1
AWAKENING

I STEPPED INTO the main entrance of the federal district courthouse, a sterile modern building facing the manicured lawn of the Mall, between the Capitol and the White House in the heart of official Washington. I greeted the guard by name as I walked through the green marble lobby. “How ya doin’ Mr. Hapner? Nice to see you back,” he said.

“I’ve got a big case in district court this morning,” I said, as breezily as I could manage, as if I had trials and arguments in the courthouse every day. Just two years earlier, in 1965, I had been a law clerk in this same building, my first job out of law school, doing research and drafting opinions and memoranda for an appellate judge. Today I was returning, dressed in my gray pin-striped suit, carrying my new monogrammed calf-skin briefcase. I was lead counsel in a case I cared about deeply, asking the court to take unprecedented steps to protect the rights of mental patients confined in public mental hospitals against their will. I was no longer carrying the bags for a senior partner in a case for a bank or drug company. This was my first big step into professional autonomy.

I had spent months preparing, learning about mental hospitals and the diagnosis and treatment of mentally ill people, interviewing 10experts, and lining up witnesses. If we could establish that my client was receiving inadequate treatment, the decision would have major implications for the hundreds of thousands of patients confined in mental hospitals throughout the country. Success would mean that courts would, for the first time, look behind the sealed doors of the hospital and evaluate the activities, the tedium and neglect that characterized the patients’ lives—their long days watching soap operas, their sunlight filtered through thick windows and mesh security screens, surrounded by patients on thorazine rocking back and forth and chewing their tongues. Courts would have to determine whether the hospital was providing adequate treatment for the inmates’ mental condition to justify their incarceration for an indefinite term.

As I entered the courtroom I felt a mix of excitement, anticipation, and terror. This was a highly visible case and Jim Ridgeway was covering it for The New Republic.¹ He greeted me at the courtroom door with a big, gap-toothed smile. “Is your client like McMurphy? Is Nurse Ratched beating him down? Does this case involve an effort to hit back at the whole repressive system that is clamping down in this country?”

“I am just focusing on this hearing, this morning,” I answered. “It is about one guy who has been held without treatment for over four years. The Constitution doesn’t permit that.”

Of course, I had read One Flew Over the Cuckoo’s Nest, the Ken Kesey novel that had been published just a few years earlier, along with R. D. Laing and Thomas Szasz, and I knew the sociological and cultural implications of this challenge to psychiatric authority.² But this was a law case in a courtroom, and I had never conducted a hearing before. I was too tense for a casual conversation about sociology or literature.

By the time I arranged my papers at the counsel table and sat down, my client was brought into the courtroom by two marshals. 11Charles Rouse looked confident and hopeful despite his ride from St. Elizabeths Hospital in handcuffs, alone in a bus with security screens on the windows. He was a man in his mid-twenties, dressed in an ill-fitting gray suit and a narrow black tie, his skin pallid from his years locked away from the sunshine, with the demeanor of an ambitious used car salesman. His black hair was slicked back, and he wore dark-rimmed glasses that enlarged and framed his darting eyes. There was a little swagger in his walk, as if he were pleased to be the focus of attention. We shook hands.

“How are you feeling?” I asked him.

“Nervous,” he said.

“Me too,” I said.

I found myself representing Charles Rouse in court that day because of an unusual telephone call I had received six months earlier. I was sitting in my office under the eaves of a brick mansion near Dupont Circle, a charming, oddly shaped little room, which I liked very much, even the annual spring ritual when the serviceman came through my office and climbed out my window on his way to tune up the air conditioner on the roof. The mansion housed the law firm of Arnold & Porter.

The firm had been founded in the fifties by three veterans of the New Deal. It was known for its smart, innovative lawyers—effective advocates for major corporations, as well as, paradoxically, flinty independents willing to take on unpopular clients, like accused subversives in the McCarthy years. It was a pleasingly eccentric place to begin my career, but the initial blush of novelty had faded. I was becoming impatient with work on issues that I didn’t care about—license agreements for marketing laundry soap and joint ventures for shopping malls—drafting legal memorandain 12long days in the library, and client conferences where my job as a junior associate was to take notes and try to look interested.

