THE CONSTITUTIONAL RIGHTS OF PEOPLE WITH MENTAL DISABILITIES DEEMED TO BE DANGEROUS: AN EXTREMELY SUSPECT CLASSIFICATION
John Weston Parry, J.D.*
[I]ndividuals with [mental or physical] disabilities are a discrete and insular minority who have been faced with restrictions and limitations, subjected to a history of purposeful unequal treatment, and relegated to a position of political powerlessness in our society…based on stereotypical assumptions. (U.S. Congress 1990, 42 U.S.C. Sec. 12101(a)(7))
Why has it been so easy for Americans to take away the constitutional rights of people with mental disabilities? This question applies generally and in the context of President Obama’s over-inclusive recommendations on “stopping mentally ill gun buyers.” Few Americans are willing to listen to, much less consider, arguments against laws and policies that deprive people of mental disabilities of their fundamental rights. Americans ignore those arguments because they do not fit nicely into preconceived notions about how our laws and social policies should operate when people with mental disabilities are involved. Such considerations also tend to be complex and Americans do not like to deal with complexity. Complexity is for nerds.
For example, it seems obvious to most Americans that our society would benefit if we could at least take guns away from deranged people who are likely to use them to perpetrate violence. Since everyone “knows” people with mental disorders are likely to be deranged, taking away their guns appears to be a “slam dunk” victory for society. As the New York Times advocates, “why limit our gun laws to people who have been `committed to a mental institution’ in the past. This ignores whole categories of obviously risky citizens.” Unfortunately, this type of analysis, while it may be very popular, is also flawed. There are many reasons why having the government take away the Second Amendment rights of people with mental disabilities who are perceived to be “risky” is bad policy, beyond the fact that it constitutes invidious discrimination and will do little to actually curtail gun violence.
The overriding conceptual problem is that there is no reliable means for identifying which people with diagnosed mental disorders are likely to use a gun for violent purposes or unsafely. At best, such predictions are educated guesses that are wrong more often than they are right. At worst, they are biased impressions influenced by sanism and the false presumption that people with mental disorders are inherently dangerous. As recent studies have shown, risk assessments are only useful in excluding people as being dangerous. They have very little validity or reliability when they are used to identify individuals who have a high risk of acting violently.
Second, as the criticisms that have accompanied the publication of the revised version of the Diagnostic and Statistical Manual of Mental Disorders (DSM) have revealed, even trained mental health professionals seriously disagree about what is a mental disorder and how it should be diagnosed. There is a strong sentiment, even among psychiatrists, that the DSM’s categories have become way over-inclusive in identifying people as having conditions that should be conceptualized and identified as being mental disorders. In part—and arguably most of the time— this is due to the fact that pharmaceutical companies and certain mental health treatment providers have pushed hard for overbroad categories because it is profitable for them to do so. People who have diagnosed mental disorders become potential patients who must buy—or their parent or guardians must buy—medications or services in order to get better.
Significantly, when the DSM and other diagnostic methods are used to excuse criminal behaviors, Americans tend to believe that these diagnoses should be strictly limited because as the U.S. Supreme Court observed in 2006 they are “controversial… [and have] the potential… to mislead jurors.” Yet, if the same diagnoses are used against people with mental disabilities to deprive them of their rights there is very little scrutiny, even when the diagnostic categories are riddled with inconsistencies. A diagnosis is likely to be different depending not only on who makes the diagnosis, but on the presumed expert’s professional training. Studies have shown that psychiatrists, clinical psychologists, and clinical social workers can be expected to diagnose these conditions differently based on the degree that they have earned.
Moreover, other studies have shown that stigmatized groups in society—in particular African Americans and Hispanics—are more likely to be misdiagnosed as having mental disorders due to racial and ethnic biases. In American today no group is subject to more bias and discrimination than people with mental disabilities perceived to be dangerous. Thus, it would be more than reasonable to expect that diagnoses for them would be particularly biased, especially when dangerousness is involved.
Third, there are other categories of people in our society who engage in “risky” behaviors, which appear to predispose them to be considerably more violent than people with mental disabilities who have been shown only to be marginally more likely to be violent. This would include gang members, adults who stockpile weapons, and NFL and Division IA college football players, among others. The reason why we only view risky behaviors by people with mental disabilities as being problematic enough to take intrusive legal actions is due to “sanism,” which has been practiced in this country for centuries.
As a society we are used to invidiously discriminating against people with mental disabilities because it has become a part of the American character. Today, even though the public and mainstream media generally have become sensitive about not using words that offend or disparage based on race, ethnicity, gender or sexual preference, they display very little sensitivity about language that offends or disparages people with mental disabilities “Whacko,” “retard,” “going postal,” “weirdo” “schizo,” “mentally deficient,” “insane” “psycho,” “unbalanced” and other terms are commonly used, and frequently for no rational reason. Stigmatizing people with mental disabilities continues to be an accepted part of television dramas, comedies, and news—as well as movies, the Internet, and video games. In recent years, sanism has been expanded to incorporate the large cohort of soldiers who have received mental injuries or disorders in combat.
Before we impose further restrictions on the constitutional rights of people with mental disabilities, we should have a serious public discussion about whether these restrictions are reasonable. Given what we know about predictions of dangerousness, diagnoses of mental disorders, and our inherent social biases against people with mental disabilities, it appears likely that such restrictions are neither reasonable nor just. Why this is so is documented in Mental Disability, Violence and Future Dangerousness: The Myths Behind the Presumption of Guilt (Rowman & Littlefield, October 2013), and covered specifically in Chapter 7: “Deemed Dangerous Due to a Mental Disability: An Extremely Suspect Classification.” Brief copyrighted excerpts of that chapter without the references are reprinted below with permission of the publisher and author. Those passages are accompanied by reflections based on the book and other materials. Excerpts are in bold with italics.
The most egregious present day example of how our legal system treats a particular group … differently to their detriment is persons with mental disabilities, who are viewed as being dangerous. No doubt there are other groups in the United States, including African, Native and Japanese Americans, who historically have been systematically abused in horrible ways. The difference is that the worst of those abuses happened in the relatively distant past, while the most unconscionable mistreatment of persons with mental disabilities deemed to be dangerous have been occurring today… [W]hat is being done now … is…encouraged or ignored, rather than condemned and discontinued…. [T]here is a growing movement to involuntarily commit or otherwise coerce more persons with mental disorders… than ever before. In order to accomplish these public policy objectives, legislatures and courts often add layers of subjectivity, pretexual judgments, and due process mystifications … which…strongly skew and distort the results in favor of ….governments over…respondents and defendants who have mental disabilities. There is a web of convenient legal fictions and fabrications that have little or no rational basis.
For people with mental disabilities, who are being tried in our criminal and civil legal systems as being dangerous in order to deprive them of their fundamental rights, there is a unique and ironic meaning to the term “suspect classification,” which normally is used to protect historically devalued groups in our society. Instead of enhancing judicial scrutiny for persons with mental disabilities… our legal system has systematically reduced the applicable judicial protections… under the paternalistic guise of pretending to help them. The promise of a right to treatment, which is almost never fulfilled, has become a justification for incarceration and other rights deprivations.
In the past, the U.S. Supreme Court has had opportunities to include certain groups of people with mental disabilities under the constitutional umbrella of a suspect classification. Each time, the court has refused to make this designation. In part, this is because the categories before the Court were quite broad, rather than narrowly focused, and they included only people with mental retardation (now called intellectual disabilities). It also is due to the fact that many people with mental disabilities continue to be the subjects of great stigma and antipathy in our society, while those previously protected groups have become substantially more mainstream… at least by comparison. Sanism and fear have overwhelmed reason and empirical evidence that otherwise would free these individuals from such travesties of justice.
Nevertheless, circumstances have changed and are changing. Not only has mental retardation been given special constitutional consideration when it comes to the death penalty, soon the Supreme Court may include other mental disabilities for similar consideration. More importantly, there can be little doubt that [o]ur society has become even less tolerant and more apt to mistreat persons with mental disabilities perceived to be dangerous than ever before. It is the fear of the unknown…which has pushed us to undermine our most hallowed constitutional principles. We do this in order to preventively restrict and restrain… people with mental impairments, whom we fear the most.
Obviously, not everyone with a mental disability is subject to the same degree of invidious discrimination. There is a broad range of bias, abuse, and mistreatment that may be imposed. The group most in need of special constitutional protections, however, are [p]ersons diagnosed with mental disorders, conditions, or aberrations—or officially labeled as such—who are deemed by state or federal governments to be dangerous (or harmful)…. They are the victims of a long and unrelenting history of stigma, invidious discrimination, and mistreatment, which our legal system has carried out using various legal fictions and the imprimatur of the U.S. Supreme Court.
COURTROOM PREDICTIONS, OTHER LEGAL FICTIONS, AND INEQUITIES INVOLVING DANGEROUSNESS AND PERSONS WITH MENTAL DISABILITIES
By John Weston Parry, J.D.
[I]t is possible to identify the approximately 400,000 most problematic and 40,000 most dangerous individuals with severe psychiatric disorders . . . and provide [coerced] treatment for the most problematic and dangerous individuals. (E. Fuller Torrey, M.D.)
The difference between past and future . . . [is that the] past has taken place and is knowable . . . , whereas the future is up for grabs and is inscrutable, as if it were out of view. (Stephen Pinker, psychologist and linguist)
[P]redictions offered with great certainty and voluminous justification prove, when evaluated later, to [be] . . . the equivalent of monkeys tossing darts.
