A Change Is Gonna Come

"A Change Is Gonna Come": The Implications of the United Nations Convention on the Rights of Persons with Disabilities for the Domestic Practice of Constitutional Mental Disability Law MICHAEL L. PERLIN* I. INTRO DUCTION ................................................................................. 483 II. U NIVERSAL FACTORS ....................................................................... 487 I1. THE UN CONVENTION ...................................................................... 489 IV . SOME FINAL THOUGHTS ................................................................... 497 I. INTRODUCTION As recently as fifteen years ago, disability was not broadly acknowl- edged as a human rights issue. Although there were prior cases decided in the United States and in Europe that, retrospectively, had been litigated from a human rights perspective,' the characterizationof "disability rights" (especially the rights of persons with mental disabilities) was not discussed in a global public, political, or legal debate until the early 1990s. Instead, disability was seen only as a medical problem of the individual requiring a treatment or cure. By contrast, viewing disability as a human rights issue requires us to recognize the inherent equality of all people, regardless of their abilities, disabilities, or differences, and obligates society to remove * Professor of Law; Director, International Mental Disability Law Reform Pro- ject; and Director, Online Mental Disability Law Program-New York Law School. A.B., Rutgers University, 1966; J.D., Columbia University School of Law, 1969. 1. See, e.g., O'Connor v. Donaldson, 422 U.S. 563, 574-75 (1975) (holding it unconstitutional to confine a nondangerous person capable of surviving safely in freedom to a mental hospital); Lessard v. Schmidt, 349 F. Supp. 1078 (E.D. Wis. 1972) (stating that a statute that fails to provide a person alleged to be mentally ill with adequate procedural safeguards is unconstitutional); Wyatt v. Stickney, 325 F. Supp. 781, 785 (M.D. Ala. 1971) (holding that persons with mental illness have a constitutional right to adequate treatment in mental hospitals), aff'd sub nom. Wyatt v. Aderholt, 503 F.2d 1305 (5th Cir. 1974); Winter- werp v. Netherlands, App. No. 6301/73, 2 Eur. H.R. Rep. 387 (1979) (Eur. Ct. H.R.) (holding that detention on grounds of unsoundness of mind must be based on objective medical evidence of a true mental disorder, be a proportionate response, and be carried out in accor- dance with a procedure prescribed by law). See generally I MICHAEL L. PERLIN, MENTAL DISABILITY LAW: CIVIL AND CRIMINAL ch. 2 (2d ed. 1998); 2 MICHAEL L. PERLIN, MENTAL DISABILITY LAW: CIVIL AND CRIMINAL ch. 3 (2d ed. 1999). NORTHERN ILLINOIS UNIVERSITY LA W REVIEW [Vol. 29 the attitudinal and physical barriers to equality and inclusion of people with disabilities. But, as my muse, Bob Dylan (more on that later), sang several years ago, "Things Have Changed. 2 In a recent article, I identified several "important and overlapping positive developments, all.., of which, when con- sidered together, shine new light on the underlying issues and promise to focus new attention on them in the near future." 3 There is no question in my mind that the most important of these developments is the recent ratifica- tion of the United Nations Convention on the Rights of Persons with Mental Disabilities (CRPD).4 I believe that this convention has the potential to create the most significant tectonic plate shift in mental disability law since the United States Supreme Court, finally, in 1972, agreed that the Due Process Clause of the U.S. Constitution applied to persons institutionalized because of mental disability.5 And that is the topic addressed in this article. I chose this topic because I believe it is essential that I talk about this convention, and it allows me to argue that this new international law truly has the potential to force us to reconceptualize everything that we have thought of as the "accumulated truths" of mental disability law. I also think it is important to do since, frankly, it is a development that appears to me to have escaped under the radar for almost all law students (and, alas, most professors and practitioners as well). But before I begin this discussion, it is important for readers to know a bit about me so they better understand my perspective on this area of law and policy. I spent thirteen years as a lawyer representing persons with mental disabilities and have taught mental disability law courses at New York Law School since 1984. I am the only law professor in the nation (and, most 2. BOB DYLAN, Things Have Changed, on THE ESSENTIAL BOB DYLAN (Columbia 2000). I regularly use Dylan lyrics/song titles in my law review article titles. See, e.g., Mi- chael L. Perlin, "Things Have Changed": Looking at Non-Institutional Mental Disability Law Through the Sanism Filter,46 N.Y.L. ScH. L. REv. 535, 545 (2002-03). 