Archives: 08/2012

Cato Unbound: Mental Health and the Law

We have lately witnessed several high-profile criminal events for which insanity may or may not be a tempting explanation. To name only the most prominent, consider the spree killings in Aurora, Colorado and Oak Creek, Wisconsin; Anders Breivik’s rampage in Norway; and the shooting of former representative Gabrielle Giffords and a group of her constituents. Giffords’ shooter, Jared Lee Loughner, was medicated against his will for nearly a year and recently entered a guilty plea. Anders Breivik has denied the suggestion that he was mentally ill, insisting that he is of sound mind and motivated only by ideology.

At Cato Unbound this month, we’re taking a close look at mental health and the law. American University’s Dr. Jeffrey A. Schaler is skeptical that “insanity” is a good explanation for criminal—or any—behavior. Indeed, Schaler denies that “mental illness” is a valid category of disease. For that reason he is also one of the world’s foremost exponents of consensual psychiatry, a branch of the discipline first comprehensively defended by Dr. Thomas Szasz: if a patient wishes to be treated, he should be allowed to seek treatment; if not, his behavior remains his own responsibility.

Dr. Allen Frances, professor emeritus of psychiatry at Duke University, disagrees in part: while mental illness is unlike many other diseases, those who present a clear threat to others owing to mental illness should not be treated either as criminals or as harmless. They have a condition that needs to be treated in order for them to rejoin the rest of society.

Jacob Sullum, a journalist and author who has often written on mental health, therapy, and the law, points out that psychiatry can’t have things both ways—either a criminal is responsible for his actions, in which case he should be punished; or the criminal is not responsible for his actions, in which case one might argue for involuntary treatment. Yet current laws, particularly regarding sexually violent predators, often try to do both to the same person.

Amanda Pustilnik, an associate professor of law at the University of Maryland, argues that the outrage about coercive psychiatry is misplaced: more mentally ill people inhabit our prison system than are to be found in our psychiatric hospitals. They get there not because they are more criminal, but because they are less cooperative with police, worse at defending themselves in court, and find it difficult to comply with the rules of prison life and parole. Many of these people would prefer to be in mental institutions, where they would receive the treatment they both need and want.

The conversation will remain open through the end of the month, so be sure to subscribe via RSS or follow us on Twitter. We welcome readers’ letters and may publish them at our option; send them to J Kuznicki (at) cato . org.

Can Americans Handle Candor?

Today Politico Arena asks:

Is Paul Ryan’s budgetary candor harming GOP congressional candidates?

My response:

Today’s Arena question boils down to this: are Americans able to handle the truth—that we’re going broke, as Paul Ryan puts it, plainly. P.T. Barnum allegedly said, “There’s a sucker born every minute.” Unfortunately, voters too often prove him right.

As I implied in my post yesterday, Robin Hood Democrats, promising “free goods” provided by the rich, are betting that Americans are too stupid to see through their many scams. Their cynicism is as boundless as their politics of personal destruction. To take the simplest example, in June 2009, and often since, Obama assured us: “No matter how we reform health care, we will keep this promise: … If you like your healthcare plan, you will be able to keep your healthcare plan. Period. No one will take it away. No matter what.” As Professors Richard Epstein and David Hyman have shown, he’s already broken that promise in multiple ways.

But give the president his due: he makes Robin Hood look like a piker. His latest? In Iowa yesterday he announced that the federal government will purchase over $150 million in meat and fish to help ranchers survive the drought. “That food is going to be spent by folks over at the Pentagon and other places.” Never mind that you don’t “spend food,” this is simply shades of Solyndra—the flimflammery that runs through this feckless administration. But the main question is, will Americans fall for it again?

(Alas) There’s No BBQ Clause in the Constitution

Surprisingly, President Obama’s first direct attack on Paul Ryan since the congressman’s selection as Mitt Romney VP nominee doesn’t involve the threat of grandma being pushed off a cliff. Instead, it involves the latest farm bill, which has too many subsidies and food-stamp increases for House Republicans’ tastes (good for them).

Now, I’m no expert in agriculture policy – for more on farm bills and related disasters, I recommend my colleague Sallie James’s work – but one provision in the disputed legislation caught my eye: Apparently the federal government plans to buy over $150 million of meat and fish. Sounds like a great cookout, but what gives the government the power to do that? Where exactly is the Constitution’s BBQ Clause?

