Boutilier v. Immigration and Naturalization Service/Dissent Douglas

Mr. Justice DOUGLAS, with whom Mr. Justice FORTAS concurs, dissenting.

The term 'psychopathic personality' is a treacherous one like 'communist' or in an earlier day 'Bolshevik.' A label of this kind when freely used may mean only an unpopular person. It is much too vague by constitutional standards for the imposition of penalties or punishment.

Cleckley defines 'psychopathic personality' as one who has the following characteristics:

(1) Superficial charm and good 'intelligence.' (2) Absence of     delusions and other signs of irrational 'thinking.' (3)      Absence of 'nervousness' or psychoneurotic manifestations. (4) Unreliability. (5) Untruthfulness and insincerity. (6)     Lack of remorse or shame. (7) Inadequately motivated     antisocial behavior. (8) Poor judgment and failure to learn     by experience. (9) Pathologic egocentricity and incapacity     for love. (10) General poverty in major affective reactions. (11) Specific loss of insight.

(12) Unresponsiveness in general interpersonal relations. (13) Fantastic and uninviting behavior with drink and     sometimes without. (14) Suicide rarely carried out. (15) Sex     life impersonal, trivial and poorly integrated. (16) Failure     to follow any life plan. Cleckley, The Mask of Sanity 238-255     (1941).

The word 'psychopath' according to some means 'a sick mind.' Guttmacher & Weihofen 86, Psychiatry and the Law (1952):

'In the light of present knowledge, most of the individuals     called psychopathic personalities should probably be      considered as suffering from neurotic character disorders. They are, for the most part, unhappy persons harassed by     tension and anxiety, who are struggling against unconscious      conflicts which were created during the very early years of      childhood. The nature and even the existence of these     conflicts which drive them restlessly on are unknown to them. When the anxiety rises to a certain pitch, they seek relief     through some antisocial act. The frequency with which this     pattern recurs in the individual is dependent in part upon      the intensity of the unconscious conflict, upon the tolerance      for anxiety, and upon chance environmental situations which      may heighten or decrease it. One of the chief diagnostic     criteria of this type of neurotically determined delinquency      is the repetitiveness of the pattern. The usual explanation,     as for example, that the recidivistic check-writer has just      'got in the habit of writing bad checks' is meaningless.'      Id., at 88-89.

Many experts think that it is a meaningless designation. 'Not yet is there any common agreement * *  * as to classification or *  *  * etiology.' Noyes, Modern Clinical Psychiatry 410 (3d ed. 1948). 'The only conclusion that seems warrantable is that, at some time or other and by some reputable authority, the term psychopathic personality has been used to designate every conceivable type of abnormal character.' Curran & Mallinson, Psychopathic Personality, 90 J. Mental Sci. 266, 278. See also Guttmacher, Diagnosis and Etiology of Psychopathic Personalities as Perceived in Our Time, in Current Problems in Psychiatric Diagnosis 139, 154 (Hoch & Zubin ed. 1953); Tappan, Sexual Offences and the Treatment of Sexual Offenders in the United States, in Sexual Offences 500, 507 (Radzinowicz ed. 1957). It is much too treacherously vague a term to allow the high penalty of deportation to turn on it.

When it comes to sex, the problem is complex. Those 'who fail to reach sexual maturity (hetero-sexuality), and who remain at a narcissistic or homosexual stage' are the products 'of heredity, of glandular dysfunction, (or) of environmental circumstances.' Henderson, Psychopathic Constitution and Criminal Behaviour, in Mental Abnormality and Crime 105, 114 (Radzinowicz & Turner ed. 194).

The homosexual is one, who by some freak, is the product of an arrested development:

'All people have originally bisexual tendencies which are     more or less developed and which in the course of time      normally deviate either in the direction of male or female. This may indicate that a trace of homosexuality, no matter     how weak it may be, exists in every human being. It is     present in the adolescent stage, where there is a      considerable amount of undifferentiated sexuality.'      Abrahamsen, Crime and the Human Mind 117 (1944).

Many homosexuals become involved in violations of laws; many do not. Kinsey reported:

'It is not possible to insist that any departure from the     sexual mores, or any participation in socially taboo      activities, always, or even usually, involves a neurosis or psychosis, for the case histories      abundantly demonstrate that most individuals who engage in      taboo activities make satisfactory social adjustments. There     are, in actuality, few adult males who are particularly      disturbed over their sexual histories. Psychiatrists,     clinical psychologists, and others who deal with cases of      maladjustment, sometimes come to feel that most people find      difficulty in adjusting their sexual lives; but a clinic is      no place to secure incidence figures. The incidence of     tuberculosis in a tuberculosis sanitarium is no measure of      the incidence of tuberculosis in the population as a whole;      and the incidence of disturbance over sexual activities,      among the persons who come to a clinic, is no measure of the      frequency of similar disturbances outside of clinics. The     impression that such 'sexual irregularities' as 'excessive'      masturbation, pre-marital intercourse, responsibility for a      pre-marital pregnancy, extra-marital intercourse,      mouth-genital contacts, homosexual activity, or animal      intercourse, always produce psychoses and abnormal      personalities is based upon the fact that the persons who go      to professional sources for advice are upset by these things.

