January 8, 2016

The death of "Poor Joshua!"

Commemorated by Linda Greenhouse. 
A series of savage beatings by his father, who had obtained custody after a divorce and whose history of abuse had been reported to the local child welfare authorities to no avail, left Joshua comatose and permanently brain damaged at the age of 4.... His biological mother, acting on his behalf, sued the Winnebago County, Wis., Department of Social Services for depriving Joshua of the “liberty” protected by the due process clause of the 14th Amendment. The Supreme Court’s rejection of that claim, in a 1989 opinion written by Chief Justice William H. Rehnquist, provoked Justice Harry A. Blackmun to exclaim in dissent: “Poor Joshua!”...

For readers who don’t know the case, I’ll describe it here both because it continues to define an important part of our constitutional landscape and because, as the seasonal remembrances wind down, Joshua DeShaney Braam’s unsought role in a Supreme Court decision that limited government’s obligation to its citizens shouldn’t go unmarked.....

“That the state once took temporary custody of Joshua does not alter the analysis,” Chief Justice Rehnquist wrote, “for when it returned him to his father’s custody, it placed him in no worse position than that in which he would have been had it not acted at all; the state does not become the permanent guarantor of an individual’s safety by having once offered him shelter.”
I had not noticed that Joshua DeShaney (later Joshua Braam) had died last November, here in Wisconsin. A very sad story. The Supreme Court was put in the position of having to decide when we can properly say that the government has deprived a person of liberty without due process. The terrible harm came from his father, and while we can all look back and wish that social services had stepped in sooner, the Court wouldn't see a rights violation in the failure to intervene. Poor Joshua lived to be 36.

Justice Blackmun's 2-word outcry "Poor Joshua!" is a famous peak in judicial empathy.

37 comments:

mccullough said...

So did Wisconsin ever pass a state law (or decide by common law) that Joshua or those like him would be able to sue?

As a practical matter of constitutional law, this decision was correct. Let the state's decide if the want to pay out damages for their careless and lazy employees. But the government can't protect you.

Birkel said...

The state does not protect people out of obligation.
The state punishes people to maintain a monopoly on force.

Long live the state.

sean said...

If resonating with the feelings of other people is the test of empathy, then I think Rehnquist's dissent in the flag burning case, with its inspiring invocation of Emerson, was kind of a peak in judicial empathy. Much more moving to most Americans than any of Blackmun's fatuities.

lgv said...

There are two types of errors that occur. First, not taking a child away from a parent or parents when they should have been taken. Second, taking a child from a parent(s) when they should have remained. The former can result in horrible events that get in the news and leads to lawsuits. The latter can lead to horrible results that are much more subtle and not newsworthy. Hence, there is every reason for the state to over act in cases. If they court had ruled the state responsible, there would be even more children under control of the state than there is today.

It is similar to FDA drug approval. Approve a drug that kills people and everyone goes crazy over how the FDA failed. The lives lost by not approving drugs isn't so noticeable, ergo, human nature requires one to make decisions that tend to lean one direction.

Ann Althouse said...

lgv: "If they court had ruled the state responsible, there would be even more children under control of the state than there is today."

Yes. Here's the opinion. You can see that the Court was concerned about this:

"Judges and lawyers, like other humans, are moved by natural sympathy in a case like this to find a way for Joshua and his mother to receive adequate compensation for the grievous harm inflicted upon them. But before yielding to that impulse, it is well to remember once again that the harm was inflicted not by the State of Wisconsin, but by Joshua's father. The most that can be said of the state functionaries in this case is that they stood by and did nothing when suspicious circumstances dictated a more active role for them. In defense of them, it must also be said that, had they moved too soon to take custody of the son away from the father, they would likely have been met with charges of improperly intruding into the parent-child relationship, charges based on the same Due Process Clause that forms the basis for the present charge of failure to provide adequate protection.

"The people of Wisconsin may well prefer a system of liability which would place upon the State and its officials the responsibility for failure to act in situations such as the present one. They may create such a system, if they do not have it already, by changing the tort law of the State in accordance with the regular lawmaking process. But they should not have it thrust upon them by this Court's expansion of the Due Process Clause of the Fourteenth Amendment."

mikee said...

I note in passing that Sjupreme Court has also ruled that there is no requirement for police to protect any particular individual, a point rarely if ever noted by anti-gun-rights activists.

Police draw the chalk outlines. It is up to the individual citizen to provide for their own safety.

Gun control requires one to prefer seeing a police officer writing a report about the dead, raped woman in the ditch than a police officer listening to a live, healthy woman explain why she shot the man trying to rape her.

coupe said...

Parents should retain the right to beat their children to death. I think this is even in the Qur'an.

The fact that a parent beats their children to death is of no concern to the public. It doesn't affect them in any way.

Same with abortion. I think these death rituals should not be made criminal.

If these parents (proto-parents) are imprisoned then the affect on the public in paying for this, is a voluntarily chosen debt.

mccullough said...