(paraphrasing Nate Silver)
In order to justify involuntary commitments, other types of forced detentions, and rights deprivations imposed exclusively on persons with mental disabilities deemed to be dangerous, the legal system has obscured and distorted social science and other empirical evidence. Otherwise a vast majority of these dangerousness determinations would have to be invalidated because they are unable to meet reasonable standards of proof. As law professor Peter Smith has observed, this type of courtroom illusion is accomplished by using legal fictions that are based on “judicial ignorance . . . [and] false factual suppositions in the service of other goals.” A prominent example of such a harmful legal fiction is allowing mental health professionals to make predictions of dangerousness based on the belief that those expert opinions will be adequately vetted in an adversarial setting.
There is overwhelming social science evidence which indicates that even in clinically-controlled environments using the best risk assessment methods currently available, properly trained mental health professionals—who are following sound empirical protocols and upholding the highest degree of ethics in their respective professions—are unable to consistently and reliably make accurate predictions about future dangerousness. Yet, in courtrooms throughout the United States—in both criminal and civil advocacy-oriented proceedings—this dangerousness evidence is accepted with minimal scrutiny, but considerable distortions.
The reason why we employ this legal fiction is Barefoot v. Estelle, a death penalty case in which the U.S. Supreme Court held that even though expert dangerousness evidence was shown to be inaccurate most of the time, it was admissible. A majority of the justices presumed, without any empirical evidence and little or no scholarly support, judges and juries would ensure that such evidence would be weighed properly in making these critical life and death decisions. Unfortunately, the opposite is true: pervasive social biases against people with mental disabilities and inadequacies in the advocacy system itself make these courtroom determinations about dangerousness substantially less reliable. Nevertheless, the Court’s spurious rationale has justified using these flawed dangerousness predictions in other courtroom settings as well.
Today, dangerousness determinations are the centerpiece of many types of proceedings, which include civil and quasi-civil inpatient and outpatient involuntary commitments; post-imprisonment commitments; conditional releases; sentencing determinations including the death penalty; pretrial detention; and decisions whether to try juveniles and other children as adults. The expansion of dangerousness proceedings has created a sprawling matrix of legal standards and procedures in every state and federal jurisdiction. Almost all of the relevant statutes and legal decisions utilize vague and often ambiguous terms to define dangerousness. Few if any of these definitions have been verified empirically.
Another problem is that courts tend to ignore or minimize the importance of a key component of these dangerousness determinations: whether the subject of these proceedings has a recognized mental disorder. Instead, this critical determination has been transformed into a question of whether a qualified mental health professional made the key diagnosis based on the most current version of the Diagnostic and Statistical Manual of Mental Disorders (DSM). If the expert is properly qualified and has relied upon the correct version of the DSM, that diagnosis is given very little scrutiny in our courtrooms when it is used in a dangerousness determination. In a legal system in which experts tend to agree with the position of those who are paying them at a rate that cannot be explained by anything other than confirmation bias, this lack of judicial scrutiny becomes particularly pernicious and irresponsible.
How psychiatric and psychological evidence and testimony are applied in the courtroom also reveals a clear double-standard. If such a diagnosis is going to be used to excuse or reduce criminal culpability, courts tend to deem it inadmissible or scrutinize it very carefully, often trying to manufacture reasons to exclude such evidence. On the other hand, if a diagnosis is being used to support or refute a dangerousness opinion, judicial scrutiny is almost nonexistent. In some circumstances dangerousness is established without any psychiatric or psychological diagnosis based on the subjective impressions of a judge or jury. Sanism and the related bias that people with mental disabilities are inherently dangerous strongly skew those outcomes towards a finding of dangerousness.
Moreover, no matter how these dangerousness determinations are made, when persons with mental disabilities are processed in the criminal justice system, they are likely to be incarcerated and otherwise deprived of their fundamental rights for longer periods of time than other criminal defendants charged with the same offenses. Reduced sentences based on a defendant’s diminished culpability have become increasingly less likely, so that today it should be considered a relatively rare event. People with mental disabilities also are deprived of their freedom and other fundamental constitutional rights in our civil justice system based on flawed predictions of dangerousness and the lack of proper care, treatment, and other essential services in their communities.
How legal fictions and other inequities operate in dangerousness determinations and why these judicial proceedings are unfair, unreliable, and anti-therapeutic is explained in Mental Disability, Violence and Future Dangerousness: The Myths Behind the Presumption of Guilt (Rowman & Littlefield, October 2013), Chapter 4 Predictions of Dangerousness in the Courtroom: Unreliable, Inaccurate and Misleading; and Chapter 5 Accusations Based on the Unknowable: Predictions of Dangerousness in Civil and Criminal Proceedings. Brief copyrighted excerpts without the references are reprinted below with permission of the publisher and author, along with reflections based on the book and other materials. Excerpts are in bold with italics.
Risk Assessment, Predictions of Dangerousness and Their Legal Consequences
[T]here have been significant advances in … risk assessment tools to predict dangerousness …. Unfortunately, being significantly better than in the past… is not nearly equivalent to being reliable, relevant, or accurate enough to reasonably satisfy required legal standards of proof…. A host of factors conspire to make dangerousness proceedings virtually worthless—and often very harmful—as methods for determining which people who have mental disabilities should be denied their fundamental rights because they might pose a risk to society. This is true whether or not these judicial determinations rely on predictions by forensic experts or the subjective impressions of judges and juries without such expert assistance.
Predictions of dangerousness, no matter how they are arrived at, are compromised by a slew of variables and intervening factors that make them particularly unreliable when they are used in judicial determinations. Furthermore, what happens to most people with mental disabilities when—as a result of these inherently flawed proceedings—they are indefinitely incarcerated or otherwise placed in indefinite government custody is unconscionable. Mistreatment and inhumane care are the hallmarks of the special consideration that these vulnerable individuals receive before, during, and after indeterminate periods of government custody and supervision—that may last a lifetime or even result in the death penalty—are ordered.
Making matters worse, the number of these flawed dangerousness proceedings are increasing due to two factors. First, there are many more potential respondents and defendants who are—and will be—diagnosed with mental disorders, conditions, or aberrations, in large part due to the alarming percentage of soldiers returning from combat with these conditions. In addition, our mental health system is being diminished by budget cuts. Second, dangerousness predictions are used in many more criminal, quasi-civil, and civil proceedings than in the past. Dangerousness has become the determining factor in civil and quasi-civil involuntary commitment proceedings; the death penalty and other sentencing dispositions; conditional release and outpatient commitment dispositions; pretrial detentions decisions; and most determinations as to whether a child should be tried as an adult.
Making matters even more challenging, complex, and complicated, dangerousness is defined differently depending on the legal circumstance involved and the jurisdiction. This has created a vast assortment of legal standards and procedures which boggle the mind. Virtually all of these standards and procedures tend to be somewhat vague, tautological, over-inclusive, and ambiguous. Thus, what dangerousness even means or is supposed to mean is almost impossible to nail down in order to test and evaluate whether it is being applied in a reasonable manner consistent with basic notions of relevance, accuracy, reliability, and validity. Further obscuring the relevance, accuracy, reliability, and validity of dangerousness determinations are fundamental problems with how mental disorders, conditions, or aberrations are diagnosed, as well as the advocacy system itself.
Yet, even when professional infighting and politics, adversarial tactics, and courtroom theatrics do not undermine the predictive reliability of the ultimate dangerousness determinations, the fact remains that even in clinical situations such predictions have only proven useful to show that individuals with mental disabilities do not present a high risk of acting violently. In other words, these predictions should only be used to rebut accusations of dangerousness. There is no reasonable predictive validity when dangerousness is utilized to establish a high risk of acting violently, even based on highly structured risk assessment methodologies. Moreover, the reliability and predictive validity, as low as it already is with regard to dangerousness, plummets when highly structured risk assessment methodologies are replaced by the types of subjective clinical or lay judgments that are typically used in dangerousness proceedings. Reliability and validity plummet again when these subjective dangerousness judgments and opinions are compromised by the hired gun syndrome, sanism, and the highly misleading presumption that people with mental disabilities are inherently dangerous.
Even in the best of circumstances, a dangerousness determination’s reliability is undermined by the number of variables…as well as the inadequacies of the information being utilized….[B]ehavioral experts…are basing their assessments…on second-, third-, and fourth-hand reports…some or many of which may be inaccurate, distorted, self-serving, or simply false. Statistically, it is very hard to believe that any dangerousness predictions can reliably meet even a preponderance of the evidence, much less clear and convincing standards of proof.
Also, most of these predictions have at least two critical elements, each of which must be taken into consideration in order to properly evaluate a determination’s predictive validity. First, there is the diagnosis of the existence of a mental disorder or condition; second that diagnosis must be properly linked to a separate risk of dangerousness. Statistically, the probability of each of these factors being accurate must be multiplied in order to establish the overall probability of the prediction being correct. If the diagnosis of a mental disorder is likely to be accurate 60% of the time, for example, and the risk of dangerousness is likely to be accurate 40% of the time, the overall likelihood of the prediction being correct is only about 24%. Unfortunately, even that low percentage appears to be enough for most judges to order an involuntary commitment, at least based on a social science survey of judges who make such decisions.
