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Citation: 82 Geo. L.J. 19 1993-1994
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Tribute to Judge Bazelon
PATRICIA M. WALD*
Well, I really am here under false pretenses because I don't have a
speech to deliver. I was told that I was to be a reactor, and I was very
happy to do that because, in my opinion, Dave Bazelon was the greatest
reactor of all time. There was nothing to which he didn't react.
Actually, I will confine my reactions to the two brilliant speeches that
have preceded me to a couple of sentences. One, Judge Mikva, almost
everything you said was wonderful about Judge Bazelon. But I wonder
whether he really would have been as critical of the deinstitutionalization
efforts as you think. Martha has laid out, I think, in chapter and verse all
the things that went wrong but, knowing Dave, I think he would have
wanted us to make those efforts anyway.
Now, as far as Martha's brilliant exegesis of mental health advocacy
goes, I will only say that I agree with her totally about the necessity for
public participation and, going along with that, my remarks are going to be
so brief that there's going to be lots of time for public participation here
today.
I do want to do something else that I think Dave Bazelon often did, and
that is to use any role that happened to come along to accomplish something that he wanted to accomplish, so therefore, having been handed a
reactor role, I'm going to make a few remarks about what I want to make a
few remarks about.
And that is the very interesting, perhaps controversial, interconnection
between Dave Bazelon as a judge and the mental health reform movement. Now, if I have any qualification to do that (and this is going to be
largely a historical perspective), I suppose it would be that I now have
spent thirteen and a half years on the same court as Dave, so I believe I
have some understanding of the constraints of the judicial role. But I also
spent five, maybe seven if you think of its preformation years, with the
Mental Health Law Project in the Seventies, so I also remember many of
our dilemmas, many of our aspirations, and much of our dependence upon
courts and judges like Dave. If you'll bear with me, I'd just like to go
through a little bit of analysis about the connection between these two
terrific parts of my life and these two terrific movements (Dave was a
movement all by himself) that are coming together today, the Mental
Health Law Project and Dave Bazelon.
* Judge, U.S. Court of Appeals for the District of Columbia Circuit. Director of Litigation, Mental Health Law Project, 1975-77. These remarks were made at the Mental Health
Law Project Twentieth Anniversary and Renaming Celebration, held at the Corcoran
Gallery of Art on March 20, 1993.
THE GEORGETOWN LAW JOURNAL
[Vol. 82:19
In my experience, for reform to happen in the legal field you generally
need three ingredients. One is some form of movement, unrest, unhappiness to the boiling point, as it were, in the basic constituency itself or at
least in the people who are speaking for the constituency-i.e., its surrogates. You also need a very committed core of lawyers. And you need,
finally, some hospitable forum in the government-executive, legislative,
or courts. I'd also add in parentheses, a little good press doesn't hurt. We
were very lucky in the Mental Health Law Project in the Seventies to have
some of that.
But the interesting thing is that each of these three ingredients plays
sometimes a more, sometimes a less, critical role, and they interact differently at different times in different movements. In the mental health law
reform movement, it was difficult to mobilize our basic constituency because they were mentally ill patients who at that time were mostly institutionalized. In the case of mentally retarded people, their parents and their
surrogates did actually mobilize themselves in national associations that
were of great help to us. There were mental health associations too, but
your basic patient constituency really needed surrogates-be they parents
or people who worked with them-who wanted reform to come about.
As a result, in the Mental Health Law Project (and in allied projects)
the lawyers carried a somewhat heavier burden to bring about the mobilization and the strategy than in some of the other reform movements that
were happening in the same era for women, minorities, and gays. Also, in
terms of the government, where do you go in the government to look for
help? Unless you have political clout within the constituency, it's very hard
to get a hospitable forum in the executive branch or in the legislature. It is
therefore in the law reform movements for the most disadvantaged, the
most oppressed people, that the courts have to be invoked. Justice Brennan said three decades ago that "litigation may well be the sole practicable
avenue open to a minority to petition for redress of grievances." 1 He was
talking about poor people, but I think his words would have been even
more applicable to the mentally ill.
The last point is that every reform movement has a potential down side
for some other important part of society. For women, we are told that it
means the end of family values. For the criminally accused, another area in
which Dave Bazelon was very active, you had a countermovement among
victims and law enforcement personnel. In the case of the mentally ill,
parts of established psychiatry looked at us with great askance. There were
also institutional jobs at stake, as some of you may remember. There were
pamphlets put out by the unions: "Out of the institutions and onto the
streets." The peace of mind of ordinary citizens and the sanctity of
neighborhoods was often raised as an ante when you started talking about
1. NAACP v. Button, 371 U.S. 415, 430 (1963).
1993]1
TRIBUTE: JUDGE DAVID L. BAZELON
the rights of the mentally ill in communities. In the special area that I
worked in (I was the counsel for Mills v. Board of Education,' which was
the second suit in the United States brought to assure mainline education
for mentally and physically handicapped kids), the school bureaucracies
turned out to have a great deal of difficulty with the educational concepts
we were pushing.
