Wednesday, April 25, 2018

Mental Health Care

Gun Control, Mental Illness, and Black Trans and Lesbian Survival

Gabriel Arkles

Abstracted from: Gabriel Arkles, Gun Control, Mental Illness, and Black Trans and Lesbian Survival, 42 Southwestern Law Review 855-899 (2013) (272 Footnotes) (Full Article)



"A war between the races would help nobody and free nobody and should be avoided at all costs. But a one-sided race war with Black people as the targets and white people shooting the guns is worse."- Assata Shakur

"‘You can't help but wonder that if Sakia Gunn had a weapon, would she be in jail right now?. . .' ‘If we don't have the right to self-defense, how are we supposed to survive?"'  -Bran Fenner

GabrielArkles2014Killings, even mass killings of children and youth, are terribly common. Over 50,000 Iraqi children and over 15,000 Afghani children have been killed through U.S. military intervention in recent years. U.S. drone strikes have killed 178 children in Afghanistan and Pakistan as of December 2012. In just one week in the Bronx in 2012, the NYPD shot three young Black men to death. At least eight Palestinian children were killed by Israeli forces within the first six days of the Gaza Strip offensive beginning November 2012. At least thirteen trans women of color, most of them young, were murdered in 2012 throughout the U.S. Adam Lanza murdered twenty children and seven adults in Newtown in December 2012. These are just a few of many horrific examples.

*856 Media outlets, policymakers, and much of the public place blame differently depending on what type of incident causes violent deaths. When it is a U.S., Canadian, Israeli, or European institution killing large numbers of Black or Brown people, it seems like often no one gets blamed. If anyone does, it is often the victims. The dead people--even the children--are perceived as disposable rather than fully human. They are all actual or potential terrorists and gang members, deserving of death. If blame does come to the government or other institutions, it is usually in sanitized and abstract terms. After killings perpetrated by individual people of color or Muslims, the person's race or religion is often blamed for their actions. However, after mass killings by white civilian men, the blame tends to get placed differently: on guns and mental illness. The fallout from Newtown has followed this model.

Newtown and its aftermath may not seem to have much to do with trans people of color and queer women of color. After all, as far as we know Adam Lanza was not trans, queer, or a person of color and did not *857 target trans people of color or queer women of color. Most acts of violence that do target trans people of color and queer women of color don't tend to attract nearly as much media attention as Newtown. However, the debates about violence, guns, and mental illness that have surrounded this and other school shootings have significant implications for trans people of color and queer women of color. Current gun control laws and proposals for expansions of gun control laws harm trans people of color and queer women of color without addressing the sources of most violence against these communities. The demonization of mental illness and push to increase the commitment of people labeled mentally ill also contributes to greater racial, gender, and sexual--as well as disability-based--violence. In this article, I consider these implications, with particular attention to issues of survival for Black trans people and Black lesbians.

First, I address issues of guns and gun control. Queer women of color and trans people of color are among those most vulnerable to severe forms of interpersonal and institutional violence. The police do not protect queer women of color or trans people of color from this violence, but perpetrate much of it. When queer women of color and trans people of color seek to defend themselves, they are often criminalized.

Gun control laws are a mechanism of this criminalization. Rather than preventing violence, most existing and proposed gun control laws increase violence through creating more mechanisms for the search, arrest, prosecution, and incarceration of marginalized communities, particularly communities of color. Laws purportedly about reducing guns and gun violence serve to justify greater use of guns on the part of law enforcement and corrections officers to enforce those laws. I propose an alternative approach to gun control, that would focus on eliminating the most destructive weapons that do the most harm to the most people--those in the control of military, law enforcement, and other institutions.