Like Greenhouse, I just re-read the decision. And, like Greenhouse, my position is even stronger than it was.

Given the fiscal irresponsibility of the government at the local, state, and federal levels, government services will have to be cut over the next generation. It is not possible to provide these services in more than an adequate manner, at best,, as it is.

Self-reliance needs to be inculcated, along with communitarianism. A just society would have let Joshua's mother or another concerned citizen kill his father. The justice system can't protect people effectively and needs to be supplemented with citizen justice.

AlbertAnonymous said...

“They may create such a system, if they do not have it already, by changing the tort law of the State in accordance with the regular lawmaking process. But they should not have it thrust upon them by this Court's expansion of the Due Process Clause of the Fourteenth Amendment."

Kennedy should have quoted this same language in Obergefell. Change "tort law" to "marriage law" and change "Due Process" to "Equal Protection".

More Garbage!

Achilles said...

There will be an outcry from the statists that we can't even let one child be a victim. They will eventually demand state control of the welfare of children. The state will do a terrible job at raising our children. There will be more abuse. They will be poorly educated.

The parents in wealthy enclaves will be deemed fit of course. Only the poor people who cant afford lawyers will have their children taken from them.

I can' believe the ruling went this way to be honest. It is almost a ray of hope.

gerry said...

Didn't Blackmun write the majority opinion in Roe v. Wade, a decision that has resulted in depriving millions of Joshuas of the chance to live?

HoodlumDoodlum said...

Peak empathy? Judicial empathy doesn't mean "I feel really badly for this poor person so the law should be read to mean something different from what it otherwise means," does it?

I mean, I understand that "justice" in the realm of public opinion might hinge on having the most emotionally compelling storyline, that sort of thing, but I thought a chief benefit of a system of laws was that it would be immune to such appeals. Not that the justices should be robots, of course, but if their decisions are to be primarily made by their varying degrees of empathy/sympathy/emotional response then how are they any better than the mob/direct democracy?

Simon said...

gerry said...
"Didn't Blackmun write the majority opinion in Roe v. Wade, a decision that has resulted in depriving millions of Joshuas of the chance to live?"

Didn't he? Didn't he just?

Judicial empathy is at best a very poor and protean basis on which to decide cases, and for a Justice to publicly wring his hands at what the decision portends for the specific litigant whose case, by happenstance, happened to be the case that presents the issue that the court is trying to decide, my goodness! There's a line in The Brethren where one of his colleagues frets that Blackmun hadn't yet figured out that he wasn't still on the court of appeals, that his role was different, but I'm not sure that Blackmun ever figured out that he was a judge.

Jim Nicholson said...

Maybe someone from the legal profession help me understand this ruling. It seems absurd to think that when the state determines that a child is to be in a person's custody, those who make the decision have no moral responsibility to insure that their decision won't endanger the child.

Consider a hypothetical alternative: suppose Joshua's mother knew that his father was an abusive parent, and yet did not oppose the father's efforts to take custody. If the child was then abused, and the state had evidence that the mother knew it would happen, would they not go after her? Would they not, minimally, remove any other children from her custody if they thought she would ever leave them with the abuser?

I'll admit that I'm not a disinterested party; I went through a custody battle during my divorce 10 years ago. Considering the expense involved (my legal fees were about a year's worth of my income pre-tax) and the kind of scrutiny I was put under (8+ months of investigation by child services and forensic psychiatrists) during the legal struggle, I find it difficult to accept that the state has no culpability when it intervenes to place a child.

And by the way, I wasn't even fighting for custody; I was just trying to preserve access to my children. I prevailed, but in the process, the court took two of them away from my ex.

Birkel said...

Wasn't "Oliver Twist" about government raising children?

n.n said...

Second rite.

Gahrie said...

Justice Blackmun's 2-word outcry "Poor Joshua!" is a famous peak in judicial empathy

I've always thought that "emanations from a penumbra" was the peak judicial "empathy".

Sebastian said...

"Poor Joshua!" Poor country that has such weepy jurists. But Tony reminded us just last year that the Due Process clause does protect whatever "fundamental liberties" SCOTUS likes to make up, so just figure out a way to give him a shot at today's Joshuas and the Rehnquist precedent is history. An actual Amendment doesn't stop him, neither will stare decisis.

n.n said...

The overlooked irony is that the mother has a legal rite under the established quasi-religion emanating from a penumbra to unilaterally deprive her child of equal protection; but, her unique standing does not reciprocate to secure rights for an
"unplanned" child. Neither does the father in other circumstances when his position is relegated to second status under female chauvinist policies. In both cases, it's the children who suffer.

n.n said...

Gahrie:

"Emanation from a penumbra" was judicial linguini for we have now entered the twilight zone, which has since been reclassified as the penumbra zone in order to acknowledge the dark field of unqualified progress.

Gabriel said...

@coupe:Parents should retain the right to beat their children to death.

There is no one who agrees with this decision who thinks parents should have the right to beat their children to death or permanently disable them. Not one concurring Justice thought that either.

