Disability Law Archives - Columbia Law Review

Introduction All fifty states authorize psychiatric incarceration,[footnote]See infra section II.A. This Note does not refer to psychiatric incarceration as “civil commitment” because the accurate word for the exercise of state power to deprive someone of freedom of movement in its most basic form is “incarceration.” This Note will not rely on euphemistic language to hide the reality of the legal mechanisms at work. Practically, there is little difference between being handcuffed, placed in the back of a police car, and then held involuntarily by threat of force at a hospital and being handcuffed, placed in the back of a police car, and then held involuntarily by threat of force at a jail.[/footnote] justifying the use of preventive detention based on the presumption of a causal relationship between “mental illness” and legal incompetence.[footnote]For example, in November 2022, New York City Mayor Eric Adams “directed the police . . . to hospitalize people they deemed too mentally ill to care for themselves, even if they posed no threat to others.” Andy Newman & Emma G. Fitzsimmons, New York City to Involuntarily Remove Mentally Ill People From Streets, N.Y. Times (Nov. 29, 2022), https://www.nytimes.com/2022/11/29/nyregion/nyc-mentally-ill-involuntary-custody.html (on file with the Columbia Law Review ).[/footnote] Statutes linking observably different cognition to irrationality, disease, and contamination pre-date the Founding of the United States.[footnote]See Laura I. Appleman, Deviancy, Dependency, and Disability: The Forgotten History of Eugenics and Mass Incarceration, 68 Duke L.J. 417, 423 (2018) (“As 1676 legislation from Massachusetts addressing mental illness made very clear, the fear was that the mentally ill might contaminate other members of the community, sending them to damnation . . . .”); see also id. at 421 (“From the very beginning, European society has aimed to confine and isolate those suffering from various poorly understood disabilities. Anglo-Europeans began segregating and confining the mentally ill and cognitively disabled from approximately the twelfth century.”).[/footnote] Though there are ample critiques of psychiatric incarceration, within these critiques, the story of “mental illness” masquerades as biological fact.[footnote]See Liat Ben-Moshe, Decarcerating Disability: Deinstitutionalization and Prison Abolition 39 (2020) (“Psychiatrization . . . is not natural or God given; it is a specific discourse arising in a particular historical moment that [has] come to be seen as ahistorical and inevitable.”).[/footnote] Thus, the idea that observably different cognition is the result of an infection or an impairment to an underlying normal cognitive function has been widely and uncritically accepted in both medicine and law as nature-imposed reality rather than critiqued as a malleable normative framework.[footnote]See infra sections I.B, II.A.[/footnote] Consequently, even psychiatric incarceration’s most vocal critics have not been able to successfully advocate for its abolition. When lawyers, legislators, psychiatrists, and mental health professionals rely on this pathological framing, debates surrounding treatment imposed by the force of law devolve into a cyclical battle between preferences for protecting the liberty interests of those who are competent and preserving the state’s power to mandate treatment for people who are incompetent.[footnote]See infra text accompanying notes 119–124.[/footnote] Generally, supporters of psychiatric incarceration argue that protecting the liberty interests of the “mentally ill” is no better than letting people die preventable deaths.[footnote]See infra text accompanying notes 125–130; see also infra text accompanying note 143.[/footnote] Critics typically respond that the error rate in the determination of “mental-illness”-induced incompetence is too high to justify the harms imposed by the erroneous deprivation of liberty.[footnote]See infra text accompanying notes 137–142.