3. Michael L. Perlin, "I Might Need a Good Lawyer, Could Be Your Funeral,My Trial": A Global Perspective on the Right to Counsel in Civil Commitment Cases, and Its Implicationsfor Clinical Legal Education, 28 WASH. U. J.L. & POL'Y 241, 252 (2008) (dis- cussing, inter alia, recent international case law articulating a new broadened right to counsel, the publication by the World Health Organization of the WHO Resource Book on Mental Health, Human Rights and Legislation, expanded professional interest in the issue, and the focus on mental disability specific nongovernment organizations on conditions affecting persons institutionalized because of mental disability). 4. See Convention on the Rights of Persons with Disabilities, G.A. Res. 61/106, U.N. Doc. A/RES/61/106 (Dec. 13, 2006). The convention entered into force on May 3, 2008. UN Enable-Entry into Force, http://un.org/disabilities/default.asp?id=210 (last visited Apr. 20, 2009). 5. Jackson v. Indiana, 406 U.S. 715, 738 (1972) ("At the least, due process requires that the nature and duration of commitment bear some reasonable relation to the pur- pose for which the individual is committed."). 2009] "A CHANGE Is GONNA COME" likely, the world) who teaches and/or supervises nine different courses in this area (soon to be twelve). I have written twenty books and nearly 200 articles on all aspects of this topic. For the past several years, I have turned my attention to the intersec- tion between mental disability law and international human rights law in several major ways. First, under the aegis of Mental Disability Rights Inter- national (MDRI), a Washington, D.C.-based human rights advocacy nongovernment organization (NGO),6 I have done site visits and conducted mental disability law training workshops in Hungary, Estonia, Latvia, Uru- guay, and Bulgaria. Second, through New York Law School's (NYLS) Online Distance Learning Mental Disability Law program (which I direct), I have taught mental disability law courses in Japan and Nicaragua and have worked extensively in Nicaragua with local advocates and activists in an effort to build a mental disability advocacy network in that nation (one that could optimally be expanded to other nations in Central and South America).7 I have also done work in Costa Rica and Guatemala to this end. We are currently involved in expanding this program to create a new part- nership in Japan and, subsequently, other partnerships in China, in Israel, and in Uganda/Kenya. Third, through the International Mental Disability Law Reform Project of the NYLS Justice Action Center (which I also direct),8 I have worked in Taiwan and in Japan, as the first step in the creation of a Pan-Asian Rim Mental Health Advocacy Network and in the creation of an Asia Regional Disability Rights Commission, and in Uganda in the creation of an Institute on Criminal Justice at Nkumba University Law School in Entebbe. I also have done a significant amount of international teaching. Several years ago, I was a Visiting Scholar at Hebrew University in Jerusalem, Is- rael; a Visiting Professor at the Institute on Human Rights, Abo Akademi University/University of Turku in Turku, Finland; and a Visiting Fellow at the European University Institute-Law in Florence, Italy. In January, as a Fulbright Senior Specialist, I served as a Visiting Professor in the Global Law Program at Haifa University in Haifa, Israel. Also, in conjunction with the American Bar Association's Rule of Law Asia office, the All China Lawyers' Association, and Northwest University of Politics and Law, I have conducted "Training the Trainers" workshops in Xi'an, China to teach 6. See MDRI-Mental Disability Rights International, http://www.mdri.org (last visited Apr. 14, 2009). 7. See generally Michael L. Perlin, An Internet-BasedMental Disability Law Pro- gram: Implicationsfor Social Change in Nations with Developing Economies, 30 FORDHAM INT'L L.J. 435 (2007). 8. See New York Law School-Justice Action Center, http://www.nyls.edu/centers/harlan-scholar-centers/justice-action-center/projects (last visited Apr. 20, 2009). NORTHERN ILLINOIS UNIVERSITY LA W REVIEW [Vol. 29 experienced death penalty defense lawyers how to train inexperienced lawyers, employing the online distance learning methodologies used in NYLS's Online Mental Disability Law curriculum that I developed. I recount my experience not to give the short-form version of my curriculum vitae, but to reinforce how absolutely essential it is for U.S.-based mental disability law scholars, practitioners, and advocates to update their passports, visit Seatguru.com, and consider an investment in foreign lan- guage lessons (although that did not always work out that well for me). I have come to believe (I did not always feel this way, I must confess) that it is impossible to be a truly effective advocate if one looks only at what is happening in one's home jurisdiction. And if readers come away from this article with only one lasting impression, I hope it is that one.

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