"...as long as a person remains unentangled in the state's psychiatric control system and is not directly exposed to its actual functioning, he is unlikely to appreciate its threat to basic human rights." Psychiatry professor Thomas Szasz, M.D., in his book Suicide Prohibition—The Shame of Medicine (Syracuse University Press 2011, p. 15)
"Over the years I have broadened my criticism of institutional psychiatry as a form of political totalitarianism—the use of state power to control the individual. Seldom will the liberty and integrity of the individual be subjected to greater threat than when he comes under the scrutiny of psychiatric authorities. In the Western World today, psychiatry remains the greatest threat to the civil liberties and the mental integrity of individual citizens." Psychiatrist Peter R. Breggin, M.D., "Coercion of Voluntary Patients in an Open Hospital", Archives of General Psychiatry 10 (1964):173-181 (1982 note), available at breggin.com)
"The factors most closely related to the occurrence of violent behavior appear to be past violence, age, sex, race, socioeconomic status, and opiate or alcohol abuse. Estimated IQ, residential mobility, and marital status also are related to violent behavior. Mental illness, however, does not appear to be related to violence in the absence of a history of violent behavior. ... Mental patients who do not have a record of violent arrests are, if anything, less violent than the general population." John Monahan, Ph.D., professor of law and psychology and legal medicine at the University of Virginia, recognized by many as the world's leading scholar on the prediction of future behavior, and expert witness or consultant in many legal cases, including United States v. John Hinckley, Jr., in his book The Clinical Prediction of Violent Behavior (Jason Aronson, Inc. 1995), pp. 89-90.
According to Lockhart, Kamisar & Choper's textbook, Constitutional Law, substantive due process guaranteed by the U.S. Constitution is "a limitation of the substance of legislative action by the state and federal governments" (West Pub. Co. 1970, p. 454, emphasis added). A majority opinion of the U.S. Supreme Court in 1887 written by Justice Harlan said this:
Under our system that power is lodged with the legislative branch of the government. It belongs to that department to exert what are known as the police powers of the state, and to determine, primarily, what measures are appropriate or needful for the protection of the public morals, the public health, or the public safety. ... [But] It does not at all follow that every statute enacted ostensibly for the promotion of these ends is to be accepted as a legitimate exertion of the police powers of the state. There are, of necessity, limits beyond which legislation cannot rightfully go. While every possible presumption is to be indulged in favor of a statute, the courts must obey the constitution rather than the law-making department of government, and must, upon their own responsibility, determine whether, in any particular case, these limits have been passed. ... The courts...are under a solemn duty, to look at the substance of things, whenever they enter upon the inquiry whether the legislature has transcended the limits of its authority. If therefore, a statute purporting to have been enacted to protect the public health, the public morals, or the public safety, has no real or substantial relation to those objects, or is a palpable invasion of rights secured by the fundamental law [the constitution], it is the duty of the courts to so adjudge, and thereby to give effect to the constitution." [Mugler v. Kansas, 123 U.S. 623 at 661]
I document the invalidity of the concept of mental illness, disease, disorder, or syndrome in my essays Does Mental Illness Exist?, Schizophrenia: A Nonexistent Disease, The Myth of Biological Depression, The Myth of Psychiatric Diagnosis, and Why the Myth of Mental Illness Lives On. In this essay I will expose as myth the belief it is possible to accurately predict (and therefore possibly prevent) future violent acts, and I will present an argument for establishing rule of law in America (and in every nation of the World). The myth that future human behavior can be predicted with sufficient accuracy to justify incarceration or other discrimination is the basis of laws in all 50 states of the U.S.A., the U.S.A.'s federal Adam Walsh Act, and similar laws in other countries.
We'll first consider laws authorizing involuntary commitment of or other discrimination against people who supposedly have mental illness: If there is no such entity as mental illness, that is, if mental illness is a myth, can laws authorizing incarcerating people, or treating them differently in any way, not because they have performed unlawful acts but only because they have "mental illness" be constitutional? Suppose that instead of believing in mental illness, people today believed in evil spirit possession and attributed thinking or behavior they dislike to possession by evil spirits. Suppose some or all of the states of the U.S.A. enacted laws authorizing the incarceration of (or other discrimination against) people who are possessed by evil spirits (instead of people who supposedly are possessed by mental illnesses). Would this be a proper and constitutional exercise of legislative power? Evil spirit possession exists only in the imaginations of people who believe in evil spirits. Mental illness also exists only in the imaginations of people who believe in mental illness, even if they are the vast majority of people alive today. In the words of neurologist John Friedberg, M.D.—
The brain can have a disease and it can be proved by testing. The mind cannot have a disease in anything but a metaphorical sense. "Schizophrenia, bipolar disorder, inadequate personality" and all the other nonsense syllables in the psychiatric lexicon exist only in the minds of believers. [http://www.idiom.com/~drjohn/ect.html, accessed July 9, 2012]
Civil commitment for mental illness of law-abiding people today is in this way similar to the Salem, Massachusetts witch trials of the 1690s: Witches and witchcraft, like mental illness today, were accepted by almost everyone as fact. Nevertheless, they existed only in the minds of believers. But ideas have consequences, and a consequence of belief in witchcraft was the trial and execution of supposed witches. Today a consequence of belief in mental illness is the imprisonment (involuntary "hospitalization") and involuntary "treatment" of people innocent of lawbreaking in prisons disguised as hospitals, and court orders compelling them to ingest or authorizing others to inject their bodies with neurotoxins and cytotoxins called "medication". This is done not only to those incarcerated in "hospitals" but to people who are living in their own homes, which is called outpatient commitment or conditional discharge. ("Conditional discharge" in almost every case is when a person is permitted to leave a psychiatric "hospital" where he was involuntarily held on the condition that he take neurotoxic, cytotoxic "medication" after leaving the "hospital".)
The witches of Salem in the 1690s got more in the way of procedural due process than people accused of mental illness today: According to University of Georgia research professor of history Peter Charles Hoffer in his book The Salem Witchcraft Trials—A Legal History (Univ. Press of Kansas 1997, p. 87), persons accused of witchcraft were indicted by grand juries and tried by trial juries, and "The verdict had to be unanimous". My state-by-state tabulation found trial by jury in civil commitment for supposed mental illness is not available to 46.8% of the U.S. population. Even where the right to trial by jury in civil commitment exists, counterproductive legal guidance and representation by lawyers assure this right is rarely exercised. Most involuntary psychiatric commitments in the U.S.A. are rubber stamped by judges who make no attempt to form their own opinion of the facts in any particular case but instead grant all requests for involuntary "hospitalization" or forced "medication" or other treatment they receive, deferring to the supposed expertise of the psychiatrist or psychologist making the request. Trial by jury is also unavailable to persons accused of mental illness and threatened with involuntary "hospitalization" or other involuntary psychiatric "treatment" in many countries of the world.
Today laws in all states of the United States permit involuntary civil commitment of people for mental illness without requiring a showing the person has ever committed an illegal act. Using "mental illness" as the justification for incarceration (or other discrimination) is as illogical and unjustified as explaining behavior we dislike and don't understand as the product of evil spirit possession and having commitment laws for (or other discrimination against) people who are possessed by evil spirits.