In many cases, however, there are three or more critical elements to be considered, each of which must be calculated in order to arrive at a statistically reliable result. Not surprisingly, there has never been a significant empirical study which has concluded that mental health professionals are able to consistently make risk assessments that are accurate more than half the time. Thus, the classic 1974 law review article, which analogized predictions of dangerousness to “flipping coins in the courtroom,” was understating the deficiencies, even given today’s modest advances in risk assessments. Furthermore, increasing ethical problems in both the legal and psychiatric professions have made such predictions even less reliable than in the past. The hired gun syndrome is one of the most serious ethical dilemmas that continue to grow worse, but there are others as well.
Diagnoses of Mental Disorders
Although diagnoses of mental disorders typically receive very little scrutiny in dangerousness proceedings, there are many reasons to independently question their reliability and accuracy. In these dangerousness cases, the judicial system treats the Diagnostic and Statistical Manual of Mental Disorders (DSM) as being virtually infallible by accepting such a diagnosis if it is made by a qualified expert. Yet, mental health professionals themselves have many questions about DSM’s overall reliability and its reliability with regard to specific disorders. The old DSM clearly needed to be revised, but the new version (DSM-V) was and continues to be under fire from many quarters in the psychiatric community, as well as from other mental health professionals.
One common criticism is the overly inclusive diagnostic categories that tend to create too many false positives by expanding the types of behaviors that are labeled as disorders. Another criticism is the lack of validation using field testing, particularly for these new categories and changes to the old categories. “[T]here is a `high rate of inconsistency’ … which `often yield false positives…[Also,] social prejudices…negatively affect how …assessments… are made. [N]o group … is more devalued than people with mental disorders, conditions, and aberrations who are deemed to be dangerous… [U]ncritical reliance on DSM-based diagnoses is an unjustifiable…flaw in our legal system. In addition, merely because mental health professionals are qualified does not mean that their diagnoses were rendered in a competent or ethical manner, especially if that expert is hired with the expectation that she or he will reach a particular conclusion.
Predictions of Dangerousness
Even if the diagnosis of a mental disorder is statistically reliable, there are many other reasons why assessments of future dangerousness have been seriously flawed. [A]n imprecise range of possible behaviors… are being assessed… in advocacy-oriented, courtroom proceedings…. Experts are unable to make such predictions with a degree of certainty that should be required in the legal system…no matter what assessment tools they use… The best—or more accurately the least disappointing—results have occurred when clinicians dispense with their subjective judgments and instead rely on structured risk assessment tools. The more highly structured the tool, the less disappointing the results. In making dangerousness assessments, however, there is always going to be unstructured, subjective information that the clinician has gathered…, which is used in the prediction. Also, social scientists and clinicians do not know “which form of structured violence risk assessment has the greatest predictive validity.” In any case, “relatively few practicing professionals employ any form of structured risk assessment,” meaning that most assessments are subjectively-based.
Another statistical anomaly with dangerousness that is nearly impossible to overcome without the use of various legal fictions is what is known as the base-rate problem of predicting statistically rare events …. Actual violence occurs relatively rarely in our society, although images of violence and threats of violence are commonplace. As a result, even if specific individuals are much more likely to be violent than most other people, this does not mean that they are dangerous in the sense of being more likely than not to commit a violent act in the immediate future. If the base-rate for actual violence is 5% in our society, being five times as likely to commit a violent act means that there is only a 25% chance that it will happen. According to the empirical data, however, in America there is no group of people with mental disabilities… that presents even a 10 percent [risk of violence].
Our legal system is supposed to be built on the principle that a person should not be considered dangerous enough to be deprived of their fundamental rights unless the government can provide clear and convincing evidence that the person is currently dangerous. Instead, through various legal fictions, we allow individuals to be deemed dangerous, if the trier-of-fact believes that they are likely to be dangerous where “likely” does not have to be, and rarely is, more likely than not. Moreover, the accuracy of any… risk assessment assumes that the evaluator has all the necessary information…, has enough time to make a proper assessment, has competently considered all the relevant factors, has made no significant errors, and has honestly and objectively reported the results. In an adversarial courtroom environment, each of these assumptions is questionable…. `[T]here is a sharp difference between risk assessments and legal decision-making.”
Heresy Trial in 1530 Using “Modern” Rules of Evidence: An Allegory
Suppose a trial for heresy was held before a judge in a courtroom in 1530 using a version of the “modern” American rules of evidence that are applied in cases involving psychiatric and psychological testimony. It might go something like this.
Prosecutor: “Did you or did you not, Mr. Copernicus, state that the earth revolves around the sun?”
Copernicus: “I did your honor, but I can prove my assertion if you allow me to present my book on that subject entitled De Revolutionibus.”
Prosecutor: “Objection, your honor. All mention of Mr. Copernicus’ book or its contents should be stricken from the record because his theories have not been generally accepted by our astronomy or religious communities.”
Judge: “That is absolutely correct, Mr. Prosecutor. The defendant may not rely on his theory in any manner. Do you have any other witnesses, Mr. Prosecutor?”
Prosecutor: “I do your honor. I would like to call on Hank Ptolemy, an astronomer and the direct descent of Claudius, who will testify that most astronomers in our country believe that the sky is a closed envelop with the earth as its center, which obviously precludes any possibility that Copernicus’ dangerous theory is correct.”
Defense Lawyer: “Objection your honor. As my client can clearly demonstrate based on his book, Ptolemy’s view of the world is outdated, unscientific garbage inspired and enforced by the Catholic Church.”
Prosecutor: Your honor, how long must we endure this nonsense from the defense. My legal argument is ironclad. The law is clear that in order to be admissible scientific evidence must be generally accepted in the scientific community. This means Copernicus’ evidence should be deemed inadmissible because it is novel; and the state’s evidence by definition must be relevant and reliable. Let’s not waste anymore time. I move that we skip to sentencing, so we can send this slime to the gallows. The sun is growing dim and soon it will be dark for the night. We all need to go pray so we can better protect ourselves from these heretics.”
Judge: I agree, Mr. Prosecutor. There can be no defeating your tight logic. The legal proof is unassailable that the defendant is obviously guilty. I am ready to deliver my opinion from the bench.
The religious community generally accepts the proposition that the sun revolves around the earth. Legally, it is heresy to challenge our religion. Mr. Copernicus admits to challenging the religious community based on his highly dangerous theory that the earth revolves around the sun. There can be no reasonable doubt that Mr. Copernicus is guilty of heresy.
Mr. Copernicus, because you have committed heresy involving one of our most fundamental teachings, I sentence you to death and order all copies of your book to be burned.
Legal fictions may seem necessary for our judicial system to function, but inevitably they distort the search for truth. Thus, such fictions should be used judiciously, if at all, and, periodically, they should be reevaluated to determine whether they are doing more harm than good. Nowhere is such scrutiny more needed than with predictions of dangerousness.
SANISM, STIGMA, AND WORDS THAT ARE USED TO JUSTIFY ABUSES
IN THE AMERICAN LEGAL SYSTEM
John Weston Parry, J.D.
There was a time when judges routinely deployed legal fictions . . . in order to temper
the disruptive effect of changes in legal doctrine. . . . [Mostly] they have been replaced
by new legal fictions . . . [based on] judicial ignorance . . . [and] false suppositions in the
service of other goals.
(Peter J. Smith, “New Legal Fictions,” Georgetown L. J. 95 (June 2007): 1435)
What propels government-initiated invidious discrimination against persons with mental disabilities in the United States involves an exaggerated fear of violence heightened by sanism and stigma. Stigma is the more familiar term that applies to words and actions taken against any group, which demeans and devalues the social status of its members, making them particularly vulnerable to prejudice and discrimination. In American law, stigma has broad constitutional consequences when it is applied to persons with mental disabilities.
The U.S. Supreme Court has ruled on several occasions--Addington v. Texas and Vitek v. Jones, in particular--that the presence of stigma can provide an adequate rationale for finding that a person with a mental disability has been deprived of a protected constitutional right. In this context, stigma may be viewed as being the result of sanism, which is a term analogous to racism. Sanism negatively affects individuals with mental disabilities by undermining their legal status and making them the subjects of invidious discrimination.
Sanism and the stigma it produces negatively affect our laws by justifying this type of invidious discrimination. What Steven Pinker describes in The Stuff of Thought (Viking 2007) provides a conceptual roadmap for understanding how this deep prejudice operates generally and within our legal system more specifically. A key factor is the emotional force underlying the words and language that we use to stigmatize people with mental disabilities and how we treat them differently as a result. Three legal terms have played a preeminent role in facilitating these types of inequities. Each is discussed in Mental Disability, Violence, and Future Dangerousness: Myths Behind the Presumption of Guilt (Rowman & Littlefield October 2013), Chapter 3, “Sanist Words and Language in the American Legal System: “Dangerousness,” “The Right to Treatment” and “Civil” Versus “Criminal.” Brief copyrighted excerpts without references are reprinted below with permission of the publisher and author, along with reflections based on the book and other materials. Excerpts are in bold with italics.
Words and Language Can Produce Sanist Legal Realities
As Professor Pinker has observed, words and language have such powers … that they can [even] “severely skew how scientists look at the world, time, space, and causality.” With our powers of expression we “don’t just entertain ideas but steep them with emotion….” When prejudice is involved such emotion can be particularly intense with highly destructive social and legal consequences for the recipients. The history of persons with serious mental disabilities in America is a testament to the power and destructive force of words and language and how our perceptions and beliefs can alter reality.