So there we have the dynamics of reform for the mental health law
movement: not much political clout, not a great capacity for selfmobilization in the constituency, and not a great deal of executive or
legislative interest. Now, into this third act, when it looks like the bad guys
are winning, come the judges and, in particular, Judge Bazelon. He was
certainly the leader, but fortunately there were other judges of like ilk
throughout the United States. There was Jerry Frank, whom I'd clerked
for a decade earlier, who was worried about problems of law and psychiatry and wrote on the subject. Later on, there were the Frank Johnsons, the
William Wayne Justices, and the John Minor Wisdoms.
Judge Bazelon's first major foray into the mental health law reform
movement, of course, came with the Durham case in 1954. 3 I'm not going
to go into any of the details-Martha's already done a wonderful job on
that.4 When he finally agreed to the demise of the Durham rule in 1972,
eighteen years later, Dave explained that his motivation in the first place
was "to throw open the windows of the [insanity] defense and ventilate a
musty doctrine with all of the information acquired during a century's
study of the intricacies of human behavior.", 5 That was a pretty large
aspiration and, you know, I think he went quite a ways in getting it done.
What is interesting from the point of view of reform, however, was not that
the precise Durham formula didn't sustain itself and that eighteen years
later it was modified to go along with the American Law Institute (ALI)
formula6 as to when an offender could be found responsible. I don't think
the formula itself was so important. What was important was what Dave
Bazelon did by proposing it. He started a national debate about the
insanity defense: when it should be invoked, in what conditions, what
happened after it was invoked, both in court and later on in the institution.
He made that debate very prominent in many important fora.
First of all, he brought prominent psychiatrists into the debate. Then he
brought in prominent lawyers. Remember, it was he who appointed Abe
Fortas to argue the Durham case in the District of Columbia Circuit Court
2. 348 F. Supp. 866 (D.D.C. 1972).
3. Durham v. United States, 214 F.2d 862 (D.C. Cir. 1954).
4. See Martha Minow, Questioning Our Policies:Judge David L. Bazelon's Legacy for Mental
Health Law, 82 GEO.L.J. 7 (1993).
5. United States v. Brawner, 471 F.2d 969, 1010 (D.C. Cir. 1972) (Bazelon, J., concurring
in part and dissenting in part).
6. See id. at 973.
THE GEORGETOWN LAW JOURNAL
[Vol. 82:19
of Appeals. Abe Fortas was ably accompanied by Abe Krash. Thus, you
began to get this debate visible in the best law firms in the city as well as in
academia and in the professional organizations. The debate became intense, whereas when I was going to law school, there had been no debate
at all.
When I worked in 1965 on the District of Columbia Crime Commission,
we donated an entire chapter to the Durham rule and how it was working.7
We talked about it as being of intense practical interest to law enforcement and to the community at large. So the first thing, and perhaps the
primary thing, that Dave Bazelon did for the reform movement was that he
created the debate, even if his solution didn't turn out to be the permanent
one.
Now, during the period of the Durham rule, the eighteen years that he
tried to make it work in a series of decisions, the interests that resist
change gathered force. The availability of psychiatric evaluation never
turned out to be a level playing field for indigents as compared with those
who could afford their own experts. The experts learned, after a while,
how to wield their expertise in testifying in court, no matter what the
formula was, whether it was Durham or whether it was Brawner.
It was basically a populist notion that Dave Bazelon had in the Durham
rule, that the jury, the voice of the community, should be the one that
decides whether or not so-called "blameworthiness" is attributed to persons regardless of their mental state. That populist notion never quite got
through. Over time, because of the conditions in mental institutions, even
those who might have pleaded the insanity defense often worried that they
would be better off if they didn't go that route. In Norval Morris's terms,
"Better bad than mad."
However, when Brawner finally replaced Durham in 1972 several important things had happened, which I think can be directly attributed to the
Durham rule. One was that now a very small (but very committed and very
sophisticated) law and psychiatry bar existed; two was that the problem of
how the law impacted mentally ill people was up front in academia and in
professional circles; and three, the courts were alerted: there had been
several cases that had gone up to the Supreme Court dealing with the
insanity defense.
