The sad end of ‘poor Joshua’

In his first years of life, Joshua DeShaney, of Neenah, Wis., kept getting returned to his abusive father by a Wisconsin county’s child protection system. Again and again, a social worker noted likely child abuse, and again and again the county returned the boy to his father, who had gained custody in a divorce settlement.

“I just knew the phone would ring some day and Joshua would be dead,” case worker Ann Kemmeter said.

Then, in 1984, his father took him to an Oshkosh hospital, insisting the boy had fallen down the stairs.

He hadn’t. He had been beaten into a coma, a crime for which the father served two years of incarceration. Joshua, on the other hand, suffered permanent brain damage.

His beatings afforded the U.S. Supreme Court the opportunity to provide protection to thousands of other kids who would be subject to the same outrage.

Instead, it punted.

Joshua’s mother sued the Winnebago County Social Services Department, claiming her son had a constitutional right to be protected by the social workers from the harm inflicted by her ex-husband.

Her case failed at every level until it hit the U.S. Supreme Court in February 1989. It failed there, too. The case is still cited in thousands of instances in the United States in which a government worker could intervene, but chooses not to.

“… nothing in the language of the Due Process Clause itself requires the State to protect the life, liberty, and property of its citizens against invasion by private actors,” Chief Justice William Rehnquist wrote in his opinion.

“If this case had gone the other way, in our lawsuit-happy world, any firefighter, police officer, ambulance driver or social worker might have been sued by a citizen who claimed the right of protection,” then national columnist Ellen Goodman noted.

The story of Joshua should raise awareness of what can happen when state standards are low and child-welfare budgets meager. But not every social problem is to be solved by lawsuits, nor does every solution lie in the Constitution.

Two justices — William Brennan, and St. Paul’s Harry Blackmun — dissented, joined by Thurgood Marshall. But it was Blackmun’s dissent which to this day remains one of the most famous dissents ever written, thanks primarily to two words contained in it: “Poor Joshua.”

“Compassion need not be exiled from the province of judging,” he said.

Like the antebellum judges who denied relief to fugitive slaves, see id. at 119-121, the Court today claims that its decision, however harsh, is compelled by existing legal doctrine. On the contrary, the question presented by this case [p213] is an open one, and our Fourteenth Amendment precedents may be read more broadly or narrowly depending upon how one chooses to read them.

Faced with the choice, I would adopt a “sympathetic” reading, one which comports with dictates of fundamental justice and recognizes that compassion need not be exiled from the province of judging. Cf. A. Stone, Law, Psychiatry, and Morality 262 (1984) (“We will make mistakes if we go forward, but doing nothing can be the worst mistake. What is required of us is moral ambition. Until our composite sketch becomes a true portrait of humanity, we must live with our uncertainty; we will grope, we will struggle, and our compassion may be our only guide and comfort”).

Poor Joshua! Victim of repeated attacks by an irresponsible, bullying, cowardly, and intemperate father, and abandoned by respondents, who placed him in a dangerous predicament and who knew or learned what was going on, and yet did essentially nothing except, as the Court revealingly observes, ante at 193, “dutifully recorded these incidents in [their] files.”

It is a sad commentary upon American life, and constitutional principles — so full of late of patriotic fervor and proud proclamations about “liberty and justice for all,” that this child, Joshua DeShaney, now is assigned to live out the remainder of his life profoundly retarded.

Joshua and his mother, as petitioners here, deserve — but now are denied by this Court — the opportunity to have the facts of their case considered in the light of the constitutional protection that 42 U.S.C. § 1983 is meant to provide.

Joshua was taken in by Richard and Ginger Braam of Muskego, Wis.

He was just 36 years old when he died on Monday. His funeral was held yesterday.

  • BReynolds33

    Sad story from beginning to end. The way our system fails, at every turn, to protect those who need it, whether out of laziness, ineptitude, or poorly written laws, is as astonishing as it is completely expected.

    Side question: Did he die from complications due to being beating all those years ago? If so, I’d say the prosecutor should make a case for murder and change the father.

  • crystals

    We are all responsible for protecting the vulnerable and marginalized. My potentially naive hope is that if we stand up and use our outside voices, maybe – just maybe – people in power will listen.

    Between this story and the Strib’s series this week on how our state systemically treats adults with disabilities, I’m ready to start yelling.

  • Rob

    If I wasn’t a misanthrope already, this story would certainly turn me into one.

  • John S

    Good legal reporting, Bob.