Man and the value of life; #4 (Reel 2)

But at least in the present state of our criminal law the solution is not to obfuscate and conceal the moral determination of blame within us. The need rather is to consider carefully all the questions that require answers and to isolate each question for determination by the appropriate agency. Current developments in our knowledge of the nature and causes of mental illness may force the law to this realisation. The press for example has been agog in recent months with the x y y phenomena. Studies made in Sweden several years ago show that there were an unusually large number of x y y men among the hard to manage patients in mental hospitals. Evidence from the maximum security prisons and penitentiaries in Scotland tended to confirm these findings. The legal question is whether the x y y type was responsible for his crimes. Several courts have already confronted the issue of French court convicted a man accused of killing a Paris prostitute even though tests reveal that he was an x y y type

in Australia on the other hand a jury acquitted. A young defendant charged with stabbing a 77 year old woman after a psychiatrist testified that the man had an extra Y chromosome which means. And here I quote that every cell in his body is abnormal. How should the law respond to the x y y defendant. The simplest way out and the path apparently chosen by the Australian court is to admit. And to say. Yes such evidence is relevant and therefore should be presented to the jury for them to accord whatever weight they will. This approach or fails to sort out the several reasons why such evidence may or may not be relevant. How does a genetic abnormality such as an extra Y chromosome their own blame more than us. And how

does our knowledge that an offender is an x y y type affect our decision concerning what should be done with them. Unless we are merely to confuse jurors for example we must tell them much more of the relationship between an extra Y chromosome and anti-social conduct. Do all x y y type suffer from the inborn compulsion toward sexual misbehavior. If so how can they possibly be found blameworthy. Or on the other hand. Is such anti-social behavior associated not with all x y y types. But only those who display certain physical abnormalities such as exaggerated height mental retardation acne. If their crimes are proximate. Products. Not of the genetic abnormality but of the associated physical abnormality or the psychological

overlays should the jury be confused by the song seemingly scientific but perhaps superfluous testimony that every cell in his body is abnormal. We expect that a painfully tall hackneyed mentally dull man will have difficulty in life particularly in establishing normal relationships to women. Perhaps a jury might. With or without the assistance of other information absolve such a defendant from blame within us. But then everybody one in life has problems. Should a twisted personality produced by mental retardation and physical physical unattractiveness or even if research so demonstrates a personality affected directly by an extra Y chromosome. Should it. Should they be accorded greater importance in evaluating blame worthiness than for example a twisted personality produced by a get on childhood with no father and an

alcoholic mother. There is danger. That a neatly measurable scientific fact such as an extra Y chromosome may lead us to ignore other breads even much more important determinants of blame within us. The troublesome extra Y chromosome may raise other challenges than complicating determinations of blame with us however all the further research is necessary. It may be that mental illness produced by such a genetic abnormality is much more difficult to cure then other mental disorders. Conceivably the x y y type may not be treatable at all. What then what then do we do if a jury finds that such a defendant is not blameworthy. The happy and I repeat the happy theory of the insanity defense has always been

that a dangerous offender a put it for insanity should be treated in a mental hospital and returned to society cured. What does the law do with a man who is not blameworthy but is dangerous and cannot be helped. He does not deserve the harsh life of the city and the social stigma of the prison. Ideally the best disposition for a defendant with these hypothetical qualities might be restrained in a pleasant non-punitive facility the sort of maximum security Sunnybrook Farm. But the legislature. Of course has provided no such facility. What then is the judge to do. Society has a right to protect itself from the dangerous individual however blameless he may be. The individual if you're not responsible. Has a right not to be punished. The judge stands as a broker. Sometimes I say janitor. Between the interests of the community and those of the afflicted individual The choices are