If only President Obama could take a page from another embattled Democratic president facing a drought-stricken nation: In 1887, Grover Cleveland vetoed a bill appropriating $10,000 for seeds for suffering Texas farmers, saying, “I can find no warrant for such an appropriation in the Constitution.” (For more on that and other similar examples, see this report from 10 years ago this month.)

What a long way we’ve come.

Paul Ryan’s Tax and Spending Proposals

Here are some of my views on Paul’s Ryan’s fiscal proposals.

His 10/25 tax plan:

His proposed spending reforms:

His budget plan discussed at a Cato forum

The Cuba Trade Embargo: Ryan Was Against It Before He Was For It

From the Miami Herald blog:

Ryan voted at least twice in 2001 and 2004 against the [Cuba] embargo, but since 2007 he has opposed efforts to lift it, said Mauricio Claver-Carone, a conservative blogger and executive director of Cuba Democracy Advocates.

“He needed to be educated about the embargo,” Claver-Carone said. “He’s good on Cuba.”

Still, in 2009, Ryan still seemed opposed to the embargo when he told the Milwaukee Journal Sentinel: “If we’re going to have free trade with China, why not Cuba?” Ryan’s philosophical opposition to the embargo is rooted in the politics of the Midwest, which sees trade opportunities with Cuba.

So, the good news is, at some point in time, he had good instincts on this issue. The bad news is, he’s a politician.


Ricardo and Mass Mortgage Refinancing

With FHFA’s chief Ed DeMarco declaring mass principal write-downs off the table, the attention, has appropriately turned to Congress. First of all, this is really where the debate should have been. DeMarco is an acting director with little, if any, statutory authority to impose potentially large losses on the taxpayer in order to help mortgage borrowers. If we are going to do a massive giveaway to borrowers, the responsibility for such lies with Congress.

One such proposal was been put forth by Sen. Merkley, discussed by Joe Stiglitz and Mark Zandi in today’s New York Times. Stiglitz and Zandi claim that lowering the interest rate on outstanding mortgages would “work like a potent tax cut.” Monthly payments would be reduced, increasing disposable incomes and like magic, turn around the economy. As I’ve mentioned elsewhere, however, such a scheme is really just a redistribution of wealth and not wealth creation, as the “savings” comes at the expense of the holders of mortgage assets.

The Federal Reserve Bank of New York has come up with an interesting argument why such a scheme would not be “zero-sum.” Their argument is that most mortgage assets are held by the government and that the government’s “spending on U.S. goods and services does not depend to any significant degree on their income from the mortgage bonds.” I’d be the first to admit that government spending does not appear to be deterred by massive losses or deficits, however that does ignore the fact that someone else ultimately pays for government.

If some version of Ricardian Equivalence holds, then losses suffered on mortgage securities would be viewed as future tax increases, decreasing current consumption. I applaud the NY Fed for at least attempting to put some numbers behind their already chosen policy, but the fact is I cannot see how anyone, with a straight-face, could claim to know with any certainty whether such a program would be zero, positive or even negative-sum. I can think of all sorts of reasons for such to be a net-loss, like scaring investors away from the mortgage market and hence reducing mortgage credit and weakening housing demand, but I’d be the first to admit I don’t know the net impact with any degree of certainty. If what Stiglitz and Zandi ultimately want to do is provide a tax cut, then call for a tax cut, such would be far more transparent than continuing to use mortgage finance policy as an opaque regressive transfer to well-off homeowners.

TSA Profiling, Security Theater, and the Fourth Amendment

This weekend, The New York Times reported that the Transportation Security Administration’s “behavioral detection” program at Logan Airport has devolved into a racial profiling program, according to complaints from 32 federal officers who’ve seen up-close how it works. And yet to my eye, racial profiling isn’t the only constitutionally problematic aspect of the program revealed in the article (emphasis mine below):

In interviews and internal complaints, officers from the Transportation Security Administration’s “behavior detection” program at Logan International Airport in Boston asserted that passengers who fit certain profiles — Hispanics traveling to Miami, for instance, or blacks wearing baseball caps backward — are much more likely to be stopped, searched and questioned for “suspicious” behavior.

