THE FEDERAL GOVERNMENT’S OBSESSION WITH JOHN HINCKLEY
Overwhelmingly public opinion will be on the side of federal prosecutors should they decide to try John Hinckley in the recent death of James Brady, who Hinckley shot 33-years ago while Brady served as President Reagan’s White House press secretary. Nevertheless, a successful prosecution would weaken our judicial system and perpetuate another assault on the rights of people with mental disabilities. These assaults are a basic theme of Mental Disability, Violence, Future Dangerousness: Myths Behind the Presumption of Guilt (Rowman & Littlefield, October 2013). [Brief excerpts without references that apply to the Hinckley affair appear below in bold italics, along with other related observations.]
Our Constitution was established to protect even the most despised individuals from wrongful prosecutions and other abusive governmental actions. Hinckley should be entitled to the full protections of our legal system, whether or not the public approves. To try Hinckley now, after he was found in 1982 to be not guilty by reason of insanity of the shooting that is alleged to have caused Brady’s death, would be a blatant injustice.
What makes matters much worse is that Hinckley already has been incarcerated for more than thirty years. Also, both his treatment team and the court overseeing his detention have determined that he has been rehabilitated and is no longer dangerous. These new trumped up charges would further demonstrate the federal government’s obsession to punish Hinckley. As noted in the previous essay, our government already has taken extraordinary measures to prevent his release from St. Elizabeth’s Hospital, where for many years he has been unjustly detained. Now that there is a possibility that Hinckley will become a free man, federal prosecutors are floating the idea of using James Brady’s death to permanently thwart Hinckley’s freedom.
Such a prosecution, if successful, would not only violate Hinckley’s right to fair judicial proceedings, but also substantially diminish the rights of every American. First, in order to pursue this ill-advised agenda, the federal government would have to convince a judge that double jeopardy is insufficient to prevent a defendant from being tried twice for the same criminal action. Based on revisionist history, prosecutors would likely argue that double jeopardy does not apply as long as the criminal charge is different. Thus, the not guilty by reason of insanity verdict that Hinckley received in the shooting of James Brady would be irrelevant because Brady’s death 33 years later created a new crime.
Second, to be successful federal prosecutors would have to convince a trial court to further embellish the legal notion of proximate causation at the expense of actual causation. A jury would have to conclude that Hinckley was guilty beyond a reasonable doubt based largely on expert testimony that an otherwise natural death, involving a myriad of possible intervening factors, could be reliably attributed to a shooting that occurred 33 years ago. A similar kind of attenuated logic allows mental health experts to testify about the dangerousness of defendants based on predictions about a future, which is unknowable.
How our legal system applies the concept of proximate causation, particularly against people with mental disabilities, often has produced arbitrary and scientifically sloppy and unsophisticated results. The main problem, as the psychologist and linguist Steven Pinker has noted more generally, is that courts “somehow distinguish just one of the necessary conditions… as its cause and the others are mere enablers or helpers, even though all are equally necessary”…. By using a flawed method of framing reality to match …our beliefs…, the law can appear to be rationally and reasonably assigning total responsibility to individuals for illegal or socially inappropriate actions, whether or not the persons involved are only partially blame or responsible, and/or external intervening forces significantly influenced [the outcome]….
In addition, federal prosecutors would have to pretend that Hinckley was not insane in 1982, even though a jury found him to be so and the federal government has maintained ever since that he had a severe mental disorder, which has never improved sufficiently to justify his release. Unfortunately, such a pretense would not be the first time that a preposterous leap of logic about the insanity defense was used to convict a defendant with a severe mental impairment. The Georgia Supreme Court, for example, affirmed logically inconsistent verdicts in which a jury found a defendant not guilty by reason of insanity on a charge of murder with malice, yet the same jury was allowed to find him guilty but mentally ill of felony murder for the same criminal actions…With regard to felony murder, the defendant had told the state’s psychologist that as a convicted felon, he realized that in purchasing the firearm that he had used in the killing, he realized that he was violating the law…[T]he court found that while he was insane in forming the intent to commit murder, he was deemed to have “known” that as a felon he was prohibited from purchasing a firearm….
Hinckley should have been and still could be a positive illustration of the benefits of treatment and rehabilitation. Instead, if the federal government has its way, he likely will continue to be a symbol for the criminalization of persons with mental disabilities. Ironically—and unfortunately for the rule of law in our country—this predominantly inhumane predisposition towards people with mental disabilities is a situation Hinckley inadvertently helped create when he attempted to assassinate a president of the United States, who was committed to a law and order platform.
1. Nick Corasaniti, “Coroner Is Said to Rule James Brady’s Death a Homocide, 33 Years After a Shooting,” The New York Times (Aug. 8, 2014).
How President Reagan and John Hinckley Helped to Scuttle Humane Treatment for Defendants and Offenders with Mental Disabilities
The remarkable aspect of John Hinckley’s thirty-two years of being confined in a mental hospital—and closely supervised and monitored whenever he has been allowed to leave on day passes or home visits—is the comparison to other inmates, who have been dumped into the criminal justice system with little or no meaningful treatment or hope of improvement. For all the legal injustices Hinckley has incurred at the hands of the federal government, he has been far better served than most offenders with mental disabilities. What began with Ronald Reagan’s presidency and was accelerated by Hinckley’s “insane” delusions exemplifies the fundamental inhumanity of our criminal justice system for persons with serious mental impairments. The tragic consequences of these changes in laws and policies are one important focus of Mental Disability, Violence, Future Dangerousness: Myths Behind the Presumption of Guilt (Rowman & Littlefield, October 2013).
The Reagan Revolution Begins
Ronald Reagan was elected President, in part, on a law and order platform. His administration promised to get tough on crime, while at the same time reducing government spending for social programs. There was little wiggle room for compassion, or promoting notions of diminished culpability or rehabilitation for anyone who engaged in criminal or criminal-like behaviors, especially if they had a mental impairment. The longest possible sentences and dispositions that states and federal government could impose were embraced as being needed to ensure the safety of our communities. At the same time, deinstitutionalization of residents of inhumane civil mental institutions and facilities was now legally required. Moreover deinstitutionalization was saving states and the federal government considerable sums of money when they largely decided not to shift mental health resources from institutions into our communities. Civil mental institutions were being depopulated, while prisons, jails, and secure detention facilities were about to overflow.
Until President Regan took office, sympathy for people with mental disabilities had been growing, including an acceptance of the obvious reality that serious mental impairments were likely to diminish a defendant’s culpability. Two of the more critical obstacles were trying to find good ways to make reasonable legal assessments of the impact of those cognitive impairments on the culpability of particular individuals charged with crimes and determining when those individuals were suitable to be released into the community. These were difficult challenges that in the 1970’s American society seemed willing to confront in humane ways.
John Hinckley’s assassination attempt in 1981, which almost killed President Ronald Reagan and decimated parts of James Brady’s brain, effectively reversed the momentum for humane mental health care and rehabilitation in the United States, particularly the notion that mental impairments diminish culpability. A double standard was created, which encouraged federal and state laws and policies that would ensure far fewer people with serious mental disabilities were allowed to pursue diminished culpability defenses or dispositions, while many more of them would be incarcerated longer and with far more restrictions if they were released. The ends may have appeared to justify the means to many, but fundamental legal and social principles were marginalized or cast aside in an unrelenting pursuit of retribution and community safety.
John Hinckley was a deeply troubled individual who was estranged from his family, had no real friends, was seriously depressed, and had an extraordinary obsession for the young female co-star of the movie Taxi Driver, Jodie Foster. Hinckley’s obsession was so deep that he traveled from Texas in September 1980 to stalk Foster when she was an undergraduate at Yale, professing his love for her in several different ways. This obsession continued for more than six months. The assassination attempt in Hinckley’s confused and distorted mind was the ultimate declaration of love, which he explained in a well-written letter to Foster about an hour before launching his attack. Among other things, he wrote:
Jodie, I would abandon this idea of getting Reagan in a second if I could only win your heart and live out the rest of my life with you….
I will admit…that the reason I’m going ahead with this attempt now is because I just cannot wait any longer to impress you. I’ve got to do something… to make you understand, in no uncertain terms, that I am doing all of this for your sake! By sacrificing my freedom and possibly my life, I hope to change your mind about me…Jodie, I’m asking you to please look into your heart and at least give me the chance, with this historical deed, to gain your respect and love.
I love you forever,
Before Hinckley’s trial, it was obvious to both sides that an insanity defense was the only reasonable defense strategy. Vincent Fuller, the private attorney who had been hired to defend Hinckley, knew he had a compelling case to make, although there was no way to know how a jury would react to the evidence under the District of Columbia’s insanity standard, which would focus on Hinckley’s cognitive abilities to appreciate right from wrong. That standard was based on the traditional M’Naghten approach, which was less inviting to the defense than the American Law Institute standard that was found in a majority of jurisdictions, including most federal circuits. What helped the defense, immeasurably, is that in D.C. the burden to establish Hinckley’s sanity, as with all the basic elements of a crime, was on the prosecution to prove beyond a reasonable doubt. This made sense because historically in Anglo-American law sanity was viewed as being an essential component of a defendant’s state of mind.
Because this trial was such a high profile case, the experts on both sides had plenty of time to comprehensively view Hinckley’s psychiatric history from several vantage points. Not surprisingly, for those of us who are convinced that psychiatric experts in criminal and quasi-criminal cases tend to be hired guns, who normally testify the way the side that is paying them expects them to, the Hinckley trial proved to be a decisive confirmation. All the defense experts provided evidence that supported the view that the defendant was insane, while all the prosecution experts tried to refute that conclusion.
