Alan Dershowitz Offers Help With Justina Pelletier Case

There was a time when unwarranted intervention into family life was truly a bipartisan issue.

I know that may be hard to believe, but it’s true.

In the January 27, 1996, edition of Boston Globe, staff writer Michael Grunwald explained that by the 1980s, “family preservation” had caught on as something of a movement, embraced by politicians of all stripes, as:

Religious conservatives were denouncing the breakup of families. Libertarians were attacking “child-snatching” agencies that invaded homes. Liberals were accusing agencies of taking away poor minority children instead of giving their families needed services.

During the 1970s, and throughout the early 1990s, many advocates charged during Congressional hearings that child protection had grown into an “industry.” It was no different in Massachusetts.

In the October 25, 1992, edition of the Boston Globe, staff reporter Victoria Benning wrote: “The state Department of Social Services, under fire for mishandling foster child cases, is an agency riddled with problems, from gross mismanagement and poor communication by managers to a lack of vision and little support from Gov. Weld, according to advocates and others in the child welfare system.”

Inquiries into the Massachusetts Department of Social Services had produced some strong critics of the agency, as Benning explained:

“They will tell you the issue is money. I don’t believe it,” said Stephen Bing, executive director of the Massachusetts Advocacy Center. “When DSS was created, it had a $90 million-plus budget; today it’s about $400 million. That’s a growth industry.”

“To be sure, every agency could use more resources, but that’s not the fundamental problem,” he said. “The fundamental problem is vision and leadership and translating that vision into the field.”

That view was bolstered last week by a new report by a private consulting company that found that DSS is suffering such a severe “organizational breakdown” that the number of children who are abused or who could die will increase unless drastic changes are made immediately.

The report said DSS has a lack of management direction and oversight, poorly thought-out initiatives, and no coordination with other state agencies.

Critics were to be found on both sides of the political aisle, at the time. Indeed, for many years, one of the agency’s most outspoken critics was former Rep. Marie Parente – herself a former foster child – who Benning described as “a champion of foster care issues during her seven terms in the Legislature.”1

Benning also put Parente on the record as saying that: “The major problem is the lack of due process and lack of accountability,” and of saying that DSS is “a very totalitarian kind of agency. We’ve given too much power to an agency that has run amok.”

By that time, not only had the Department of Social Services earned the reputation of running amok; it had also earned the reputation of being corrupt, as Benning explained: “the state comptroller temporarily placed the agency in fiscal receivership while he investigated allegations that agency budget officers illegally shifted expenses from one fiscal year to another to cover up deficits. The investigation found the agency illegally used $5.2 million in 1992 finances to pay 1991 bills.”

In August 2004, Boston Globe correspondent Jessica E. Vascellaro reported Parente as having suggested that the state may be motivated to label children as mentally ill because of the reimbursement checks they receive from the federal government, which compensates Massachusetts for about half of all Medicaid expenditures.

Vascellaro continued on to report that according to Parente, the state files a pre-expenditure report outlining expected costs and each patient’s eligibility for Medicaid and other federal aid. While the state is not reimbursed until it submits a report of services actually provided, Parente said there is a lot of room for the state to fudge numbers and list services that were never delivered.

“I am very concerned that they not label these children as having mental health problems in order to receive federal reimbursement,” Parente said.

More to the point, Vascellaro closed out her column by saying:

Loretta Kowal, a Massachusetts social worker on DSS’s professional advisory committee, said Massachusetts doctors strongly endorse the use of psychotropic medicines.

“We have seen them be successful over and over again,” she said. “There probably is a belief in the Massachusetts community that when all else fails, you try what’s in the cabinet.”

Marie Parente introduced legislation to curb the use of psychotropic medications on foster children.

During her tenure as a legislator, Parente sponsored legislative amendments that would have created a task force to study how many children in state care were being prescribed psychotropic medications. After her measure was finally approved by both the House and the Senate, then-Governor Mitt Romney vetoed the amendment during the early summer of 2004.

Carole Keeton Strayhorn released the landmark Forgotten Children report.

To apply the proper historical perspective, this came during the same year that former Texas Comptroller Carole Keeton Strayhorn released her groundbreaking report Forgotten Children – the report that opened the window on the widespread use of psychotropic medications on children in foster care.

That Parente is a Democrat, while Strayhorn is a Republican, doesn’t diminish either of their accomplishments. Nor should it.

Indeed, the US House Select Committee on Children, Youth, and Families – the very Committee responsible for having crafted the requirement that states make reasonable efforts to prevent the unnecessary removal of children from their homes – was itself truly a bipartisan body.

To develop a sense of the diversity found among the original Committee’s membership, consider that Democrat George Thomas Leland was an anti-poverty activist who went on to become a Congressman and Chair of the Congressional Black Caucus. Republican David Marriott served as a Mission President for The Church of Jesus Christ of Latter-day Saints in South Africa’s Cape Town Mission. And, as of 2011, former Committee member Dan Burton was a member of the Tea Party Caucus.2

To say that the House Select Committee on Children, Youth, and Families represented a “celebration of diversity,” to borrow a catch-phrase of our times, would be something of an understatement. But there was one point on which they all could agree. Children were being needlessly removed from their homes and being warehoused in foster care. The family was under attack, and the attacker was the state.

