron, Judge Bazelon, in a majority opinion, talked about “least restrictive alternative” (LRA) and ordered community placement rather than hospitalization of 60-year-old Catherine  Lake, who carried her worldly possessions around with her in a shopping bag, appearing disoriented and wandering about in mind and body in the downtown crime-ridden district of the nation’s capital.

In a vigorous dissent, Judge Burger quarreled with placing an investigatory burden on the trial court.  He suggested that the burden of making an investigation of alternatives should be reserved for social agencies, since the court is not equipped to carry out such specific inquirey or to resolve the social and economic issues involved.

And, Judge Burger said, “This city [the nation’s capital] is hardly a safe place for able-bodied men, to say nothing of an infirm, senile, and disoriented woman to wander about with no protection except an identity tag advising police where to take her.”  The LRA doctrine, enunciated by Judge Bazelon, played an important role in the deinstitutionalization of the mentally ill.  The end result is well known: the mentally ill sleep on the streets.

Depending on one’s point of view, the Mental Health Law Project gets kudos or brickbats.  During the tumultuous 1960s and 1970s, it was at the forefront in litigation to close mental hospitals.  In a chapter entitled, “The Law Becomes Deranged,” Rael Jean Isaac and Virginia C. Armat, in their book Madness in the Streets, describe how the young lawyers in the project became enamored of anti-psychiatry doctrine.  Bruce Ennis, the “father” of the mental health bar, called mental patients “prisoners of psychiatry.”  They were engaged in a “mental patient liberation movement.”

In Burger’s view, one of Bazelon’s worst opinions was Rouse v. Cameron, a 1966 case, in which Bazelon became the first appellate judge to say that civilly committed mental patients had a “right to treatment” - - that the government, when holding people involuntarily, had an obligation to provide psychiatric care.  Burger thought this was judicial activism at its worst.  While psychiatrists would endorse a “right to treatment” (it is high sounding), Burger could not find it in the Constitution or in legislation.  Hospital staffs not enjoying immunity would have been opened up for lawsuits, or hospitals would be closed.

In the 1971 case Wyatt v. Stickney, a federal district court judge in Alabama ruled that involuntarily committed patients “unquestionably have a constitutional right to receive such individual treatment as will give each of them a realistic opportunity to be cured or to improve his or her mental condition.”  As the State of Alabama could not comply with that order, the end result was abandonment of civil commitment and the closure of hospitals.  That was actually the aim of the Mental Health Law Project.  As Ennis says in Prisoners of Psychiatry, “The goal should be nothing less than the abolition of involuntary hospitalization, and with it, the larger public mental hospitals.”  Most mental health professionals were unaware of the Project’s aim in pursuing a “right to treatment.”

In a 1979 case that came before the Supreme Court, Addington v. Texas, the Mental Health Law Project sought to introduce the “proof beyond a reasonable doubt” standard of criminal justice into the civil commitment process.  The case involved a man whose mother filed a petition to have him involuntarily committed to a state mental hospital.  To require proof beyond reasonable doubt of the criteria of civil commitment - - “mental illness” and “dangerousness” or “gravely disabled” - - would be well-nigh impossible and thereby would do away with involuntary commitment.

With an appreciation of the consequences, Chief Justice Burger, writing the opinion of the  Court, said that the criminal-law “beyond a reasonable doubt” standard was inappropriate because “given the lack of certainty and the fallibility of psychiatric diagnosis, there is a serious question as to whether a state could ever prove beyond a reasonable doubt that an individual is both mentally ill and likely to be dangerous.”  He called only for “clear and convincing evidence,” which is just more that the “preponderance of the evidence” standard of the ordinary civil case.

As Chief Justice, Burger rendered another important decision in 1979 regarding civil commitment of minors.  In Parham v. J.R. the question was presented as to what process is constitutionally due a minor whose parents or guardian seek state-administered institutional mental health care for the minor, and specifically whether an adversary proceeding is required prior to or after the commitment.  The petitioner in the case challenged the traditional presumption of parental beneficence along with the role of the admitting physician as a “neutral fact finder” as being insufficient to protect minors.  Burger, writing for the majority, turned back the challenge.  He wrote:  “Due process has never been thought to require that the neutral and detached trier of fact be law-trained or a judicial or administrative hearing officer. . . .  Surely, this is the case as to medical decisions, for neither judges nor administrative officers are better qualified than psychiatrists to render psychiatric judgments.”  And he noted: “One factor that must be considered is the utilization of the time of psychiatrists, psychologists and other behavioral specialists in preparing for and participating in hearings rather than performing the task for which their special training has fitted them.”  The decision has been criticized by advocates for children’s rights who point to abuses in the treatment of minors.  But a barrier to hospitalization is not a panacea for those abuses.

Bazelon was for years on the couch in psychoanalysis (which he acknowledged), and he studied (and misapplied) psychiatric literature.  That was especially evident in his opinion in Miller v. United States, where he abandoned the common assumption about flight from the scene of a crime as being indicative of a consciousness of guilt.  Instead he took the contrary position, and he said, the jury should be advised that flight does not indicate consciousness of guilt.  Bazelon quoted at length from Freud’s article “Psychoanalysis and the Ascertainment of Truth in Courts of Law” not to be “led astray by a neurotic who, although he is innocent, reacts as though he were guilty, because a lurking sense of guilt that already exists in him seizes upon the accusation made in the particular instance.”  Bazelon emphasized that trial courts should explain to juries “that flight does not necessarily reflect feelings of guilt, and that feelings of guilt, which are present in many innocent people do not necessarily reflect actual guilt.

Once again Burger, then on the Court of Appeals, took issue with Bazelon. While recognizing that flight is relevant evidence, he disagreed with giving the instruction fashioned by Bazelon and, indeed, of giving any instruction.  He worried that it would only confuse the jury.  In a dissenting opinion, he wrote: “Fact issues and the reasonable inferences from accepted fact are for juries - - not judges - - in criminal trials, and if we trust the jury system we do not need to attempt to guide every detail of jury deliberations left alone with a minimum of basic instructions juries can infuse the law with a sense of reality and can temper judicial technicality with the leaven of the common experience and community conscience.  We should not attempt to limit the scope of jury deliberations by telling jurors to ignore their own experience and common sense, and in a case like the one before us, denigrate other evidence in the case which plainly suggests that flight was indeed indicative of guilt.”

There is a disconnect.  For the most part, mental health professionals would support Burger’s opinions on insanity and criminal responsibility, as well as other opinions in the law-psychiatric intermix, but they acclaim Bazelon.  They have not once honored Burger.  

The author is Professor of Law and Psychiatry at Wayne State University School of Law.  He is the author of the two-volume Psychiatry in Law/Law in Psychiatry (New York: Brunner-Routledge, 2002).