It's Hard for the Government to Isolate and Treat Potential Mass Shooters--And For Good Reason

The NRA has a talking point that never seems to generate much discussion: its call for the government to prevent mass shootings by isolating and treating the mentally ill. Some law enforcement authorities have recently made the same call for reform, arguing that laws need to make it easier for them to detain suspicious people, such as the man who went on a shooting rampage in Parkland, Florida, and bring them to mental health professionals. These sound like reasonable, even compassionate proposals, especially after massacres by deranged shooters who, in hindsight, were exhibiting signs of trouble.

I have some experience in this area. As an attorney, I have had gone before a judge and asked him to commit law-abiding citizens to a psychiatric facility against their will. It can be an uncomfortable job for an attorney who feels passionately, as I do, about the virtues of constitutional rights and limited government. In the world of involuntary commitments, many of the features that would normally constrain a state's ability to lock up its citizens--juries, proof of guilt beyond a reasonable doubt, the right to bail, extensive discovery procedures--don't exist. A citizen whose liberty is at stake doesn't get a public trial, just a short hearing at the psychiatric hospital itself. Judges appear by teleconference and routinely rely on the expert opinion of the state's own experts (patients can but generally don't have experts of their own). The whole thing lasts little more than thirty minutes.

It's not a broken system, but it is a system of relaxed constitutional protections that relies heavily on the honesty and integrity of the professionals within it. And for that reason, it represents a potential constitutional loophole that a government, hamstrung by the constitutional protections, but nevertheless pressured to guarantee public safety, could exploit.

Since the notions of freedom and liberty became vogue, institutionalization on the grounds of mental illness has become a convenient loophole to imprison dissidents without proof of guilt. And no case study better illustrates how the legal mechanism of involuntary commitments can become a tool for oppressive regimes than Soviet Russia.

Toward the end of the Cold War, American psychiatrists examined Pyotr Grigorievich Grigorenko. Grigorenko was a highly-decorated major general for the Soviet Union until he became a vocal dissident. Authorities brought him to government psychiatrists, who decided that Grigorenko's political views were the symptom of a mental disorder. They reasoned that his fear of the government was paranoia--though he was actually being closely monitored by the KGB--and that his obstinate criticism of authorities--something that could have gotten him shot--was suicidal lunacy. Over his objections, psychiatrists committed him to a facility to cure him of "reformism."

But when American psychiatrists examined Grigorenko, they found no sign that he was, or ever had been, psychotic. To them, his willingness to advocate reform despite the inherent dangers was a mark of conviction, not a symptom of madness. Grigorenko's confinement raised suspicions that the Soviets were using psychiatric hospitals as political prisons and tools for social control.

A delegation confirmed those suspicions after visiting and inspecting Soviet psychiatric hospitals in 1989. On paper, the Soviet laws for involuntary commitments are similar to those here in the United States. In both cases, the government can only commit those who both suffer from a mental disorder and pose a danger to themselves or others.

But in practice, the Soviet system was much different. The delegation learned that Soviet psychiatrists' notions of what constituted a mental illness and when someone posed a threat of harm were so broad and elastic that they could confine healthy individuals who posed no threat of violence. Thanks to the uncertainties inherent to psychiatry, psychiatrists could commit virtually anyone that the KGB wanted them to. Soviet psychiatrists became notorious for using an invented diagnosis, "sluggish schizophrenia" to label neurotic behavior as a symptom of a mental disorder. Patients like General Grigorenko who espoused disfavored views were considered diseased. Patients also could be committed even when they posed no danger of physical harm to themselves because political harm itself was dangerous. Those who spoke out against the government, became religious, or illegally crossed a border were considered dangers to society.

Like the American system of involuntary confinements, these psychiatrists were effectively the gatekeepers to their hospitals. But the professional integrity of Soviet psychiatrists proved no match for pressure from the KGB. American observers met a patient who came to a psychiatric facility after the KGB caught him visiting the apartment of a political subversive. Instead of doing an examination, his examining psychiatrist told him, "I have a family and I need this job. I and the rest of the Commission will do what we are asked by the KGB." Observers also saw that clinicians would skew the results of their examination by interviewing them in an adversarial way--they compared exams to courtroom cross-examinations. Patients who responded with hostility were described as paranoid.

Not surprisingly, involuntary confinements became a Soviet tool of repression like the GULAGs of old. But in some ways, involuntary commitments were even better at suppressing dissent than the GULAGs. By declaring someone mentally ill and dangerous, the Soviets could simultaneously avoid embarrassing public trials while also stigmatizing and discrediting political or religious dissidents, whose views could then be shrugged off as lunacy.

Fortunately, involuntary commitments here in the United States are not systematically abused. Psychiatrists don't face reprisals when they don't recommend commitment. Commitment periods are limited in duration. Concepts of mental disorder and risk of harm are narrowly applied. Law enforcement generally respects a person's right to refuse treatment and uses involuntary commitment as a last resort.

Of course, these features that separate the American and Soviet systems also render involuntary commitment a woefully inadequate tool for protecting the public from mass shooters such as the one that went on a rampage in Parkland, Florida.