[/footnote] But the cyclical battle between liberty and paternalism obscures the relevant—and not yet addressed—legal question of who is granted the expertise on divergent cognition and thus authority to decide when a person is legally incompetent. This Note proposes a resolution to this debate found not in the balance between liberty and paternalism but in rejecting the dominant normative framework of divergent cognition as “mental illness.” Rooted in a combination of Critical Autism Studies,[footnote]Critical Autism Studies is a decentralized, cross-disciplinary body of scholarship that not only challenges deficit-based descriptions of autism but also critiques dominant cultural assumptions regarding interpersonal relationships and communication dynamics, thus disrupting traditional conceptions of intent, rhetoric, agency, and empathy. [/footnote] Mad studies,[footnote]Regarding the identity term Mad: Starting in the nineteenth century, “intellectual disabilities” and “mental illnesses” were conceptually distinguished as discrete kinds of categories. Ben-Moshe, supra note 4, at 41. Consequently, “Mad has been reclaimed as a socio-political identity for people who experience emotional distress and/or who have been labeled as ‘mentally ill’ . . . .” Definitions, Mad Network News, https:// madnessnetworknews.com/definitions/ [https://perma.cc/X5FP-NB3V] (last visited Aug. 16, 2023). Because some psychiatric survivors are neurotypical, not all Mad people are Neurodivergent. Conversely, not all Neurodivergent people are Mad. See Derrick Quevedo (@drrckqvdo), Instagram ( July 7, 2023), https://www.instagram.com/p/CuZaJxhAGnX/ (on file with the Columbia Law Review ) (“One of the biggest misconceptions about Mad Pride is the belief that the Mad community is united by ‘mental illness,’ when we’re more accurately united by the harm we’ve experienced from the mental health industrial complex.”).[/footnote] and disability justice, this Note introduces the neurodiversity paradigm to reject the construction of “normal” cognition within law governing psychiatric incarceration.[footnote]See Nick Walker, Throw Away the Master’s Tools: Liberating Ourselves From the Pathology Paradigm [hereinafter Walker, Liberating Ourselves], in Neuroqueer Heresies: Notes on the Neurodiversity Paradigm, Autistic Empowerment, and Postnormal Possibilities 16, 19 (2021) [hereinafter Neuroqueer Heresies] (“Neurodiversity—the diversity among minds—is a natural, healthy, and valuable form of human diversity. . . . There is no ‘normal’ or ‘right’ style of human mind, any more than there is one ‘normal’ or ‘right’ ethnicity, gender, or culture.”).[/footnote] Within the language of the neurodiversity paradigm, “Neurodivergent” is the identity term coined by activist Kassiane Asasumasu for a person who experiences any form of divergent cognition,[footnote]Nick Walker, Neurodivergence & Disability, in Neuroqueer Heresies, supra note 11, at 60, 69 [hereinafter Walker, Neurodivergence & Disability]. For example, at least autism, bipolar, schizophrenia, attention deficit hyperactivity “disorder” (ADHD), dyslexia, post-traumatic stress “disorder” (PTSD), dissociative identity “disorder” (DID), narcissistic personality “disorder” (NPD), borderline personality “disorder” (BPD), and complex post-traumatic stress “disorder” (cPTSD) are neurodivergences. Id. This Note, in advocating for the depathologization of neurodivergence and distress, avoids the use of the word “disorder” wherever possible. When such avoidance is not possible, the Note places “disorder” in quotes. This is a short-term fix and may change with time as the community works through the process of depathologizing neurodivergence. The word “Neurodistinct” has also been proposed as an alternative identity term. See Tim Goldstein, Neuro Cloud & Neurodistinct, Neurodiversity Refined, Neurodistinct ( June 16, 2020), https://www.timgoldstein.com/blog/neurodiversityrefined [https://perma.cc/6RGH-U8N8] (“Instead of the negative, separating, divisive term [Neurodivergent], I coined Neurodistinct.”). This Note, however, elects to use the word “Neurodivergent” to preserve the recognition that cognition can and does diverge from neuronormativity.[/footnote] similar to how “Queer” is an umbrella term for a spectrum of different sexual and gender identities.[footnote]See Sonny Jane Wise (@livedexperienceeducator), Instagram (Nov. 22, 2022), https://www.instagram.com/livedexperienceeducator (on file with the Columbia Law Review ) (“[N]eurodivergent and queer are similar terms because they are both identities . . . about diverging; one is about diverging from neuronormativity while the other is about diverging from cisnormativity and heteronormativity.”). It is more than a superficial comparison; Critical Autism Studies and Queer Theory are deeply intertwined. See Nick Walker, A Horizon of Possibility: Some Notes on Neuroqueer Theory, in Neuroqueer Heresies, supra note 11, at 168, 170–72 (“The more I reflected on the process by which I was pushed into the ill-fitting confines of heteronormative gender performance and the process by which I was pushed into the ill-fitting confines of neuronormative performance, the more it became clear that the two processes weren’t merely similar or parallel . . . but [were] a single multifaceted process.”).