Howard Nemerov Nails It

In discussing the Seattle mass-murderer, he notes that the shooter had an assault case that was dropped when the victims recanted, and that his family thought him mentally ill, but never had him formally committed. The point that he nails is this:

These two points show how important citizen participation is for society to work. Perhaps those not pressing charges are also responsible?

We’re confronted with crime stories regularly where people think “he never should have been on the streets.” But in this country, we don’t deprive people of life or liberty without due process of law, and due process can only work when the people insist on making it work.

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28 thoughts on “Howard Nemerov Nails It”

  1. I find your apparent agreement with this to be at odds with your historical stance that one should not get involved in a situation unless you or your family are directly threatened (e.g. your stance on Zimmerman). You cannot have it both ways. Either getting involved is the responsible moral thing to do or it isn’t.

    1. You’re mischaracterizing my position, or I have not stated it clearly. I don’t believe people should get into or risk getting into street confrontations, in non-dire, non-emergency situations, when it’s not you or yours that you’re protecting. That’s quite different from suggesting no one should call the police, or work with authorities when they need a good witness, or need people to testify to crimes they’ve witnessed or been victims of. My position is not total disengagement, but one of exercising prudence when police are a reasonable substitute for direct involvement.

      That being said, even street confrontations driven by dire emergency situations (you witness a violent crime in progress, for instance), I don’t believe anyone has a moral obligation to intervene on another’s behalf. But I don’t blame anyone if they did. I think that’s too circumstantial to have a strong opinion on. But if you were a witness to that, I believe you do have a moral obligation to work with authorities as a witness.

      1. Yeah the reality is you have to exercise caution when getting involved in a stranger’s business like that, or it could be you that’s sitting in jail.

      2. That’s quite different from suggesting no one should call the police, or work with authorities when they need a good witness, or need people to testify to crimes they’ve witnessed….

        (I snipped the ending about testifying if you’re a victim, although see David’s comment below.)

        But doesn’t this violate today’s “Don’t talk to the police” principle? While it’s very bad for society and bad for you and your’s if you’re unlucky, why is doing this worth the risk?

  2. I completely agree with you. I’d also note the exact same thing happened in the Jared Loughner case in AZ: the police, his family, and the college he attended all knew he was dangerously insane and none did anything.

    1. What could they do? Commitment is something that is not so easy to do anymore. In some states, the statutes pretty much require you to kill someone, or close to it, to get involuntarily committed (as opposed to an observational and short-term treatment hold). In states where it is theoretically possible, it seldom happens, partly because of shortages of bed space in mental hospitals, and partly because of fear of being sued. (The director of a state mental hospital in Florida was held personally liable for holding a patient who was committed by the courts.)

      1. It’s only one step, but they could start by getting him on the NICS list. Yes, I know it isn’t fool proof by a long shot, but Laughner passed a background check when he bought his pistol, so it might have helped in that case. Starting procedures to get him declared incompetent would be another thing several people could have done but didn’t. It isn’t easy (especially emotionally) but sometimes it’s what you have to do. Police & other public institutions, like his college, should do more than pass the buck, too, which appears to have happened repeatedly in his case. Laws may need to be changed, but doing nothing is a poor response to trouble.

        As a country, it would be nice if we could admit that (1) mental illness isn’t a crime, (2) crazy people don’t belong in prison or on the streets, (3) some things the tax-payers just need to suck it up and pay for, the proper care of the mentally incompetent being one of those things.

        1. In order to get him in NICS, he has to be involuntarily committed or adjudicated. Getting either from our legal system is quite difficult.

        2. And one fear for the difficulty of it, is going to be that it could potentially give our opponents support at some point to make it far easier to create mental health prohibitions on gun ownership that don’t amount to real due process.

          I think there needs to be due process, but due process doesn’t have to amount to an insurmountable burden.

          1. Addington v. Texas (1979) is what changed the rules of the game. Up to that point, courts used a preponderance of evidence to determine whether a person should be involuntarily committed. The theory on this was that the state’s interest was both protecting public safety and protecting the interests of a mentally ill person from the dangers of self-injury. Addington explained the reasons for the state seeking commitment:

            The State offered evidence that appellant suffered from serious delusions, that he often had threatened to injure both of his parents and others, that he had been involved in several assaultive episodes while hospitalized, and that he had caused substantial property damage both at his own apartment and at his parents’ home. From these undisputed facts, two psychiatrists, who qualified as experts, expressed opinions that appellant suffered from psychotic schizophrenia and that he had paranoid tendencies. They also expressed medical opinions that appellant was probably dangerous both to himself and to others. They explained that appellant required hospitalization in a closed area to treat his condition because, in the past, he had refused to attend outpatient treatment programs and had escaped several times from mental hospitals.