Warren Burger, then a judge on the U.S. Court of Appeals for the District of Columbia Circuit, and later Chief Justice of the U.S. Supreme Court, said this in a concurring opinion in Blocker v. United States, 288 F.2d 853 (1961):
As I see it, our...opinion...tends to treat unsupported and dubious psychiatric theory as scientific knowledge. ... We know also that psychiatrists are in disagreement on what is a "mental disease," and even whether there exists such a definable and classifiable condition. So distinguished an authority as Dr. Philip Q. Roche, author of The Criminal Mind, which received the Isaac Ray Award from the American Psychiatric Association, said as recently as 1958: "I will say there is neither such a thing as "insanity" nor such a thing as "mental disease." These terms do not identify entities having separate existence in themselves. ... The idea that mental illness causes one to commit a crime or that it produces a crime has an unmistakable lineage from demonology."
According to Willie Sutton in his autobiography Where the Money Was (Viking 1976, pp. 174-175), Philip Q. Roche, M.D., "was one of the leading psychiatrists in Philadelphia. He had an extensive private practice, was on a number of hospital staffs, and he also taught at the University of Pennsylvania." Mr. Sutton also says Dr. Roche was "the prison psychiatrist" at Eastern State Penitentiary in Philadelphia where Mr. Sutton was an inmate and worked as Dr. Roche's secretary. As the psychiatrist at a state prison, Dr. Roche probably had ample opportunity to learn first-hand about the validity, or not, of the belief people commit crimes because of "mental illness" or "insanity" and, even before the publication of Dr. Thomas Szasz's book The Myth of Mental Illness in 1961, reached a similar conclusion.
Judge Berger concluded:
...no rule of law can possibly be sound or workable which is dependent upon the terms of another discipline [psychiatry] whose members are in profound disagreement about what those terms mean... These factors, I think, demonstrate that a term such as "disease" [in the context he means mental disease] which has no fixed, agreed or accepted definition in the discipline which is called upon to supply expert testimony and which, as we have seen is literally "subject to change without notice" is a tenuous and indeed dangerously vague term to be a critical part of a rule of law... [underline added]
In 1963 Dr. Szasz said "Inasmuch as there is no clear or generally accepted criteria of mental illness, looking for evidence of such illness is like searching for evidence of heresy: once the investigator gets into the proper frame of mind, anything may seem to him to be a symptom of mental illness" (Thomas S. Szasz, M.D., Law, Liberty, and Psychiatry, Collier Books 1963, p. 225). Because of the vagueness of the concept of mental illness, involuntary commitment for mental illness cannot meet the void for vagueness test of Papachristou v. City of Jacksonville, 405 U.S. 156 (1972, see Why the Myth of Mental Illness Lives On).
Contrary to the almost universal belief that mental illness is a valid concept, there actually is, and can be, no mental illness. Therefore, laws that use "mental illness" as justification for incarceration, court-ordered outpatient drugging, or statutory discrimination, are violations of substantive due process.
Under criminal law, it must be proved that the accused did something illegal. A person may not be deprived of liberty under criminal law for merely having a tendency to do something illegal.
Suppose a state legislature enacted a law that allowed people to be imprisoned not for murder, but for "murderousness" (analogous with "dangerousness"). "Murderousness", we will assume, is defined by the statute as having a likelihood of committing murder, although the defendant admittedly has never committed a murder. It would be far easier to convict defendants of murderousness than murder, since to convict a person of murderousness the judge or jury would have to conclude only that the defendant might commit a murder in the future.
Current law has done something similar in involuntary "civil" psychiatric commitment: The defendant, or "proposed patient", is not deprived of liberty for having done anything wrong in the past but for "dangerousness", which is a prediction of future behavior. Incarcerating a person for "dangerousness" is as wrong as incarcerating someone for "murderousness". Under these laws, a person is involuntarily "hospitalized", essentially imprisoned, because it is believed he might do something violent or "dangerous" in the future. An example is New Hampshire RSA (Revised Statutes Annotated) 135-C:34:
Involuntary Treatment Standard
The standard to be used by a court, physician, or psychiatrist in determining whether a person should be admitted to a receiving facility for treatment on an involuntary basis shall be whether the person is in such mental condition as a result of mental illness as to create a potentially serious likelihood of danger to himself or to others.
Often the alleged "dangerousness" is a prediction the defendant or "proposed patient" will, or is likely to, commit suicide. According to Earl A. Grollman in his book Suicide (Beacon Press 1971, p. 5), "Almost everybody at one time or another contemplates suicide. ... Dr. Joost Meerloo, author of Suicide and Mass Suicide, declared, 'Eighty percent of people admit to having 'played' with suicidal ideas.'" But only about 1 in 100 people actually commit suicide. According to Wikipedia ("Suicide", accessed June 19, 2013), "Approximately 0.5% to 1.4% of people die by suicide." A Mayo Clinic study found the suicide rate for the general population is 1 percent, for outpatients treated for depression 2 percent, and for those who are "at the highest risk level" namely, those "hospitalized for suicide after a suicide attempt or with suicidal thoughts", 8.6 percent ("Suicide Rates Overstated in People with Depression", updated February 7, 2013).
According to an article in the March 10, 2017 Newsweek magazine, "a new study concludes that the science of suicide prediction is dismal, and the established warning signs about as accurate as tea leaves." In this study, the researchers found that "no single risk factor had clinical significance in predicting suicidal ideation, attempts, or completion." A prior suicide attempt is probably the strongest indication a person will eventually die by suicide. However in this study it was found that—
In a given year, 13 in every 100,000 Americans will die by suicide. Even if those who attempt suicide are twice as likely as others to die by suicide, their probability is still only 23 in 100,000. So if I guessed you were going to die by suicide this year based on a prior attempt, I'd still be wrong more than 99.9 percent of the time. "Knowing that someone has made a prior attempt is helpful in the same way that buying two lottery tickets is helpful," says Joseph Franklin, a psychologist at Florida State University (FSU) and the lead author of the paper. The odds are improved, but you wouldn't bet your house — or a costly intervention — on it."
The article says "Clinicians tend to be most interested in predicting suicidal thoughts and behaviors in the short term — say, within a week — but there's no research addressing that question." The researchers found that "some of the most popular factors to study, including mood disorders, substance abuse and demographics — are some of the weakest predictors." The article quotes Jessica Ribeiro, another psychologist at Florida State University and a co-author if the study, saying "Clinical predictions are really bad."
Despite the over 90% probability that people "hospitalized for suicide after a suicide attempt or with suicidal thoughts" will never actually commit suicide, even in the distant future, and despite the less than 1% probability a professional prediction of suicide in the near future is correct, and despite the fact that suicide should be respected as a human right, and despite the (in the U.S.A.) First Amendment right to freedom of thought that should apply to "suicidal ideation" as well as all other ideation, and despite the fact that involuntary psychiatric "treatment" makes a person more rather than less likely to commit suicide (as I document or argue in Suicide: A Civil Right), admitting to "suicidal ideation" (that is, what could be called thought crime) often results in involuntary civil commitment to a mental hospital. There, a person is not only essentially imprisoned and deprived of his supposedly unalienable right to liberty and his pursuit of happiness (by working towards whatever goals he felt important), but is also routinely subjected to psychiatric assault in the form of "involuntary medication", torture from the effects of psychiatric drugs, often involuntary electroconvulsive brain damaging (called electroconvulsive "therapy"), and four or five point physical restraints, which is a form of "noninjurious torture", which people confined to mental hospitals seeking my advice as a lawyer tell me is done to them frequently and for trivial reasons.
When laws deprive people of liberty, or otherwise discriminate against them, because of predicted future behavior such as for "dangerousness", they place these people and the lawyers representing them in the impossible position of trying to prove they are not going to do something "dangerous" tomorrow, next week, next month, or next year. No matter how harmless a person may be, it is impossible to prove he is not going to do something in the future unless he is totally and permanently paralyzed from the neck down, or for some other reason it is physically impossible.
