Can democratic states justify restricting the rights of persons with mental illness? Presumption of competence, voting, and gun rights

ABSTRACT

In this paper, I scrutinize the practical and normative justifications for the semi-citizenship of persons with mental illness through a comparative examination of the voting and gun rights restrictions that are often applied to them in democratic states. Informed by Judith Failer’s work on civil commitment, I argue that rights restrictions should not be bundled together in unrelated groupings nor should they be justified through problematic efforts to predict and assess the risk of future violent behavior. Instead, I argue for an approach that presumes the competence of all to exercise rights while at the same time acknowledging that all rights holders – not just those who experience severe mental illness, would benefit from the availability of supported and substituted ways of holding rights when necessary. I elaborate this argument by showing how many of the current approaches to limiting the voting and gun rights of persons with mental illness are normatively suspect. I argue that redressing these according to a presumption of competence and supported decision-making approach will serve to (1) better meet democratic standards of equality and inclusion for persons with mental illness and (2) abandon unattainable ideals of self-mastery that undergird the dominant conception of rights claims for “normal” citizens.

KEYWORDS:

• Citizenship
• semi-citizenship
• rights
• mental illness
• psychosocial disability
• voting rights
• gun rights

Acknowledgements

I thank Laura Preiser and Kremena Kirilova for their research assistance. Larissa Atkison, Anna Daily, Andrew Dilts, and Susan Liebell offered helpful comments on earlier versions. I also thank the editors and anonymous reviewers for making valuable suggestions. All errors remain mine.

Disclosure statement

No potential conflict of interest was reported by the authors.

Notes

1. For a recent example, see Dudley (2015).

2. Diagnoses most commonly associated with the umbrella term “severe mental illness” include schizophrenia, major depression, and bi-polar disorder (Harris and Lurigio 2007).

3. For discussion of mental illness in the writing of Locke, Mill, and Kant, see Failer (2002, Chap. 2). For a discussion of intellectual disability in the writing of Locke and Rawls, see Simplican (2015, Chaps. 2, 3).

4. For example, see this 2014 report on the archaic and dehumanizing language in California’s codes: http://www.disabilityrightsca.org/pubs/CM3601.pdf.

5. See also Grisso and Appelbaum (1995a), O’Brien (2010), and Ryan (2011).

6. For the U.S., see Failer (2002). For Europe see Zinkler and Priebe (2002), Fennell (1999), and Prior (2007).

7. Civil commitment laws vary with some including only psychotic symptoms and others including intellectual disabilities as well as substance abuse (e.g., Høyer 2000).

8. Of course, one need only turn to recent debates in the scholarly and popular literature surrounding the new edition of the Diagnostic and Statistical Manual of Mental Disorders (DSM-5), released in May 2013, for evidence of how the definition and diagnosis of mental illness is highly contested (Aldhous 2012; Pierre 2012; Cloud 2013). See also Eisenberg (1988) on the social construction of mental illness.

9. https://www.un.org/development/desa/disabilities/convention-on-the-rights-of-persons-with-disabilities.html.

10. Minkowitz, who is a member of the disabled persons organization called World Network of Users and Survivors of Psychiatry (see http://wnusp.net/), indicates that “psychosocial disability” is the preferred term to “mental illness” which can be pejorative. I have used the “persons first” language of “persons with mental illness” as it is likely to be more familiar to readers but fully endorse the position of the CRPD that the human rights of those with physical disabilities should apply equally to those with psychosocial disabilities. For a discussion of the complex relationship between illness and disability, see Wendell (2001).

11. See also http://www.po-skane.org/ombudsman-for-psychiatric-patients-30.php.

12. Simplican describes an ideal of “practicing alliance” between intellectually disabled self-advocates and allies in ways that resist tendencies toward exclusion and paternalism that is helpful for conceptualizing ideal forms of supported decision-making. Central to this conception is the importance of ongoing practice, the recognition of mistakes, and the need to constantly monitor and renegotiate how alliance is practiced (Simplican 2015, 122–125).

13. For critical discussion of the rationales for excluding children from full citizenship, see Cohen (2005), Cohen (2009), Wall (2012), and Munn (2012).