I then turn to the controversies over mental illness. Mental illness itself is a contested and socially constructed category. Queer women of color and trans people of color have often been pathologized because of gender, sexuality, race, and class. Traumatic violence and systemic discrimination can also contribute to high rates of emotional distress and psychological injury among trans people of color and queer women of color. While mentally ill people are often suspected of being violent, in fact these suspicions are often tied more to scapegoating or to anxieties about changing social hierarchies than to reality. Mentally ill people, however, *858 experience very high rates of both interpersonal and institutional violence, including violence perpetuated in the name of "treatment." Queer women of color and trans people of color have been particularly targeted for various forms of psychiatric abuse, yet have often been denied access to quality, consensual mental health services. I propose an alternative approach to improving services and support to people who are perceived to be mentally ill; rather than commitment, control, and coercion, I suggest honoring the self-determination of mentally ill people, including trans people of color and queer women of color.

* * *

Those of us concerned with racial, gender, sexual, economic, or disability justice should be concerned about the direction and focus of national conversations in the wake of Newtown. Controversies over gun control and mental health treatment have a profound impact on those marginalized based on race, gender, sexuality, class, and disability.

Gun control laws so far have been disastrous for trans people of color and queer women of color, as well as those labeled mentally ill, failing to reduce interpersonal violence but increasing the violence of the criminal legal system. Instead of focusing on greater incarceration of people in marginalized communities who choose to carry guns, we should consider true disarmament. This disarmament would involve demilitarizing police, decreasing incarceration, keeping cops out of schools, disinvesting in the armed forces, and instead investing in communities. Expanded power to commit people based on mental illness, whether on an outpatient or inpatient basis, would also be deeply harmful, especially to queer women of color and trans people of color who are already highly vulnerable to pathologization, disablement, institutionalization, and abuse. *899 Instead, we should consider investing more deeply in holistic, community-directed services for mentally ill people that support self-determination and social change, including fighting state and interpersonal violence against people with mental illness.

In seeking to prevent violence, we must take care to ensure we are not actually perpetrating it.

Associate Academic Specialist at Northeastern University School of Law.

The Marginalization of Racial Minorities and Women in Institutional Mental Disability Law


Michael L. Perlin and Heather Ellis Cucolo, “Tolling for the Aching Ones Whose Wounds Cannot Be Nursed”: The Marginalization of Racial Minorities and Women in Institutional Mental Disability Law , 20 Journal of Gender, Race and Justice 431 - 458 (Summer, 2017)(187 Footnotes Omitted) (Full Article)


Individuals with mental disabilities have traditionally been, and continue to be, subjected to rights violations and pervasive discrimination because of their mental disabilities, both domestically and internationally. Seen as “the other,” individuals who are racial minorities, women, or both are marginalized to an even greater extent than other persons with mental disabilities in matters related to civil commitment and institutional treatment (especially involving the right to *432 refuse medication). This extra marginalization also extends to questions of discharge planning, community mental health care, and forensic mental health.

Expert testimony--testimony that is essential and necessary in all these cases--is often infected with bias that leads to skewed legal decision making. It is impossible to examine these questions critically without coming to grips with this reality. Beginning with a consideration of disparities in the access and quality of mental health care among those women and racial and ethnic minorities with mental disabilities, we need to focus on why the struggle to overcome rights violations is often greater for persons who are not of the dominant race or gender, and why it is essential that this area of law must be studied in the context of prevailing social policies as they relate to these topics.

There is no question that the struggle to overcome rights violations is often greater for persons with mental disabilities who are not of the dominant race or gender, and it is necessary to study this area of law in the context of prevailing social policies as they relate to these issues. Here we cannot avoid consideration of the significance of the interrelationships between social biases and “scientific” judgment, as reflected in expert testimony in cases related to all the sub-areas of mental disability law referred to above. In this paper, we thus consider how race and gender relate to decisions made about the civil commitment process and the implications of these findings in multiple contexts including, but not limited to, state-sanctioned racial segregation, misdiagnosis and over-diagnosis, the pernicious use of racial and gender stereotypes, the deeper significance of disparities in access to health services, and cultural competency. We also consider how race and gender relate to decisions made about institutional rights and the implications of these findings, considering issues related to restraint and seclusion, administration of antipsychotic *433 medication, dual diagnosis (along with substance abuse), and the extent to which information about side-effects of medication is shared with patients. Our findings are not a surprise: our most vulnerable populations--racial, cultural, and gender minorities--are consistently harmed by marginalization that targets persons with mental disabilities.

