Eric Janus: Award from ACLU “an extraordinary honor”

Janus made the following remarks after receiving the award:

What an honor to receive this award from the American Civil Liberties Union, at a time when our civil liberties and the rule of law are under particularly relentless assault. And, what an extraordinary honor to be the recipient of an award named for Judge Earl Larson. My earliest experiences as a lawyer were deeply influenced by Judge Larson.

Judge Larson presided over the Welsch v. Likins case – a class action brought by Minneapolis Legal Aid in the 1970s, challenging the constitutionality of the state’s confinement of a people then politely known as “the mentally retarded.” As a newly hired lawyer at Legal Aid in 1973, among my first assignments were to accompany expert witnesses in the case on site visits at Cambridge state hospital. There I saw shocking, dehumanizing conditions.  Judge Larson held that the constitution did not permit those conditions. He required the state to fulfill its high obligation as parens patriae: caretaker of the vulnerable. Ordering extensive relief, he awarded costs against the state ($5000!); and, here’s an historical memory – the 8^th circuit upheld it, against 11^th amendment objection. My colleagues Neil Mickenberg, Luther Granquist and Mike Fargione brought that case to a successful conclusion.

I had other glimpses of Judge Larson’s jurisprudence:  One of my first cases in federal court, Johnson v. Likins, was assigned to Judge Larson. The case challenged how the Minnesota welfare system counted training funds; Judge Larson ruled for our welfare recipient clients on summary  judgment (the case was later reversed by 8^th circuit). In another welfare case, brought by my wife Carolyn Chalmers and her law-student colleagues at the U of MN welfare clinic – with the help of Profs. Laura Cooper and our dear deceased friend Laurie Davison) –  Judge Larson disclosed, in chambers, that his own mother had received “mother’s aid” when he had been a child.

Those early experiences confirmed my own dedication as a lawyer to what we at Legal Aid used to call our own efforts at “Law Enforcement”:  seeking to insure that the law of the land – the constitution – was applied for the benefit of all – especially those who were most out of our line of vision, the most vulnerable, the most despised.

In particular, the Welsch case led me to work representing clients with mental illness – especially in connection with civil commitment proceedings. My sense of justice was fundamentally offended by the routinized, systematized disregard of the rights – and of the humanity of this class of vulnerable, powerless people.

And therein lies the central reason I have spent so much of my professional time litigating and writing about our national system of pre-crime preventive detention – known in Minnesota as the Minnesota Sex Offender Program. Masquerading as “civil commitment”, these laws now preventively confine more than 700 people in Minnesota, and more than 5,000 people nationwide.

Here’s why I care: These pre-crime laws – locking people up for their predicted future crimes – turn upside down almost every single constitutional protection our constitution imposes when the government seeks to invade the most fundamental liberty interest of all – the right to be free of physical confinement. Proof beyond a reasonable doubt?  Out the window. Right against compelled self-incrimination? Does not apply. Protections against double jeopardy and ex post facto laws? Out of luck, not applicable. Right to a jury? Nope. A requirement for the government to charge a violation of a specific criminal law, at a specific time and place? No need – vague allegations of “dangerousness” anytime in the future suffice.

And, perhaps most worrisome of all: These laws explicitly ground the long-term loss of liberty on status – on who you are, what class of person you are, rather than on the charge and conviction of a crime.

And here is why that is the most disturbing aspect of these laws.

In our liberal democracy, we have a long and persistent history of taking our revolutionary and inspiring concept of “We the People” – and excluding from that cone of civic union whole classes of people. This is a disgraceful legacy: We all know the Dred Scott case; but remember, too, Buck v. Bell, under which thousands of so called feeble minded people were involuntarily sterilized, and Korematsu, upholding the detention of citizens based on racially based fears of future danger, and Bowers v. Hardwick, excluding gay people from the most fundamental rights – these cases represent the persistent claim that there are groups who are outside of the protective umbrella of “We the People” – degraded others who, in the infamous words of Justice Taney in Dred Scott – are “beings of an inferior order,” “so far inferior, that they had no rights which the white man was bound to respect.”

The danger of these pre-crime preventive detention laws is that they resurrect this “outsider jurisprudence.” They give currency to the notion that our Constitution countenances the designation of despised group of outsiders whose members have “no rights” that the state must respect.

This, I don’t need to emphasize – is a fundamental challenge to the rule of law. It is a legal template that ought to raise the loudest alarms – as we watch the persistent rhetoric dehumanizing immigrants and refugees, the rising voices of white nationalism, racism, antisemitism, and homophobia. These laws provide a template, a model, for translating this hateful rhetoric into the most pernicious of laws.

What is at stake, in my view – is resisting the spread of that cancer and the legitimizing of its outsider jurisprudence.

Many others need acknowledgement for their parts in this fight. I want to acknowledge a few who have particularly worked on this particular issue.

First and foremost, I give my heartfelt admiration to Dan Gustafson, Karla Gleuck, and their firm, for taking on this issue in a class action – pro bono, through six weeks of trial, and appeals all the way up. We should not gainsay the risk to a law firm of taking on the representation of such a despised and feared group of people. They are heroes. Also, I tip my hat to all the lawyers who fight the day to day fights – out of the limelight – chipping away at 730 folks who are mired in this gulag. Among them is Liz Nudell with whom I served as co-counsel in the original litigation challenging the constitutionality of these laws, and who recruited me to this work.

I want to also acknowledge Former Chief Judge Mike Davis, who understood the importance of consolidating these pro se cases and making sure that the plaintiff class had aggressive, skilled counsel, which they got with Dan and Karla’s firm, and which is absolutely necessary in this complex area of the law.

And the determination of Judge Donovan Frank, and Magistrate Judge Jeff Keyes, who have followed the path of Judge Earl Larson, understanding that the rule of law must shine a bright light on how the powerful State treats the outsider, the demi-citizen. Too many courts disclaim the power and obligation to examine how the State creates, and then mistreats, this current group of degraded others.  But Judges Frank and Keyes did not avert their gaze.

Finally, I want to acknowledge Rosalie Wahl, Esther Tomjanovic, and Alan Page, all former justices of the Minnesota Supreme Court – who, in the 1990s, called out this pre-crime scheme, and raised the alarm when the facial challenges to these laws came before their court. Let me quote Medal of Freedom winner Alan Page — dissenting from the Minnesota Supreme Court’s decision in 1999 upholding the Minnesota law against a constitutional challenge.

By its decision, the court has neither sought nor achieved justice. We are a nation of laws.

The court has, in essence, concluded that there are no constitutional limitations on the state’s use of preventive detention.

Today the target is people who are sexually dangerous. Which class of people, who are different from us and who we do not like, will it be tomorrow?

Let me end with Sir Thomas Moore’s words from Robert Bolt’s A Man for All Seasons –

“What would you do? Cut a great road through the law to get after the Devil? … And when the last law was down, and the Devil turned round on you – where would you hide, , the laws all being flat? This country is planted thick with laws from coast to coast, Man’s laws, not God’s, and if you cut them down – … – do you really think you could stand upright in the winds that would blow then?”

The ACLU has been a steadfast partner in the fight. We need the ACLU now more than ever.