Child Mental and the Law

CONTENTS

Acknowledgments

1: THE MENTAL HEALTH PROFESSIONS AND THE LAW

Introduction

Lawyers, Scientists, and Clinicians

Philosophical Differences

The Challenge of Psychodynamic Psychiatry

The Forensic Setting

Bridging the Gap

The Organization of This Book

2: THE LEGAL SYSTEM

The Nature and Purposes of Law

The Sources of the Law

The Legislative Process

The Court System

Judicial Procedings

The Adjudicative Process

Legal Advocacy

3: THE RIGHTS OF CHILDREN

Introduction

Legal Definitions of Infancy and Childhood

The Historical Evolution of Children’s Rights

Recognition of Children’s Rights

Specific Legal Rights of Children

4: THE EDUCATIONAL RIGHTS OF HANDICAPPED CHILDREN

Background

The Education for All Handicapped Children Act of 1975

The Role of the Mental Health Consultant

5: CHILD CUSTODY DISPUTES

Introduction

Marriage and Parental Obligations

The Termination of Marriage

The Determination of Custody

The Effect of Divorce on Children

Legal Proceedings

Clinical Evaluation in Child Custody Disputes

6: FORENSIC EVALUATION IN CASES OF CHILD MALTREATMENT

Introduction

Child Abuse in the Legal System

Child Protection Services

Court Proceedings

Evidentiary Issues

Disposition

Foster Care

Permanent Planning

Adoption

Physical Abuse

Nonorganic Failure to Thrive

Neglect

Sexual Abuse

Forensic Evaluation in Cases of Alleged Sexual Abuse

Preparing the Child to Give Testimony

Preparing the Report

7: PSYCHOLOGICAL TRAUMA AND CIVIL LIABILITY

Legal Principles

Proof of Case

The Forensic Evaluation of Civil Liability Cases

8: MALPRACTICE

A Profile of Medical Malpractice

The Doctor-Patient Relationship

Liability to Third Parties

Liability Contexts

Liability for Communication of Information

Liability Under New Health Structures

Reform of the Law

Conclusions

Appendix to 8

9: JUVENILE DELINQUENCY

Legal Principles

Definition, Epidemiology, and Prediction

The Prediction of Delinquency

The Clinical Classification of Delinquency

Etiology and Psychopathology

Treatment

The Forensic Evaluation of Juvenile Offenders

10: THE RIGHTS OF INSTITUTIONALIZED CHILDREN

Introduction

Legal Principles Pertaining to Psychiatric Hospitalization

Civil Commitment

The Rights of Institutionalized Patients

The Rights of Minors in Psychiatric Hospitals

The Rights of Juveniles in Correctional Institutions

Summary

11: THE CHILD MENTAL HEALTH PROFESSIONAL AS EXPERT WITNESS

Introduction

The First Contact with the Referring Agent

Liability Issues

The Evaluation

The Report

Records

The Subpoena

The Pretrial Conference

Preparing to Give Testimony at a Deposition or Trial

The Deposition

Testifying in Court

Summary

Appendix 1: Sample Reports

Appendix 2: Landmark Cases

Notes

Bibliography

Table of Cases

Index

TO ALISON AND NAN

ACKNOWLEDGMENTS

The challenge in preparing this book was that of relating child mental health to criminal, constitutional, juvenile, administrative, and family law and to the rules of evidence and legal procedures. It could not have been accomplished without the efforts of Bill Catlett, Scott Dresser, Patti Kussman, Courtney Stout, and Jason Wright, students at Vanderbilt University Law School. Patti and Jason should be especially acknowledged: Patti was not only a co-explorer of the intricacies of custody law but also an incisive stylistic critic. Jason spent many hours checking citations, ferreting out references, and revising the page proofs.

Craig Iscoe, now Assistant U.S. Attorney, formerly of Vanderbilt University Law School, accepted our invitation to co-author Chapter 10, bringing to the chapter his expertise in civil procedure and his courtroom experience. We thank him for his invaluable contribution.

Renee Hawkins typed the entire manuscript and put up with us as we amended drafts. Hers was a feat of organization and skill effected with aplomb and cheerfulness. She is the most professional and competent of secretaries and deserves our lasting thanks. Alison and Lisa Nurcombe typed the initial drafts of many chapters, and Alison prepared the index.

Vanderbilt University Law School supported us with two summer stipends. Our colleagues and students at the Vanderbilt schools of medicine and law provided the intellectually spirited environment without which this endeavor would not have been completed.

CHAPTER 1

THE MENTAL HEALTH PROFESSIONS AND THE LAW

INTRODUCTION

Clinicians dread the arrival of a subpoena. The thought of testifying conjures up images of arcane rules in an alien domain where lawyers badger and witnesses are demeaned. Unfamiliar with the adversary system, clinicians expect the truth will be hostage to warring strategists. How much better, they imagine, if panels of experts could provide the courts with unfettered, impartial, scientifically informed advice.

Lawyers shudder at the prospect of trial by white coat. To them, mental health professionals are bleeding hearts or hangmen’s helpers¹ who cloak personal prejudice in the vestments of authority. What is the difference between social workers and psychologists, and how are they different from psychiatrists? To which of the numerous schools do they belong? Aren’t their techniques so squishy² they can be bent to any point of view? Isn’t their jargon designed to confuse? When it comes down to it, aren’t they so muddle-headed and unreliable as to be basically irrelevant?

Much of the antagonism between the two fields is due to a mutual ignorance of purposes and techniques. This book addresses barriers between the professions, for when clinicians appreciate the aim of the adversary system and the legal issues with which the courts must grapple, and when, without distortion, they can adapt their techniques and reasoning to the requirements of the law, they will advance interprofessional understanding and strengthen the administration of justice.

Nevertheless, clinicians and lawyers are divided by gulfs that run deeper than mere ignorance. This chapter will analyze the differences between the professions in function, training, and philosophy. It will also debate the limits of mental health expertise, and go on to consider whether the mental health professions have anything of substance to offer the legal process.