In addition to words and language, there are various perceptual mechanisms that further distort and intensify the stigma that attaches to persons with mental disabilities creating widespread sanism. Recollected memories, cognitive dissonance, and pet theories all operate to convince us that our false beliefs closely correspond to reality…. Unfortunately, all of these factors come into play in our legal system, resulting in invidious discrimination, mistreatment, abuse, and neglect of persons with mental disabilities, especially those who are deemed to be dangerous. Juries, judges, and dangerousness experts are given wide latitude within the legal system to express their subjective opinions cloaked as legal fictions that are accepted as being legal realities, as long as those fictions adhere to the flexible rules of the courtroom as interpreted by the presiding judge. Logic, empirical evidence, statistics, and science have very little sway in a legal system built on pet theories about how the world should work to confirm our judicial beliefs. Furthermore, most individuals, except if they are wealthy, are at a great disadvantage when they must defend themselves against federal or state governments. The poor, including most people with serious mental disabilities, tend to fare worst of all in our justice system.
The power of words and language extends well beyond the law, but the legal system can and does enhance and magnify the impact. Historically, we have seen the effects when our collective ignorance and prejudice has contributed to…indiscriminate use of lobotomies, sterilizations, inhumane incarcerations, and other… deprivations … perpetrated against persons with mental disabilities. Such tyrannies can and have occurred in otherwise democratic societies in which those who exert the most influence over the legal and political systems compel and enforce popular beliefs…. At the core of such influence are judges and lawyers….[who] can—and often do—skew legal determinations involving people with mental disabilities…. In the United States, sanism and fears of violence have created highly exaggerated concerns about community safety, which have produced many draconian laws targeting people with mental impairments.
Metonyms Versus Hypernyms
One of the obvious uses of words and language to generate negative emotional responses are “metonyms,” which describe common physical characteristics shared by members of a devalued group in ways that are intended to demean, trivialize, or demonize. This is distinguished from hypernyms, which are intended to elevate the status of devalued individuals or groups of individuals. Persons with disabilities, particularly those with mental disabilities, have been victimized by metonyms throughout our history. The entire notion of referring to individuals with disabilities using “with disability” language—such as a person with an intellectual disability or a person with cerebral palsy—is intended to emphasize that we are all people first, who share many common traits, even though some people may have serious impairments. Stated in another way, people with disabilities should not be defined by their disabilities, but rather by their common humanity.
Unfortunately, in our society we continue to use metonyms and other derogatory words and language to describe persons with disabilities, particularly those with mental disorders, conditions, or impairments. Moreover, whereas similarly demeaning labels are no longer acceptable in public when referring to other devalued groups of people in our society, derogatory, demeaning, and frightening terms continue to be used when referring to persons with mental disabilities: “retard,” “mentally deficient,”…“crazy”…“psycho,” “sexual predator,” “whacko vet,” “going postal,” and “crazed killer.” The use of such labels tends to isolate and dehumanize these individuals…, which allows our society to more easily violate their fundamental rights with impunity.
Judicial Beliefs Regarding Dangerousness
[W]hen people have a pet theory of how things work . . . , they will swear that they can see … correlations… even when the numbers show that the correlations don’t exist and never did.” This fallacy in logic is further distorted by cognitive dissonance, which pushes people to embrace a pet theory more fervently when it is attacked, criticized, or even largely or completely disproved…. This dissonance has occurred with regard to predictions and impressions of dangerousness when they are applied in the legal system. Instead of strictly limiting their courtroom admissibility because such predictions have been shown to lack reliability, validity, and accuracy, the legal system has created various legal fictions to help ensure that the scientific and empirical shortcomings of dangerousness predictions are never seriously reviewed. These legal fictions are applied in many different civil and criminal dangerousness proceedings that we now rely upon to punish, control, and intrusively manage individuals with mental disabilities. In fact, the more evidence which accumulates demonstrating that these dangerousness predictions and impressions typically are invalid and unreliable, the more legal means we have devised to expand their reach….
The most prominent of these fictions is that our advocacy system will improve the reliability and accuracy of such predictions by weeding out the good forecasts from the bad ones, even though it has been demonstrated that even in controlled clinical situations the experts who make them are wrong far more often than they are right. Unfortunately, a contentious advocacy system tends to make expert predictions of dangerousness even worse. Moreover, when experts are not involved in dangerousness proceedings, the resulting determinations become nothing more than subjective impressions of judges and juries, which typically are distorted by sanism, especially the tautological belief that people with mental disabilities are inherently dangerous.
The Andrea Yates case illustrates the fundamental intellectual weakness in relying on expert opinions or beliefs that cannot be verified. In that case, the key psychiatric expert for the government manufactured evidence based on what he falsely remembered about a television show… for which he was a consultant….In reality, though, there is not that much practical difference between preparing a diagnosis from one’s false memories… and preparing it based on predictions about the unknowable future. One important difference, however, is that false memories can be challenged by the truth-- in this situation that the television show that he referenced never existed--while typically expert opinions about future dangerousness can only be challenged by other opinions, all of which are colored by the reality that most people, including juries and judges, already believe persons with mental disabilities are dangerous.
In many areas of the law, there exist logical non-sequiturs, which--to a large extent-- are hidden amidst the rubric of being socially convenient legal fictions, rather than just being labeled as patently absurd. Some of the most egregious involve dubious applications of psychiatry and psychology. One of the most jarring legal fictions involves a syllogism that is applied to whether juveniles and other children—who have been shown to be cognitively and developmentally immature when compared to adults—should be tried as adults. The legal fiction goes like this:
Only adult-like people can commit adult crimes.
Children who commit such crimes must be adult-like people.
Therefore, it is reasonable and moral to try and punish children as adults should they commit adult crimes.
The U.S. Supreme Court used a similarly egregious breach in logic in Barefoot v. Estelle. A majority reached the conclusion that even though the empirical evidence demonstrated that experts were wrong most of the time in their predictions of dangerousness, such expert predictions should be admissible in death penalty cases because inevitably the triers-of-fact and the advocacy system itself would correct the mistakes. Tragically, that obviously deficient and flawed rationale has been used to justify and expand the use of predictions of dangerousness in many different types of criminal and civil proceedings in which the fundamental rights of persons with mental disabilities are at stake. If viewed fairly, based on what actually happens in these proceedings, one would have to conclude that typically the advocacy system where “hired guns” are used as experts makes these dangerousness determinations even less reliable.
The False Promise of a Right to Treatment
One of the more basic of human rights is the right to treatment. It is particularly important for those who have permanent or chronic mental disorders or conditions. Unfortunately, even for Americans with serious mental disabilities, this right has been illusory and its denial used as a legal justification for mistreatment of those who are deemed to be dangerous.
In American law, [t]he right—or more accurately the entitlement—to treatment … has always been a contorted legal concept. Its implementation is reminiscent of the Peanuts cartoon when each year Lucy offers to hold the football for Charlie Brown and just before he is about to kickoff, pulls the ball back. Like dangerousness, treatment is a term of art surrounded by legal fictions intended to ensure that persons with mental disabilities, who are deemed to be dangerous, remain under the strict control of state or federal governments. The objective rarely has been to improve the health of respondents and defendants, or even to provide them with humane care.
When the right to treatment in mental disability law was first recognized as a possible constitutional requirement in 1960, plain English was eschewed for a legal fiction. It was never meant to be an entitlement to humane care or to services that would allow the individuals involved to become more productive human beings. Treatment would only be constitutionally required for those who were involuntarily committed in order to allow them the opportunity to be released. In addition, any such treatment only had to be minimally adequate to remedy the condition for which the individual was confined.
Even this watered down notion of a right to treatment for involuntary mental patients went way too far for most courts and legislatures. In 1975, as a result of the U.S. Supreme Court’s ruling in O’Connor v. Donaldson, the construct was diluted… even further…into an entitlement to something more than humane custodial care. Moreover, this ambiguous constitutional notion only applied to those who were vaguely deemed nondangerous.
As time passed, courts continued to chip away at the right or entitlement to treatment and also completely reversed its thrust, so that today it can be used as a prime justification for depriving individuals with mental disabilities of their fundamental rights in dangerousness proceedings. However, once those proceedings conclude, the inmates, detainees, or respondents are left with few if any legal remedies that will allow them to enforce the implicit, or even an explicit, promise of humane care and treatment. In large part, this is due to a related legal fiction, the arbitrary distinction that is made between civil and criminal proceedings as applied to persons with mental disabilities who are deemed to be dangerous.
Under a judicial sleight of hand, dangerousness proceedings involving deprivations of fundamental rights, including a possible lifetime of incarceration and other intrusive restrictions, are viewed as being civil proceedings which require certain heightened civil due process protections, rather than to criminal prosecutions with full substantive and procedural due process protections. Making matter worse, persons with mental disabilities who are in government custody tend to have very limited or no access at all to legal representation in order to properly contest deprivations of adequate care and treatment and other rights. Moreover, what remedies there are for the relatively few inmates or respondents with sufficient legal representation have been narrowed over time to make it unlikely that even those with a legitimate complaint will be able to prevail more than just rarely.
Courts have interpreted the right to treatment, dangerousness, and civil versus criminal with words and language that tend to deprive persons with mental disabilities of their fundamental rights. Not surprisingly, lawmakers also have made it extremely difficult for those who are deprived to properly redress their grievances. Ultimately, the power of sanism to negatively influence and even corrupt our laws and judicial decision-making has resulted in a legal system in which invidious discrimination against persons with mental disabilities has become a commonplace occurrence. Yet, the presence of such discrimination remains largely invisible—and thus largely unchallenged—due to cognitive dissonance, false memories, legal fictions, and other perceptual distortions, which created the impression that these travesties of justice are justified.