What we do think is that because parental custody is the default, and because parents with custody have 24 hour access to the defenseless ones in their care, the State would have to so intrusive to safeguard all children from all parental harm that the cure would be worse than the disease.

Furthermore, Joshua's dad can go to jail. Or be strung up. Or whatever we think is appropriate. But CPS cannot go to jail and neither can the State of Wisconsin. If they screw up there is no accountability, and no one can prevent them.


Gabriel said...

Linda Greenhouse, incidentally, in decrying the Court's reluctance to grant citizens positive rights to the labor of others, reveals herself to be a slaver devoid of empathy.

Bryan C said...

"It seems absurd to think that when the state determines that a child is to be in a person's custody, those who make the decision have no moral responsibility to insure that their decision won't endanger the child. "

The court's decision didn't endanger the child. The father endangered the child.

The state isn't a person and has no moral sense, so it can't have "moral responsibility" for anything. If you expect it to act like it does then you'll always be disappointed, and people like Joshua are usually the ones to suffer.

Wilbur said...

The field of American civil law went astray many years ago when it determined to liberally hold third parties liable for the criminal acts of others.

There was a case in Miami several years ago where a child was attacked while sitting at a school bus stop waiting on the bus. Some man hidden in nearby bushes jumped out and raped or killed the child (I don't remember exactly). The child or her parents sued the school system for wrongful death or negligence, and schools settled the case for a ton of money. There's something wrong with this, where a party who did nothing wrong has to bear the brunt of a money judgment simply because they have deep pockets.

Alan said...

Someone (I think Judge Posner, but maybe not) once pointed out that, although Joshua "lost" the case, the state supported him for the rest of his life because he was incapacitated. The only reason for bringing the suit was so that the lawyers who handled it could recover their legal fees from the state. A suit in state court might have won, but that victory wouldn't have come with an award of lawyers' fees attached.

EDH said...

Justice Blackmun's 2-word outcry "Poor Joshua!" is a famous peak in judicial empathy.

This case was my choice in Althouse's "Empathy Exam" question back in 2009.

http://althouse.blogspot.com/2009/06/empathy-exam.html?showComment=1244909963458#c7512034430591941546

buster said...

"Poor Joshua" is not a legal argument, or the product of legal reasoning. Nor are Justice Kennedy's musings on the mysteries of human existence. Judicial humility is a greater virtue than judicial empathy. It's also more likely to result in sound decisions.

Simon said...

Gahrie said...
'I've always thought that "emanations from a penumbra" was the peak judicial "empathy".'

Close: That was "peak judicial bullshit."

Simon said...

Sebastian said...
'But Tony reminded us just last year that the Due Process clause does protect whatever "fundamental liberties" SCOTUS likes to make up, so just figure out a way to give him a shot at today's Joshuas and the Rehnquist precedent is history. '

Which is why the Democrat candidate cannot win this year —at any cost.

mccullough said...

Jim,

There's a difference between moral responsibility and legal responsibility or culpability.

Within the realm of legal responsibility, there is a differnce between a legal duty that arises under the federal constitution (or a federal statue) and one that arises under state law (whether judge created common law like those that govern contracts or car accidents or a state constitution or state statututory law).

The issue in this case was whether the due process clause of the federal constitution imposed a duty on local government social workers to remove Joshua from his father's custody given the suspected abuse based on previous intervention on behalf of Joshua.

I agree based on the facts they had a moral responsibility. I think his mother had a moral responsibility to either kill or incapacitate Joshua's father to protect her son.

As the court said, Wisconsin is free to impose these duties on government workers as a matter of state law.

I'm glad Joshua was eventually adopted by what sounds were a loving couple. His father was a monster and his mother failed him.



Jim Nicholson said...

re: "moral" vs. "legal" responsibility, yes, that was a gloss on my part. My intention was to say "legal responsibility."

David said...

"A just society would have let Joshua's mother or another concerned citizen kill his father. The justice system can't protect people effectively and needs to be supplemented with citizen justice."

Works in the Middle East, why not here?

rcommal said...

Oh, f'it. Who cares, any more? I don't, any ways. Caring is a waste of time (as we all know).

Mazo Jeff said...

So,does this mean that any victim of a crime committed by someone who had been released from prison can sue the State because it has an obligation to protect society?

AllenS said...

"I still believe it takes a village to raise a child." -- Hillary Clinton

How's that working out?

Krumhorn said...

Which is why the Democrat candidate cannot win this year —at any cost.

Unfortunately, Blackmun was a Nixon appointee. We all know what to expect from the likes of the 'wise Latina', Ginsburg, Kagan, and Breyer, but Republicans appointed Souter, Kennedy, Warren, Blackmun and Stevens.

As bad as they are, the lefties inflict only marginally more damage on our once great country than the Republicans often do. The libruls don't hide their intentions while the Republicans sell you someone like Souter as a conservative.

-Krumhorn

Simon said...

To say that all is equal since one side is prone to accidentally do the same evil that the other side does deliberately is not, in my view, an attractive or plausible principle.