The Legal Implications of the Debate Over Whether ‘Extreme Racism’ Is a Mental Illness

Everyone knows that Law & Order plotlines are often, as they say, ripped from the headlines.

But Dr. Alvin Poussaint, 88, knows this on another level: An emeritus professor of psychiatry at Harvard Medical School, he has had the unusual experience of seeing his ideas incorporated into a season 12 episode of the long-running show. In it, a white working stiff murders a Black CEO in a dispute over a New York City taxicab. When the trial begins, a respected Black psychiatrist takes the stand to present his idea that the defendant suffers from “extreme racism,” a mental illness. His lawyers argue that extreme racism has such a complete hold on the defendant that it mitigates their client’s legal responsibility for the murder. In the final moments, the audience is encouraged to feel that it’s a victory for justice, for law and order, when the jury rejects the psychiatrist’s ideas, Poussaint tells me with a tinge of disdain.

In the real world, Poussaint was that psychiatrist. Sort of.

While he never brought his ideas to the witness stand inside the New York City courthouse behind those massive stone steps that Law & Order made famous, in 1999 he shared his theories on the link between mental health and extreme forms of bigotry on the op-ed pages of the New York Times. In doing so, he helped set off a debate that ended with the American psychiatric establishment publicly rejecting the concept—partly on the grounds that so many people are racists.

But even now, after nearly a decade during which the number of hate crimes has steadily increased, the question of the relationship between bigotry and mental illness has never fully been resolved. In fact, recent high-profile incidents have made public perception of that dynamic perhaps as muddled as ever. The issue comes up in relation to everything from major mass shootings to pop-culture discourse. The racist attack at a Buffalo, N.Y., supermarket, for which the gunman pleaded guilty this week to state murder and domestic terrorism charges, prompted calls for the country to “get serious about mental health” as well as pleas not to talk about the shooting as a matter of psychiatric illness rather than a racist hate crime.

Read more: Anti-Black Violence Has Long Been the Most Common American Hate Crime—And We Still Don’t Know the Full Extent

It’s hard to distinguish what psychiatric experts have decided not to define, to separate what Poussaint calls “everyday racism”—covering the span from systemic discrimination to microaggressions—from the extreme version, which he and others have described as the point at which bigotry so deeply shapes behavior that a person struggles to function and sometimes becomes dangerous. But the question is more than just a thought experiment. If extreme racism were to become accepted as a mental illness per se, more suspects in hate-crime cases could potentially have recourse to mount “insanity” defenses in court. And given all the mass shootings and disturbing public events in which extreme racism appears to have played some part since Poussaint first described his ideas, it’s also hard not to wonder. Might developing a research-backed extreme-racism diagnosis—and sound treatments—have saved lives?

Though the FBI typically releases data each fall detailing the prior year’s hate-crimes statistics, the agency has not yet done so in 2022. But social conditions are rife, experts say, for the increase to continue. (In 2020, the most recent year for which FBI data is available, the agency reported 8,263 incidents—an increase of nearly a thousand over the prior year, despite 452 fewer agencies reporting—and most experts believe the real number is higher.) Police have noted that 47 out of 100 people arrested for hate crimes in New York City in early 2022 “have prior documentation of an [emotionally disturbed person] incident.” So the stakes are high for the nation’s courtrooms to respond to the trauma unleashed by that dynamic—and for Americans to decide what constitutes a just outcome.

“It’s complicated,” says Sander Gilman, a historian at Emory University who researches the relationship between health, science, law, and society, and who has long taught a course on extremism. “But I’m going to start with two things that I call Gilman’s Law: not all racists are crazy, but crazy people can be racists.”

Thanks in part to the influence of pop culture—not least those TV police procedurals—many assume that insanity pleas are common. In reality, mental-health defenses are rare, and even more rarely lead to reduced punishment. Mounting that kind of defense requires time and significant resources to gather evidence and expert testimony, so in practice it is not an avenue available to all defendants.

In England and the U.S., courts began to reliably consider the mental health of defendants only in the 19th century. The M’Naghten rule, a standard for determining a defendant’s sanity at the time of a crime, was established in 1840s England. It holds that only the sane can be held responsible for their actions. As a result, the question of mental fitness—sufficient sanity to participate meaningfully in one’s own defense—is sometimes evaluated before a trial. (Whether the state has an obligation or right to treat such an illness in order for the person to then stand trial is, Gilman says, a question that goes back as far as the idea of such a defense.) Once a competency decision has been made, the accused who do go to trial have the right to a defense. In some cases, that may include an option for a jury to find the defendant not guilty by reason of mental disorder. In others, ideas about the mental health of the defendant may more informally shape what evidence is presented.