Why is "professional" opinion of a psychiatrist that someone is likely to be "dangerous" in the future is accepted as credible? Without any scientific or empirical basis for the belief, members of Congress, state legislators, the president of the United States, governors, judges, and jurors accept the idea that "professionals" in mental "health" can predict a person's future behavior. This is a wholly groundless belief, as mental health professionals themselves sometimes acknowledge. In Barefoot v. Estelle, 463 U.S. 880 at 921, three dissenting U.S. Supreme Court justices said this:
The APA's [American Psychiatric Association's] best estimate is that two out of three predictions of long‑term future violence made by psychiatrists are wrong. ... The APA also concludes, see APA Brief 9‑16, as do researchers that have studied the issue, [Footnote 3/3] that psychiatrists simply have no expertise in predicting long‑term future dangerousness.
Robyn M. Dawes, Ph.D., former professor of psychology and former head of the psychology department at the University of Oregon, and former president of the Oregon Psychological Association, and professor in the Department of Social and Decision Sciences at Carnegie-Mellon University, says this in his book House of Cards—Psychology and Psychotherapy Built on Myth (Free Press 1994, p. viii):
I am angered when I see my former colleagues make bald assertions based on their "years of clinical experience" in settings of crucial importance to other's lives—such as commitment hearings, or in court hearings about custody arrangements, or about suspected child sexual abuse. ... An expert in a court room setting is supposed to be competent to present an opinion with reasonable certainty. But a mental health expert who expresses a confident opinion about the probable future behavior of a single individual (for example, to engage in violent acts) is by definition incompetent, because the research has demonstrated that neither a mental health expert nor anyone else can make such a prediction with accuracy sufficient to warrant much confidence.
In an article published August 3, 2012, psychiatrist Allen Frances, M.D., chairperson of the Task Force that created two editions of the American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders, DSM-IV (1994) and DSM-IV-TR (2000), says this:
Psychiatry has no way to predict mass murder and no way to prevent it. Many mass murders never see a mental health worker before going ballistic. Even those who do are as impossible to identify as needles in a large haystack. Violent thoughts are not uncommon among psychiatric patients, but vanishingly few will ever act on them. Future mass murders are far too rare to be selected out of the crowd before the deed is done. Psychiatry ... strikes out in predicting or preventing violence. ["Mass Murder Psychobabble Misses Gun Policy Point", HuffingtonPost.com, accessed December 20, 2014]
In his book Psychiatric Drugs: Hazards to the Brain (Springer Publishing 1983, p. 267. psychiatrist Peter Breggin says "there is a growing awareness in legal circles that psychiatrists are not able to predict dangerousness."
In a Psychology Today magazine article, Harvard Law School professor Alan M. Dershowitz says—
...our research suggests that for every correct psychiatric prediction of violence, there are numerous erroneous predictions. ["The Psychiatrist's Power in Civil Commitment: A Knife that Cuts Both Ways", Psychology Today, February 1969, p. 43 at 47]
Herbert Silverberg, Director of the Patients Advocacy Project of the Public Defender Service at St. Elizabeth's Hospital, a psychiatric hospital in Washington, D.C., says—
Prediction of dangerousness is virtually impossible for psychiatrists ... what few studies there are seem to demonstrate the virtual inevitability of false-positive predictions. ["The Civil Commitment Process: Basic Considerations", in Legal Rights of the Mentally Handicapped, Practicing Law Institute 1973, p. 103 at pp. 105-106)]
A study of "risk assessment instruments to predict violence and antisocial behavior in 73 samples involving 24,827 people" published in the British Journal of Psychiatry in 2012 found that—
...risk assessment tools produce high rates of false positives (individuals wrongly identified as being at high risk of repeat offending) ... Our review would suggest that risk assessment tools, in their current form, can only be used to roughly classify individuals at the group level, not to safely determine criminal prognosis in an individual case." [quoted in "Concerns over accuracy of tools to predict risk of repeat offending", medicalxpress.com, accessed June 28, 2013)
A study by the Columbia Center for Occupational & Forensic Psychiatry found that—
Psychiatrists cannot predict when or if a patient will actually commit suicide or homicide. Psychiatrists cannot predict future harmful acts." [columbiaforensic.com/violence.html, accessed December 20, 2014]
A study titled "Can Violence Be Predicted?" appearing in the journal Crime & Delinquency in 1972 by researchers from the California State Department of Corrections and the University of Utah found that "for every correct identification of a potentially aggressive individual, there were 326 incorrect ones" (cited in John Monahan, The Clinical Prediction of Violent Behavior, Jason Aronson, Inc. 1995, p. 68).
After a U.S. Army psychiatrist, Major Nidal Malik Hasan, on November 5, 2009 shot and killed 13 people and injured at least 30, targeting fellow soldiers in uniform, at Fort Hood, a U.S. Army base near Kileen, Texas, the U.S. Department of Defense chartered a Defense Science Board Task Force to investigate ways to predict and prevent similar future occurrences. The Task Force's 104 page final report published in August 2012, titled "Predicting Violent Behavior", under the heading "Overall Conclusions" says "There is no effective formula for predicting violent behavior with any degree of accuracy."
Emergency Room psychiatrist Paul R. Linde, M.D., makes the same point in his book On the Front Line With an ER Psychiatrist (University of California Press 2010, pp. 100-102):
Psychiatrists were now charged with a duty to maintain public safety, a responsibility more consistent with police powers than with medical ones. The task of a psychiatrist, which previously involved evaluating a person's need for treatment, had shifted suddenly to that of establishing "dangerousness criteria" and attempting to predict who might constitute a danger to self or a danger to others. ... At the same time, evolving judicial precedents more or less announced that psychiatrists should be able to foresee "preventable" acts of suicide or violence. It became our job to somehow keep those dangerous people locked up, preventing self-harm and mayhem. I refer to this as the crystal ball standard. ... It's still nearly impossible to predict suicides, assaults, or homicides—legal opinions to the contrary notwithstanding.
Psychiatrists and psychologists can be and sometimes are held liable in court for the acts of their so-called patients whose violent behavior they supposedly could have and should have predicted and prevented but did not. In 2015, a Tampa, Florida psychiatrist told me in every psychiatric evaluation she does, she involuntarily commits the person she is evaluating if she has the "slightest doubt" about the person's future behavior because, she said, if she doesn't and the person later does something violent, "I'm liable." An example of what can happen to a psychiatrist or psychologist who evaluates and fails to commit a prospective patient is illustrated in the case of Mertz v. Temple University Hospital, 25 Pa. D. & C. 4th 541 (1995): "Phyllis Litostansky went to Temple University Hospital's psychiatric emergency room seeking to have her husband Richard Litostansky involuntarily committed. ... However, Dr. Levine chose to discharge Mr. Litostansky. ... 17 days after the examination at Temple, Mr. Litostansky committed suicide by filling his home with natural gas and igniting it", causing injuries to others. Dr. Levine and another physician and the Hospital were found liable for over $5 million for supposedly negligently failing to involuntary commit Mr. Litostansky.
A consequence of holding psychiatrists and psychologists liable for the acts of their so-called patients is these mental health professionals keeping people incarcerated unnecessarily because of fear of liability if someone they release later commits a crime. Mental health professionals are much less likely to be held liable for committing or holding a person unnecessarily. Therefore, committing or refusing to release people is the safe bet for psychiatrists, psychologists, or other evaluators. To protect themselves from legal liability, they predict violence or suicide in vast numbers of people who would not, if permitted to remain at liberty, do anything violent or suicidal. The result is the preventive incarceration of vast numbers of harmless individuals. The conclusion of Henry J. Steadman, Ph.D., acting director, and Joseph J. Cocozza, senior research scientist, at the Mental Health Research Unit of the New York State Department of Mental Hygiene, in 1975 was that "as many as 20 harmless persons are incarcerated for every one who will commit a violent act" ("We Can't Predict Who Is Dangerous", Psychology Today, January 1975, pp. 32 at 35).