EXAGGERATED FEAR OF VIOLENCE, SANISM, AND THE SCAPEGOATING OF PERSONS WITH MENTAL DISABILITIES
John Weston Parry, J.D.
The discrimination and stigma associated with mental illnesses largely stem from the
[greatly exaggerated] link between mental illness and violence in the minds of the general
public. (United States Government—SAMHSA)
Violence and our exaggerated fears about violence have badly distorted our perceptions about persons with serious mental disabilities, who are targeted for incarceration and other coercive interventions by legislatures, law enforcement, and the judiciary. Carrying out these coercive interventions has meant bending and breaking the strict rules that are supposed to govern police procedures and due process. A whole host of legal fictions have arisen to excuse these breaches of constitutional and other legal guarantees that normally extend to everyone else, but are diluted or removed for members of this highly stigmatized group. People with mental disabilities not only can be ensnared by discriminatory laws, but also become the subjects of incarceration and other harsh governmental interventions based on predictions or impressions about what they might do in the unforeseeable future. This fundamentally flawed and unfair predictive or impressionistic element of our criminal, juvenile, and civil laws are fed by a circular presumption and widespread belief that people with mental disabilities must be more dangerous than anyone else.
As a result, people with mental disabilities not only have to cope with the inflated perception that they are inherently dangerous, but because of that perception they also must cope with the exaggerated fear of violence in our society, which ultimately affects them more than anyone else. Such exaggerated and distorted perceptions about dangerousness are inculcated into almost all Americans, particularly our boys and young men, through a constant bombardment of images of violence from cradle to grave. Whether it is television, our most popular sports, news, video games, or some of our most popular music, violence, aggression, destruction and mayhem often drive the entertainment and profit-making engines in this country.
At the same time, legitimate First Amendment concerns, along with the money, political connections, apologies, excuses, and propaganda of the industries involved, ensure that our attention is diverted away from prevention, public education, public health, and other treatment programs to reduce the sources of such violence and images of violence. Instead, the focus has been on incarceration and coercive, inhumane control of those stigmatized people in our society, who are perceived as being the most dangerous Americans because they have mental disabilities. Yet, without our myths and false beliefs about violence, there would be little support for the types of invidious discrimination and legal fictions that are reserved exclusively for persons with mental disorders, conditions, and aberrations deemed to be dangerous.
How this type of discrimination has unfolded in this country is explained in Mental Disability, Violence, and Future Dangerousness: Myths Behind the Presumption of Guilt (Rowman & Littlefield October 2013), Chapter 2, “Sanism and America’s Exaggerated Fear of Violence.” Brief copyrighted excerpts without the references are reprinted below with permission of the publisher and author, along with reflections based on the book and other materials.The excerpts are in bold with italics.
The Broad Reach of Sanism and Exaggerated Fear of Violence
Violence combined with an exaggerated fear of violence are potent social concerns…, particularly in the context of persons with mental disabilities, who most Americans incorrectly believe are substantially more dangerous than other people. Even some influential psychiatrists…deliberately stoke the flames of irrationality…. Sanism, a term that law professor Michael Perlin developed, is the social manifestation of this prejudice and animus, which has led to widespread civil rights deprivations for persons with mental disabilities, including confinement, abuse, neglect, and even the imposition of the death penalty. Yet, unlike racial discrimination, sanism rarely is condemned publicly and continues to be practiced openly with few social constraints. Today, if someone at a newspaper or television or radio station utters a racial slur there is likely to be a sustained public reaction rebuking that person, often with dire consequences to the offender. On the other hand, if someone in the media utters a similarly insensitive sanist slur, there is likely to be either widespread agreement or ignorance that a slur has taken place.
Sanism is widespread in the United States due, in large part, to the greatly exaggerated link between mental disabilities—particularly mental disorders—and violence, which has been “promoted by the entertainment and news media,” certain involuntary treatment advocates, and others for various selfish purposes. The risk of violence is greatly inflated by the media and entertainment industries that produce the news, television, movies, video games, and spectator sports. Even though there is little empirical justification for their fears, the vast majority of Americans believe that persons with mental illnesses pose a threat for … others and themselves…. This has created an irrational environment, which not only tolerates, but condones, invidious discrimination and deprivations of fundamental rights, as long as the subjects of such animus have or are perceived to have a mental disorder, condition, or aberration. In this context, we have become a nation that readily and enthusiastically embraces popular beliefs over logic, science, statistics, and empirical evidence, as long as those beliefs confirm what we want reality to be.
As a result of our sanism, we are willing—and often eager—to take draconian actions against individuals with mental disabilities based on subjective, unreliable, and usually inaccurate predictions that they might be or continue to be dangerous sometime in the unknowable future. Yet, most of us would recoil at the idea of taking comparable actions based on similar predictions of or impressions about antisocial behaviors, if they were applied to members of other supposedly dangerous populations, such as gang members, people who possess assault rifles, gay coaches, Catholic priests, African-American adolescent males, Caucasian men, professional football players, or soldiers who have served in combat. It is remarkable that the only group of people in the United States who are at serious risk from this societal angst and concern about future violence and related antisocial behaviors are persons with mental disabilities, who, more often than not, are trying to cope with compelling psychological and medical issues, poverty, isolation, abuse, neglect, and stigma. Instead of receiving the help they need, these vulnerable individuals must try to avoid incarceration and other deprivations of their fundamental rights that this lack of assistance often produces.
Expanding the Pool of Potential Victims of Sanism
[A] misconception has been perpetuated, repeated, and accepted… that persons with mental disabilities are particularly violent…. At the same time, in revising its Diagnostic and Statistical Manual of Mental Disorders (DSM-IV-TR), the psychiatric profession has been expanding the numbers of people who will be labeled as having psychiatrically defined mental pathologies, and thus stigmatized as being potentially dangerous. The underlying motivation of these psychiatrists seems to be to increase the number of people who are likely to receive mental health care and treatment, which is not an altogether selfish result, given the fact that many people in need of care and treatment go without. The problem is that these psychiatrists are targeting certain individuals for highly intrusive, coerced care, which tends to be inhumanely delivered, at the expense of the far greater number of people with serious mental disorders, who are in dire need of consensual care in order to avoid being incarcerated and deprived of their fundamental rights.
By increasing the pool of potential patients in a society overwhelmed by sanism, we expose even more people to indefinite incarceration, the death penalty, and other deprivations of rights … because the assumption is ever-present that “these” people will be a threat to society…. These rights deprivations are justified by legal standards that link their newly diagnosed mental disorders to predictions of dangerousness. Moreover, soldiers and veterans of recent wars, who have been or will be diagnosed with various combat-related mental disorders face a heightened risk of being accused of dangerousness, which arguably could be linked to their combat training and war experiences. Consequently, there is every reason to believe that even more people will be diagnosed with mental disorders and deemed dangerous than ever before.
Double Standard in the Law
Sanism has spawned a double standard in the law in which people with mental disabilities are treated differently than everyone else. In the early 1990’s, John La Fond and Mary Durham revealed this legal inequity in the context of incarceration. As a result of sanism and the way violence, exaggerated images of violence, and people with mental disabilities are portrayed in our news, media, sports and entertainment, Americans who are thought to have a mental disability and to be dangerous are subjected to less fair and unfair legal proceedings, which…result in harsher or much harsher penalties…. In one set of circumstances, the legal system supports a presumption that persons subject to quasi-civil commitment or the death penalty have a mental disability that makes them inherently more dangerous. In other circumstances, the legal system does not allow those same types of mental disabilities to reduce their culpability or even entitle them to special treatment once they are confined.
Anglo-American law traditionally recognized that serious mental impairments normally diminished culpability, which required reductions in punishment or rendered criminal charges null. Today, in its place we have a double standard, which has been expanding in large part because we have been taught repeatedly through … the popular media, to be afraid of and to devalue persons with mental disabilities. Instead of protecting the rights of this particularly vulnerable group of people, we have used the legal system─including lawyers, judges, and mental health professionals─to diminish their constitutional protections, creating new meanings for a suspect classification and tyranny of the majority.
Violence and Other So-Called Antisocial Behaviors
What should concern Americans most is violence which causes serious bodily harm or death to another person, or creates an immediate and unambiguous risk of such bodily harm or death. Yet, inevitably we conflate that type of violence with a myriad of antisocial behaviors that are viewed as being immoral, gross, lewd, or disgusting or somehow threaten our economic or social and emotional well-being. We continually refuse to make meaningful distinctions between very different types of dangerous-like behaviors based on their relative seriousness. Instead, we prefer to lump them altogether in order to elevate the importance of the least serious antisocial behaviors, so that they may be dealt with as severely as the most serious ones. Also, when people with mental disabilities are the subjects, [a]lmost any crime… is likely to be equated with dangerousness…. [And] what might happen—or is mistakenly thought “likely” to happen—often is considered equally determinative as what actually has happened.
In our society, almost everyone feasts upon violent and sexually violent images, and even violence itself. “Violence has a stranglehold on our nation” warns the National Mental Health Association. “Americans have what sometimes seems to be an insatiable appetite for it.” Most affected are our kids, particularly boys who are exposed in the early years of their cognitive development… [which] is constantly reinforced throughout their childhoods…. While everyone is affected differently…, very few people… escape those effects entirely. The result of such exposures is that violence has been increased throughout our society and is made to appear even worse than it actually is…, especially when it involves people with serious mental disabilities.