“They just pull aside anyone who they don’t like the way they look — if they are black and have expensive clothes or jewelry, or if they are Hispanic,” said one white officer, who along with four others spoke with The New York Times on the condition of anonymity. […]

At a meeting last month with T.S.A. officials, officers at Logan provided written complaints about profiling from 32 officers, some of whom wrote anonymously. Officers said managers’ demands for high numbers of stops, searches and criminal referrals had led co-workers to target minorities in the belief that those stops were more likely to yield drugs, outstanding arrest warrants or immigration problems.

Since everyone seems to be in agreement that the alleged profiling at the focus of the story is grossly unacceptable, I want to focus on what appears to have given rise to it: Managerial pressure to use TSA screenings as a means of enforcing drug laws and other ordinary criminal statutes, apparently resulting in a system of de facto quotas for “criminal referrals.” Even if this goal were being pursued without the use of racial profiling, it would be problematic, because the constitutionality of TSA searches is premised on the idea that they are not conducted for ordinary law enforcement purposes. We now seem to take for granted that narcotics interdiction is a legitimate aim of warrantless TSA searches—even on domestic flights not subject to the Fourth Amendment’s “border search” exception—but if we hew closely to the legal rationale for these searches, it’s not at all clear that ought to be the case.

Thanks to the Fourth Amendment, government agents cannot normally demand that we submit to intrusive, suspicionless searches as a condition of exercising our right to travel. In one 2000 case, the Supreme Court held that a police officer  had violated the rights of a bus passenger by merely squeezing the outside of his carry-on bag, never mind conducting one of the “enhanced” pat-downs for which TSA has become infamous. The legal rationale for making an exception for airlines can be traced to a string of cases from the early 1970s, in which courts developed a “special needs” doctrine, largely in response to a string of high-profile plane hijackings in the 60s, creating an exemption from the Fourth Amendment’s warrant requirement under certain circumstances. Once crucial test was that such warrantless “special needs” searches  had to be conducted for the purpose of protecting public safety, not simply for carrying out ordinary criminal investigations or law enforcement functions.

As the 9/11 attacks showed, a hijacked airplane can be transformed into an incredibly destructive weapon. But bulletproof cockpit doors, new training for airline staff, and changed passenger behavior are the most important reasons a 9/11-style hijacking attempt would be extraordinarily unlikely to succeed today. Thus, as a recent House Transportation Committee report noted, “the primary threat is no longer hijacking, but explosives designed to take down an aircraft.” But that’s a problem we had pretty well in hand under the older, less intrusive procedures: No passenger has detonated a smuggled bomb on a U.S.-originating flight since 1962, though given TSA’s consistently lackluster performance in spotting  dummy bombs in tests, it’s not clear how far that should be ascribed to gate searches. TSA does seize quite a few guns, mostly from the bags of people who’d forgotten about a legal firearm—along with pocket knives, corkscrews, and other contraband, much of which is later auctioned off. And of course, they turn up narcotics—though occasionally TSA screeners find it more lucrative not to turn them up.

If we take the Fourth Amendment seriously, we should demand strong justifications for departures from its core requirements, and take care to prevent the exceptions from swallowing the rule. We shouldn’t just ask whether there’s some legitimate safety or security purpose that might justify some form of search, but whether the scope and intrusiveness of the search is calibrated to the rationale for the exception. Police officers can pat-down detained persons for weapons to ensure their own safety—but that doesn’t entitle them to search, say, a locked container out of the suspect’s reach. The question, in other words, should be whether the intrusiveness of the search reasonably serves the claimed security purpose, or whether its practical effect is, in reality, to serve ordinary law enforcement purposes with little marginal security benefit. And, indeed, some courts have held airport searches to be unlawful when they strayed too far from legitimate security purposes.

If these officers’ allegations are accurate, the problem with the program they describe is not just that it employed racial profiling, but that it wasn’t limited to profiling for security threats. Rather, it subjected passengers to additional intrusive searches in for the ordinary law enforcement purpose of detecting narcotics. And these were hardly incidental or exceptional: The officers estimated that 80 percent of stops and follow-up searches “focused on stopping minority members in response to pressure from managers to meet certain threshold numbers for referrals to the State Police, federal immigration officials or other agencies. ” Such a program of searches simply cannot reasonably be said to be properly aimed at the purpose of serving the “special needs” of airport security. This kind of systematic exploitation of the security exception as a loophole for law enforcement searches is, perhaps, too routine now to raise an eyebrow—the Times makes no comment on it—but it should.