On that afternoon I was drafting testimony for a trade association executive for a congressional hearing on bank interest rates when I received a call from David Bazelon, the chief judge of the Federal Court of Appeals, where I had served as a law clerk. I was familiar with Judge Bazelon’s reputation at Law School, a restless and creative judge who used his judicial authority to work for social change. To do this, he was willing to reach out to promote novel legal theories. He was particularly identified with probing exploration of the insanity defense.³ Because I hadn’t worked directly under him, I had been spared the often tense exchanges he had with his own clerks, with whom he could be demanding and ill-tempered.

“Can you come down to see me at the courthouse?” he asked, with no preliminary small talk.

“When?”

“Now.”

I looked over the testimony that I had been drafting. “Sure,” I said. When the chief judge asks, I thought, it was a good idea to say yes. I knew that he often reached out to his former clerks to assist him in drafting speeches and developing new legal theories. But since I had not been one of his clerks, I was flattered that he was calling on me. And there was a good chance that he wanted to talk about something more interesting than the maximum interest rates that can be charged on an unsecured loan.

The chief judge’s suite of offices looked over the Mall, at the west façade of the Capitol, which was glowing pink in the setting sun. It looked to me like the kind of picture postcard view that tourists send home. To my left the dome of the Capitol hovered. At the other end of Pennsylvania Avenue stood the White House. The Mall was surrounded by sprawling government buildings housing cabinet departments, each with endless corridors leading to beige 13cubicles, spreading out in huge rectangles from classical entrance colonnades. The bureaucratic decisions flowing from those offices came to this court for review.

When Judge Bazelon’s secretary showed me into his office, the judge remained seated, the overhead lights making a halo of his silvery hair. He hardly looked up as he gestured me to a chair, across a large expanse of desktop covered with drafts of half-completed opinions and marked-up lawyers’ briefs. On the wall behind his head he had hung a dramatic etching of himself—younger, ruggedly handsome, and darkly introspective. What kind of person decorates his office with such a picture of himself? I wondered. I knew that he gave inscribed etchings to his law clerks at the end of their year’s clerkship, and many of these portraits decorated the offices of partners in the city’s most prestigious firms.

Judge Bazelon wasted no time. “Look, I have just handed down an opinion that has huge implications for the way courts deal with insanity.” He tossed the printed advance sheet, a little pamphlet, across the desk toward me. “The case will go back to the district court for a hearing and I want to make sure that it is handled right. Read the opinion and go back to the firm and tell them that I want you to handle the case in the district court. I’ll bet that they will let you do it.”

“What do you want me to do in the district court? Will there be an evidentiary hearing?”

“How do I know? I want you to figure it out. Our court has held that involuntary mental patients must be given adequate treatment. This poor schmuck Rouse has been in the hospital for four years after committing a misdemeanor. He’s just a kid. It looks like they aren’t giving him any treatment at all. He could spend the rest of his life there. And,” he added, with a laugh, “if all else fails, you can try a writ of rachmunes.”

“Rachmunes? What’s that?”

“Don’t you know any Yiddish?” he said with mock surprise. “Rachmunes is basic human feeling, compassion, sharing someone else’s sorrow. This is the generation gap.” True, my parents protected me from the Yiddish language as part of the project of making me thoroughly American, and I sometimes feared that the substance of rachmunes itself was lost in their desire to equip me to compete effectively in the American struggle to excel.

“Look, just read my opinion, talk to the big shots, and get back to me.”

I left the courthouse thinking that the case Judge Bazelon had just handed me sounded like a big opportunity, and my supervisors at the firm agreed to let me handle it. At Yale Law School I had been inspired by the Justice Department’s work under Robert Kennedy. He had created a separate division to promote civil rights for racial minorities, mirroring and supporting the work of effective civil rights advocates like Thurgood Marshall, who had used federal litigation patiently and systematically for decades to attack racial segregation.⁴ As I drove home that night, I imagined myself acting in the tradition of Kennedy and Marshall, bringing the law’s protection to the helpless, neglected people confined in mental hospitals.