On the sidelines, these same people were beginning to talk about the
deplorable conditions in the mental institutions. Horror stories were entering the legal awareness. Now we enter the Sixties and the explosion of the
Civil Rights movement. Other previously docile and oppressed groups
came to the fore and patterned their strategy and their legal theories of
7.
PRESIDENT'S
COMMISSION
COMMISSION REPORT
ON
CRIME
1966, at 530 (1966).
IN THE
DISTRICT
OF COLUMBIA,
D.C.
CRIME
1993]
TRIBUTE: JUDGE DAVID
L. BAZELON
discrimination after those that were so successfully used by the National
Association for the Advancement of Colored People Legal Defense Fund
to advance the cause of racial minorities.
The American Civil Liberties Union (ACLU) also broadened its focus.
Legal service lawyers in the poverty war came into contact with the double
sting of poverty and mental illness among their clientele. Public interest
firms were funded by foundations like the Ford Foundation, the Carnegie
Foundation, and many others.
In 1972, the second milestone in the mental health law reform movement was reached, and that was in Alabama in Wyatt v. Stickney. A very
courageous District Judge named Frank Johnson took a tour of the mental
health and the mental retardation institutions down there and was appalled at the indignities, at the cattle prods that were used on these
helpless and hapless individuals. And he decided he would do something
about it. His pioneering efforts basically signalled the beginning of the
Mental Health Law Project, a combination of the ACLU and an offshoot
of the Center for Law and Social Policy, where I was working at the time.
A little bit of foundation financing set us off. We were already in the Wyatt
v. Stickney case, but it was going to take a long time to implement the kind
of change in those state institutions that Frank Johnson foresaw. I do want
to point out, in terms of reform movements though, that a small group of
committed lawyers like the Mental Health Law Project can only survive if
they have funding, and funding usually follows success in the courts. These
two things travel together. So we needed these court victories badly in the
beginning.
Up here in the District of Columbia, Dave Bazelon was doing much the
same thing that Frank Johnson was doing in Alabama. He was deciding
cases like Lake v. Cameron,9 which said you can't commit someone who
may not be exactly oriented but is really not harmful to others or, even
with a little help, to herself. Society has to do something short of institutionalization to try to help that person. Then he decided Rouse v. Cameron, "
which said if you do commit somebody, you can't just ignore them and not
treat them, there is some minimal kind of legal obligation to have to treat
them. Those so-called "right to treatment" ideas then got picked up by
Judge Wisdom in the Fifth Circuit. Eventually, a variation on the idea hit
the Supreme Court. Up there it didn't come out as a right to treatment,
but in Donaldson v. O'Connor," another Mental Health Law Project case,
we got the Court to rule that you can't put somebody into an institution,
8. 344 F. Supp. 373 (M.D. Ala. 1972).
9. 364 F.2d 657 (D.C. Cir. 1966) (en banc).
10. 373 F.2d 451 (D.C. Cir. 1966).
11. 493 F.2d 507 (5th Cir.) (Wisdom, J.), vacated, 422 U.S. 563, on remand, 519 F.2d 59
(5th Cir.), vacated, Gumanis v. Donaldson, 422 U.S. 1052 (1975).
THE GEORGETOWN LAW JOURNAL
[Vol. 82:19
not give them any treatment, and keep them there if they are not a danger
to themselves or other people.
One other point I would like to make is that the interdependence
between judges like Dave Bazelon and lawyers like those on the Mental
Health Law Project staff is a two-way street. Even for the best judges, the
right arguments have to be made. "Waiver" is perhaps the saddest word in
a lawyer's lexicon. If the arguments are not effectively made, a judge-and
I've found this to my own consternation-is often completely unable to do
anything to help the situation. And to be an effective force in a movement
the lawyers themselves have to form a cluster. The Abe Fortases and other
sterling representatives in the private bar are great openers, but if you're
really going to make legal change in an area, then there has to be a group
of lawyers who do it all the time; they work off of one another, they learn
from each other, they back up one another-and that's the only way in
which you're going to have continuing reform. I point, as an illustration, to
our experience in another Mental Health Law Project case involving the
deinstitutionalization of Willowbrook (a success story that both prior speakers might consider, and one I think Dave Bazelon would have applauded).
The people who have worked much more closely with the Willowbrook case
are here today and can talk more knowledgeably about it. But just last
week the New York Times had a long article about the district judge who
2
stayed with that case eighteen years, until he was in his Nineties.' He,
together with the community groups that worked on it, saw a thousand
institutionalized mentally retarded people put in decent supervised community homes. Now, if that effort hadn't been begun back there in the
Seventies, despite all the arguments against it (many of them quite similar
to the criticisms that are being levied today), then those people would still
be in the back wards of the institution.
