Abstract
In this article, I analyze 73 circuit court opinions in which due process rights are weighed according to a little-known legal test called shocks the conscience. I also offer my observations of a federal trial in the U.S. district court in 2015 upon which the test was imposed. I reveal how requiring the shocks-the-conscience test confirms the authority of the state and silences those who have been singled out as individuals or as groups to be deprived of constitutional rights. In particular, professional communication scholars who examine emotional appeals as rhetorical strategies should find this article of interest.
Keywords
In May 1998, the U.S. Supreme Court in County of Sacramento v. Lewis offered an opinion that affected rhetorical arguments in court cases involving substantive or constitutional due process rights such as liberty and life. In their Lewis opinion, the Court resurrected and refined the so-called shocks-the-conscience test used to determine if state organizations and agents engaged in actions that exceeded the bounds of decency. When applying the test after Lewis, courts had to analyze the intent of such organizations and agents and to consider any conscience-shocking actions as situation specific, an opinion that, to a great extent, made it difficult for plaintiffs to prevail under the test. Thus, the shocks-the-conscience test has the potential to confirm the authority of the state and silence those individuals and groups who protest a limitation of their constitutional rights. I believe that these aftereffects of the Lewis opinion will reveal to professional communication and rhetoric scholars how emotional appeals and moral standards can be made complementary to become “evidence” in legal arguments. Also, this study should be of interest to the increasing number of professional communication and rhetoric scholars who are taking the position of activists, hoping that their work benefits their research participants or at least illuminates the challenges these participants face within a hierarchical structure. And so I add to that research by revealing how the requirements of one legal test creates a culture in which rhetors can be innately disadvantaged before their arguments even begin.
More specifically, I hope that my work adds to that of such professional communication and rhetoric scholars as Berkenkotter and Huckin (2016) who studied genres as “sites of contention between stability and change” (p. 6). The Berkenkotter–Huckin team, for example, used speech act theory to explore how those who peer review articles submitted to professional journals not only maintain quality control over new knowledge but also engage in a form of social control, so much so that peer-review correspondence can take on an agonistic character with “well-rehearsed argumentative moves” (p. 65). Berkenkotter and Huckin found that any “uneven distribution of power can nullify” what should be a collaborative process between reviewer, editor, and writer that produces, within confidence and clarity, new knowledge. They also determined that the person, such as a reviewer or editor, who is “most savvy about the kinds of generic moves possible in editorial correspondence” has an “edge” within that process (p. 76). Thus, for Berkenkotter and Huckin, an analysis of peer review documents reveals a hierarchy of power maintained by a seemingly productive genre or the rhetorical act.
In similar professional settings, other scholars have found evidence of power structures and struggles when gatekeepers identify the evidence and value of new knowledge. In the scientific arena, for example, Reeves (2015) explored how a popular herbicide, atrazine, might be harmful to amphibians exposed to levels of concentration that were once considered safe. The debate about the environmental dangers of atrazine involved scientists who, on the one hand, were funded by nonindustry sources such as the National Science Foundation, and scientists who, on the other hand, were funded by the Syngenta Corporation, the primary producer of atrazine. Although previous scholars, such as Prelli (2005) and Bazerman and De los Santos (2005), were optimistic that scientific rhetoric could adjudicate disagreements once the debate shifted from abstractions to particularly situated obstacles, Reeves found instead “stunningly incommensurate rhetorical constructions” in the atrazine debate (p. 329). Reeves examined, for example, fact-like or high-certainty language in the atrazine debate that normally would be precluded given the degree of scientific uncertainty on both sides of the debate. These incommensurate explanations and interpretations of the research on atrazine reveal a conflict, concludes Reeves, between industry and public health that “stalled scientific consensus and sound policy” regarding the environmental damage that the substance might cause (p. 345; for a similar exploration in the field of medicine, see Bivens, 2018).
Scholars in the legal arena have also examined rhetorical documents and strategies that reveal social conflict and power struggles. As law and society scholars have warned, a perception of the law and its discourse as rational and objective is, as S. A. Bandes (1993) calls it, “both misguided and unattainable” (p. 2465), a misperception that Waddell (1990) attributes to the “privileged position enjoyed by logos in Western culture” (p. 393; see also Grossi, 2015; Maroney, 2006; Sarat & Kearns, 2000). Andrus (2015), for example, revealed how the emotional outcries of victims of domestic violence may now be considered an exception to hearsay rules that would previously exclude them from courtroom testimony. Granting victims of domestic violence the excited utterance exception to the hearsay rule empowers or enhances their voices in the courtroom, but Andrus also found that in granting the exception that the law treats victims of domestic violence as “essential liars” or women who need to be saved from their own bad decisions (p. 182). Redington (2017) extends Andrus’ study when he analyzes how expert witnesses help juries understand technical components in their scientific testimony. He adapts the Toulmin model of argument as well as a specific framework designed to study assertions of technology-related expertise in scientific discourse. Redington finds evidence of paternalism and stereotypes that shape the perceptions of expert witnesses, so much so that such a witness “can be robbed of the privilege of rendering scientific opinions by being relegated to the status of an eyewitness” (p. 414). Thus, scholars such as Andrus and Redington add to our knowledge about not only how, through rhetorical strategies, the law affects culture but also how cultural norms affect the law.
Finally, Schuster and Propen contributed to professional communication and rhetorical interest in the legal arena by focusing on victim advocacy and emotional appeals. In their article on advocacy work and the technologies of power (Propen & Schuster, 2008) and on judicial responses to emotional expressions (Schuster & Propen, 2010), these scholars have discovered that although judges accept plea agreements and make sentencing decisions in domestic violence cases based on state guidelines, they must also listen to victim impact statements before imposing that sentence. Often with the help of a system or community advocate, the victim is allowed to request restitution or argue for a particular disposition (prison or probation) or duration of that sentence. The scholarly team of Propen and Schuster reveals that judges may use the rhetoric of inevitability in attributing their decisions to state sentencing guidelines, but victims and advocates can apply genre features of the impact statement to establish their voices in the legal arena. In responding to victim impact statements, however, judges may impose a kind of cultural emotionality, which “affects personal and social reactions to emotions, is built into institutions, and enforces and sometimes conceals hierarchical relationships”—an emotionality that in the courtroom accepts expressions of grief and compassion from a victim but is uncomfortable with expressions of anger (Schuster & Propen, 2010, p. 80; see also Propen & Schuster, 2017; Schuster & Propen, 2011). Victim impact statements and judges’ responds to these statements reveal yet another perspective on how the courtroom decisions may be influenced by emotional appeals and how professional communication and rhetoric scholars can reveal such features.
Therefore, my analysis of the shocks-the-conscience test necessarily expands our notions of persuasion within professional communication and rhetoric scholarship. “Neither judges nor juries are potted plants, for which we can be thankful,” concludes S. A. Bandes (1993), because the decisions of such judges and juries are guided by “choice and emotion,” and “the only questions are which choices and which emotions” (p. 2465). My analysis reveals that although emotional appeals are difficult and may be resisted by decision makers, some of these choices and emotions also demonstrate that not only constitutional standards but also moral standards have been violated. Becoming more aware of those specific choices and emotions adds to our understanding that rhetorical strategies and consequent decisions, even within the law, are not always determined by clear-cut precedents and bright-line rules but, at times, by a decision maker’s own subjective feelings and instincts, perhaps as encouraged by opposing attorneys and their witnesses.