Psychiatrists' and psychologists' liability for failing to involuntarily commit people has created an entirely new burden of proof previously unknown in American jurisprudence: As regards future behavior, judged by psychiatrists and psychologists in involuntary "civil" commitment, people are judged not by the beyond a reasonable doubt standard used in criminal cases, nor even the clear and convincing evidence standard approved for civil commitments by the U.S. Supreme Court in Addington v. Texas, 441 U.S. 418 (1979), nor even the preponderance of the evidence standard used in civil lawsuits. Now, people lose their liberty and endure a lifetime of psychiatric stigma because a psychiatrist or other physician or a psychologist had only the slightest doubt about his or her future behavior. We could call it the slightest doubt burden of proof standard.
This has been true for many years but has failed to protect us from violence, even mass-murder. In 2012, psychiatrist Fredric Neuman, M.D., Director of the Anxiety and Phobia Treatment Center in White Plains, New York, concluded: "There are no measures that can be taken to prevent future violent behavior" ("Is It Possible to Predict Violent Behavior?", psychologytoday.com).
A problem with all of this psychiatric testimony about people's future behavior is it is invalid. In his book The Good News About Depression (Bantam Books 1986, p. 34), psychiatrist Mark S. Gold, M.D., criticizes the courts because they—
...continue to listen [to psychiatric testimony even] as evidence piles up against psychiatric fortune-telling. A study published in 1984 suggests that nobody even knows what "dangerous" means. Psychiatrists and nonpsychiatrists were asked to rate sixteen criminals for dangerousness. Hardly any of the 193 raters agreed with each other; only on four of the cases was there as much as 60 percent agreement. Psychiatrists reached no higher level of agreement than anyone else. ... Ironically, despite its poor performance as an expert witness, the courts won't let psychiatry step down. The American Psychiatric Association in 1984 declared that psychiatry did not belong in the courtroom. Despite attacks on the legitimacy of psychiatric testimony in several court decisions, the Supreme Court has determined that psychiatrists can and should testify, even if their opinions are hypothetical...
In his book Prisoners of Psychiatry, attorney Bruce Ennis says "Some psychiatrists believe that a person is 'dangerous to himself' if he eats too much (or too little), or smokes cigarettes. Others limit the label to persons who have attempted suicide" (Harcourt Brace Jovanovich 1972).
In the above-cited Psychology Today magazine article in 1975, two researchers said this:
One would assume that with its widespread use [in state commitment statutes], the meaning of "dangerousness" would be clear and specific. Not so, unfortunately: There are almost as many opinions on what constitutes dangerous behavior as there are psychiatrists and judges pondering the problem. [Henry J. Steadman, Ph.D., & Joseph J. Cocozza, "We Can't Predict Who Is Dangerous", Psychology Today, January 1975, p. 32 at 33.]
Writing checks without sufficient funds in one's bank account was ruled dangerousness to oneself and to society sufficient to justify involuntary psychiatric commitment by a U.S. Court of Appeals in the case of Overholser v. Russell, 283 F2d 195 (D.C. Cir 1960). The Court of Appeals said "We think the danger to the public need not be possible physical violence or a crime of violence. It is enough if there is competent evidence that he may commit any criminal act, for any such act will injure others and will expose the person to arrest, trial and conviction." The Court of Appeals overturned the lower court's finding "that petitioner will not, in the reasonable future, be dangerous to himself or others, that is, write any checks without sufficient funds." Both the lower court and the Court of Appeals acknowledged that "The only testimony adduced as to the possibility of petitioner being dangerous to himself and to others was to the effect that, if released, petitioner might revert to writing a bad check as he had done in the past." This case illustrates that in practical application "dangerousness" can mean almost anything you want it to mean. It also shows that in the case of psychiatric commitment, the burden of proof is almost nothing, i.e., belief the proposed prisoner or involuntary patient "may" or "might" do something "dangerous" is enough.
An excellent discussion of the vagueness of the terms "danger" and "dangerousness" as those terms are used in civil commitment is found in "Notes on Defining the 'Dangerousness' of the Mentally Ill" by Alexander D. Brooks.
The problem of defining what we mean by "dangerous" has never been resolved. Therefore, commitment statutes that make a likelihood of danger or similar words a criteria for incarceration or other loss of rights fall short of the void for vagueness standard stated by the U.S. Supreme Court in Papachristou v. City of Jacksonville, 405 U.S. 156 (1972, quoted in Why the Myth of Mental Illness Lives On) and other cases.
The desire to predict and prevent violence or "dangerousness" is so strong that the difficulty of defining what we mean by "dangerous" and the impossibility of predicting future human behavior doesn't seem to matter. Legislators, governors, judges, jurors, and the public continue to demand mental health professionals do the impossible.
If you think there are other studies showing experts can predict future human behavior accurately, I suggest you do an Internet search for "psychiatrists can predict future behavior" or "psychiatrists can predict violence" and see what appears in your search results. If you read carefully what you find, you will not find even one study proving psychiatrists or anybody else can accurately predict a human being's future violent behavior such as homicide or suicide.
I found a study by Alan Teo, M.D., of the University of Michigan saying "veteran psychiatrists were 70 percent accurate" in predicting which patients on a psychiatric ward would be violent if "yelling" is considered violence: "Incidents of physical aggression" predicted with 70 percent accuracy by veteran psychiatrists "typically included punching, slapping, or throwing objects, as well as yelling, directed at staff members of the hospital" ("Simple tool may help inexperienced psychiatrists better predict violence risk in patients", medicalxpress.com, September 4, 2012). The flaw in this study is almost everybody gets angry enough to throw an object or yell at somebody at times in their lives, so if you wait long enough, your prediction of these sorts of behavior will eventually be correct for almost anyone—especially someone who is being held prisoner and being subjected to violence such as "involuntary medication".
You may find misleading statements such as psychiatrists "can identify a potentially violent patient roughly 70% of the time" (Melissa Healy, "Predicting violent behavior: not guesswork, but far from certain", December 17, 2012, articles.latimes.com). If you read that quickly you might think somebody said psychiatrists can identify about 70% of violent people or a psychiatrist's prediction a particular person will commit a future violent act will be correct about 70% of the time. What makes the quoted statement nonsense is the word "potentially": Everybody, except those seriously physically or mentally disabled, is potentially violent. Also, of course, being right 70% of the time doesn't meet a beyond a reasonable doubt standard nor, probably, a clear and convincing evidence standard.
What your Internet search will show you is predictions of future violent human behavior in the form of homicide, suicide, or inflicting serious bodily injury to oneself or others are usually wrong.