A Colorado psychiatrist, who had treated Hinckley months before the assassination attempt, admitted that he had misdiagnosed his patient as a chronic underperformer, who the doctor and Hinckley’s family hoped could be motivated by intensive behavioral therapy. This family psychiatrist had not delved into the emotional turmoil Hinckley was experiencing, nor did he know about his patient’s other disturbing proclivities, which otherwise should have led the therapist to diagnose a serious mental illness. This lack of insight about disturbed individuals, who have gone on to commit acts of violence, is typical, not only for trained mental health professionals, but for the patient’s parents, and those who interact with the individual. Except with the benefit of hindsight, there usually is very little to reliably distinguish those emotionally disturbed individuals who act out violently from the much larger set of disturbed individuals who never do.
Both defense psychiatrists found that Hinckley had a serious mental illness, which had produced psychotic symptoms. For one expert the psychosis appeared to manifest itself as a strong compulsion to be with Jodie Foster that could only be acted out by killing the President. Hinckley may have had an intellectual appreciation that what he was about to do was morally wrong, but on an emotional level there was no such appreciation. The other psychiatrist saw Hinckley’s actions as being part of a delusion. A third defense expert, who was a psychologist, testified that based on Hinckley’s performance on the Minnesota Multiphasic Personality Inventory, the defendant’s answers were so extraordinarily abnormal virtually everyone with a comparable score had a serious mental illness.
The government’s first expert was Dr. Park Dietz, who would gain notoriety some twenty years later by either making an inexcusable mistake or deliberately lying in the Andrea Yates case, that a depressed mother, who had drowned her five children in a bathtub, was faking her psychotic symptoms in order to appear to be insane. In Hinckley’s trial, Dietz acknowledged that the defendant had various personality disorders, but Dietz concluded that none of them rose to the level of psychosis, much less constituted insanity. What appeared to be an abnormal, delusional obsession with Jodie Foster that had turned Hinckley into a stalker, Dietz dismissed as a type of reaction that a fan would have for a star that he felt a strong emotional attachment to. On the day of the attempted assassination, Hinckley had carried out a carefully designed plan that had worked as he had hoped, which indicated to Dietz that the defendant must have had an awareness of the consequences of what he had been doing. A second psychiatric expert for the government reiterated and supported Dietz’s testimony.
In essence, while Hinckley was on trial, federal prosecutors argued that he did not have a serious mental illness, so he could not have been insane. According to their expert witnesses, the defendant’s condition was similar to what Hinckley’s Colorado psychiatrist had incorrectly imagined: an underperforming, lazy rich kid who had personality disorders. After the not guilty by reason of insanity verdict, the federal government’s position about Hinckley’s mental state would change radically, as would the position of the lawyers representing Hinckley. Both sides would deliberately switch their opinions in order to promote or discount the seriousness of Hinckley’s ongoing mental illness in the context of his confinement. This reversal of perceptions, which has occurred in many other legal cases as well, illustrates the Achilles heel of our advocacy system when it is used to determine an individual’s mental state.
The Insanity Verdict’s Effect on Mental Health Law and Policies Going Forward
It is doubtful that the effects of Hinckley’s not guilty by reason of insanity verdicts on all thirteen counts against him would have been as consequential, if he had carried out his assassination attempt against President Jimmy Carter, as he had originally contemplated, rather than President Reagan. Carter was sympathetic to mental health treatment in a very compassionate and non-coercive way, in large part because of his First Lady, Rosalynn. He also was sympathetic to the notion of rehabilitating prisoners and criminal justice reforms.
Reagan, on the other hand, was a law and order advocate, who as Governor of California joined President Nixon in pushing for much harsher criminal penalties and opposing efforts to rehabilitate prisoners. Thus, Hinckley’s insane actions, while devastating to all Americans, also proved to be a unique and powerful opportunity to push the new President’s law and order agenda by emasculating the notion of diminished culpability and cutting expenditures for mental health and rehabilitation programs for prisoners and other inmates.
Many people have written about the effects of specific changes to the insanity standards and switching the burden of proof to the defense in these cases. A verdict that was used only 1% of the time in felony prosecutions and proved unsuccessful nearly three times out of four became almost a practical impossibility, except in those cases with highly sympathetic defendants, such as mothers with post-partum depression, or defendants with enough wealth that they could pay for the very best defense and expert witnesses, regardless of the cost.
Unfortunately, curtailment of the insanity defense was the tip of the iceberg and a relatively modest legal transformation in comparison to other changes that were set into motion. The far greater legal and social impacts were what became known collectively as the criminalization of persons with mental disabilities. The Hinckley verdict helped the Reagan Administration change the public and academic perception that people with mental impairments were ill and should be treated compassionately with the presumption that people with such impairments are inherently dangerous. Civil institutions were no longer a practical solution for a vast majority of people with serious mental disabilities and committing them involuntarily was legally prohibited in most cases. Thus, the overwhelming desire to protect the public from the dangers that people with mental disabilities were presumed to pose had to be satisfied within the criminal justice system.
Legal fictions were created, which allowed the states and the federal government to detain and control these presumptively dangerous people by curtailing diminished culpability defenses and dispositions, while using predictions of dangerousness to incarcerate and otherwise control offenders with mental disabilities for much longer periods of time than other individuals, who committed comparable crimes. In addition, in order to save money by not wasting it on the rehabilitation of inmates, adequate mental health care would rarely be provided for in our criminal justice system going forward. We decided to adopt laws and policies that allowed governments to simply lock these impaired individuals up and throw away the key indefinitely, which increasingly has meant for a very long time, or until they die. With little available treatment within or outside the criminal justice system and predictions of dangerousness being based, in large part, on an inability to get better, an ominous catch-22 was put in place that tended to be devastating to anyone who had a mental disability and was ever deemed to be dangerous.
John Hinckley’s Incarceration At St. Elizabeth’s Hospital
After a jury found John Hinckley not guilty by reason of insanity, he was transferred to St. Elizabeth’s Hospital for an indefinite period of time, which has lasted for well over thirty years. He should have been the poster-patient for the benefits of mental health treatment and rehabilitation. There was no legitimate therapeutic reason why he was not transformed rather quickly into a relatively high-functioning citizen, who posed little danger to anyone.
In fact, he has been that model patient for many years now, but the federal government has been unwilling to admit success in its reflexive efforts to keep him permanently constrained by inventing reasons why he might be dangerous. Many of those reasons have revolved around his trying to have relationships with various women at St. Elizabeth’s, which were typically conceptualized, without any real proof, as a continuation of the type of obsessive behaviors he expressed with regard to Jodie Foster. The fact that he had largely concluded his Jodie Foster obsession, as soon as she failed to recognize him at his trial, never impressed federal authorities.
On many different occasions over many years, Hinckley has tried to obtain conditional release and gain more freedoms. Each time the federal government has opposed his applications. As the federal prosecutor, who failed to convict Hinckley and has steadfastly opposed his release observed, “we [meaning the federal government] do not believe that anyone who tries to nullify a national election with a bullet deserves the privilege of moving freely in a civilized society.” Various court decisions document how absurd and conniving this governmental obsession has become.
The man who federal prosecutors said did not have a serious mental illness when he was tried, suddenly became so ill after he was committed to St. Elizabeth’s that for decades representatives of the federal government have contended that Hinckley has made no substantial progress, despite receiving much better mental health care and treatment than a vast majority of people with mental impairments receive in the criminal justice system. In order to make that legal argument, however, the federal government has had to bypass or neutralize the treatment staff at St. Elizabeth’s on numerous occasions.
For example, in 1997, a lower federal court decided that even after fifteen years in captivity, Hinckley’s condition precluded him from spending 12 hours a week under the supervision of his parents as his treatment team had recommended. What raised suspicions of possible impropriety by the federal government was that the hospital’s review board had countermanded the treatment team behind closed doors for reasons that Hinckley and his legal counsel were not allowed to be privy to because such sessions were deemed confidential. The D.C. Court of Appeals upheld the lower court, including its decision not to compel the review board to make public its decision-making process.
A year later, however, Hinckley’s treatment team, presumably with the review board’s acquiescence, granted him a one-time, six-hour holiday pass to leave the grounds in the company of his parents, but with the direct supervision of hospital staff. True to form, U.S. attorneys successfully opposed this pass, at least initially, by convincing a lower federal court that the staff-instituted action constituted a conditional release, which required the court’s approval. The judge in that case also decided to agree with the federal government that any type of release for any amount of time would pose a danger to the community. A divided D.C. Court of Appeals reversed, ruling that this pass was not a conditional release, which required the lower court’s approval.
Since 1998 Hinckley has been granted incrementally longer and more frequent visitation opportunities falling well-short of full conditional release, all of which the federal government has opposed using spurious arguments. For example, in 2012, nearly fifteen years after he received his first pass, the government contended that Hinckley should still be denied his freedom because he was having a sexual relationship with a woman, which “increased the risk for violence due to depression or…to demonstrate his love for a woman.” Also, Hinckley had supposedly demonstrated his proclivity for violence because, while on a pass from St. Elizabeth’s, he had stared intently at a bookshelf in Barnes & Noble, which, along with many other titles, contained a history book on the assassination of President McKinley. Apparently, whenever Hinckley was allowed to leave St. Elizabeth’s, the secret service assigned agents to follow him.
As political commentator Roger Simon concluded back in 2009, “John Hinckley is a political prisoner. Or at least a prisoner of politics.” Hinckley became such a prisoner as soon as he was committed to St. Elizabeth’s and has remained so, even though since 1985 his “doctors have been saying he is in ‘full remission.’” Now there is a real possibility that Hinckley may become a free man in the foreseeable future.
The court that has been overseeing Hinckley’s release status has decided that as long as certain strict guidelines are followed, he may visit his mother in Williamsburg, Virginia up to 17 days a month. The nearly 60-year-old patient also will be permitted to drive a car to and from appointments and locations where someone is expecting him, which would include his volunteer job. Previously, if he wanted to drive while on these visits he had to be accompanied by family. Whenever he is unsupervised, however, he must carry a cell phone that has GPS capability, which is turned on. Hinckley also is restricted in how and when he may use the internet. Greater freedoms may be granted later on, but only after he has made at least eight successful visits with his mother—and presumably only if the political pressure to keep him confined does not increase too much.