Of course, as scholars of professional communication and rhetoric will recognize, any investigation of emotional appeals in the courtroom recalls Aristotle’s pathos or the strategy of generating emotions in others. Pathos as a mode of persuasion, according to Aristotle (trans., 2015), puts the audience in a certain frame of mind, and emotions are “all those feelings that so change men [sic] as to affect their judgments” (Book 1, pp. 1378a, 1, 9). Demirdöğen (2010), for example, applied Aristotle’s definition of pathos to political persuasion, in particular the mood or tone of a speech that appeals to the passions of an audience or decision maker. Therefore, the means of persuasion employs emotional appeals to evoke desired reactions, just as factual evidence does. And so, as Kastely (2004) comments, “By making the appropriateness of the emotion to the situation evident, the rhetor can enable an audience to share a common feeling and achieve, at least, temporarily, an effective identity” (p. 227), all in order to persuade a decision maker to accept the rhetor’s message and be moved to respond accordingly.
More specifically, Spoel, Goforth, Cheu, and Pearson (2009), in their study of public communication on climate-change science, remind professional communication and rhetoric scholars that pathos may be “somewhat opposed to rational understanding” but can also be “a mode of communication that can generate significant insights and meaning, a powerful form of knowledge-making in its own right” (p. 71; see also Rife, 2010). Thus, the distinction among pathos, logos, and ethos seems at times artificial, and, as Spoel et al. conclude, pathos can be a “key dimension in creating engaged forms of public understanding that exceed the narrow bounds of technical rationality,” or in this article, legal rationality (p. 71; see also Sidler & Jones, 2008). Thus, to add to the scholarly conversation about power and hierarchies, about emotions and logic, and about social control, I turn to the shocks-the-conscience test regarding due process constitutional claims. To successfully argue that an organization or governmental agent is responsible for substantive due process violations, emotional appeals must not only evoke such emotions as pity but also offend decency and justice. But again, these requirements place the burden of proof on the plaintiffs in a due process complaint and are exceedingly difficult to meet.
The Shocks-the-Conscience Test in Context
Until the Lewis decision, the courts had relied upon the 1952 Rochin v. California opinion regarding due process claims. In Rochin, the Supreme Court had weighed the actions of three state law enforcement officers who took suspect Antonio Rochin to the hospital to have a doctor force an emetic solution through a tube into Rochin’s stomach to extract two morphine capsules that he had swallowed. These capsules were considered evidence that Rochin was selling narcotics. The Rochin Court, however, found the officers used “methods too close to the rack and the screw to permit constitutional differentiation,” and these methods so shocked the conscience of the Court that Rochin’s argument prevailed in arguing that his due process liberty rights were violated (Rochin v. California, 1952, p. 341).
Forty-six years later in the Lewis opinion, the Supreme Court reviewed a district court’s finding that a police officer who caused the death of a young man in a high-speed chase was not liable for depriving the young man of his due process right to life. In agreeing with the district court’s finding, Justice David Souter opined for the Court that despite what might have been reckless indifference to the life of Philip Lewis, “only a purpose to cause harm unrelated to the legitimate object of arrest will satisfy the element of arbitrary conduct shocking to the conscience” (County of Sacramento v. Lewis, 1998, p. 834). In other words, the police officer would escape the consequences of causing Lewis’ death because the officer was so caught up in a justified high-speed chase that he unintentionally neglected the possibility of greater harm to Lewis. Moreover, the Court forecast that one aspect of a case “that shocks in one environment may not be so patently egregious in another,” and so any examination of the constitutional aspect of such a due process claim “demands an exact analysis of circumstances before any abuse of power is condemned as conscience-shocking” (p. 835). Therefore, in assessing the shocks-the-conscience test, courts must weigh intent and circumstance as well as violation of moral standards.
The shocks-the-conscience test falls within a decision-making system of standards and burdens of proof in the law. The preponderance-of-evidence standard of proof, for example, is the default standard for most civil lawsuits and is met if the judge or jury finds that the evidence shows that the defendant is more likely than not to be responsible for the plaintiff’s injuries. The clear-and-convincing-evidence standard of proof, or the evidence is substantially more likely to be true than untrue, is generally reserved for civil lawsuits where civil liberties rather than monetary compensation are at stake. Finally, beyond a reasonable doubt is the most challenging legal standard of proof, applied in criminal cases in which the state bears the burden of proof, and means that no reasonable person would question the defendant’s guilt. Each party tries to assert its truth of those facts or issues in a way, according to Lawson (2017), that “complies with the legal system’s formal, and informal, norms for the presentation of arguments and evidence” (p. 1; see also Gaskins, 1992).
In applying these legal standards and their constraints, certain tests or methods of evaluation allow more issue-specific arguments into the courtroom. These legal tests often pertain to the rights guaranteed by the Fourteenth Amendment, which specifies that the states cannot deprive any person of “life, liberty, and property without due process of law,” a restriction that the Fifth Amendment extends to the federal government. As Justice Frankfurter, writing for the Supreme Court in the Rochin v. California (1952) opinion, said, due process of the law requires that governments observe those principles that are “so rooted in the traditions and conscience of our people as to be ranked as fundamental” (p. 342). To recognize those fundamental values and to ensure that all individual and groups get equal protection when these values are threatened, a decision maker must choose which level of scrutiny to apply. The rational-basis test, the easiest one for a state actor or organization to pass, requires the government to have at least one legitimate interest in curtailing constitutional rights and to argue successfully that a rational person would agree that a law or policy furthers those interests. Intermediate scrutiny requires that government interest must be important and that this interest must specifically motivate the government. The strict-scrutiny test requires that the government interest be compelling, but that any discriminatory aspects of a law or policy must be applied in the narrowest way to protect those fundamental rights of any individuals or groups involved in the legal issue as much as possible.
On the one hand, the plaintiffs in the cases I reviewed in this study generally preferred the strict-scrutiny test because the burden of proof rests with the defendant and because statutes or policies, on the face and as applied, must be limited in scope. On the other hand, shocks-the-conscience test places the burden of proof on the plaintiff and brings emotional appeals directly into the decision-making process. Again, the shocks-the-conscience test, I believe, is one of the most difficult tests for a plaintiff to argue because it questions the status and power of the government and its agents. After all, it was again in Rochin v. California (1952) that Justice Frankfurter stated that the shocks-the-conscience test determined whether the actions of the state “offend[ed] those canons of decency and fairness which express the notions of justice of English-speaking people even toward those charged with the most heinous offenses” (p. 342).
