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 [Mostly] they have been replaced
by new legal fictions .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.