Publication
Oklahoma Law Review
Volume
77
Page
11
Year
2024
Abstract
In 2013, the Department of Justice entered into a consent decree with the state of New York concerning the lives of 4,000 people with mental illness who had been segregated into group homes in the state. These group homes were overcrowded and dangerous, and New York agreed to move all but the most severely mentally ill people into supportive housing, if they desired it. This outcome was seen as vindicating the dignity of risk, a foundational value of disability rights scholarship and politics. This principle holds that it is normatively desirable for individuals to be able to make their own choices and experience the positive or negative consequences of those choices.
Instead of being warehoused, thousands of people with mental illness could now exert some control over their social and physical environments. In other words, they could experience what many people without cognitive impairments take for granted: the right to fail.
Of those who were moved out of group homes, several relished their newfound freedoms and the abilities to live a “normal life.” However, many of those who moved out were not ready for independent living. They forgot or refused to take medication to treat their illnesses, engaged in various forms of self-neglect, or went missing and died. That is to say, they experienced the negative consequences of their decisions. Put more harshly, they “failed.” If they did indeed fail, however, the failure was not theirs alone. The state of New York did not provide adequate supportive services, and it did not adequately assess who might be best served by supportive housing versus other housing arrangements. Thus, New York also failed its own residents living with mental illness.
This case illustrates that promoting the right to fail is not simply a matter of providing choice. Support matters. This Article explores the conceptual dimensions of the right to fail, particularly the role of support in its conceptualization. The descriptive claim is that both choice and consequence in decision-making are more interdependent in nature than the traditional individualistic framing of the right to fail might suggest. The normative claim is that we should promote the adequacy and legal recognition of support networks in order to vindicate the right to fail, particularly but not exclusively for the population of people with cognitive impairments.
Part I sketches out the contours of the right to fail, describing its normative foundations and application to people with cognitive impairments. Part II describes how an individualistic framing of the right to fail misdescribes both how humans make choices and how they experience consequences. We all make use of support networks for decision-making in various ways, and our choices produce consequences for those networks as well. Part III draws on these insights to suggest ways of ensuring a robust right to fail. These include supporting individuals and their support networks as a matter of policy and recognizing support networks as a matter of law.
Recommended Citation
Alexander Boni-Saenz, The Right to Fail, 77 Oklahoma Law Review 11 (2024)
