All fifty states authorize psychiatric incarceration,
justifying the use of preventive detention based on the presumption of a causal relationship between “mental illness” and legal incompetence.
Statutes linking observably different cognition to irrationality, disease, and contamination pre-date the Founding of the United States.
Though there are ample critiques of psychiatric incarceration, within these critiques, the story of “mental illness” masquerades as biological fact.
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.
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.
Generally, supporters of psychiatric incarceration argue that protecting the liberty interests of the “mentally ill” is no better than letting people die preventable deaths.
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.
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,
and disability justice, this Note introduces the neurodiversity paradigm to reject the construction of “normal” cognition within law governing psychiatric incarceration.
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,
similar to how “Queer” is an umbrella term for a spectrum of different sexual and gender identities.
By contrast, “neurotypical” refers to people who conform with the construction of “normal” cognition.
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.
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.