Who Qualifies for Rights?

1
Who Qualifies for Rights?

• Sherrie Brown
• LSJ 332/CHID 332
• Spring 2010

2
To help us think about the question . . .

• Kristen Johnson case
• involuntary sterilization
• Civil Commitment Theory
• Joyce Brown case
• involuntary commitment
• Sesha Kittay case
• limitations of justice

3
Kristen Johnson Case

• Issue Should Kristens guardian (Vera) have the
  right to decide that sterilization is an
  appropriate medical intervention for the young
  woman? Alternativelyshould Kristen have the
  right to make the decision without consideration
  of the guardians opinion?
• Task Read the case study and jot down 1) the
  reasons Vera should be able to make that decision
  on behalf of Kristen and 2) the reasons she
  should not.
• Discuss Veras position and Kristens arguments.

4
Legal Justification for Civil Commitment

• Parens Patriae
• Traditional role of state as sovereign and
  guardian of persons under legal disability.
• Used as justification for involuntary
  institutionalization of people with mental
  disabilities in mid-19th Century USA.
• Theory is that state has obligation to protect
  interests of those who cannot do so for
  themselvesrequires finding of incapacity which
  results in legal disability.
• Typically used to commit people who are
  considered danger to themselves.

5
Continued

• Police Power
• Purpose is to protect society from potential
  harme.g., criminal laws and public health codes
• Unlike criminal defendants, people facing police
  power commitments can be confined in
  institutional settings without proof that they
  violated criminal law.
• Justification for commitment of people with
  mental illness who are considered danger to
  others.

6
Constitutional Theories Challenging
Institutionalization

• 14th Amendment
• All persons born or naturalized in the United
  States and subject to the jurisdiction thereof
  are citizens of the United States and of the
  State wherein they reside. No State shall make
  or enforce any law which shall abridge the
  privileges or immunities of citizens of the
  United States nor shall any State deprive any
  person of life, liberty, or property, without due
  process of law nor deny to any person within its
  jurisdiction the equal protection of the laws.
• 8th Amendment
• Excessive bail shall not be required, nor
  excessive fines imposed, nor cruel and unusual
  punishments inflicted.

7
OConnor v. Donaldson (U.S. Supreme Court 1975)

• FACTS
• Mr. Donaldson civilly committed in 1957 and
  institutionalized for 15 years.
• His father initiated the commitment because his
  son suffering from delusions.
• Diagnosis was paranoid schizophrenia and
  commitment for care, maintenance and treatment.
  
• No evidence of danger to self or others and
  employed prior to commitment.
• ISSUE
• Was Donaldsons continued commitment a violation
  of his constitutional right to liberty (14th
  Amendment right)?
• HOLDING
• Yes.
• REASONING/RATIONALE
• Involuntary commitment is deprivation of liberty
  which state cannot do without due process of law.
• Must be justified on basis of legitimate state
  interest and confinement must cease when those
  reasons no longer exist.
• Basis of confinement violated very fundamentals
  of due process when no treatment was provided.

8
Joyce Brown Case

• Facts Class?
• Mayor Koch justified the commitment of Joyce
  Brown in the name of both human rights and human
  decency, according to Judith Failer.
• A member of the HHC also defended the new
  interpretation of commitment standards as an
  effort to protect the rights of the mentally ill
  homeless. For the first time there is a
  recognition of the patients right to treatment,
  and their freedom from the prison of mental
  illness, rather than the freedom to die in the
  streets.
• Question What human rights and whose rights do
  you think Koch is considering and are they the
  same rights that the member of the HHC was
  referring to in the above quote?

9
Questions continued

• Joyce Brown was successful in convincing the
  lower court judge that the city of NY had
  infringed on her rights by committing her against
  her will.
• What testimony convinced the judge that NYC had
  erred and what specific right did he say had been
  denied Ms. Brown?
• Do you agree with his reasoning (based on what
  you know of the trial) and why/why not?

10
And

• The primary issue in the case study was the
  power of the state to involuntarily commit Joyce
  Brown. However, another issue raised was the
  power of the state to forcibly medicate her
  against her will.
• Take the position that the involuntary commitment
  of Ms. Brown was appropriate. And, assume that
  therapy for schizophrenics is ineffective unless
  accompanied by chemical treatment. Do you also
  believe that the state has the power to forcibly
  medicate her?
• Change the facts in the case as follows Joyce
  Brown is charged with a crime and is declared to
  be incompetent to stand trial. However,
  psychiatrists state that she would be competent
  if she took her medication and the state wants to
  force her to do so. Do you believe the state
  should have the power in a criminal case?

11
And Finally

• Change the facts againJoyce Brown was charged
  and found guilty of committing a murder. She was
  also diagnosed with schizophrenia.
• Is she responsible for her behavior?
• What is societys (justice system) response to
  this criminal behavior given her mental illness?
• How does society respond to children who commit
  murder?
• What should societys response to this criminal
  behavior be?
• From the social model perspective?

12
Sesha Kittay Case as articulated by her mother

• Kittay thinks that continuing the benevolence
  and charity bases for caring for dependent
  individuals is insufficient. Why? Do you agree
  or not?
• Kittay introduces the concept of doulia to
  reconfigure justice. How does the concept of
  doulia reconfigure justice?
• Is there a way to reconcile the needs of someone
  as inevitably dependent as Sesha with the
  concerns and analyses of those who have argued
  that both disability and the apparent dependency
  of disabled people are socially constructed?
• Why does Kittay think that the inclusion of
  people with mental retardation may well be
  liberalisms limit case?