The laws and policies that Hinckley’s insane actions helped spawn made it extremely difficult for him to be released into the community. What has happened to him is atypical in many respects. Even though he has been railroaded in the legal system, at least he has received relatively humane care and treatment. However, in other ways, his situation exemplifies what mental health care in the criminal justice system has become ever since Hinckley made an unwilling Jodie Foster a part of the lexicon of American history.
Fears of dangerousness, based on flawed beliefs and predictions, rather than empirical evidence, have overwhelmed the potential benefits of humane care, treatment, and rehabilitation. Criminal incarceration and other constraints on liberties have transformed America into being the most punitive industrialized society in the world, by far. Our most inhumane measures, however, have been reserved for people with mental disabilities, who are deemed to be dangerous. Public health, especially mental health, has been marginalized by various beliefs with no scientific or empirical basis that can infiltrate American society almost instantaneously. This is the postmodern version of tyranny of the majority in which scientific evidence and rational thought are viewed with distain, or simply ignored because it is inconvenient. Cognitive dissonance has become a national malady, especially with regard to our inhumane treatment of people with mental disabilities.
1. John Weston Parry, Mental Disability, Violence, Future Dangerousness: Myths Behind the Presumption of Guilt (Rowman & Littlefield, October 2013).
2. John W. Parry, Criminal Mental Health and Disability Law, Evidence and Testimony (American Bar Association 2009).
3. Back Issues of the ABA’s Mental & Physical Disability Law Reporter (1976-2011). In 2011, the Reporter ceased publication.
4. Douglas Linder, “John Hinckley,” (University of Missouri-Kansas City School of Law April 2002).
5. Andrew Cohen, “The Day John Hinckley Jr. Walked Into a Bookstore,” The Atlantic Monthly (Jan. 2012).
6. Roger Simon, “Time to Let John Hinckley Go?” (06/18/09) Politico.com (last visited July 27, 2014)
THE DONALD STERLING BASKETBALL AFFAIR:
FIGHTING RACISM WITH SANISM
By John Weston Parry
Nowhere in American life are stigmas, biases, and prejudices based on mental disabilities more pronounced than in the world of athletics, particularly with our most popular spectator sports. “Sanism” has a strong influence on our athletes, coaches, managers, owners, and leagues, which reflects a broader and more pernicious problem throughout our society. Sports not only mirror, but intensify, “sanism” in America. Having a mental disability is about the worst thing that can happen to an athlete or coach, which is why normally it is such a guarded secret. In today's sports world, as with society more generally, what would be clearly labeled as inappropriate if it involved any other type of illegal or illicit discrimination is embraced without much dissent if it involves mental disabilities. The disturbing Donald Sterling affair illustrates this bias.
Sterling, the disgraced owner of the Los Angeles Clippers National Basketball Association (NBA) team, is by most public accounts an unpleasant and racially insensitive man. He was transformed from an impending N.A.A.C.P. community service award recipient to racist villain, based on his private views that were recorded without his permission. Otherwise, his money and social status would have ensured that he received that award and continued to own his team and the social standing that brought him, even though it was strongly suspected that he held views that were racially suspect, if not actually racist. Instead, he became one of a slew of sports personalities, including Jimmy the Greek Snyder and Marge Schott, who have seen their elevated social standings disappear and been threatened with the loss of employment or other economic sanctions, after they uttered public words that were considered to be, or were, racist.
There is a definite line in polite society that cannot be crossed when it comes to race and ethnicity, gender, and lately sexual preference. No such line exists with respect to disability generally, and mental disabilities most of all. Sanist language rarely creates a public outcry. If Sterling had told his girlfriend not to bring her “psycho” or “retarded” friends to games because he was convinced they would have made him look bad, in all likelihood nothing of consequence would have happened.
Whether anyone should lose their possessions or be deprived of their economic interests due to their private discriminatory words pits anti-discrimination against privacy rights and freedom of speech. Reasonable people can embrace varying positions in trying to resolve this conflict between important social values. Assuming the answer is yes, however, as was the sports public's verdict in the Sterling affair, it is regrettable that a “sanist” double standard is being employed in order to attempt to civilly punish him for his offensive words.
What the NBA and much of the sports public and media wanted was for Sterling to go away by forcing him to sell his interest in his team. This would allow the other NBA owners to minimize the public relations damage and move on, while avoiding any potentially embarrassing questions about other racial inequities and insensitivities involving NBA teams, their owners, and the league. There was an important reason why the newly-installed NBA Commissioner, Adam Silver, was very careful not to say that the league was taking away Sterling’s interest in his team when Silver banished the Clipper’s owner from attending or participating in NBA games and events for life. Legally, it appeared very likely that the decision whether and how to sell his interest in the team was Sterling’s to make, regardless of what the NBA, its players, and the fans believed would be the best thing for him to do.
Yet, his having these seemingly inalienable legal rights did not really end the matter. It turns out that controlling interest in the team was not owned by Sterling himself, but rather a family trust that he had established with himself as trustee in order to mine certain short and long-term tax advantages. One of the major beneficiaries in this trust was his estranged wife, Rochelle, as well as other members of his extended family. Without securing Donald Sterling’s consent, Rochelle, who after Donald held the most power under the trust, unilaterally tried to sell the Los Angeles Clippers to Steve Ballmer, who once was the chief executive at Microsoft, for a reported $2 billion. She did this by declaring that her husband was mentally incompetent, making herself the acting executor of the trust. This shrewd business maneuver was hailed throughout the sports world and in much of the media. The unfortunate irony was that one form of pernicious discrimination, based on mental disability, was being used to justify popular retribution for another type of pernicious discrimination based on race.
One of the most disturbing aspects of American law is that the rights of persons with mental disabilities have been consistently shortchanged. There have been too many instances in which people who are legally competent have been deprived of their right to make decisions for themselves based on allegations of mental incapacity; or when people are found to be legally incompetent, someone else makes a decision for them, which ignores the stated preferences of the person with the mental disability in order to satisfy someone else’s agenda. This is exactly what Rochelle Sterling is trying to do to her estranged husband with the complicity of the sports media, and perhaps the courts. In the more distant past, it was usually the husband who deprived his wife or children of their legal rights based on dubious or entirely inaccurate allegations of mental incompetency. Apparently, this is a new form of gender equality.
Whether or not Donald Sterling is mentally incompetent cannot be reasonably assessed based on hearsay opinions of mental health experts, who reportedly believed that he may have a mental impairment. Mental incompetency is a serious legal determination that ultimately should be made by a court of law based on clear and convincing evidence submitted by both the respondent, whose rights are in jeopardy, and the party who is alleging the person is incompetent. The burden of proof is on the party alleging incompetency. Proving mental incompetency to make basic contractual and business-related decisions normally is a high threshold to meet. The minimum standard for individuals to retain their contractual rights is very low. Merely because Sterling reportedly has a “mild cognitive impairment consistent with early Alzheimer’s disease,” is not nearly enough to establish his mental incompetency as a legal matter. In fact, that description strongly suggests that he is not legally incompetent and his estranged spouse is trying to use her influence to undermine his legal rights.
In California, as in many states, even if a person is found to be mentally incompetent, it is typically incumbent upon the court – or a substitute decision-maker – in making a decision on behalf of the incompetent person, to determine what that individual would have wanted. In this case, it should be pretty obvious from his public statements that Sterling has indicated in no uncertain terms that he does not want his interest in the team to be sold without exhausting all of his legal remedies, unless he gives his consent. Simply because most of America despises the man, does not mean he should lose his legal rights with regard to the Clippers, even if he were mentally incompetent, which apparently he is not.
Two billion dollars is what may bring Sterling to his senses, not unfortunate court theatrics that are unlikely to withstand judicial scrutiny on appeal should the lower court decide to allow the team to be sold by the Sterling Family Trust against the clearly-stated wishes of Sterling himself. Reportedly, two Los Angeles-based mental health experts, one a neurologist and the other a geriatric psychiatrist, retained by Rochelle Sterling, concluded that Donald lacked the capacity to serve as trustee of the family trust. They reportedly based their opinions in part on CT and PET scans, even though those “tests” have never been shown to be reliable in drawing this type of legal conclusion. In addition, the neurologist was a social acquaintance of Rochelle and is alleged to have based her opinion in part on what transpired when Donald took them all out to dine at the Polo Lounge in Hollywood, which if true would be unethical.
Let us suppose that Donald Sterling actually has had certain significant medical issues related to his mental condition. That would place his private “ravings, which became public, in an entirely different context. Even if his alleged impairments fell far short of meeting the legal threshold for establishing contractual incompetency, they could plausibly explain why an 80-year-old white man was so insecure about his lover’s social involvement with younger African-American athletes that he felt compelled to extrapolate on why she should not associate with them. He tried to bolster and defend his position using outrageous racist analogies, including the difference between white Jews and black Jews.
In the tape recordings of what he said, reproduced by Deadspin, Sterling never maintained that his racial beliefs were based on what was right or wrong. He discounted morality entirely. He emphasized that his views were all about how, in his mind, society viewed blacks as being inferior to whites, and there was little he could do about that. “I don’t want to change the culture, because I can’t.” According to Deadspin, his were the words of “a doddering racist….”
Logically, Donald Sterling either is responsible for his utterances and more than competent enough to make his own business decisions, or he is of questionable competence and only partially responsible for the views that were made public. The media and the courts should not have it both ways, but in our society that is what typically happens. Persons with a presumed mental disability receive little or no reduction in their culpability for their behaviors, but are punished or sanctioned more harshly or deprived of more rights than if they had no mental disorder at all. This is a basic theme in American law that is detailed in Mental Disability, Violence, Future Dangerousness: Myths Behind the Presumption of Guilt (Rowman & Littlefield, October 2013). Brief excerpts without references enlarging on various mental disability aspects that apply to the Sterling affair appear below in bold italics, along with other observations based on this book.
