WASHINGTON RVB — WASHINGTON -- Out of the shadowy past of mental hospitals, when all-but-forgotten patients lived an almost brutish existence, comes a modern sequel that is slowly moving toward national prominence.
For 17 years, two law partners in a small Indiana firm have been trying to win millions of dollars in wages for mental patients who were in state hospitals there -- patients who were forced, allegedly under threat, to work for nothing at the most menial tasks done in those facilities.
The case has just reached the U.S. Supreme Court, posing a major test of whether the Constitution's ban on slavery and forced labor applies to the mentally ill, the retarded or to juvenile delinquents kept in state institutions.
Although the U.S. Labor Department, under orders from a federal judge, has been insisting for several years that patients in mental hospitals get paid at minimum wage rates, that reportedly has not ended the forced labor issue, according to lawyers involved with the issue.
Kenneth J. Chesebro, a Cambridge, Mass., lawyer now working on the Indiana case at the Supreme Court level, said, "The issue still persists to some degree with mental hospitals, and especially with the mentally retarded and juvenile delinquent. I don't believe the abusive processes have ended."
In Maryland, patients who work in state mental hospitals are paid the minimum wage, according to Tori Leonard, a spokeswoman for the state Department of Health and Mental Hygiene. They are not required to work.
The Indiana case, which earlier won a "national trial of the year award" for East Chicago, Ind., lawyer Terrance L. Smith and his partner, Anthony DeBonis Jr., got started in 1974 and was temporarily successful: $28 million in total damages awarded at one point.
But Indiana's Supreme Court took away all of the damages award last June and threw the case out of court. Its key constitutional ruling was that work by mental hospital patients is not a form of slavery under the 13th Amendment -- the amendment, ratified 126 years ago, against "involuntary servitude." It is, instead, a "civic duty," like jury service, or being drafted into the Army, the court concluded.
The state court also concluded that the patients were not entitled even to the minimum wage required by federal wage-and-hour law. It found a gap in Congress' authority to impose minimum wages on state agencies, and the Indiana patients' claims arose during that gap.
So, the patients, instead of splitting up $14 million in unpaid minimum wages -- $1.60 an hour for the 8,735,891 hours worked without pay -- and another $14 million in interest, are now due to get nothing, unless the Supreme Court takes the case and votes their way.
A private Washington-based group, Trial Lawyers for Public Justice, which gave Mr. Smith and Mr. DeBonis the "trial of the year award" for winning the case in the trial court, has been pressing the case for Supreme Court review.
It recruited one of the court's most successful advocates -- Harvard law professor Laurence H. Tribe -- to prepare the appeal to the justices and to argue it if the justices grant a hearing. Mr. Tribe is handling the appeal without a fee, as are his associates, Mr. Chesebro and two other Cambridge attorneys.
The case, though, was primarily the idea of Mr. Smith, the East Chicago lawyer. After a federal judge in Washington ruled in 1973 that the Labor Department was violating federal law by refusing to enforce minimum wage requirements on state mental hospitals, Mr. Smith filed the lawsuit on behalf of two Indiana patients, Leo Sonnenburg and Gerald Garnett.
Ultimately, the group Mr. Smith represented grew to 7,419 patients -- those who had worked in 10 Indiana hospitals during the period May 23, 1970, to Dec. 31, 1974.
According to Mr. Smith, Indiana's economy had more jobs in those years than there were workers to fill them, so state mental institutions began using their patients as full-time laborers. In the process, it saved millions in wage obligations.
Working 40-hour weeks, in jobs that the lawsuit insisted had nothing to do with their therapy, the patients scrubbed floors and toilets, bathed and fed bedridden patients, cut patients' hair in the barber and beauty shops, cooked meals, cut grass, repaired hospital vehicles and kept up a bowling alley at one hospital. Their work was not done under medical supervision, the suit complained.
At the trial of their claims, patient-witnesses said they worked under threat: delayed release from the institution, solitary confinement, even electric shock treatments.
One patient's record showed that she scrubbed floors while having her broken arm in a sling. A female patient who was infertile testified that she was used to escort patients throughout a hospital complex because she would not get pregnant if someone sexually assaulted her.
The Indiana Supreme Court conceded that the atmosphere in the hospitals was "coercive," leaving patients with the belief -- true or not -- that they "were not free to refuse work." The court quoted one female patient who said: "I was scared not to do it."
But the state court concluded that the patients "not only benefited from the fruits of their labor, but also from the very act of working." It also noted that, when patients did not work, the number of violent incidents rose in some hospitals.
But, that tribunal concluded, this was not forced labor of the kind that the 13th Amendment forbids. And, it added, even if it conceded that that amendment had been violated, the patients were not entitled to any damages for such a violation.
The patients' appeal arrived at the Supreme Court before Christmas. The justices are expected to act on it in February. If review is granted, a final decision is not likely until sometime in 1993.