LEXIS(R)-NEXIS(R)
[Main Menu] [Help] [Sources]

[Results List] [Return to Search][Previous Document][Next Document][Full View][Kwic View]

Document 2 of 3.


Copyright (c) 1993 Georgetown Law Journal
Georgetown Law Journal

November, 1993

82 Geo. L.J. 7

LENGTH: 6686 words



TRIBUTE: THE LEGACY OF JUDGE DAVID L. BAZELON: Questioning Our Policies: Judge David L. Bazelon's Legacy for Mental Health Law.



MARTHA MINOW*


 
- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -

* Professor of Law, Harvard University. The author wishes to thank Len Rubenstein and Steve Schwartz for their help and their inspiring examples. These remarks were made at the Mental Health Law Project Twentieth Anniversary and Renaming Celebration, held at the Corcoran Gallery of Art on March 20, 1993.
 
- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -

SUMMARY:
  ... When students ask me about this, I tell them about the Mental Health Law Project and organizations like it where they can pursue justice. ... In the spirit of his commitment to question authority, I will use the topic of mental health law advocacy -- past and future -- to illustrate the mode of inquiry Judge Bazelon inspires. ... The specific area of mental health, of course, is forever changed by his 1966 landmark ruling that patients confined in public mental institutions have a right to treatment, and by the famous experiment with the rule in Durham v. United States, which expanded the scope of the insanity defense. ... It is not by accident that Judge David Bazelon is linked here today with the mental health law movement. ... In no small part inspired and directed by Bazelon himself, mental health law reformers have criticized and exposed failures in public institutions and commitment practices, called for better procedures and expanded participation by patients themselves, and challenged the status quo profoundly. ... Bazelon warned that there can be no single solution to the interplay of law and mental health. ... One recent book concluded that "[b]oth civil libertarians and advocates of expanded commitment laws now agree that deinstitutionalization resulted in highly fractionalized care at best, or, at worst, no treatment at all." ... And crises stimulate an ongoing process of reform and reaction. ...  

TEXT:
     [*7]  It is March. In law schools around the country, students are wondering whether law has anything to do with justice. When students ask me about this, I tell them about the Mental Health Law Project and organizations like it where they can pursue justice. If they are not convinced, I tell them about the life stories of the people on this panel -- Judge Patricia Wald, Judge Abner Mikva, and William Coleman. To those who are still not satisfied, I describe Judge David Bazelon. Suffice it to say, this usually works.

I am especially delighted that we today will discuss the legacy of David L. Bazelon here in the gracious Corcoran Gallery. This setting reminds me of two comments about art that in turn make me think about Judge David Bazelon:

The first is: "Art is only a stopgap, an imperfect effort to wrest meaning from an environment where nearly everyone is sleepwalking." n1
 
- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -

n1 MARILYN FERGUSON, THE AQUARIAN CONSPIRACY 117 (1980).
 
- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -

The second is that "any authentic work of art must start an argument between the artist and his audience." n2
 
- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -

n2 REBECCA WEST, THE COURT AND THE CASTLE (1957).
 
- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -

David Bazelon challenged everyone he encountered to stop sleepwalking -- and start arguing.

In an interview, he once explained,

I don't know when I first became aware of what I was trying to do, or what it was exactly that shaped my judicial philosophy. But I surely knew before I came to the bench that life was unfair. And looking back on it, I can see that I was trying to raise the questions that people don't want to deal with; to make people aware. n3
 
- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -

n3 Roger Wilkins, A Federal Judge Who Questions the Status Quo, N.Y. TIMES, May 21, 1979, at A20.
 
- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -

And this he did. He asked questions especially about power. He probed beneath the easy answers offered by public figures, regulators, psychiatrists, engineers, and lawyers. He sought honest disclosures of hidden assumptions, values, and doubts. It is that commitment and that model, I believe, that will be his most important legacy. The title of his book, Questioning Authority, n4 fittingly conveys both his challenge to authority and  [*8]  his example as an authority who questioned. In the spirit of his commitment to question authority, I will use the topic of mental health law advocacy -- past and future -- to illustrate the mode of inquiry Judge Bazelon inspires. I may well irritate those who asked me to speak. In honor of the judge, I hope I do.
 
- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -

n4 DAVID L. BAZELON, QUESTIONING AUTHORITY (1988).
 
- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -

Thus, I will not spend this time addressing or celebrating the many specific accomplishments and breakthroughs achieved by Judge Bazelon during his career on the bench. These accomplishments each deserve whole symposia. Just think about ordering Nixon to turn over tapes during the Watergate investigations, n5 bringing rigor to the regulation of DDT, n6 nuclear power, n7 and hazardous substances at the workplace; n8 barring newspapers from owning radio or television stations in the same city; n9 defending the rights of individuals during the McCarthy era; n10 exposing, as he called them, "walking violations of the Sixth Amendment" n11 and articulating a workable and meaningful standard for effective assistance of counsel in criminal defense; and provoking Justice Rehnquist to coin the phrase, "judicial intervention run riot." n12 The specific area of mental health, of course, is forever changed by his 1966 landmark ruling that patients confined in public mental institutions have a right to treatment, n13 and by the famous experiment with the rule in Durham v. United States, n14 which expanded the scope of the insanity defense. n15
 
- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -

n5 See Nixon v. Sirica, 487 F.2d 700 (D.C. Cir. 1973) (upholding order to President Nixon to produce tape recordings and rejecting Nixon's claim of executive privilege).

n6 See Environmental Defense Fund v. Ruckelshaus, 439 F.2d 584, 594 (D.C. Cir. 1971) (holding that EPA must commence formal administrative procedures to review whether DDT should be registered).

n7 See Aeschliman v. NRC, 547 F.2d 622, 630-31 (D.C. Cir. 1976) (holding that safety committee report must discuss problems with nuclear reactor in layman's language and adopt additional procedures), rev'd sub nom. Vermont Yankee Nuclear Power Corp. v. NRDC, 435 U.S. 519, 556-57 (1978).

n8 See AFL-CIO v. Marshall, 617 F.2d 636, 670 (D.C. Cir. 1979) (remanding OSHA regulation for reconsideration of economic impact).

n9 See National Citizens Comm. for Broadcasting v. FCC, 555 F.2d 938, 948-52 (D.C. Cir. 1977) (upholding FCC regulation prohibiting ownership of both newspapers and broadcasting media by a single owner in a given metropolitan area).

n10 See Burrell v. Martin, 232 F.2d 33, 38-40 (D.C. Cir. 1955) (ordering reinstatement of clerk typist that Army had fired because of doubts about her loyalty).

n11 See David L. Bazelon, The Defective Assistance of Counsel, 42 U. CINN. L. REV. 1, 2 (1973) (quoting a "very able trial judge" referring to counsel who provide ineffective assistance to criminal defendants).

n12 Vermont Yankee, 435 U.S. at 557 (quoting Brief for Petitioner at 37 (No. 76-528)).

n13 See Rouse v. Cameron, 373 F.2d 451, 452-53 (D.C. Cir. 1966) (holding that patient who was involuntary hospitalized as a result of successful insanity defense has a right to psychiatric treatment).

n14 214 F.2d 862 (D.C. Cir. 1954), overruled by United States v. Brawner, 471 F.2d 969, 981 (D.C. Cir. 1972).

n15 See id. at 874-75 (replacing morality-based test for insanity defense with rule that "accused is not criminally responsible if his unlawful act was the product of mental disease or mental defect").
 
- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -

 [*9]  I will talk briefly about Durham to illustrate the mode of inquiry Judge Bazelon offers us. That decision represented a deliberate effort to enlarge the range of testimony psychological experts could bring to criminal trials. Rather than confining a psychiatrist's testimony to specified diagnoses to establish insanity, the Durham rule permitted broader comments on whether the crime was "a product of [a mental disease or defect]." n16 Bazelon hoped that this process would expose judges, juries, and the broader community "to all that was known and not known about human behavior." n17
 
- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -

n16 Id. at 875.

n17 David L. Bazelon, Veils, Values, and Social Responsibility, Remarks at the 89th Annual Convention of the American Psychological Association 10 (Aug. 24, 1981) (transcript, on file with The Georgetown Law Journal) [hereinafter APA Remarks].
 
- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -

By most accounts, including Bazelon's own, the Durham approach was a failure. It prompted sharp criticism by those who opposed lenient treatment of criminal offenders. That was not Bazelon's criticism, however. His disappointment grew from the failure of the experts to move beyond labels and really explain what they did, and did not know, about the causes of the individuals' criminal acts. Bazelon himself joined the court in overturning Durham, n18 and he often talked about this experience.
 
- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -

n18 United States v. Brawner, 471 F.2d 969 (D.C. Cir. 1972).
 
- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -

His willingness to try one method for digging out truth, to evaluate it, to reject it, and to reexamine the experience over time offers an important illustration of Bazelon's work. He was a pragmatist, a realist -- he was not a theorist or a dogmatist. In the crude way that academics dissect life -- and art -- let me explain in slow motion what his approach involved; let me identify four critical elements of his method.

The first element involves unflinching criticism and self-criticism. Especially alert to professional resistance to disclosing the bases for conclusions, Bazelon's inquiry also pushed to expose areas of uncertainty. The critical inquiry expressed a dogged commitment to articulate unstated values and assumptions, even when they reveal incoherence or inconsistency. In a characteristic statement, he reported the results of his own self-criticism: "Over the years, I have developed a passionate ambivalence about the behavioral sciences." n19
 
- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -

n19 APA Remarks, supra note 17, at 1.
 
- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -

The second element is a courageous willingness to identify failures in his own efforts, to learn from them, and to accept responsibility for them. This element is obvious in the history following Durham. Bazelon would generously define his own responsibility for failures to include the failures that he did not cause, but that he could influence. I think he would have liked Jennifer Hochschild's definition of responsibility as pertaining not just to the things you cause, but also to things about which you are able to respond. n20
 
- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -

n20 I learned this from my many conversations with Jennifer Hochschild.
 
- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -

 [*10]  An example appears in Judge Bazelon's conception of criminal trials. He wrote:

We must also remember that the criminal trial represents a failure of society. The trial, like the postmortem in medicine, can be a laboratory in which to analyze that failure. We can learn something from the criminal trial about why crime occurs. But that will only be true if someone in the system is responsible for prodding us to look beyond the criminal act to the man who committed it. n21
 
- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -

n21 Bazelon, supra note 11, at 46.
 
- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -

In that context, he was calling for a higher standard of effective assistance of counsel. But notice how he treated the criminal trial as a sign of society's failure and treated society's failure in turn as his responsibility.

Bazelon gave a similar interpretation of the story of Kenneth Donaldson, whose struggle for release from involuntary commitment in a state mental hospital achieved success in the Supreme Court after fifteen years. Bazelon found in this story not just a moving personal account, but an indictment of the mental health system. Bazelon commended Donaldson's relentless and persistent effort for justice, but also condemned the society that would require such effort to correct an injustice -- and that would leave in confinement those who lacked Donaldson's abilities and resources. n22
 
- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -

n22 David L. Bazelon, Foreword to KENNETH DONALDSON, INSANITY INSIDE OUT at viii, ix (1976).
 
- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -

Bazelon's third element prescribes process. Without pretending it would solve all problems, Judge Bazelon called for expanded and improved processes for decisionmaking in a variety of contexts. Process would include genuine dialogue with others and when possible expanded participation by people affected by decisions. Psychological insights could be brought to illuminate the nature of the political process. n23 For example, he was an early supporter of broadened public participation in administrative procedures so that regulatory decisions could reflect a greater span of diverse interests. n24 Even here, though, he acknowledged that no particular form of participation would be a panacea for problems of fairness and quality. Instead he urged experimentation and evaluation of the success and failures of such experiments.
 
- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -

n23 APA Remarks, supra note 17, at 17. In this respect, Bazelon anticipated the development of "therapeutic jurisprudence," a recent effort by scholars to consider the ways in which legal procedures and rules can enhance, or inhibit, mental health. See generally DAVID B. WEXLER, & BRUCE J. WINICK, ESSAYS IN THERAPEUTIC JURISPRUDENCE (1991).

n24 David L. Bazelon, Coping with Technology Through the Legal Process, 62 CORNELL L. REV. 817, 829 (1977).
 
- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -

The final and most fundamental element is a substantive vision. It is a vision of a world that is more fair. Bazelon loved to quote Judge Learned Hand, who said, "If we are to keep our democracy, there must be one  [*11]  commandment: Thou shall not ration justice." n25 For Bazelon, justice meant steadfastly siding with those who are powerless and marginalized. Justice refuses to treat the status quo as neutral or even presumptively acceptable. As only one among competing alternatives, the status quo treatment of a given problem should not prevail simply because it is difficult to choose change or because it is difficult to decide anything. Thus, in discussing regulation of new technologies, Bazelon wrote: "[A] decision not to decide, or to delay deciding, is still a decision." n26
 
- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -

n25 David L. Bazelon, The Realities of Gideon and Argersinger, 64 GEO. L.J. 811, 835 (1976) (quoting Address by Learned Hand, New York Legal Aid Society (Feb. 16, 1951), excerpted in 9 BRIEF CASE 5 (Apr. 1951)).

n26 Bazelon, supra note 24, at 820.
 
- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -

Bazelon further elaborated this point in discussing effective assistance of counsel. He explained:

I have often been told that if my court were to reverse every case in which there was inadequate counsel, we would have to send back half the convictions in my jurisdiction.

It frightens me to hear the suggestion that we should respond to a problem by ignoring it. If the problem is that widespread, our responsibility to confront it is all the more urgent. When we evade the constitutional claim on such pragmatic grounds, we are like the man in the Buddha's parable of the burning house. A bystander told the man to flee because his house was ablaze. But the man was too practical; before he left home, he had to find out whether it was raining outside and whether he could find a new place to live. So it is with the courts. While we wait to confront the problem of ineffective assistance, our system of criminal justice crumbles around us. n27
 
- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -

n27 Bazelon, supra note 11, at 22-23.
 
- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -

In a nutshell, his vision was a vision of ethical human relations, motivated by such classic questions as, "if I am only for myself, what am I?," and "if not now, when?" It was also leavened by humor. He liked especially to quote Art Buchwald's college commencement address: "[T]he older generation has given you a perfect world -- now don't louse it up!" n28
 
- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -

n28 David L. Bazelon, Commencement Address to Cardozo Law School 2 (June 12, 1980) (quoting Art Buchwald).
 
- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -

Thus, Bazelon advocated and demonstrated these four elements: 1) inquiring critically, 2) assuming responsibility for failures, 3) adopting inclusive processes, and 4) pursuing an ethical vision of social justice. Bazelon himself put it succinctly in describing the tasks of a judge: "In this job, you have to ask the questions that tend toward greater fairness even when you don't have all the answers because it's clear that the thing is out of kilter now." n29
 
- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -

n29 Wilkins, supra note 3, at A20.
 
- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -

 [*12]  Although Judge Bazelon had lots of opinions -- and wrote lots of opinions -- he was remarkably undogmatic, except, that is, about questioning, experimenting, and changing course when things did not work. Dorothy Parker once said, "You can't teach an old dogma new tricks." n30 Bazelon, in contrast, constantly had new tricks and a perpetual thirst for new knowledge.
 
- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -

n30 ROBERT E. DRENNAN, THE ALGONQUIN WITS 24 (1968).
 
- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -

It is not by accident that Judge David Bazelon is linked here today with the mental health law movement. Questioning critically, acknowledging failures, exploring inclusive processes, and pursuing social justice characterize the work of advocates during the past three decades of mental health law. In no small part inspired and directed by Bazelon himself, mental health law reformers have criticized and exposed failures in public institutions and commitment practices, called for better procedures and expanded participation by patients themselves, and challenged the status quo profoundly.

The accomplishments in a short time have been enormous. One measure of this is the recent indication that proposed national health care reforms will include a serious commitment to finance mental health services. n31 Other measures include statutory success, notably with the adoption of the Americans with Disabilities Act of 1990 n32 and the Fair Housing Amendments Act of 1988. n33
 
- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -

n31 Dana Priest, Putting Health Care Under a Microscope in Clinical Detail, Clinton Task Force Analyzes and Argues Its Way Toward a Reform Plan, WASH. POST, Apr. 16, 1993, at A1; see also Second Opinion, The Hillary and Tipper Health Care Show, WASH. POST, May 18, 1993, at HM 6 (Health Magazine) (reporting that Tipper Gore is seeking to include psychiatric illness on equal footing with physical ailments in health care reform package).

n32 Americans with Disabilities Act of 1990, Pub. L. No. 101-336, 104 Stat. 327 (codified in scattered sections of 29 U.S.C., 42 U.S.C., and 47 U.S.C.).

n33 Fair Housing Amendments Act of 1988, Pub. L. No. 100-430, 102 Stat. 1619 (codified in scattered sections of 28 U.S.C. and 42 U.S.C.).
 
- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -

But not all the reforms have worked. Judge Mikva's comments examine many of the problems. n34 I would like to pursue a similar analysis of deinstitutionalization, in the spirit of Bazelon's critical inquiry.
 
- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -

n34 See Abner J. Mikva, The Real Judge Bazelon, 82 GEO. L.J. 1 (1993).
 
- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -

It is easier to be a critic than a reformer. I once saw a cartoon that showed a balloon filled with hot air, tied to a sandbag -- and in the cartoon, the liberals are the hot air and the conservatives are the sandbag. n35 Whether liberal or conservative, critics can blow hot air or sandbag change.
 
- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -

n35 JAMES T. PENDERGRAST, OBJECT LESSONS 68 (1988).
 
- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -

As Judge Mikva notes, Bazelon himself would be urging reexamination of reforms if they do not seem to work. Professor David Rothman, a friend to many here, once noted that the "reforms of one generation become the scandals of the next." n36 A Bazelonian approach would treat no generation's  [*13]  reforms as immune to criticism. Indeed, Bazelon himself began a critique of deinstitutionalization before he died. He noted that this effort seemed in many states to have moved people "from the 'back wards' to the 'back alleys,' "and the "'promise of freedom' has often proved to be as chimerical as the 'promise of treatment.'" n37 Bazelon warned that there can be no single solution to the interplay of law and mental health. Neither institutions nor deinstitutionalization can be a panacea. Individual needs are too varied, behavioral knowledge too uncertain.
 
- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -

n36 JOHN Q. LA FOND & MARY L. DURHAM, BACK TO THE ASYLUM 100 (1992) (quoting DAVID ROTHMAN, CONSCIENCE AND CONVENIENCE (1971)).

n37 Bazelon, supra note 22, at xi.
 
- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -

A careful evaluation of the effort would yield, I think, a complex picture. The link between homelessness and deinstitutionalization has been exaggerated in the press and the public imagination, but studies do indicate that some thirty to forty percent of homeless people have some kind of mental illness. n38 It is difficult in this light to challenge the widespread public perception that the legal claims of people with mental disabilities come down to the right to live on the sidewalk. n39
 
- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -

n38 RAEL J. ISAAC & VIRGINIA C. ARMAT, MADNESS IN THE STREETS 4 (1990).

n39 Id. at 340.
 
- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -

More troubling still, many of the ostensibly deinstitutionalized people ended up reinstitutionalized -- in nursing homes, private clinics, or in the criminal justice system. n40 Even programs that are called "community-based" may in fact look a lot more like isolated institutions. One of my students recently reported on her work at a supposedly community-based program. It is housed in the top three floors of a ten story building, isolated from any residential or commercial area, on the fringe of a park. Three-fourths of the space is locked wards. The floorplan looks like a hospital, with a nurses' station in the middle and patients' rooms lining long corridors. Some of the patients enter the program because of poverty as much as anything else. Settings like this one lead some to suggest that, rather than constraining social control, the deinstitutionalization movement actually strengthened and expanded structures to control people perceived as "deviants." n41 Services obtained by the state through private contracts, producing private profits, have become part of the apparatus of state-sponsored restraints on liberty. Too many of the remaining institutions abuse their funding, spending enormous percentages on administration. n42
 
- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -

n40 This is a different problem than the difficulties posed by arguments to reopen institutions that have been closed and to "go back" to the old days.

n41 STANLEY COHEN, VISIONS OF SOCIAL CONTROL 37 (1985).

n42 ISAAC & ARMAT, supra note 38, at 343.
 
- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -

One recent book concluded that "[b]oth civil libertarians and advocates of expanded commitment laws now agree that deinstitutionalization resulted in highly fractionalized care at best, or, at worst, no treatment at  [*14]  all." n43 Liberal ideals of due process and humanitarian treatment lost currency during the 1980s. Neoconservative rhetoric and policies took over in both civil commitment and mental health service budgets. In sum, it is a story of considerable chaos and failure.
 
- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -

n43 LA FOND & DURHAM, supra note 36, at 109. In a parallel story, liberal reforms in civil commitment -- resulting in more procedural protections and restraints on involuntary confinement -- did reduce the numbers of people civilly committed for short periods. But promptly thereafter, the numbers returned to their previous levels. Id. at 144.
 
- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -

I mean to invoke failure in the sense meant by Bazelon: disappointing results of an experiment that should prompt a postmortem, and a sense of responsibility for devising something better. Failure here should permit reexamination of assumptions and values. Obviously, the failures reflect more on the larger society than on the reformers. Stigma and disrespect for people who seem different predate deinstitutionalization, and unsurprisingly, persist. I am reminded of the old joke: how many psychiatrists does it take to change a light bulb. There are two punch lines possible here: one is, "what makes you ask this question?"; the other is, "just one, but the light bulb has to really want to change." By analogy (if one can analogize to a punch line), how much can deinstitutionalization change society? Answer: it can, if society really wants to change.

Aye, there's the rub. Society hasn't really wanted to change very much. Reformers have to take this basic fact into account in devising reforms. In evaluating the failures of deinstitutionalization, reformers should be self-critical and consider goals and assumptions about how to achieve them. If the goal was to open chances for decent lives for people with disabilities, it is far from achieved. If the means chosen emphasized visibility of the problem -- on the assumption that the community would respond to the actual sight of people in need -- the astonishing capacity for human callousness needs to be acknowledged.

Moreover, an inquiry into the means and ends of deinstitutionalization reveals, I think, a conflict within the community of advocates. My sister, Nell Minow, tells me that there are two kinds of people in the world: the people who think there are two kinds of people and the people who don't. In the mental health advocacy community, this is a profound point. For there is a dispute between those who see social control in every form of service or treatment and those who attack only segregative techniques that exclude people with mental disabilities from community settings. There is a related conflict between those who reject institutions and those who seek resources to fix up institutions. These conflicts I think come down to conceptions of mental disabilities. One conception blames them more on societal treatment, including understandable human responses to bad institutional care. Another conception accepts the "reality" of mental illness and mental retardation, but envisions greater possibilities for each  [*15]  individual to realize potential. The high incidence of clinical depression among mothers who have young children and no job may suggest the power of the first view, n44 but developments in biochemistry underscore the power of the second view.
 
- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -

n44 David Ingleby, Mental Health and Social Order, in SOCIAL CONTROL AND THE STATE 141, 183 (Stanley Cohen & Andrew Scull eds., 1983).
 
- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -

More to the point, given our legal system, a genuine dilemma arises with either view. For if you argue, on the one hand, that people assigned the label of mentally ill or mentally handicapped are really the same as everyone else, you undermine the rationale for special services -- whether in the community or not. If you argue, on the other hand, that people with mental disabilities are really different from others, you risk deepening stigma, justifying expanded social control, and perpetuating social exclusion.

This dilemma produces two ways to evaluate the history. On one view, deinstitutionalization failed because it was a mistake to prescribe liberty for mental disabilities. On the second view, the movement failed because there was inadequate follow through, insufficient funding for community services, and paltry political will.

As a middle child, I have always hated either/ors. I think both/and is much more likable, and much more likely. Bazelon, I suspect, would say the same, although he was the youngest child. Another astute observer, Stanley Cohen, similarly rejects the idea that either one of these evaluations standing alone is right. He argues that the difference claim can justify services as well as social control. n45 He also notes that classifying people may be a problem, but it may help mobilize resources responsive to particular human needs. n46 Moreover, he claims, the weakest, least powerful members of society may be better served by having professionals and advocates attached to them by a labeling process than by dispersing them into the general sea of human misery. n47
 
- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -

n45 COHEN, supra note 41, at 263.

n46 Id. at 268-70.

n47 Id.
 
- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -

The plight of people with mental disabilities shines a flashlight on the big holes in the social safety net. Fixing the net for everyone, however, is more of a pipe dream than devising protections for the group labeled "mentally disabled."

Let's step back and take a longer look at the situations of people with mental disabilities in this country. The problem may in part stem from thinking about problems as if they have solutions. Commenting on the deinstitutionalization efforts in Italy, Professor Ota De Leonardis writes that some problems don't fit the pattern of a problem. n48 People labeled  [*16]  with mental disabilities are often treated as problems. Institutions are treated as if they are solutions. Professor De Leonardis claims that challenges to institutions also challenge the picture of a problem met by a solution. n49 She concedes that deinstitutionalization creates ongoing problems, even crises. But she argues that this is a good result. Crises mobilize many people to act, including patients. Crises prompt experiments, complete with trial and error. n50 And crises stimulate an ongoing process of reform and reaction. n51 From this vantage point, the failures themselves are part of the process of change.
 
- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -

n48 Ota De Leonardis, Deinstitutionalization, Another Way: The Italian Mental Health Reform, 1 HEALTH PROMOTION 151, 153 (1986). Support for this view may be found in New York State's recent decision -- some 40 years after it started deinstitutionalization -- to direct some of the money saved from shrinking the state psychiatric hospital system to care for persons with mental illness who live in communities. See Celia W. Dugger, A Bill Promises Aid for New York City's Mentally Ill, N.Y. TIMES, Nov. 27, 1993, at A21.

n49 De Leonardis, supra note 48, at 154.

n50 Id.

n51 Id. at 161-62.
 
- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -

If the effort is to change the larger society's response to people who are different, however, I think we can do better than the pattern of homelessness, criminalization, and reinstitutionalization that we now see. The hope is to set in motion a process of societal engagement with people who are different, and engagement with the task of remaking society so the costs of difference does not fall on the most vulnerable. This reminds me of Judge Bazelon's commitment to process, although he would urge more systematic methods of inclusion and involvement. He would urge greater public participation in plans to restructure institutions, so that real community leaders, not leaders with romantic nostalgia for community, participate in the plans.

Commitment to inclusive process presents a very specific question for advocates in the area of mental health advocacy: what role should family members have? When addressing placement and treatment questions for individuals or for entire groups, family members often seem to be adversaries. Parents and siblings may oppose community placement if this means they must assume responsibility. Or they may assert a paternalism that undermines the patient as a self-determining consumer. Yet failing to involve family members ensures ongoing conflict. Failure to involve family members also means missing the chance to remake relationships in the process of decisionmaking. A recent book on this field suggests that today, the family is the institution. n52 The evidence? "It is estimated that 800,000 individuals suffering from schizophrenia and manic-depressive illness now live with their families, mostly parents." n53 Family members serve as medical staff, social workers, and guards -- without training, backup, or rehabilitation techniques. The divorce rates in such families are extraordinary, as  [*17]  one indication of strain. If families are the institution, shouldn't they become a focus for assistance and reform?
 
- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -

n52 ISAAC AND ARMAT, supra note 38, at 250.

n53 Id.
 
- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -

In an innovative program currently underway in Massachusetts, an advocacy organization is working not against, but with families. n54 The strategy uses the process of moving people from a residential treatment center and helping the family to obtain the help they need to, in turn, help the family member returning to the community. n55 In this way, the process itself can be -- dare I say it -- therapeutic for the family, and perhaps for the larger society as well. n56 A real priority along these lines should be to focus on children's needs by enhancing their parents' abilities to gain access to mental health services: ideally this access should start with developmental assessments as part of well-child check-ups. That way not only will kids get what they need, but also parents will receive assistance and education just when they need it.
 
- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -

n54 Interview with Steve Schwartz, Center for Public Representation (Dec. 7, 1992).

n55 Id.

n56 Cf. WEXLER & WINICK, supra note 23.
 
- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -

What about those consumers or patients who do not, cannot, or will not live with family members? The central problem here is housing, and the Mental Health Law Project (today renamed The David C. Bazelon Center for Mental Health Law) has been a true leader in the effort to devise housing options for people with mental disabilities. My favorite recent development in the housing arena presents both process and visionary dimensions. Using provisions of the Fair Housing Amendments Act of 1988, operators of two community homes for people with mental disabilities challenged a zoning ordinance restricting the numbers of people who could reside in a dwelling. n57 They successfully invoked the act's requirement of "reasonable accommodation" to permit handicapped persons equal opportunity to use and enjoy a dwelling. n58 The target of the suit was not a landlord, but instead the city's zoning ordinance itself. The court took testimony about both the importance of community settings for people with mental retardation and the practical need for a sufficient number of residents to bring in Medicaid and Social Security Insurance payments to offset household expenses. n59 The court concluded that reasonable accommodation could only be defined in terms of specific facts, and in this case, found that the facts justified modification of the zoning ordinance. n60 This decision demonstrates not only the substantive vision of inclusion, but also the process of argument and education that can change society.
 
- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -

n57 Parish of Jefferson v. Allied Health Care, Inc., No. CIV.A.91-1199, 1992 WL 142574, at *1 (E.D. La. June 10, 1992).

n58 Id. at *6.

n59 Id. at *4.

n60 Id. at *7.
 
- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -

 [*18]  Giving content to notions like "reasonable accommodation" will be an important challenge for advocates. Involving families and community members in the process renders the project more complicated, but also more likely to succeed. Family and community members who participate may multiply the changes, but also multiply the questions. The memory of Judge Bazelon should encourage just that. He liked to quote the scientist Niels Bohr, who said, "Every sentence I utter must be understood not as an affirmation, but as a question." n61 We should see the questions as moral ones, binding us together as communities of responsible people.
 
- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -

n61 Bazelon, supra note 17, at 12.
 
- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -

Beverly Sills once said, "Art is the signature of civilizations." n62 That may well be, but justice and the treatment of the most vulnerable is the ultimate measure of a civilization. May we each take up Judge David Bazelon's challenge, wake the sleeping, engage in argument, and struggle for a more just world.
 
- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -

n62 ROSALIE MAGGIO, THE BEACON BOOK OF QUOTATIONS BY WOMEN 20 (1992).
 
- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -



[Results List][Return to Search][Previous Document][Next Document][Full View][Kwic View]
[Main Menu] [Help] [Sources]
About LEXIS(R)-NEXIS(R) Terms and Conditions

© 1999, LEXIS®-NEXIS®, a division of Reed Elsevier Inc. All Rights Reserved.