III. Concerns With Infusion--Identity, Pathologization, and Access
“Men are so necessarily mad, that not to be mad would amount to another form of madness.”
Consequences flow from one's identity. However identity is a subject which defies easy definition. Conceptually, identity theory considers who we are, or more accurately, who we think we are and peripherally, how others perceive us. Identity is not static, rather there is an evolutionary process, which implies contextual fluidity, which is itself tethered to the groups, networks, societal structures, practices, and performances to which people and their identities are rooted. It is not simply a mental exercise to determine whether mental disability is an identity that, much like race, gender, and sexual orientation, marks an individual such that societal consequences follow. Even to conceptualize disability as such othersthis “identity” as a marker which definitionally holds limitations within its very construction. Limitation is intrinsic in defining the identity and accordingly it marginalizes the disabled as “less than” the “abled.” Those labeled disabled are defined as lacking in relation to the “abled” norm. Given these concerns, it might be conceptually preferable to consider mental disability as a mental “vulnerability” or “mental challenge.” This is consistent with the more inclusive and sensitive language of “physical challenge” (as opposed to physical disability), which recognizes that the difficulties stem equally, if not predominantly, from societal construction, both literal and figurative, which delimit access. A postmodern critique is, therefore, conceivable--a critique that acknowledges the externalities implicated in creating the status quo and constructing mental challenge as a site of marginalization.
In this vein, while mental vulnerabilities themselves create limitations, such as the inherent challenges deriving from the status, a postmodern analysis demands recognition of the societal manufacturing of that which is oppressive. As with other markers of identity, it is the societal reaction and ascription of marginal status that “disables” the identity. As a society, with the help of certain disciplines, in this context mental health professionals, we “mark” those with mental vulnerabilities as less than--they are alternatively ignored, marginalized, incarcerated, or otherwise locked up. Society ascribes those with mental vulnerabilities a marginal identity deserving of legal consideration. Hence mental vulnerability, even within the context of critical psychology, is a site worthy of criticality due to the possibility and propensity towards pathologization.
That pathologization, the ascription of disease, dysfunction, or deviance from the norm, has been utilized as a sword against members of marginalized groups is an uncontroversial historical reality. Psychiatry and psychology, like all disciplines, are constructed cultural products and mechanisms of society. The manifestation of discrimination in such, abstractly, noble professions is not surprising given that all noble endeavors, like law, have also been co-opted for ignoble ends. This is inevitable given that all doctrine, no matter the profession, is “man-made,” interpreted and applied by people who, although claiming otherwise in the interest of supposed objectivity, bring their own societal-discriminatory baggage to bear. Thus, recognition of the possibilities for use of critical psychology as a mechanism to further the interests of marginalized persons is ironic given historical uses of mental health disciplines to subjugate these same interests and communities. The tension created by this irony should not, however, found the sole basis for dismissal of either the doctrine or the disciplines, rather the utility, and indeed the determination to dismantle the master's house with his own tools, is a strategic decision made with full knowledge of the ugly history.
The history of psychiatry itself reveals the paradox inherent in utilizing mental health constructs with the normative goal of achieving liberatory ends. For instance, early psychiatrists felt that a “madman” was a savage beast who needed to be confined, dominated, and beaten. Madmen were treated as animals based on the theory that a combination of fear and pain would rid them of the thoughts upon which they were fixated.For example, Thomas Willis, one of the first English physicians to write extensively on madness, explained that the insane, having lost their reason, were fierce creatures who had “descended to a brutish state” and “enjoyed superhuman strength.” If the mad were to be cured, they:
needed to hold their physicians in awe and think of them as their “tormentors.” Discipline, threats, fetters, and blows are needed as much as medical treatment. . . . Truly nothing is more necessary and more effective for the recovery of these people than forcing them to respect and fear intimidation.
Such rhetoric of the “lunatic” as beast or animal possessing superhuman strength is disconcerting given its resonance with stereotypical depictions of Black people. Racist vitriol often invokes the animalization of Blacks and a call for containment based upon superhuman strength and brutish tendencies. Furthermore, the historical role of the mental health professional in orchestrated intimidation has historical connections to the abuses of slavery discussed above. The connections are troubling as the history of the mental health profession indicates that doctors would resort to what they called “breaking” their patients. Breaking would involve bleeding, purging, emetics, nausea-inducing agents, blistering, and near-starvation diets, in order to “reduce even the strongest maniac to a pitiful, whimpering state.”
There was a clear racist subtext to early mental health “science.” The Mentally ill were also seen as unfit to breed and produce children. Based on the idea that the mentally ill should be sterilized, speakers at the Second International Congress on Eugenics presented papers suggesting that the “financial costs societies incurred by caring for defectives, the inheritability of insanity and other disorders, and the low birth rates of the elite in America” necessitated serious consideration of the sterilization of undesirables. It is a slippery slope from undesirable to White supremacy as the conference delegates spoke on “The Jewish Problem,” the dangers of “Negro-White Intermixture,” and the “Pedigrees of Pauper Stocks.”
