[This is an evolving dialogue and was updated 11/19/10; please see the latest exchange below.]
In his recent article, Rape, Psychiatry, and Constitutional Rights- - Hard Cases Make For Very Bad Law, Dr Allen Frances pleads for the United States Supreme Court to “step up to the plate” and halt the “disturbing misuse” of the “makeshift” psychiatric diagnosis of Paraphilia NOS (nonconsent). No mincer of words, Dr Frances writes that it has led to “huge confusion,” “very questionable practice” and a host of other bad things amounting to a “transparent abuse of psychiatric diagnosis that greases a (perilously slippery slope) loss of constitutional freedoms.”
The trouble with Dr Frances’ point, whether one agrees or not with his dire assessment, is that he is looking at the wrong place for the rescue. It is not the role of the Supreme Court to fix such matters and it is a disservice to readers of Psychiatric Times—and perhaps to the Court—to be made to believe that it is.
As it happens, the Court in June of 2010 had already rejected review of the case that Dr Frances was holding out in his September article as an opportunity (a “promising new wrinkle”) for it to remedy this “sad” state of affairs; without an opinion, it denied certiorari in McGee v. Bartow. So in one sense the matter can be said to be “moot,” to use a lawyerly term. Nevertheless, I believe it is instructive to write very briefly in this forum why the Court’s refusal to rise to the bait was entirely predictable.
Organized psychiatry is on record as not favoring the SVP laws, seeing them as an abuse of psychiatry, just as Dr Frances views legal use of the Paraphilia (NOS) diagnosis specifically. But the Court has already found the SVP laws to pass constitutional muster. And in rejecting review of the McGee case the Justices have indicated they are no more inclined to follow Dr Frances’ prescriptions on this sub-issue. The fact of the matter is that psychiatric conceptualizations have long been open to political and legal (forensic) influence. And forensic psychiatrists have long been susceptible to being diverted from psychiatric purity in the quest to serve the law (or the lawyer who pays their bill). If that is considered a problem by psychiatry, it is up to psychiatry to try to come up with the remedy. It should not look to the law or the courts, let alone the United States Supreme Court, to do the profession’s dirty work (if it is that).
[Response from Dr Frances]
Thank you for your comments. Please elaborate on several questions.
Wouldn't it be possible (and desirable) for the Court to rule more specifically on what the specific qualifying mental disorders are that should allow for involuntary commitment after a prison sentence has been served? The state statutes are impossibly vague and impossible to operationalize. Is it not of due process concern that rape by itself and antisocial personality disorder can be used to justify what is likely to be lifelong psychiatric incarceration? When the term "mental disorder" is so loosely defined, it becomes indistinguishable from common criminality, and psychiatric incarceration seems a form of double jeopardy and preventive detention.
Shouldn't this be a problem for both psychiatry and the law? What am I missing?"
[Attorney Brakel Responds]
Dr Frances asks, as have several others whose comments appear below, whether it would not be possible or desirable for the Court to fix what he feels needs fixing in regard to forensic use of the Paraphilia [NOS] diagnosis. The answer is that it is possibly desirable from a social policy perspective, but definitely not appropriate from a legal/constitutional one. That is to say, the argument is not about the wisdom/desirability/propriety/what-have-you of a given law and its application, but about the limits of adjudicative authority--constitutional adjudication in particular.
There are at least 5 basic jurisprudential principles for the Court's not intervening in this matter (as it didn't).
1. Deference to the right of states to make and live by their own laws (federalism)
2. Deference to legislative judgment (separation of powers)
3. Deference to the workings of another discipline (professional judgment)
4. Deference to the limits of constitutional authority (constitutionalism)
5. To the extent each of these limits was invoked in the Court's earlier primary ruling in this area--the case of Kansas v. Hendricks, in which it sustained the constitutionality of the Sexually Violent Predator (SVP) laws at stake here--deference to its own prior judgment (precedent).
As to the first 2-- federalism and separation of powers--the jurisprudence of the Supreme Court is rife with language supporting these principles, in the field of mental health as often as any. Expression of these principles is often merged, as in Hendricks, where the Court in sustaining Kansas'definition of the targeted disorder said, "[W]e have traditionally left to legislators the task of defining terms of a medical nature that have legal significance. As a consequence, the States have, over the years, developed numerous specialized terms to define mental health concepts."
