Vol. 12 (August 2001) pp. 403-405.

THE HIDDEN PREJUDICE: Mental Disability on Trial by Michael Perlin. Washington: American Psychological Association, 2000. 400 pp. Cloth $49.95. ISBN: 1-55798-616-9.

Reviewed by Dan A. Lewis, Human Development and Social Policy, School of Education and Social Policy, Northwestern University.

THE HIDDEN PREJUDICE by Michael Perlin is a comprehensive critique of mental health law in the United States. The author challenges the way courts address the legal problems of the mentally ill, suggesting in the strongest possible terms that conventional legal thinking is tainted by prejudice and bias that will not stand the light of rational analysis. The book will remind many readers of the challenges to conventional thinking about mental illness that were the hallmark of the deinstitutionalization movement of the 1960s and 70s. Armed with a strong sense of moral indignation and a clear understanding that legal thinking about the mentally ill is flawed and unfair, Perlin challenges current judicial analysis of everything from involuntary commitment to the insanity defense. There is a single thread that runs through the author's analysis of these legal decisions, and that single-mindedness is both the strength and weakness of the book.

The author has a very clean argument. There is a logic to judicial decisions and legal thinking about the mentally ill. It is a flawed logic that can be understood in terms of a set of assumptions that if analyzed rationally will be shown to be as prejudiced and unfair as the kind of thinking that distorted case law about African Americans 100 years ago. Just as PLESSY v. FERGUSON was based on notions of inferiority that are not acceptable to the modern mind today, so too, Perlin hopes to show us, are the notions of mental illness that shape current legal thinking about the mentally disabled. Perlin argues that there are a series of logical fallacies that have distorted legal thinking today. The central fallacies Perlin identifies are SANISM, PRETEXTUALITY, TELEOLOGY AND HEURISTICS, and these mistakes in thinking are what have colored legal thinking and taken it in a direction that has had devastating effects on the mentally ill. In each of these instances, the thinker, usually a judge, has made assumptions that lead to conclusions that treat the mentally ill as less than citizens with the rights and privileges that all Americans share constitutionally and morally.

Let's begin with sanism. Here the problem is analogous to racism in which the thinker assumes that because a class of persons shares one attribute, say being mentally ill, that they will share many other attributes, most of which are negative. The sanist thinker thus robs the individual of a careful understanding of his or her particularity with the result being that the individual in question is treated like they cannot take care of themselves or think for themselves because they have been labeled "mentally ill." Pretextuality is a nice word for lying in the legal context, for assuming the legitimacy of the clinical or law enforcement perspective and avoiding the hard issues of what has transpired in a particular situation. The clinician or the police officer is telling the truth, and the mentally disabled person's testimony is suspect. Heuristics is the reliance on common sense or the one instance that one is familiar with instead of looking at the whole picture from a more social scientific perspective. Also, teleology is the use of social science selectively to bolster an opinion or position one has already taken. These mistakes in thinking have distorted the law as it pertains to the mentally disabled. In case after case and subject area after subject area, lawyers and judges continue to think in these illogical ways to the detriment of the mentally disabled and the shame of the American legal system. Perlin pounds away, citing example after example of cases and decisions where these logical errors are made. The author hopes that by exposing this poor thinking to a rigorous critique, those that make these errors will rise above them and build their decisions on more solid ground. That solid ground seems to be made of social scientific thinking, built on what we know about mental disability from the work of clinical researchers and social scientists. We can move beyond the irrational and incoherent if we think scientifically, logically and morally about the mentally disabled.

What are the political assumptions that guide the author, and what are we to make of the perspective he brings to his work? Clearly, this is a man of passion and commitment. He is angry about what he sees in the courts and how the mentally ill are treated by the legal system. However, where do these errors of logic that he identifies come from, and are they the whole story when it comes to the way the legal system treats the mentally disabled? Clearly, at least to this reviewer, the answer is "no" to the latter question and unasked to the former question.

Perlin thinks analogically that because several decisions share certain characteristics, they are essentially the same. Sanism may be a quality of a court decision, but is that the whole story of the decision? What other factors are important to the judge? Previous cases? Community standards and balancing the interests of the community and the individual? The reliance on expert testimony? Most judges do not make decisions based on social science knowledge; instead, they try to balance interests and rule within the legal framework they have to work with. Indeed, cases concerning the mentally disabled are surely not alone in being decided with little attention to social science. Legal reasoning trumps social science in most instances I am aware of. So, Perlin holds the mental health law to a standard that most courts would fail to live up to.

Another problem with the book that strikes me as odd, given the author's commitments and passion, is that the analysis is oddly apolitical. Issues of bureaucratic power and public opinion are clearly part of the story as to why the courts rule as they do on issues of mental illness. If we have seen anything in the last generation, it is that to ignore public opinion is to court strong reactions that end up in conservative legislation. The "three strikes law" in California is one of many examples. The public wants tougher standards in sentencing criminals, and this is no less true when it comes to the mentally ill. The courts understand this as do politicians and bureaucrats. When judges make rulings, they are aware of the political context, and they often share the concerns the public has. This political dimension is an important foundation to mental health law, but it is discussed very little in the book under review. Perlin psychologizes the issues rather than looking at the way power and authority operated in the courtroom. Poor thinking is the culprit as opposed to lack of power. Calls for change will fall on deaf ears until power arrangements are analyzed as carefully as concepts. Certainly ideology matters, but it matters within the political context in which it is used.

Finally, I was surprised by the emphasis Perlin places on social science, using it as an alternative frame for making decisions about the mentally disabled. I am not as sanguine about the utility of social science for making legal decisions. Although there have certainly been important social science contributions to our understanding of the mentally disabled, there is not, in my opinion, a solid foundation for legal policy making in many of the areas the book describes. Some of the legal decisions surrounding desegregation law were built on social science and a generation later, much of that law has been found wanting. Courts are loath to mandate change that the society is not ready for, with good reason. A good study does not translate into good law automatically, and bad studies can do real damage when well meaning judges extrapolate from them.

In closing, I would recommend this book to those who want to read a passionate, powerful screed against a system of law and social control that needs to be constantly challenged. However, for the reader that is looking for a rigorous social scientific analysis of how mental health law operates, she will need to look somewhere else. This is not to dismiss the effort but merely to suggest that it must be followed by careful research that will illuminate the political factors that produce the system that Perlin so powerfully condemns.

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Copyright 2001 by the author, Dan A. Lewis.