This racialized bias in mental health has a long history. “During the nineteenth century, the perceived mental health of African Americans was closely tied to their legal status as free men or slaves.” African Americans who lived in free states or stated a desire for freedom were at a heightened risk for being deemed mad. The Census of 1840 reported that “insanity was eleven times more common among Negroes living in the North than in the South.” Southern politicians used this statistic as evidence that “bondage was good for Negroes” and used mental health rhetoric to justify the peculiar institution. Indeed, Senator John C. Calhoun reasoned that slavery was necessary because “[t]he African is incapable of self-care and sinks into lunacy under the burden of freedom. It is a mercy to give him the guardianship and protection from mental death.”
With any doctrine, science, or principle, whether good is achieved depends on its application and deployment. While intrinsic doctrinal neutrality might not exist either, it is clear that historical utilization of the “sciences” has produced sites of marginalization with findings of congenital illness along racial lines--mental health diagnosis have not been immune from such misuse and has historically been used to oppress the marginalized according to race. For instance, in 1851, Samuel Cartwright, a prominent physician, wrote in the New Orleans Medical and Surgical Journal that he had discovered two new types of insanity among slaves. The first, drapetomania, was diagnosed every time a slave desired to run away. The second, dysaesthesia aethiopis, was characterized by idleness and improper respect for the master's property. Dr. Cartwright advised that light beatings and hard labor reliably cured this mental illness. Accordingly, medicine could turn an “arrant rascal” into “a good Negro that can hoe or plow.” After the Civil War ended:
[t]he definition of sanity in Negroes was still tied to behavior that a slave owner liked to see: a docile, hardworking laborer who paid him proper respect. Negroes who strayed too far from that behavioral norm were candidates for being declared insane and were put away in asylums, jails, and poorhouses. Nationwide, the incidence of “insanity” among Negroes rose fivefold between 1860 and 1880, and once again, such statistics were seen by many Southern doctors as evidence that the “colored race” simply couldn't handle freedom.
Some contemporary information should similarly generate concern about arbitrary diagnosis of mental illness in Blacks. A study in 1982 of 1,023 African Americans diagnosed as schizophrenic determined that 64 percent did not exhibit symptoms necessary, under prevailing American Psychiatric Association (APA) guidelines, for making such a diagnosis. Other studies found that Blacks were being disproportionately put into subcategories of schizophrenia that “connote dangerousness and (pathological) severity,” and that in comparison with whites, they were more likely to be committed against their will to a psychiatric unit.
Of course, the history of the mental health profession also has gendered dimensions. Women who were found to be insane during the 1890s and the first decade of the nineteenth century were treated by gynecological surgeries because it was linked to the “sexuality” of the woman; an overly sexual woman was seen as abnormal, and therefore, insane. Many gynecologists were so avid in their enthusiasm for curing insanity by surgically removing the uterus or ovaries that the American Medico-Psychological Association, in the early 1890s, cautioned against the overuse of this remedy. Even so, for the next fifteen years, various gynecologists continued to claim that hysterectomies and ovariectomies produced improvement in more than fifty percent of their insane female patients.
In essence, much of the history of mental health professions reveals the manufacture of “madness” as a site of marginalization and oppression. By exposing that patriarchy of madness, Foucault articulated the artifice of mental illness. Rather than originating in the world of the irrational, the madman is stigmatized since “he crosses the frontiers of bourgeois order of his own accord, and alienates himself outside the sacred limits of its ethic.” Foucault, therefore, insightfully problematized the tensions inherent in a diagnosis of mental illness by highlighting its potential for strategic deployment. He recognized that mental illness has, to a certain extent, been constructed to contain those deemed deviant according to race, gender, class, or sexuality:
He accepts the Other in so far as the Other conforms to his image and conduct. However, if he and the Other differ, he defines the Other as defective-- physically, mentally, or morally--and accepts him only if he is able and willing to cast off those of his features that set him apart from the normal. If the Other recants his false beliefs, or submits to treatment for his illness, then, and only then, will he be accepted as a member of the group. If he fails to do these things, the Other becomes the Evil one-- whether he be called the Stranger, the Patient, or the Enemy.