The final advance with which I credit Dave Bazelon, the mental health
reformer, is his wiliness. Those of us who were in his speech coterie many
years ago knew full well just how wily he was. We suddenly found ourselves
writing speeches about subjects we knew nothing about; we were on tight
deadlines and we weren't being paid anything except perhaps a smile here
and there. That same wiliness was utilized to the fullest in the cause of
mental health reform. In the District of Columbia, when I was working in
the mental health field, many of our greatest victories never got to the
Court of Appeals, so it wasn't as though Dave was always there to bless us
personally with a legal victory. The Mills case 1 3 on the right of handicapped
children to education and the St. Elizabeth's case-on which I, mea culpa,
also worked-are prime examples.
12. Celia W. Dugger, Big Day for Ex-Residents of Centerfor the Retarded, N.Y.
12, 1993, at Al.
13. Mills v. Board of Educ., 348 F. Supp. 866 (D.D.C. 1972).
TIMES,
Mar.
1993]
TRIBUTE: JUDGE DAVID
L. BAZELON
Those cases were decided by district court judges. They never even got
to the Court of Appeals. We were all thrilled that they weren't appealed. I
have to believe that Dave Bazelon, being the Chief Judge of the Circuit,
had made his mark with the district judges. His feelings and his concerns
did trickle down to the district courts, so that judges-like Aubrey Robinson, Barrington Parker, and Joe Waddy-who decided these very farreaching district court cases, which had profound implications not only in
the District of Columbia but also became benchmarks for the rest of the
country, realized they were acting under the blessing of their Circuit's
Chief Judge.
Another example of Dave Bazelon's wiliness: no case came to the Court
of Appeals for the D.C. Circuit with any kind of latent mental health issue
of any importance, but that-if the counsel were not an Abe Fortas or an
Abe Krash or a Ben Heineman or even the Mental Health Law Projectsure as anything, Dave would appoint an amicus. He would appoint us or
he would appoint some other mental health group (for whom we inevitably
served as counsel) as amicus curiae in that case, and so all the guns would
come roaring in. He never allowed any vital issue to be buried. It didn't
mean he won them all, but none of them ever went down without a full
funeral procession.
In starting the debate with Durham, in working to promulgate his beliefs
right through the whole circuit to other judges and then following through
with right-to-treatment cases he wrote himself, Dave Bazelon kept the
mental health reform movement going. I will sum up his legacy quickly.
First, I think it is largely as a result of his work that law and mental
health are bound together for eternity. They are never more to be separated. Neither can one ever again be oblivious to the other. Moving from
the insanity defense, through civil commitment, to conditions for institutionalized people, to treatment of mental health and mentally retarded patients in the community, the two must forevermore take account of each
other.
Second, although as Martha pointed out, the courts tended to retreat
from active supervision of mental and other institutions in the 1980s, the
legal recognition that there is some level of humane treatment and of
rehabilitation treatment that institutions cannot deny their inmates is still
with us today and gives us a foundation on which to build in the future.
Yes, there are an immense number of new problems for the newly
revitalized Mental Health Law Center, which will now bear David's name.
Some have referred to the rights of the homeless. I think the rights of
many of the homeless who are not institutionalized is an issue whose time
is here, along with the issue of the relationship between child abuse,
domestic violence, and criminal behavior. Some of you may remember
Dave Bazelon's strongly worded criminal opinions in which he was constantly probing into the background of those criminal defendants, much to
26
THE GEORGETOWN LAW JOURNAL
[Vol. 82:19
the consternation of some of the law and order types. He wanted always, in
Joe Perpich's words, to "look at it." That was the third and probably most
important legacy he left us. He didn't have all the answers, but he sure did
ask the right questions. And he also had a great part in creating a band of
committed, dedicated, sophisticated lawyers-the Mental Health Law
Project and their counterparts in other communities-who are going to
carry on, maybe not solve everything, but certainly not let us retreat into
the backwater that was the mental health field when he found it.
My conclusion is, judges do not get to be activist in reform movements,
but they can contribute to them and make a critical difference at critical
times when the other factors for reform are present. They can provide the
clout, the actual power that will encourage committed lawyers to try and
that will make other elements of society-including academia and professional organizations-sit up and take notice. Dave Bazelon did all of that,
and I'm absolutely thrilled to see his name attached to the Mental Health
Law Project today.