9 1
AWAKENING
I STEPPED INTO the main entrance of the federal district courthouse, a sterile modern building facing the manicured lawn of the Mall, between the Capitol and the White House in the heart of official Washington. I greeted the guard by name as I walked through the green marble lobby. âHow ya doinâ Mr. Hapner? Nice to see you back,â he said.
âIâve got a big case in district court this morning,â I said, as breezily as I could manage, as if I had trials and arguments in the courthouse every day. Just two years earlier, in 1965, I had been a law clerk in this same building, my first job out of law school, doing research and drafting opinions and memoranda for an appellate judge. Today I was returning, dressed in my gray pin-striped suit, carrying my new monogrammed calf-skin briefcase. I was lead counsel in a case I cared about deeply, asking the court to take unprecedented steps to protect the rights of mental patients confined in public mental hospitals against their will. I was no longer carrying the bags for a senior partner in a case for a bank or drug company. This was my first big step into professional autonomy.
I had spent months preparing, learning about mental hospitals and the diagnosis and treatment of mentally ill people, interviewing 10experts, and lining up witnesses. If we could establish that my client was receiving inadequate treatment, the decision would have major implications for the hundreds of thousands of patients confined in mental hospitals throughout the country. Success would mean that courts would, for the first time, look behind the sealed doors of the hospital and evaluate the activities, the tedium and neglect that characterized the patientsâ livesâtheir long days watching soap operas, their sunlight filtered through thick windows and mesh security screens, surrounded by patients on thorazine rocking back and forth and chewing their tongues. Courts would have to determine whether the hospital was providing adequate treatment for the inmatesâ mental condition to justify their incarceration for an indefinite term.
As I entered the courtroom I felt a mix of excitement, anticipation, and terror. This was a highly visible case and Jim Ridgeway was covering it for The New Republic.1 He greeted me at the courtroom door with a big, gap-toothed smile. âIs your client like McMurphy? Is Nurse Ratched beating him down? Does this case involve an effort to hit back at the whole repressive system that is clamping down in this country?â
âI am just focusing on this hearing, this morning,â I answered. âIt is about one guy who has been held without treatment for over four years. The Constitution doesnât permit that.â
Of course, I had read One Flew Over the Cuckooâs Nest, the Ken Kesey novel that had been published just a few years earlier, along with R. D. Laing and Thomas Szasz, and I knew the sociological and cultural implications of this challenge to psychiatric authority.2 But this was a law case in a courtroom, and I had never conducted a hearing before. I was too tense for a casual conversation about sociology or literature.
By the time I arranged my papers at the counsel table and sat down, my client was brought into the courtroom by two marshals. 11Charles Rouse looked confident and hopeful despite his ride from St. Elizabeths Hospital in handcuffs, alone in a bus with security screens on the windows. He was a man in his mid-twenties, dressed in an ill-fitting gray suit and a narrow black tie, his skin pallid from his years locked away from the sunshine, with the demeanor of an ambitious used car salesman. His black hair was slicked back, and he wore dark-rimmed glasses that enlarged and framed his darting eyes. There was a little swagger in his walk, as if he were pleased to be the focus of attention. We shook hands.
âHow are you feeling?â I asked him.
âNervous,â he said.
âMe too,â I said.
I found myself representing Charles Rouse in court that day because of an unusual telephone call I had received six months earlier. I was sitting in my office under the eaves of a brick mansion near Dupont Circle, a charming, oddly shaped little room, which I liked very much, even the annual spring ritual when the serviceman came through my office and climbed out my window on his way to tune up the air conditioner on the roof. The mansion housed the law firm of Arnold & Porter.
The firm had been founded in the fifties by three veterans of the New Deal. It was known for its smart, innovative lawyersâeffective advocates for major corporations, as well as, paradoxically, flinty independents willing to take on unpopular clients, like accused subversives in the McCarthy years. It was a pleasingly eccentric place to begin my career, but the initial blush of novelty had faded. I was becoming impatient with work on issues that I didnât care aboutâlicense agreements for marketing laundry soap and joint ventures for shopping mallsâdrafting legal memorandain 12long days in the library, and client conferences where my job as a junior associate was to take notes and try to look interested.