[/footnote] By contrast, “neurotypical” refers to people who conform with the construction of “normal” cognition.[footnote]Walker, Liberating Ourselves, supra note 11, at 27 (“In the pathology paradigm, the neurotypical mind is enthroned as the ‘normal’ ideal against which all other types of minds are measured.”).[/footnote] The neurodiversity paradigm positions neurodivergence as an integral component of the self rather than as a corrosive, autonomy-depriving, or incompetence-inducing agent to an underlying “normal.” The paradigm thus severs the illusion of the causal relationship between divergent cognition and the determination of legal incompetence. In preserving the competence of Neurodivergent people, the neurodiversity paradigm permits all people to retain the final and unilateral legal authority to define the support they need in crisis and beyond. Thus, reframing the story told about divergent cognition allows policy discussions to step beyond the notion that the only effective interventions for people experiencing crisis are ones rooted in coercive applications of force that override potentially deadly exercises of autonomy. In reclaiming the expertise on neurodivergence for Neurodivergent people, this Note calls for the abolition of psychiatric incarceration in favor of an understanding of care designed by Indigenous, Black, Mad, Neurodivergent, and Disabled survivors of carceral psychiatry.[footnote]This Note uses identity-first language. If a nondisabled person needs a reminder that a Disabled person is a person, then the nondisabled person already sees the Disabled person as something less. This will be the only comment on identity-first language use in this Note. Carceral psychiatry names spaces where psychiatrically labeled people are incarcerated as an extension of the carceral state. See Ben-Moshe, supra note 4, at 16; Rafik Wahbi & Leo Beletsky, Involuntary Commitment as “Carceral-Health Service”: From Healthcare-to-Prison Pipeline to a Public Health Abolition Praxis, 50 J.L. Med. & Ethics 23, 26 (2022). For a more extensive background on the similarities between psychiatric hospitals and prisons, see generally Erving Goffman, Asylums: Essays on the Social Situation of Mental Patients and Other Inmates (1961) (defining “total institutions,” including both prisons and mental hospitals, and the socialization process inmates in total institutions undergo).[/footnote] Part I introduces the pathology paradigm. It explains how an outdated conceptualization of statistics within psychiatry permitted the construction of the false dichotomy between normal and abnormal cognition. It then details how disability studies absorbed the construction of abnormal cognition within biological impairment. Part II maps the pervasive and uncritical acceptance of the pathology paradigm into statutes authorizing psychiatric incarceration and policy debates regarding the practice’s normative and ethical dimensions. Part III introduces the neurodiversity paradigm as developed in Critical Autism Studies and aligned with modern statistics. It then calls for the abolition of psychiatric incarceration in favor of an understanding of care and support currently being implemented by grassroots organizations that aim to catch society’s most marginalized without resorting to handcuffs, body slams, or bullets.[footnote]See Judith Prieve, Family, Friends Call for Police Reform on Anniversary of East Bay Man’s Shooting Death, E. Bay Times ( June 3, 2020), https://www.eastbaytimes.com/ 2020/06/03/family-friends-call-for-police-reform-on-anniversary-of-east-bay-mans-shooting-death/ (on file with the Columbia Law Review ) (“Miles Hall suffered a breakdown, and so did the system, [Hall’s mother] said. ‘We called them, they came with guns, they didn’t come with compassion—and now our son is dead, dead at the hands of law enforcement because it is a broken system.’”); Special Books by Special Kids, Visiting My Schizoaffective Friend After His Forced Psychiatric Stay, YouTube, at 20:45 (Oct. 26, 2020), https://www.youtube.com/watch?v=xc1tbETJpX4 (on file with the Columbia Law Review ) (“I was falling over [a bridge] and then it was body-slam time where [police officers] slammed me onto the ground and handcuffed me . . . . There have got to be better ways . . . . I didn’t call for help . . . [because] I was afraid of exactly what would happen.”).[/footnote]