14. For a discussion of the intersection between criminal disenfranchisement, mental disability, and racial oppression, see Dilts (2012).

15. Inconsistencies between the constitutions and electoral laws in some states also make fair implementation impossible in certain cases (Kelley 2010, 374)

16. It is worth noting here that the two ABA commissions developed different capacity standards for mental disability and cognitive impairments resulting from aging. While the arguments here likely apply across both contexts, this points to a need for further consideration of the similarities and differences among mental illness, cognitive impairment, developmental disabilities, and so on.

17. Kelley (2010) citing Yick Wo v. Hopkins, 118 US 356, 370 (1886).

18. Voting Rights Act, Rehabilitations Act, Americans with Disabilities Act, and Help Americans Vote Act.

19. Indeed, the political motivations behind recent legislative moves to restore gun rights to those with histories of mental health adjudication notwithstanding, these efforts are in line with a presumption of competence approach (Kauffman 2017; Taylor 2017).

20. For recent developments in clinical tools designed to predict violent behavior, see Monahan et al. (2001).

21. It is worth noting here that advances in the field of neuroscience are transforming our fundamental understandings of capacity and intention in ways that have significant implications for our conceptions of criminal responsibility. Whether they will contribute to expanding or contracting our notions of criminal guilt is a matter of some debate but they will certainly need to be considered (see Fleming 2013).

22. According to one study,

those with adult personality disorder, a psychiatric history, schizophrenia, bipolar disorder, depression or neurosis were 6.1–19.7 times more likely to die by suicide than those who were not mentally ill, with depression and bipolar disorder located at the higher level of risk”. (McLean et al. 2008, 26 citing; Neeleman 2001; see also Harris and Barraclough 1997; Bertolote and Fleischmann 2002)

23. It is also important to note that these capacities apply to an individual conception of gun rights – which was only fully endorsed by the U.S. Supreme Court in 2008. An interpretation of the 2nd Amendment that focuses on the right of states to have a “well-regulated Militia” would focus on different capacities entirely (see Liebell 2016).

24. Civil commitment is not the only mental health adjudication category included in the current background check system that may already apply assessments relevant to the capacity required for gun rights (i.e., the capacity to respect the right of others, the capacity to survive). In particular, an acquittal by reason of mental disability is generally based on the two-pronged conclusion that a person has committed some convictable offense, and been found not responsible due to their incapacity to understand the consequence of their actions. In cases where this adjudication followed an act of violence toward another person (and indicated a failure to respect the other’s rights), it might also indicate an incapacity to exercise gun rights for some period of time. Incompetency to stand trial and conservatorships are less likely to have assessments relevant to gun rights, at least as currently practiced.

25. Nor do I wish to suggest that gun control is the only, or even most important, measure states can take in order to reduce interpersonal and mass violence. Public education and economic redistribution are but two of several necessary steps needed to directly confront and reduce violence.

26. Even Heller is clear that some restrictions on gun rights are constitutional (District of Columbia v. Heller, 554 US 570 (2008).

27. For this reason, I view with high skepticism the recent Democratic congressional sit-in in support of legislation that sought to apply gun rights restrictions to those on the terrorist watch list (Lund 2017).

28. While punitive considerations may come in to play in the case of felons and those convicted of domestic abuse in ways they do not with the case of mental illness, the presumption of competence approach suggests that many of the restrictions applied to convicts are unjustified and also ripe for similar normative scrutiny. While I cannot elaborate the argument here, in my view, a criminal conviction, even for a violent offense, is not sufficient to justify the indefinite or even prolonged restriction of rights and calls into question the logic applied in the Supreme Court’s recent decision on the gun rights of those with domestic abuse convictions (Snyder 2016).

29. The recognition of vulnerability needed to break down the able/disable binary challenges the standard liberal conception of autonomy along the lines argued by feminist philosophers (Nedelsky 1989; Mackenzie and Stoljar 2000).

30. Administrative logic still triumphs in certain respects, as it is the driver of gun licensing requirements, voter registrations, and other bureaucratic procedures that preclude the unfettered exercise of citizenship rights.