Since psychiatrists and psychologists are thought the best we have regarding prediction of future human behavior, how can incarceration, or involuntary outpatient treatment, or discrimination regarding firearm purchase or anything else, be justified by their predictions? If psychiatrists' predictions about "dangerousness" (future behavior) are wrong two-thirds of the time, as the American Psychiatric Association acknowledges, how can their predictions about who will commit future acts satisfy the constitutional requirement of reliability? Legislators who write laws predicated on the ability of supposed experts (usually psychiatrists or psychologists) to predict future violent human behavior are writing laws based on factually mistaken wishful thinking. Judges who uphold such laws as constitutional are either uninformed or are abdicating their judicial responsibility. When the goal is not punishment for past conduct but prevention of future harm, the often-heard principle in criminal law that it is better for ten guilty persons to go free than for one innocent person to be convicted is reversed. Instead, the attitude seems to be it is better to incarcerate two (or ten) innocent, nondangerous persons than to allow one truly dangerous person to do future harm. Does accurate prediction and prevention of "dangerousness" (usually left undefined as to severity) by one person justify the wrongful detention of two innocent, nondangerous persons? Those who say yes might say "Imagine yourself as the victim of that one truly dangerous person." Those who say no might say "Imagine yourself as one of the two innocent, nondangerous persons needlessly subjected to as much as a lifetime of preventive detention."
Laws permitting deprivation of liberty or loss other rights or which authorize involuntary "treatment" because a person is considered "dangerous" or because supposed experts think there is a "potentially serious likelihood" he will cause injury to himself or others if not incarcerated or forcibly "treated" or otherwise treated differently are unconstitutional deprivations of liberty because they are based on predictions of future behavior that are unavoidably unreliable. They are as unreasonable and unconstitutional as would be laws depriving people of liberty or other rights because of predictions of future behavior by astrologers or palm readers. An article in Boston College Law Review is titled in part "Why Expert Predictions of Future Dangerousness in Capital Cases Are Unconstitutional" (Eugenia T. La Fontaine, "A Dangerous Preoccupation with Future Danger: Why Expert Predictions of Future Dangerousness in Capital Cases Are Unconstitutional", 44 B.C.L.Rev. 2007 (2002). Could unreliable "expert" predictions of future behavior be unconstitutional in capital cases but constitutional other cases?
Nevertheless, every state of the U.S.A. and most if not all countries of the world allow involuntary commitment of law-abiding people who object to being psychiatric patients because of predictions by psychiatrists, or sometimes psychologists, of their future behavior. Sometimes it is "inpatient" commitment or involuntary "hospitalization" (incarceration). Other times it is "outpatient commitment", a court-order requiring a person to take psychiatric drugs on their own or appear at a community mental health center every week or ten days for psychiatric drug injections or supervised oral administration of psychiatric drugs to prevent the supposed patient from hiding the "medication" in his mouth and spitting it out later. Sometimes "assisted outpatient" teams show up at people's houses or apartments to give them injections in their own homes, enforced by threat of involuntary "hospitalization" if they refuse. People are even court-ordered to submit to outpatient electroconvulsive brain-damaging (or "therapy"). American courts often order involuntary electroshock for people confined to mental hospitals. Yes, all this happens in the U.S.A., which ends its pledge of allegiance to the flag of the United States of America with the words, "with freedom and justice for all."
The U.S. federal government and twenty (20) of the fifty (50) states of the U.S.A. now also have involuntary and for practical purposes lifetime "civil commitment" of convicts when they near the end of a prison sentence for a criminal conviction if they are thought likely to commit sex crimes such as rape or sexual child abuse in the future, after release from prison. The U.S.A.'s federal Adam Walsh Act (18 U.S. Code
§4247), signed into law by President George W. Bush in 2006, provides for supposedly civil (non-criminal) commitment of persons who are in the federal prison system for any type of criminal offense—not necessarily a sex offense—if they are "sexually dangerous persons" defined as "a person who has engaged or attempted to engage in sexually violent conduct or child molestation and who is sexually dangerous to others" due to mental illness. The U.S. Supreme Court upheld this law in United States v. Comstock, 560 U.S. 126 (2010). How broadly "sexually dangerous person" is defined is shown by the fact that, in the words of the Supreme Court in Comstock, "Three of the five" defendants being committed under the Adam Walsh Act "had previously pleaded guilty in federal court to possession of child pornography" and had been convicted of no other crimes. Apparently, possession of child pornography is considered "sexually violent conduct or child molestation" warranting what in practical application is a life sentence. According to "The Adam Walsh Act Study Guide" (oncefallen.com/adamwalshact.html, updated February 16, 2012) "in porn cases ... Expert must examine hard drive in computer case to see if images were purposely downloaded or were put there by someone else", as if an expert could really determine that. Computer operating systems typically keep copies of previously viewed images and previously viewed web pages on the hard drive for faster subsequent viewing without any command to do so from the computer user. It also is commonplace for web sites to appear without request, hidden behind a web page you were viewing until you close the program, page, or window you were using and find, to your surprise, somehow a web page or web site you did not request somehow appeared on your computer screen. That web site you did not request might be cached in your web browser's memory and stored on your computer's hard drive or included in the list of web sites you have visited kept by your Internet Service Provider. So with laws like this, clicking on the wrong hyperlink on a web page, perhaps without knowing what you're going to get, or a web site that appeared without your request, or allowing another person to use to your Internet-connected computer, could get you imprisoned (or "hospitalized") for life.
The twenty states of the U.S.A. with "sexually dangerous person" or "sexually violent predator" civil commitment laws are Arizona, California, Florida, Illinois, Iowa, Kansas, Massachusetts, Minnesota, Missouri, Nebraska, New Hampshire, New Jersey, New York, North Dakota, Pennsylvania, Texas, Virginia, South Carolina, Washington, and Wisconsin. In most of these states they are called "Sexually Violent Predator" commitment laws. Obviously, legislators calling these criminals "Sexually Violent Predators" chose the most inflammatory, incendiary language they could think of. Unlike the federal Adam Walsh Act, persons committed under these state laws must have been convicted of a sex-related crime, although states are apparently free to adopt an "any crime" prerequisite similar to the federal Adam Walsh Act or even start committing people as sexually dangerous persons despite the defendant never having committed any crime. This is actually already possible under civil commitment for mental illness laws, because they do not require a criminal conviction as a prerequisite for commitment.
Under the "sexually dangerous person" or "sexually violent predator" laws of these 20 states, convicts who are nearing the end of a sentence for a sex-related conviction may be subjected to a nominally "civil" (not criminal) commitment, which as a practical matter is lifetime incarceration, based on supposed mental illness and prediction that he (or she) is likely to commit another sex related offense if he (or she) is released from prison.
New Hampshire went so far as to enact a civil commitment law for Sexually Violent Predators who do not have mental illness. This is the exact language of New Hampshire's RSA 135-E:1 (effective January 1, 2007): "a small but extremely dangerous number of sexually violent predators exist who do not have a mental disease or defect that renders them appropriate for involuntary treatment" but "have antisocial personality features which are unamenable to existing mental illness treatment modalities, and those features render them likely to engage in criminal, sexual violent behavior." The statute authorized their for practical purposes lifetime incarceration. An amendment effective July 13, 2010 deleted the language stating that persons committed under the law "do not have mental disease or defect", probably to prevent the law from being declared unconstitutional, since the U.S. Supreme Court has upheld civil commitment laws, including of sexually violent predators or sexually dangerous persons, only if such persons have "mental illness".
I saw an article in which a state legislator is quoted as saying over 90% of sex crime convicts will commit another sex offense if released from prison, which he stated or implied justifies these laws. An article on the Texas Department of State Health Services web site summarizes the relevant research:
After 15 years, 73% of sex offenders had not been charged with, or convicted of another sexual offense (Hanson 2004). ... Hanson and Bourgon (2004) in a study of 31,216 sex offenders found that, on average, the observed sexual recidivism rate was 13%, the violent non-sexual recidivism was 14%, and the general recidivism was 36.9%. Research has shown that the recidivism rates for sex offenders are much lower than for the general criminal population. ["Council on Sex Offender Treatment-Treatment of Sex Offenders-Recidivism", dshs.state.tx.us/csot/csot_trecidivism.shtm, updated April 30, 2012]
Despite the fact that non-sex-crime convicts have higher recidivism rates than sex-crime convicts, states have not enacted "commitment" laws for criminals whose crimes were not sex related. If they did, perhaps it would be called "Criminally Dangerous Person" commitment and called "civil" and "therapeutic" and hence not subject to the rights the Constitution guarantees to "criminal" defendants.