The bipartisan National Commission on Children issued a report that was highly critical of the “protective” services approach, urging the development of systems that were more responsive to – and more supportive of – the genuine needs of families. It is difficult to imagine such a bipartisan framework being hammered out today.

By the 1990s, any notion of valuing the family as a unit had fallen by the wayside, notwithstanding a great deal of rhetoric about “family values” at the time. The very notion of protecting and preserving the family had been recast as something of a fringe issue. It was with bipartisan approval that the Adoption and Safe Families Act was passed into law. The result – as many advocates had foreseen – was the creation of a new class of legal orphans with any hope of being reunited with their families dashed on the rocks.3

Meanwhile, child and family advocates had split along political and other more philosophical lines, seemingly oblivious to the damage being done. The Libertarian party seemed to offer a safe haven to some, while the Tea Party seemed to offer a safe haven for some others. Some parroted an ultra-conservative line that led them to believing that the United States would relinquish its very sovereignty if it were to endorse the United Nations Rights of the Child. That beleaguered parents in the United Kingdom were using the European Court of Human Rights to remedy wrongful separations of their families by the UK’s family court system seems to have escaped their notice entirely. Meanwhile, the child protection industry and their well-paid lobbyists and revenue maximization contractors have gone laughing all the way to the bank.4

To be sure, People for the American Way have done little to inspire the confidence of parents in the Democratic party. Their sophistic attacks against the Pelletier family by means of two recent articles entitled “Meet Justina Pelletier, The Religious Right’s Next Campaign,” and “Latest Judge’s Ruling In The Justina Pelletier Case Met With Outrage” are certain to alienate anyone who is even remotely familiar with the Pelletier’s case.

Nor has that bastion of liberty the Massachusetts Civil Liberties Union done much to inspire confidence. In February, the Globe reached out to them to see where they stand with things. After all, it had only been a year that Justina has been locked away in Boston Children’s Hospital, and clearly there must be some civil liberties issues involved. The Globe reported it thus:

Meanwhile Jessie Rossman, a staff attorney with the ACLU of Massachusetts, said Monday that it has been reviewing the First Amendment issues arising out of the gag order and that “we are deeply concerned about multiple aspects.”

She said no final decision has been made about whether to join the case, “but we are looking at ways that we can be helpful.”

I can’t say who it was, but I can say that it was neither the Massachusetts Civil Liberties Union nor anyone on Justina’s defense team that managed to have the gag order lifted. Rather it was a professional entirely outside of the legal profession who filed the motion to quash the order on First Amendment grounds. More specifically, the motion was submitted as: “A Plea for relief from the unpublished Prior Restraint imposed by judge Joseph Johnston.” (To be sure, that brave individual had the permission of Lou and Linda Pelletier to file the motion.) Once the judge saw the motion – poof! – the gag order disappeared. Imagine that.

It isn’t as if a gag order in a juvenile court case hasn’t been subject to legal challenges before. See for example FOCUS v. Allegheny County Court of Common Pleas, 75 F.3d 834 (3d Cir. 1996). Do see also more generally Nebraska Press Assn. v. Stuart, 427 US 539 (1976) and New York Times Co. v. United States, 403 US 713 (1971).

People for the American Way do ask one question that begs for an answer: “Why, after months of total silence and literally no interest, did several Religious Right organizations suddenly and collectively begin to care about this case, all on the same day?”

I really don’t know why it took as long as it did. I’m only grateful that someone – regardless of whether they were on the left, the right, or midstream – took the legal ball and ran with it. When Liberty Counsel first appeared, they appealed to everyone saying that this ought be a truly bipartisan issue. Legislators in two states managed to unify in a bipartisan manner in support of the family even if the split wasn’t exactly equal between the two political parties.

Now, enter – stage left – prominent civil rights attorney Alan Dershowitz. And, just as with Liberty Counsel, better late than never. Thank you, sir, for helping to solidify this once and for all as a truly bipartisan issue.

During his Congressional testimony in 1995, Richard Wexler of the National Coalition for Child Protection Reform expressed the sentiment quite well:

I appeal to all of you not to allow this to become a partisan issue. The majority already has taken a step toward bipartisanship.

You invited a lifelong liberal Democrat to be your second witness. I am a card carrying member of the ACLU, and it was a former member of the ACLU National Board who founded the National Coalition for Child Protection Reform.

Child Saving combines the worst aspects of liberalism and conservatism. It will take the best of each philosophy to stop it, and provide real help and real hope to children in need.

There are some valuable lessons to be learned by those on both sides of the aisle when it comes to the issue of defending the sanctity of the family against the unwarranted intrusions of the state.


1. On September 18, 2006, state Representative Marie J. Parente lost her bid for re-election after serving in the House for 26 years.