If Americans wanted to rid themselves of the weirdos who aren't breaking the law but who make us nervous nonetheless, the government could wield involuntary commitments in a heavier way. Commitments could become a first resort when arrest isn't an option. Mental health examiners could confine more mentally ill people by labelling any minor symptom as a mental disorder. Courts could read lawful, even constitutionally-protected behavior--stockpiling weapons, posting controversial speech on an online forum, attending a mosque with a reputation for radicalism--as signs of danger. Psychiatric hospitals could become quasi-prisons for a new class of quasi-criminals: a holding place for those who make the neighbors squirm but can't be convicted of a crime.

Times like these call for a few important reminders. First, the limitations of involuntary commitments are the system's saving virtues. Second, our legal system is not designed to find and punish criminals before they become criminals--and for good reason. Third, we should not expect law enforcement to seek out and detain such people.

Finally, it is worth remembering that the NRA is not an advocate for freedom in general, just one particular freedom. Those of us who value freedom in general will beware a call for reform that would protect one freedom at the expense of many others.

Further Reading:

You can read more about the story of General Grigorenko here.

Richard Bonnie has written extensively on the political abuse of psychiatry in the Soviet Union and elsewhere. You can read one of his papers here.

For Another Perspective:

The Atlantic recently published an exchange with John Snook, the director of an organization that advocates for more robust mental health treatment. Snook favors a relaxation of the standards needed for involuntary commitments; specifically, a relaxation of the requirement that a person pose a danger before being committed.

Changes to involuntary commitment laws are not the only reforms being proposed. Five states have implemented "red flag laws" that allow law enforcement to temporarilly confiscate someone's firearms when they show signs of trouble. Such laws have been at least somewhat effective, especially in preventing suicides.

Note: Though I have some experience with involuntary commitments as an attorney, I don't purport to be an expert in that practice area.

Let Them Play

It's nice that Americans can test the patriotism of their citizens with North Korean ease. Those who stand during the national anthem and applaud speeches from their Commander-in-Chief are the faithful. Those who do not are the traitors. It's that simple. These days no one gets too bogged down in the nuances of John F. Kennedy's call to "ask what you can do for your country." If Americans did concern themselves with such things, then those True Patriots who have been so adament that the NFL coerce its players into standing for the national anthem might send a suggestion to the NHL, which refused to let its players play for their countries during the 2018 Winter Olympics.

The NHL's disappointing stance follows five consecutive winter games in which the world's best professional hockey players asked what they could do for their respective countries and answered by doing what they do best. The league owners generously accomodated their players by skipping the annual All-Star Game and taking a two-and-a-half week break from the regular season schedule. It felt like a win for everyone. The players had the privilege of playing for their countries, while their countrymen had the privilege of watching some of the purest competition that sports has to offer. Though an inconvenience, the Olympics served as an opportunity for the league to showcase its product on the most international of stages before an audience that ordinarilly doesn't care for hockey.

But in the year leading up to the Olympics, NHL ownership smelled an opportunity to capitalize on the patriotism of its players by using their participation as a bargaining chip in labor negotiations--a charge the owners tepidly deny. When the players refused to bend, ownership grounded them from attending the games, trotting out excuses that were either nakedly hypocritical (they expect us to believe that owners who hire goons specifically for their ability to punch other players' faces in but don't require facemasks are suddenly concerned about player safety?) or unapologetically pragmatic. "We certainly understand and appreciate the players want to be a part of the Olympics," one owner lamented, "but from our perspective, it is difficult for our business."

Thus we meet at the dubious intersection of capitalism and patriotism. It is an intersection where tax evaders and profiteers have put their own interests first. Robert La Follette said in the midst of World War I that "wealth has never yet sacrificed itself on the altar of patriotism."

But it is also an intersection where some of the most unsentimental industrialists have put their country's welfare over personal wealth. Cornelius Vanderbilt, for example, often said that "there is no friendship in trade." But in 1862, when a confederate iron-clad warship threatened to destroy the entire wood-hulled U.S. Navy, Secretary of War Edwin Stanton desperately telegrammed sent him a telegram, asking how much it would cost for Vanderbilt to use his private fleet to stop the confederate threat. Vanderbilt surprised Stanton by dedicating his prized $1 million steamship--the Vanderbilt--into the fray, free of charge, on the one condition that he could personally equip it for battle.

NHL owners might take a cue from Commodore Vanderbilt.

In the interest of fairness, let us concede a couple points. First, NHL owners have every right to tell their players where they can and can't play hockey. Second, sending players to the Olympics during prime hockey-viewing season is no small sacrifice, even once every four years. But even in the most sympathetic light, the owners still look ugly. Patriotic sacrifices are never convenient, as anyone who has voted, served on a jury, or held a job open for a soldier on military leave knows. Moreover, the players' vocal enthusiasm for donning their nation's colors puts the owners to shame.  Just as the players deserve praise for being ready and willing to pad up for their homeland, the owners deserve criticism for standing in their way.

The casualty of the owners' pragmatism will be the unifying experience that comes from watching America's best push and shove not for money but for America herself. Perhaps the owners can think about that the next time they stand for the national anthem.