I am glad to see more discussion in our movement about the insanity defense, and more solidarity with people locked up in forensic psychiatry or otherwiseĀ incarcerated on criminal charges and psychiatrized.
I haveĀ written in opposition to the insanity defense from a perspective of equal legal capacity, seeing the capacity to be held accountable for harm done to others or to the communityĀ as a corollary of the capacity to exercise rights, assume obligations and create legal relationships. Ā I have also written in opposition to forensic psychiatry from a human rights perspective, since it is no different than civil commitment to institutions in that it is an illegitimate discriminatory detention in which medical personnel determine when a person can be released, based on their classifications and opinions about a person’s disability. Ā Medical classification of behavior inherently raises issues of disability-based discrimination because it is attaching a negative social valuation to a label that becomes an attribute of personal defect. Ā (For these writings see materials under Legal Capacity and underĀ Prison Reform/Abolition and CRPD, on the CHRUSP resources page.)
More recently I was challenged to look at the issue a little differently, though I have not changed my basic position. Ā Linda Steele and Fleur Beaupert raised the question from a disability perspective as to whetherĀ the problem is not the insanity defense per se but that there is discriminatory treatment of an insanity acquittal compared with other acquittals. Ā Insanity acquittals rarely result in actual release from custody, instead the person goes into forensic psychiatry, and is often held longer than the sentence for the crime of which they were supposedly acquitted.
That made me start thinking about the justice issues involved in how a person should be treated if they are in a state of altered reality or extreme distress when committing a crime. Ā I think I would want some leniency in that situation, but I am not comfortable with an all-or-nothing insanity defense that is both legally and socially stigmatizing because it sets the person apart as someone who isĀ legally determined to be incapable of being treated as a moral agent. Ā This stigma spills over onto all people who are psychiatrized, and it is part of the conception of madness that also ends up serving as a justification for civil commitment, since we are perceived (incorrectly) as outside the reach of ordinary law.
Many of the people incarcerated in forensic psychiatry are not in the classic situation that lives in the public imagination – shooters who respond to command hallucinations that they are unable to control. Ā Just as with ordinary prisons, a large number of people are locked up for trivial and unfair reasons, and had incompetentĀ legal representation at trial. Ā Racism,Ā misogyny, all kinds of other-ing in addition to disability (psychiatrization) add up the unfairness. Ā So it is desirableĀ to think about what would eliminate the unfairness, as well as the development of restorative alternatives and the decriminalization of conduct that is not per se harmful.
Similarly to how we arrived at the model of support in exercising legal capacity by looking at what might be actually needed and wanted when a person has difficulty making decisions, as opposed to the removal of control that comes with guardianship – we could look at the possibility for leniency in relation to factors that might have affected a person’s decision-making, in adjudicating criminal responsibility, without issuing a judgment that classifies the person as being outside ordinary law or morality. Ā This would separate the question of disability from the question of what it is to be a moral agent and a member of the community. Ā We might be talking about applying doctrines that already exist in criminal law, or creating new doctrine and a new disability-inclusive inquiry that would apply in all cases so that the person is not subjected to labeling. Ā An acquittal would be an acquittal, period, but there should also be options for reduced charges.
This approach may be conceptually satisfying but it would also have problems from the standpoint of intersection with racism and how it would be applied in practice; as we see with Stand Your Ground laws, any principle calling for leniency tends to be applied in ways that serve those who are already privileged. Ā I do not know how to address this, but it is worth exploring.
I think it is also defensible to argue for abolition of forensic psychiatry first, so as to treat insanity acquittals as true acquittals and use all the vehicles for leniency that we have, given the monumental injustices in criminal proceedings and the prison system. Ā But ultimately, the prejudices associated with a specific adjudication of insanity also have to be eliminated from law as a barrier to full citizenship and equality. Ā (For example, people adjudicated ‘not guilty by reason of insanity’ are included in the FBI NICS database of individuals prohibited from gun ownership.)
There are hard questions involved in looking at criminal responsibility. Ā Survivors of violent crimes want to know that perpetrators will be held accountable and punished. Ā Survivors of any kind of abuse, whether or not it can be prosecuted as a crime – including psychiatric abuse – do not want to absolve perpetrators based on the idea that “they didn’t know what they were doing.” Ā Many of us have been abused by people who were themselves survivors of abuse, and we know that trauma doesn’t automatically make a person abusive, but that it is a choice. Ā (A good book in this regard is Why Does He Do That?: Inside the Minds of Angry and Controlling Men, by Lundy Bancroft. Ā Thanks to whoever posted about it on Facebook; I am reading it and find it enlightening.)
