You all know what a "Catch-22" is, right?
In the novel by the same name, that was the military catch that kept any airman from avoiding a combat mission. More broadly, it is a double bind in which a government bureaucracy achieves its goals through circular logic that in reality is both illogical and even immoral at times.
For a perfect, modern-day example, read last week's appellate opinion in the Wisconsin case of Ronald D. Luttrell (available here).
Luttrell is (or at least was) a pretty bad man. Back when he was 29 years old, he raped and killed an 83-year-old woman after breaking into her home. He is now 53 and because his prison term has ended, the state wants to lock him in a hospital so he cannot commit any future crimes.
What the appellate opinion boils down to is this: Luttrell does not have the right to be found competent before being tried as a Sexually Violent Predator. But the opinion is a great example of a Catch-22 because of its circular reasoning, geared not toward justice but toward achieving the state's utilitarian goal of incapacitation.
In the first catch, the court says that Luttrell is not being punished: He is facing civil commitment only to protect the public. Because he is not being punished, criminal protections do not apply. That is despite the fact that SVP "patients" face far more dire consequences than most criminal defendants. Here in California, for example, with one prior "qualifying offense" and an easily demonstrated risk to the public, you can get what amounts to a life sentence at a state hospital.
Second, the court argues, Luttrell must by definition be mentally ill or he could not be civilly committed. That is because, in order to be legal under U.S. Supreme Court holdings, a civil commitment must be based upon a diagnosed "mental abnormality" that makes the person "likely" to commit future sexually violent acts.
This is another great Catch-22. The mental illnesses that most frequently cause incompetence to stand trial are the big ones, like Schizophrenia and Mental Retardation. In SVP cases, people are assigned controversial diagnoses like Pedophilia, "Paraphilia NOS," and Antisocial Personality Disorder (see my previous posts, here and here). These conditions do not scramble the brain such that a person would be legally incompetent.
Competency is not some quirky technicality, by the way. It is a fundamental right in the criminal justice system in most countries. The idea, descended from British common law, is that it is patently unfair to put someone on trial when he is too crazy to defend himself. Not only that, but it makes the government look bad. The requirements for competency are also pretty basic. You need only a rudimentary understanding of your legal situation, and a minimal ability to assist your attorney in preparing a defense.
Contrary to what many people - including some defendants - think, being found incompetent in a criminal case does not necessarily get you off. You go to a state hospital, where you may spend more time incarcerated than if you had pleaded guilty and gone to jail.
However, there are limits. Back in the 1960s, a "feeble-minded" deaf-mute named Theon Jackson was found incompetent and received what amounted to a life sentence for two petty thefts totaling $9. His case triggered reforms that cap how much time a person can be hospitalized for competency restoration treatment. In Wisconsin, for example, a criminal defendant who is not likely to "become competent" within one year must be released from confinement unless he is eligible for the regular kind of civil commitment due to grave disability or dangerousness.
And that is precisely the worry of the Wisconsin court as to Sexually Violent Predators. Although they are dangerous under SVP definitions, most would not meet the criteria for dangerousness under the regular civil commitment laws, which require evidence of a recent act or threat to do serious bodily harm. Luttrell, for example, would not qualify because he committed his crime almost a quarter of a century ago.
But, hey, compared to the innocent children victimized in Operation Wagon Train or the Yearning for Zion raid, it's hard to muster a whole lot of sympathy for a guy who raped and murdered an 83-year-old woman in her own home. Even if it was a long time ago.
Hat tip: Luis Rosell. Photo credit: "Gilbert" (Creative Commons license).