Causation: Societal Violence Versus Individual Dangerousness
A common argument against taking meaningful steps that would force us to acknowledge that we share a collective responsibility for violence and images of violence in our society is that we cannot determine how much of this exposure to violence may have contributed to a particular individual acting violently. We conveniently conclude that individuals should be totally responsible for any violence that they produce, regardless of the social and environmental circumstances and factors that may be involved.
This flawed logic ignores the essential difference between causation when it is applied to populations versus individuals. Not surprisingly, Americans tend to embrace the type of causation that best fits the outcomes they prefer. When it comes to holding our society responsible for violence and images of violence, we chose to fixate on individual causation. Yet, when we try to prove that an individual with a mental disability is dangerous, we chose to focus on group causation instead. This is a pseudo- intellectual bait and switch.
With regard to violence and images of violence in our society, the inability to empirically attribute responsibility to an individual is only relevant when the suggested response targets individuals, as opposed to society as a whole. A response that would target our entire population through prevention, public health, and public education is both reasonable and cost-effective, even though it is not possible to determine how specific individuals will respond to such interventions. There is no necessity to determine individual causation, however, in order to justify these types of social responses.
How much violence each individual is exposed to remains unknowable. Nor are we able to measure accurately how and to what extent such exposures will affect a given individual. What we do know is that high exposures… in any population…will increase the amount of aggression and violence… in that population. As a matter of sound public policy, there is every reason to implement measures to control violence and the images of violence in our society as a whole, particularly its impact on our children, and even more so boys. The empirical evidence is overwhelming that such prevention policies, if implemented properly, could have a substantial and lasting effect in reducing violence and the fear of violence in our society at a fraction of the cost necessary to incarcerate, monitor, and supervise individuals with mental disabilities who we predict or presume are likely to be dangerous based on unreliable and biased evidence.
Conversely, problems with causation also have occurred when it has been misused to justify measures that target individuals who have mental disabilities because it has been presumed that this class of individuals is inherently dangerous. Not only is the presumption incorrect, but the greatly exaggerated danger posed by this group is then inappropriately attributed to specific individuals. This misleading and inappropriate application of causation not only creates a double standard that works to the extreme disadvantage of people with mental disabilities, but it also employs the logical fallacy of predicting individual behaviors based on their sharing certain characteristics with a particular group. By developing and using legal procedures and methodologies that try to forecast which individuals with mental disabilities will be or continue to be dangerous based on misperceptions about group behaviors, we have done—and continue to do—substantial damage to our Constitution, legal system, and our basic notions of justice and fundamental fairness.
The Media and Violence
Our senses are bombarded with violence and images of violence through our most popular leisure activities, particularly those enjoyed by boys and young men. This cultural violence emanates from multiple sources. In addition to the news media, movies, and video games, two of the most prominent are sports and, even more so, television.
The most popular spectator sports in this country have an element of violence or extreme aggression. All of our major team sports, even those played by girls and women, have become increasingly violent. The most popular American sport by far is football—professional, intercollegiate, and high school—which is a violent game played by boys and men with an often deliberate disregard for the welfare of its participants and to women in particular, who have been the primary victims of the aggressive and violent excesses of football players off-the-field.
Football is ritualized warfare that brings more entertainment value to its hundreds of millions of spectators than any other American sport. We love football in large part because it is violent; we love images of violence and even violence itself because we have been exposed to it and desensitized beginning in infancy and arguably in the womb. There are many other spectator sports that bring us great pleasure that incorporate violence as a core value as well: boxing, caged fighting, hockey, lacrosse, racecar driving, and wrestling to name the most conspicuous. Even basketball and baseball have their share of aggression and violence involving players and fans alike.
We have long known that [s]ports are a microcosm of society, mirroring our social values…. [W]inning by overly aggressive and even violent means is too often—and arguably most of the time—more important than fair and safe play… “[V]iolence in sports has become commonplace” and “an epidemic plaguing our nation.” Even Congress, which is loathe to do anything that would displease us as consumers of violence, has frequently threatened to regulate violence in athletics hoping that this might scare the sports which are the worst offenders. Our sports pages and media coverage of sports often feature incidents of crime and violence by our most popular athletes. Tongue in cheek, the Christian Science Monitor ran a prominent headline that read “For sports news, see . . . crime pages.”
This close association between our most popular sports and violent crime goes back… [at least] twenty years. A 1995 Los Angeles Times study used court documents to identify 252 incidents involving  active American or Canadian sports figures….” These arrests and alleged offenses included murder, sexual assault, and spousal battery…. [T]he most likely offenders were professional and collegiate athletes who “played” football…. Nothing since suggests that violence and images of violence in sports has abated. In fact, by all indications such violence and extreme aggression continues to increase, particularly among female athletes.
Television has had an even greater influence on our culture than have sports. The average American has the television on, or is watching television programming through some other media devise, many hours of each day. For kids, television and videos based on television programs have become de facto parents and a substitute for the unstructured play that used to fill the void when parents, family, and school were not present. Television has had an overwhelming influence on the lives of most American children and adults, which has taken the psychology of passive-aggressive behaviors to a new dimension. In the viewing and listening process, the dubious connection between violence and persons with mental disabilities has been reinforced time and time again in the most irresponsible and unrealistic ways. This is particularly true with television news.[V]iewers are immersed in… descriptions and depictions of murders, rapes, and other violent crimes, extreme weather, and sports violence…. [S]uch tragedies account for as much as “42% . . . of local news.”
While actual violence … appears to be steadily decreasing, perceived violence continues to grow….Through constant exposure to images, depictions, and news of violence, people are led to believe that violence is significantly more prevalent and more severe than what the facts demonstrate….Too often those penetrating images involve extreme violence committed by persons with mental disabilities. Such powerful but distorted images also are repeated time and time again in movies, video games, over the Internet, and on the radio. There are few filters for violence unless it is viewed as being obscene because of its sexual content. In our society a bare breast or naked butt draws more negative attention and condemnation than the grizzly dismemberment of a living person’s limbs or a decapitation. As a result, we seem to be more concerned about sexual offenses—many of which are merely antisocial or immoral, rather than violent—than we are about murder, violent assaults, and mayhem.
Scapegoats for Exaggerated Fears About Violence
Due to sanism … people with mental disabilities have become…scapegoats for our preoccupation with violence. The news and entertainment media deliberately and painstakingly… portray these individuals using inflammatory and distorted words and images…. Thus, it should not be surprising that when violence and extreme violence are discussed by politicians and policymakers and difficult choices are being weighed, the one area of consensus that emerges time and time again is the desirability of placing prior restraints on the fundamental rights, freedoms, and liberties of persons with mental disabilities. As the National Rifle Association has made clear, the Second Amendment does not apply to persons with mental disabilities. Moreover, cost-effective steps to prevent and mitigate violence and to provide meaningful care and treatment to those who have serious mental disorders, conditions, or aberrations are scrapped in favor of expensive incarceration, coercive monitoring and supervision, and even executions.
As a result, our criminal and juvenile justice systems are filled with persons with mental disabilities who are not only treated more harshly than offenders without such disabilities, but are denied humane care and treatment. In this skewed world, the mental status defense, which has become nearly extinct, has been replaced by the mental status offense, which almost guarantees greater punishment and mistreatment for persons who have serious mental disabilities.
CRIMINAL SANCTIONS AND OTHER GUN RESTRICTIONS INTENDED FOR PERSONS WITH MENTAL DISABILITIES: PREJUDICE AND FLAWED PRESUMPTIONS OF DANGEROUSNESS MUDDLE OUR THINKING
One of the few public policy issues that most Republicans and Democrats agree on is that people who have been treated for mental disorders should not be allowed to buy or possess guns or munitions. Unfortunately, this all too rare public policy consensus, and the federal and state laws that it has generated, is based on beliefs born of prejudice: first that people with mental disabilities are inherently dangerous; and second that their presumed dangerousness must make them incompetent to use firearms safely and responsibly.
Throughout American history, highly dubious legal presumptions—both about dangerousness and mental incompetence—have been applied to persons with mental disabilities in order to unfairly deprive them of their fundamental rights and liberties. (See, Essay 1: “Legal History of Persons with Mental Disabilities: A Consistent Pattern of Invidious Discrimination.”) Little has changed in that regard, although due to sanism—which is analogous to racism—and greatly exaggerated fears of persons with mental disabilities acting dangerously (See, the next essay in this series, “Exaggerated Fear of Violence, Sanism, and the Scapegoating of Persons with Mental Disabilities.”), this type of prejudice is more entrenched than ever before.
The Right and Left Agree
The right and left arrive at their consensus about firearms and persons with mental disabilities based on very different world views. Yet, both views reflect a strong tendency in our society to marginalize individuals with mental disabilities. Most Americans readily embrace the conclusion that it is dangerous for anyone who has been treated coercively for a mental impairment to own or possess firearms without appreciating individual differences, or questioning the lack of empirical evidence and factual support for the belief itself. This muddled thinking has resulted in one isolated and highly stigmatized segment of the population—and almost no other—being deprived of their Second Amendment right to bear arms, based not on whether they currently are able to use guns safely and responsibly, but whether they are deemed dangerous as a result of unreliable impressions or predictions about what they are likely to do in the future.
Most of our gun control laws, including the dominant federal statute, lump mental patients and former patients in with convicted felons. A widespread presumption of dangerousness makes this policy decision seem like common sense, and thus inarguable. Yet, as we discover time and time again when we empirically test some of our most cherished beliefs, common sense often proves to be incorrect or misleading. Common sense also can lead to oppression when it is used to justify a tyranny by the majority.