LAWYERS, SCIENTISTS, AND CLINICIANS

Put broadly, the purpose of the law is to settle disputes fairly, to punish and deter malfeasors, to compensate the victims of wrongdoing, to keep order, and to promote social policy. In order to fulfill its functions, the law has evolved complex precedents, rules, and procedures (see Chapter 2). Prominent among them is the adversary system, a method of resolving disputes that pits contending parties against one another. Thus, in contrast to a clinician, who seeks compromise and adjustment, and compared with a scientist, who strives to disconfirm his hypotheses, a legal advocate presents a polemic that both favors his own side and impugns the other.* In Anglo-American law, a judge presides over proceedings wherein adversarial parties elicit and test evidence from which the jury will determine the facts, weigh them according to instructions given by the judge, and reach its verdict.

The purpose of science is to discover truths about the relationship between objects, events, and states. Scientists observe natural phenomena with fresh eyes in order to discern scientific puzzles and generate ideas to explain them. They test their hypotheses in a controlled, deductive manner, employing reliable measurement, in a strategic attempt to disprove their pet notions. Good science demands the capacity to entertain alternative hypotheses, a respect for accurate and impartial data gathering, and a frame of mind best characterized by both curiosity and constructive skepticism.³

The purpose of clinical work is to diagnose and treat sick, impaired, or troubled people. Psychologists and social workers who eschew the medical model prefer such words as client over patient, and management over treatment. Nevertheless, what they do is essentially the same: They attempt to understand the nature of their patients’ or clients’ problems in order to help them overcome or alleviate distress or impairment. Clinicians are pragmatic: they borrow from basic sciences to facilitate diagnosis or treatment. However, psychiatry, clinical psychology, and clinical social work are not sciences in themselves. When legal cross examiners ask clinicians to concede that psychiatry, psychology, or social work are not exact sciences, the truthful answer would be that clinical work is not science, though it may draw upon it.

Lawyers and clinicians are alike in identifying with their clients or patients; scientists are (or should be) objective. Lawyers and scientists are akin in their preoccupation with facts; clinicians are absorbed in the personal reality of those they treat. Scientists and clinicians both apply scientific knowledge, but to different ends, the one to advance knowledge, the other to help impaired or troubled people. Lawyers and clinicians are similar in their pragmatism; they borrow information from other fields in order to judge cases, advance their clients’ causes, or diagnose and treat their patients. If it works, they are inclined to use it. Indeed, the hunger of clinicians for diagnostic aids and new therapies may sometimes persuade them to endorse techniques that have not been adequately tested. Ironically, the law seeks to monitor professional standards by deferring to professional judgment while at the same time ensuring that accepted measures are not too readily dismissed.

Judges and juries seek to find the facts of the case, just as scientists search for the truth about objects and events. In that, legal fact-finders and scientists differ subtly from the pragmatists—clinicians and attorneys—who are primarily interested in helping their patients and clients. The clinician is more concerned with the patient’s reality than with actuality itself; the legal advocate proposes to marshal the evidence most favorable to his client’s case. However, a further distinction is apparent, for judges and juries seek facts in order to settle disputes, whereas scientists gather data in order to discover the laws of the universe. Unlike science, the law makes no pretense of reaching true solutions; rather, it aims to resolve disputes fairly and regulate society normatively. In the late nineteenth century, law was viewed as a science in which legal principles were deducted from precedents. However, contemporary schools of thought have undermined the scientific model, to the point that law today cannot be properly understood apart from its implicit social, economic, and philosophical basis.⁴

PHILOSOPHICAL DIFFERENCES

Autonomy and Determinism

The law assumes that, unless it can be proven otherwise, people are competent both to do what they do and to intend the consequences of their actions. We mean what we say, choose to do what we do, and are responsible for what results. Indeed, the driving force of the common law is the idea of individual responsibility. The law in regard to torts, contracts, and criminal offenses turns upon this idea. In its earliest form, tort law protected the physical integrity of the individual, while at the same time ensuring social peace. The new tort of informed consent is founded on the same principle—that is, the autonomy of the individual can be protected only if he knows the full implications of what it is proposed should be done to him. In criminal law, if legal insanity is established, the defendant is held not responsible for an otherwise criminal act.

In contrast, the dominant theories of psychiatry and psychology are deterministic. Geneticists discern the origins of behavior in the genome. Neuropsychiatrists regard it as stemming from neuronal activity induced by disease, trauma, or inherited abnormality. Behaviorists view behavior as systematically related to stimulus and response, reward and punishment. Psychodynamicists explore the unconscious impulses and conflicts imbedded in psychopathology. Family systems theorists describe the intrasystemic roles, boundaries, and relationships that result in disturbed behavior. Mental health clinicians and scientists alike view behavior as determined. Volition, intention, and consciousness—the ingredients of the legally autonomous person—have always been difficult to contain within a scientific framework.

The Forensic Assessment of Scientific Evidence

As indicated above, scientists are often irritated that the courts do not evaluate science in a scientific manner. The law frequently calls upon scientific evidence, but requires it to satisfy the criteria of reliability defined by the law. Probability estimates—the keystone of scientific method—do not resonate in a court of law, for opinion must be marshaled within the framework of the adversary system. One check against the admission of invalid scientific evidence is the requirement that a witness may not testify as an expert unless the court first finds him to be qualified to do so on the basis of his knowledge, skill, experience, training, or education. Depending on the jurisdiction, a court may not permit an expert to testify unless it also finds that the testimony will be about a proposition that has achieved a level of acceptance in the scientific community or that is based on procedures reasonably relied upon by experts in the particular field. The requirements of qualification and scientific acceptability therefore permit the judge to exclude testimony for which there is little or no scientific support.

General Statements and Particular Instances

Scientists deal with group data, seeking generalizations that summarize universal relationships. Clinicians, lawyers, and juries are concerned with particulars. The application of statistical studies to individual cases is regarded as conveying the risk of unjust decisions.⁵ Aware of that risk, the Supreme Court in McCleskey v. Kemp (1987)⁶ found that the death penalty exacted by Georgia did not breach the Constitution, even though it was demonstrated that a statistically disproportionate number of blacks were sentenced to death if they had killed whites.

Often, legal inquiry will relate to motivation and causation. Science may have established explanations that are valid generally but have insufficient power to explain behavior in a particular case. For that, historical and biographical information are usually required.⁷

Rights and Needs

Lawyers advocate for their clients’ rights, in a discourse so compelling that the whole fabric of the law may seem to be made of rights. In Anglo-American law, the rights of the individual are prime, for individual freedom undergirds the liberal state.⁸ We note, in Chapter 10, the attempt to draw within the discourse of rights the plight of patients in mental health institutions. The same approach is taken with respect to the educational needs of handicapped children (Chapter 4).