not attractive but the court cannot avoid making one. The solution of course. He said why would the legislature only it can provide the facilities appropriate for each species of dangerous offender. Courts are admirably suited to decide individual cases. That is indeed by definition the function of courts. But in doing so they are limited to the alternatives available and they may fall far short of the ideal. The way in which courts function limits them in other respects as well. They lack the resources upon which other law making institutions can draw legislators today have staffs and staffs which can and do compile exhaustive sophisticated studies studies of complicated problems calling for both factual investigation and expert analysis. Courts can for the most part consider only the evidence witnesses are brought before them and the rules of evidence rightly or wrongly placed restraints on the sort of

testimony that is admissible. Even more important perhaps is the fact that courts can decide only the controversies the parties bring before them. Since this is self courts tend to be backward looking institutions. They're called upon to resolve a problem after it has arisen. Unfortunately the mere fact that a problem has been allowed to arise often means that the time for the best solution is passed. Ordinarily the prospect of judgments are demanded. Courts must yield to other institutions. This is the more true than the sort of perspective judgment prospect of judgment required is one which affects large classes of people rather than specific individuals. Those who can afford and do pursued lawsuits. Many of the problems promised by the new medical technology are of this type. Scientists have suggested for example that within the century our capability for genetic manipulation

and biological engineering may mushroom. The timetable for such advances is certainly unclear and the temptation correspondingly strong to reason that the potential problems need not be settled now or even thought about. Of course and I agree with Dr. Bose that some problems are too speculative to deserve attention. But we cannot on the other hand allow choices to be made by default. If a scientist fixated upon the technical difficulty of the feat of duces A. Clonal offspring cultivated from some medical students intestinal cell no judge can then decide when someone comes tiredly to court that the baby should be uncreated the lewd ites thought that they could defeat the dawn of the industrial revolution by smashing the new machinery. No one would argue today that we should break the scientists the scientists test tubes to stave off the genetic revolution.

As a practical matter the growth of technology is irresistible as a policy matter. The promise of the new technology is too great for us to wish to resist. The lewd ites hair was not that they feared the machine but their but that their solution was to destroy it rather than to control it. We are too wise for their solution but we can profit from their foresight. The unchecked rise of industrialism produced human misery on a vast scale. Luckily except for the human lives sacrificed to the heyday of laissez faire its excesses seem not to have been irremediable. Constructive social control of the machine came with time. Property came with time and with it perhaps a better life for everyone. We may not be so fortunate with genetic control and biological engineering in bald terms.

We may soon be able to change the human race. And the most important aspects of its existence elegance reproduction. Perhaps even psychology some of these changes may be irreversible not only for the lives affected but for all time. The specter can be sensationalized but we must contemplate medical technology. The first task is to structure our concern for the uncertain problems of the future. Which problems must be solved or at least begin studying now and who shall struggle toward the answers once the questions are decided upon. Amidst this swirling uncertainty one thing seems clear courts are not the agency they lack the sophistic the scientific sophistication. The fact finding resources. The control of which questions are brought before them. And most important the ability to make broad prospect of judgments.

If courts are ill suited what institution is better qualified. Again the candidate is the legislature. Its roots spread more broadly in society and its judgments are correspondingly more representative than those of the courts. Legislature has the resources to inform itself on complex matters. And legislation is prospected in its outlook. But in the impulse to avoid the limitations the courts have it is too easy to idealize the legislative alternative. The very advantages of legislatures contain their own pitfalls. Sometimes the most representative solution is not the best. The technical advice produced in these hearings reports and commission studies may not be well digested by legislators who like judges are not themselves scientists and sometimes the legislature may set prospected standards at the wrong time or in the wrong fashion.

