Visionary Voices Interview
David Ferleger
January 17, 2013
Chapter One: Background and Early Career
07:59:19:13
Q. My name is Lisa Sonneborn. I’m interviewing David Ferleger at his offices in Jenkintown, Pennsylvania. Also present is our videographer, Oscar Molina and, David, do we have your permission to begin the interview?
A. Any time you like I’m here.
Q. Thanks. Okay. Uh, we’ll start with a simple question. When and where were you born?
A. Philadelphia, May 10, 1948.
Q. And can you tell me what interested you in the practice of law?
A. Sure. Uh, I started a five year medical program that Penn State and Jefferson Medical College had.
Uh, decided not to be a doctor and majored in sociology at the University of Pennsylvania and, uh, looking around to see what to do next I realized that, uh, the research I might do as a sociologist would end up being used by lawyers, uh, because if you look at a newspaper everyday a huge percentage of the, what goes on in the world has some connection to the law and it was in the middle of, uh, various civil rights movements happening in 1969 so I went to law school.
08:01:47:09
Q. What, um, made you interested in issues related to disability?
A. Uh, there’s two things, I think, prompted my interest. One is as the child of Holocaust survivors I am more sensitive, perhaps, to what happens when people are treated as less than people, as less than first class citizens and during law school I was fortunate to study what happens to people institutionalized and spent the last year of law school spending a lot of time, every day on a research project, uh, at the Haverford State Hospital, uh, which lead to my first Lawyer View article, my paper for that course and lead to my creating a mental patient’s civil liberties project, we called it, at that hospital after I graduated. But the other answer, the second answer maybe, uh, sort of more true, is that the, uh, I’ll call it the confluence of my background as a child of survivors and the civil rights movement and what I studied in school also fits with the fact, which I didn’t really realize until after I got involved in this area, that the Nazis used every method later used to murder the European Jewish population first on people with disabilities, whether it poison gas or other kinds of techniques.
08:03:32:23
Q. When you were done in law school you created one of the first or maybe the first institution based law firm. Um, I’m wondering if you could tell me a little bit about that.
A. Sure. Uh, I graduated from law school.And I’m fairly sure I didn’t go to my law school graduation since I’d already opened an office in Center City Philadelphia. I created, with two foundation grants, the Mental Patient’s Civil Liberties Project and, uh, for my small two room office barrowed a typewriter from an ex-mental patient and bought a door that I put up on two saw horses for my desk and obtained permission from the head of the Haverford State Hospital to open an office, uh, and created the first in-hospital program in the country for the rights of people with, uh, mental illness. And that, uh, program with those two foundation grants totaling $10 thousand for that first year is what I began my law career with.
08:04:50:05
Q. And what sort of institutional issues were you, were you seeing at Haverford, were you encountering and advocating on behalf of?
A. Of the, we who did this was me and I had about a dozen law students from various law schools who were working with me as advocates and Temple University School of Social Work provided me with, I guess one could say, two social work students interest-, interested in the organizing track so they worked with me to help organize the first in-hospital self-advocacy group, uh, so that, to determine the priorities of the legal work we were doing I had a group of people who were patients at the hospital to help, uh, me, me, to meet with me and to help decide what lawsuits we would file, file. And the, uh, so thinking about a term that probably was created later, uh, deviants in a juxtaposition which is a term that Wolf Wolfensberg-, Wolf Wolfensberger used. Uh, our office was placed not in a high profile, high status location but by the loading dock down the hall from the morgue. So, uh, the image of, sort of , trash and loading and death was just sort of juxtaposed with protection of peoples’ rights. So we had a great office until the hospital decided to kick us out.
Q. Was it unusual that they gave you permission to be there in the first place?
A. Well, it was unusual, this was the only time in the country this had been done and we worked on both individual cases, individual advocacy for patients and also on some class action litigation which we filed. Uh, at the time many of the subjects that are now, uh, covered by entire books, one could only write and I did write only a couple pages about them because there was no law in this field. The law that had been developed up until this point was nearly entirely about commitment rights, how you get into the hospital. There was almost nothing about what happens to your rights once you were in the hospital.
08:07:28:11
Q. And what did the patients, um, the residents rather, um, what did they outline as their priorities? You said you were working, um, with them as well as on behalf of them.
A. The lawsuits we filed, uh, first were one about the rights of children. The hospital had a unit for children and at that time in Pennsylvania, uh, parents, and around the country, parents could sign kids into mental hospitals with no, uh, protection at all for the child and by kids I mean people up to 18 years old. Uh, so that was the first case we filed to ask for some kind of due process or procedural protections for children in the mental health commitment process. Uh, there was no review by a judge or by any disinterested party in those kind of commitments and in that case the court appointed me Guardian Ad Litem of all, I forget, six or eight thousand children in all Pennsylvania mental hospitals for the purpose of this lawsuit. And the other case we filed, uh, it was heard by Clifford Scott Green, a Federal District Judge in Philadelphia, it was about forced labor in mental institutions, uh, called peonage, uh, I mentioned the judges name partly because he was a great judge and also because an issue that he decided was that peonage violated peoples’ rights under the 13th Amendment’s ban on slavery. And Judge Green was a black judge, uh, so this was and I think probably still is the only case that decided that the 13th Amendment slavery ban applies inside mental institutions. At the time we filled the case there were several thousand patients in hospitals who were working without pay and without any real value to them in Pennsylvania hospitals. The day the court order went into effect the number dropped to 600 because, uh, the law under the decision we received forbid labor unless it was paid, voluntary and therapeutic and the State realized they couldn’t meet that standard for thousands of people. So, for example, the elevator operator at Philadelphia State Hospital, uh, was a patient, unpaid, and that person could no longer be kept as an elevator operator unless those three conditions were met.