Aside from diverting attention from the agenda of clinicians, the pursuit of rights also injects legal considerations into professional decision-making. Individual rights concerning the termination of life support have inspired a complex legal framework that impedes the formerly personalized function of the physician.⁹ Lawyers advocating patients’ rights clash with clinicians advocating patients’ needs in such matters as involuntary commitment to hospital and the refusal of treatment.¹⁰ Powerful constitutional rights may appear to do violence to the most vulnerable of witnesses: the right of the accused to face his accuser in court, for example, collides with the desire to protect a sexually traumatized child from the stress of having to confront her victimizer.¹¹

Individual freedom is at the core of our society. Law schools instill it by emphasizing the presumptive right of citizens to be free of state interference. (We discuss the application of those rights to children in Chapter 3.) Law students are taught to be skeptical of government and of other social institutions with disproportionate power, such as corporations and the medical profession. Legal skepticism may be perceived as hostility when the attempt of clinicians to serve patients’ needs comes under the scrutiny of the courts. Just as malpractice risk can induce costly defensive medicine,¹² the assertion of rights, it may be argued, interferes with the mission of clinicians. As we shall observe in Chapter 8, recent developments in the law of informed consent undermine medical dominance in decision-making concerning patient welfare, while concerns expressed by the nonmedical members of medical ethics committees have led to other constraints upon traditional professional prerogatives.

Given their traditions and training, it is not likely that the gulf between court and clinic will disappear. However, as we note in this book, the courts are not indifferent to family values and professional roles and do not favor judicial scrutiny in every instance. For example, in the face of vehement criticism, the Supreme Court in Parham¹³ preferred the medical model of decision-making to judicial review, with regard to the admission of minors to psychiatric hospitals.

THE CHALLENGE OF PSYCHODYNAMIC PSYCHIATRY

The psychoanalytic view of behavior challenges the law. Michael S. Moore has described three areas of difference.¹⁴ The first replaces legal concepts of responsibility and culpability with medical notions of mental health and illness; in this view, badness is interpreted as illness. How then could criminals be accountable? The second challenge to legal precept refers to the psychoanalytic concept of the unconscious. Having no knowledge of this shadow mind, an individual cannot be responsible for its actions. The third challenge is a fractionated variant of the second: causal agency is attributed to subpersonal entities—ego, superego, and id. An individual cannot be held responsible since no one is a single rational agent.

These challenges strike at the vitals of criminal and civil law. Moore proposes that law and psychiatry share a new view of the person,¹⁵ and that the gap in understanding between law and psychiatry calls for a new philosophical basis for forensic psychiatry. Moore recommends that psychiatry and law should both view people as agents with irreducible causal powers who act for reasons, that is, as autonomous and rational agents.¹⁶ He recognizes that the vocabulary of intention is embattled by challenges from genetics, psychiatry, psychology,¹⁷ and neurobiology. However, the conception of the person as a rational and moral agent is a fundamental philosophical issue that society and the law must not jettison.

THE FORENSIC SETTING

The Scientific Status of Developmental Psychology and Psychiatry

Unlike a physical science, psychology has no single paradigm. Admittedly, all scientific paradigms are provisional; however, contemporary developmental psychology is pre-paradigmatic. None of the classical, encompassing theories—psychoanalysis, behaviorism, and genetic epistemology—ever attained predominance. Today, smaller-scale theories (e.g., information processing, social learning, and attachment theory) occupy center stage.

Unsurprisingly, there is no single accepted form of psychotherapy. The polyglot nature of the clinical field undermines its authority, while guild disputes between mental health professions further weaken their claims to expertise. As we shall discuss in Chapter 10, the Supreme Court has been obliged to deal with conflicting briefs from the American Psychological Association and the American Psychiatric Association with regard to the administration of antipsychotic drugs and the hospitalization of juveniles. From a legal standpoint, these internal fissures engender doubt concerning the objectivity of psychiatrists and psychologists alike. Courts have difficulty utilizing a body of scientific knowledge that may have the potential to uncover facts and facilitate justice yet is much disputed. Indeed, the Supreme Court has remarked that psychiatry is not . . . an exact science, and psychiatrists disagree widely and frequently.¹⁸

The Legal Response

Despite doubts about the scientific validity of psychology and psychiatry, the law must reach its decisions. Little wonder, therefore, that psychological and psychiatric knowledge and testimony have been used selectively, unevenly, and sometimes obliquely.

Despite the challenge of psychoanalysis, the law has not ceased to ascribe responsibility to individuals. Following Aristotle, the law regards people as agents who intend to do what they do in order to get what they want and not as the victims of fate or chemistry.

Nevertheless, the first challenge—that of replacing legal responsibility and culpability with medical concepts of health and illness—has had a perverse impact. The medical view has been impugned from within psychiatry by those who contend that mental illness is a myth.¹⁹ This assault is convenient for those advocates, jurists, and legislators who would like to clear the decks of the pesky claims of psychiatry. If mental illness were a myth, the law could judge behavior without taking account of psychiatry or psychology. The doctrines of legal insanity and competency to stand trial (Chapter 9) would evaporate. Furthermore, if mental health clinicians treat no real diseases, they could not be judged by the same standards that apply in medical malpractice cases.²⁰ Expert mental health evidence would then be useless, for, as Morse says, because determinations of craziness depend on observations of behavior and social norms, such determinations can be made by laypersons and experts alike . . . . Consequently, the question of who is crazy should be decided by the society’s representatives—judges and juries of laypersons.²¹

This strong version of relativism would render vast tracts of scientific knowledge useless to the law; there would be no justification for the courts to prefer psychology to astrology. In our view, however, legal inquiry should favor rationality, informed by an appropriation of social norms and settings. By dint of research and expertise, psychology and psychiatry can inform courts about normal behavior and mental illness, just as internal medicine can provide legitimate information about the diagnosis of lung cancer.²²

By the 1990s it was evident that radical critics had shaken but failed to destroy the foundation of psychiatry. Nevertheless, the admission of psychiatric and psychological evidence into courts of law has continued to attract vociferous opponents.²³