But so-called “mental disease or defect” defenses are used in only about 1% of cases, says Michael Boucai, a professor at the State University of New York at Buffalo School of Law and an expert on mental health and other social issues in courtrooms. Those defenses are successful in even fewer cases; in fact, such a tactic often backfires or results in a defendant confined for a longer term inside a hospital than that person would have spent in prison, sometimes with no end date. And even rarer—though not unheard of—is an attempt to use racism or other bigotry as an indicator of mental-health challenges, he says.

“I think it would be extremely hard,” says Boucai, “I mean extremely hard, to succeed on the theory that extreme racism per se—particularly subscription to a theory—is a mental illness for the purpose of criminal responsibility. Just because you have a psychologist or psychiatrist saying this person is mentally ill does not mean the law has to [accept] that.” (Nor does the defendant: Dylann Roof, the white man who shot and killed nine Black worshippers inside a Charleston, S.C., church in 2015—whose legal team used words like “delusional,” “abnormal,” and “suicidal” to describe their client—rejected advice from his lawyers to attempt to avoid the death penalty by allowing them to argue that he was insane or suffering from a mental defect at the time of the shooting.)

Some fear that raising mental-health issues in court runs the risk of bolstering inaccurate myths about the mentally ill. In reality, mentally ill people are disproportionately more likely to become the victims of crime, and most do nothing to victimize others. And, as has been observed after so many headlinemaking crimes, suspects from privileged groups are more likely to have their actions described as illness in need of treatment instead of criminal evil meriting punishment. Some experts fear that shifting the conversation to questions of mental health can also draw attention away from hateful ideas embraced by the person accused of the crime—ideas that are today often shared by people, including public figures, whose mental health is not questioned. That’s how important social problems that require the nation’s attention are transformed into one individual’s medical problems, says W. Carson Byrd, a sociologist at the University of Michigan.

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That line of thinking is particularly problematic in a culture prone to dismiss the need for systemwide reforms to address inequality, Byrd says. It can foster an emphasis on quick fixes for the world’s long-standing problems with bigotry. (In 2012, for example, a team of British researchers announced that an existing heart and blood-pressure drug appeared to reduce implicit bias after a study involving just 36 subjects.)

“White supremacy is a very normal part of society,” says Byrd, who is also the faculty director of research initiatives at his university’s National Center for Institutional Diversity. It is not a good or productive part of society, he points out, but a deeply entrenched one. “One of the detriments of trying to look at racism as a form of psychopathology or mental illness is that it makes that [illness] abhorrent, as if everything else is working in a certain [non-racist] way.”

Research has also long shown that bigotry is not an inborn human trait, but rather something learned from our environments, Byrd says. While racism can influence one’s mental health, describing racism itself—even “extreme racism”—as a mental illness implies that bigotry exists beyond our individual and collective control.

“By medicalizing [extreme racism], making it something curable, a mental-health disorder, it pulls away from having those broader conversations about how society is impacting people,” he says. “We just try to figure out, ‘How do we fix this one person?’”

This problem, Boucai notes, can already be clearly seen in discussions about gun crime, and mass shootings in particular: “It’s very hard to understand these crimes and the discourse of insanity provides one way to do it,” says Boucai. “But I think we can see where that sort of language is irresponsible and potentially undermines a just result.”

In other words, if a mass shooter is simply insane, then wholesale gun-law reform can, to some, seem unnecessary, even unwise. When bigotry is involved, that supposed insanity might, some who oppose Poussaint’s ideas believe, undermine systemwide efforts toward equity—or at least toward greater safety for those most likely to be targeted.

In 1999, when Poussaint wrote his op-ed advocating for increased research into possible psychiatric treatments for extreme racism, he was the author of acclaimed books about the effects of racism on Black mental health and a veteran of public controversy. Years earlier he’d argued publicly that racial pride among Black Americans could be taken to an unhealthy extreme. By the 1990s, he may have been best known for his work with Bill Cosby, consulting on scripts for The Cosby Show in a massively popular effort to disrupt stereotypes.

Poussaint first published his ideas about extreme racism weeks after a man named Buford O. Furrow Jr. shot and seriously injured four children and an adult inside a Jewish Community Center in Los Angeles, then shot and killed a nearby Asian-American postal worker. When captured and ultimately convicted, Furrow told investigators his actions had been motivated by hate. Reporters unearthed information indicating that Furrow had close relationships with known white nationalists, and also that he had been evaluated by Washington State’s mental-health system only months before the attack. He’d even told officials after a previous arrest for assault that he’d “fantasized,” about mass murder. To Poussaint, this story signaled a growing threat posed by a failure to recognize that, while highlighting and combating systemic racism is important in preventing discrimination, so is identifying and helping individuals motivated by bigotry who might go so far as to injure or kill others.