For example at least 32 state legislators have passed laws requiring school screening of all newborn babies to detect. If you look at Nuria. These statutes were enacted on the basis of supposedly hard scientific evidence that this disorder could be diagnosed by a simple test and treated to prevent the mental retardation associated with the disease. But some doctors have questioned whether it makes sense to require tests for this particular rare disorder rather than for any of the hundred or so other disorders equally detectable. If all babies were screened they argue not on persuasively that doctors are better able to decide themselves on the basis of the most current evidence which tests to make more seriously. Further reports have indicated that in appropriately monitored dietary treatment may itself lead to growth retardation in immune now nutrition and even death. Finally other researchers suggested that

testing reveals a second form of fetal pheno that Nuria not associated with mental retardation which previously would not have come to medical attention. The normal intelligence that these infants develop may and may Roni a sleep be attributed to the risky diet therapy and thereby mislead us in evaluating its there. Now the question to be asked is who is right. That of course is an important question. But the fact that such unserved uncertainty now exists casts a different light upon this legislation. In some cases legislators must act with a realization that not all the evidence is in. However that apparently was not the situation here. Rather the legislators legislators involved acted on the mistaken belief that the justification for intervention was clear by enacting specific requirements prematurely.

They have at least according to their critics hampered the further investigation needed to determine whether such requirements are wives at the other end of the spectrum from legislation that is premature or statute whose chief ice is not that they do the wrong thing at the wrong time. But the that they do nothing. Such legislation is often so embarrassingly noble in its purpose that it seems almost caddish to criticize it but is no less dangerous to hide a problem behind the pretense of saying that something is being done then to do the wrong thing. Oh. The tasks with the legislatures as with the courts is to ensure that their unique capabilities are applied to problems requiring those capabilities. The legislature unlike the court can search for questions and adjust its horizons to compass more of the variables that affect a problem since it addresses broader problems the legislature Kim edge in.

The legislature cannot etch in each fine detail but it can provide guidance to allow other agencies to complete the picture. Wise legislation can reach. You can structure a problem according to the felt needs of society. And channel the attention of the courts toward a correct solution. Ah Ministry of agencies can play a large part in this and time is too short to go on a long discussion about this very burgeoning area of the law. But for example the Food and Drug Administration has fleshed out by regulations the elliptic words of Congress concerning the requirements for testing new drugs particularly the quality of consent required for the subject of an experiment. Someday courts will be called upon to decide how many of these questions and after judges have attempted to review the application of these FDA regulations for example when they called upon to apply in concrete cases the legislatures may

perhaps draw upon their experience to provide a better and a more definitive solution. The law often traces such a circle from legislature to administrative agency to court and back to legislature. But each revolution of the wheel carries us along the path. As we look to the legislature and the courts develop the law. You must not forget the public the community must live with the law and the law cannot race ahead of its attitudes in the community understanding nor realistic person would suggest. That the great masses whether watched or not will decide in detail the technical and complicated problems associated with medical progress. But we must strive to inform the public concerning both the problems and more important the nature of the enterprise. If we are to face the choices required by medical progress progress squarely and to take needed action forthrightly we must be prepared

for some failures. Facts may sometimes turn out differently than expected and in other occasions the experience may prove that our choice is between conflicting goals has been poor. If the public is to display the due to the resiliency to accept such setbacks and appreciate their inevitability it must realize the importance of the problems and feel of such a sense of participation in the choices that are made. We could of course the skies the true issues its purity scientific questions beyond the understanding of mere citizens or asked the public simply to trust us and to make the choices best for it. The first would be a past would be a policy of deliberate obscurity. The second one of disdainful elitists of the challenges grows by present and potential medical technology. Do not make unique demands upon the law. They will require the same sort of adjustments between conflicting

values and the same sort of interweaving of moral and scientific data that the law has always taken taken as its products. Other that other love making institutions I said must come in. In responding to earlier upheavals society and its legal institutions have not responded quickly enough or wise enough to reap the promise without without an accompanying harvest of misery. The lessons learned there and the sophistication and social control required in those Talk of us may have prepared us for the confrontation with medical technology. If they have not we must all bear the shame. Think of that you've been listening to a legal perspective of man and life as viewed by the Honorable David L. basil on Chief Judge of the US Court of Appeals in Washington DC. This like chair was part of the man and value of life symposium

sponsored by the University of Cincinnati College of Medicine as one of the special programs highlighting the university sesquicentennial celebration. These programs were produced at the University of Cincinnati station WG you see and were distributed by the national educational radio network.