'It is unwarranted to believe that particular types of sexual     behavior are always expressions of psychoses or neuroses. In     actuality, they are more often expressions of what is      biologically basic in mammalian and anthropoid behavior, and      of a deliberate disregard for social convention. Many of the     socially and intellectually most significant persons in our      histories, successful scientists, educators, physicians,      clergymen, business men, and persons of high position in      governmental affairs, have socially taboo items in their      sexual histories, and among them they have accepted nearly      the whole range of so-called sexual abnormalities. Among the socially most     successful and personally best adjusted persons who have      contributed to the present study, there are some whose rates      of outlet are as high as those in any case labelled      nymphomania or satyriasis in the literature, or recognized as      such in the clinic.' Kinsey, Sexual Behavior in the Human      Male 201-202 (1948).

It is common knowledge that in this century homosexuals have risen high in our own public service-both in Congress and in the Executive Branch-and have served with distinction. It is therefore not credible that Congress wanted to deport everyone and anyone who was a sexual deviate, no matter how blameless his social conduct had been nor how creative his work nor how valuable his contribution to society. I agree with Judge Moore, dissenting below, that the legislative history should not be read as imputing to Congress a purpose to classify under the heading 'psychopathic personality' every person who had ever had a homosexual experience:

'Professor Kinsey estimated that 'at least 37 per cent' of     the American male population has at least one homosexual      experience, defined in terms of physical contact to the point      of orgasm, between the beginning of adolescence and old age. Kinsey, Pomeroy & Martin, Sexual Behavior in the Human Male 623 (1948). Earlier estimates had ranged from one per centto 100 per      cent. Id., at 616-622. The sponsors of Britain's current     reform bill on homosexuality have indicated that one male in      25 is a homosexual in Britain. To label a group so large     'excludable aliens' would be tantamount to saying that      Sappho, Leonardo da Vinci, Michelangelo, Andre Gide, and      perhaps even Shakespeare, were they to come to life again,      would be deemed unfit to visit our shores. Indeed, so broad     a definition might well comprise more than a few members of      legislative bodies.' 2 Cir., 363 F.2d 488, 497-498.

The Public Health Service, from whom Congress borrowed the term 'psychopathic personality' (H.R.Rep. No. 1365, 82d Cong., 2d Sess., 46-47, U.S.Code Cong. & Admin. News 1952, p. 1653) admits that the term is 'vague and indefinite.' Id., at 46.

If we are to hold, as the Court apparently does, that any acts of homosexuality suffice to deport the alien, whether or not they are part of a fabric of antisocial behavior, then we face a serious question of due process. By that construction a person is judged by a standard that is almost incapable of definition. I have already quoted from clinical experts to show what a wide range the term 'psychopathic personality' has. Another expert classifies such a person under three headings:

Acting: (1) inability to withstand tedium, (2) lack of a sense of responsibility, (3) a tendency to 'blow up' under pressure, (4) maladjustment to law and order, and (5) recidivism.

Feeling: they tend to (1) be emotionally deficient, narcissistic, callous, inconsiderate, and unremorseful, generally projecting blame on others, (2) have hair-trigger emotions, exaggerated display of emotion, and be irritable and impulsive, (3) be amoral (socially and sexually) and (4) worry, but do nothing about it.

Thinking: they display (1) defective judgment, living for the present rather than for the fuur e, and (2) inability to profit from experience, i.e., they are able to realize the consequences intelligently, but not to evaluate them.

We held in Jordan v. DeGeorge, 341 U.S. 223, 71 S.Ct. 703, 95 L.Ed. 886, that the crime of a conspiracy to defraud the United States of taxes involved 'moral turpitude' and made the person subject to deportation. That, however, was a term that has 'deep roots in the law.' Id., at 227, 71 S.Ct. at 705. But the grab bag 'psychopathic personality'-has no 'deep roots' whatsoever. Caprice of judgment is almost certain under this broad definition. Anyone can be caught who is unpopular, who is off-beat, who is nonconformist.