In an attempt to understand how the current state of affairs developed, we then consider the four key factors that permeate and poison all of mental disability law: sanism, pretextuality, heuristic reasoning, and (false) “ordinary common sense” (OCS). One of the co-authors, Michael L. Perlin, wrote some eighteen years ago that “it is impossible to truly understand the jurisprudence in any of these areas without first understanding sanism and pretextuality.” In another article--this about the relationship between mental disability law and international human rights law--Perlin referred to the “[p]ervasive corruption of sanism that permeates all of mental disability law, and ... reflects a blinding pretextuality that contaminates legal practice in this area.” We believe that these factors--along with heuristics and OCS--that “distort our abilities to consider information rationally” contaminate practice in these areas. We will contextualize all of this within the model of therapeutic jurisprudence--a vehicle through which we can assess the impact of case law and legislation on the subjects of such law. Therapeutic jurisprudence recognizes “the law as a therapeutic agent” and that it can have “therapeutic or anti-therapeutic” *434 consequences. “The ultimate aim of [therapeutic jurisprudence] is to determine whether legal rules, procedures, and the role of lawyers can or should be reshaped to enhance their therapeutic potential while not subordinating due process principles.” The law can and should use therapeutic jurisprudence as a mechanism “to expose pretextuality and strip bare the law's sanist fa‡ade,” and thus “become a powerful tool that will serve as a means of attacking and uprooting the ‘we/they distinction’ that has traditionally plagued and stigmatized” persons with mental disability. This must be kept in mind throughout the consideration of these issues, especially in the context of the “we/they distinction.” We will conclude by offering some modest suggestions as to how the current situation might best be remediated, using therapeutic jurisprudence as the basis of our proposed solutions.

Our title comes, in part, from the final verse of Bob Dylan's masterpiece, Chimes of Freedom:

Starry-eyed an' laughing as I recall when we were caught

Trapped by no track of hours for they hanged suspended

As we listened one last time an' we watched with one last look

Spellbound an' swallowed ‘til the tolling ended

Tolling for the aching ones whose wounds cannot be nursed

For the countless confused, accused, misused, strung-out ones an' worse

*435 An' for every hung-up person in the whole wide universe

An' we gazed upon the chimes of freedom flashing

Per the critic, Robert Sheldon, “Chimes is Dylan's ‘most political song’ and an expression of ‘affinity’ for a ‘legion of the abused.”’ Dylanologist Oliver Trager concludes that, in Chimes, “Dylan dangles the notion that humanity has yet to grasp the promises of liberty floating just out of reach.” We have chosen this lyric for this article because the individuals about whom we write--and whom we have each represented as practicing lawyers “aching” from the discrimination they have faced. And, unfortunately, some have been so badly wounded that their “wounds cannot be nursed.”

* * *

Some of our most vulnerable populations--racial, cultural, and gender minorities--are consistently harmed by marginalization that targets persons with mental illness. If we continue to ignore the pervasive stereotypes and false “ordinary common sense” ingrained within this area (both in the legal system and society at large), we will continue to impede necessary advances in care, treatment and legal protections for this cohort of individuals. Our hope is that this article inspires lawyers, practitioners, and researchers to take seriously the deleterious impact of cultural insensitivity on all areas of the mental health assessment, treatment and litigation processes.