The Validity of Mental Health Expertise

Faust and Ziskin (1988) impugn the competence of mental health clinicians to provide expert testimony, contending that their opinions lack sufficient certitude to be admissible. They cite evidence, for example, that clinical reasoning is riddled with error, that psychiatric diagnosis is unreliable, that psychological testing lacks sufficient rigor, that clinical training and experience confer no expertise, and that the diagnostic conclusions of mental health professionals have inadequate relevance to the issues at stake in courts of law. To be sure, scientific uncertainty mitigates the power of mental health testimony. However, the adversary system is designed to expose uncertainty. Scientific uncertainty alone does not degrade the power of all psychological and psychiatric evidence to the level of lay testimony. Such a conclusion would disqualify existing scientific information, replace it with casual common sense, and exclude new findings capable of shedding light upon the legal issues.²⁴

A slightly different argument, like Morse’s,²⁵ is that mental health opinions are nothing more than moral, social, or legal prejudices in scientific camouflage. In other words, the benchmarks of forensic evaluation—normalcy and irrationality—are moral, social, and legal matters properly dealt with by judges, juries, and legislatures.²⁶

This argument also goes too far. Undoubtedly, forensic issues are multifaceted. Lawyers understand that the form and structure of the law are strongly imbued with moral and social perspectives, and that psychiatric conclusions should not be determinative.²⁷ But this is not to say that mental health experts cannot inform the court about human behavior and help it to base its decisions on firmer ground. Laymen are unlikely to have had experience with autism, schizophrenia, or bipolar disorder, for example; they lack the experience or clinical perspective to evaluate the normalcy of particular behavior.

Expansion of the law in accordance with growth in scientific knowledge about the etiology of disease has raised questions about the admission of expert evidence in court. The United States Supreme Court has opted for a liberal admission of such evidence.²⁸ The capabilities of the jury and the adversary system are adequate, in the Court’s opinion, to admit a wide scope of evidence without insistence on its acceptability within the scientific community. The criterion of scientific acceptability, however, remains effective in deciding whether the testimony concerns scientific knowledge, a status it must achieve for admission. The Court stressed that the rules of evidence are not designed for an exhaustive search for cosmic understanding but for the particularized resolution of legal disputes. To demand general acceptability or certainty would straitjacket the judicial inquiry. Mental health professionals have a body of knowledge that is scientific. Their expert testimony will be admissible to the extent that it allows the trier of fact to understand the evidence or to determine a fact in issue. The Supreme Court recognizes the contingent character of scientific knowledge. Given this opinion, the Faust and Ziskin attack appears to misunderstand the law of evidence.²⁹

This book is testimony to the fact that the courts have not been persuaded by radical criticisms of forensic psychiatry and psychology. However, these criticisms should be a healthy corrective to the ill-founded arrogance of some mental health experts. Even as scientific knowledge accrues, the law will transcend it. Mental health experts should not be permitted to frame operative rules or define the line between guilt or innocence, lest both psychiatry and the law be brought into disrespect.³⁰ When the dust of debate has settled, it will be seen that the true value of Faust and Ziskin’s philippic will have been to put mental health experts on their mettle; for the debate, now encouraged by the Supreme Court, gives cross examiners the ammunition they need to test the validity of an expert witness’s methods and conclusions. It also confronts experts with the fragility or frank incompetence of their opinions concerning such legal issues as a defendant’s mental state at the time of an offense, or the prediction of future dangerousness; and it spurs them to continue to refine the reliability and validity of their diagnostic techniques. In short, it calls for a radical overhaul of the quality of forensic evaluation.³¹

Ethical Conflicts

If the mental health expert is accepted as having a function in the court, how can a clinician reconcile forensic work with his clinical mission? As we shall see, the liability of clinicians varies according to their function. To be sure, although they may be immune from defamation action when preparing evaluation reports for use by the court, the essential question is whether the forensic context mitigates the ethical imperatives that apply to clinical work.

Lawyers, scientists, and mental health clinicians are bound by ethical codes. Lawyers and clinicians must act in the best interests of their clients and patients. A mental health clinician, for example, must strive to ease the patient’s suffering, or at least do no harm. However, the purpose of law courts is not to treat sickness. If anything, the primary moral duty of those who serve the courts is to be faithful to the processes of justice.

When a forensic psychiatrist conducts a legal evaluation, does the ethic of beneficence apply? The uneasy status of forensic psychiatry is reflected in the heated debate on this question. The principles of beneficence and non-maleficence are promoted by some,³² but this view is inconsistent with the role that forensic psychiatrists must play in the justice system. Although the ultimate decision is for courts and juries, mental health evaluations are the crux of deliberations that could have immense destructive potential. For example, testimony concerning competency to stand trial, dangerousness, mental state at the time of an offense, or the best interests of a child raises serious ethical questions. Clearly, the ethical code fashioned for a therapeutic relationship is inappropriate to forensic work.

One response to this dilemma is for mental health clinicians to shun forensic work on the ground that the potential for harm outweighs the likelihood of doing good—an objection that cannot be restricted to a narrow range of legal situations but must apply to all. A less drastic approach is to establish a separate code of conduct for clinicians engaged in forensic work. Such a code would call for adherence to the truth, a respect for those evaluated, and fidelity to the processes of justice. Though harm may follow to the individual (e.g., one parent may be found less competent than another to care for a child), a more abstract good is served in the furtherance of justice.³³

A more subtle ethical conflict arises, however, when mental health experts are asked to testify concerning relative matters in categorical terms. Take, for example, a minor’s capacity to waive Miranda rights (see Chapter 9). Can a particular adolescent (from thirteen to seventeen years in age, varying from borderline retarded to superior in intelligence, and from emotionally unstable to stable in personality, and under more or less duress) forgo his right to counsel before giving a confession to the police? Strictly speaking, the expert’s task is to illuminate these relative matters and leave it to the court to make the categorical decision. However, it is not always possible for experts to recuse themselves in this manner. Indeed, most of the battles between experts that have received such adverse publicity are caused by the requirement of the courts for black-and-white opinions when shades of gray apply.³⁴

BRIDGING THE GAP

Lawmakers, judges, and lawyers have always assumed that the law has a psychosocial background. They have also presumed that, by dint of the law, society can be properly ordered. But the burgeoning social sciences have called into question some of the traditional assumptions of lawmakers; today the efficacy of legal rules can be tested by their consequences. While once formality and logic predominated, modern views of jurisprudence favor overt policy-making. Thus, as legislation has multiplied, much of the courts’ work is to interpret that enormous body of law.