Still, I think that a discussion of leniency without all-or-nothing absolution, condemnation or segregation as being immune to ordinary morality is helpful to examine in each situation, what is abuse and what is extenuating circumstances? Ā Opening up the questions would be a more meaningful kind of justice; and that already goes to the restorative/transformative justice model that is largely missing from our system.
Caveat, I do not consider this to be in any way about “therapeutic jurisprudence” or giving scope to psychiatric opinion in determining questions of leniency. Ā While some writers whom I respectĀ refer toĀ “therapeutic jurisprudence” in their work thatĀ contemplates justice as healing and healing as justice (the Honorable Robert Yazzie, Chief Justice Emeritus of the Navajo Nation, writing in the newsletter Justice as Healing, published by the Native Law Centre in Saskatchewan),Ā from a psychiatric abuse survivor perspective it is a concept to avoid. Ā I would say that the link between healing and justice needs to be made by building trust on all sides and not byĀ handing over justice issues to professions (or even to a conceptual framework associated with those professions) that have repeatedly violated trust and perpetrated torture with drugs and electroshock and mind games of dominance and control. Ā ThisĀ criticismĀ is itself the application of a restorative perspective, which I would want to see mainstreamed and not limited only to situations involving those who identify as survivors.
I look forward to discussion, and to hearing more from people directly impacted by the insanity defense and forensic psychiatry.
Tina, could you please tell me who makes the decision? Is it solely up to the defendant or does the prosecutor and/or Judge have input into the decision? What happens if a defendant declines the insanity defence but then clearly displays symptoms of a mental disorder during Court proceedings?
Also, when you say you would want leniency for someone who is “in a state of altered reality or extreme distress when committing a crime,” I am wondering what “leniency” means here. Do you want lesser punishment without specifying that the defendant has a disorder? I’m not sure how that would work. What would be the basis for the leniency, then?
I had never thought about comparing insanity acquittals with regular acquittals in terms of discrimination. If the insanity defence were removed, regular acquittals likely wouldn’t increase. In other words, I don’t think it’s usually a choice between two kinds of acquittals but rather between a guilty verdict and an insanity acquittal.
I’m also aware that involuntary psychiatric treatment happens in prison, too, so it’s not like declining an insanity defence guarantees a person won’t be medicated against his will.
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Our legal systems may be vastly different, of course. Here, you plead NCR (not criminally responsible) instead of going to trial so it’s really not accurate to call it an insanity acquittal. It’s more like an insanity bypass. As many have already noted, it’s a difficult decision to make.
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Still wondering about this. Why should a defendant be entitled to only the benefits of an insanity defence? It’s a bit like saying the mentally ill should get a free pass from their responsibilities. Now, I do understand (but don’t agree with) Thomas Szasz’s position but this article seems like a new twist.
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Hi Francesca,
Thanks for your questions. I would like to work out some way that we acknowledge the impact of altered realities and serious distress on people’s decision-making, as it applies to acts that constitute violations of the criminal law – while still treating the person as a moral agent who is to be held responsible for the choices made.
Remember also that even the existing insanity defense – at least in the U.S. – is supposed to be not about your state of mind at the trial, but at the time the offense was committed. So I would say that the defendant should be offered the opportunity to describe any extenuating circumstances including anything that impacted on their decision-making at the time – and that the defendant’s lawyer could put on information and evidence, it does not have to be the defendant testifying if they don’t want to.
The question of competence to stand trial, in my view, should be addressed in the framework of universal legal capacity with support, as the Committee on the Rights of Persons with Disabilities has indicated in its Concluding Observations on Article 13 access to justice – so that procedural accommodations should be made, and support provided if necessary, so that the person is able to participate in the proceedings.
I see that in your country the two issues are disposed of together, as I know is the case in Latin America also – and in Japan under a relatively recent preventive detention law that diverts people whom the judge considers to have a mental disorder, into forensic psychiatry. This approach when the person goes into forced psychiatry deprives the person of the right to a fair trial of guilt or innocence.
