“[Laws are suspect] when they place categorical disqualifications and restrictions on persons [with mental disabilities]. Each person’s capacities must be judged individually before he [or she] can be denied rights of citizenship and humanity.” (Hon. Patricia Wald, The Mentally Retarded Citizen and the Law, editor Michael Kindred, et al. (1976), 5.)
Most of the incremental progress was swept aside by an unconscionable and irresistible movement to replace humane care and rehabilitation with harsher and longer punishments, including physical and chemical restraints, especially for those who had mental disabilities. Rehabilitation was no longer in vogue and became a concept to be derided and ignored. By the 1980’s, a more insidious pattern of abuse, neglect and mistreatment had emerged, which may not have been as consistently awful and horrifying as the darker past, but was disgraceful in its own right. Today, this movement continues to affect an increasing number of people with mental disabilities. Ironically, these new governmental interventions, which have led to so much misery, have been made possible by perverting the legal principle that had temporarily set institutionalized “patients” free: persons with mental disabilities should not be confined involuntarily or otherwise deprived of their fundamental rights, unless it can be proven, by at least clear and convincing evidence, that they present an immediate and serious danger to themselves or others.
How this movement evolved and what it means to us going forward is explained in Mental Disability, Violence, and Future Dangerousness: Myths Behind the Presumption of Guilt (Rowman & Littlefield October 2013), Chapter 1, “Persons with Mental Disabilities and the American Legal System: A History of Discrimination, Abuse and Mistreatment.” (See About the Book /about-the-book.html.) Brief copyrighted excerpts without references are reprinted below with permission of the publisher and author, along with reflections based on the book and other materials. The excerpts are in bold with italics.
Reinstitutionalization of Persons with Mental Disabilities
By the end of the 1950s, mental disability law—commonly referred to as psychiatry and law—was becoming a noble pursuit filled with new ideas and considerable optimism. Lawyers, judges, psychiatrists, clinical psychologists and other mental health professionals began to attempt to balance needed care, treatment, and social services with basic rights of citizenship… to bring an end to a long and deplorable litany of abuses perpetrated against many people with mental disabilities…. This was a time when inadequate custodial care too often was accompanied by lobotomies, sterilizations, human experimentation, assaults, wanton neglect, murders, wrongful deaths, and mayhem…. There also were wholesale rights deprivations based on presumptions, impressions, policies and laws that equated institutionalization with incompetency to exercise one’s fundamental rights. To be in a mental institution typically meant being at the mercy of often uncaring providers under conditions in which even minimally adequate custodial resources were lacking.
During the late 1960’s and 1970’s, the most horrific and widespread human rights violations toward people with mental disabilities would be largely extinguished in the large state hospitals…. [H]owever, similar and different abuses were reconstituted primarily in the inhumane institutions that dominate our criminal justice system, and in the shadows of our urban—and later our suburban—communities. By the early 1980’s—due primarily to free market economics, the failure to fund deinstitutionalization, and the rejection of rehabilitation as a cornerstone of American law in favor of harsh punishments—“reinstitutionalization” of persons with mental disabilities was inevitable, particularly after John Hinckley’s insanity acquittal in the assassination attempt on the President in 1982. Various forms of quasi-civil involuntary institutionalization of persons with mental disabilities became increasingly popular, while voluntary care in the community was never implemented properly and was slowed even further by growing fiscal constraints. Eventually, even civil institutionalization began to increase again.
Persons with Mental Disabilities As a Suspect Classification
Of all the groups in American history that have faced overwhelming societal oppression, people with … mental disabilities—especially those who are deemed to be dangerous—deserve to be at or near the top of any list of plaintiffs…. A 1942 editorial in the American Journal of Psychiatry demonstrates how awful this prejudice was. Through its leading journal, the American Psychiatric Association recommended that kids reaching the age of 5 who showed that they were “feebleminded” should be euthanized so that they could be spared “the agony of living.” Through the 1970’s and well beyond lawmakers used—and many continue to use—offensive and stigmatizing language to unfairly categorize people with mental disabilities. Throughout our history, American society has devalued and defamed members of this population. Even today too many of our laws continue to use such terms of disrespect and stigmatization. State and federal laws have authorized and often compelled the involuntary confinement of American citizens, along with deprivations of other fundamental civil rights, based on psychiatric and psychological assessments or simply subjective courtroom impressions of triers of fact.
Doing away with institutions for persons with mental disabilities became a compelling concern for many people during the late 1960’s, particularly what became known as the “mental health bar.” At the same time, many mental health professionals, particularly those in the psychiatric profession, argued that the right to treatment, even if it was coerced, should precede in importance the right to self-determination…. Their overriding clinical concern was that absent involuntary treatment, people with severe mental disabilities would not be able to take advantage of their freedoms and to make their own decisions.
The ultimate answer to this dilemma and seeming paradox was informed by three persuasive considerations. First, years earlier, the reformer Mary Switzer had demonstrated convincingly—and many scholars and policymakers had built on her earlier work--that institution-centered care and treatment… could not come close to meeting the needs of the entire person. A more holistic approach that emphasized community alternatives for persons with severe mental and physical impairments was required to provide adequate care.
Second, there was overwhelming documented evidence of abuse, neglect and inhumane treatment in large, isolated state and federal institutions for persons with mental disabilities. Robert Kennedy, Geraldo Rivera, the American Bar Association’s Commission on the Mentally Disabled, the Mental Health Law Project, and a slew of public interest lawyers made the public, politicians and policymakers aware of the awful conditions that residents of these human warehouses faced every day of their lives inside. The conditions were comparable in some ways—and often compared—to concentration camps.