            Does this sound similar to the case in Seattle? Yes.

            While Addington did not impose the “beyond a reasonable doubt” standard that the ACLU wanted for commitment, it did raise the standard well beyond “preponderance of evidence” to “clear and convincing.” (And yes, you are welcome to try and figure out the distinction. It is not clear from reading Addington.)

            As Chief Justice Burger’s concurring opinion pointed out in O’Connor v. Donaldson (1975):

            In short, the idea that States may not confine the mentally ill except for the purpose of providing them with treatment is of very recent origin, 4 and there is no historical basis for imposing such a limitation on state power. Analysis of the sources of the civil commitment power likewise lends no support to that notion. There can be little doubt that in the exercise of its police power [422 U.S. 563, 583] a State may confine individuals solely to protect society from the dangers of significant antisocial acts or communicable disease. Cf. Minnesota ex rel. Pearson v. Probate Court, 309 U.S. 270 (1940); Jacobson v. Massachusetts, 197 U.S. 11, 25 -29 (1905). Additionally, the States are vested with the historic parens patriae power, including the duty to protect “persons under legal disabilities to act for themselves.” Hawaii v. Standard Oil Co., 405 U.S. 251, 257 (1972). See also Mormon Church v. United States, 136 U.S. 1, 56 -58 (1890). The classic example of this role is when a State undertakes to act as “`the general guardian of all infants, idiots, and lunatics.'” Hawaii v. Standard Oil Co., supra, at 257, quoting 3 W. Blackstone, Commentaries *47.

            …

            However, the existence of some due process limitations on the parens patriae power does not justify the further conclusion that it may be exercised to confine a mentally ill person only if the purpose of the confinement is treatment. Despite many recent advances in medical knowledge, it remains a stubborn fact that there are many forms of mental illness which are not understood, some which are untreatable in the sense that no effective therapy has yet been discovered for them, and that rates of “cure” are generally low. See Schwitzgebel, The Right to Effective Mental Treatment, 62 Calif. L. Rev. 936, 941-948 (1974). There can be little responsible debate regarding “the uncertainty of diagnosis in this field and the tentativeness of professional judgment.” Greenwood v. United States, 350 U.S., at 375 . See also Ennis & Litwack, Psychiatry and the Presumption of Expertise: Flipping Coins in the Courtroom, 62 Calif. L. Rev. 693, 697-719 (1974). 5 Similarly, as previously observed, it is universally recognized as fundamental to effective therapy that the patient acknowledge his illness and cooperate with those attempting to give treatment; yet the failure of a large proportion of mentally ill persons to do so is a common phenomenon. See Katz, supra, 36 U. Chi. L. Rev., at 768-769. It may be that some persons in either of these categories, 6 and there may be others, are unable to function in society and will suffer real harm to themselves unless provided with care in a sheltered environment. See, e. g., Lake v. Cameron, 124 U.S. App. D.C. 264, 270-271, 364 F.2d 657, 663-664 (1966) (dissenting opinion). At the very least, I am not able to say that a state legislature is powerless to make that kind of judgment. See Greenwood v. United States, supra.

        3. As Sebastian points out, adding someone to NICS requires involuntary commitment or adjudication.

          You will probably like my next book: My Brother Ron: A Personal and Social History of the Deinstitutionalization of the Mentally Ill. I’ll be making it available on Kindle in the next several weeks. (My agent is no longer responding to emails, so I guess that means conventional publishing is not an option.)

          1. That’s not entirely accurate. NICS has a hotline number for family members or concerned citizens to call and recommend someone for the list. Obviously this does get into problems of due process, as you both point out, but nonetheless the number is available, if badly advertised.

            1. I have never heard of this, and I think it would be a worthwhile number to publicize. And yes, the most that they could do with that data is review the claim.

  3. You should come to work for the courts. It’s amazing how fast a victim will change their tune and let the guilty go free. I doesn’t help that we make victims show up for like 5 court dates before the trial every occurs. Most victims, just give up out of frustration with they system.

  4. I feel that when mental illness is suspected, we as a society (the victims, judges, prosecutors, police, etc.) should be less willing to plea-bargain, drop, or not pursue charges for their crimes. The point is to get them in the legal system where they can be added to the NICS and more importantly get help as part of the sentence or plea. But there has to be some crime that sets it in motion (as there was for both the Seattle case and Loughner case). I don’t want a world where people or even family can deny someone’s rights based on a perceived imbalance when they haven’t actually done anything wrong.