This post-modern conclusion provides a reality-check for one who attempts to advocate the potentially liberatory use of these disciplines. Mental health practitioners and the discipline itself became architects of confinement--in some sense the keepers of the status quo. If, as the marginalized are apt to do, a person of color stepped out of their assigned place or challenged the race-based schema, psychiatry and psychology could be summoned to do the dirty work of maintaining a racialized order which preserved White supremacy. A devastatingly simple example is the case of Clennon King who in 1958 became the first African-American to apply for admission to the University of Mississippi. Mr. King dared challenge the racist status quo by seeking an education. He was committed to a state mental hospital because “any [B]lack man who thought he could get into Ole Miss was obviously out of touch with reality.”
Similarly, women seeking to operate outside of the ascribed societal dictates were seen as insane. In this context, the diagnosis of “madness” often appears for women who have totally or partially rejected their assigned sex-role. Women who fully act out the conditioned female role are clinically viewed as neurotic or psychotic and their hospitalization or commitment produces diagnosis for predominantly female behaviors such as depression, suicidal tendencies, anxiety neurosis, paranoia, or “promiscuity.” Women who reject or are ambivalent about the female role frighten both themselves and society so much so that their ostracism and self-destructiveness assures them a psychiatric label--if they are hospitalized, it is for failing to adhere to the dictates of their assigned gender, with labels of ‘schizophrenia,’ ‘lesbianism,’ or ‘promiscuity being attached.’
Moreover, as recently as 1938, moral deficiency, masturbation, misanthropy, and vagabondage were listed among the forty psychiatric disorders in a leading textbook. Homosexuality, which had been universally regarded as a manifestation of mental illness by Western psychiatry, was “officially” de-pathologized in 1973, after a contentious political struggle, by a vote of the board of trustees of the American Psychiatric Association.
What these seemingly diverse “therapeutic” movements have in common not only with one another but also with such modern totalitarian movements as National Socialism and Communism, is that each seeks to protect the integrity of an excessively heterogeneous and pluralistic society and its dominant ethic. To accomplish this end, each represses certain individual and moral interests, and, in general, sacrifices the “one” for “many,” the “I” for the “we”; finally, to simplify the conceptual problem it faces, and to strengthen group cohesion, each channels--by systematic propaganda accompanied by the use of a brutal show of force--enmity toward a symbolic offender to whom the impending disintegration of the social order is attributed.
Accepting for the moment that doctrine and discourse are captive and behooven, to a certain extent, to the culture and society in which they are manifested, what does that mean for the application, both legal and psychological, of the critical psychology discussed herein? That an alternative legal or mental health typology generated by those communities most affected by the relevant doctrines does not exist highlights the inherent tension found in so many disciplines--the challenge of using the very same doctrinal tools tainted from the construction of oppressive systems to destroy, reconstruct or reconfigure the system is necessarily precarious. Accordingly, given the problematic history and legacy of diagnostic pathologization of marginalized communities, a perfect legal and ethical option might not exist for racialized communities, other than proceeding with extreme caution while embracing the intention not to allow repetition of past mistakes.
At this juncture, critical race theory scholarship on multiple identities and systems of oppression is informative, as the importance of the confluence of race and potential pathologization based on mental vulnerabilities is of paramount importance. These frameworks for analysis are alternatively referenced as models which are holistic, intersectional, interlocking, multidimensional or multiply conscious. In any event, it is instructive to use analytical paradigms which recognize that negative societal consequences flow from sites where multiple forms of oppression operate.
Hypothesizing identity, and the corresponding systems of oppression, as running along a single axis is misleading and has the tendency to oversimplify unstated reference points by essentializing. While it is easier to overlook the distinct characteristics that comprise an individual and instead make an assessment based on an interpretation of “dominant” features, identity performance or ascribed otherness, this point of departure ignores other overlapping reference points by its exclusivity. This phenomenon, of treating identities, or ascriptions, as separate, parallel and independent factors, is known as identity splitting--it is the heuristic counterpoint to what critical race theorist have alternatively recognized as intersecting or multidimensional aspects of personhood.
The concept of intersectionality emerged out of the particular forms of discrimination experienced by women of color that were neither recognized in feminist legal theory nor traditional civil rights scholarship. It recognized that the totality of oppression at identity crossroads was more than the sum of the parts: “Because the intersectional experience is greater than the sum of racism and sexism, any analysis that does not take intersectionality into account cannot sufficiently address the particular manner in which Black women are subordinated.” Intersectionality illuminates the manner in which women of color are affected by both racial hierarchy and patriarchy.
In the context of Black women and political discourse, for example, political intersectionality highlights the simultaneous identity positioning within at least two inferior groups--women and Blacks--that frequently experience conflicting political agendas. Intersectionality in this context recognizes that political interests of women of color are masked and sometimes endangered by political strategies that ignore or suppress intersectional issues. Accordingly, the intersectionality model developed as a response to an absence of theoretical or doctrinal approaches to the multilayered and particularized subordination endured by women of color. Such a framework of analysis allows for reflection on oppression in numerous venues, including, but not limited to politics, economics and the law.
