Visibility, accountability and discourse as essential to democracy: the underlying theme of Alan Dershowitz's writing and teaching

Albany Law Review, Summer, 2008 by Alan M. Dershowitz

I ended my article by highlighting the dangers to democratic accountability of this pervasive problem:

      What, then, have been the effects of virtually turning over
   to the psychiatrists the civil commitment process? We have
   accepted a legal policy--never approved by an authorized
   decisionmaker--which permits significant overprediction; in
   effect a rule that it is better to confine ten men who would
   not assault than to let free one man who would. We have
   defined danger to include all sorts of minor social
   disruptions. We have equated harm to self with harm to
   others without recognizing the debatable nature of that
   question.

      Now it may well be that if we substitute functional legal
   criteria for the medical model, we would still accept many of
   the answers we accept today. Perhaps our society is willing
   to tolerate significant overprediction. Perhaps we do want
   incarceration to prevent minor social harms. Perhaps we do
   want to protect people from themselves as much as from
   others. But we will never learn the answers to these
   questions unless they are exposed and openly debated. And
   such open debate is discouraged--indeed made impossible-when
   the questions are disguised in medical jargon against
   which the lawyer--and the citizen--feels helpless. (23)

I concluded that an important lesson to be learned from this experience is that

   no legal rule should ever be phrased in medical terms; that
   no legal decision should ever be turned over to the
   psychiatrist; that there is no such thing as a legal problem
   which can not--and should not--be phrased in terms
   familiar to lawyers. And civil commitment of the mentally ill
   is a legal problem; whenever compulsion is used or freedom
   denied--whether by the state, the church, the union, the
   university, or the psychiatrist--the issue becomes a legal
   one; and lawyers must be quick to immerse themselves in
   it. (24)

VI. BAIL AND PREVENTIVE DETENTION

Over the next several years, I generalized this critique beyond the area of commitment of the mentally ill. A similar lack of articulated criteria and a similar abdication of democratic responsibility plagued other areas in which important preventive decisions were being made as well.

One such area, that received far more public attention than the confinement of the mentally ill, was the Nixon administration's proposal for the preventive detention of criminal defendants who were believed to pose a danger to the community during the inevitable hiatus between arrest and trial. I wrote a series of articles critiquing this proposal, in part on the basis of our inability to predict violence without substantial "overprediction," but also because of the lack of clear standards and criteria. This is how I put it in an article published in the American Bar Association Journal in 1971:

   A pretrial detention statute, if it is to survive constitutional
   attack, should at least be as clear as an ordinary criminal
   statute is required to be about who is going to be confined.
   Yet the operational criteria in this statute authorize the
   detention of defendants charged with certain crimes if the
   release will not "reasonably assure the safety of any person
   or the community".

      At least two critical issues are buried in this vague and
   ambiguous phrase. The first is, what kind of a predicted
   crime warrants confinement? ... Must it be a felony? The
   second critical but unanswered question is, how likely must
   it be that the predicted crime will be committed? Must it be
   more likely than not? Must it be reasonably likely? Must it
   be almost certain? These questions are not
   answered.... They are fundamental questions of legislative
   policy and scope. Reasonable judges might come to
   diametrically opposite conclusions about the intended reach
   of the statute, as judges constantly have when interpreting
   similarly vague language in statutes authorizing
   confinement of people on grounds of mental illness. Mental
   illness statutes, for example, with similar language, have
   been applied to conduct as varied as check forgery, vagrancy
   and, all too often, even noncriminal nuisances. (25)