Judges, behavioral scientists, and the demands of humanity.

AuthorBurt, Robert A.
PositionIncludes letter to Professor Susan P. Sturm - David L. Bazelon Conference in Science, Technology, and Law

When I clerked for David Bazelon in 1964-65, a large original version of a Peanuts cartoon, inscribed by Charles M. Schulz, was displayed on the wall in the Judge's inner chambers. In the first frame of the cartoon, Lucy van Pelt discovers her comic book torn and crumpled on the floor. In the second frame, with outrage written on her face, she confronts her brother Linus with the corpus delicti - and Lucy, you will recall, was never far from glowering outrage. She shouts, "Who did this to my comic book? Are you responsible for this?" Linus responds, "Am I responsible? That is a very difficult question."

For the next several frames of the cartoon, Linus elaborates on the difficulties. With his ever-present security blanket pressed against his face and his customary dreamy expression, Linus propounds a series of questions: What is the meaning of responsibility? Is anyone truly responsible for his conduct? Is there such a thing as free will or is each of us driven by forces beyond our control?" Throughout this exposition, the outrage on Lucy's face mounts in intensity. Finally she explodes: she rolls up her tattered comic book and hits Linus on the head. In the final frame, Linus - stunned and floored, his security blanket knocked from his grasp - says sadly, "Her kind never understands."

There, we might say, was the trajectory of David Bazelon's judicial career; in his more somber moments, the Judge himself said something of the sort to me and to others. And there too is an encapsulated social history of the United States from 1954, when the Judge wrote the opinion in Durham v. United States,(1) to 1972, when the Durham experiment was abandoned in United States v. Brawner.(2) In 1954 the Linuses of this country were speaking out, raising questions about the causes of social disorder - not only regarding criminal conduct but more generally about the role of racial, religious, ethnic, and economic conflicts in fomenting disorder. The premise of these Linus-like questions around 1954 was that if we could understand the deepest roots of this divisiveness, we might then find means for healing; we might ease - we might even transcend - many of these social conflicts. By 1972, however, in the wake of political assassinations, race riots, and our continued embroilment in the Vietnam War, American social discord had almost drowned out the voices of our Linuses, and the Lucy van Pelts - quick to anger, even quicker to punish, and prepared to use books only as aggressive weapons and not as instruments of understanding - had come into dominance.

In this essay, I want to identify some of the premises that guided the Linus-like questions that Judge Bazelon raised from the bench, and the reasons in particular that he tried to enlist behavioral scientists to join with him in this questioning. At the end of this brief inquiry, I will conclude - and hope you are persuaded - that the Judge's enterprise, his conception of his role as a judge, and the correlative role he saw for the behavioral sciences are as appropriate and important for 1994 as he believed they were in 1954.

In 1954 no one in American public life, whether on the bench or elsewhere, was more insistent on raising these questions or more intent on promoting processes of social healing than David Bazelon. But he was not alone in that year. It is not at all coincidental that in 1954, when Judge Bazelon wrote the Durham opinion, the Supreme Court decided Brown v. Board of Education.(3) The underlying ambition and premises of both decisions were the same. The ambition was to transcend persistent, violent social conflict. The premises were: first, that mutual understanding among the warring parties was the key to achieving this ambition; second, that the judiciary had an important role in promoting this mutual understanding; and third, that the judiciary could enlist the assistance of behavioral scientists in this social healing enterprise.

Brown directly took on the problems of relations between Blacks and Whites, the legacy of slavery, a bloody, destructive civil war that ostensibly freed black people, and the succeeding segregation regime that re-enslaved them. Durham was not directly aimed at these problems: the defendant, Monte Durham, was a white man, and he was not charged with a violent crime;(4) but a perceived link between crime and race relations was nonetheless the unspoken subtext of Durham, as these two elements were inextricably intertwined in popular understanding, especially in the District of Columbia, which in 1954 had the highest proportion of non-Whites in the population of any large American city.(5)