Originally developed in the context of the experiential diversity of gay and lesbian existence, multidimensionality was conceived of as a methodology by which to analyze the impact of racial and class oppressionupon sexual subordination, gay and lesbian experience and identity and to cease treating these forces as separable, mutually exclusive, or even conflicting phenomena. More generally, multidimensionality posits that individual acts of discrimination and the various mechanisms of oppression are complex and multilayered, owing their existence to a host of interlocking sources of advantage and disadvantage.
Multidimensionality complicates the very notion of privilege and subordination by pushing legal theorists and political activists to recognize the multiple and complex ways in which all individuals experience oppression. As an outgrowth of intersectionality, multidimensionality differs conceptually as it attempts to complicate the implications of intersectionality that may lead to the conclusion that social identity categories or systems of oppression only “intersect” in the lives of persons burdened by multiple sources of disempowerment, such as women of color.
Both intersectionality and multidimensionality recognize the exacerbation of oppression flowing from the confluence of compounding systems of domination and the complicated matrix of social identity around which power and disempowerment are distributed. Where systems of race, gender, and class domination converge, as they often do in the experience of mentally vulnerable people of color, intervention strategies based exclusively on the experiences of White men will be inadequate to overcome the obstacles faced at the confluence of marginalized identities.
Similarly the nexus of race and mental vulnerability, as identified by critical psychology, might provide a treacherous point of departure for haphazard or unsympathetic legal intervention for a number of reasons. First, despite unprecedented knowledge gained in the past three decades about the brain and human behavior, mental health, and mental illness in particular, is often an afterthought and illnesses of the mind are shrouded in fear, are misunderstood and maligned. The alternate hyper-visibility or complete invisibility of mental vulnerability translates into punishment --a penalty for the inability, lack of understanding or refusal to adhere to societal mandates. Second, the convergence of racism and mental challenge is a messy affair given historical and contemporary pathologization of Blackness, even in the absence of diagnosable mental health issues.
One must therefore approach the infusion of critical psychology and the law with caution. Any legal intervention that seeks to infuse the criminal law with the critical psychology addressed above must be done with learned trepidation and conscious caution, for it is a slippery descent to the equivalence of Blackness with madness or Blackness with badness. Concern must also be voiced for the potential over-medication of individuals deemed mad or bad--the equation of Black youth with badness is already a site for critical concern. The ability of the legal and the mental health disciplines to act as both sword and shield is enough to justify an ever-vigilant historically knowledgeable approach to infusion, lest critical psychology be appropriated or co-opted to further subordinating ends.
While such intersectional subordination does not have to be intentional, and might even be well-intentioned, the interface of race and mental challenge has the potential to be the site of yet another oppressive interaction generated by societally constructed multi-axial oppression. Simply put, the articulation of a multi-axial identity revolving around the intersection of race and mental illness might play all too easily into the hands of proponents of racialized theories of genetic inferiority bent on further disempowerment of already marginalized communities.
The legal and psychological literature reveals ample reason for concern. Foremost among these are the disparate rates of incarceration and subsequent disenfranchisement of Blacks in America, the over-diagnosis of Blacks with schizophrenia and other conditions leading to over-medication, over-commitment of Blacks to psychiatric facilities on an in-patient basis, and the limited diversity within the professions of law, psychology and psychiatry.
In addition to the concern for pathologization some would posit a futility to any criminal law recognition of critical psychology in the context discussed above. Specifically, the affirmative defenses discussed above do not implicate mental health treatment modalities; rather they implicate mitigated sentencing and shortened incarceration. The criminal justice system, as it presently exists, is ill-equipped to address the mental health issues of the vast majority of prisoners, let alone the mental health issues which may result from racial abuses. Despite the overpopulation of prisons with people of color, the possibilities of culturally competent mental health services in the prison context are discouraging.
The likelihood of suitable treatment opportunities is also disheartening outside of the prison context. Even the Surgeon General concluded that the existing mental health care system is ill-suited to address the needs of people of color. The 2001 Surgeon General's supplemental report on mental health emphasizes the importance of considering race, culture and ethnicity in addressing the mental health needs of a diverse population. The report confirms that serious disparities exist regarding the mental health services delivered to racial and ethnic minorities. The supplemental report concludes that to achieve the benefits of effective mental health preventive and treatment services, “cultural and historical context must be accounted for in designing, adapting, and implementing services and service delivery systems.”
The legal system might similarly do well to examine these matters of context to ensure equality along multiple axes of identity. Despite these cautionary pronouncements, if all Americans, not just the privileged, are to place faith in the criminal justice system and be equal before and under the law, ways and means must be devised for appropriate legal consideration of relevant critical psychology as revealing disparate realities for certain segments of American society.