I had been intrigued by the issue of insanity and the criminal law ever since taking a law and psychiatry seminar at Yale that was taught jointly by two professors—one a lawyer, the other a psychoanalyst. Anna Freud co-taught the course as well, as a visiting professor. Her presence in the small, paneled seminar room lent it a special quality and everyone deferred to her comments. She wore long simple dresses and spoke softly, with an English accent, and with surprising diffidence.

We discussed moral responsibility, free will, and the limits of criminal penalties for mentally impaired people, analyzing legal, philosophical, and psychological issues. The psychoanalyst urged 15us to look more deeply at our own motivations lying behind our arguments. The mix of legal doctrine and psychological insight whetted my appetite to know more.

“Isn’t it risky to give the psychiatrists too much authority?” Miss Freud asked in her soft voice. “It sounds like the psychiatrist is a magician who can determine with certainty whether a particular mental state causes a particular act. I am not sure that anyone can do that.” That opinion about the psychiatric profession struck me as excessively modest, especially coming from Freud’s daughter. At that time it seemed to me that psychiatrists had a fascinating and powerful tool for seeing into the human heart, penetrating the screen of words and rationalizations in which we wrap our actions. I was interested in exploring those mysterious depths, although it remained an academic inquiry for me.

The call to Judge Bazelon’s office changed that. Far from an academic exercise, the task I was about to begin could transform the way the government treated mentally ill people. The core of the inquiry in law school was about the responsibility of insane people for their criminal conduct, never following the defendant into the mental hospital and asking what happened to him there, and how long he could be incarcerated. The Rouse case was an opportunity to begin a legal process of looking behind the walls of mental hospitals and reforming the hospitals’ practices. I was flattered that Judge Bazelon had called on me to handle this case, and I liked the fact that I was going to be in charge, with final responsibility for making the decisions.

Several weeks later, I went to meet Charles Rouse on “S” Ward at St. Elizabeths Hospital, the mental hospital run by the federal government for the District of Columbia. This was the hospital 16where Ezra Pound had been warehoused after World War II, rather than being tried for treason, and where John Hinkley has been held since he shot Ronald Reagan.

St. Elizabeths is on a large, campus-like tract of land spotted with century-old trees in rolling meadows, in a distant part of the District of Columbia, on the far side of the Anacostia River. The building for the criminally insane, the John Howard Pavilion, stands in a remote corner of the grounds. To get to Rouse’s ward, I passed through four locked doors and a key-operated elevator. Most of the people on his ward had been found not guilty by reason of insanity, and some of them behaved in bizarre ways, staring, muttering, growling, gnawing their tongues. Later I learned that much of their behavior was induced by the drugs they were given, and the effects of their prolonged hospitalization and enforced idleness. The only activities available in the dayroom were TV and ping-pong. The nursing aides sat in a fortified bunker in the middle of the ward, encased in shatterproof glass and surrounded by files describing and categorizing the people on the ward and by the pills they could use to alter their behavior.

Rouse was a few years younger than I was. He looked like the kind of kid you’d find hanging around a garage in a small town after school, with a pack of cigarettes rolled up in his T-shirt sleeve and a Coke in his hand, trying to look tougher than he was. I saw nothing bizarre or inappropriate about his behavior.

“I just want to get out of here,” he said, as soon as we started talking. “Nobody is getting adequate treatment. They should just close this place down, take the locks off the doors and the security screens off the windows, and turn the hospital into a junior college.”

At the outset, in Judge Bazelon’s office, I was excited by the Rouse case, as an important, precedent-setting piece of test litigation. If I succeeded in proving that Rouse had not received adequate treatment and was entitled to be released, a new era of judicial scrutiny 17would begin, and mental hospitals could no longer be used as human warehouses.

