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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.

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