Chapter Two: Pennhurst Conditions and Litigation
08:11:05:02
Q. David, I wanted to ask you about the first time you visited Pennhurst and maybe some of the similarities or differences you saw between Haverford and Pennhurst.
A. Sure. I’ll be happy to talk about that. Uh. Well, at Haverford State Hospital I remember pretty vividly imagining that perhaps this could be a good institution. Haverford was perhaps the newest institution for people with mental health issues in the state, uh, mostly one story buildings, beautiful hills and paths and, uh, on large tall building with, with more security but I thought this could be a great place if they provided proper treatment. Since then, of course, the State has closed Haverford, uh, and reduced tremendously the use of mental health institutions. Pennhurst is a different story. Uh, Pennhurst, uh, the buildings were very old already, uh, back to the very early 1900s and the newest building was just as oppressive as the old buildings. Uh, but what, what I remember most is, uh, noise and people who live there, uh, sitting, mostly laying on floors, uh, a lot of the rocking, so called stereotypical behavior, which I’ll say something about in a moment and, uh, a very, a very sad lack of interaction between staff and clients. I mean, one didn’t get a sense that the staff were there to serve the clients and it sounds bizarre to say that, uh, but unlike, let’s say, a medical setting where nurses are there interacting with patients, coming in checking on patients, uh, the staff were more there as keepers rather than helpers. And it didn’t seem strange exactly because it’s just the way it was, uh, so a lot of noise and because bathrooms were setup with no stalls, no dividers between toilets, uh, often sort of excrement on toilets or on the floor, puddles all over the bathrooms so there was also a smell that accompanied visiting Pennhurst units. So we had noise, smell and people who were really being house rather than receiving treatment. The, the rocking back and forth sort of typifies life in that kind of institution. That kind of rocking back and forth, uh, one of our experts, Phil Ruse, uh, explained, maybe it was Gunner Dybwad, I think it was Phil Ruse, is what you see actually today in an airport where a flight is delayed and people start fidgeting with things, uh, rocking back and forth, you know, just moving back and forth because it gets so boring with no activity that your body needs to do something. So that’s one thing that you could see, something that was present that you couldn’t see, uh, is why it was that very few people were talking, a few people meaning the clients. And, uh, one reason is if you talk and nobody answers you pretty quickly stop talking. Linda Glenn, one of our experts and a friend, former Head of Retardation, the term at the time in Massachusetts, she pointed out to me in another institution that a client who was walking back and forth in a large crib cage, I’m gonna call it, that that client would soon stop walking because if she couldn’t get anywhere at some point she would just stop bothering to try. Uh, it was perhaps at Willowbrook or another place that it was pointed out that, uh, people in institutions who are young stop crying because the crying doesn’t get them anything, it doesn’t get them the attention that it normally would. So Pennhurst was, was a shock, I think, to anybody who visited for the first time.
08:17:19:01
Q. Did you think more money would help solve some of the issues that you saw at Pennhurst?
A. I didn’t think more money could solve the problems that one saw at Pennhurst. The Assistant Superintendent at the time had written a book called “Dehumanization and the Institutional Career”, I think was the title, uh, and the, the challenge of Pennhurst could not have been solved with simply more money. First, one would have to redo and recreate the entire place, uh, and they did that partly with the newest building, which I mentioned, the, uh, New Horizons building was the name but what they did was create a large structure in which people were equally ignored and equally not attended too.
08:18:12:16
Q. You had mentioned while you were at Haverford State Hospital you saw people, um, forced into labor, unpaid labor. Did you see anything similar at Pennhurst?
A. I don’t remember seeing it although the history of Pennhurst included, like all institutions in the state, that case I mentioned about slavery, peonage, covered every institution in Pennsylvania it wasn’t just Haverford State Hospital but Pennhurst’s history is that as a rural institution patients were used for labor. Uh, the farms for example raised the food for clients living at Pennhurst, historically.
08:18:56:16
Q. Apart from some of the other abuses and neglect that you noted we’ve often heard stories about medical testing, sterilization, etcetera, um, is that something that you also knew to be true at Pennhurst?