These levels of scrutiny, however, are not static but instead continually refined, as in the Lewis decision. Before Lewis was decided in 1998, for example, the U.S. Court of Appeals for the Sixth Circuit offered a decision in Lillard v. Shelby County Board of Education (1996) that employed the shocks-the-conscience test. The district court had dismissed the plaintiffs’ due process claims on the grounds that, in part, the defendant’s conduct toward them did not shock the conscience. The case involved, among complaints offered by the parents of several adolescent girls at Germantown High School in Shelby County, Tennessee, the complaint of the parents of 14-year-old Andrea Lillard. Andrea was detained after class by her physical science teacher, Gary Leventhall, who verbally abused Andrea and slapped her across the face “perhaps harder than he meant,” which the circuit court found involved excessive force (Lillard v. Shelby County Board of Education, 1996). The Sixth Circuit Court noted, however, that the Supreme Court was moving to no longer apply the shocks-the-conscience test in regard to such claims of excessive force. And so, the circuit court predicted that the plaintiffs would not prevail in arguing that the actions of Leventhall would shock the conscience of the decision maker in district court by using “this rather fuzzy test” (emphasis added).
Again, following the Lewis opinion, the U.S. Court of Appeals for the Sixth Circuit moved to make the shocks-the-conscience test less fuzzy by requiring that situation and intent must be included in any application of the test. Thus, in Domingo v. Kowalski (2016), the court again looked at excessive force used by a teacher to discipline a child. In this case, the parents of a 6-year-old student with autism alleged special education teacher Marsha Kowalski had removed their child’s pants and placed her on a training toilet in full view of other students for as long as a fourth of the school day. Another parent complained that the teacher bound and gagged a 9-year-old student when he misbehaved by spitting on others. The parents argued that teacher Kowalski, her supervisors, and the North Point Educational Service Center violated their children’s due process rights. Given the detailed descriptions of Kowalski’s actions, the appellants obviously hoped that descriptions of these punishments would evoke the sympathy of the circuit court judges, and indeed one dissenting judge predicted that upon remand the teacher’s actions could be found to shock the conscience of a reasonable jury. In rendering their opinion in Domingo, however, the majority affirmed the district court’s findings that the teacher’s conduct was “motivated by a legitimate educational or disciplinary goal,” was not “clearly extreme and disproportionate” to that need, and was not “severe in force” (Domingo v. Kowalski, 2016, p. 13). Thus, the Sixth Circuit further refined intent and circumstance to predict that the plaintiffs would not shock the consciences of the district court decision makers in Domingo in considering teacher Kowalski’s actions.
The Sixth Circuit Court also examined whether Kowalski’s actions violated any moral standards and found that her disciplinary methods were not a “brutal and inhumane” abuse of power (Domingo v. Kowalski, 2016, p. 13). Certainly, the Supreme Court had done a similar examination in Rochin v. California (1952) and in County of Sacramento v. Lewis (1998), expressed in such language as “decencies of civilized conduct,” (p. 342) “patently egregious,” (p. 850) “deliberate indifference,” (p. 833) and “malicious and sadistic” (p. 853). After Lewis, the language of the circuit courts also reflected this moral consideration, particularly when predicting that the plaintiffs would meet successfully the requirements of the shocks-the-conscience test. In Crowe v. County of San Diego (2010), for example, the Ninth Circuit Court characterized the interviews conducted by law enforcement of innocent teenagers as “hours of grueling, psychologically abusive interrogation” (p. 851). And, in Johnson v. Holmes (2006), the Tenth Circuit Court declared that the case was “not much about grace; it is about Grace, a child born with severe spina bifida,” whose situation after an unmonitored adoption “quickly turned from muddled to tragic” when Grace was beaten to death (pp. 1134–1135). The Lewis Court had warned that the shocks-the-conscience test provided “no calibrated yard stick,” perhaps an indication of the moral standards evoked in applying the test (County of Sacramento v. Lewis, 1998, p. 875). And, the extremity of the language confirmed the difficulty of proving that these moral standards were violated.
Means of Data Collection and Analysis
Circuit Court and Supreme Court Opinions Considering the Shocks-the-Conscience Test (Chronological).
The time periods of the court opinions I explored before and after Lewis did vary (“before Lewis” ranged from February 1990 to September 1996; “after Lewis” ranged from June 1998 to January 2016). However, it is evident that after Lewis, more court opinions per year imposed the test than before Lewis. Moreover, in the majority of these 73 opinions, the courts found the plaintiffs could not argue successfully that the defendants’ actions met the shocks-the-conscience test in the district or lower courts (81% before Lewis; 79% after Lewis). Lewis might have indeed remedied the so-called fuzzy nature of the shocks-the-conscience test. Again, after Lewis, a plaintiff would have to prove ill intent on the part of the state and to argue that the specifics of the circumstances of the action would not excuse the state agent or organization from violating the due process rights of the plaintiff. Lewis also made it more difficult to argue successfully for egregious and morally reprehensible state behavior.
Along with these conclusions based on the numbers and trends in the court opinions, a close reading of the court opinions offered after Lewis reveals another pattern. When the courts weighed intent and circumstance in applying the shocks-the-conscience test, at times their decisions seemed incompatible or out of step with each other. On the one hand, in Rivas v. City of Passaic (2004), for example, the Court recalled that the Rivas family called an ambulance when Mr. Rivas, a person with diabetes, experienced convulsions. Despite Mrs. Rivas’ warning that her husband should not be touched during the period of the seizure, three police officers, who arrived after the emergency medical technicians (EMTs), interpreted Mr. Rivas’ actions as aggressive and attempted to restrain him, pinning his arms and legs and placing a knee in the middle of his back. One of the officers shoved his flashlight into Mr. Rivas’ mouth, and others made remarks, such as, “Damn, he’s heavy, this pig, this dog,” as they carried Mr. Rivas down the stairs on a stretcher (p. 196). Near the bottom of the stairwell, one of the straps on the stretcher broke, and Mr. Rivas fell out of the stretcher on his head and down the remaining steps. Shortly after the officers placed Mr. Rivas back onto the stretcher, facedown despite the EMTs’ warning, they discovered that he had died. The Third Circuit Court found that the EMTs “consciously disregarded a great risk of serious harm” to Mr. Rivas by “falsely accusing him of acting violently” and then “abandoning” him to the police (p. 196). Thus, the Circuit Court affirmed the district court judge’s denial of summary judgment motions filed by both the EMTs and the police officers and predicted that a jury would find that such conduct indeed shocked the conscience.