As to how it should work without specifying that the defendant has a disorder – it could be done by having degrees of the offense that could be reduced based on various kinds of extenuating circumstances, or in any other way that a procedure could be devised that is inclusive and not discriminatory.
I agree with you that as it works in practice, it is not a choice between insanity acquittal and other acquittal but between insanity acquittal and a conviction of guilt. But it can be analyzed from a legal point of view in that, if it is considered an acquittal, why is it an acquittal where the person still goes to a type of imprisonment? So that is the reasoning that led the two authors I mentioned to argue that treating insanity acquittals differently from other acquittals is a type of discrimination.
I also agree that forced psychiatry happens in prisons too, and so it is necessary to apply all the human rights requirements fully to prisons so that forced treatment is prohibited and abolished, and people are entitled to non-discrimination, reasonable accommodation and needed supports and services on the basis of their free and informed consent.
Regarding your question about why a defendant should get the benefits of an insanity defense – your first sentence there seems to be missing some words, so I’m not sure I understand. My reason for wanting to see a slightly different twist to Szasz’s point of view is that I think there is insufficient appreciation and consideration of how a person is impacted by distress and altered realities, when it comes to criminal justice issues. I don’t think that it automatically means acquittal or a free pass. Instead, I see it in terms of considering how the world looked to that person at the time they committed the offense, and whether that would justify their actions or whether they should be held responsible for the choice they made that constituted a criminal act. There are some defenses in criminal law that already make provision for such a situation, and people with disabilities should be given the full benefit of those defenses. (My colleague Sarah Knutson made this suggestion and went into more details, which I set out in the article that I submitted for publication.)
There are likely aspects of all this I haven’t worked out fully yet in concept, but I am hoping that it provides a starting point for some useful discussions.
All the best,
Tina
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“So I would say that the defendant should be offered the opportunity to describe any extenuating circumstances including anything that impacted on their decision-making at the time ā and that the defendantās lawyer could put on information and evidence, it does not have to be the defendant testifying if they donāt want to.”
Isn’t this already true, though?
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There isn’t such broad leeway in all criminal justice systems as I understand it. If there is, then there should be no problem, and the insanity defense can simply be abolished without anything more. But I suppose that would want to have some way to raise awareness or provide for consideration within the context of a trial of contextual issues where discrimination and marginalization of perspectives might be resulting in unfairness. For example, if it is just not well or easily understood that a person can bring up strong fears of abuse based on past experience and have it seen in a sympathetic light, so long as the person doesn’t claim a license to abuse others on this basis, I think we need some way to make sure it can be brought in or some large-scale training for the judiciary and/or legislation to make sure there is a mandate to consider such issues sympathetically. That is what I’d be concerned about.
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I know next to nothing about criminal law but I would have hoped that every defendant is given ample opportunity to explain his or her actions. To me, that’s implied in the notion of defence.
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“To me, thatās implied in the notion of defence.”
In principle it should but the practice is not really satisfactory.
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I just wanted to add that it is a norm that people who are put on trial as mentally ill are often already in grips of psychiatry and being drugged. No sane person would insist that someone totally drunk or high is able to stand trial or should be assessed for that ability while under the influence, yet if you’re drugged up to your nostrils it’s somehow fine. A judge should be able to see and talk to a defendant who is free of drugs (or not during withdrawal) to determine how “sane” that person really is.
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I’d like to make a clarification that occurs to me from re-reading my post. It’s not only “all or nothing” insanity acquittals that I object to but also any acquittal that is based on a concept of diminished responsibility in a way that relies on a concept of mental capacity. I recall the first-person story of Tristano Ajmone, told in a compilation by WNUSP and Bapu Trust, that discusses his own horrendous experiences in forensic psychiatry after a verdict of partially diminished criminal responsibility.
The aim of the kind of leniency I describe, is to have an inquiry that is disability-neutral, so that it does not stigmatize people who benefit from it. A verdict of partial or diminished responsibility even if not accompanied by forensic psychiatry still carries an implication that the person’s ability to be treated as a moral agent is inferior to that of others. For this reason leniency should be incorporated into concepts that are applicable to everyone, such as reduction in the degree of the offense. In some countries there is a broader approach to diminished responsibility per se that includes foreigners to the country and indigenous people. In such cases, I think it would be necessary to articulate what are the underlying reasons for the leniency and mainstream the issues of disability such as altered reality and extreme distress, so that we are not left with some version of the insanity defense that is ultimately an equation of actual or perceived mental capacity with legal capacity.
