Dangerous People, Irrational Fears: Developing
a rational jurisprudence for non-criminal
dangerousness
Edward P. Richards, JD, MPH
Director, Program in Law, Science, and
Public Health
Louisiana State University Law Center
richards@lsu.edu
Slides and other info:
http://biotech.law.lsu.edu/cphl/Talks.htm
Objectives for Today
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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?
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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?
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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
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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
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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
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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
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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
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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
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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
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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
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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
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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
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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?
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Why not just have more review by courts and
more due process, including appointed counsel?
Administrative Cost
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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?
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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?
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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
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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
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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
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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?
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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
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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
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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
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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?
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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