The toxicity of racism and sexism is intensified in the context of sanism. Our practices of civil commitment and institutionalization are poisoned even more when we fold in the ways that we stereotype and typify racial minorities, women, and those from the non-dominant culture. Society continues to *458 marginalize and dehumanize such individuals, and does so often in invisible ways. And this marginalization is often most pernicious in the context of cases involving racial, cultural and gender minorities. It is time that we heed Judge David “Bazelon's admonition that we need to be vigilant about not ‘overgeneraliz[ing] about citizens whom it is easy to overgeneralize about.”’

We believe that, through the conscious adoption of therapeutic jurisprudence principles, there is a chance that there may be some light at the end of a very dark tunnel. Current practices--based on statistically invalid and socially pernicious stereotypes of “dangerousness” in matters involving African-Americans or of women--make a mockery of the “validation” principle that is at the heart of therapeutic jurisprudence. Certainly, these practices fly in the face of promoting the “psychological health” that TJ efforts demand and, again, flaunt the ‘ethic of care” that is a sine qua non of TJ.

Again, in Chimes of Freedom (the source of the initial part of the title of this article), “Dylan dangles the notion that humanity has yet to grasp the promise of liberty floating just out of reach.” Liberty does “float ... out of reach” of the individuals about whom we are writing today. Our hope is that, finally, this will change.

Professor Emeritus of Law; Founding Director, International Mental Disability Law Reform Project, New York Law School; and Co-Founder, Mental Disability Law and Policy Associates.

Implementing School-based Health Programs to Deter Undiagnosed African-American Youth from Juvenile Detention

Excerpted from: Dominique Hadley, Implementing School-based Health Programs to Deter Undiagnosed African-American Youth from Juvenile Detention , 11 Southern Journal of Policy and Justice 140 (Fall, 2017) (126 Footnotes Omitted)


DominiquehadleyTwo children, James and Brandon have Attention Deficit Hyperactivity Disorder (ADHD). Both are misbehaving regularly in school by fighting and disrupting class. Additionally, both students are suffering academically. Both James and Brandon have tutors, and genuinely want to succeed in school, but tend to feel defeated when their efforts are to no avail. Brandon's mother recognizes a problem and eventually her son is diagnosed with ADHD. He undergoes treatment, and a year later, he is resembles a well-behaved, academically thriving, student. James has not seen anyone about his potential disorder. He has been expelled from school, and it is the school's recommendation that he relocate to an alternative school for students at risk of dropping out. James is black.

Minority children, especially those living in poverty, are significantly undiagnosed for mental illnesses and this contributes heavily to their overrepresentation in the juvenile justice system. The knowledge of a mental illness before a detention hearing is more likely to keep a child from detention, because treatment for a child's mental illness or disorder can often prevent or counter the behaviors leading to a child's detention. The juvenile justice system is meant to be rehabilitative, but more often than not there is a connection between recidivism in the juvenile system and the prison pipeline. Better access to the resources necessary to diagnose children who may be treated before an encounter with the juvenile justice system need to be provided. However, factors such as stereotypes and implicit bias, coupled with a lack of resources at home and school, decrease a minority youth's chance of being diagnosed.

This paper proposes that the schools are in a unique position to monitor and address the mental health of their students and should therefore play a more active roll in providing the resources for a diagnosis. The most effective course of action would be to implement school-based health programs in public schools that afford the opportunity to diagnose children before disciplinary action takes place. If the child's mental health is adequately assessed before receiving punitive recourse, he or she may be able to receive treatment. Likely the newly diagnosed child undergoing treatment would absolve the disruptive behaviors or provide at the very least use the mental illness mitigating factors towards the punitive action. As school is mandatory, and is where students spend the majority of their time, it is the best place to address the mental health and behaviors of a child. Additionally, schools have the legislative requirement to accommodate any disability that significantly affects a child's learning and adjustment in school, which may include mental illnesses. A broad interpretation of this legislation could easily support the implementation of school-based health programs to accommodate the mental health needs of its students. When invoked, these school-based health programs could provide the diagnosis and treatment that could deter a child from juvenile detention.

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