RIP "Poor Joshua"

Whatever childhood Joshua DeShaney might possibly have had ended at the age of 4, in the early spring of 1984, when his father delivered the semiconscious boy to Mercy Medical Center in Oshkosh.

The Supreme Court deals with law and we are sometimes told that "natural sympathies" should not factor in here. This is a somewhat exaggerated statement of reality in various respects.  Humans, not machines, decide the law and nonrational aspects of human decision-making is involved here. The article in fact argues that such aspects might advance reasoned judgement; regardless, law applied by humans will involve such things. It won't merely be the artificial purity some argue, often selectively so. We saw this as well with the debate over empathy when Sotomayor was up for confirmation as if that sort of thing was suddenly part of the equation c. 2010 or only something liberals do.

True enough that applying the law is not just emotion and requires some hard choices that go against our sympathies. It remains true that the Constitution, for instance, speaks in its Preamble regarding "establishing justice," not merely "law," so the talk some time back of "law plus" is a bit confused.  We are concerned with "justice," a complex matter.  For us, the LAW of the land involves some degree of justice.  It is not an either or affair as some might argue, using at times a tired "it's unfortunate but true" tone, as if they sadly are being forced to do something they are choosing to do.  The choice might be correct but it is not totally compelled.

This commentary is inspired by the death of Joshua (DeShaney) Braam in his mid-30s as noted at the top of the page, best known perhaps as "poor Joshua," in the words of Justice Blackmun. Before the days of ready-made Internet opinion access, I got a taste of this case as part of Peter Irons "May It Please The Court" series (we are talking cassette tapes here) in which the lawyer for the mother also added a few words in the introduction tape (Sarah Weddington of Roe also was involved there). We now have easy access to the whole opinion and oral argument (link provided).

If the Due Process Clause does not require the State to provide its citizens with particular protective services, it follows that the State cannot be held liable under the Clause for injuries that could have been averted had it chosen to provide them.

This was a tragic case. Joshua was a young child who was a repeat player in the child protection system and it was alleged that the state should have known at some point that he was liable to be severely injured by his father as he eventually was. It was not merely that the state did not provide protection but a "special relationship"* of some sort was formed and in effect he was under some degree of state oversight comparable enough to a child in foster care or a prisoner for liability to accrue. The Supreme Court (6-3 with Stevens concurring without comment) disagreed -- the child was merely put back where he was taken temporarily.  Bluntly:

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 dissent argued this is a bit too blithe -- the state set up a child protection system and state law in fact entrusts them with the protection of the child, not merely self-help. And, once "the State actively intervened in Joshua's life," a certain responsibility arose here.  If nothing else, and this is where Justice Blackmun's more personal dissent comes in, a choice is being made here.  The bare text of the Due Process Clause is not clear on what is demanded and "may be read more broadly or narrowly depending upon how one chooses to read them."  Some of the questions in oral argument suggests the possible horribles there.  The logic of the state case would be even returning Joshua when the state should have know a crazed killer was in the house at that moment would not breach due process or police officers blithely watching a rape.  At some point, lack of state protection goes too far. 

This very well might not have helped at the end of the day -- to get the federal courts involved enough to truly interfere and/or accept money damages  some high level of wrongdoing is warranted here, but opening the courthouse door is another issue.  The federal government had time to speak to that -- it cautioned that this was not an ideal issue for the federal government to handle.  And, that is a respectable statement up to a point.  The state tort system is of some help though it only would offer a small amount of money for what here would be a lifetime of expensive care (the obituary notes that eventually a third party adopted him). But, like prisons and other state agencies, at times a basic federal floor is warranted.   

And, natural sympathy will be involved here too, putting aside that it is more acceptable when a separate dissenting opinion makes the point (such opinions traditionally more likely to be personal).  Reading court opinions for some time now leads me to note that they are not purely some sort of Vulcan rational process with no emotional sentiments about the parties and issues involved.  The care not to let us be wrongly misled here also often tends to have a selective character, something for the other side.  Such judges repeatedly (people like Alito, Scalia et. al.) show their sympathies and empathy.  On some level, this is to be expected though it's a matter of degree.  Within proper limits, appropriately so. 

---

* This case was particularly clear because the state harmed the parent/child relationship enjoyed by the mother though as the opinion notes the father had custody here so if the state kept the child from him wrongly, HE could have sued.