After our meeting at the hospital, the nature of my commitment to the case changed. It was no longer a matter of abstract legal principles. Charles Rouse was a person, and I felt his youth had been taken from him. Indeed, if he had been convicted of the crime, the maximum sentence would have been one year. Instead, he was trapped in a Kafkaesque world of locked wards and thorazine, in which he tried his best to guess at the combination of changes in attitudes and behaviors he could make to get himself released. As I passed outside into the brilliant sunlight, I realized I wanted desperately to help him recover his freedom. I was beginning to get a sense that the commitment to lawyerly abstractions, even noble ones like due process and equal protection, was much stronger if it was coupled with human connection and empathy.

I began preparing for trial, reviewing Rouse’s records and interviewing the psychiatrist in charge of his unit. According to the records, it appeared that there was no systematic plan for treating Rouse and that he was receiving virtually no treatment. The psychiatrist claimed that his ward was a “therapeutic milieu” and that confinement in such a place was in itself adequate treatment. It seemed to me that the milieu at St. Elizabeths was just about as therapeutic as the milieu in One Flew Over the Cuckoo’s Nest.

I also had the advantage of sociologist Erving Goffman’s brilliant analysis, based on the year he had spent working at St. Elizabeths as an orderly, researching his classic book, Asylums.⁵ He found that doctors, custodians, and patients made their way through a complex maze of relationships, isolated from the outside world, and that the therapeutic encounter, the theoretical justification for the 18whole venture, often was barely discernible. His clear-eyed look at the hospital, free of the wishful thinking of mental health professionals, revealed how limited the therapeutic potential of the place was.

I went to discuss the case with Goffman, who was then a visiting professor at Harvard. We met on a dismal, rainy night in the little apartment he was subletting near Harvard Square. I thanked him for seeing me and explained the case to him.

“Aren’t you being sociologically disingenuous?” he asked. “Of course they’re not providing adequate treatment in St. Elizabeths Hospital. Everyone knows that. But it’s something that society tolerates in order to get some troublesome people off the street and out of sight.”

“Disingenuous or not,” I said, “there’s no legal justification for holding Rouse without treating him. This case is a way of making people face up to this hypocrisy. Besides, Charles Rouse is getting screwed, and I want to get him out of there.”

We had a pleasant conversation, during which Goffman was dismissive of the idea that real therapy was taking place at St. Elizabeths. But as we talked I decided that Goffman was probably too introspective and shy to be an effective witness. In any case, he did not want to take time from his current projects to travel to Washington and familiarize himself with the case—and subject himself to the unpleasant experience of cross-examination.

I located two eminent psychiatrists with long experience as superintendents of mental hospitals who would familiarize themselves with Rouse, his records, and the circumstances of his confinement. They had enough prestige in the field to testify convincingly whether St. Elizabeths really was offering adequate treatment for Rouse. Both of them knew a great deal about the strengths and weaknesses of public mental hospitals, and they were willing—without compensation—to stick their necks out, to be 19critical of their own profession, in order to serve what they saw as a larger good.

On the day of the hearing, I came to the courthouse with the feeling that I was as well prepared as I could be. I had developed a tight legal argument, learned a great deal about public mental hospitals, and identified two outstanding experts to testify about the inadequacy of Rouse’s treatment.

When I met him in the courtroom, Rouse turned to me and asked, “What do you know about this judge?”

“I’m not counting on him to be too sympathetic,” I said.

“All rise,” the bailiff said, cutting our conversation short. The Federal District Court for the District of Columbia is now in session, Judge Alexander Holtzoff presiding.” I knew that Judge Holt-zoff, a crusty old conservative—small, bald, and waspish—had no use for innovative theories and no use for activist judges like Bazelon. This hearing was a skirmish in a long-running battle.

Indeed, Judge Hotzoff treated me like Bazelon’s surrogate throughout the hearing. My arguments were disregarded, my objections overruled, my expert witnesses treated disrespectfully. It was a long and painful courtroom debut.