Read more: 11 People Were Killed in 48 Hours in Mass Shootings Across America. It’s Likely to Get Worse

The idea had been brewing for years. In 1993, a Jamaican immigrant named Colin Ferguson had shot and killed six people and injured 19 aboard a New York commuter train after years of personal struggles that he blamed on white and Asian people, whom he referred to as “devils.” Ferguson had been pinned down by passengers on the train to stop the shooting but, while defending himself at trial, he argued that someone else committed the crime. (Ferguson’s lawyers had planned to argue that he was insane at the time, suffering from something called “Black rage,” another condition debated but not officially recognized by the American Psychiatric Association and that was the subject of a Law & Order episode.) After the train shootings, Poussaint—a Haitian-American son of immigrants—had noted Ferguson’s trajectory: racist thinking, delusions that had come to dominate his life, then mass violence. This was a textbook case of extreme racism.

“Extreme racism crosses the line and is out of control,” he explains. “Just like somebody can have a little bit of anxiety, but if they have anxiety to the point that it is immobilizing, then it is a mental disorder.” Mass shooters behind hate crimes are, as he sees it, in a similar state: “[They] weren’t functioning individuals. They were impaired by their mental pathology.”

When the third edition of the Diagnostic and Statistical Manual of Mental Disorders (DSM), the guide that mental-health professionals use to make their diagnoses, was published in 1980, clinicians like Poussaint considered racism—not extreme racism, but what he calls everyday racism—a potential symptom of several conditions, from paranoid personality disorder to generalized anxiety disorder. Racism alone is not sufficient to diagnose a patient with one of those conditions, but an extreme racist, Poussaint says, likely suffers from delusions. Such people live with multiple symptoms including paranoia; they are likely to project negative traits or outcomes onto entire groups and sustain those beliefs even in the face of strong countervailing evidence. Many embrace conspiracy theories. Some may grow violent. In fact, Poussaint argued in a 2002 Western Journal of Medicine article, the extreme racist often begins with “verbal expression of antagonism, progresses to avoidance of members of disliked groups, then to active discrimination against them, to physical attack, and finally to extermination (lynchings, massacres, genocide). That fifth point on the scale, the acting out of extermination fantasies, is readily classifiable as delusional behavior.”

Poussaint was not the first person to raise the idea that extreme racism is itself a mental illness. But he was among those leading the call for the American Psychiatric Association, publishers of the DSM, to consider putting it in subsequent editions of the manual, which has a long history of evolving, often slowly, in response to research and norms. When his op-ed ran, it seemed to Poussaint, people pounced.

Some of his fellow Black psychiatrists argued that such a diagnosis would unleash a wave of legal excuse-making, helping no one but the violent racists themselves. Poussaint counters that other health diagnoses have yet—nearly 200 years after psychological concerns officially entered American courtrooms—to produce rafts of acquittals. And some clinicians and researchers argued that there are other ways of attacking racism besides treating it as an illness—educational programs, diversity initiatives, policy changes. That’s a point Poussaint says he doesn’t oppose, at least when it comes to everyday racism. Those steps can help racists who embrace repugnant ideas while remaining functional parts of society. But those aren’t the people he’s talking about.

“Racism negatively impacts public health,” the American Psychiatric Association told TIME in a statement. “The American Psychiatric Association has been focusing on this in the DSM by identifying and addressing the impact of structural racism on the over- or underdiagnosis of mental disorders in certain ethno-racial groups. From time to time we have received proposals to create a diagnosis of extreme racism but they have not met the criteria identified for creating new disorders.”

To this day, Poussaint believes that extreme racism is very likely its own disorder in need of study, possible diagnostic criteria, and evidence-based treatment, he told me in September from his home in Massachusetts. But after retiring about 2½ years ago at the age of 86, he says he’s too far out of the professional mix to continue to push for an extreme racism diagnosis.

I ask Poussaint what he thinks might have happened if extreme racism had become its own diagnosable condition listed in the DSM. Extreme racism might have been a topic on talk shows and a more frequent topic of news coverage, he says. With research and public information campaigns, the need for intervention could have been as clear as it is for heart attacks; the steps to do so as well-known as CPR.

“We’d get away from treating it as if [extreme racism] is normative,” Poussaint says, “like a cultural difference because America is a racist country. We have made it normative by not calling it what it is. Even people in general society, friends and relatives and even the afflicted individual, would recognize it as a disorder and say, ‘I’m not alright.’ People who get swept up by anxiety and can’t function, they don’t think they are normal. They say, ‘This is taking over my life. I need some help.’ [A diagnosis] clues the family to say, ‘This person is really troubled and we have to get them some help.’”

—with reporting by Solcyre Burga, Mariah Espada and Simmone Shah