Dangerous People, Irrational Fears: Developing a rational jurisprudence for non-criminal dangerousness

Edward P. Richards, JD, MPHDirector, Program in Law, Science, and

Public HealthLouisiana State University Law Center

richards@lsu.eduSlides and other info: http://

biotech.law.lsu.edu/cphl/Talks.htm

Objectives for Today

The legal tools for managing dangerous people What is administrative cost and why does it

matter? Is more due process and judicial review the right

answer to concerns with overreaching state authority?

Is law the solution at all?

What is Non-Criminal Dangerousness?

No mens rea - guilty mind Various legal tests Would not be found criminally liable for their

actions Civil (tort) liability

Individuals or their care givers can be found liable for tort damages

Why does Criminal vs. Non-Criminal Matter?

Criminal dangerousness Constitutional due process protections The state can only act retrospectively to

punish, based on crimes committed Non-Criminal dangerousness

Cannot be punished Individuals can be prospectively managed

under the police powers to prevent harm

The Police Powers

Powers left to the states in the Constitution Primarily public health and safety

Commerce clause regulation While the federal government does not have

police powers, the courts have allowed the commerce clause to substitute in most situations

Police Power Enforcement

Enforced through agencies such as health departments, departments of mental health, and other health and safety agencies

Historically, less of a separation between the police and public health/safety

Governed by administrative law jurisprudence, not criminal law jurisprudence

Criminal v. Administrative Due Process

Criminal Due Process - Just like on TV

Right to counsel Trial by jury No self-incrimination Only searches based on probable cause with a

court granted warrant Law must be specific (void for vagueness) Can only be applied for punishment after a crime

is committed

Administrative Due Process

Expert agency decisionmakers rather than trial by jury

Judicial deference to agency action Lower standard of proof

Preponderance or clear and convincing Can take action to prevent harm Cannot punish, only limit liberty as necessary to

prevent harm

Example - Administrative Searches

Criminal law search Probable cause to believe that there is specific

evidence of a crime in a specific place Must be approved by a judge

Administrative law search Until 1967, no warrant at all Post 1967, area warrant Both public health and national security

Example - Traditional Tuberculosis Control

Jargon: Isolation (sick) - Quarantine (exposed) Suspected carriers can be isolated until they test

negative No forced testing or treatment, but it is the key

to release Orders by health officer, subject to habeas

corpus review by a judge Can be kept in a jail (but not a good idea)

Tradition Review of Pubic Heath Detention: Habeas Corpus

Part of the US Constitution State (health officer) must show:

Legal authority for the detention The facts that support the detention No right to appointed counsel

Judge will defer to the state's determination of the facts in administrative detentions Must not be arbitrary or capricious

The New Direction

Push by civil libertarians for more rights since the 1970s More judicial supervision - shift decisionmaking

from the agency to the judge or jury More due process rights, including counsel Many states have adopted dramatic limits on

traditional public health powers Claimed to be constitutionally required

The Result for TB

Appointed counsel Judicial determination of the appropriateness of

the isolation order In some place, a jury trial on the issues Least restrictive alternative analysis, often

without regard to departmental resources

Constitutional Cognitive Dissonance:Rehnquist (Roberts) Denial

Pretrial detainees in Rikers Bail Reform Act and Fat Tony Sexually dangerous persons laws and predator laws Antiterrorism laws

Same constitutional roots as public health From Guantanamo to NSA to FISA, all are based on

the power to prevent Criminal rights like 5th amendment are limited Same language as public health decisions

Is More Due Process and Judicial Review Good Policy?

Why not just have more review by courts and more due process, including appointed counsel?

Administrative Cost

Limited budgets and staff Many do not have lawyers Limited ability to tolerate political criticism Texas TB case in the 1980s

Do Courts do a Better Job?

Remember Korematsu? How about how well the criminal courts do with all

their protections, if you are not rich? Look at the terrorism cases Presenting a TB case Is judicial review really only a protection to the

extent that it keeps the agency from acting?

Does it Matter?

Most public health works well enough You usually do not get sick eating in

restaurants Drinking water is generally safe

Restrictions on TB control mostly work because it is relatively rare Would it scale?

Problem Areas

Legal overreaching Assumption that the problem can be solved

with law Usually driven by fear combined with an

unwillingness to face structural problems Over-restrictive laws

Legal Overreaching: Pandemic Flu

Read the HHS report on Swine Flu Pressure to pass emergency restriction and

quarantine laws Some people are even talking about shooting

policies Government requirements for surge planning and

emergency preparedness plans Is this the right answer?

Best Evidence-based Pandemic Planning

People need food, medical care, and financial support to stay home

We eliminated surge capacity as a health planning goal - we called it excess capacity

We do not have a working immunization program for the yearly flu pandemic We cannot even get health care provides to get

basic immunizations, including flu shots

Why Focus on Emergency Laws?

Cheap to pass Do not require addressing expensive

infrastructural needs Federal and state agencies can point to the

coerced plans to show that we are prepared Hurricane Pam and Katrina Systematically undermines confidence in

government regulation because everyone has to lie

Over-restrictive Laws: HIV

Background on HIV

1,000,000++ infected persons More than 20,000/40,000 new cases a year

Significantly more deaths than homicides Devastating minority communities

#1 cause of death young minority women Much great risk than dangerous mentally ill persons

and other politically high visibility risks Now linked up with prostitution, Internet porn, and

organized crime Extra charge for bareback and bug chasers

Legal/Political Setup for HIV Epidemic

Swine flu scared public health officials, esp. CDC Made it difficult for them to push for unpopular

intrusive strategies Bathhouses grew up in the early 1970s

Horrendous HBV data in 1976 Bathhouse closings were seen as anti-gay civil

rights violations Bathhouses made the HIV epidemic possible

Legal Restrictions on HIV Control

Special legal limits on testing Special exceptions to communicable disease reporting

and investigation laws Many states revised their public health laws to make it

much more difficult to restrict disease carriers Federal policy on HIV, which sets the norms for states

because of funding restrictions, did not address these restrictions until 2005-6

Public health officials do not have the legal power to act against dangerous persons and institutions

Why Pandemic Flu Preparedness and not HIV Control?

What is the real risk of a public health threat? Why is preparation for theoretical risks so much more

attractive than confronting real risks? What is the role of politics (Wag the Dog)?

Did Katrina trigger the pan flu push? Is this an extension of the national security state?

Should we push back? Pan flu rationing plans are a good sign