A strong fillip for judicial policy-making has been the ubiquitous presence of issues related to constitutional law. This book will frequently refer to minors’ rights, the source of which is often the U.S. Constitution.³⁵ Although it was only forty years ago, in Brown v. Board of Education³⁶ that the Supreme Court first accepted a purely social science brief,³⁷ that controversial decision³⁸ has led to a revolution in constitutional law. Today the Court deals openly with a plethora of social science data, from free speech (e.g., theories of democracy derived from political science) to equal protection (e.g., sociological evidence of the disparate impact of separate schools). This book will allude to many instances where the courts have dealt with psychological and social issues.

It is unrealistic to suggest that lawmakers should be social scientists. Rather, lawmakers, particularly judges, should be asked to take account of social science. Procedure, judicial independence, tradition, and good sense are available to ensure that the process is effective and fair. Judges and legislators should not be expected to find their way unaided through the labyrinths of neurobiology, neuropsychiatry, or developmental psychopathology. That is the task of expert evidence. However, the law should allow knowledge from these fields to be introduced and weighed whenever relevant. The introduction of this information requires collaboration between the bar and the mental health professions in order to define the qualifications of expert witnesses and establish the criteria for acceptability.³⁹

However, psychologists and psychiatrists must understand the purposes and constraints of the law; and they must demonstrate that their information can provide useful insights for fact-finders and decision-makers. Many law schools have encouraged this; the burgeoning specialty of health law, for example, provides a new venue for these perspectives.⁴⁰ Mental health experts can directly influence lawmaking by working as consultants to legislators, lobby groups, and government commissions. Information can also be brought before appellate courts by way of amicus curiae (friend of the court) briefs.⁴¹

THE ORGANIZATION OF THIS BOOK

The next chapter of this book, The Legal System, discusses the nature and purposes of the law and its sources in the Constitution, legislation, and the common law. In view of their importance to children’s mental health law, the First, Fourteenth, and Fifth Amendments are considered at some length. Next, the legislative process, the court system, types of judicial proceeding, and the principles of the adjudicative process are summarized. Finally, the function of the legal advocate is described.

Chapter 3, The Rights of Children, outlines the history and current status of children’s rights with regard to the definition of legal competence, the common law, financial support, access to health care, commercial exploitation, education, and participation in research. The chapter also discusses a number of situations (e.g., drinking, driving, sexual activity) in which minors’ freedoms, parental rights, and the obligation of the state may collide.

Chapter 4, The Educational Rights of Handicapped Children, traces the rapid recent evolution of the law as it applies to handicapped or disabled children, with particular reference to the legal definitions of handicapped or disabled, free and appropriate education, related services, and least restrictive environment. The chapter also describes the function of the mental health clinician as a witness for a child who is petitioning for (or protesting the provision of) special services, or for the school district that is defending its educational plan for the child.

The next six chapters (Child Custody Disputes, Forensic Evaluation in Cases of Child Maltreatment, Psychological Trauma and Civil Liability, Malpractice, Juvenile Delinquency, and The Rights of Institutionalized Children) follow a similar pattern. First, the history of the law in that area is outlined, its current status analyzed, and future trends predicted. In several instances, the law with regard to adults is extensively reviewed, for otherwise its application to children cannot be understood. This is of particular importance in the rapidly growing field of civil liability and malpractice law and with regard to juvenile justice and the rights of institutionalized children. Next, in each of these chapters, relevant scientific research is reviewed. An up-to-date knowledge of basic and applied research will encourage mental health experts to base their opinions, so far as possible, on scientific evidence rather than mere experience; moreover, it will inform lawyers concerning the validity of expert opinions offered on particular subjects. Each chapter ends with a description of the function of the mental expert in the forensic evaluation of such cases, with particular reference to how clinical evaluation, report writing, opinions, and recommendations can be adapted to the elements of the law in accordance with which the court must reach its decision.

The final chapter (The Child Mental Health Professional as Expert Witness), written with Craig Iscoe, provides practical recommendations in regard to how an aspiring mental health expert should operate, from the first telephone discussion with an inquiring attorney to the giving of testimony. Special attention is given to the way in which the adversary system influences the behavior of opposing attorneys and to the ethical strategy and tactics of the mental health consultant in court.

Child Mental Health and the Law advocates a synergy among policy-makers, attorneys, judges, developmental psychologists, and mental health clinicians, a synergy that can only occur if there is a concerted interchange and diffusion of ideas in an environment of mutual understanding. This book is dedicated to that end.

CHAPTER 2

THE LEGAL SYSTEM

THE NATURE AND PURPOSES OF LAW

A Functional Definition

There have been many attempts to define the law; it would be inappropriate, in this chapter, to review the intricacies of this continuing debate. Instead, we shall explore the purposes, characteristics, sources, creation, and administration of the law in the American legal system.

American law has been greatly influenced by the positivist school of jurisprudence, which holds that there is a division between law and morality and that the law is primarily a body of rules incorporated in an assemblage of authoritative constitutions, statutes, regulations, case law, and legal conventions.

The law is multifaceted. Public law regulates the relations of a citizen to his or her government, and the way that the departments of government relate with each other; whereas private law regulates the rights and obligations of citizens vis-à-vis one another. In some circumstances, this distinction becomes blurred. Tort law, for instance, was once regarded as being in the private domain since it dealt with cases in which one person would be legally obliged to remedy a wrong perpetrated upon another. Tort law thus adjusted the rights and obligations of private parties interacting with one another (an adjustment spurred by ideas of corrective justice). Today, however, tort law has evolved into a tool for the reallocation of social resources, much in the way that public law operates. In this sense, contemporary tort law is public law in private law garb. In contrast, contract law is more purely a private matter, for its rules are designed to facilitate commercial exchange.

The Purposes of Law

Although the law is a body of rules, it is neither static nor immutable. The law changes, sometimes a little behind the times, but change it must, because its purpose is to facilitate interests and protect rights. Consequently, it may at times seem untidy or inconsistent. Oliver Wendell Holmes said: The law is always approaching, and never reaching, consistency. It is forever adopting new principles from life at one end, and it always retains old ones from history at the other which have not yet been absorbed or sloughed off. It will become entirely consistent only when it ceases to grow.¹

A wider and more substantive definition of this body of rules, the law, is an outward expression of the community’s sense of right or justice. The law of torts, for example, has greatly changed over the last forty years, as it shifted from the private to the public domain. Tort law was originally generated in medieval times in order to deal with simple accidents. It was subsequently fashioned to cope with the tide of accidents as a result of the Industrial Revolution. It is now employed by the courts to deal with environmental litigation on a massive and complex scale. Another example of change is the periodic reinterpretation of constitutional law in order to accommodate technological or social change. The Supreme Court’s recent decisions concerning abortion reflect the consideration of contending pressures as the rights of individuals are balanced against the state’s legitimate interest in regulating abortion.² Yet another example is the manner in which constitutional law has changed as the individuality (personhood) of the child has been increasingly recognized.³

The law is authoritative in that it springs from sources or persons with the authority to prescribe rules. American law, which is within the tradition of the English common law, is largely made up of case precedents, the past decisions of courts of law. In recent times, however, legislation has become increasingly important. Whether applied from common law or statute, the law must be interpreted by an authoritative body. For example, if a dispute arises concerning the liability of a psychiatrist for injuries perpetrated on others by a former patient, it will be necessary to determine whether courts with proper jurisdictional authority have established rules for reaching conclusions in similar cases. It will be essential, also, to ascertain whether there are legislative provisions that regulate the liability of psychiatrists in such cases. Furthermore, it will be necessary to interpret case law and statutes, given the particular facts of the case in question.

Courts and legislatures interact. Sometimes, for example, a legislature will override a rule prescribed by a court. Take, for example, the doctrine of informed consent in medical malpractice. By the early 1970s, many courts had abandoned the original rule that customary professional practice should dictate how much a physician must disclose in obtaining a patient’s informed consent. The customary practice rule was regarded as perpetuating medical paternalism and submerging the fundamental value of the patient’s autonomy and right to know.⁴ However, many legislatures responded by reaffirming the customary practice standard.⁵ Ultimately, it will be for the courts to interpret whether or not the overriding of case precedent by legislation was efficacious. For example, in the Washington case Helling v. Carey (1974),⁶ ophthalmologists were held to a new standard of care in testing for glaucoma. The Court ruled that an ocular pressure test should have been administered to a plaintiff-patient whose vision later became grossly impaired because corrective steps were not taken. The Washington legislature passed legislation to overrule this decision, but the statute was subsequently interpreted by the court to be ineffectual in changing the Helling holding.⁷

It can no longer be asserted, as it once was, that the courts merely declare the law. The common law is not the brooding omnipresence in the sky described by Oliver Wendell Holmes;⁸ rather, like legislatures, courts make law. However, they are constrained by complex assumptions about their legitimate role in a democratic society. In creating law, the courts are bound by precedent; thus, their lawmaking is both backward-looking and norm-creating. However, different courts will vary in the degree to which they are constrained by precedent.

Activist courts are more likely to break free of precedent,⁹ perhaps because American legislatures have often been perceived as unresponsive to public needs. For example, damage claims for personal injury are subject to a legislative requirement that they be brought within a limited time—the limitation period—after an injury has been sustained. It became apparent that some victims are unaware of the injuries they have sustained, such as the onset of lung disease from asbestos dust. In these cases the victim may be deprived of a legal remedy because the limitation period expired before the disease became manifest. The injustice can be cured by amending legislation to provide that the limitation period will not start until the injury is discovered (or is reasonably discoverable). Many courts, however, have decided not to wait for legislatures to act but to cure the injustice by adding a judicial gloss to their interpretation of legislation.¹⁰

The divide between public and private law is fundamental. Constitutional law is quintessentially public; it defines the limits of power of branches of government, particularly vis-à-vis the citizen. Americans are accustomed to written constitutions, although, as the British example shows, a constitution can operate without a separate document. Public law has its effect at different levels. At its highest, it is embodied in the U.S. Constitution and the state constitutions; it descends to the laws that regulate the rights and obligations of public officials in town councils.

Embedded within public law is the notion of the rule of law—that ultimately we are governed by law, not men. All authority is subject to the control of law. However high the offending official, a wronged citizen has a remedy against abuse of power. The framers of the American Constitution deemed the rule of law alone too feeble a protection; therefore, they decided that the powers of the three branches of government—executive, legislative and judicial—should be separated. The separation of powers was designed to check any branch that overreached itself in relation to the others. However, the freedom and liberty of the individual required still greater fortification; accordingly, the first ten Amendments were added to the Constitution in order to protect such individual liberties as the right to be free from arbitrary searches and the seizure of personal property.¹¹ Moreover, in criminal proceedings, citizens were afforded the right to be accorded due process, to have a public hearing, to be represented by counsel, and to confront and present witnesses.

The ideas of equality contained in the Bill of Rights—the first ten Amendments—were later underscored by the enactment, after the Civil War, of the Thirteenth and Fourteenth Amendments. Under those Amendments, a crucial step was taken: The states were compelled to afford constitutional protection to all citizens. Other amendments have gradually been added. The slow, haphazard accretion of Amendments follows from the purposely unwieldy process required to pass them, which is itself a recognition that the basic law embodied in the Constitution should be alterable only after sober reflection, and not subject to whim or passing fashion.

The criminal law is part of public law. The state lays down rules of conduct, and a person who breaches the rules is subject to criminal sanction. A sanction can be as little as a fine and as drastic as capital punishment. The law imposes protections when personal liberty is at stake. Thus, it is common during the administration of the criminal law for the defendant’s constitutional rights to be invoked.

The Characteristics of the Law

ADVERSARIAL AND INQUISITORIAL PROCESSES

The law can be viewed in many ways. In Chapter 1 we compared law with science and clinical work, demonstrating its separate methodology and purpose. In jurisprudence the dominant positivist school conceives of law as the ultimate regulator of society. Positivists view the law as a tool of social engineering. Legislatures and the courts enunciate rules of law to achieve certain ends. But the law is more than an instrument for achieving a certain distribution of things in the world. It is the means of creating and sustaining a political and ethical community. The law both embodies values and creates them. Since the grist of common law is the resolution of actual cases, it is expressed in terms of social experience. Common law courts often describe their task as that of resolving disputes while applying and developing the law. In contrast, the civil law system requires academic exegesis for its declaration and transformation. Civil law is embodied in codes, which are interpreted and applied by the courts with the guidance of authoritative academic commentaries. Codification and legislation are emerging features of American law. In interpreting and applying statutes, on the other hand, the courts establish precedents that may bind or persuade other courts attempting to resolve subsequent disputes.

The common law is adversarial, whereas civil law is inquisitorial. Ideally, in the common law, the judge rules on legal questions while the jury judges the facts within the framework of the law. As an institution, the jury was originally a body of ordinary men sworn to give a true answer (veredictum: verdict) to a question. The local sheriff was commanded by writ issued from the King’s Court to gather together twelve truth sayers, unrelated to the parties, in order to come before the court and make inquiries. With the discarding of trial by ordeal in 1215, the jury assumed a more neutral, judgmental role, such as that of the petty (petit) or trial jury, which determined the guilt of suspected criminals.

The adversarial process stems from the ancient procedure of trial by battle. Under Henry II, the petty and grand assizes replaced this cumbersome and unjust institution, the last judicial battle being fought around 1485. (The King’s Bench was stunned in 1818 when a gauntlet was thrown down in an attempt to initiate a trial by battle.) The remnants of trial by battle can be detected in the formalized contest of a modern trial, the purpose of which is to expose important facts for the court to cogitate, while the champions of trial by battle have evolved into the opposing counsel.

In like manner, common law pleadings were designed to hone disputes, thus enabling evidence to cluster about the legal issues exposed. Wider issues, seemingly important to laymen, may be rendered inapposite by this process, for it requires each side to ransack statutes and case law in order to bolster its case. Each side will then adduce evidence to demonstrate that its case falls within the law that, it asserts, applies.

Thus the courts have two distinct functions: dispute resolution and rule-making. From a private perspective, trials resolve disputes. From a public viewpoint, trials are a mechanism of collective choice for the interpretation and creation of the laws that regulate society.

THE LAW AS THEATER

Slovenko (1973) compares a trial to a game, not in the sense of pleasurableness, but because it recreates a traumatic event with the aim of resolving it. Through this reenactment, society seeks to gain mastery over incidents that disturb the peace and to reassert the primacy of its rules. The elaborate, formalized procedures of the court are designed to hold passion at bay in order that reason may prevail. That is why the law usually disfavors self-help remedies, unless they pose little risk of social friction. From another viewpoint, Slovenko and Ball suggest, the courtroom is a dramatic stage upon which good and evil, right and wrong, protagonist and antagonist contend, seeking a verdict that will resolve their conflict. The theater of Law, so to speak, enacts morality plays which uphold the rules of society and demonstrate that no sanction is imposed without due concern for the rights of the individual.¹²

THE SOURCES OF THE LAW

The authoritative sources of the law are case law and statutes. Case law is the substance of the common law. In the United States, state courts decide the common law for each jurisdiction. Federal courts are not common law tribunals; their powers stem from the Constitution. The federal courts possess federal jurisdiction and such additional jurisdiction as Congress bestows.¹³ In only limited areas (e.g., admiralty and maritime law), may the federal courts develop a federal common law. In Erie R. Co. v. Tompkins (1938),¹⁴ the Supreme Court found that, in cases under the jurisdiction of the federal courts, the court should not develop its own common law; it must conform with the precedents of the state courts, provided those precedents are consistent with constitutional and federal statutory requirements. All law—state or federal, judge-made or statutory—must comply with the requirements of the Constitution. This, if you will, is the basic law.

The states have also enacted constitutions that reflect the federal constitution but sometimes contain provisions that go beyond it. For example, state constitutions commonly provide that its courts are open to all parties making legal claims, while the federal constitution contains no such provision.

We have already seen how constitutional requirements dictate that, except in limited areas, the federal courts cannot develop a separate federal common law. Thus, the common law is fractured into fifty separate bodies. For example, the law applying to negligence, corporations, and criminal offenses is separate and distinct in every state, except that it must comply with the dictates of the federal Constitution. This is not to say that courts blindly strive for diversity. Often universal rules will be adopted because uniformity is desirable. The American Law Institute aims to achieve more uniformity through its restatement projects. In the legislative branch, uniform acts are drafted to encourage consistency, for example the Uniform Putative and Unknown Fathers Act (1988). Uniformity may be sufficiently desirable for Congress to exercise its Constitutional powers and enact laws formerly the province of the states. (See the Federal Parental Kidnapping Prevention Act of 1980.)

Constitutional Law

As we have noted, the Founding Fathers were convinced that the individual citizen was best protected by a government that had several centers of power. Furthermore, the Bill of Rights was regarded as necessary to prevent abuse by the central government. At the outset of the Republic, each state was expected to shield and protect its own citizens. The Civil War would change this, with additions to the Bill of Rights that bind the states. The centerpiece of these additions is the Fourteenth Amendment (discussed later in this chapter).

Mental health clinicians are affected by the Constitution because it profoundly influences the shape of the law. The Supreme Court decision in DeShaney v. Winnebago County Dept. of Social Services (1989)¹⁵ provides a good example. In DeShaney, the mother of an abused child sued the State of Wisconsin. She alleged that the failure of state welfare officers to protect her child from repeated beatings (at the hands of his father) breached her child’s constitutional protection under the Fourteenth Amendment. The Supreme Court rejected her claim on the grounds that, had it been allowed, a significant area of state tort law would have been constitutionalized. In other words, people with a grievance against the state could have brought suit under a deprivation of a constitutional right, thus circumventing state law and undermining states’ rights. In contrast, the Supreme Court decision in Brown v. Board of Education (1955)¹⁶ shows that state autonomy could be trumped by the constitutional value of racial equality. If a state agency should incarcerate or institutionalize somebody, that person will have a claim under the Fourteenth Amendment should he be denied the equal protection or due process of the law. For example, if the state should place a child in a foster home, it will have an affirmative duty to protect the child, a breach of which could yield a claim under the Fourteenth Amendment.¹⁷

In In re Gault (1967) the Supreme Court upheld an appeal for a writ of habeas corpus issued by the mother of a fifteen-year-old boy. A juvenile court, having adjudged Gault delinquent for making lewd telephone calls, had placed him in an industrial school until he reached the age of twenty-one. The maximum penalty for an adult guilty of such a crime was a few months in jail or a relatively paltry fine. The boy had not been afforded counsel, no witness had appeared against him, no record was made of the proceedings, and he was not informed of his right to remain silent. The Supreme Court did much to elevate the rights of minors when it stated that neither the Fourteenth Amendment nor the Bill of Rights is for adults alone.¹⁸