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Tina:
Thanks for the clarification that you object to “any acquittal that is based on a concept of diminished responsibility in a way that relies on a concept of mental capacity.” In my view, differentiation between the mentally “ill” and the mentally “well” has no place in either the civil or criminal courts. As with the profoundly dangerous hospital system (which includes extra-judicial locked wards and a radically increased risk that a “disabled” claimant or defendant will be rendered thereunto and also have his/her habeas corpus rights denied), disallowing any chance for the determination of diminished legal capacity appears to be the proper course. You stated it in the Milan video (which is available on the CHRUSP site and which regards the [U.N.] Convention): the courts should judge people based upon their actions.
Legal capacity determinations in the civil and criminal court systems engender a framework at once paternalistic (towards PWDs/labelees) and unacceptably increasing of the risk of forced incarceration tantamount to torture. I am not addressing your comments with respect to the potential for leniency in this reply, as I am not sure that the PWD/”disabled” paradigm would serve a defendant, or that the defendant’s PWD/”non” status would have to be invoked for that defendant to receive appropriate protections and leniency; rather, I’m simply noting that the “help” extended to someone failing the profoundly faulty (and rights erosive) legal concept of diminished capacity can have devastating consequences (e.g., the profoundly dangerous and corrupt judicial concept [and hospital concept] that “the mentally ill” are somehow happier or “better off” in a mental hospital than in a traditional prison).
I don’t support any form of incarceration; however, those accused who find themselves in the traditional, non-psychiatric penal system have a far better chance to have their legal, Constitutional, and habeas corpus rights protected by the Courts.
The intrinsic and (strategically) hidden dangers of “hospitalization” (which can yield extra-judicial, indefinite confinement as such targeted renditionings are illegally executed by private medical oligarchies, even under the auspices of organizations such as the CIA and military/”security” interests) should be salient in any conversation about the U.S. courts’ claim to be able to gauge capacity.
Best regards,
Benj. Turner-Blackhouse, litigant & psychiatry Survivor
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I think there are two points, one as to whether there would have to be an explicit claim of disability in order to invoke a request for leniency based on extenuating circumstances and what the impact of this would be, and whether there should be a determination of “diminished capacity” as such. The latter I think is clearly wrong and violates the equal right to legal personhood and legal capacity. The CRPD Committee has not ruled on this yet but in my opinion it is clearly implied, as I have written in several places. The former I think is questionable, I leave that open as to whether it will always result in discrimination and not real leniency, or whether it is possible to raise awareness and frame legislation and judicial obligations in such a way that it is a positive thing, akin to reasonable accommodation, and would carry no negative legal or social consequences.
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My own take on this Tina, is the criminal justice system just as the psychiatric system has to go for nothing will work which begin from any any of these conceptualizations. Dispensing with both frameworks, we are in a better position to respond to the problems that occur in society, whether it be VORPs, peace-building, or what have you–all of which would have to be predicated on some kind notion of moral agency and co-responsibility.
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Bonnie, you are probably right. For me it has been helpful to think through some of the issues this way in order to specify some of the concepts and to suggest what would have to be done and why it is not enough. Otherwise it is too easy for people to reject the advocacy to do away with both systems as being pie in the sky.
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Tina,
Your essay makes me want to ask you questions about the overlap in what seems to me are two competing justice systems.
Medical classification of behavior sets up a convenient parallel justice system, a system of state-sponsored vigilante justice. There seems to be a broader spectrum of sentencing based on extenuating circumstances in the traditional justice system than in this overreaching parallel system that seems to be competing for bodies.
(There’s a nice dramatization of this in the novel The Devil in Silver by Victor LaValle. A person who has become a nuisance to the police in Queens, NY, is brought to a mental hospital and is quickly committed, drugged up with neurotoxins and locked up. )
With the DSM in hand, inconvenient behaviors are now ticketable offenses for which any of us can be condemned to periods of isolation, forced tranquilization and incarceration. I know people who’ve gone through all of this plus remain on psychiatric probation when released, for spitting on a person with state authority as a first offense. This offense will get one a life long bi-polar label within minutes. This parallel system of summary justice requires a lot less time and paperwork for the police, and guarantees that the person, whose behaviour is found to be a nuisance, won’t be released after a few hours, maybe not even for a few months. And when they are released, it will be with the leash of either probationary officers in the form of ACT compliance enforcing teams allowed to trespass unannounced at their homes to ensure the person remains under chemical incarceration.