In his review of civil commitment of sexually violent predators (SVPs) in 2012, psychiatrist Allen Frances, M.D., said this:
Most disturbing was the randomness of the decisionmaking. ... My experience indicates that the SVP laws are being implemented in a highly arbitrary and idiosyncratic fashion with judges and juries easily confused by misleading expert testimony. ... The bad news is that much of the diagnostic work done by SVP evaluators is simply wrong and misleading to juries and judges—resulting in SVP decisions that are arbitrary and questionably constitutional. ["My Review of 28 Sexually Violent Predator Cases", psychiatrictimes.com, April 2, 2012]
In his book The Reign of Error—Psychiatry, Authority, and Law (Beacon Press 1984, p. 6) psychiatrist Lee Coleman, M.D., says—
For decades it was assumed that a psychiatrist could predict dangerous behavior at least as well as other doctors could prognosticate about medical illness. Finally, in the 1960s and 1970s, research studies demonstrated conclusively that psychiatric predictions of dangerousness were no better than flipping a coin. In fact, they were worse... [emphasis added]
Similarly, in his book Incognito—The Secret Lives of the Brain (Pantheon Books 2011, p. 178), Baylor College of Medicine neuroscientist David Eagleman recalls—
Several years ago, researchers began to ask psychiatrists and parole board members how likely it was that individual sex offenders would relapse when let out of prison. Both the psychiatrists and the parole board members had experience with the criminals in question, as well as with hundreds before them—so predicting who was going to go straight and who would be coming back [to prison] was not difficult.
Or wasn't it? The surprise outcome was that their guesses showed almost no correlation with the actual outcomes. The psychiatrists and parole board members had the predictive accuracy of coin-flipping [emphasis added].
Courts making decisions based on psychiatrists' and psychologists' predictions of future human behavior was also compared with coin-flipping in a law journal article by attorney Bruce Ennis and psychology professor Thomas R. Litwack, "Psychiatry and the Presumption of Expertise: Flipping Coins in the Courtroom", California Law Review, Vol. 62, Issue 3 (May 1974).
So-called civil commitment of convicts reaching the end of their prison sentences is wrong because they have served their time for their crimes, because the "mental illness" criteria in these laws is based on an invalid concept (see Does Mental Illness Exist?), because the "commitments" (imprisonments) are based upon predictions of future behavior that are necessarily unreliable, and because recidivism rates suggest such predictions are wrong in the majority of cases.
So-far courts have been for the most part duped by the "civil" label attached by legislators to what are really criminal laws. Criminal laws are laws that punish people for prohibited behavior. As I point out in Why the Myth of Mental Illness Lives On, punishing people for prohibited behavior, or preventing anticipated future harmful behavior, is the real purpose of all civil commitment for mental illness laws. It shouldn't matter if legislators try to abrogate defendants' constitutional rights by calling the laws "civil", calling the offenses "illnesses", and calling the punishment "treatment" or "therapy". Anything causing incarceration, including when it is called involuntarily hospitalization, should be considered "criminal" for constitutional law purposes. Even quarantine of persons with contagious disease should be judged by criminal law standards if the conditions of confinement are as restrictive as imprisonment in a jail or mental institution.
According to "The Innocence List" published at deathpenaltyinfo.org, between 1973 and when I checked on February 18, 2018 there were exonerations of 161 death row convicts in the U.S.A. New or overlooked evidence, in 20 cases DNA evidence not available at the time of trial, showed they were actually innocent of the crimes for which they had been convicted and sentenced to death, or a witnesses recanted his or her testimony, or evidence later determined unreliable had been used against them, or they were acquitted when their original death sentences were overturned on appeal and acquitted in a subsequent re-trial. These erroneous death penalty convictions occurred in 27 states: Alabama, Arizona, Arkansas, California, Delaware, Florida, Georgia, Idaho, Illinois, Indiana, Kentucky, Louisiana, Maryland, Massachusetts, Mississippi, Missouri, Nebraska, Nevada, New Mexico, North Carolina, Ohio, Oklahoma, Pennsylvania, South Carolina, Tennessee, Texas, and Virginia. These erroneous death penalty convictions prove U.S.A. criminal law standards are lax enough to allow conviction of the innocent. If 161 persons were released from death row after they were convicted, or were posthumously exonerated, there were probably dozens more who were innocent but wrongfully executed during the same period of time. Furthermore, it is unlikely wrongful convictions occurred only in death penalty cases: Because judges and juries tend to be especially careful in death penalty cases, these erroneous death penalty convictions suggest those wrongfully convicted and serving prison sentences in the U.S.A. probably number in the thousands. Because of the unreliability of America's (and no doubt other nations') criminal justice systems, pleading guilty even though you are innocent in exchange for a light sentence is often the wisest choice, since it can and does happen that defendants who refuse to plead guilty and go to trial are sentenced to many years or a lifetime after turning down a light sentence in exchange for a guilty plea. So in many cases defendants plead guilty even though they are innocent. According to an October 14, 2014 news report, "In 97 percent of federal criminal cases and 94 percent of state criminal cases there is no trial at all, case are resolved by plea bargain", or in other words, by guilty or "no contest" pleas.
First they came for the "mentally ill", and I didn't speak out because I am not mentally ill. Then they came for the "sexually violent predators", and I didn't speak out because I am not a sex offender. Then they came for the "terrorists", and I didn't speak out because I am not a terrorist. But then they came for me, and nobody spoke out.
No one's constitutional rights are safe if anyone's constitutional rights are violated.
Dispensing with the more stringent standards of criminal law because legislators choose to call the proceedings "civil" allows even more convictions or "commitments" of innocent people than would occur under criminal law.
Violates Due Process
In Wyatt v. Stickney, 325 F.Supp. 781 (M.D. Ala. 1971), Chief Judge Johnson wrote:
The patients at Bryce Hospital, for the most part, were involuntarily committed through noncriminal procedures and without the constitutional protections that are afforded defendants in criminal proceedings. When patients are so committed for treatment purposes they unquestionably have a constitutional right to receive such individual treatment as will give them a realistic opportunity to be cured or to improve his or her mental condition. ... The purpose of involuntary hospitalization for treatment purposes is treatment and not mere custodial care or punishment. This is the only justification, from a constitutional standpoint, that allows civil commitment to mental institutions such as Bryce. ... To deprive any citizen of his or her liberty upon the altruistic theory that the confinement is for humane therapeutic reasons and then fail to provide adequate treatment violates the very fundamentals of due process. [appearing in Michael L. Perlin, Mental Disability Law—Cases and Materials—Second Edition, Carolina Academic Press 2005, pp. 335-336]
Involuntary inpatient or outpatient commitment is unjustified and is a violation of America's (or any democracy's) promise of liberty, and by the Court's reasoning in Wyatt v. Stickney a violation of due process, if the purpose of the involuntary commitment is "treatment" and there is, in truth, no bona-fide and effective treatment available. As I document in my essays Psychiatric Drugs: Cure or Quackery?, Psychiatry's Electroconvulsive Shock Treatment: A Crime Against Humanity, The Brain Butchery Called Psychosurgery, and The Case Against Psychotherapy, this is indeed the case: Psychiatry has no bona-fide treatment for anything. In their book Therapy's Delusions, a critique of so-called psychotherapy, a sociology professor and journalist conclude "A clear and general understanding of therapy's effectiveness would indeed lead to a general collapse of therapeutic authority" (Ethan Watters & Richard Ofshe, Scribner 1999, p. 136). In a law journal article in 1988 by Mary L. Durham, Ph.D., Associate Professor in the School of Public Health and Community Medicine at the University of Washington, and John Q. La Fond, J.D., Professor of Law at the University of Puget Sound, titled "A Search for the Missing Premise of Involuntary Therapeutic Commitment: Effective Treatment of the Mentally Ill", 40 Rutgers Law Review 303 at 310 (1988), the authors reach this conclusion:
This article examines the available empirical data evaluating the effectiveness of treatment for the mentally ill in a variety of contexts. It concludes that there is no reliable evidence establishing that psychiatry can effectively treat nondangerous mentally ill patients confined against their will in state facilities. To the contrary, there is evidence that coerced hospitalization may actually do more harm than good. Consequently, this Article argues that coercive commitment of the nondangerous mentally ill for a therapeutic purpose should be abolished.
