In 1949 C.S. Lewis predicted in The Humanitarian Theory of Punishment that replacing punishment with “treatment” (and “just desert” with “cure”) could ultimately be worse for the liberty of those involved. That by separating mercy from justice, limitless deprivations of liberty could result at the hands of experts who “for the good” of their “victims” – would subjugate them “without end” having the “approval of their own conscience.” In 1983 the US Supreme Court separated the limits of compulsory treatment from the limits of justice by holding persons found not guilty by reason of insanity could be confined longer than the maximum prison sentence they would have receive if convicted. Similarly, civil confinement or coerced treatment outside of forensic settings may continue without end, requiring only the opinions of hired experts, who determine the person is no longer mentally ill or dangerous. This workshop seeks to explore the relationship between justice and legal justifications for civil deprivations of liberty at both the front end, i.e., at the initial point of State sanctioned control and intervention, and at the back end, the terminal point, at which the person is released from state control.
State deprivations of liberty take place based on the often-repeated predicate that the person is mentally ill and dangerous. How each is defined has increasingly become a function of the deprivations political purpose and benefit, at the expense of the well-being, autonomy, and liberty of those are subject to the State intervention. This workshop will seek to analyze these terms - mental illness and dangerousness - what they mean in theory, and how they are used in practice in proceedings in which a person’s liberty is at stake with the goal of developing strategies to overcome injustice and promote the restoration of human dignity.
Today a continuum of difference is used to define mental illness, based on the purpose of the user and the deprivation to be affected. Often a psychiatric, DSM, diagnosis is the basis for asserting mental illness. But the more disfavored the population, the more diminished the predicate becomes. It may lose objective meaning (assuming that isn’t already true of DSM diagnoses). Thus, for example, when sex offenders who have completed their sentences are become subject to involuntary civil commitment proceedings, mental illness, is weakened into what is denominated mental abnormality, and the evidence required, often is no longer a full diagnosis, but reduced to traits. Similarly, when those charged with crimes who cannot constitutionally be punished because of incapacity - either at the time of the offense or because the person cannot assist in their own defense – confinement is no longer based on proof beyond a reasonable doubt, and procedural protections afforded to accused defendants are no longer afforded. Instead, the deprivation may be justified by under a lightened standard preponderance of evidence (or even lesser showings or shifting the burden of proof). The right to counsel or to refuse questioning is replaced by recorded progress notes, regularly used to justify taking away the person’s liberty, and inferences for non-cooperation, rather than a right against self-incrimination. Likewise, dangerousness required to justify the confinement has been reduced from physical harm to self or others, to, in function, the psychic harm of those in the community who do not want to be confronted with those neglected by society, its homeless and disenfranchised living on the streets, out of sight out of mind. And the evidence used to establish dangerousness has gradually moved from current behavior to ipse dixit predications of possible harms to others, but experts whose allegiances align with those who employ them, or based on actuarial data incapable of predicting individual behavior of the person whose commitment is sought.
This workshop will explore what can be done to challenge the decline in legal standards used to deprive persons of their liberty. How can principles of justice be used to limit civil deprivations of liberty which claim benevolence but are used for unjust ends of institutional actors. We will consider the legal framework for various “civil” and “civil-criminal contexts” and strategies to challenge the frameworks and standards and the proofs used to deprive persons of their liberty. How to change the narratives used to support deprivations to ones that may support autonomy, liberty and dignity.
After an initial presentation using case examples and possible approaches from actual practice; the workshop will invite participants to share ideas about possible strategies to advocate on behalf of persons in the above circumstances. Among the areas we will cover are:
1. A basic understanding of the legal standards used to establish mental illness and dangerousness
2. The standards for challenging expert testimony and evidence – e.g., hearsay, scientific unreliability etc.
3. How to overcome the unfairness of proceedings, e.g. the imbalance in expert witnesses; importing more protective standards.
4. Challenging the failures of custodians to provide meaningful treatment that comports with the goals of the persons whose liberty they have taken.
III. Legal and Advocacy Strategies
IV. Learning Goals: