For example, In re Gault (1967) involved a 15-year-old sentenced to three years for making lewd phone calls. The U.S. Supreme Court ruled that Gault had a right to an attorney and to refuse to testify against himself: due process rights. Gault wasn’t being grounded; he was being sent to juvenile prison — where I shudder to think what likely could have happened to him.
Ten years later, California’s courts decided In re S. (1977) and cited In re Gault as a precedent. Instead of being punished for a crime, this case involved a 14-year-old minor committed to a mental hospital. Both cases involved the state depriving a minor of his liberty without due process. But where Gault’s parents were apparently trying to keep their son out of a situation that, under the best of circumstances, would have been traumatic, In re S. was almost the opposite: a parent trying to obtain treatment for a mentally ill child. There’s a surface similarity, but the intentions and likely consequences were radically different.
Similarly, Superintendent of Belchertown State School v. Saikewicz (1977) ruled that a severely mentally retarded man in a state mental hospital, suffering from leukemia, should be allowed to die without medical treatment. Saikewicz’s doctors decided that Saikewicz was likely to die soon of old age anyway, didn’t understand the situation, and so he shouldn’t be treated.
The Massachusetts Supreme Judicial Court agreed and wrote a sentence that could have come from a Marx Brothers comedy about Nazi Germany’s T-4 program to exterminate those “unfit to live”: “In short, the decision in cases such as this should be that which would be made by the incompetent person, if that person were competent, but taking into account the present and future incompetency of the individual as one of the factors which would necessarily enter into the decision-making process of the competent person.”
The same court in Guardianship of Roe, Matter of (1981) considered not an old man nearing the end of life and cancer, but a paranoid schizophrenic minor identified as Richard Roe III. While hospitalized, Richard attacked other patients. At the request of the state mental hospital, Roe’s father authorized them to administer anti-psychotic medications to Roe.
Richard had a whole life ahead of him and, unlike Saikewicz, might have recovered from his illness if treated. Instead, the judges decided they knew better than Roe’s father and doctors — and whatever Richard’s preferences about sanity might have been before becoming sick, “the likelihood of improvement or cure enhances the likelihood that an incompetent patient would accept treatment, but it is not conclusive.” Which would you prefer: madness or sanity? It is so hard to decide what someone else might prefer! Richard ended up on the street, continually in trouble with the law (as with so many of the mentally ill homeless “protected” by such decisions). The resulting fallout shattered his family.
Following precedents makes sense — when you properly identify that a precedent involves a similar situation. But so often, judges cherry-pick from existing precedents that really are not the same situation. As I will explain in later articles, this misuse of precedents has often played a part in how the courts have so twisted our Constitution.