This is not the sort of language that invites application to the Court to step up or in, especially when what Dr Frances wants done lies in the medical domain. After all, Paraphila [NOS] is not the language in which the law or lawyers speak, unless they are borrowing from psychiatry. And when they borrow, law and lawyers have little choice but to borrow whole hog. This is the professional judgment principle, a concept indicating anything from the doctrine that courts will employ only a low level of scrutiny when reviewing the workings of professionals and a corresponding reluctance to intervene in these workings to the convenient inclination on the part of many individual judges to pass the buck in areas with which they are not familiar.
The law may have invited psychiatry into its domain but when/if there are problems within psychiatry, as Dr Frances avers, it is up to psychiatry to fix it, to get its house in order. When in the Hendricks case the Court confronted the question whether the petitioner's condition "really" was a mental disorder, on par with traditional conceptions of that term, it pointed out that "[t]he mental health professionals who evaluated Hendricks diagnosed him as suffering from pedophilia, a condition the profession itself classifies as a mental disorder." Had the diagnosis been Paraphilia, the answer would have been no different.
Dr Frances wants to get around this answer by showing Paraphilia [NOS], specifically, to be a diagnosis controversial within psychiatry--or, as the issue was framed at one point, "patently lacking in credibility or validity, empty of scientific pedigree and near universal in its rejection by mental health professionals." But this is a tough case to make given the diagnosis' presence in the DSM-IV. If the point is that the DSM writers put in a "makeshift" diagnosis, for whatever ulterior reason (medical consistency? political compromise?), but "really" did not intend for it to be applied to rape-related behaviors, one may be led to question the wisdom or fortitude of the medical writers. But the wisdom of the law, or the gumption of the Court?
As to wholesale rejection of the diagnosis by the psychiatric profession, Dr Frances himself acknowledges that a "sizable segment of the community of those who evaluate" sex offenders appears to use it and believe in its validity. Dr Frances will argue that this sizable segment has been "mistrained," or that the academics who side with them are misguided or misinformed. But, as before, if there is forensic betrayal or academic myopia on the matter, that is psychiatry's problem. It is not, and one cannot make it, the law's.
Lastly, the Supreme Court's constraints as a constitutional court--constitutionalism doomed any chances of the Court's acting on Dr Frances' wishes. At stake in the McGee case was a Wisconsin statute, not a federal one. So it would not have been a matter of the Court's giving that statute a reasonable interpretation or prevailing practices in the lower courts a pass. Instead the Court was asked to find the Wisconsin formulation and reliance thereon unconstitutional, meaning it would have had to find a violation of due process. The burden of proof on a party alleging a violation of due process is a heavy one, especially substantive due process, which would have been implicated here. Several of the more conservative justices on the Court don't even buy the concept of substantive due process, calling it an oxymoron, an excuse for activist judges to throw out laws they don't like or consider unwise. Or as Justice Scalia has said, "a law may be stupid but that doesn't make it unconstitutional."
But even a more middle-of-the-road conceptualization of due process contemplates a hard row to hoe for the party petitioning to have the Court find its violation. In the Court's due process decisions, admonishments crop up with regularity that the statute or procedure in question must "offend some principle of justice so rooted in the traditions and conscience of our people as to be ranked as fundamental," before it will be invalidated. At other times, in other contexts, the Court has said the law or practice must "shock the conscience" before it will be thrown out as unconstitutional under the due process clause.
In relation to the matter of SVP legislation in particular, Dr Frances and his sources may have drawn some encouragement from Justice Kennedy's concurring opinion in the Hendricks case. Affirming the notion that commitment laws may not become a "mechanism for retribution or general deterrence" (ie, punishment), Justice Kennedy seemed to suggest that statutory language that is grossly imprecise, medically or legally, might prove pretext and cross constitutional lines. But he was speaking of the (makeshift?) category of "mental abnormality" in the SVP statute, not a DSM-contained diagnosis. The idea that the United Stated Supreme Court would get itself into the business or rewriting the DSM, as it were, stretches credulity.