On that afternoon I was drafting testimony for a trade association executive for a congressional hearing on bank interest rates when I received a call from David Bazelon, the chief judge of the Federal Court of Appeals, where I had served as a law clerk. I was familiar with Judge Bazelonâs reputation at Law School, a restless and creative judge who used his judicial authority to work for social change. To do this, he was willing to reach out to promote novel legal theories. He was particularly identified with probing exploration of the insanity defense.3 Because I hadnât worked directly under him, I had been spared the often tense exchanges he had with his own clerks, with whom he could be demanding and ill-tempered.
âCan you come down to see me at the courthouse?â he asked, with no preliminary small talk.
âWhen?â
âNow.â
I looked over the testimony that I had been drafting. âSure,â I said. When the chief judge asks, I thought, it was a good idea to say yes. I knew that he often reached out to his former clerks to assist him in drafting speeches and developing new legal theories. But since I had not been one of his clerks, I was flattered that he was calling on me. And there was a good chance that he wanted to talk about something more interesting than the maximum interest rates that can be charged on an unsecured loan.
The chief judgeâs suite of offices looked over the Mall, at the west façade of the Capitol, which was glowing pink in the setting sun. It looked to me like the kind of picture postcard view that tourists send home. To my left the dome of the Capitol hovered. At the other end of Pennsylvania Avenue stood the White House. The Mall was surrounded by sprawling government buildings housing cabinet departments, each with endless corridors leading to beige 13cubicles, spreading out in huge rectangles from classical entrance colonnades. The bureaucratic decisions flowing from those offices came to this court for review.
When Judge Bazelonâs secretary showed me into his office, the judge remained seated, the overhead lights making a halo of his silvery hair. He hardly looked up as he gestured me to a chair, across a large expanse of desktop covered with drafts of half-completed opinions and marked-up lawyersâ briefs. On the wall behind his head he had hung a dramatic etching of himselfâyounger, ruggedly handsome, and darkly introspective. What kind of person decorates his office with such a picture of himself? I wondered. I knew that he gave inscribed etchings to his law clerks at the end of their yearâs clerkship, and many of these portraits decorated the offices of partners in the cityâs most prestigious firms.
Judge Bazelon wasted no time. âLook, I have just handed down an opinion that has huge implications for the way courts deal with insanity.â He tossed the printed advance sheet, a little pamphlet, across the desk toward me. âThe case will go back to the district court for a hearing and I want to make sure that it is handled right. Read the opinion and go back to the firm and tell them that I want you to handle the case in the district court. Iâll bet that they will let you do it.â
âWhat do you want me to do in the district court? Will there be an evidentiary hearing?â
âHow do I know? I want you to figure it out. Our court has held that involuntary mental patients must be given adequate treatment. This poor schmuck Rouse has been in the hospital for four years after committing a misdemeanor. Heâs just a kid. It looks like they arenât giving him any treatment at all. He could spend the rest of his life there. And,â he added, with a laugh, âif all else fails, you can try a writ of rachmunes.â
âRachmunes? Whatâs that?â
14 âDonât you know any Yiddish?â he said with mock surprise. âRachmunes is basic human feeling, compassion, sharing someone elseâs sorrow. This is the generation gap.â True, my parents protected me from the Yiddish language as part of the project of making me thoroughly American, and I sometimes feared that the substance of rachmunes itself was lost in their desire to equip me to compete effectively in the American struggle to excel.
âLook, just read my opinion, talk to the big shots, and get back to me.â
I left the courthouse thinking that the case Judge Bazelon had just handed me sounded like a big opportunity, and my supervisors at the firm agreed to let me handle it. At Yale Law School I had been inspired by the Justice Departmentâs work under Robert Kennedy. He had created a separate division to promote civil rights for racial minorities, mirroring and supporting the work of effective civil rights advocates like Thurgood Marshall, who had used federal litigation patiently and systematically for decades to attack racial segregation.4 As I drove home that night, I imagined myself acting in the tradition of Kennedy and Marshall, bringing the lawâs protection to the helpless, neglected people confined in mental hospitals.
