BY: MARLON BAQUEDANO, Editor-in-Chief Elect
There’s a stigma associated with it. We have to remove it. Mental health is no different than any other disease. You didn’t do anything wrong. It’s nothing to be ashamed of. It happens. And people at any age who have it deserve access to treatment, quality treatment, quickly. And we, as a society, should not stigmatize it.[1]
At 5:42 PM local time on February 20 of this year, Jason Dalton began a random shooting spree that lasted about seven hours in Kalamazoo, Michigan.[2] Two days later, Ohio Governor John Kasich was the first Republican presidential candidate to address the Kalamazoo mass shooting, saying that the next president should focus on mental health and not try to “take people’s guns away.”[3] A 2015 review of the literature found that “little population-level evidence supports the notion that individuals with mental illness are more likely than anyone to commit gun crimes,”[4] and that, in fact, people with mental disability are more likely to be victims of violence.[5] The general public is taking a step forward in at least bringing the many problems those individuals with mental disabilities face into consciousness. We should strive to expand this discussion and make these issues more visible.
For instance, the shocking number of police involved deaths in the US has been at the forefront of national attention particularly because of the disproportionate number of African Americans affected.[6] Notwithstanding the well-deserved attention that this particular demographic receives because of national movements like #BlackLivesMatter and media coverage, the prevalence of disabled individuals (in particular, those with mental disabilities) who are also victims is alarming.[7] Out of the 1,134 police involved deaths in 2015, 26% of the people exhibited some form of mental illness.[8] Unfortunately, even when the media recognizes the presence of mental disability, it often describes the illnesses in ways that blame afflicted individuals for their violent deaths at the hands of law enforcement.[9]
This type of disconnect between our perception and reality can be attributed to sanism. “[S]anism is an irrational prejudice of the same quality and character of other irrational prejudices that cause (and are reflected in) prevailing social attitudes of racism, sexism, homophobia, and ethnic bigotry.”[10] As Michael Perlin argues, sanism affects our jurisprudence and lawyering practices; it remains largely invisible and socially acceptable.[11] Sanism permeates all kinds of mental disability law, including: involuntary civil commitment, the right to treatment, the right to refuse treatment, the right to sexual interaction, the Americans with Disabilities Act, the competence to plead guilty and the competence to waive counsel, the insanity defense, and the federal sentencing guidelines among others.[12] Sanism is not only present in mental disability law but also in all other aspects of society, as the media coverage example shows.
In 1997, Florida became the first state to implement a mental health court, where it initially handled cases involving nonviolent, misdemeanor defendants identified as mentally ill or developmentally disabled.[13] The court was created with the primary goal of diverting defendants from the criminal justice system into treatment and to monitor the delivery and receipt of services and treatment.[14] The Broward County Mental Health Court (established in 2003) also has a felony mental health court that now deals with minor felonies; however, some stories have come to light that exemplify the court’s failures, including the following:
“Francisco Sanchez Ferrans of Hollywood, a disabled man accused of scratching a neighbor’s 2002 Chevy with a box cutter, spent 18 months in state hospitals after his arrest and a year in jail before his case was resolved. Joshua Stein of Sunrise took a tortoise from a wildlife center, cared for it in his backyard and later returned it. Though never convicted, he was fitted with an ankle monitor and placed under house arrest for three months. Maricela Munoz, a homeless woman, was arrested after finding a lost ATM card, walking into a bank lobby in Pompano Beach and trying to use it. Also not convicted, she has spent a year in jail — at a cost of about $40,000 to taxpayers — and remains in felony mental health court.[15]”
Instead of focusing on treating patients individually, the felony mental health court has created an institution whereby mentally ill people have been deemed incapable of facing their charges, while simultaneously expected to follow both the rules of those in regular criminal court and additional conditions like attending treatment sessions.[16]
While mental health courts were a step in the right direction, we have failed to acknowledge the role that sanism plays in these types and other types of legal proceedings. For example, the Broward County State Attorney’s Office chooses not to drop charges in a number of minor, nonviolent cases because it allows the court to keep track of defendants, provide treatment, and ensure public safety.[17] However, these concerns are not entirely present when it comes to healthy people whose cases would be resolved in months or days compared to potential years of resolution for those with mental disabilities.