[Dr Frances Responds]
Thank you for your wonderfully clarifying comments. We agree completely on 2 issues:
1. It would be highly desirable if the mental health professions could reach a reasonable consensus on what the qualifying SVP mental disorders are.
2. There are many reasons for the Supreme Court to feel constrained in its powers and also delighted not to have to exercise them on this thorny question.
But let's suppose that:
o The mental health professions eventually fail to reach agreement.
o Some (misinformed) clinicians remain comfortable with the notions that antisocial personality and/or some vaguely defined Paraphilia NOS are qualifying diagnoses.
o These labels were included in DSM-IV only to satisfy its clinical mission and represent no endorsement of this (mis)use in legal settings.
o Antisocial personality is present in perhaps two-thirds of criminals--so common in fact that it is really indistinguishable from common criminality.
o Some evaluators treat the crime of rape as per se indication that the offender has the undefined "mental disorder," Paraphilia NOS--so that all rapists might possibly qualify.
These suppositions bring us to the point I was inartfully trying to raise and that you brought up toward the end of your comments. Casting his deciding Hendricks vote, Justice Kennedy specifically warned against using the SVP statutes as a "mechanism for retribution or general deterrence." Is it not general deterrence when the statutes are used to psychiatrically imprison individuals whose behavior is indistinguishable from common criminality? Does this not constitute a due process civil rights violation sufficient to "shock the conscience" and "offend some principle of justice so rooted in the traditions and conscience of our people as to be ranked as fundamental."?
I recognize the legitimacy of your arguments re federalism, separation of powers, professional judgment constitutionality, and precedent. But are you sure this is not a situation that does indeed "shock the conscience"? Does it not violate fundamental civil rights and set a dangerous slippery-slope precedent for the future unconstitutional misuse of psychiatry for less well intended legal or political ends? If psychiatry has done a poor job of defining mental disorders for this unanticipated forensic purpose, does this really take the Supreme Court off the hook in its role of protecting individual liberties?
It seems to me we are dealing not with a parochial psychiatric problem, but with a basic and trumping legal principle. When it suits, the Court often seems able to break the constraints you eloquently detail. I wish it would choose to do so in this case as well. Of course, I am not a lawyer and what seems obvious common sense may not make legal sense or may be more than the Court wants to take on its plate.
Again, thank you for the legal education.
[Attorney Brakel's responds]
I appreciate Dr Frances’ last response and his evident passion, but I’m afraid I still can’t go along with him. It’s not for me to join the debate within psychiatry about the Paraphilia [NOS] diagnosis, other than to note its inclusion in the DSM and the fact that there appears to be at least a respectable and for all I know respected minority of opinion within the profession that is contrary to Dr Frances’ views on the matter. Beyond that, I think Dr Frances wants to fight a legal battle on the sub-issue of Paraphilia that has already been resolved conclusively by the Court—-not in his favor--on the larger issue of the constitutionality of the SVP laws.
[Dr Frances continues...]
Do you have any thoughts in regard to today's New York Times article ("Justices Are Long on Words but Short on Guidance")? It presents numerous criticisms of the Supreme Court for its deliberate avoidance of clear language and its provision of "limited and ambiguous guidance." The Court is described as "almost aggressively unhelpful to judges and lawyers." Apparently, this has become its standard operating procedure, not restricted to SVP cases. Even Justice Scalia "blasted his colleagues for issuing 'opaque opinions'."
What do you think? Doesn't this suggest that the SVP mess is not just a parochial problem for psychiatry, but also reflects the Supreme Court's unwillingness to step up to the plate and do its job?
Sorry, but I don’t think even the New York Times can help make Dr Frances’ case. The alleged complexity and opaqueness of the current Supreme Court’s opinions is first of all very much in the eye of the beholder (Justice Scalia’s one-time agreement notwithstanding). If you think length, complexity and potential for conflict and confusion in Supreme Court opinion writing are anything new, one need only look at a landmark case such as Miranda v. Arizona (1966) of a generation or two ago and any dozen similarly “opaque” decisions of the past 40 years I could name. Second, and more relevant, the primary case at stake in our context, Hendricks, is if anything remarkably short and direct, even with Justice Kennedy’s false-hope-giving concurrence.