Civil Rights' Injustices
In America, injustices against persons with mental disabilities are well-entrenched both in the fabric of society and our laws based on legal, psychiatric, psychological, and governmental structures and public opinion... Even overwhelming [social science and empirical] evidence [that mental status expert evidence and testimony is] unreliable and discriminatory will be met with skepticism and broad-based resistance. To paraphrase the theoretical physicist, Lawrence Krauss, “unless science, [empirical evidence] and data become central to informing our public policies, our [nation] will [continue to] be hamstrung.
For people with mental disabilities their inability to think or act rationally is generally ignored in terms of assessing their culpability, while their mental conditions are used as justification for applying harsher penalties and deprivations of rights. This occurs in both the criminal and civil justice systems. Typically, such bias arises not only because these individuals are presumed to be particularly dangerous to others and themselves, but also because they are presumed to be mentally incompetent to make decisions for themselves. This is part of a long and often deplorable history of discrimination in the United States....[F]or over two centuries now most Americans with serious mental disabilities [or thought to have such disabilities] have been subjected to stigma, prejudice, abuse, neglect, and/or inadequate or nonexistent treatment....Such callousness toward people with mental disabilities has been a product of ...“sanism,” which... is no less, and often even more, pernicious than racism.
The language we continue to use in referring to persons with mental disabilities is dehumanizing and subjects them to blatant injustices especially in the legal system. Unlike racism and sexism, which generally are condemned when made public and subjected to heightened constitutional scrutiny..., sanism is practiced rather openly and its manifestations are ...subject to less judicial scrutiny....[O]ur legal system has adopted special rules for the admission of unreliable psychiatric and psychological evidence, which place persons with mental disabilities at a serious disadvantage.
Over the years, the language used to disparage and demean persons with mental disabilities has changed somewhat to keep up with the times. Nevertheless, our popular culture is still littered with terms like “retards”... “mental defectives... “going postal,” and other derogatory, stigmatizing, inflammatory, and alarming references targeted exclusively at persons with...mental disabilities..... While polite society scrupulously avoids such discriminatory references for other categories of people..., these...references continue to be commonly used to improperly describe or categorize people with mental disabilities.
Loss of Decision-making Rights
Historically, people who were institutionalized based on their mental disabilities lost their basic rights of citizenship....including personal and financial decision[making]...and privileges...such as voting, holding elected office, and driving. Many of their decision were made for them by [g]reedy, ill-informed, and/or unprincipled relatives [and] friends... [who] could, and often did, deplete the patients' estates, steal their possessions, or consent to highly questionable medical procedures....
Today, many different types of civil injustices based on prejudices and stereotypes about persons with mental disabilities remain in place. Donald Sterling was pretty much impervious to any legal attacks for his racist language, until issues regarding his mental competency were raised based on unreliable expert evidence, including purported CT and PET scan results. He was transformed from a man who uttered despicable words into a victim of sanism.
Michael Perlin defines sanism to mean “an irrational prejudice, due to a person's mental or emotional disability, that is `based predominantly on stereotype, myth, superstition, and deindividualization,' which infects ... our jurisprudence....” Sanist language disparages persons with mental disabilities by communicating that those negatively labeled individuals are somehow less worthy as human beings, and thus [may] be...treated differently from the rest of society to their detriment, particularly in our legal system.
CT And PET Scans
The use of neurologists, who depend on CT and Pet scans to make legally relevant diagnoses, is an emerging practice that has no sound empirical basis. As a scientific matter, such conclusions are bogus if used to prove a person's dangerousness or mental incompetency. The notion that Donald Sterling could lose his decision-making rights founded in part on such spurious evidence would be an indictment of our legal system. Such evidence should never be allowed to go forward in a court of law to prove a person’s mental status. Hopefully, such flawed neuroimaging results will not prove determinative in this case because, if they do, it not only will represent a miscarriage of justice in Sterling's case, but it will set a terrible legal precedent.
This use of “neuroimaging,” based on various types of brain scans, presumes that there is some meaningful correlation between perceived damage and irregularities in certain parts of the brain and [various].... types of behaviors.... The actual correlations appear to be very low, even as applied to large groups of people, much less particular individuals....[Overwhelming]practical limitations negate the legal value of trying to identify areas of the brain in specific individuals that are damaged or irregular.
THE DEATH PENALTY AND PEOPLE WITH MENTAL DISABILITIES:
The Implications of Hall v Florida
John Weston Parry, J.D.
The United States Supreme Court’s ruling in Hall v Florida, No. 12-10882 (U.S. Sup. Ct. May 27, 2014)—which struck down Florida’s (and by reference nine other states’) inflexible standards for determining whether defendants have an intellectual disability that makes them ineligible for the death penalty—should be viewed as critically important, beyond the narrow holding itself. First, the 5-4 majority opinion reprioritizes the relative importance of the two major rationales used to justify the ban on executing persons with intellectual disabilities established in Atkins v. Virginia, 536 U.S. 304 (2002). This shift in emphasis substantially increases the possibility that in the future, defendants with other types of severe mental disorders may be constitutionally protected from being executed. Second, even if “contemporary values” change and a majority of Americans come to believe that executing persons with intellectual disabilities should be permitted, Hall has embraced a persuasive independent constitutional basis for upholding Atkins.
The Supreme Court’s Opinion
Freddie Lee Hall was convicted of murder in 1981, for which he received the death penalty. After the U.S. Supreme Court rendered its historic decision in Atkins, Hall challenged his sentence in state court based on evidence that he had an intellectual disability (which was then called mental retardation) that exempted him from execution. As part of his evidence, Hall submitted an IQ test, which indicated that he had a score of 71. Because Florida’s legal definition of intellectual disability requires a score of 70 or less, no other evidence about his condition was admissible; he was automatically deemed eligible for the death penalty that he had received at sentencing. The Florida Supreme Court upheld Hall’s sentence, determining that the requirement that he have an IQ score of 70 or less in order to be eligible for the execution ban met constitutional standards under Atkins.
In an opinion written by Justice Kennedy, a divided U.S. Supreme Court struck down the Florida law as interpreted. The majority was convinced that the Eighth Amendment’s requirement that government “respect the dignity of all persons” prohibited the execution of persons with intellectual disabilities. No “penological purpose” would be served in executing this particular group of defendants. In addition, due to their impairments, defendants with intellectual disabilities are at an increased risk of being executed wrongfully. Not only is there a greater likelihood that they will make false confessions, but often they are poor witnesses and unable to provide meaningful assistance to their lawyers.
Discussion of the Majority Opinion: What Was Missing?
What was conspicuously absent in the Court’s opinion was the rationale in Atkins that at the time appeared to be the main reason that Court had overturned a prior decision in Penry v. Lynaugh, 492 U.S. 302 (1989), which had upheld the execution of persons with mental retardation. As explained in Mental Disability, Violence, Future Dangerousness: Myths Behind the Presumption of Guilt (Rowman & Littlefield, Oct. 2013) (excerpts in bold italics without references supplied),
The Atkins decision had two major intertwined rationales, which requires treating people with mental retardation differently than any other category of adult capital defendants… The first rationale was the one articulated by Kennedy in the majority opinion in Hall. This should have been sufficient to support the Atkins ruling.
Unfortunately it was not. A second—arguably even more decisive rationale—was needed to justify the Court’s overruling existing precedent. That rationale focused on a new national consensus [that] had evolved. This shift in attitudes made execution of persons with mental retardation morally offensive, which, under the Eighth Amendment… provided the necessary constitutional linchpin for overruling the prior decision…. As… necessary as… [this legal rationale] proved to be, it also reinforced and expanded a legal precedent that someday could have negative repercussions for persons with mental disabilities…[T]his particular rationale…has potential negative implications…for people with mental disabilities, whose lack of popularity has made them especially vulnerable to abuse and injustice by majority acclimation.
The “change in attitudes” rationale almost scuttled the majority decision in Hall. Four justices in their dissent embraced that part of the Atkins decision in challenging the majority’s reasoning and outcome. In Penry and Atkins it was Justice O’Connor who cast the deciding vote in each decision and changed her mind in the subsequent case. In Hall, as in a number of cases since O’Connor retired, Kennedy has been the justice who generally holds the balance of power in these types of criminally-oriented rights cases. Without his deciding vote, Justice Alito’s dissent probably would have been the majority opinion.
The dissent in Hall focused on the Eighth Amendment’s proscription that “whether a punishment is `cruel and unusual’ depends on currently prevailing social norms….” This was the basis for the prevailing rationale in Atkins. As the majority had explained in Penry, “the Court has long held that laws enacted by state legislatures provide the `clearest and most reliable objective evidence of contemporary values….” Thus, when the execution of persons with mental retardation (now called intellectual disabilities) was supported only in a minority of states, this reflected the necessary change in attitudes. “`[I]n a democratic society[,] legislatures, not courts, are constituted to respond to the will and consequently the moral values of the people….”
Utilizing this interpretation as the primary basis by which Atkins had been decided, the dissent challenged the majority with the following argument:
While Atkins identified a consensus against the execution of the intellectually disabled…there was `serious disagreement’ among the States with respect to the best method for `determining which offenders are retarded.’ The Court therefore `le[ft] to the States the task of developing appropriate ways’ to identify these defendants…Atkins `did not provide definitive procedural or substantive guides for determining when a person’ is intellectually disabled.
The majority opinion in Hall relied in part on the medical, psychological, and disability expertise of those who prepare the standards and guidelines by which intellectual disabilities are determined, nationally. This evidence had been presented by the leading professional organizations representing those disciplines, including the American Psychiatric Association and the American Association on Intellectual and Developmental Disabilities. It was clear using those accepted standards and guidelines that the use of an IQ score alone, much less one that was as low as Florida’s, did not comport with either the best evidence or best practices. Equally important to intellectual function in the definition of intellectual disability is the individual’s adaptive behavior, which cannot measured by an IQ score. Alito, however, as a matter of legal precedent, was able to counter such powerful medical, psychological, and disability evidence with this argument:
In… prior cases, when the Court referred to the evolving standards of a maturing `society,’ the Court meant the standards of American society as a whole. Now, however the Court strikes down a state law based on the evolving standards of professional societies…This approach cannot be reconciled with the framework prescribed by our Eighth Amendment cases.
