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.