A nation that blithely acts based on notions of common sense inevitably ignores or diminishes the scientific method, logic, empirical evidence, and statistics in order to leap to popular conclusions. Our flawed perceptions and biases about people with mental disabilities have generated some of the most compelling examples of this type of disconnect between belief and reality. America’s laws and policies on gun control, which target this particular population and no other, exemplify how common sense can turn out to be nonsense, or worse.
Republicans on the right tend to view the Second Amendment as inviolate. They believe or at least profess that no matter how much damage that easy access to rapid fire guns with large magazine capacities may cause in our society, every American has an absolute constitutional right to own and carry any type of firearm. In fact, there is a whole industry of Second Amendment protectors who work with gun manufacturers to safeguard our rights to gun ownership with inflammatory arguments and strong arm tactics. It is led by the incomparably effective National Rifle Association (NRA), which has managed to intimidate all but a relatively few politicians. Not surprisingly, the only individuals that the NRA has agreed may be restricted in owning guns are ex-felons and persons with mental disabilities. Supposedly, neither group has Second Amendment rights, although there are no original constitutional documents that I know of to support this politically convenient conclusion.
Democrats on the left tend to view the Second Amendment of the Bill of Rights as an historic relic. No sane society can allow its citizens and residents, including juveniles and other children, easy and indiscriminate access to rapid fire guns and munitions. The Constitution must bend with the times. Furthermore, are we really that certain that even originally the Second Amendment was supposed to apply to citizens in general, rather than just to our militias? From this community welfare perspective, depriving any significant population of firearms appears to be a good thing. Moreover, it is an even better thing to deprive people with mental disabilities of their Second Amendment rights because most people on the left, except perhaps those who share the views of the American Civil Liberties Union, are convinced that individuals who have been treated for mental disorders are particularly dangerous.
Thus, getting guns out of the hands of persons with mental disabilities is a very popular public policy and one that both the right and left can agree on. Yet, both sides of this political discussion are wrong, factually and in the conclusions that they draw from what they believe are facts. How our federal and state gun laws unfairly and unreasonably discriminate against persons with mental disabilities is detailed with more nuance, depth, and documentation in Mental Disability, Violence and Future Dangerousness: The Myths Behind the Presumption of Guilt (Rowman & Littlefield, October 2013), Chapter 5 Accusations Based on the Unknowable: Predictions of Dangerousness in Civil and Criminal Proceedings. (See, About the Book for more information) Brief copyrighted excerpts without the references are reprinted below with permission of the publisher and author, along with short reflections on this issue based on the book and other materials. Excerpts are in bold with italics.
Dangerousness-Based Restrictions on the Right to Bear Arms
The primary reason why current restrictions on the rights of persons with mental disabilities to bear arms are so prejudicial and fundamentally unfair is that unreliable and outdated predictions of dangerousness are being used in order to justify the conclusion that any person who has been involuntarily treated in the past is unable to use firearms responsibly and safely now. Two misconceptions fuel the public debate over gun control and persons with mental disabilities. Together, they help explain why such a serious gaffe in logic is allowed to stand. First, is the notion that people with serious mental impairments are inherently dangerous. The second is that anyone who could commit a mass, single-event killing must be deranged due to a mental impairment…. In combination, these popular misconceptions… create an unreasonable political mandate about guns and persons with mental disabilities that is difficult…to counter with facts…. (Yes, admittedly the Navy Yard killer appears to have been experiencing a psychotic episode, but he is the exception. In other American mass killings—and arguably even in this one—there tend to be many equally or more compelling factors that more fully explain why these tragedies happened. Psychotic episodes by the perpetrators appear to be rare, since typically these massacres are carried out by well-organized, determined and educated men and older boys, who are so alienated from society that in order to act out their rage, they are willing to place themselves in situations where they know they probably will die.)
The primary legal gun control mandate in this country is the federal law creating an underused and mistake laden national system of background checks, and then making it a serious crime for persons who have been involuntarily committed to possess firearms or munitions. This statute is joined by state laws that either redundantly restrict or further restrict the rights of persons with mental disabilities. New York, for example, after the Sandy Hook massacre, mandated that mental health professionals…report patients who are likely to cause harm to themselves or others…so that law enforcement officials can initiate investigations and confiscate any firearms that they might have. Also, such investigations by law enforcement could lead to these patients being prosecuted under federal law.
There are several fundamental deficiencies with New York’s legislation, which also undermine many other laws that have been enacted that attempt to deal with dangerousness and persons with mental disabilities. To begin with, the best empirical evidence demonstrates that generally mental health professionals are incapable of reliably determining which of their patients are likely to harm themselves or others. Also, mental health professionals have pointed out that this statute is ill-conceived and jeopardizes the therapist-patient relationship, making it much more likely that patients will not be forthcoming when they are being treated. In addition, mental health professionals are likely to be over-inclusive in their predictions of dangerousness. This is because if they fail to identify patients as dangerous, who later cause harm to themselves or others, the therapists may be sued for a great deal of money and ostracized in their communities. While there is a relatively small likelihood that this eventuality would happen, the threat of a lawsuit and public shame are powerful incentives to over-report, just to be on the safe-side.
All of our gun control laws tend to be overly broad my wide margins in their targeting of persons with mental disabilities, as well as being highly discriminatory. Court decisions interpreting the federal law reveal, for instance, a consistent pattern of viewing any type of involuntary care for any amount of time as being enough to deprive former patients of their Second Amendment rights and sentencing them to prison terms. Moreover, the onus is placed on former patients to show that they are no longer dangerous, unless, as happens in many jurisdictions, such restrictions are viewed as permanent, which makes these individuals permanently dangerousness by legislative decree.
These gun laws assume… that merely because someone has been subject to some sort of broadly defined involuntary … treatment that person is likely to be a continuing danger to self or others. Thus, [unreliable] predictions of dangerousness that are part of most involuntary civil commitment proceedings to begin with are automatically extended…with regard to the issue of firearms…, whether or not there is any evidence that the respondent is likely to misuse a gun now. What remains particularly galling is that typically these former patients had to demonstrate a lack of dangerousness in order to be released from custody. Nevertheless, that critical fact is simply ignored. In its place is another legal fiction that favors government over individuals with mental disabilities by making their continuing dangerousness an “irrebutable” presumption. This is true even though the predictions of dangerousness, which led to their being forcibly treated in the first place, are inherently flawed. (See in subsequent weeks, Essay 5: “Predictions of Dangerousness and Other Legal Fictions Involving Dangerousness and Persons with Mental Disabilities.”)
Our gun control laws, as they are applied to persons with mental disabilities, are as unreasonable as they are unfair. Nonetheless, they are the only gun control provisions that an overwhelming majority of Americans support. Years ago, Richard Hofstader--Anti-Intellectualism in American Life (1963)— and Leon Festinger--When Prophecy Fails (1957)—independently developed brilliant constructs that together explain why such unenlightened thinking persists in the United States. Based on a strong anti-intellectual bias, we tend to embrace popular beliefs over empirical evidence, and we are woefully ignorant about statistics to boot; then, due to cognitive dissonance, even if overwhelming evidence proves the belief to be wrong, we tend to manufacture spurious arguments to support our discredited beliefs even more resolutely. Tragically, this duality of misperception has negatively influenced public policies on many critically important and controversial political issues, including gun control, tobacco use, global warming, abortion, and dangerousness. As my mother, Helen, would say if she were still alive, “this is a pretty sad state of affairs.”
“[Laws are suspect] when they place categorical disqualifications and restrictions on persons [with mental disabilities]. Each person’s capacities must be judged individually before he [or she] can be denied rights of citizenship and humanity.” (Hon. Patricia Wald, The Mentally Retarded Citizen and the Law, editor Michael Kindred, et al. (1976), 5.)
Since the Nineteenth Century, federal and state governments, including American courts, have fostered a consistent pattern of invidious discrimination against persons with mental disabilities. This pattern was interrupted for a relatively short time in the late 1960’s and 1970’s when concerned lawyers and mental health professionals pushed hard to bring about badly needed reforms on behalf of institutionalized “patients.” These all-but-forgotten inmates had been dumped into large, isolated institutions that were little more than custodial warehouses. Typically, such institutionalization was accompanied by neglect, abuse and wholesale rights’ deprivations. Unfortunately, the principled changes that were supposed to remedy such injustices were incremental, mostly temporary and inspired by divergent philosophies and theories that frayed and conflicted when push came to shove. Moreover, then as now all of these policies and concerns were greatly influenced by fiscal constraints and a strong tendency to view social problems and their solutions in terms of immediate impacts, which have the greatest political currency.
Most of the incremental progress was swept aside by an unconscionable and irresistible movement to replace humane care and rehabilitation with harsher and longer punishments, including physical and chemical restraints, especially for those who had mental disabilities. Rehabilitation was no longer in vogue and became a concept to be derided and ignored. By the 1980’s, a more insidious pattern of abuse, neglect and mistreatment had emerged, which may not have been as consistently awful and horrifying as the darker past, but was disgraceful in its own right. Today, this movement continues to affect an increasing number of people with mental disabilities. Ironically, these new governmental interventions, which have led to so much misery, have been made possible by perverting the legal principle that had temporarily set institutionalized “patients” free: persons with mental disabilities should not be confined involuntarily or otherwise deprived of their fundamental rights, unless it can be proven, by at least clear and convincing evidence, that they present an immediate and serious danger to themselves or others.