Discussion of the Decision’s Implications
Alito and his fellow dissenters presented a strong legal argument that is convincing, unless you embrace the other major rationale that was used to support Atkins and was the primary rationale for the majority opinion in Hall. “Respect for the dignity of all persons” is a cornerstone of the Eighth Amendment, along with the prohibition against “cruel and unusual punishment.” Prohibiting executions of individuals, who have demonstrated that they have a “special risk of wrongful execution,” serves the fundamental interest of protecting the integrity of the trial process.
The narrow holding in Hall would make it a decision that, as the New York Times accurately observed, “may spare some inmates on death row” in nine states, including Alabama, Arizona, Delaware, Florida, Kansas, Kentucky, North Carolina, Virginia and Washington (L. Alvarez & J. Schwartz, May 28, 2014). The Courts change in emphasis, however, which embraces “respect for dignity,” fundamentally transforms the death penalty landscape for persons with any type of mental condition or disorder that makes them a “special risk [for] wrongful execution.” Those risks, as described by the majority opinions in Hall and Atkins, include: a tendency to make false or inaccurate confessions; an inability to perform ably as a witness; and an inability to “meaningful[ly]” assist counsel. Yet, there are many other substantial risks that capital defendants with mental disabilities share.
Many of the arguments for expanding the right not to be executed, from only persons with intellectual disabilities narrowly defined, to anyone with a mental impairment that seriously affects their abilities to be tried fairly, are articulated in Mental Disability, Violence, Future Dangerousness: Myths Behind the Presumption of Guilt (Rowman & Littlefield, Oct. 2013). Brief excerpts without references follow below in bold italics, along with other observations based on the book.
The most important reason that defendants with mental disabilities cannot obtain a fair trial by a jury or judge in a death penalty case is the future dangerousness standard that is used to decide whether executions are justified, coupled with the societal stereotype that persons with mental disabilities are inherently dangerous. As John Blume’s research has shown, [courts often—and arguably almost always—rely on future dangerousness to justify the death penalty, and this reliance can be either de facto or dejure. Unfortunately, how these assessments are made, particularly for persons with mental disabilities, remains a travesty of justice.
Assessments by state-retained experts have proven to be unreliable, generally failing to meet even the lowest standard of proof—a preponderance of the evidence—much less the most rigorous beyond a reasonable doubt standard…that our Constitution demands for criminal convictions, but not…for sentencing. In death penalty cases, the critical factor is what the jury believes, which has turned this … into an evidentiary free-for-all that is worse when inherently faulty predictions of dangerousness of or assumptions about dangerousness are relied upon to execute persons with mental disabilities….As Michael Perlin’s work has revealed, [s]tudies substantiate [that] `there is no question that the death penalty is disproportionately imposed in cases involving defendants with mental disabilities.’”
The second factor that makes the death penalty unfair with regard to persons with mental disabilities is what Michael Perlin has called “sanism,” which is bias, prejudice, and stigma that is analogous to racism. His book Mental Disability and the Death Penalty (Rowman & Littlefield 2013) and my book demonstrate convincingly that mental disability plays a much more significant role in contributing to the death penalty verdicts than in preventing them…. Defendants with mental illnesses, below normal intelligence, and other cognitive deficiencies, who are not protected by… Atkins… is particularly vulnerable to being executed. There are at least four reasons why this bias occurs.
To begin with, many, if not most, persons with serious mental disabilities are more likely to confess or be convinced to confess…. Such confessions often are false… [or] inaccurate, misleading, or overly damning….Also many interrogators deliberately use a suspect’s mental impairments to facilitate a confession…. In addition, most jurisdictions have narrowed, or all but repealed, the statutes that used to allow defendants… to pursue diminished culpability defenses…. Furthermore, mental impairments are much more likely to be used as an aggravating factor … than as a mitigating factor that would reduce their culpability. Finally, most capital defendants lack the means to hire their own mental health experts to help their lawyers prepare mental status defenses and mitigation strategies, and to testify at trial.
Thus, for these and other reasons, in 2006 the American Bar Association, the American Psychiatric Association, the American Psychological Association, and the National Alliance of the Mentally Ill jointly recommended that defendants with certain severe mental disorders—in addition to mental retardation—should not be executed. Nevertheless, not a single jurisdiction has passed legislation to require such an exemption….This lack of concern for persons with mental disabilities extends throughout our legal system.
As a result of how people with mental disabilities are treated with regard to the death penalty specifically, but more importantly in our criminal justice and civil detention and monitoring systems as a whole, I argue that persons 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), make up an insular minority, which should be recognized as a suspect classification under our Constitution.
VULNERABLE PEOPLE WITH MENTAL IMPAIRMENTS, WHO ARE THOUGHT TO BE POTENTIAL NUISANCES AND THREATS TO THEIR COMMUNITIES: RECOMMENDATIONS FOR REFORM
John Weston Parry, J.D.
In the United States, abused children, veterans, and people who are homeless have at least one thing in common. They are far more likely than members of other groups in our society to have or develop mental impairments, which will subject them to criminal or civil incarceration or other coercive restrictions on their rights and liberties. Members of these vulnerable populations are usually neglected as well, until—as a result of their mental impairments—they are viewed as being potential nuisances or threats to their communities; then incarceration and other coercive interventions are applied. It is a cycle that repeats itself many hundreds of thousands of times each year. Yet, almost no one objects or speaks out on behalf of those in jeopardy, even though the injustices against them have been steadily increasing.
Each of these special interest groups—abused children, veterans, the homeless, and those who have mental impairments—have their advocates, to a certain extent. However, once these vulnerable individuals are deemed to be potential threats or serious nuisances to their communities, their former advocates tend to disappear. This happens because the federal and corporate funding and media support that these non-profit advocacy organizations depend on would be jeopardized if their staffs actively advocated for these highly stigmatized individuals. Moreover, competent legal representation, which these individuals so desperately need in order to fight accusations that they are dangerous or harmful to the social order, is inadequate, in short supply, or practically nonexistent. Instead, we have created a legal system that denies individuals with mental impairments, who are accused of dangerousness, of the normal due process protections and guarantees others in our society receive.
Thus, once individuals are officially accused of being dangerous or harmful due to their perceived mental impairments, it is highly likely that they will be deemed dangerous or harmful, usually based on unreliable and misleading “expert” testimony. Thereafter, these vulnerable people are placed in government custody and supervision, indefinitely, until they can prove that they are no longer dangerous or harmful in a society that assumes that people with mental impairments are inherently dangerous.
Unfortunately, both our criminal justice and civil social service agencies are woefully ill-equipped to deal with these individuals and their accumulating problems, much less to prevent their problems from occurring or growing worse. The social safety net has numerous gaps, which are widening every day. Tragically, it is people with serious mental impairments—particularly those who have been abused as children, combat veterans, and those who are homeless—who suffer the most neglect and deprivations of their rights, typically because they do not receive the community services that they need to live independently or with the assistance of family and friends.
The state and federal laws and policies that we currently have to deal with these vulnerable populations are discriminatory, unnecessarily coercive, punitive, and counterproductive. They need to be revamped to incorporate the principles of therapeutic jurisprudence and basic notions of human rights, fundamental fairness, and due process. As a nation, we should everything within reason to: (a) prevent these human tragedies from occurring in the first place; (b) reduce the combined stigmas of having a mental disability and being perceived as harmful or dangerous; and (c) eliminate the travesties of justice that befall the many hundreds of thousands of individuals with mental disabilities each year who end up in our criminal and civil legal systems.
What is happening to people with mental impairments, who are perceived to be dangerous or harmful—including abused children, soldiers, veterans, and people who are homeless—is comprehensively addressed in Mental Disability, Violence and Future Dangerousness: The Myths Behind the Presumption of Guilt (Rowman & Littlefield, October 2013). Chapter 8 “A New System of State and Federal Laws and Public Health Approaches for Persons with Mental Disabilities Deemed to be Dangerousness,” sets out specific recommendations for reform. Copyrighted excerpts of some of those recommendations 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.
Creation of a New Suspect Classification
A threshold recommendation urges the judicial system to recognize a new constitutionally protected suspect classification—in addition to those based on race, religion and ethnicity that have been upheld in the past—which would apply to persons 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)…. As set out in Chapter 7, “Deemed Dangerous Due to a Mental Disability: An Extremely Suspect Classification,” no group in our society today has endured [such] a long and unrelenting history of stigma, invidious discrimination, abuse, and mistreatment as this particular population.
In fact, no group of Americans… continues to be treated worse. They are the epitome of a suspect classification under our Constitution. Instead of being specially protected under our legal system, these individuals are singled out for special deprivations of their rights that only apply to them based on flawed, unreliable, and misleading predictions about their potential dangerousness. These recommendations would establish three narrowly tailored criteria, which could be used to easily and accurately identify members of this suspect classification.
The Legal Concept of Future Dangerousness Should be Eliminated or Strictly Limited
For a number of reasons, badly flawed and grossly imprecise standards of future dangerousness have evolved as the primary bases for depriving people with mental disabilities of their fundamental rights and liberties. Unreliable predictions and impressions as to whether these defendants or respondents are likely to be dangerous or harmful have replaced persuasive legal proof. Making matters worse, likely does not even mean more likely than not. Thus, many people with mental impairments, who are unlikely to be dangerous, are subject to involuntary commitments and other harsh interventions based on the fear that they might be.
Generally, laws, legal standards, or procedures… based on predictions of dangerousness or harm …should be repealed or amended and narrowly tailored for specific purposes reflected in these recommendations. In addition, dangerousness evidence and testimony should not be admitted in any court or used by juries or judges…, unless there is persuasive… evidence that the dangerousness prediction…is more likely than not to contribute to a relevant, accurate, and reliable legal determination…. Currently, such persuasive evidence has been lacking both in the scientific and other empirical literature and the courtroom. Thus, the law has spawned various legal fictions to enable this faulty evidence to be used and relied upon with minimal—and often no—judicial scrutiny.