On the other hand, 3 years after the Rivas opinion, the Second Circuit Court in Lombardi v. Whitman (2007) reviewed a district court’s dismissal of a complaint by five law enforcement officers, paramedics, and National Guard medics who performed search, rescue, and cleanup work on the World Trade Center site after 9/11. These plaintiffs alleged that the federal official defendants issued “reassuring—and knowingly false—announcements about the air quality in lower Manhattan,” causing the plaintiffs to believe that they could work without respiratory protection (p. 74). Later investigation determined that the Manhattan air quality was highly compromised by the presence of dioxins, polychlorinated biphenyls, volatile organic compounds, and polycyclic aromatic hydrocarbons. The Second Circuit Court, however, affirmed that the plaintiffs’ allegations did not shock the conscience even though the defendants acted with deliberate indifference. The court decided that the chaos created by the attack on the World Trade Center made it impossible to “reliably compute” the “relative magnitude” of risk: Accepting as we must the allegation that the defendants made the wrong decision by disclosing information they knew to be inaccurate, and that this had tragic consequences for the plaintiffs, we conclude that a poor choice made by an executive official between or among the harms risked by the available options is not conscience-shocking merely because for some persons it resulted in grave consequences that a correct decision could have avoided. (p. 85)
Thus, in Rivas and in Lombardi, when the Circuit Courts weighed the intent and circumstances in determining whether or not the plaintiffs proved the requirements set by the shocks-the-conscience test, they found in the first case that the defendants’ individual actions were indeed egregious and in the second case that the federal officials’ actions were unfortunate but understandable. It seems that rather than making the shocks-the-conscience test less fuzzy after Lewis, the requirement that the courts examine a number of situational variables made their decisions seem somewhat arbitrary and indeed provided no “calibrated yard stick” as the Lewis court predicted.
Within this context of this analysis of the 73 court opinions, I offer my observations and analysis of testimony, opening and closing remarks, and the court decision offered in a 6-week federal trial in U.S. District Court, District of Minnesota, and the subsequent decision made upon appeal of that decision to the Eighth Circuit Court. In this appeal, the shocks-the-conscience test was imposed upon the plaintiffs, a group of civilly confined sex offenders. 1 Karsjens v. Jesson (2015) was a civil trial based on a class action suit brought by 14 named plaintiffs in Minnesota who represented over 700 sex offenders civilly confined for an indeterminate time after they had completed their criminal sentences. The state defendants included the Commissioner of Human Services and various officials of the Minnesota Sex Offender Program and were represented by the state Attorney General’s Office. My observations in Karsjens v. Jesson allowed me to focus on specific emotional appeals and allusions to moral standards offered by the plaintiffs in anticipation that they might be required to assume the burden of proof under the shocks-the-conscience test. In the context of the court opinions before and after Lewis, I observed how emotional appeals became an essential part of arguing that state agents have violated not just constitutional rights but also moral standards. In other words, the shocks-the-conscience test specifically required evoking emotions such as pity in the decision maker for the victim, emotions that might persuade that decision maker that the actions of the defendants were beyond the pale or outside the bounds of morality and justice. Moreover, emotions, such as despair and hopelessness, projected by a victim during testimony or by parties representing that victim, served as evidence in assessing the applicability and survival of the shocks-the-conscience test.
The Federal Trial of Karsjens v. Jesson
At the time of Karsjens v. Jesson (2015) trial, Minnesota had the highest per capita number of civilly committed sex offenders. Despite this high record of civil commitment, the Minnesota Sex Offender Program (MSOP) had fully discharged only one and provisionally discharged only eight such offenders or “clients” in its 22-year history. 2 The plaintiffs thought that the time was ripe for a class action suit based on violation of substantive due process rights to liberty under the 14th Amendment. Moreover, the constitutionality of other such civil commitment programs was being tested in other states such as Missouri, and therefore there was national interest in what might happened in Minnesota (see, e.g., Van Orden v. Schaefer, 2017). The plaintiffs hoped that Judge Donovan Frank would accept the strict-scrutiny test as the standard of proof in Karsjens, which would require the state defendants to assume the burden of proof, but given the history of court decisions after Lewis, the plaintiffs also couched their arguments in anticipation that they would have to meet the requirements of the shocks-the-conscience test.
To understand the arguments offered in the Karsjens trial, we must examine the complexity of emotions themselves, their connection to moral standards, and their integration into court opinions involving possible violations of due process. Classical rhetorician Quintilian described the connection of facts and emotions in the law as follows: For the force of eloquence is such that it not merely compels the judge to the conclusion toward which the nature of facts lead him [sic], but awakens emotions which either do not naturally arise from the case or are stronger than the case would suggest (p. 431, quoted in Frost, 1994–1995, p. 90; see also Abrams & Keren, 1997; Pettys, 2007).
S. A. Bandes (1999), however, appropriately cautions us to avoid a simple definition of “emotion” and instead recognize that “the appropriateness of particular emotions is a contextual matter,” that “the nature of emotions is complex and variable,” and that “some emotions are generally more desirable than others” (pp. 13–14). Thus, as S. A. Bandes and J. Blumenthal (2012) propose in their review of law and emotion, the field “rejects the fiction of pure, emotionless rationality [in the law] and explores precisely how emotion and cognition interact,” finding that emotion is not only “an interest and individual phenomenon but also an essential component of social and institutional dynamics” (p. 62). It would seem, then, to succeed in meeting the requirements of the shocks-the-conscience test, plaintiffs might have not only to evoke emotions in the decision maker by introductory and concluding remarks but also to introduce witnesses who could project emotions that serve, to some extent, as evidence that circumstance cannot forgive an action that shocks the conscience. I use the traditional definitions of two complementary verbs in analyzing the emotional appeals in the Karsjens trial: Projecting an emotion would involve bringing harmful actions in a case forward, jutting them out or displaying them outwardly, often to a judge or jury, and evoking an emotion would involve eliciting or drawing forth a strong emotion, even an unwelcome or uncomfortable one, in the decision maker. And so, the shocks-the-conscience test seems to call for a “victim,” perhaps a witness who projects their losses and feelings about losses or injuries caused by state actions. The standard also requires a listener, a decision maker, who might be affected by the victim’s story—whether the victim testifies personally or others describe the victim’s losses or injuries.
Finally, the work of J. Blumenthal (2007) is also helpful in speculating about emotional appeals as persuasive evidence in court decisions after Lewis. Indeed an emotional display or description of an event might shock the conscience of the decision maker or insult the decision maker’s sense of justice and goodness, but, as J. Blumenthal claims, something as seemingly insignificant as mood might also affect the decision maker. What J. Blumenthal calls an antecedent, unrelated to a judgment, might frustrate the decision maker—be it a judge or a juror. So-called leftover emotions from previous proceedings, the weather on the day jurors enter the courtroom, or a delay in the proceedings, for example, might affect a decision, according to J. Blumenthal (see also S. A. Bandes, 2011; J. A. Blumenthal, 2005; Nourse, 2008). Thus, couched in references to some of the 73 appellate court opinions, I try to base my interpretations regarding Karsjens v. Jesson (2015) on more than one source or admit that I must remain somewhat speculative. Given this framework, I next explore the plaintiffs’ and defendants’ arguments and the introduction of R. B. in Karsjens v. Jesson, the individual who was most often portrayed as a “victim” of the state’s egregious behavior. 3
Telling the Story of R. B.: The Basis for Emotional Appeal
Because Karsjens v. Jesson was a class action suit, the plaintiffs’ main argument was that if the rights of one MSOP client were violated, then they were for all MSOP clients. In particular, the introduction of R. B., the only female living among those over 700 male sex offenders in MSOP, became the means to project despair or hopelessness as felt by all MSOP clients and to evoke the pity on the part of the decision maker, Judge Frank, for these clients. This was a somewhat risky move on the part of the plaintiffs but one that brought emotional appeals directly into the courtroom. In examining the evocation of pity, I rely on the work of Walton (1997) who defines pity as a “mental attitude related closely to empathy, because it requires that the pitying party be able to see himself [sic] or one of his [sic] friends in the same kind of distressing situation as the pitied party” (p. 50). Therefore, a complete description of a victim’s situation is necessary for the decision maker to image what the victim has encountered, as we see in R. B.’s case, although the plaintiffs and defendants might disagree about the implications of that situation. Should the shocks-the-conscience test be imposed upon the plaintiffs, they would need to describe R. B.’s situation in a way that seemed the result of egregious and immoral state actions.