How this movement evolved and what it means to us going forward is explained in Mental Disability, Violence, and Future Dangerousness: Myths Behind the Presumption of Guilt (Rowman & Littlefield October 2013), Chapter 1, “Persons with Mental Disabilities and the American Legal System: A History of Discrimination, Abuse and Mistreatment.” (See About the Book /about-the-book.html.) Brief copyrighted excerpts without references are reprinted below with permission of the publisher and author, along with reflections based on the book and other materials. The excerpts are in bold with italics.
Reinstitutionalization of Persons with Mental Disabilities
By the end of the 1950s, mental disability law—commonly referred to as psychiatry and law—was becoming a noble pursuit filled with new ideas and considerable optimism. Lawyers, judges, psychiatrists, clinical psychologists and other mental health professionals began to attempt to balance needed care, treatment, and social services with basic rights of citizenship… to bring an end to a long and deplorable litany of abuses perpetrated against many people with mental disabilities…. This was a time when inadequate custodial care too often was accompanied by lobotomies, sterilizations, human experimentation, assaults, wanton neglect, murders, wrongful deaths, and mayhem…. There also were wholesale rights deprivations based on presumptions, impressions, policies and laws that equated institutionalization with incompetency to exercise one’s fundamental rights. To be in a mental institution typically meant being at the mercy of often uncaring providers under conditions in which even minimally adequate custodial resources were lacking.
During the late 1960’s and 1970’s, the most horrific and widespread human rights violations toward people with mental disabilities would be largely extinguished in the large state hospitals…. [H]owever, similar and different abuses were reconstituted primarily in the inhumane institutions that dominate our criminal justice system, and in the shadows of our urban—and later our suburban—communities. By the early 1980’s—due primarily to free market economics, the failure to fund deinstitutionalization, and the rejection of rehabilitation as a cornerstone of American law in favor of harsh punishments—“reinstitutionalization” of persons with mental disabilities was inevitable, particularly after John Hinckley’s insanity acquittal in the assassination attempt on the President in 1982. Various forms of quasi-civil involuntary institutionalization of persons with mental disabilities became increasingly popular, while voluntary care in the community was never implemented properly and was slowed even further by growing fiscal constraints. Eventually, even civil institutionalization began to increase again.
Persons with Mental Disabilities As a Suspect Classification
Of all the groups in American history that have faced overwhelming societal oppression, people with … mental disabilities—especially those who are deemed to be dangerous—deserve to be at or near the top of any list of plaintiffs…. A 1942 editorial in the American Journal of Psychiatry demonstrates how awful this prejudice was. Through its leading journal, the American Psychiatric Association recommended that kids reaching the age of 5 who showed that they were “feebleminded” should be euthanized so that they could be spared “the agony of living.” Through the 1970’s and well beyond lawmakers used—and many continue to use—offensive and stigmatizing language to unfairly categorize people with mental disabilities. Throughout our history, American society has devalued and defamed members of this population. Even today too many of our laws continue to use such terms of disrespect and stigmatization. State and federal laws have authorized and often compelled the involuntary confinement of American citizens, along with deprivations of other fundamental civil rights, based on psychiatric and psychological assessments or simply subjective courtroom impressions of triers of fact.
Doing away with institutions for persons with mental disabilities became a compelling concern for many people during the late 1960’s, particularly what became known as the “mental health bar.” At the same time, many mental health professionals, particularly those in the psychiatric profession, argued that the right to treatment, even if it was coerced, should precede in importance the right to self-determination…. Their overriding clinical concern was that absent involuntary treatment, people with severe mental disabilities would not be able to take advantage of their freedoms and to make their own decisions.
The ultimate answer to this dilemma and seeming paradox was informed by three persuasive considerations. First, years earlier, the reformer Mary Switzer had demonstrated convincingly—and many scholars and policymakers had built on her earlier work--that institution-centered care and treatment… could not come close to meeting the needs of the entire person. A more holistic approach that emphasized community alternatives for persons with severe mental and physical impairments was required to provide adequate care.
Second, there was overwhelming documented evidence of abuse, neglect and inhumane treatment in large, isolated state and federal institutions for persons with mental disabilities. Robert Kennedy, Geraldo Rivera, the American Bar Association’s Commission on the Mentally Disabled, the Mental Health Law Project, and a slew of public interest lawyers made the public, politicians and policymakers aware of the awful conditions that residents of these human warehouses faced every day of their lives inside. The conditions were comparable in some ways—and often compared—to concentration camps.
The third consideration was founded on the ground-breaking work of the sociologist Erving Goffman. He and others had shown that these hospitalization horrors were due… to the inherently destructive and stigmatizing nature and characteristics of large institutions themselves, and how their dysfunctional milieus negatively affect the human beings inside, patients and staff alike. In such institutions, no residents could thrive and most languished for years without hope of release or improvement.
These considerations strongly suggested that large mental institutions of this kind could not be reformed because they were inherently flawed. They had to be eliminated. In this context, deinstitutionalization to escape obvious oppression became a rational necessity. Unfortunately, for many reasons the implementation in our communities was badly flawed …, particularly federal laws and policies— including the entire Medicaid program—that continued to closely tie funding for persons with severe mental disabilities to institutional-based care.
The Hinckley Verdict
As much as Americans have been moved to respond in the aftermath of mass killings associated with Sandy Hook, Aurora, Tucson, Virginia Tech, and Columbine, the public’s reaction to John Hinckley’s not guilty by reason of insanity verdict was even greater. Both the insanity defense and people with mental disabilities were caught up in a “siege” mentality that emanated from multiple directions, but particularly from politicians who were responding to the public’s outrage. That outrage grew more intense with the knowledge that in Hinckley’s case his verdict had correctly followed the existing federal statute.
In response, most of our laws and policies regarding reduced culpability were revamped to make it increasingly more difficult for defendants with mental disabilities to mount a defense in which their impairments could be considered at trial or in sentencing. This was true even though it had been assumed that many of these protections were fundamental components of Anglo-American law and had strong constitutional roots.
Despite the swirling controversies over mental status defenses and how the courts should be ruling in applying them and in reviewing the many new laws that the Hinckley verdict had inspired, the U.S. Supreme Court chose to stand on the sidelines for a quarter of a century. By waiting all that time to issue its seminal decision in Clark v. Arizona, the Court was more easily able to find reasons to affirm the direction that most of the states had been heading since 1982. Even though the Justices rejected the notion that it would be appropriate to completely separate insanity from constitutionally-required state of mind to commit a crime (mens rea), the 6-3 majority made it clear that states and the federal government have wide constitutional latitude in implementing … any type of mental status defense. In fact, the Court noted that it would be receptive to any laws that substantially curtailed such defenses. In essence, as long as governments do not eliminate mental status defenses entirely, they may advance schemes that effectively preclude the “possibility that the sanity issue will be seriously considered by the jury (or judge).” Because of the prejudices and exaggerated fears Americans have had about persons with mental disabilities, it is not surprising that for many years now our laws have made it difficult and often virtually impossible to mount a successful mental status defense or to receive any type of reduced sentence based on even severe mental impairments.
In addition to a widespread narrowing of the opportunities to plead any form of reduced culpability for crimes committed by defendants with mental disabilities, the Hinckley verdict helped to change our entire system of civil and criminal laws governing persons with mental disabilities. New laws and policies favored retribution, long-term incarceration, deprivation of rights, and inadequate care over… rehabilitation, meaningful treatment, and community reintegration. This was the beginning of counterproductive, inhumane, harsh, and outlandish discriminatory treatment of people with mental disabilities perceived to be dangerous. Increasingly a person’s mental disability when tied to presumptions, impressions or predictions of dangerousness became proper grounds for issuing longer sentences, harsher dispositions, and indefinite, more intrusive and lengthier conditions of release. Diminished culpability was not only largely extinguished, but replaced by enhanced culpability for persons with mental disabilities.
These unforgiving and anti-therapeutic responses were all part of a movement to criminalize persons with mental disabilities by using correctional and other secure detention facilities to manage and control their perceived antisocial behaviors, particularly dangerousness. In part, the criminalization of mental disabilities resulted from the aftereffects of poorly implemented deinstitutionalization, but even more from stigma, prejudice, fear, neglect, and anger. As the number of people with mental disabilities in civil state institutions was being substantially reduced, many more people with severe mental disabilities were being warehoused in various types of correctional facilities.
By the late 1980’s and thereafter it became obvious to many scholars, particularly law professors David Wexler and Bruce Winick, that the law’s management of persons with mental disabilities not only violated the substantive and due process rights of those individuals, but also was anti-therapeutic and inhumane. Thus, these two professors developed a construct to address such counterproductive policies, which they termed therapeutic jurisprudence. Yet, even though this innovative concept showed much promise and received considerable academic and professional support, state and federal governments—at almost every opportunity—have applied law, psychiatry, and psychology to extend the detention and control of persons with mental disabilities, or even to promote their executions.
The result is that these people impaired by mental disabilities have been criminally confined for as long as possible with little or no special care or treatment, except the excessive, involuntary administration of powerful antipsychotic drugs…. This has turned many mental health professionals into agents of social control…. Furthermore, the criminalization of persons with mental disabilities has become so ingrained … that [we]…. simply accept this type of unfairness, inequality, abuse, and neglect as the way things are done…. Being humane and compassionate to persons with mental disabilities who end up in our correctional system is dismissed as unnecessary or wasteful. Our current approach has produced an inhumane system of coercive care and containment, which reprises the awful conditions inside the large, isolated, civil mental institutions that we depopulated.