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.