    1. Before about 1965, overwhelmingly, American states used the medical model. It was sufficient if there was reason to believe that a person was in need of help to justify commitment. While it is widely believed that lots of people were locked up for merely being eccentric (think of the play and movie Harvey), when I went looking for such evidence, I had trouble finding it. Partly this was because state mental hospitals were terribly crowded; if doctors found a patient who did not belong, they did their best to get them released. Even ACLU’s representative to Congressional hearings in 1963 admitted that she could not give a single example of someone improperly committed. (Not to say that it never happened, but it does not appear to have been common.)

      I have spoken to people who worked in mental hospitals in the bad old days. What I have been told is that while some people were there after they were well enough to leave, it was because there was nowhere for them to go yet. They were not aware of any sane people who were improperly committed.

    2. I really agree with you on this TS. People shouldn’t be denied fundamental rights for having an illness.
      Let’s try it this way: we would deny someone to have a gun if they are in a diabetic siezure and are hospitalized. But once they are released and appropriately managing their diabetes we don’t continue to deny them that right.
      But if someone has a depressive episode and is involuntarily committed, once they are released and managing that illness they ARE still denied their fundamental rights.
      Having a manageable illness is not a crimes, and not all mental illness is the same thing.

        1. But we don’t say that for any other right- so gun rights are special?
          When someone has been involuntarily commiteed then released they don’t need to go before a judge to have free speach or religion, they are not subjected to random searches, they don’t have to quarter troops. We’re saying that gun rights are different by requiring this step.
          We also don’t hold any other illnesses to the same standard. We don’t require the diabetic to be on a list, put into NICS, and have to lawyer up and go in front of a judge to restore their rights.

          1. Actually, until the 1960s, people who were involuntarily committed in most states lost the right to manage their financial affairs, make contracts, drive, own guns, vote, because incompetence was either part of involuntary commitment, or incompetence was presumed. It was actually quite severe, and one of the reasons that the courts started to separate these.

            Harsh reality: severe mental illness is a risk factor for murder and other violent crimes. It is comparable to (perhaps even more severe) of a risk factor than being a convicted felon.

            1. The issue is that being involuntarily committed is not just for severe mental illness – but whatever the doctor considers severe enough to commit a person.
              The sad state of mental health care today is that a person who has a moderate depressive episode and gets a bad doctor is seen by our systems the same way as a person who has untreatable and severe schizophrenia. Both are shoved into a mental ward and denied rights.
              Saying there is a way to adjudicate it is saying the same thing as someone on the no-fly list has a way to dispute being on that list. It’s wrong to deny rights unless someone actually does something.

              1. Citation please?

                If this is true, certainly you can give us an example.

                Although I note that Clayton in in a comment above says the ACLU couldn’t cite one in 1963.

          2. Gun rights are going to be different. The courts are already treating gun rights differently, and even Heller, out of the bat, indicated that they would be. The question is how much differently. If we’re lucky, it’ll just be a little bit different, and the Second Amendment will generally be as respected as the first. I suspect the Heller majority on the court would prefer a little different, but not remarkably different.

            In the sense, you don’t remove First Amendment rights because the state has no “compelling interest” to do so, which fails strict, or even intermediate scrutiny analysis.

            The same would go for random searches, though I’m not sure about this one, because if a release is supervised, there probably is some abrogation of 4th Amendment rights after an involuntary commitment or adjudication.

            The “compelling interest” analysis is going to fall differently when it comes to gun rights and the mentally ill.

  5. I know that sometimes charges aren’t pressed, because sometimes a witness doesn’t want to relive the horror that was faced; sometimes, though, it seems that a prosecutor seems more than ready to jump at this as an excuse.

    It is my understanding that some victims find testifying against an assailant a bit therapeutic: they understand that their “reliving” and testifying are helping to put a creepy person in prison. I would also suppose, however, that each individual is different, and others may be hurt by having to relive these things.

    As for myself, I hope I can testify, even if it hurts me, if it will help bring some measure of justice. Even if I disagree with the notion that punishing by prison time that we currently do, if someone commits a crime, then the prison system is currently what our society offers as “justice”, and so we have to do the best we can, given our constraints!

    Having said all this, I can sympathise with David: I can imagine myself being worn down by the bureaucracy that will introduce trial delay after trial delay, and be tortured far more by that process, than I would be by any testimony I might be giving.

  6. Why, if you truly were assaulted by someone, would you NOT press charges?

    I had a “friend” several years ago molested one of my kids, he’s lucky I found out about it after the fact and didn’t catch him in the act or I’d have never had to press charges against him.
    It felt good to see him led out of court in handcuffs heading to jail for 15 years.

    1. Domestic abuse is a whole different world. I have a friend who lived for 15 yrs w/ a serial abuser and never once pressed charges until he attacked one of her sons. Even then it took her entire family and a friend network to support her to not drop the charges again.

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