Generally, Dangerousness to Others Should Be a Criminal Disposition
Except where there is a legally recognized emergency or an individual enters into a contract to receive specified services from state or federal governments consistent with these recommendations, dangerousness or harmfulness to others… should be treated as criminal dispositions subject to… full due process protections…. Moreover, criminal offenders with mental disabilities… should receive humane mental health care and treatment….
Findings of Dangerousness to Oneself Should Require Serious and Imminent Bodily Harm; Consensual Care Is Always the Preferred Option
All involuntary or coerced care and treatment should require a finding of serious and imminent bodily harm. Due process requirements should increase as the length of the potential intervention increases. For a forty eight hour hold in what the recommendations refer to as a legally recognized emergency intervention without a court order…, there should be no less than persuasive evidence—more likely than not….” for the disposition to be carried out. After someone has been held for forty eight hours, there should be a formal judicial determination in a due process hearing in which the respondent has competent legal representation. The government should have the burden of proof by clear and convincing evidence. Those interventions should last no longer than seven days before a new hearing is required.
In special circumstances, thirty-day or indefinite interventions are permitted, but they require enhanced due process and are to be viewed as dispositions of last resort. At any time, a respondent or his or her duly authorized substitute decision-maker may accept contractually agreed-upon care and treatment, which would replace any type of forced interventions. These provisions …apply equally to adults, juveniles, and children.
Criminal Offenders Are Entitled to Humane Care and Treatment
Any individual with a serious mental disability, who is being detained in the criminal justice system, should receive a level of care, treatment, and /or rehabilitation, which would allow them to reasonably benefit as specified in an individual offender plan. When that level of care is denied, offenders should have a private right of action…. in order to demonstrate that the plan has not been carried out in a reasonable manner.
Death Penalty Exclusions for Persons with Severe Mental Disabilities
With regard to imposing the death penalty on persons with severe mental disabilities, these recommendations endorse the 2006 joint guidelines approved by the American Bar Association, the American Psychiatric Association, the American Psychological Association, and the National Alliance of the Mentally Ill. Under these guidelines, almost all such executions would be prohibited. The exceptions are carefully specified in those guidelines.
General Entitlement to Consensual Mental Disability Care and Treatment
Comprehensive consensual care in the community should be attempted before coercion is mandated. [E]very minor and adult with a serious mental disorder, condition, or aberration should have… access to consensual…services and assistance in the community…. For the purposes of these recommendations, serious means that concerns about that individual’s mental health have been documented by public…officials, which could result in that individual being subjected to…coercive government interventions or restrictions consistent with these recommendations.
Federal and state governments should organize and underwrite a national education campaign…to substantially … change public perceptions about (a) stigma… against persons with mental disabilities; and (b) violence…associate[d] with persons who have mental disabilities. These two strong prejudices are key components of sanism, which has led to the systematic neglect, abuse, and mistreatment of persons with serious mental impairments throughout the United States, particularly when they are viewed as being dangerous.
The first essay is based on the book: Mental Disability, Violence, Future Dangerousness: Myths Behind the Presumption of Guilt (Rowman and Littlefield October 2013). The second essay is sarcastic social criticism.
SOLDIERS AND VETERANS WITH MENTAL DISABILITIES DEEMED TO BE DANGEROUS
John Weston Parry, J.D.
What the United States should do about the hundreds of thousands of soldiers and veterans who, because of their combat-related mental impairments, may be deemed to be dangerous is becoming an increasingly important social concern. Do they deserve to be treated better than other people in our society who have serious mental impairments, especially those whose conditions originated due to abuse, neglect, and violent trauma when they were children? If so, are we going to have two systems of civilian justice that will have more lenient standards and dispositions for veterans and soldiers than for everyone else? Or will we be smart enough to make a good faith effort to meet everyone's mental health needs, especially those who are likely to be deemed dangerous, if they do not received needed care and treatment?
Currently, we have systems of health, disability, and mental health care and treatment in this country that separate veterans and soldiers from everyone else. Ironically, the military model is based on the single payer system that the insurance companies and most politicians oppose so vehemently. While it definitely has had its problems and scandals, particularly in recognizing various combat-related mental conditions and impairments, the VA appears to operate better—or more correctly not as badly—as the civilian health care systems in serving those who have serious mental impairments. One substantial difference is that when soldiers and former soldiers are denied necessary mental health care and treatment, there are some people in our society who are willing to speak out and litigate, particularly veterans groups. When our children have been traumatized, brutalized, abused, and neglected, which has resulted in their having severe mental impairments, typically there have been even fewer people acting on their behalf.
Legally, however, while some soldiers and former soldiers with mental impairments may receive special treatment due to a particular sympathy for their situations and recognition of their service to this country, we do not have—and should not have—two systems of justice. If separate but equal does not work, then separate and unequal is even worse for the fabric of our society. The current exceptions are: (a) military justice, which is reserved for those who commit crimes while they actively serve in the military; and (b) veterans courts, which are extremely limited in their scope and jurisdictions, and do not really apply to former soldiers who are deemed to be dangerous.
What is happening to soldiers and veterans who have served in recent wars, and have mental impairments as a result, is addressed in Mental Disability, Violence and Future Dangerousness: The Myths Behind the Presumption of Guilt (Rowman & Littlefield, October 2013), as section of Chapter 6 “Dangerousness and the Unconscionable Failure to Provide Care and Treatment to Persons with Serious Mental Disabilities.” 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.
Scope of the Problem
A substantial percentage of the several million veterans and soldiers, who have served in the military in recent decades going back to the Vietnam War, have combat-related mental disabilities. This has been particularly true for those soldiers who served in Iraq and Afghanistan where multiple tours of duty and women soldiers being sexually assaulted became commonplace. At a time when our resources for mental health and related care and services are being downsized, this huge influx of potential veterans with serious mental impairments has had a devastating impact, not only on the VA and the military, but also civilian mental health care and related services.
This influx also has created a substantial and growing population of new American citizens and residents with mental disabilities who are being deemed dangerous in the media and our legal systems. Veterans with post-traumatic stress disorder and other serious mental conditions have become staples for television, movies, and video games. Moreover, suicides by soldier have been increasing. Also, reports of reckless behaviors by soldiers leading to self-harm and harm to others have been increasing. Furthermore, once soldiers return home many experience serious problems re-adjusting to civilian life, including fitting in with their families and friends.
In terms of presumed dangerousness, former soldiers with mental disabilities not only are saddled with the typical societal view that people with serious mental disabilities are inherently dangerous, but they also have to overcome the perception that they have had sophisticated training that has taught them to kill their enemies without qualms or hesitation.... Thus, combat veterans... may be deemed dangerous … at rates that are considerably higher than those of the general population, even though a vast majority of them will never act violently as civilians.
Mental Health Care and Treatment
Programs for soldiers and veterans with various mental disorders have received a great deal of publicity in recent years, but in reality, as with our civil mental health systems, the promises have fallen well short of fulfilling the actual needs. Scandal after scandal has been uncovered related to soldiers and veterans not receiving humane care and treatment. Moreover, the military still has a well-entrenched prejudice against—and an unwillingness to reward—soldiers who sustain mental injuries in combat as “fallen heroes.” The military culture…continues to be particularly insensitive in dealing with mental disabilities. Soldiers with mental injuries are not even eligible to receive the Purple Heart for injuries sustained in combat. They feel so stigmatized that many—and probably most—of them are reluctant to participate in treatment programs. It is not surprising that many returning soldiers try to hide their mental anguish, often turning to alcohol, drugs, and increasingly suicide.
Many lawsuits have been filed and a number of decisions rendered against the federal government because [m]ilitary doctors and the VA... often overlook, ignore, or try to minimize mental disorders.... Five years after the VA was cited for “manipulating disability ratings to save money” and a special appeals process had been created, not a single case had been heard. On the other hand, the military misdiagnosed “at least 31,000 service members” as having mental disorders, so that commanders could discharge soldiers they viewed as having maladaptive behaviors. Similar to many double standards in the law involving dangerousness, psychiatric diagnoses tend to be marginalized if they are being used to help soldiers or veterans received benefits from the federal government and are embraced and enhanced when they can be used by the military against soldiers or recruits to further military objectives.
Special courts have been established in this country that address the problems created by particular groups of people with special needs, including persons with mental disorders, drug addictions and those who are homeless or who suffer the effects of fetal alcohol syndrome. Originally, the stated intent of such courts was to address palpable differences in culpability by providing less punitive and more therapeutic dispositions for defendants charged with criminal offenses who had mental disabilities. After the Reagan Revolution and the Hinckley verdict, sentiments shifted from rehabilitation and proportional culpability towards more punishment and implementing measures to protect community safety above everything else, but particularly above individual rights. Those who protected civil liberties became vilified and those who pursued therapeutic jurisprudence were largely dismissed.
As a result, these special courts took on very different characteristics, which allowed them to expand and gain public acceptance. They still operated, at least ostensibly, to provide opportunities for rehabilitation, care, and treatment, but the post-modern versions of these courts embraced community safety as the primary directive. This has meant that almost any disposition which might be perceived by the public as compromising safety has been rejected as inappropriate. Above all else this has meant that defendants who commit violent crimes, regardless of their individual circumstances, are ineligible for these special dispositions. Moreover, predictions of dangerous have been used to further exclude defendants from such programs. Thus, the eligible offender population is largely composed of those who commit nuisance crimes, misdemeanors, and non-violent crimes, who in addition have no documented, subjective history of dangerous-like behaviors. (Perhaps a special court for priests would work well under these conditions, although in today’s world it probably would be problematic as well.)