A. Uh, I hesitated because a particular case and I can’t remember if he was at Pennhurst or not and Celia Feinstein was involved in, in this, in this case so I’m not gonna try to mention the clients name but there was a client during the, I’ll call it Pennhurst era who had a, an unusual behavior, maybe to get attention, maybe it was a medical problem, I don’t know, of being able to extrude his rectum voluntarily, a very strange kind of behavior that could be medically dangerous and he was being experimented on with electric shock to try to stop this behavior. I’m sure Celia remembers a lot more of the detail than, then I do and I became involved in that case.
08:20:26:03
Q. In the early ‘70s the federal government, um, I guess under CRIPA (Civil Rights for Institutionalized Persons Act) was also investigating Pennhurst, um, can you tell me a little bit, if you know, um, what they found and what they did with those findings?
A. Well, I filed the lawsuit, uh, Halderman vs. Pennhurst, May 30th, I believe it was, 1974 and pretty soon after that the US Government intervened in the case to join the case, uh, and put their work and their talent and their, uh, their wisdom sort of next to ours and we litigated the case together. Soon after the US Government joined the case, uh, the Pennsylvania Association for Retarded Citizens, the old terminology, joined the case as well. Uh, the US Government did a tremendous amount work once they were involved in the case. They brought in a FBI agent to do photography, they paid for thousands of dollars of depositions of staff at the institution, they had, you know, some of their best lawyers involved and it was one of the most, one of the earliest cases that the Justice Department was involved in.
08:21:51:18
Q. Actually, I remember when we had spoken earlier you did mention the particular reaction the FBI photographer had to one of his visits to Pennhurst. I wonder if you could recount that for us.
A. Sure. Uh, I wish I could speak to it, it would be interesting to have a history of the reactions of many to their first visits to Pennhurst so I’ll tell you about two. Uh, the FBI agent assigned to come and photograph Pennhurst, uh, was a fairly young guy, carried a gun, had a camera and after his visit during which he said very little but took a lot of amazing photographs, he told me that he had a child with disabilities and that after seeing Pennhurst he knew he would never allow his child to be in any institution. The lawyer representing the State of Pennsylvania, uh, Norman Watkins, he visited Pennhurst, of course, as part of his trial preparation and, uh, he threw up from what he saw. Uh, and later in his final statement to the court at the end of the trial I believe he began by saying to Judge Broderick we are not here to defend Pennhurst, so I think he was very affected by what he saw.
08:23:56:11
08:24:11:25
Q. David, can you tell me about, um, Winnie and Terri Halderman? Who they were and, and how it is that Terri came to live at Pennhurst?
A. Uh, sure. Uh, at the time parents could place people into institutions without any real process and, uh, Winnie Halderman, like many parents, fairly typical, uh, could no longer take care of her daughter at home and had her admitted to Pennhurst. Now, uh, that process for many parents was very difficult and I know from the literature but from what I saw how and from testimony that we had at the trial that, for parents, it was often the most difficult day of their lives the way they described it. It was very heart breaking for people who’d worked so hard to care for a child with disabilities at home to put them in a place, sometimes far away, and it was true for Winnie Halderman and her daughter. Uh, her daughter’s experience, which is what Winnie Halderman came to me with, was awful at Pennhurst. Uh, how did I come to know them? This is a very important part of the story and although I wrote about it in an article (indiscernible) very sort of unknown and really significant, I think, in the whole development of this lawsuit and other lawsuits. Uh, Winnie Halderman called me one day on the phone and told me that she had a daughter at Pennhurst and wanted me to file a lawsuit against Pennhurst. Why, how did she come to call me? Uh, Robert [Spilavitz], the Assistant Superintendent at Pennhurst, she had first gone to him to say help, my daughter has broken bones, unexplained injuries, uh, is really, uh, in harm’s way, what shall I do. Can you help? And he told her call David Ferleger and sue me, uh, which she did. Uh, and a good piece of the initial paper filed in court, I can like visualize it as I talk to you, is a list that went on for several pages of all the injuries that Terri Lee Halderman had suffered, broken bones, bruises, uh, other sorts of injuries. One example is that she was found one morning, it was probably in the morning, bleeding from the mouth and the staff person at Pennhurst, uh, looked in her mouth without getting any medical or nurse consultation, decided something that the staff person saw was a tooth and started pulling on the supposed tooth but it was actually her bone in jaw that was being tugged on and that fitsthat, like uh, unawareness or lack of attention to the pain of the person in front of you fits with the fact that at Pennhurst the dentist did not use pain killing medicine for tooth extractions. Uh, and I’ve had, thankfully it’s a while ago but not so much a while ago, I’ve had an insurance adjuster tell me in the case involving someone with developmental disabilities that people don’t suffer as much as the rest of us if they’re disabled. I had a deposition this year involving the death of a man at a group home in Kentucky, the other lawyers asked one of the family members, a brother, did Roland feel pain, was he able to feel pain. This, Roland was a 21 year old guy with Autism who was not verbal and even today, 2012, 2013, there are people who doubt that people can feel pain when they have significant disabilities. Uh, so Terri Lee Halderman was in terrible shape and soon after Terri Lee Halderman’s mom came to me other parents came to me, a parent association leader, Allen (Indiscernible), came to me and several other people joined the case.