PA Senate brandishes 19th-century pseudo mental health laws against Kane

PA Senate schedules hearing based on “mental deficiency” laws from 19th century tied to forced sterilizations, Nazi eugenics, and Soviet-era confinements in pseudo ‘psychiatric’ wards

by Bill Keisling

Though they live worlds apart, on separate continents, a 54-year-old Armenian woman named Julietta Amarikian has something in common with Pennsylvania Attorney General Kathleen Kane.

 

Both women recently have found themselves threatened by pseudo-scientific “civil commitment” laws rooted in the 19th century and earlier, put on the books before the advent of psychiatry, supposedly meant to address “mental deficiency, infirmity and incompetence” before those problems were understood by medical science.

The antiquated laws have fallen into disrepute in most places in the modern world.

Most places in the world, except, apparently, former Soviet-block states like Armenia and, now, Pennsylvania, in the United States.

Ms. Amarikian, of Armenia, recently found herself in a legal dispute with her brother, who wanted her to move from an apartment they’d inherited, writes Marianna Grigoryan, of Eurasianet.org.

When Julietta refused, her brother called the authorities and had her locked away using Soviet-era “mental incapacity” laws that are still on the books in Armenia and elsewhere.

Julietta Amarikian was thrown in to what amounted to a prison. Her most basic human rights were ignored, she complains, and she wasn’t even given a psychiatric examination.

“I have never had problems with my mental health,” writer Grigoryan quotes Julietta as saying. “I only had problems with my brother.”

“Human rights workers say that Amarikian’s experience is not unique in Armenia, where it is all too easy to have someone declared mentally incompetent in a hangover from Soviet times when institutionalization was sometimes used to silence troublemakers,” writes Grigoryan.

Those “other places” amazingly, now include Pennsylvania, where Attorney General Kathleen Kane has been labeled a “troublemaker” and is now being set up for a 19th-century “competency” hearing in the state Senate.

AG Kane’s troubles parallel those of the Armenian woman’s, except writ large.

Kane is engaged in a long-running battle with Pennsylvania judges, prosecutors, and other office holders, who Kane caught sending pornographic and otherwise compromising emails to each other.

Those office holders now blame Kane for stirring up trouble, and regularly label her a troublemaker, crazy, or both.

In a bid to rid themselves of her, Kane has been hit with criminal charges, her law license has been suspended, and just last week the state Senate announced it will hold a hearing in January to remove the state’s first elected female attorney general from office.

The state Senate’s removal action is based on an obscure 19th-century constitutional provision, which senators supposedly hope to invoke to determine whether Kane is “competent” to serve as attorney general without a law license.

The clause in question, Article VI Section 7 of the present Pennsylvania constitution, was added to the constitution in 1874 as a means of removing low-level officials with mental or physical “infirmities” from office.

All this is bad enough, but it quickly gets worse when one considers the dark and hidden history of the 1874 Pennsylvania provision and similar laws they now want to use against Kane, and their intended purpose.

The 19th century Pennsylvania provision comes from the same body of laws and misinformed medical ideas that created the morally repugnant Soviet-era “psychiatric” statutes that recently imprisoned the Armenian woman, Julietta Amarikian.

They spring from the same antiquated body of ideas and laws that created eugenics and forced sterilizations, and worse, in this and other countries in the late-19th and early-20th centuries.

Pittsburgh’s Dixmont and Virginia’s State Colony for Epileptics and Feeble-minded

In Pennsylvania, the 1874 constitutional provisions now contemplated for AG Kane were first used in 1885 to remove a “mentally impaired” Pittsburgh judge, John Kirkpatrick, who apparently suffered a stroke. Those around Kirkpatrick in 1885 had little idea what ailed the judge.

They thought perhaps Judge Kirkpatrick was victim of a build-up of bodily fluids, a “softening of the brain,” or an act of God.

Judge Kirkpatrick was examined, in 1885, on request of an investigating committee appointed by the state legislature, by a doctor from Pittsburgh’s Dixmont State Hospital, built in 1863, once called the Department of the Insane in the Western Pennsylvania Hospital of Pittsburgh.

Pittsburgh’s Dixmont State Hospital, named for Civil War-era mental health reformer Dorothea Dix, would finally be torn down in 2006.

While Pittsburgh had its Dixmont, in the late 19th and early 20th centuries, Virginia operated its own State Colony for Epileptics and Feeble-minded.

At the Virginia Colony for Epileptics and Feeble-minded, in 1924, young Carrie Buck was “involuntarily institutionalized by the State of Virginia after she was raped and impregnated,” writes Prof. Paul A. Lombardo in his book, “Three Generations, No Imbeciles: Eugenics, the Supreme Court and Buck v. Bell” (Johns Hopkins University Press, 2008).

“Having already judged her mother and daughter mentally deficient, Virginia wanted to make Buck the first person sterilized under a new law designed to prevent hereditarily ‘defective’ people from reproducing,” writes Prof. Lombardo.

“To demonstrate that Buck’s mental disability was inherited,” reports the New England Journal of Medicine, “doctors and social workers gathered evidence about her mental abilities, as well as those of her mother, Emma Buck, and her 8-month-old daughter, Vivian Buck. A state board determined that Carrie Buck met the legal and medical requirements for sterilization.”

Buck filed suit against her proposed sterilization, which led to the 1927 U.S. Supreme Court case Buck v. Bell, where the Supreme Court upheld Virginia’s sterilization plans for Carrie Buck.