Unfortunately, for those who are pushed into these programs in order to receive needed care and treatment, the risks are high and the penalties for breaching intrusive conditions of participation are substantial. The risks are high because once defendants (and their counsels) agree to allow these special courts to have jurisdiction, the subjects of these proceedings are transformed from criminal defendants with the right to heightened due process into program participants who have contracted away most of those rights. Special courts can assert jurisdiction over these defendants indefinitely. Each and every violation of the rules can result in extensions of the courts' authority over the defendant’s life, as well as strict penalties including incarceration. Slowly but surely these courts have become mechanisms for supervising, monitoring, and controlling the lives of these “special” individuals, until the courts are satisfied that there will be no public outcry if they are released unconditionally. For every success story in which an offender is rehabilitated in a time-frame that corresponds with the criminal sentence they would have had to serve, there appear to be far more cases in which offenders have remained in governmental custody far longer than if they served a regular sentence, especially for relatively minor crimes.
It is in this context that special courts for “veterans emerged across the country....”[T]hese …programs have been few and far between and typically only attempt to serve the needs of veteran offenders who have committed nonviolent crimes and are not viewed as being a threat to the community. Thus, former soldiers who are deemed to be at the greatest risk… receive relatively little or no rehabilitation, care, and treatment.
In consumer law, this would be called a bait and switch. Nevertheless, the legal profession, judges, and mental health experts hold these courts out as examples in which society is responding to the needs of veterans, even though so little assistance is available until and unless a non-violent crime is committed and the perceived risk to the community, no matter how far-fetched, is viewed as being negligible. As a consequence, these former soldiers, if they are deemed dangerous, will be subject to the same draconian measures that are imposed on other people with mental disabilities, creating a potential cascade of new inequities and injustices in our legal system.
SOLDIERS, PRO FOOTBALL PLAYERS, AND PRIESTS: WHY NO PREDICTIONS OF DANGEROUSNESS FOR THEM?
By John Weston Parry, J.D.
It seems obvious, based on available anecdotal and other media evidence, soldiers and veterans who have experienced combat, professional football players, and priests commit dangerous or dangerous-like behaviors at rates that are far higher than the general population. Members of these groups also seem to engage in behaviors that by traditional societal norms may be viewed as abnormal or deviant, which often appear to be triggers for their perceived dangerousness. Nevertheless, no one has done risk assessments on them, which undoubtedly would demonstrate that members of these groups are much more likely to be dangerous than other people.
So far, we only have done these studies and clinical assessments on people with diagnosable mental disorders. By and large, these groups have “proven” to be slightly more dangerous than normal. Without additional studies and assessments, however, we only have been willing to use our criminal and civil laws to protect society against “crazy people.” We continue to ignore other more easily identifiable groups that probably pose a much higher statistical risk of being a loosely defined danger to self or others.
This looming threat seems especially severe with regard to our soldiers and veterans who have experienced combat. Currently, there appear to be millions of these potential “time bombs” in communities throughout the United States. Nonetheless, we continue to insist on allowing them to have the same fundamental rights as anyone else, even though we have compelling examples which indicate that these soldiers and veterans are much more likely to be dangerous due to their training and combat experiences. Sometimes we even give them more rights based on their service to this country.
Yet, almost every day newspapers, television, radio, and the Internet have stories about soldiers and veterans with combat experience, professional football players, or priests who have engaged in violent or extreme antisocial behaviors. Not only do we allow members of these groups to run amok in our communities, we tend to prosecute or intrude upon their criminal or antisocial behaviors less frequently and less severely than we do for normal people. There is only one group of dangerous people we are willing to target in order to ensure that we can apply different legal standards and procedures when they are compelled to appear in civil and criminal courts: people with diagnosable mental disorders. Our unwillingness to expand these special laws is extremely shortsighted and inevitably leads to many more people being killed and harmed in our society, particularly our valiant police.
We have bravely refused to allow the American Civil Liberties Union (ACLU) and other human rights organizations of that ilk to interfere with our laws and policies that use predictions and estimates of dangerousness to target people with diagnosable mental disorders. As a result, we now have many highly beneficial laws and policies that mandate those people be confined or otherwise placed in government custody indefinitely, with fewer due process protections than anyone else in our society. We should not allow organizations with a civil liberties agenda to interfere with our efforts to expand these special laws and policies, so that we also may protect ourselves and our loved ones from soldiers, veterans, professional football players, and priests.
If these special laws prove successful—we can be confident that they will, based on the hundreds of thousands of people with diagnosed mental disorders who currently find themselves in government custody—Americans can confidently move on to target, as potentially dangerous, members of gangs, hip hop artists, children who have experienced severe abuse or poverty, and immigrants who follow Islam in ways that do not appear to be American. Apparently our citizens have the ultimate right to be safe in their homes and on their streets that outweighs all of the lesser civil liberties, rights, and freedoms that may inconveniently stand in the way.
Government Promised Care and Treatment For Persons with Legally Significant Mental Disabilities: A Devastating Catch-22
By John Weston Parry, J.D.
Humans are composed of more than flesh and bone….[M]ental health, just as much as
physical health, is a mainstay of life. (John F. Kennedy)
Orr would be crazy to fly more missions and sane if he didn’t, but if he was sane he had to fly them. If he flew them he was crazy and didn’t have to; but if he didn’t want to he was sane and he had to. (Joseph Heller, Catch-22)
Perhaps no aspect of post-modern life captures the awful effects of a catch-22 more completely than our nation’s commitment to provide care and treatment to persons with legally significant mental disabilities. Initially, they are expected to somehow navigate a poorly designed patchwork of publicly funded options few of which are adequate. Available services only cover a minority of individuals in need who happen to qualify, more by good circumstance or good fortune than anything else. Hundreds of thousands of Americans are perceived to be dangerous because they have a mental disorder, condition or aberration, which requires care, treatment, and other essential social services that are unavailable in the community or while in government custody.
State and federal governments through their omissions and neglect—and even intentionally—deny children, adults, veterans, and frail Americans with mental disabilities, who are in their custody, of needed care, treatment, and other services. Those deprivations result in these individuals being kept indefinitely—sometimes for the rest of their lives—in unconscionable conditions of confinement, particularly in prisons, jails, juvenile detention facilities, mental institutions, and nursing homes. In each of these coercive settings, powerful, excessively-dosed antipsychotic medications—often with unpleasant, incapacitating, or even deadly side-effects—become substitutes for humane holistic care, including properly dosed and prescribed medications.
At the same time, typically those people with mental disabilities who need special care and treatment or other forms of public assistance to live in their communities are denied such services. As a result, they are forced into more expensive and coercive government-run custodial care settings or, more commonly, our inhumane criminal justice system. Ultimately, these policies harm the basic fabric of our society, but most of all they devastate people with serious mental disabilities, including a large cohort of veterans who have incurred combat-related injuries and impairments.
How this catch-22 developed and now operates in this country and why it may become much worse—given the current fiscal crisis—is covered in Mental Disability, Violence and Future Dangerousness: The Myths Behind the Presumption of Guilt (Rowman & Littlefield, October 2013), Chapter 6 “Dangerousness and the Unconscionable Failure to Provide Care and Treatment to Persons with Serious Mental Disabilities.” 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. There also is a separate essay on this site entitled “Soldiers and Veterans With Mental Disabilities Deemed to Be Dangerous,” which examines the problems faced by that particular population.
The Scope of the Problem
[T]he United States has rarely...been adequately committed to providing care, treatment, and rehabilitation for persons with serious mental disabilities.... In recent decades, we have not even made a good faith effort…. Even worse… is the care and treatment of inmates and other detainees [with mental disabilities] in our criminal and juvenile justice systems….[T]hese failures... have been transformed into powerful ...legal justifications for involuntarily confining or otherwise coercively treating and intrusively managing the lives of persons diagnosed with or identified as having mental disabilities.
Most programs that are in place to address the needs of—and perceived problems created by—persons with serious mental disabilities are either in shambles or resemble the custodial warehousing that we supposedly did away with during the 1970’s. Those programs that work well are so under-funded and so far and few between only a small percent of those in need are being served adequately. For the vast majority of persons with serious mental disabilities who require governmental assistance, rights deprivations, neglect and abuse, expensive coercive custodial care, and excessively-dosed and carelessly prescribed antipsychotic medications have become commonplace.
In both our civil mental health and criminal justice systems, people with mental disabilities are being mistreated or not treated at all—young and old, civilians and soldiers. People with serious mental disabilities, even those with access to private wealth tend to be underserved, abused, and neglected. Most of them are—or soon will become—poor, indigent, and under- or unemployed with little hope of being able to provide for themselves. Once they are officially identified as having antisocial or criminal-like traits, which may range from nuisance behaviors to violent crimes, they can—and often do—lose their fundamental rights, including their liberty and on occasion even their lives through the death penalty, which unfairly targets people with mental disabilities.
Civil Mental Health Systems
Our civil mental health systems—excluding the Veterans Administration, which is addressed in another essay on this site—are loosely divided into three types of care and treatment settings that separately target adults, children, and frail Americans. As bad as the situation is for adults with mental disabilities, it is even worse for dependent children and frail Americans who have these impairments. The conditions of custody may not be as bad as the inhumane warehousing of so-called patients in large, isolated state institutions forty or fifty years ago or what inmates with mental disabilities receive in our criminal justice system today, but it is far worse than any civilized nation should tolerate. The common denominators in these civil governmental settings are coercive custodial care—or custodial care without the informed consent—excessive medication, and frequent abuse and neglect.
Arguably, the least bad settings are those for non-elderly adults with mental disorders, which are characterized by a revolving door that shuffles patients in and out of coercive care situations, for as long as the law allows them to be in custody, in order to administer psychotropic drugs to stabilize what are perceived to be dangerous-like symptoms. While this temporary coercive care is often provided by reasonably competent mental health professionals and is likely to be accompanied by other essential social services—such as food, shelter, and health care—usually it fails to fully resolve the problems that these patients face, particularly after they are dumped back into their communities without the essential social services they need to thrive.
In too many instances even this temporary care is inhumane. Ultimately, for all those who are forcibly returned for more coercive care because their perceived dangerous-like symptoms have only been temporarily stabilized, bad things tend to happen. The likelihood increases substantially that sooner or later they will be forced into the criminal justice system or encounter or precipitate what is viewed as a harmful event, which could have been avoided—or at least minimized—if they had received adequate care and services in their communities to begin with.