Also, the plaintiffs had to be aware that since the Lewis opinion, the strict-scrutiny test was frequently judged sufficient in similar due process liberty cases. In Hawkins v. Freeman (1999) in the Fourth Circuit Court, for example, the North Carolina Parole Commission mistakenly granted parole to Irving Hawkins, discovered their mistake, and ordered his reincarceration. Hawkins claimed such action violated his liberty interest protected by due process under the 14th Amendment, but the Circuit Court found that Hawkins’ liberty interest was not fundamental and therefore the strict-scrutiny test did not pertain—such liberty interest was only entitled to protection if the Parole Commission’s actions shocked the conscience. The Fourth Circuit decided that to succeed in arguing for that standard, the Commission’s decision to reincarcerate Hawkins would have to be driven by “something much worse—more blameworthy—than mere negligence, or lack of proper compassion, or a sense of fairness,” and the Court decided that it was not (p. 746).
Moreover, after Lewis the circuit courts had required the shocks-the-conscience test be applied in cases involving what was now defined as “state-created danger.” In Bright v. Westmoreland County (2006), for example, Charles Koschalk shot and killed Annette Bright, the younger sister of Koschalk’s 12-year-old victim of sexual abuse, in retaliation against the family’s efforts to prevent him from seeing the older child. John Bright, father of the two children, reported that Koschalk violated the terms of his probation by seeking such contact with the older girl, but no immediate action was taken by law enforcement. The Third Circuit Court folded into the four essential elements of a meritorious state-created danger claim the requirement that the state actor “acted with a degree of culpability that shocks the conscience,” an element that Bright could not satisfy (Bright v. Westmoreland County, 2006, p. 281; see also Uhlrig v. Harder, 1995; Sanford v. Stiles, 2006; Moore v. Guthrie, 2006). Given this history in increasingly requiring the shocks-the-conscience test, it seems no wonder that the plaintiffs in the Karsjens trial wanted to avoid having to satisfy that test, but in anticipation of such a requirement in the trial or on appeal, R. B. became the focus of the parties’ arguments.
At the time of the trial, R. B. was in her early 50 s and a low-functioning adult with an IQ of 66, blind in one eye and hard of hearing, and with a history of depression from the age of 8. R. B. had been sexually abused by her father, brother, and two of her uncles as early as the age of 5, abuse that continued into her young adulthood. At school, where R. B. attended special education classes, one of R. B.’s teachers kept a spare set of clothes and hygiene products for her because she regularly appeared unkempt and dirty. Also, her guidance counselor remembered that R. B. was “just so desperate for any kind of intimacy,” but she didn’t have “the thinking ability to know how to go about doing it in a proper fashion” (quoted in Morrison, 2015). R. B. had a child at the age of 14, most likely by her father, birthed by way of a Caesarean section, the only option for delivery because R. B.’s pelvis “was deformed from years of sexual abuse” (Morrison, 2015). This child was given up for adoption, as was her second child born to R. B. when she was in her early 20 s. But before that adoption, R. B. wandered the streets of Clinton, MN, with the baby wrapped in a blanket and transported in a grocery cart stacked with old clothing and aluminum cans. As Walton (1997) reminds us that, although as a tool of persuasion, appealing to pity or argument ad misericordiam was once considered fallacious but now pity is a strong enough emotion to be considered appropriate reason rather than an unnecessary emotion. As unlikely as it might be for a legal decision maker, such as Judge Frank, to identify with the situation of someone like R. B., he would not be immune to recognizing the stresses of that situation and perhaps pity R. B.
In contrast to her personal history, however, R. B.’s criminal history was one to convince the state of Minnesota that she deserved time in prison and subsequently became a candidate for indefinite civil commitment, which included intense sex offender treatment and continuing education. Among the many effects of childhood sexual abuse marked by researchers and survivors are depression, posttraumatic stress syndrome, and heightened sexual impulses. And, indeed, as an adult, R. B. had short-term relationships with men, as she was “highly sexualized, with many [relationships] replicating the patterns of early abuse,” according to one psychologist who assessed her psychological state (Rosario, 2014; see also Putnam, 2003). In 1990, R. B. moved to Buffalo, MN, to live with a man convicted of killing a toddler. There she groomed and sexually assaulted two boys, ages 8 and 10, who were left in her care. R. B. recalled, “I planned it for several months… I gave them money. I bought them things. I would cook for the kids. And then I would be nice—nice to get close to them before I offended them… I thought it was all right because of what happened to me” (quoted on CBS News, 2014). After all, R. B.’s father had told her, “This is completely natural between fathers and daughters,” even though he warned her, “If you tell anyone, I’ll beat the hell outta ya” (quoted in Morrison, 2015).
For her actions, R. B. served 7 months out of a 21-month term, but once out on parole, she was quickly sent back to prison after she told her caseworkers that she was tempted to fondle a 4-month-old child. She was civilly committed as a dangerous sexual offender in 1993 and initially lived with women in Minnesota’s Security Hospital in St. Peter. But after she abused a woman in that program, she was moved to MSOP and has remained there for more than 20 years. Therefore, in the Karsjens trial, the plaintiffs would reference one image of R. B., the abused and pitiful child who was misplaced in MSOP, and the defendants would present another, the dangerous sex offender who must be separated from society but who had no place to go other than the secure MSOP facilities in St. Peter, MN. The plaintiffs would try to evoke pity for R. B., as a symbol for many MSOP clients unable to escape long-term confinement, while the defendants would try to convince Judge Frank that R. B. and other MSOP clients were so dangerous as to be feared by the public—and maintaining public safety was an interest of the state government. As Walton (1997) reminds us, pity can be considered an appropriate reason to create a remedy for the person’s situation—thus, evoking pity for R. B. and others became the plaintiffs’ goal. And again, stressing the egregious actions that placed R. B. in indefinite civil confinement with male sex offenders might meet the requirements of the shocks-the-conscience test. 4
Identifying Egregious Behavior: Indefinite Confinement of R. B.