The judge’s head was barely visible above the bench, and the expression on his face suggested that he smelled something disagreeable. As I spoke he tapped his pencil on the bench in front of him impatiently. I tried to keep my focus, to speak confidently and persuasively. I tried to put the case in context. “In this novel case, we will show that my client has been held for three and a half years without treatment, after he had been found not guilty by reason of insanity for an offense that carried a maximum sentence of one year. Our expert testimony will show that the hospital’s claim to 20have given him ‘milieu treatment’ is a sham. He has been denied his right to have adequate treatment during his incarceration, and he is entitled to be released.”

“How long will your presentation of the case take, Counsel?” Judge Holtzoff broke in.

“Probably two days, Judge Holtzoff.”

“Counsel, you’d better think of ways to cut your testimony short. We are a busy court here. While you and the chief judge may claim that this case is unique and deserving of special attention, all litigants think that their cases are uniquely important. We have a busy calendar.”

Realizing that this could become a debacle, I began imagining a confrontation in Bazelon’s chambers. “You what?” he would snarl, his face twisted in anger. “You didn’t present your witnesses’ testimony? There’s no record for us to consider? You certainly made a mess of this! Perhaps Fortas chose the wrong associate. Perhaps you chose the wrong profession.”

I looked over at my client, who was slumped down in his chair, visibly deflated, imagining a return to his endless days in the mental hospital. “Relax,” I whispered. “The fight isn’t over. There will be more than one round.”

One of my psychiatric experts, Israel Zwerling, was able to help me recover my equanimity and confidence during the first break in the trial. “This is outrageous,” I said to him, my voice rising, as we huddled in the corridor outside the courtroom. “We have a difficult legal issue to deal with, and this poor bastard Rouse’s freedom is at stake. This judge is playing crazy games because he has issues with Bazelon and his authority in the courtroom.” I was furious as I saw my crusade for improved treatment for the mentally ill going up in smoke before it even began.

“Just hang in there,” Zwerling said. “Hold onto your temper. There are strange rules that govern the courtroom, as you know better- 21than I do. You can win this case without persuading Holtzoff. And who knows? We might be able to bring him around.”

However, judging from his comments, grimaces, and yawns, Judge Holtzoff was having none of it. As the witnesses testified, he interrupted them with skeptical questions, impatient requests for briefer testimony, and sarcastic asides. “Don’t you have any problems in your mental hospitals in Colorado? How do you have time to come here and tell us how to run ours?”

Rouse was taking it all in. During a break in the trial, he leaned over to me and whispered, “Holtzoff is up there trying to bash Bazelon. Bazelon is trying to enhance his reputation as an innovator. You’re launching your career as a reformist lawyer. The prosecutor is trying to get ahead by showing how tough he is on the criminal element. Everybody is trying to manipulate, one way or another. Why am I the only one who’s locked up and labeled a manipulator and a sociopath? What’s going on here? Why me?”

I was taken aback by his insight, which sharply drew me out of my lawyer’s role, forcing me to see the situation through Rouse’s eyes. The courtroom looked different from his perspective, and I felt another rush of sympathy for him—having to sit passively while his life in confinement for the past three years was dissected and his future determined, as if he were not a full participant in his own life. Each of us was acting out his own drama in the courtroom, and Rouse’s life and liberty were at stake. “I don’t have an easy answer,” I said. “Life isn’t fair. You got caught up in the whirlpool where criminal process and mental health systems flow together. I’m trying to get you out of it. That’s the best I can do.”

Since Judge Holtzoff did not disguise his hostility to Rouse and to the principle of a right to treatment, I was not surprised when he ruled against Rouse from the bench at the end of the day, sending him back to an open-ended period of confinement. Of course, I was not about to let the matter rest there with Holtzoff’s prejudgment 22and hostility. I owed it to Rouse to appeal, and I thought that we would have a good chance of success.