I had been intrigued by the issue of insanity and the criminal law ever since taking a law and psychiatry seminar at Yale that was taught jointly by two professorsâone a lawyer, the other a psychoanalyst. Anna Freud co-taught the course as well, as a visiting professor. Her presence in the small, paneled seminar room lent it a special quality and everyone deferred to her comments. She wore long simple dresses and spoke softly, with an English accent, and with surprising diffidence.
We discussed moral responsibility, free will, and the limits of criminal penalties for mentally impaired people, analyzing legal, philosophical, and psychological issues. The psychoanalyst urged 15us to look more deeply at our own motivations lying behind our arguments. The mix of legal doctrine and psychological insight whetted my appetite to know more.
âIsnât it risky to give the psychiatrists too much authority?â Miss Freud asked in her soft voice. âIt sounds like the psychiatrist is a magician who can determine with certainty whether a particular mental state causes a particular act. I am not sure that anyone can do that.â That opinion about the psychiatric profession struck me as excessively modest, especially coming from Freudâs daughter. At that time it seemed to me that psychiatrists had a fascinating and powerful tool for seeing into the human heart, penetrating the screen of words and rationalizations in which we wrap our actions. I was interested in exploring those mysterious depths, although it remained an academic inquiry for me.
The call to Judge Bazelonâs office changed that. Far from an academic exercise, the task I was about to begin could transform the way the government treated mentally ill people. The core of the inquiry in law school was about the responsibility of insane people for their criminal conduct, never following the defendant into the mental hospital and asking what happened to him there, and how long he could be incarcerated. The Rouse case was an opportunity to begin a legal process of looking behind the walls of mental hospitals and reforming the hospitalsâ practices. I was flattered that Judge Bazelon had called on me to handle this case, and I liked the fact that I was going to be in charge, with final responsibility for making the decisions.
Several weeks later, I went to meet Charles Rouse on âSâ Ward at St. Elizabeths Hospital, the mental hospital run by the federal government for the District of Columbia. This was the hospital 16where Ezra Pound had been warehoused after World War II, rather than being tried for treason, and where John Hinkley has been held since he shot Ronald Reagan.
St. Elizabeths is on a large, campus-like tract of land spotted with century-old trees in rolling meadows, in a distant part of the District of Columbia, on the far side of the Anacostia River. The building for the criminally insane, the John Howard Pavilion, stands in a remote corner of the grounds. To get to Rouseâs ward, I passed through four locked doors and a key-operated elevator. Most of the people on his ward had been found not guilty by reason of insanity, and some of them behaved in bizarre ways, staring, muttering, growling, gnawing their tongues. Later I learned that much of their behavior was induced by the drugs they were given, and the effects of their prolonged hospitalization and enforced idleness. The only activities available in the dayroom were TV and ping-pong. The nursing aides sat in a fortified bunker in the middle of the ward, encased in shatterproof glass and surrounded by files describing and categorizing the people on the ward and by the pills they could use to alter their behavior.
Rouse was a few years younger than I was. He looked like the kind of kid youâd find hanging around a garage in a small town after school, with a pack of cigarettes rolled up in his T-shirt sleeve and a Coke in his hand, trying to look tougher than he was. I saw nothing bizarre or inappropriate about his behavior.
âI just want to get out of here,â he said, as soon as we started talking. âNobody is getting adequate treatment. They should just close this place down, take the locks off the doors and the security screens off the windows, and turn the hospital into a junior college.â
At the outset, in Judge Bazelonâs office, I was excited by the Rouse case, as an important, precedent-setting piece of test litigation. If I succeeded in proving that Rouse had not received adequate treatment and was entitled to be released, a new era of judicial scrutiny 17would begin, and mental hospitals could no longer be used as human warehouses.
After our meeting at the hospital, the nature of my commitment to the case changed. It was no longer a matter of abstract legal principles. Charles Rouse was a person, and I felt his youth had been taken from him. Indeed, if he had been convicted of the crime, the maximum sentence would have been one year. Instead, he was trapped in a Kafkaesque w...