Although R. B. did not testify in the Karsjens trial, it was R. B. who was most frequently mentioned by the plaintiffs as one who should be placed in a less-restrictive facility than MSOP—but used by the defendants as an MSOP client for whom different placement was impossible and dangerous. Upon the agreement of both the plaintiffs and defendants and under Rule 706 of the Federal Rules of Evidence, Judge Frank had appointed four experts to assess MSOP policies and practices and to testify accordingly in the Karsjens trial. In his testimony for the plaintiffs, Rule 706 expert Michael Miner argued that not only did R. B. need to move from an otherwise all-male living unit in MSOP but also R. B. had never been properly assessed for risk and therefore there was no reason to indefinitely confine her. Miner testified that the recidivism rate of women sex offenders was “very small.” Deborah McCulloch, another Rule 706 expert, noted that R. B. had no women friends to support her in MSOP and experienced loneliness on a daily basis. Perhaps, the plaintiffs’ witnesses noted, R. B. would be better off in a women’s prison than among the male clients of MSOP, given that they would remind her of the men who had abused her during her childhood and young adulthood. Certainly, she should not be in group therapy with men as they revealed in detail the nature of their sexual offenses. As the plaintiffs described R. B.’s situation, they found the state’s action regarding this and other MSOP clients indeed egregious.
In rebuttal, the defendants argued that every recommendation made by the plaintiffs for R. B. to be placed elsewhere was unreasonable or impossible. The plaintiffs argued that R. B. should not remain in MSOP, but the defendants argued that there was no other place for her—it was either MSOP or nothing. St. Peter Clinical Director, Dr. Haley Fox, for example, testified that R. B. did not “resemble in terms of assaultive arousals” other female offenders in any group home; in fact, R. B. exceeded such behaviors. Thus, the Executive Director of MSOP, Nancy Johnston, concluded that R. B.’s living in a foster home with other women was impossible given R. B.’s history of sexually assaulting adult women. Johnston went on to assert that R. B.’s living alone with a 24-hour staff member was financially restrictive. Moreover, Dr. Fox said that the Shakopee prison setting would not “adequately address” R. B.’s needs and would instead “decrease her liberties even further.” Finally, the defendants noted in their closing arguments, “To be sure [that both R. B. and the people she interacted with remained safe], the measured clinical judgment of Dr. Fox and other professionals on the complex issue should have received deference over Plaintiff’s lawyer’s belief that [R. B.] should be isolated in her own facility or sent to a women’s prison” (Defendants’ Closing Arguments, 2015, p. 111). The defendants, then, deflected the plaintiffs’ emotional appeal for pity by claiming authority for any decisions regarding R. B. and other MSOP clients and by describing R. B. as most comfortable in her current setting and dangerous outside of it.
In addition to arguing about less-restrictive placement, particularly about someone as different as R. B., the parties in the Karsjen trial had to address treatment and cure, the ultimate justification of MSOP and other such civil commitment programs for sex offenders. The possibility of R. B.’s developing internal controls that would allow her to function safely in the community seemed doubtful to her MSOP therapists, as pointed out by the state defendants. In earlier hearings regarding R. B., psychologist Jane Matthews, for example, concluded that R. B. “seems to have become eroticized to her abuse and accepts it as the norm” (quoted in Morrison, 2015). Moreover, after years of therapy, R. B. admitted that when she was around children, she would engage in “playing pretend normal,” even though she still wanted to attack those children (Associated Press, 2017). When children did not accept the advances of R. B., she became violent. At times, she seemed aware of the danger she presented: “I don’t want to harm others,” R. B. told her treating psychologists. “But I can’t control it. If I do not get help, I will re-offend over and over again. Everywhere I go, I will go after kids” (quoted in Morrison, 2015). But at other times, she seemed confused by her actions. As she wrote to her sister, “Do you think that I’m a danger to the society? I think that I’m not because I really love kids where I don’t want to hurt them” (quoted in Rosario, 2014) Thus, R. B. seemed uncertain as to just what was normal and what was pretending to be normal—and how what she had experienced was criminal behavior. After her petition for provisional discharge from MSOP was denied over a decade ago, R. B. stated: “I can’t handle being here no longer. This is the longest I’ve ever been locked up in my whole life. I called my sister last night and told her that I’m going to end my life” (quoted in Rosario, 2014). If R. B. could not be cured, her situation did indeed seem hopeless.
It should not be surprising that legal scholars have revealed the high levels of depression and hopelessness among sex offenders (see, e.g., Jeglic, Mercado, & Levenson, 2012; Schiavone & Jeglic, 2009). These emotions, according to Mercado, Alvarez, and Levenson (2008), “have the potential to increase, rather than decrease, rates of sexual recidivism,” certainly affecting public safety, again a steadfast social value (p. 203; see also, Levenson, D’Amora, & Hern, 2007). The presence of hopelessness among civilly committed sex offenders is practically universal, asserted the plaintiffs in the Karsjens trial, and this emotion not only retarded the offenders’ progress through MSOP treatment but also set the stage for the plaintiffs successfully meeting the requirements of the shocks-the-conscience test, should they need to claim egregious action and outrageous effect on the part of MSOP. In addition, the plaintiffs called upon experts to establish the atmosphere of hopelessness among MSOP clients, an atmosphere that they found “shocking.” Deborah McCulloch, one of the Rule 706 experts, for example, testified for the plaintiffs that there was “overwhelming negativity and hopelessness and helplessness” among MSOP clients. Moreover, she noted that the placement of R. B. among the male sex offenders “shocked” all of the Rule 706 experts. Robin Wilson, another Rule 706 expert, testified about the “degree of hopelessness and lack of empowerment” among MSOP clients, noting “hope” was “a very important part of change.” In their closing arguments, the plaintiffs reminded Judge Frank of Dr. Fox’s testimony, in which she stressed the necessity of moving MSOP clients more quickly through treatment “in order to instill hope among clients that progression is happening,” noting more than one client who were examples those “whose treatment progress w[ere] affected by hopelessness” (Plaintiffs’ Closing Arguments, 2015, p. 171). And, they ended their argument by reminding Judge Frank that “no one has been fully discharged and only a few have even been provisionally discharged—leading to rampant hopelessness” in the program (Plaintiffs’ Closing Arguments, 2015, p. 261).