Rouse was crestfallen and angry about this outcome. As the marshals led him out of the courtroom, his head bowed, he said to me in a loud stage whisper, “What good is a fucking right to treatment if the judge isn’t going to pay attention to expert witnesses, if he is just going to support the hospital no matter what the experts say?” He did not respond to my assurances about a likely reversal in the court of appeals.

On appeal, I focused the bulk of my argument on challenging Holtzoff ‘s conclusion that Rouse was receiving adequate treatment. I also raised an issue that I had discovered in the course of a conversation with Rouse during the hearing: his original commitment had been illegal, I argued, because he had not consented to the plea of insanity that his lawyer had entered on his behalf. The court of appeals accepted this argument and ordered Rouse released because of his unlawful commitment. The opinion made no finding on the adequacy of Rouse’s treatment.⁶

I was pleased for Rouse’s sake, but disappointed by the court’s failure to address the inadequacy of his treatment. Rouse was happy to be free. “I hope you can help some of the other poor bastards in that place to get out,” he said to me as we parted. “Me, I’m going out for a beer.”

As Rouse reentered his interrupted life, I returned to mine feeling that I had some unfinished business. I had looked deep into the system that confined thousands of mentally ill people against their will in custodial institutions that were little more than prisons with a psychiatrist as warden. No one was challenging these mental hospitals and holding their practices up to Constitutional scrutiny.

Thurgood Marshall and the NAACP Legal Defense and Education Fund were expanding and enforcing the rights of African Americans. Who was giving comparable attention to the rights of the mentally ill?

Despite the battering I had taken in Judge Holtzoff ‘s courtroom, I found the entire experience energizing and exhilarating. I had learned an enormous amount, reading widely in psychiatric texts and consulting with some of the senior mental health professionals in the country. I had enjoyed acquiring the language of another discipline and translating their concepts into the language of non-specialists. I had stood up to intense pressure and come out all right. It was my first success in court and I realized, with some surprise, that my legal training had really prepared me to handle a trial competently.

When I went back to Yale for my fifth Law School reunion, I enjoyed the conversations initiated by my professors who had taught my law and psychiatry course. “Where do you think the right to treatment is heading?” they asked. “Is it likely to be adopted by other courts?” Although I felt a little guilty about it, I also liked the publicity, particularly Ridgeway’s articles in The New Republic. I began an internal dialogue about the seductions of fame and celebrity, modest as mine was—about the ways that self-aggrandizement can interfere with service to a client or a cause. From that point forward I could never assume that my motivations were untainted.

I saw in this case the possibility of using the courts as a vehicle for reforming oppressive mental institutions. The courts could end the entrenched practice of using mental hospitals as a dumping ground of last resort for difficult and disruptive people. I wanted to stir things up, to make waves. I saw the possibility of establishing the rights of the mentally ill through creative and persistent legal effort, creating a new body of law where none existed, bringing the 24protection of the Constitution into mental institutions. I wanted to try using the class-action technique to challenge the inadequacy of treatment in whole systems, not simply the injustice of one person’s incarceration. If mentally ill people in institutions had a right to adequate treatment, I wanted to pursue the idea that mentally retarded people should have a similar right. I wanted to be the person who built on the right to treatment principle.

The Rouse case suggested that I had some useful skills and important perceptions. I was pleased with my own entrepreneurial ability—raising a modest amount of foundation money to bring in experts, consulting psychiatrists to help shape the case, and working with journalists to bring the story to a broader public. I had a fresh insight into how I could do creative and useful work in the world, to work for social justice and paint on larger canvases.

When I graduated from Yale Law School, I had an abstract interest in contributing to solutions of the world’s problems and reducing poverty and injustice. But I did not have the degree of focus and clarity that would have permitted me to escape from the powerful current flowing through the Law School, which carried most of the graduates into corporate law practice. My level of commitment to service wasn’t enough to get me to effectively challenge the conventional advice about career path and success. The Rouse case helped me to wake up, to create a vision of a life of meaning in the law, and to begin a process of reorienting my life.