At his 2012 Empathic Therapy Conference in Syracuse, New York, psychiatrist Peter Breggin asked this question of Dr. Rachel Bingham, a British physician who had just given a presentation about people voluntarily accepting psychiatric hospitalization only because they were threatened with involuntary psychiatric hospitalization if they refused: "Did you anywhere find even an attempt to show that involuntary treatment or even hospitalization ever helped anybody? Is there? I have never found a study." Dr. Bingham replied, "It's going to be a very short answer: No." Dr. Breggin then went on to say—
Now, think about that: Science based medicine? There are no studies showing that locking up people reduces their suicide rate. That'd be a very easy thing to do. It'd be very easy to look at a hospital cohort, get some sort of an outpatient group, and look at their suicide rates, or at anything else. Not a hard study. If they're being done, they're not being published, because they don't show that there is any benefit to being in a [psychiatric] hospital or being involuntarily confined.
In his book Deadly Psychiatry and Organized Denial (People's Press 2015, pp. 320-321), Dr. Peter C. Gøtzsche, a physician specializing in internal medicine, and Professor of Clinical Research Design and Analysis at the University of Copenhagen, says this:
I find laws about forced treatment highly problematic. In many countries, a person considered insane, or in a similar condition, can be admitted to a psychiatric ward on an involuntary basis if the prospect of cure or substantial and significant improvement of the condition would otherwise be significantly impaired.
But is this ever the case? Are there any treatments than can cure insane patients, or which can lead to such substantial improvements that the patient's condition would be significantly impaired if she is not forced to go to hospital immediately? I don't think so, and, considering the abuse that takes place at psychiatric wards, this clause should be removed from the law of all nations.
In her book Whores of the Court—The Fraud of Psychiatric Testimony and the Rape of American Justice (Regan Books 1997, p. 312), Boston University psychology professor Margaret A. Hagen, Ph.D., says "A mental hospital provides nothing effective except employment for the staff."
PSYCHIATRY HAS NO BONA-FIDE TREATMENT FOR ANYTHING ___________________________________________________
All involuntary commitments for purposes of mental health treatment are unconstitutional because there is no valid treatment in the field of mental health.
There are a few groups of people who, probably even more than sex-crime convicts, tend to be the target of America's involuntary psychiatric commitment laws. Included in these are the young, the old, and the homeless. Sometimes old people are placed in mental hospitals just to get them out of the way. In most cases, nursing homes would be more appropriate, but often nursing homes are not preferred by the family because they are more costly and must be paid for by the family. Involuntary psychiatric commitment laws are used to get homeless people off the streets and sidewalks. Adolescents are committed by parents as a way of shifting the balance of power towards parents in intra-family conflicts, parents usually being the ones who have the money to hire psychiatrists to incarcerate their family member adversaries and define their opposing views and disliked behaviors as illnesses. In some states parents have statutory power to commit their children who are under age 18 without judicial proceedings, in large part because of the decision by the U.S. Supreme Court in Parham v. J.R., 442 U.S. 584 (1979). This Supreme Court decision in 1979 is probably largely responsible for the fact that in the years immediately following it "adolescent admission rates to psychiatric units of private hospitals have jumped dramatically increasing four-fold between 1980 and 1984" (Lois A. Weithorn, Ph.D., "Mental Hospitalization of Troublesome Youth: An Analysis of Skyrocketing Admission Rates", 40 Stanford Law Review 773 (1988). According to another report, "private
psychiatric hospital admissions for teenagers are the fastest-growing segment of the hospital industry. ... Between 1980 and 1987 the number of people between 10 and 19 discharged from psychiatric units increased 43 percent, from 126,000 to 180,000. One reason is the aggressive advertising used by for-profit psychiatric facilities" (Christina Kelly, "She's Not Crazy But 14-year-old Sara got committed anyway", Sassy magazine, March 1990, p. 44). According to another report, between 1971 and 1991 "the number of teenagers hospitalized for psychiatric care has increased from 16,000 to 263,000" (Time magazine, August 26, 1991, p. 12). According to University of Michigan professor Ira Schwartz, "psychiatric hospitals are turning into jails for kids" (Sassy magazine, March 1990, p. 44). One reason this is wrong is the stigma of a wrongful involuntary psychiatric "hospitalization" during childhood or adolescence does not disappear upon reaching the age of majority but follows a person, who eventually becomes an adult, throughout life (see Psychiatric Stigma Follows You Everywhere You Go for the Rest of Your Life).
Of course, mental "hospitals" are jails for all persons detained there against their will. Furthermore, they are places where people may be incarcerated with no showing of prior illegal (or otherwise harmful) conduct-only "mental illness" and supposed need for treatment or predictions of "dangerousness". Yet statutes authorizing involuntary commitment for mental illness do not say which supposed mental illnesses justify commitment and which do not. As I have shown in The Myth of Psychiatric Diagnosis and Why the Myth of Mental Illness Lives On, the American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders has so many disorders, defined so broadly, few if any living humans fall within none of the book's definitions of mental disorder. With the exception of civil commitment of so-called "sexually violent predators" or "sexually dangerous persons" whereby persons convicted of sex crimes (or under the federal Adam Walsh Act, any crime) are civilly committed when their criminal prison sentences expire, the statutory definitions of "mental illness" and other commitment criteria do not include violation of a law. If subjected to proper constitutional scrutiny, such laws would be found void for vagueness, as would a statute allowing imprisonment for something called "crime" but which failed to define crime—leaving potential "criminals" in doubt about whether marijuana or alcohol use is legal, whether driving 65 mph on the highway is legal, whether the age of consent for what in the presence of a statute would be called statutory rape is 16 or 18 or some other age, or whether one must brandish a deadly weapon such as a gun in plain view and retreat from an attacker before using the weapon to take the attacker's life in self-defense, and allowing each prosecuting attorney to determine after the fact whether a particular act is definable as "crime", much as psychiatrists often determine after the fact whether a particular act or expression of ideas constitutes a committable "mental illness".
Have we forgotten that America is supposed to be a nation where all law-abiding persons are guaranteed liberty? How can a person know what behavior is prohibited if the laws are not clearly written? People like myself who believe strongly in individual freedom argue that violation of the rights of others should be the only acts prohibited by law; others will defend victimless crime laws. In either case, violation of law should be the only basis for depriving a person of his or her liberty over his or her protest.
One 14 year old girl who had been involuntarily committed to a private psychiatric hospital after an argument with her parents said "My parents would always threaten me with the hospital" (Sassy magazine, March 1990, p. 82). But it isn't only adolescents and old people who are threatened with psychiatric incarceration in their conflicts with family members. In her autobiography, Will There Really Be a Morning?, actress Frances Farmer tells how even when she was 30 years old her mother in seemingly every dispute would threaten her with commitment to Western State Hospital near her home in Seattle, Washington:
"I'm just about at the end of my rope with you," she warned. "I've just about had all I can take. I've put up with you for years and what do I get for it? Nothing! Absolutely nothing! But you're my daughter and you're going to do exactly as I say, or back [to the mental hospital] you go. Do you understand me? Back you go! And this time for keeps! ... You're a disgusting brat!" she spat contemptuously.
"I'm a thirty-year-old woman," I answered bitterly. "And I know damn good and well that you'll send me back the first chance you get." ... I could not cope with another fight. "I'm going back to bed," I said flatly. "This whole thing is absurd."
I started up the stairs, but her reply stopped me short. "I'm sending you back, Frances." I was chilled by her sudden calm. "And this time," she went on, "I'll see you that you stay." ...
It was morning, and I heard my mother rise. It startled me when she knocked softly at my door.
"Frances," she said calmly. "I'd like you to get dressed and come down stairs. There are some people here who want to meet you." ...
My mother was in the living room with two uniformed men...and I knew! ... They straddled me, and I felt the rough canvas of the straitjacket wrap around me and buckle into place. [Dell Publishing Co. 1972, pp. 15-33]
According to the biography by William Arnold, Frances Farmer was "almost certainly" given a transorbital lobotomy, and without her consent, by Dr. Walter Freeman during her "hospitalization" (Shadowland, Berkley Books 1978, p. 168, see also pp. 8-9, 155, 161, 166). Dr. Freeman's biographer, Jack El-Hai, in The Lobotomist (Whiley 2007, pp. 241-242) disagrees but acknowledges the doctors at Western State Hospital did propose lobotomizing Frances Farmer. He quotes Frances Farmer's sister, Edith, saying the Western State Hospital doctors "contemplated giving [her sister Frances] a lobotomy." He also quotes Frances Farmer's father saying "I got there just in time to head them off from some danged experimental brain operation on her."
In America and other nations that claim to value freedom and defend human rights, legislators writing "mental health" laws and those making personal or judicial decisions about what to do with a so-called mentally ill person or persons should keep in mind that America's guarantees of personal freedom are the basis for American patriotism. As psychiatry professor Thomas Szasz wrote in 2011: "If there is a single word that captures the idea of the United States of America, that word is freedom" (Suicide Prohibition—The Shame of Medicine, Syracuse University Press 2011, p. 19, italics in original). Listen, for example, to the words of a patriotic song, "God Bless the U.S.A.":
If tomorrow all the things were gone I'd worked for all my life, and I had to start again with just my children and my wife, I'd thank my lucky stars to be living here today. 'Cause the flag still stands for freedom, and they can't take that away! And I'm proud to be an American, where at least I know I'm free. And I won't forget the men who died who gave that right to me. And I'll gladly stand up next to you and defend her still today. 'Cause there is no doubt I love this Land. God bless the U.S.A.! [italics added]
Similarly, a Russian immigrant to the United States said this in an article published in Reader's Digest in 1991: "I looked up at the [United States] flag, fluttering in the breeze. ... Suddenly, I understood ... America isn't about school sweaters or Johnny Mathis records or shiny new cars. It's about freedom and opportunity—not just for the privileged or the native-born—but for everyone" (Constantin Galskoy, "How I Became an American", Reader's Digest, August 1991, p. 76). The Declaration of Independence of the United States of America of July 4, 1776 declares—
WE hold these Truths to be self-evident, that all Men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty, and the Pursuit of Happiness—That to secure these Rights, Governments are instituted among Men...
The U.S.A.'s official national anthem, "The Star Spangled Banner", refers to America as "the land of the free". The Pledge of Allegiance to the Flag of the United States of America ends with the words "...with liberty and justice for all." One of America's most popular and prominent symbols is the Statue of Liberty. Another statue, this one sitting atop the dome of the U.S. Capitol Building in Washington, D.C., is called the Statue of Freedom. One of the best selling high school history textbooks in the U.S.A. from the 1950s to the 1980s is titled History of a Free People (by Henry W. Bragdon & Samuel P. McCutchen, Collier MacMillan Publishers ©1954, 1956, 1958, 1960, 1961, 1964, 1973, 1978, 1981). In 1987 in a law journal article discussing constitutional due process, U.S. Supreme Court Justice William J. Brennan, Jr., says "every enactment of every state...may be challenged at the Bar of the Court on the ground that such action, such legislation, is a deprivation of liberty without due process of law...those ideals of human dignity—liberty and justice for all individuals—will continue to inspire and guide us because they are entrenched in our Constitution" (Case & Comment, September-October 1987, p. 21).
LIBERTY FOR ALL LAW-ABIDING PERSONS SEEMS
TO BE TOO MUCH TO ASK, EVEN IN AMERICA _________________________________________________
Imagine how empty and meaningless are the words of such patriotic articles and songs, the Pledge of Allegiance to the Flag, the national anthem, the Declaration of Independence, the U.S. Constitution, the names of America's national monuments, and the title of that high school history textbook calling the people of America free, to a law-abiding person who has been imprisoned (involuntarily
"hospitalized") and forcibly "treated" for so-called mental illness, or court-ordered to take psychiatric "medication" or electroshock on an outpatient basis in the U.S.A.
A reason involuntary psychiatric commitment of law-abiding people is a violation of constitutionally guaranteed substantive due process is it is contrary to the most important values America and other democracies claim to stand for. Legislation and court decisions that are inconsistent with these values undermine the justification for American patriotism. This is just as true for those under the arbitrarily defined age of majority as it is for adults. In his inaugural address on January 20, 1989, the first President George Bush said "Great nations, like great men, must keep their word. When America says something, America means it—whether a treaty or an agreement or a vow made on marble steps." One of the consequences of belief in the myth of mental illness and the myth of psychiatric diagnosis is America's failure to live up to one of its most fundamental promises: liberty for all law-abiding Americans.
John Monahan, Ph.D., The Clinical Prediction of Violent Behavior (Jason Aronson 1995)
Thomas S. Szasz, M.D., Law, Liberty, and Psychiatry (Collier Books 1963)
C. Peter Erlinder, "Minnesota's Gulag: Involuntary Treatment for the 'Politically Ill'", 19 William Mitchell Law Review 99 (1993)
Allen Frances, M.D., "My Review of 28 Sexually Violent Predator Cases", psychiatrictimes.com, April 2, 2012
Allen Frances, M.D., "Mass Murders, Madness, and Gun Control", psychiatrictimes.com, July 30, 2012
Allen Frances, M.D., "Mass Murder Psychobabble Misses Gun Policy Point", psychiatrictimes.com, August 3, 2012
"Frances Farmer: This Is Your Life" (1958), YouTube.com. This is a television program broadcast in 1958 that allows you to see and hear actress Frances Farmer discuss her experience as, at one time, America's most well-known involuntarily committed mental patient.
Permission to reproduce is granted
provided the reproduction is accurate
and proper credit is given
The author is a volunteer (pro bono) attorney for the Law Project for Psychiatric Rights (psychrights.org) and may be reached at wayneramsay (at) mail (dot) com