The defendants’ experts, however, characterized hopelessness as a productive emotion or denied the emotion entirely. Terrence Ulrich, a senior clinician at MSOP, for example, testified that hopelessness among the MSOP clients really “meant that they are human.” And, Dr. Fox testified, “I do not believe that everyone at MSOP is hopeless, but rather they are achieving mastery of one’s own behavior and a sense of freedom.” Thus, in their closing arguments, the defendants did not address the issue of hopelessness but instead reminded Judge Frank of such testimony from Deborah McCullock that she had no evidence of the MSOP staff exercising “malice or intent to punish clients,” mostly likely to prepare to argue that the plaintiffs could not meet the requirements of the shocks-the-conscience test (Defendants’ Closing Arguments, 2015, p. 142). And, in the meantime, the defendants were preparing the ground for arguing against the application of the strict-scrutiny test. In a hearing to determine if the plaintiffs’ evidence was adequate for the trial to continue, for example, the defendants asserted, No institution [such as MSOP] in America operates under a strict-scrutiny standard. And do you know why?… Every time they serve somebody peas instead of their desired carrots…you have to show why that is narrowly tailored to meet some compelling state interest. (Rule 52 Hearing Transcript, 2015, lines 11–16)
Deciding Between the Strict-Scrutiny and the Shocks-the-Conscience Tests: Appeal to the Eighth Circuit Court
In Judge Frank’s final decision, we see some evidence that the plaintiffs’ emotional appeal on behalf of R. B. was successful. Judge Frank (2015) stressed that the Rule 706 experts concluded that MSOP had not incorporated any “specialized sex offender treatment for females” (, p. 14). In their earlier report to the judge, a report that the judge frequently referenced in his final opinion, the Rule 706 experts had speculated that not only was R. B. “quite inappropriately placed” within MSOP but also that her “[c]ontinued placement at MSOP is iatrogenic, in that this placement likely exacerbates, rather than ameliorates, the issues that influence her inappropriate sexual behavior” (Freeman, Miner, McCulloch, & Wilson, 2014, pp. 16–17). The assertion in the defendants’ closing arguments that R. B. received some individualized treatment, including her own room and an art therapist who understood how to work with women, did not seem to convince Judge Frank that R. B.’s situation was not dire and MSOP’s refusal to discharge her was not egregious. Moreover, given the testimony about MSOP’s three-phased treatment system, Judge Frank characterized the whole system as a “‘chutes-and-ladders’-type mechanism for impeding progress, which has the effect of confinement to the MSOP facilities for life” (Frank, 2015, p. 65), an allusion to the child’s board game in which the player can continue to climb ladders to a winning spot or ride the chutes back down to the start of the game.
Indeed, Judge Frank seemed convinced by the testimony of the 706 experts and the MSOP clients themselves. Moreover, although R. B. herself did not appear in the courtroom, other MSOP clients testified about their own feelings of hopelessness and despair. And so, Judge Frank (2015) concluded, “The evidence clearly established that hopelessness pervades the environment at the MSOP, and that there is an emotional climate of despair among the facilities’ residents,” and he summarized the testimony of several MSOP clients whom he found had “credibly testified” or “offered compelling testimony” (, p. 19). Although Judge Frank based his decision on the strict-scrutiny test, he endorsed the emotions projected by the MSOP clients, and therefore one might speculate that these emotions evoked pity within this decision maker, particularly in the case of R. B. In identifying the MSOP clients as “victims,” the plaintiffs set the framework to counter any appeal that promoted the shocks-the-conscience test.
Thus, the end of the Karsjens trail, Judge Frank agreed with the plaintiffs that their due process claim based on the 14th Amendment indeed meant an infringement of a fundamental right to liberty. He found the Minnesota statutes that governed civil commitment of sex offenders were unconstitutional on their face and the MSOP policies and practices unconstitutional as they applied these statutes. The statutes, policies, and practices involved a compelling government interest but were not executed in the narrowest way possible. Too many MSOP clients completed or reached the maximum effects of their treatment plans but had no alternative, such as less restrictive places to reside; moreover, the program did not conduct annual risk assessments on all clients to determine if they still met the criteria for civil commitment. Judge Frank (2015) determined that the Karsjens case challenged “the boundaries that we the people set on the notions of individual liberty and freedom, the bedrock principles embedded in the United States Constitution,” and he emphasized that “we carefully scrutinize any such deprivation of an individual’s freedom to ensure that the civil commitment process is narrowly tailored so that the detention is absolutely limited to a period of time necessary to achieve these narrow government objectives” (p. 2).
However, in January 2017, the U.S. Court of Appeals for the Eighth Circuit, to which the state defendants in the Karsjens trial appealed Judge Frank’s decision, reversed and vacated the relief order for the plaintiffs. The Eighth Circuit Court found that Judge Frank, in what was now Karsjens v. Piper (2017), applied the incorrect test when considering the plaintiffs’ claims. The Eighth Circuit stated that, to withstand in a due process challenge, law or policy could be found unconstitutional only if it fell outside the standards of civilized decency or, in essence, shocked the conscience of a judge or jury. Thus, said the Eighth Circuit Court, when considering whether the state defendants’ actions violated a fundamental liberty right, Judge Frank should have determined whether these actions were “conscience-shocking” (Karsjens v. Piper, 2017, p. 17). In particular, the Eighth Circuit Court quoted from its own and other circuit opinions regarding the shocks-the-conscience test to decide that Judge Frank should have weighed whether the defendants’ actions were “egregious” or “outrageous” in civilly confining so-called dangerous sex offenders within MSOP and whether those actions were “so severe… so disproportionate to the need presented, and… so inspired by malice and sadism rather than merely careless or unwise excess of zeal that it amounted to a brutal and inhumane abuse of official power literally shocking the conscience” (Karsjens v. Piper, 2017, p. 19). Finally, the Eighth Circuit Court concluded that the civilly committed sex offenders, considered a dangerous subgroup of society, did not possess the fundamental liberty rights to which the strict-scrutiny test applies— and therefore the Court left no option for remand to Judge Frank’s court.
Then in Spring 2017, the attorney for the plaintiffs in the Karsjens case wrote a “Petition for Writ of Certiorari” to the U.S. Supreme Court, an appeal that the Court hear Karsjens. In the writ, the plaintiffs argued that freedom from bodily restraint, which included freedom from indefinite imprisonment, government custody, detention, and other forms of physical restraint, had been protected by the due process clause as determined by the Court in Foucha v. Louisiana (1992). Also, the plaintiffs reminded the Court that in its own 1997 Kansas v. Hendricks opinion the Court determined that to satisfy the standards for civil commitment of sex offenders, programs such as MSOP had to conduct regular, periodic review of such offenders, because to not do so meant “a death-in-confinement sentence without any of the safeguards of the criminal legal system, lacking any assurance that continued confinement is legally justified” (quoted in Gustafson, 2017, p. 3).
Finally, the plaintiffs reminded the Court that the Eighth Circuit had had no issues with the district court’s findings of fact, and therefore the Court should find the Karsjens case a “perfect opportunity” to “clarify and establish the proper standard of review of substantive due process claims invoking fundamental rights” (Gustafson, 2017, p. 25). This clarification seemed particularly important, said the plaintiffs, because in light of the Eighth Circuit’s decision in Karsjens, the U.S. District Court, Eastern District of Missouri, in Van Orden v. Schaefer (2017) had vacated its own finding that the Missouri’s civil commitment statute was unconstitutional as applied in its state sex offender program. Thus, a Supreme Court review of Karsjens would have implications for such programs across the nation. However, in Fall 2017, the Supreme Court declined to hear the case.