Deportation is the equivalent to banishment or exile. Fong Haw Tan v. Phelan, 333 U.S. 6, 10, 68 S.Ct. 374, 376, 92 L.Ed. 433. Though technically not criminal, it practically may be. The penalty is so severe that we have extended to the resident alien the protection of due process. Wong Yang Sung v. McGrath, 339 U.S. 33, 70 S.Ct. 445, 94 L.Ed. 616. Even apart from deportation cases, we look with suspicion at those delegations of power so broad as to allow the administrative staff the power to formulate the fundamental policy. See Watkins v. United States, 354 U.S. 178, 203-205, 77 S.Ct. 1173, 1187-1188, 1 L.Ed.2d 1273; Kent v. Dulles, 357 U.S. 116, 78 S.Ct. 1113, 2 L.Ed.2d 1204. In the Watkins case we were protecting important First Amendment rights. In the Kent case we were protecting the right to travel, an important ingredient of a person's 'liberty' within the meaning of the Fifth Amendment. We deal here also with an aspect of 'liberty' and the requirements of due process. They demand that the standard be sufficiently clear as to forewarn those who may otherwise be entrapped and to provide full opportunity to conform. 'Psychopathic personality' is so broad and vague as to be hardly more than an epithet. The Court seeks to avoid this question by saying that the standard being applied relates only to what petitioner had done prior to his entry, not to his postentry conduct. But at least half of the questioning of this petitioner related to his postentry conduct.

Moreover, the issue of deportability under § 212(a) of the Immigration and Nationality Act of 1952 turns on whether petitioner is 'afflicted with psychopathic personality.' On this I think he is entitled to a hearing to satisfy both the statute and the requirement of due process.

'On psychiatric examination of Mr. Boutilier, there was no     indication of delusional trend or hallucinatory phenomena. He     is not psychotic. From his own account, he has a psychosexual     problem but is beginning treatment for this disorder. Diagnostically,     I would consider him as having a Character Neurosis, believe      that the prognosis in therapy is reasonably good and do not      think he represents any risk of decompensation into a      dependent psychotic reaction nor any potential for frank      criminal activity.'

Another submitted a long report ending as follows:

'The patient's present difficulties obviously weigh very     heavily upon him. He feels as if he has made his life in this     country and is deeply disturbed at the prospect of being cut      off from the life he has created for himself. He talks     frankly about himself. What emerged out of the interview was     not a picture of a psychopath but that of a dependent,      immature young man with a conscience, an awareness of the      feelings of others and a sense of personal honesty. His     sexual structure still appears fluid and immature so that he      moves from homosexual to heterosexual interests as well as      abstinence with almost equal facility. His homosexual     orientation seems secondary to a very constricted, dependent      personality pattern rather than occurring in the context of a      psychopathic personality. My own feeling is that his own need     to fit in and be accepted is so great that it far surpasse h      is need for sex in any form.

'I do not believe that Mr. Boutilier is a psychopath.'

In light of these statements, I cannot say that it has been determined that petitioner was 'afflicted' in the statutory sense either at the time of entry or at present. 'Afflicted' means possessed or dominated by. Occasional acts would not seem sufficient. 'Afflicted' means a way of life, an accustomed pattern of conduct. Whatever disagreement there is as to the meaning of 'psychopathic personality,' it has generally been understood to refer to a consistent, lifelong pattern of behavior conflicting with social norms without accompanying guilt. Cleckley, supra, at 29. Nothing of that character was shown to exist at the time of entry. The fact that he presently has a problem, as one psychiatrist said, does not mean that he is or was necessarily 'afflicted' with homosexuality. His conduct is, of course, evidence material to the issue. But the informed judgment of experts is needed to make the required finding. We cruelly mutilate the Act when we hold otherwise. For we make the word of the bureaucrat supreme, when it was the expertise of the doctors and psychiatrists on which Congress wanted the administrative action to be dependent.

The bill which was finally enacted, H.R. 5678, provided for exclusion of '(a) liens afflicted with psychopathic personality,' but did not provide for exclusion of aliens who are homosexuals or sex perverts, as had its predecessors. The House Report, H.R.Rep. No. 1365, which accompanied the bill incorporated the full report of the Public Health Service (H.R.Rep. No. 1365, 82d Cong., 2d Sess., at 46-48) and indicated that the 'recommendations contained in the * *  * report have been followed.' Id., at 48.

This legislative history indicates that the term 'afflicted with psychopathic personality' was used in a medical sense and was meant to refer to lifelong patterns of action that are pathologic and symptomatic of grave underlying neurosis or psychosis. Homosexuality and sex perversion, as a subclass, are limited to the same afflictions.