In a famously odious opinion, U.S. Supreme Court Justice Oliver Wendell Holmes Jr., himself a eugenicist, wrote:

“We have seen more than once that the public welfare may call upon the best citizens for their lives. It would be strange if it could not call upon those who already sap the strength of the State for these lesser sacrifices, often not felt to be such by those concerned, in order to prevent our being swamped with incompetence. It is better for all the world if, instead of waiting to execute degenerate offspring for crime or to let them starve for their imbecility, society can prevent those who are manifestly unfit from continuing their kind. . . . Three generations of imbeciles are enough.”

The Buck v. Bell decision, which has never been overturned, led directly to the forced sterilization of thousands of mental patients in the United States.

The Buck decision, and the body of pseudo-science literature behind it dating to the 19th century, would become the backbone of Adolf Hitler’s eugenic and sterilization programs. Nazi defendants in the Nuremberg war crimes trials would repeatedly cite the Buck case.

So this is the same area of misinformed law and pseudo-science that Pennsylvania state senators now are flirting with to destroy their political enemy, Kathleen Kane.

Pennsylvania’s forgotten ‘mental infirmity and competency’ constitutional provisions

In Pennsylvania, in the 19th century, these “mental infirmity and competency” provisions were used twice — controversially and with mixed results — in 1885 and again 1891, before they fell into disrepute in the modern era and were rightly forgotten.

That is, until AG Kane’s political enemies in the state Senate and courts dredged them up to use against her.

Historical legislative records of both the Pennsylvania House and Senate make clear the intent of this provision’s use for cases of mental or physical disability.

The constitutional framers of the 19th century wanted to remove from office judges and others who had grown senile.

Trouble is, 19th century lawmakers had no idea what senility or mental illness was, or their causes.

They erroneously believed that insanity and senility were perhaps caused by an imbalance of bodily fluids, evil spirits, or God.

Pennsylvania’s original 1790 constitution allowed for the removal of judges from the bench for mental incapacities, even if the framers had little or no idea what caused them.

“The question of incompetency to discharge the duties of judicial office is one of great delicacy, as there is no criteria by which to ascertain the degree or extent of intellectual power for that purpose,” the state legislature was told in 1885, during the removal hearing of Pittsburgh Judge John Kirkpatrick. “There can be no doubt, but that the provisions of the Constitution for the removal of judges, on address of two thirds of both House of the Legislature, was intended to apply to cases where a judge had become incapable of discharging the duties of his office, from either bodily or mental infirmity, arising from any cause. If from disease or accident, his physical powers should be so impaired as to render him unable to encounter the labor and fatigue incident to his station…. So, if the mind and memory of a judge should become imbecile from old age or other cause (although not amounting to lunacy) and that should be satisfactorily proved, it would be the imperative duty of the Legislature to ask his removal.”

These removals of judges (and later, non-judges) for reasons of mental or physical disability were found in the original state constitution of 1790; but they were removed in the constitution of 1838, but then returned to the state constitution of 1874.

Fearing for the independence of the judiciary, state constitutional framers in 1838 prevented judges from being removed for these little-understood mental or medical causes.

In 1838, a provision was added to constitution specifying that judges only
“shall be removed on conviction of misbehavior in office or of an infamous crime.”

“This is strong to show that removals of judges for sickness or disability by act of God were further removed in contemplation of this (1838) constitution than its predecessors,'” the state legislature was told in 1885.

By the time of the state constitutional convention of 1872-73, the pendulum had swung back the other way.

Clauses and mechanisms were added to the state constitution of 1874 to remove both judges and low-level state officials for mental and physical disabilities.

These provisions were used with mixed results in 1885 and 1891 to remove a judge, a state treasurer and an auditor general.

The 1885 removal of Judge Kirkpatrick was overseen by young Pennsylvania Gov. Robert Pattison.

Gov. Pattison used these same “mental incompetency” provisions again in 1891, in an unsuccessful attempt to remove two of the governor’s political enemies from office, state Treasurer Henry Boyer and Auditor General Thomas McCamant.

In the 1891 case, when memory of the 1874 constitution was still fresh, Auditor General McCamant told the Senate removal committee:

“I am advised that the ‘reasonable cause’ for which an elected officer can be removed in this manner under this provision, does not refer to or include a cause amounting to an impeachable or indictable offense, but refers only to causes other than impeachable or indictable offenses, incapacitating him from properly discharging his duties, such as insanity, senility, incompetency, protracted illness or absence, or other similar cause, which would not be sufficient to warrant either his impeachment or indictment, and in any of which cases there would be no mode of removal possible, except for this provision.”

It’s this latter provision, Article VI Section 7 of the state constitution, which AG Kane’s political enemies in the state Senate now want to invoke against her.

The onerous nature of these so-called “mental incompetency” clauses in Pennsylvania’s constitution, drafted in 1874, become all the more apparent when one realizes, for example, that Sigmund Freud wouldn’t begin his studies of what he called “nervous disorders” until 1886.

Freud’s career, and the true medical science of mental health, had yet to even begin.

There was no medical science of psychiatry in 1874 when the Pennsylvania constitution, featuring these provisions, was drafted.

There was only pseudo science, hysteria, and bad, dangerous and misinformed laws like these.

And insane asylums like Dixmont, and Virginia’s State Colony for Epileptics and Feeble-minded, where no real treatment could be had.

There can be no doubt that Attorney General Kane should challenge the constitutionality of the Senate’s proposed action in state and or federal courts.

But that’s only part of the story.

What the Pennsylvania Senate is proposing to do is morally repugnant, and deserves to be sternly opposed and repudiated for these reasons in the court of public opinion.

As Julietta Amarikian of Armenia knows, as Carrie Buck and her mother knew, governments simply shouldn’t do the sort of things the Pennsylvania Senate is now talking about doing.