Conclusion: Professional Communication, Rhetoric, and Law Perspectives on the Shocks-the-Conscience Test
Frequently after the Lewis (1998) opinion, emotional appeals for due process relief became evidence to support accusations that government organizations and agents had departed from moral standards. This requirement that the plaintiffs appeal to the emotions of a decision maker and yet prove that state actions are egregious and indecent should be of interest to professional communication and rhetoric scholars, but somewhat suspect to those scholars who discover how easily plaintiffs might be silenced. Again, these requirements of the shocks-the-conscience test seem to confirm the power and authority of the state and deprive the constitutional due process rights of those singled out as suspect individuals or groups—relegated to a “reduced-rights zone” as Janus (2006, p. 23) calls it. The plaintiffs in Karsjens v. Piper (2017) echoed this concern in their “Petition for Writ of Certiorari” to the Supreme Court. Imposing the shocks-the-conscience test, the plaintiffs wrote, would mean that “any group perceived as potentially dangerous to the public—the mentally ill, people with alien status, or those previously convicted of chronic criminal behavior, for example—could find themselves with diminished constitutional rights” (Gustafson, 2017, p. 4). In this writ, the plaintiffs urged the Court to declare clearly that any “indefinite deprivation of liberty that accompanies civil commitment implicates a fundamental right and to place the burden squarely on the government to demonstrate that its legislative response is narrowly tailored to meet a compelling state interest,” in other words, apply the strict-scrutiny rather than the shocks-the-conscience test (Gustafson, 2017, p. 4).
For professional communication and rhetoric scholars, an analysis of the shocks-the-conscience test extends our growing understanding of how genres and other required oral or written responses might maintain a powerful hierarchy. In the courtroom, evidence is presented by witnesses, some of them experts and others victims or observers, and that evidence is interpreted for the judge by attorneys representing them. In analyzing the Karsjens trial, I think that Reeves’ (2015) characterization of incommensurate rhetorical constructions may come close to labeling the debate over the hopelessness of MSOP clients versus their threat to public safety as well as the pity they might evoke in the decision maker versus the fear they might cause in the community. However, I would add to Reeves as well Andrus (2015), and Redington (2017) the more extreme result of such disadvantaging of witness and victims in the courtroom: Not only are due process rights possibly diminished by the shocks-the-conscience test, but also the vast majority of MSOP class action plaintiffs, including R. B., remain indefinitely committed in the secure facilities in Minnesota and 19 other states. The efforts of the plaintiffs and the state defendants to persuade Judge Frank to abide by strict-scrutiny or the shocks-the-conscience test reveal that the distinction might be evident at times between pathos and logos and between emotional appeals and rational reasoning. However, this distinction indeed becomes murky when the plaintiffs must use emotion appeals to prove that the government has violated moral standards.
To understand completely the implications of the shocks-the-conscience test, I hope to expand our understanding of the uncertainties and complexities of legal discourse for professional communication and rhetoric scholars as well as activists. Levinson (2010), for example, suggests that “it’s time to bury the shocks the conscience test”—the test should be replaced by the “essence” of due process, which is “protection of the individual from the exercise of governmental power without reasonable justification” (p. 347). Those decision makers who must weigh whether they are shocked or not may be like one federal district judge, who in a humorous moment suggested that the shocks-the-conscience test really meant, “If I were a cartoon figure [results of the shocks-the-conscience test would depend on] whether my hat would fly up in the air with an exclamation mark or a question mark next to it” (quoted in Wilson & Shaw, 2010, p. 678). Even the Lewis court was somewhat uneasy about the test, acknowledging Justice Scalia as he failed to see the usefulness of the shocks-the-conscience test, characterizing it more as a moral test.
Furthermore, those dissenting in the circuit court opinions that upheld the shocks-the-conscience test reflect similar concern about the test. In United Artists Theatre Circuit, Inc. v. Township of Warrington (2003), for example, the minority of the Third Circuit Court cautioned, “[T]ossing every substantive Due Process egg into the nebulous and highly subjective ‘shocks the conscience’ basket is unwise”(p. 406). Moreover, Reilley (1999) considers the test too vague in that it invites “all decision makers to consult their sensibilities,” if not their “idiosyncrasies” (pp. 1391–1392). Other scholars warn that the vagueness of the shocks-the-conscience test will introduce “vastly different standards [even] within the same region” (Levine & Blake, 2005, pp. 117–118; see also Krstulic, 2008). Finally, Bennett Gershman (1982) reminds us of the “evanescent standards” of depending on the “shock capacity of the conscience of particular judges” (p. 599; see also Chee, 2008–2009; Thompson, 2007). Therefore, as we try to assess to what degree Judge Frank might have been “shocked” or was convinced of the despair and hopelessness of MSOP clients and therefore pitied such clients as R. B., we must realize, as did Lentz (1999), that recovering “a complete explanation of what may shock one’s conscience is nearly impossible” (p. 1309). Our analysis is speculative, even though one might interview and observe judges in the courtroom to capture at least their perceptions or exact words as they make decisions and impose sentences. When judges interviewed by Propen and Schuster (2008), for example, revealed how victim impact statements influenced their sentencing decisions in domestic violence criminal cases, one judge shared that she just listens to such statements, not wanting the victim to think that she is “judging what they say or demeaning them” (p. 320). According to Schuster and Propen (2010), other judges reflected on which emotional appeals they found acceptable in impact statements varied. One judge, for example, when asked if sentences should be different given the emotional appeals expressed in an impact statement said that “our judicial system with the sentencing guidelines really does take out your visceral reactions,” while another judge confirmed that he might add conditions to the sentence or even reconsider a plea agreement after hearing a victim’s expression of grief and anger (p. 87).
However, despite this necessary speculation, some scholars appreciate the spectrum of intent that Lewis permits; Cotterrell (2003), for example, sees the advantage of bringing “the raw experience of life as forcefully as possible into conceptual debates around law” (p. 59). Depictions of R. B. and others, Massaro (1989) seems to confirm, “move us to care”; judges and lawyers deal with abstractions, and stories “can shock them back into sensation, into life as it is versus how we talk about it” or stimulate “a call for empathy” (pp. 2105, 2106). To engage further the sensibilities of the Karsjens trial to understand the plight of R. B. and other such civilly confined sex offenders, for example, the Rule 706 experts and MSOP staff described how R. B. colored her treatment cards to make them her own and to be able to relate to them. She might not understand how these cards represented her treatment progress, but she perceived that they were important. R. B. also used crayons to draw two hearts, one of which was broken. The hearts were surrounded by bricks and by a door with five locks preventing any one from getting in; it was her “safe place,” according to R. B. (Associated Press, 2017, YouTube).
When professional communication and rhetoric scholars investigate such settings as the courtroom and such legal standards and tests such as strict scrutiny and shocks the conscience, they might hope, as I do, that their research might enable the participants to better function in these settings. Given my analysis of the 73 court opinions before and after Lewis and the Karsjens trial, I believe that maintaining the shocks-the-conscience test is not worth the possible risk to constitutional rights. A critique of requirements of the test reveals how the demands of the burden of proof placed upon plaintiffs ensure that authority and power. Moreover, the link between the emotional appeals and moral standards takes on the character and purpose of evidence that is difficult to produce.
Footnotes
Declaration of Conflicting Interests
The author(s) declared no potential conflicts of interest with respect to the research, authorship, and/or publication of this article.
Funding
The author(s) received no financial support for the research, authorship, and/or publication of this article.