2. In addition to Miller, members of the original Committee included William Lehman, Florida; Patricia Schroeder, Colorado; Lindy Boggs, Louisiana; Matthew F. McHugh, New York; Ted Weiss, New York; Jerry M. Patterson, California; Barbara Boxer, California; Barbara Mikulski, Maryland; Beryl Anthony, Jr., Arkansas; Mickey Leland, Texas; Sander Levin, Michigan; Bruce Morrison, Connecticut; J. Roy Rowland, Georgia; Gerry Sikorski, Minnesota; and Alan Wheat from Missouri – all of whom were Democrats. The Republican Representatives included Dan Marriott, Utah; Hamilton Fish, Jr., New York; Dan Coats, Indiana; Dan Burton, Indiana; Frank Wolf, Virginia; Nancy Johnson, Connecticut; John R. McKernan, Jr., Maine; and Barbara Vucanovich, Nevada. Also among the original memebers was Thomas J. Bliley, Jr., who was a Democrat prior to 1980, and a Republican post-1980. Curiously, while Hamilton Fish IV was a Republican, his son, Hamilton Fish V, ran for the Congress in 1988 and 1994 as a Democrat without success.

3. For more information regarding the negative impacts of the Adoption and Safe Families Act and the creation of “legal orphans” see generally Cynthia Godsoe, Parsing Parenthood, Brooklyn Law School, Legal Studies Paper No. 253 (August 2, 2012); Sheri L. Hazeltine, Speedy Termination of Alaska Native Parental Rights: The 1998 Changes to Alaska‚Äôs Child in Need of Aid Statutes and Their Inherent Conflict with the Mandates of the Federal Indian Child Welfare Act, 19 Alaska Law Review 57-84 (2002).

4. The Declaration of the Rights of the Child specifically provides that: “The child, for the full and harmonious development of his personality, needs love and understanding. He shall, wherever possible, grow up in the care and under the responsibility of his parents, and, in any case, in an atmosphere of affection and of moral and material security; a child of tender years shall not, save in exceptional circumstances, be separated from his mother.” Many parents have managed to overturn rulings of family courts in the UK by using the Declaration of the Rights of the Child as well as other European human rights mandates to their advantage. Nevertheless, it is hardly worth the time and effort to extend any debate toward this issue, as the likelihood of the United States signing the Declaration is not very likely. I mention this only to note how handily many people are divided by issues that are largely red herrings. The political posturing has grown to such proportions that an American family that had recently endured the wrongful removal of their children entered a family support conference asking whether parents who were Democrats were also vulnerable to the wrongful removal of their children.


3 responses

  1. Sometimes i am ashamed to say that i am an American when i read about cases like this!
    Thank God we still have Americans who believe in our Constitution and use it, for good!
    Dr.B. Thank God i have you for a physician, a person with integrity, and thoughtfulness!
    Justina don’t worry, you will be home soon enough!

  2. Yes, thank goodness for those who still believe that the Constitution (itself the result of bipartisan effort) is worth preserving.

    I am cautiously optimistic that the larger issues may emerge as a consequence of these cases. (The others that we are aware of include Elizabeth Wray; an unnamed previous client of Beth Mahoney’s that spent some weeks in BCH custody; the Hilliard family; an unnamed child of one of Barry S. Pollack’s clients who I believe spent six months in Bader 5, and Chelsey Cruz There are some others as well that I am trying to gather additional information on).

    On Sunday, Rep. Linda Dean Campbell (D) posted a Letter to the Editor on Blue Mass Group, writing, in part, “The case of Justina Pelletier raises more very serious concerns regarding decision-making at the Massachusetts Department of Children and Families. While it is not possible for a Legislative body to interject itself into ongoing civil and criminal litigation, we do have the responsibility and power to investigate and provide oversight. This task is ongoing in the House of Representatives and will take some time if it is to be done correctly, requiring many current DCF employees to testify under oath.”

    Sentiment among the Mass Red Group seemed to be (and I am only generalizing based on casual reading today) that people welcomed the idea of their Blue counterparts taking an interest in these issues.

    In reply to Campbell’s posting, a constituent pointed out the Sara Duzan case. This seems to be an emerging problem as well; that is the issue of for-profit or state-funded organizations taking custody of younger disabled individuals over the age of 18. (Link below).

    This morning, NewsMax announced that Alan Dershowitz confirmed he was in talks with Justina Pelletier’s parents. “I have reached out to one of the family’s representatives, and we are trying to set up a discussion on how to proceed,” Dershowitz said.

    Sara Duzan case:

    Bret Bohn – related case from Alaska:

  3. Jayne W. Miller of the Tewksbury Town Crier reported on Saturday, April 5, 2014, that:

    “Two local legislators join the House Republican Caucus and seven Democratic members in passing a resolution aimed at reuniting Connecticut teenager Justina Pelletier, 15, with her parents and out of the custody of Massachusetts’ Department of Children and Family (DCF).”

    “Jim Lyons, R, and Jim Miceli, D, both signed a resolution last week ‘Acknowledging serious concerns regarding DCF’s handling of the Justina Pelletier Case.'”

    Lyons and Miceli join 33 other Massachusetts legislators, the article notes.

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