Durham was, of course, much more direct than Brown in enlisting behavioral scientists for its social healing purposes. The goal of Durham was to invite psychiatrists, in particular, to give testimony based on their own scientific discipline's understanding of human behavior, rather than through the presumed distortions of nineteenth-century legal categories in the traditionally formulated insanity defense. But behavioral science also played an important role in Brown. Although it is easy to overlook this role forty years afterward, the central legal problem in Brown was to identify the grounds for overruling the holding in Plessy v. Ferguson that "separate but equal" public facilities did not violate the equal protection guarantee of the Fourteenth Amendment.(6) The Supreme Court ruled to the contrary in Brown, finding that "[s]eparate educational facilities are inherently unequal." It came to this legal conclusion, however, by denying that this was a question of law. The dispositive step - indeed the only step - in the Court's reasoning to support its finding of the inherent inequality of school segregation was this one sentence: "Whatever may have been the extent of psychological knowledge at the time of Plessy v. Ferguson, this finding is amply supported by modern authority."(8) The Court then appended a footnote to this sentence, citing seven different contemporary studies by social scientists as the "modern authority" that supported its disapproval of Plessy.(9)

The Court was strenuously criticized for this invocation of scientific authority to support its conclusion. For our evaluative purposes today, we can ignore the segregationist complaints about "pointy-headed left-wing intellectuals" setting the Court's entire social agenda. We cannot, however, so quickly dismiss the criticism from sympathetic observers that by relying on social scientists, the Brown Court obscured the moral basis for their condemnation of race segregation and appeared to treat the issue as technocratic - that is, properly resolved by experts alone - rather than democratic at its core.(10) There is considerable force in this criticism. But the contemporaneous juxtaposition of Durham with Brown reveals a common underlying assumption in the two cases about the relationship between scientific expertise and moral judgment that is responsive to this criticism, if not fully exculpatory.

In Durham and in succeeding cases addressing the role of psychiatric testimony in insanity defense cases, Judge Bazelon was much more explicit and revealing regarding the relationship of scientific and moral judgment than the Supreme Court's compressed, cryptic citation in Brown.(11) As the Judge saw it, properly formulated psychiatric testimony should give an account of the criminal defendant's psychological dynamic: what forces, one might say, arising from his "nature" (that is, his genetic endowments) and from his "nurture" (that is, his experiences in his family and cultural environments) might help to explain the origins of his behavior.(12) This psychiatric testimony about the defendant was, according to Judge Bazelon, quite distinct from any moral judgment.(13) The jury alone was entitled to reach a moral judgment; it, and it alone, would decide whether the defendant's conduct was morally blameworthy.(14)

Judge Bazelon never succeeded in enforcing this distinction in the insanity defense cases that appeared in his court from 1954 when Durham was decided until 1972 when Durham was abandoned. This was a source of enormous frustration to the Judge - the basic reason he finally declared the Durham experiment a "failure" and one of the reasons, I believe, that he felt such a kinship with Linus, sitting stunned from his sister's blow and unhappy at her unwillingness or inability to understand. As the judge saw it - quite justifiably, I believe - no matter how hard he tried, psychiatric witnesses still acted like Lucy van Pelt, inattentive to the complexities of human conduct and quick to reach punitive moral judgments, embedding these moralistic conclusions in psychiatric jargon about whether the defendant was "psychopathic" (thus mentally ill and morally blameless") or "sociopathic" (and thus more "evil" than "ill"). (For those who are aficionados of Charles Schulz's work, you will remember that Lucy also served as the resident psychiatrist for the Peanuts gang; she would sit behind a kind of adapted curbstone lemonade stand, under a sign announcing that "the psychiatrist is in," and, in response to the accounts of human pain and error that Charlie Brown and the other patients would bring to her, she would dispense dismissive moralistic homilies.)

Lucy van Pelt, as well as the other psychiatrists who were "in," deserved Judge Bazelon's relentless criticism. A tension always existed, however, in the Judge's criticism of psychiatrists in insanity defense cases for their failure to distinguish between scientific and moral judgments. The tension arose not only because of the intrinsic difficulty of drawing this distinction, but because, I believe, the Judge himself considered the basic tenets of behavioral science not only consistent with but supportive of his deepest moral beliefs. In this sense, the judge himself did not distinguish between scientific and moral judgments. Judge...

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