Constitutional adjudication involves legal interpretations in light of the fundamental values found in (or fashioned out of) the Constitution (particularly the Bill of Rights and subsequent Amendments). The principles of value identification tax the analytical ability of legal scholars, but the results are of significant moment for the mental health practitioner. In Parham v. R. (1979), for example, Justice Stewart recognized the pervasive impact of the constitution on the professional life of the mental health practitioner when dealing with children. He said: Issues involving the family and issues concerning mental illness are among the most difficult that courts have to face, involving as they often do serious problems of policy disguised as questions of constitutional law.¹⁹

THE FIRST AMENDMENT

The text of the First Amendment reads:

Congress shall make no law respecting an establishment of religion or prohibiting the free exercise thereof; or abridging the freedom of speech or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

The terms of the text are extended to the states under the Fourteenth Amendment.

The freedom of speech and religion embodied in the First Amendment runs deep. At its heart is a distrust of government regulation. Government cannot, for example, compel a show of respect for the flag.²⁰ It cannot ban symbolic speech that denigrates the flag.²¹ Recognizing that public schools may be a medium of indoctrination, the Supreme Court in Tinker v. Des Moines Independent Community School District²² found that the First Amendment safeguarded the academic freedom of students and teachers. The First Amendment has also been deployed in order to protect the status of private schools.²³ However, freedom of speech is abridged if it constitutes fighting words²⁴ or incites others to damage property or business.²⁵ A pertinent limit on freedom of speech is the protection the Court gives to children in order to guard them from sexual exploitation by pornographers²⁶ (see Chapter 3).

The First Amendment assures the free exercise and nonestablishment of religion. The nonestablishment clause has been interpreted as effecting a separation of church and state. The chief battleground for the application of this clause has been the permissibility of school prayer. In Wallace v. Jaffree (1985),²⁷ a majority of Supreme Court Justices found that Alabama statutes permitting silent prayer or meditation in schools were unconstitutional; similarly, in Lee v. Weisman (1992), the Court found that school officials’ organization of prayerful invocations and benedictions during graduation ceremonies breached the establishment clause. In these cases, the Justices have emphasized that the putatively coercive nature of a school necessitates close constitutional scrutiny of regulations that trespass upon First Amendment freedoms. In Lee it was noted that research in psychology supported the assumption that adolescents are susceptible to peer pressure toward conformity, particularly in matters of social convention.²⁸

Wisconsin v. Yoder involved a direct clash between the free exercise clause of the First Amendment and the state’s compulsory education statute.²⁹ In this case, the court exempted Amish children from compulsory school attendance after the eighth grade because it would have gravely interfered with their religion. Yoder illustrates how the Court must examine the centrality of any religious tenet allegedly jeopardized by state regulations; otherwise, legitimate authority could be defeated by cheap religious excuse. Even a central religious tenet will bend to a generally applicable or neutral state regulation if, on balance, the state’s interest takes precedence over the religious practice. Thus, Oregon was permitted to deny unemployment compensation to employees who were fired because they had used peyote for religious purposes.³⁰

THE FOURTEENTH AMENDMENT

Section 1. All persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

This amendment prohibits state action that deprives "any person of life, liberty, or property, without due process of law . . . or [denies] the equal protection of the laws." We have already alluded those elements of the amendment that have captured the courts’ attention. It should be noted that the state must have acted; a private individual, whatever his power, will not be subject to these constitutional requirements. State action refers to a state’s legislative, executive, or judicial function. Zoning laws segregating black and white would represent state actions.³¹ The enforcement by a state court of a racially restrictive covenant would also bespeak state action.³²

The due process requirement of the Fourteenth Amendment is shared with the Fifth Amendment. Its long and checkered history began with the substantive due process jurisprudence employed by the Supreme Court when it struck down legislation interfering with freedom of contract.³³ The same line of decisions was reversed by the Court when it upheld the constitutionality of New Deal legislation.³⁴ In Chapter 3, we shall explore substantive due process in its modern context. If a right discerned within the Constitution can be described as a liberty interest, any state action that interferes with it will be subject to the court’s determination of the balance between that right and the demands of organized society. The right to an abortion is the roiled and bloody battlefield of this judicial balancing.³⁵ Because of the problematical role of the Court in identifying a right, due process has become primarily a procedural safeguard. Government is restricted in its actions when a person’s interest in life, liberty, and property is at stake. A citizen is entitled to a hearing sufficient to protect those interests. The core of procedural due process is the duty to give notice, and the opportunity to be heard in an open forum before a neutral and detached magistrate.³⁶ As we shall discuss, due process must be accorded to juveniles in juvenile courts,³⁷ correctional facilities, and psychiatric institutions (see Chapter 10). It is through the due process clause that the Court has applied the Bill of Rights to the states and has evolved almost all the protections that bind the federal government in the exercise of its powers.

The equal protection clause of the Fourteenth Amendment proscribes invidious discrimination. The Supreme Court thus regards state-sponsored discrimination against certain groups as highly suspect. Reflecting its post-Civil War origins, discrimination has traditionally been on grounds of race. A state may justify discrimination against other groups if it can show that, by doing so, it is rationally promoting a legitimate state purpose. Discrimination on the basis of gender requires a level of justification more demanding than rational connection, but not the level demanded in the scrutiny of racial matters.³⁸ As we have noted, constitutional rights attach to children.³⁹ The state may subject children to discrimination if it can show a significant state interest not present in the case of an adult.⁴⁰ However, in Cary, the Court held that the state did not have an interest sufficiently significant to ban the sale of contraceptives to minors under sixteen; however, the state’s interest may be sufficient to require parental consent for a minor’s abortion, provided allowance is made for application to a court for a bypass of that requirement.⁴¹

THE FIFTH AMENDMENT

No person shall be held to answer for a capital or other infamous crime unless on a presentment or indictment of a grand jury, except in cases arising in the land or naval forces, or in the militia, when in actual service, in time of war or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use without just compensation.

The Fifth Amendment has been called the due process clause. The Fifth Amendment binds the federal government as the Fourteenth Amendment binds the states. The due process requirement has also been interpreted as incorporating the equal protection (or equality)