what i've learned about it all as a stanford lawyer
things i've learned about co-occurring disorders as a lawyer
As a lawyer, I see what the co-occurring disorders of mental illness combined with substance abuse really are: A massive, needless public health problem, combined with an inhumane criminal justice problem, particularly on the mental illness side. Our society refuses to deal with mental illness — and let’s be clear, under both state and federal law, mental illness is a disability — and yet instead of devoting medical and resources, we warehouse most of our citizens with these disabilities in jails. Imagine being thrown in prison — and left in jail — merely because you have a physical disability, just because society decided it didn’t want to deal with you. That’s what is happening. It violates human rights, civil rights, and constitutional rights. And yet it continues in this country, and other countries too.
And as a lawyer, I can see all of the ways that our society’s position on mental illness cannot be justified. The way most people with mental illnesses are treat stands contrary to human rights, civil rights, discrimination law, and Constitutional law. Or look it from an efficiency and economic view. It would be more useful to society, and lead to more economic benefits, and economic savings, if our society found ways to include people with this disability. We represent untapped intellectual property — and therefore untapped economic — value. Or look at it from the standpoint of basic morality. Can it ever be moral to incarcerate, or impoverish, an entire category of disabled persons just because their disability is in their brains, instead of their bodies?
Even a basic legal analysis of mental illness stigma shows that it is as irrational and illogical as racism, sexism, misogyny, and homophobia and all of our other human biases — because it is riddled with errors of logic. Yet stigma as to the disability of mental illness persists in our society, our culture, our social media, our news media, our criminal justice system, and our entertainment. Why?
While Congress and most state legislatures took the first correct step, by defining mental illness to be a disability recognized by law, those bodies have not passed the additional statutes, nor devoted the appropriate resources, that are necessary to actually resolve the very real, concrete issues that society has created and exacerbated for those who have these medical diagnoses. In other words, it’s not enough that our law says mental illness should not be discriminated against when, in the real world, the truth is that no one with a mental illness feels safe when, say, an employer learns of their diagnosis.
The irrationality of mental illness stigma is profound. It is truly illogical. What do I mean by that, as a lawyer? Let's say that the typical stigma-based assumptions about mental illness were offered as evidence in a court of law. Just as with any other type of irrational, prejudiced, and speculative thinking, stigma would be thrown out of any legitimate court by any judge. Why? Because, if introduced in court, our laws of evidence would consider it to be, first, improper propensity evidence; second, improper bad character evidence; and, third, improper speculation without any basis.
Most stigma is also based in rank hearsay, meaning that those who pass around stories rooted in mental illness stigma have no actual first-hand observations of a real person who has a real diagnosis — instead of having any personal knowledge, they just repeat second-hand stories, that may or may not be accurate, from cable news or social media screens. Such hearsay is not fact, but it is damaging. This is another reason why stigma is worthless as a matter of logic and evidence. Yet it still persists nationwide and worldwide. Why?
And as a lawyer, I see from the history of our nation that irrational prejudices, and legal change in our society, both as to laws and norms, happens slowly. And there is evidence that sometimes we even regress. This suggests, broadly speaking, that just as racism and sexism and homophobia and other “isms” will not end any time soon, likely mental illness stigma will not end any time soon, either. Laws themselves don't usually change societal norms, especially irrational and prejudiced norms, which are often deeply embedded and hard to cure. Rather, society usually changes first, slowly, with the law following behind — sometimes years behind — to codify the culture's new views. Will there be anything that serves as a catalyst, as to mental illness stigma, to generate enough positive societal change beneficially impact our laws and our legal norms?
From a legal analysis standpoint, it appears that some of the best models for ending mental illness stigma are, or will be, strategies borrowed from other movements and groups ranging from civil rights to LGBT to physical disabilities to intellectual disabilities. These models have a range of elements beyond just an anti-stigma message or an awareness message. Those messages are certainly important, and they are vital on the individual level, but they are not, on their own, sufficient to end a society’s long-held and deeply-held suspicions and prejudices of people who are considered “different.” Many of the models I mention above include more than the notion of awareness; they include the goal of full inclusion. This should encompass not just abstract inclusion, but concrete inclusion with respect to housing, education, employment — and treatment: access to psychiatrists, access to medicine, and access to therapy.
Our legal history also suggests, very broadly speaking, that, as new generations come to age, their views will, on balance, tend to be a positive means of eroding our existing irrational prejudices. This is not a given, of course. But nor is it mere speculative hope. That's why I especially enjoy talking to students and young adults -- it's because, in most cases, the young are the best change agents we have when it comes to ending irrational and illogical norms in a society.
As these macro-level ideas percolate — as dialogues and discussions hopefully continue and grow, there are immediate law-related issues that need to be addressed. As I mentioned at the start, the key issue is our criminal justice system, where neither substantive law nor procedural law has kept up with the neuroscience of mental illness. There are issues with respect to intent, competency, lengths of incarceration, rehabilitation, and using jails and prisons to warehouse the mentally ill. Warehousing disabled people — when they are simply humans with a mental illness diagnosis — is a human rights violation. Enlightened societies and people know this. The question is, when will we decide to stop?