Starting in law school, we must incorporate different perspectives for legal professionals such as international human rights, comprehensive alternative jurisprudence, and the existing mental health courts[18] in order to improve the way we address mentally disabled individuals. We must not forget that all human beings – including those in jails, prisons, psychiatric facilities, and other mental institutions – have human rights and dignity. We may not be able to change the media’s coverage immediately, but those of us in the legal profession have a chance to start rewriting the narrative at the source; we must lead by example and protect our clients’ dignity by learning to be effective and competent counsel for everyone. This requires acknowledging that we treat mentally ill people differently because of their disability.
[1] Marco Rubio, Town Hall in Fort Dodge at Decker (Jan. 5, 2016).
[2] Kevil Conlon & Nick Valencia, Kalamazoo Uber Driver Picked Up Fares Between Killings, Source Says, CNN (Feb. 22, 2016, 5:03 AM), http://www.cnn.com/2016/02/21/us/michigan-kalamazoo-county-shooting-spree/.
[3] Kasich Responds to Kalamazoo Shooting, ThinkProgress (Feb. 22, 2016), https://soundcloud.com/thinkpro/kasich-responds-to-kalamazoo-shooting.
[4] Jonathan M. Metzi & Kenneth T. MacLeish, Mental Illness, Mass Shootings, and the Politics of American Firearms, 105 Am. J. Pub. Health 240, 241 (2015).
[5] See Karen Hughes et al., Prevalence and Risk of Violence Against Adults with Disabilities: A Systemic Review and Meta-Analysis of Observational Studies, 379 The Lancet 1621 (2012).
[6] See The Counted: People Killed by Police in the US, The Guardian, June 1, 2015, http://www.theguardian.com/us-news/ng-interactive/2015/jun/01/the-counted-police-killings-us-database (young black males between 15 and 34 accounted for 15% of all 1,134 deaths in 2015 despite being 2% of the population, and were five times higher than for their white counterparts.) [hereinafter The Counted].
[7] See David M. Perry & Lawrence Carter-Long, The Ruderman White Paper on Media Coverage of Law Enforcement Use of Force and Disability: A Media Study (2013-2015) and Overview, Ruderman Fam. Found. 1 (2016).
[8] The Counted, supra note 5.
[9] Perry & Carter-Long, at 5.
[10] Michael L. Perlin, The Hidden Prejudice: Mental Disability on Trial, xviii (2000).
[11] Id.
[12] See generally id.
[13] Annette McGaha et al., Lessons from the Broward County Mental Health Court Evaluation, 25 Evaluation and Program Planning 125, 126 (2002). A court in created in 1980 in Indiana may have the distinction of being the first mental health court in the United States but Broward County Mental Health Court was the first to be recognized and published as a specialized mental health court. Henry J. Steadman et al., Mental Health Courts: Their Promise and Unanswered Questions, 52 Law & Psychiatry 457, 458 (2001).
[14] John S. Goldkamp & Cheryl Irons-Guynn, Emerging Judicial Strategies for the Mentally Ill in the Criminal Caseload: Mental Health Courts in Fort Lauderdale, Seattle, San Bernardino, and Anchorage, U.S. Dep’t of Just. (2000).
[15] Amy Shipley et al., Broward Court Fails Mentally Ill People, Sun-Sentinel (Jan. 7, 2016), available at http://www.sun-sentinel.com/trapped/fl-mental-health-1-20160107-story.html.
[16] See id.
[17] Id.
[18] See generally Michael L. Perlin, A Prescription for Dignity: Rethinking Criminal Justice and Mental Disability Law (2013).