Today, involuntary civil mental patients are more likely to spend days or weeks or sometimes months in smaller facilities and receive ... excessively-dosed antipsychotic medications, to stabilize them so they may be released as no longer legally dangerous. Many also receive coercive outpatient care in the community that is accompanied by various restrictions that no American would want to endure. Some of the worst rehabilitation and treatment deficiencies have involved patients who revolve in and out of involuntary or coercive ...commitment situations onto the streets, boarding homes, flop houses, and other substandard housing.
Those few consensual care and treatment alternatives that do exist have been or are being cut back due to budget deficits and reprioritizing of limited dollars. Similar problems exist for those adults and juveniles with drug and alcohol addictions who are lucky enough to avoid jail or prison. They too receive coercive revolving door care and treatment, which is becoming less available as programs are dismantled. Without public funds and resources to support ... treatment, rehabilitation, and living needs in the community.... the criminal justice system has become the primary governmental mechanism for confining and controlling adults with mental disabilities when they are deemed dangerous, antisocial, and/or not worth helping.
It often has been said that a civilized society should be judged by how its children are treated. On many measures we fail miserably. This is particularly true for minors who have mental disabilities or will encounter serious emotional difficulties because they have been or are being abused and neglected. Too many kids in this country are permanently harmed because they fall through the gaping holes left by our laisez-faire approach to social services and education when parents or guardians renege on their financial and moral responsibilities, or traumatize, abuse, or neglect their own children. Many of the worst traumas imaginable are not experienced by soldiers in combat, but rather by our children, sometimes starting in utero or when they are infants. In fact, even more children are severely traumatized than soldiers, which is a disturbing and catastrophic reality that we mostly ignore.
[M]any children are incarcerated in juvenile detention centers ... because they are awaiting mental health and related services.... They are dumped into prison-like facilities where their troubles intensify and multiply. Others are left to fend for themselves or escape the abuse and neglect of their parents or guardians. Mental health and related insurance, prevention programs, and public education targeted at saving and rehabilitating our children also are largely unavailable to these children at risk. The juvenile justice system, like the prison system for adults, has become the default solution for minors with mental disabilities who act out or have nowhere else to go.
What the Joint Commission of Mental Health of Children opined back in 1969 remains largely true today and probably is growing worse due to fiscal belt-tightening: “there is not a single community in this country which provides an acceptable standard of care for its mentally ill children.” The “poor quality and intrusiveness” of mental health care, treatment, and habilitation for “troubled and troubling youth” … has been especially disturbing. Many become “wards of the state”...because less intrusive alternatives are unavailable, unaffordable, or simply not offered.” This huge hole in the social safety net has been properly termed “a national crisis,” and has only been getting worse. The situation is no better and sometimes worse for those with intellectual and developmental disabilities.
The foster care solution has been equally troublesome, resulting in kids being moved into institutional like settings where they are at much higher risk for mental disorders and being over-medicated.... The reality has been—and continues to worsen—that the care for most children with serious mental disabilities in our society has been poor or nonexistent, especially those kids whose conditions have developed or been accelerated due to trauma, abuse, and neglect.
Older and Frail Adults with Mental Disabilities
Many older Americans with mental impairments and younger, frail adults with mental, intellectual, and developmental disabilities are being `dumped' into nursing homes and similar [adult care] facilities inappropriately. Members of these populations are at even higher risk because they are dependent on the good will of others to see to their basic needs. While, legally, none of the coercive admissions ...are considered to be involuntary ...generally [these patients] do not or cannot provide informed consent....Most of them are institutionalized and coercively administered ...powerful behavior-stabilizing medications ...with the understanding that overmedication will make them easier to manage and help to fill empty beds. Making matters worse, these nursing and adult care facilities generally are not equipped or staffed to handle residents with serious mental disorders or other similar special needs, yet like the criminal and juvenile justice systems, these facilities have become default placements except they “serve” those who are older or frail and have a mental disability.
This type of dumping has drawn criticisms from the nursing home and adult care facility operators, not necessarily to protect the welfare of residents who have untreated or undertreated mental disorders, but rather the presumed danger that [they]... might pose to other residents. The response has not been to improve community-based care or even to send these residents to psychiatric facilities. The most cost-effective way for nursing homes to deal with this perceived danger is to heavily medicate those residents who become disruptive or are thought likely to become disruptive or to force them to go to some other inappropriate setting.
Numerous lawsuits have been filed in order to remove people with these special needs from nursing homes and adult care facilities and into integrated community settings. These suits have been largely successful as a legal matter because the violations of the Americans with Disabilities Act have been so blatant. Still, the overall social effects of these victories have been incremental at best. Those facilities that have been sued represent only the tip of the iceberg ….nationwide. Moreover, there are few adequate community-based alternatives to properly place these individuals in when the courts rule in their favor. In that respect this situation is reminiscent of deinstitutionalization during the 1970’s.
The Criminal Justice System
As bad as civil care has been for persons with mental disabilities, the worst places are found inside the criminal justice system where therapeutic jurisprudence, including humane care, treatment and rehabilitation, continues to be viewed as an affront to those who favor punishment, retribution, and community safety over other equally and arguably more important social values. [I]n the late 1970's, our nation began rejecting … the policy of trying to provide humane care, treatment, and rehabilitation…. [W]e created highly secure, punitive, and inhumane environments to keep inmates behind bars for as long as an increasingly flexible Constitution would permit. This cynical and unforgiving philosophy increasingly is being viewed as “a disastrous failure.” For inmates with mental disabilities, who are particularly vulnerable to abuse and neglect, this anti-therapeutic mind set has been enhanced because of the widespread belief that [these individuals] are inherently dangerous.
Once individuals with mental disabilities are thrust into this hostile and uncaring criminal justice environment, the ability of others to look after them and try to ensure their welfare is badly compromised. The awful institutional milieus responsible for deplorable conditions and … abuses that affect all prisoners are especially devastating for those with mental disabilities...who are likely to be more vulnerable and thus victims of overcrowded, unsanitary conditions. Moreover, no prisoners suffer more from prolonged isolation than those with mental disabilities whose conditions are allowed to fester with almost no human contact, exercise, or humane care and treatment.
Even if deliberate abuse and neglect is curtailed, which apparently does not happen often, the convenience of staff and the security of the environment takes precedence over minimal standards of decency. The inmates’ presumed dangerousness due to their mental disabilities is used to justify incarcerating [them] indefinitely and depriving them of humane treatment and rehabilitation. Furthermore, there are few if any avenues to pursue relief, assuming that these inmates can even find competent legal representation, which is a rarity. The U.S. Supreme Court has ruled that because of their presumed dangerousness, it is acceptable for correction officials to deny persons with mental disabilities release when overcrowding and other conditions of confinement become constitutionally intolerable. Instead, other prisoners must be set free in order to relieve the overcrowding. This is true even though it is the inmates with mental disabilities who are suffering more than any other prisoners and whose mental and physical conditions are most likely to deteriorate by remaining imprisoned. When measured against the aspirations of therapeutic jurisprudence, this is the `perfect storm' of counterproductive and destructive policies and practices.
For the rapidly increasing population of inmates who, based on their presumed dangerousness, have been quasi-civilly committed to secure detention facilities within our corrections systems, ostensibly to receive specialized care and treatment, the institutional conditions are equally disturbing. Withholding or ignoring rehabilitation and treatment to further punish offenders and ensure that they are never released...remains a prominent… characteristic of our modern corrections systems.
As a general rule, inmates have no effective legal means available to them when promises of care and treatment are broken, even when such care becomes obviously inhumane. The futility in trying to enforce such promises has been demonstrated time and time again and continues to become even more difficult as courts and legislatures invent spurious justifications for their inhumane actions.
The following examples illustrate how unjust and inhumane these governmental actions and policies in the criminal and juvenile justice systems can be, yet we continue to allow them to be used, but only against adults and children with mental disabilities.
· Guilty but mentally ill verdicts, which—despite being opposed by the American Bar Association, the American Psychiatric Association, and the American Psychological Association—typically allow those who receive such contrived sentences to be deprived of needed treatment due to the lack of resources for all prisoners. These GBMI inmates can even be executed despite—and sometimes because—of their mental conditions.
· Incompetent defendants and inmates with mental disabilities charged with capital crimes may be compelled to take antipsychotic drugs so that they can be tried and executed, but subsequently they have no meaningful right to humane care and treatment while they wait for their death sentences to be carried out.
· Offenders with mental disabilities typically do not receive adequate and inhumane mental health care, treatment, and habilitation while in government custody, even when the absence of such care and treatment created the conditions that necessitated their incarceration. Thereafter, absence of needed mental health care and treatment is likely to be used as a justification for mandating that these individuals spend more time in prison and endure longer and more intrusive conditions of release than other offenders who have committed comparable crimes.
· As discussed earlier, many juveniles and younger children who have serious mental disabilities are confined in juvenile detention centers and other inappropriate settings because no suitable placements exist for them in their communities. If they become juvenile offenders, they may be tried and incarcerated as adults should they are viewed as being potentially dangerous based on subjective predictions that they are not likely to benefit from humane care and treatment.
Ultimately, the so-called right/entitlement to care and treatment for adults and children with mental disabilities is little more than a hollow promise that only is likely to be implemented in coercive civil custodial care settings where excessively-dosed antipsychotic drugs may be administered, typically for the convenience of staff. Yet, unless the need for care and treatment can be established, the constitutional justification for indefinitely incarcerating these individuals in the criminal justice system, increasingly for the rest of their lives, will be lacking. Unfortunately, the right/entitlement to care and treatment only exists in the courtroom as a justification for their initial incarceration. Once these people are confined in correctional facilities, which generally are inhumane, that right all but disappears. This legal fiction is a bait and switch, which typically results in a catch-22 that is nearly impossible for the affected individuals to remedy.
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.