The third consideration was founded on the ground-breaking work of the sociologist Erving Goffman. He and others had shown that these hospitalization horrors were due… to the inherently destructive and stigmatizing nature and characteristics of large institutions themselves, and how their dysfunctional milieus negatively affect the human beings inside, patients and staff alike. In such institutions, no residents could thrive and most languished for years without hope of release or improvement.
These considerations strongly suggested that large mental institutions of this kind could not be reformed because they were inherently flawed. They had to be eliminated. In this context, deinstitutionalization to escape obvious oppression became a rational necessity. Unfortunately, for many reasons the implementation in our communities was badly flawed …, particularly federal laws and policies— including the entire Medicaid program—that continued to closely tie funding for persons with severe mental disabilities to institutional-based care.
The Hinckley Verdict
As much as Americans have been moved to respond in the aftermath of mass killings associated with Sandy Hook, Aurora, Tucson, Virginia Tech, and Columbine, the public’s reaction to John Hinckley’s not guilty by reason of insanity verdict was even greater. Both the insanity defense and people with mental disabilities were caught up in a “siege” mentality that emanated from multiple directions, but particularly from politicians who were responding to the public’s outrage. That outrage grew more intense with the knowledge that in Hinckley’s case his verdict had correctly followed the existing federal statute.
In response, most of our laws and policies regarding reduced culpability were revamped to make it increasingly more difficult for defendants with mental disabilities to mount a defense in which their impairments could be considered at trial or in sentencing. This was true even though it had been assumed that many of these protections were fundamental components of Anglo-American law and had strong constitutional roots.
Despite the swirling controversies over mental status defenses and how the courts should be ruling in applying them and in reviewing the many new laws that the Hinckley verdict had inspired, the U.S. Supreme Court chose to stand on the sidelines for a quarter of a century. By waiting all that time to issue its seminal decision in Clark v. Arizona, the Court was more easily able to find reasons to affirm the direction that most of the states had been heading since 1982. Even though the Justices rejected the notion that it would be appropriate to completely separate insanity from constitutionally-required state of mind to commit a crime (mens rea), the 6-3 majority made it clear that states and the federal government have wide constitutional latitude in implementing … any type of mental status defense. In fact, the Court noted that it would be receptive to any laws that substantially curtailed such defenses. In essence, as long as governments do not eliminate mental status defenses entirely, they may advance schemes that effectively preclude the “possibility that the sanity issue will be seriously considered by the jury (or judge).” Because of the prejudices and exaggerated fears Americans have had about persons with mental disabilities, it is not surprising that for many years now our laws have made it difficult and often virtually impossible to mount a successful mental status defense or to receive any type of reduced sentence based on even severe mental impairments.
In addition to a widespread narrowing of the opportunities to plead any form of reduced culpability for crimes committed by defendants with mental disabilities, the Hinckley verdict helped to change our entire system of civil and criminal laws governing persons with mental disabilities. New laws and policies favored retribution, long-term incarceration, deprivation of rights, and inadequate care over… rehabilitation, meaningful treatment, and community reintegration. This was the beginning of counterproductive, inhumane, harsh, and outlandish discriminatory treatment of people with mental disabilities perceived to be dangerous. Increasingly a person’s mental disability when tied to presumptions, impressions or predictions of dangerousness became proper grounds for issuing longer sentences, harsher dispositions, and indefinite, more intrusive and lengthier conditions of release. Diminished culpability was not only largely extinguished, but replaced by enhanced culpability for persons with mental disabilities.
These unforgiving and anti-therapeutic responses were all part of a movement to criminalize persons with mental disabilities by using correctional and other secure detention facilities to manage and control their perceived antisocial behaviors, particularly dangerousness. In part, the criminalization of mental disabilities resulted from the aftereffects of poorly implemented deinstitutionalization, but even more from stigma, prejudice, fear, neglect, and anger. As the number of people with mental disabilities in civil state institutions was being substantially reduced, many more people with severe mental disabilities were being warehoused in various types of correctional facilities.
By the late 1980’s and thereafter it became obvious to many scholars, particularly law professors David Wexler and Bruce Winick, that the law’s management of persons with mental disabilities not only violated the substantive and due process rights of those individuals, but also was anti-therapeutic and inhumane. Thus, these two professors developed a construct to address such counterproductive policies, which they termed therapeutic jurisprudence. Yet, even though this innovative concept showed much promise and received considerable academic and professional support, state and federal governments—at almost every opportunity—have applied law, psychiatry, and psychology to extend the detention and control of persons with mental disabilities, or even to promote their executions.
The result is that these people impaired by mental disabilities have been criminally confined for as long as possible with little or no special care or treatment, except the excessive, involuntary administration of powerful antipsychotic drugs…. This has turned many mental health professionals into agents of social control…. Furthermore, the criminalization of persons with mental disabilities has become so ingrained … that [we]…. simply accept this type of unfairness, inequality, abuse, and neglect as the way things are done…. Being humane and compassionate to persons with mental disabilities who end up in our correctional system is dismissed as unnecessary or wasteful. Our current approach has produced an inhumane system of coercive care and containment, which reprises the awful conditions inside the large, isolated, civil mental institutions that we depopulated.