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While both are incarceral systems, the psychiatric system pretends that it is not designed as a “justice” system or as a form of punishment. It is clearly designed as a form of control (witness the “danger” criterion as well as the use of intervention that disable a person from spontaneous and self-authentic action) as well as a way to absorb people who are considered in need of care and burdensome to their families or society. In psychiatry the incarceration is veiled as medical, and is also mixed, for some people, with access to help and support and desired services, and this creates both intentional and unintentional confusion about the nature of psychiatric detention and perceived necessity of it.
It’s interesting that looking at the interrelationship between the prison system and psychiatry, including the insanity defense and forensic psychiatry, makes it clear that both are incarceral systems that have much the same purpose of control and absorption of parts of the population that society, or social authorities, consider to be unproductive and potentially disruptive. Working on the CERD report (which can be found on the CHRUSP website http://www.chrusp.org), and reading in full Michelle Alexander’s The New Jim Crow, has helped me to appreciate more the destructive nature of the criminal justice system. And having read Michel Foucault’s History of Madness made me more aware of the common roots of the prison system and psychiatric institutions.
So we probably are moving towards a stronger and more informed advocacy for prison abolition along with abolition of forced psychiatry. I want to link these but also not wait to abolish forced psychiatry until we have the complete solution to criminal justice alternatives, since there is a clear rationale based on disability non-discrimination to abolish forced psychiatry from a human rights point of view.
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thank you so much for your clear thinking and response.
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That is well known from Soviet Russia. Read about so-called “psychuszka”:
http://en.wikipedia.org/wiki/Political_abuse_of_psychiatry_in_the_Soviet_Union
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Lots of things to think over. I agree that prison abolition/reform has to be discussed at the same table as the abolition of forced psychiatry. The NGRI plea is often chosen because the offender realizes he may not survive the prison experience. Every defendant knows that prison means (usually gang) rape. In all this time, and after all the federal lawsuits over prison conditions (and mental hospital conditions), which tend to result only in more air conditioning and more staff at higher salaries, the “experts” seem to have never found a technique of stopping prison rape. Isn’t that odd? We must always be mindful of the behaviors of systems and the people who are employed as cogs in those systems – e.g. the work of Dr. Philip Zimbardo (The Stanford Prison Experiment) and the Milgram experiments (establishing that most people will gladly harm unto death, another human being they have no reason to hate, as long as a person in “authority” tells them someone else will take responsibility). So, to the extent that prisons and mental hospitals are staffed by those not acting as individuals and without any real accountability, they are unlikely to achieve any legitimate rehabilitative or “treatment” goals. The most they can do is isolate people who have truly harmed others and are likely to do so again, from the rest of us. But even if we wanted to limit incarceration only to true psychopaths (a way of saying purely evil but not “mentally ill”) who commit acts of violence, could we count on the other systems – the courts – the juries, etc. to get the facts right as to who is and who is not in such a category?
One remedy I understand was used by native Americans was a type of shunning – in some religious communities also called disfellowshipping even now. It was a way for the community to achieve at least the goal of isolating the person from the community where he had harmed someone. It involved casting the person out of the community upon which he depended for food, shelter, and fellowship. It’s no perfect solution and can certainly be used harshly. It could effectively be a death sentence. Plus it’s not even true isolation because the person could return and wreak havoc on the ones who shunned him. But at least it’s not an overt act of aggression being committed in the name of every man, woman, and child in the wronged community. Which I think is a big part of what is wrong with capital punishment and forced psychiatry- apart from its discriminatory application and the irreversible consequendes of getting the facts wrong. Capital punishment, like psychiatric torture and involuntary confinement of all types, is behavior that at some level the community that inflicts it has to own. Do we really want to be identified with abusive systems set up in our names and for our “protection”?
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I agree with you about the need for other kinds of solution. I don’t know what makes sense in a pluralistic state society. I read as much as I can about indigenous justice practices which are hands on and face to face. People have to take responsibility for their action in this regard (such as shunning someone who has committed great harm and won’t mend their ways) and in that sense have a much more direct relationship to whatever social control mechanisms exist because individual members of the community operate these social controls directly. In contrast, in American society we operate these mechanisms in an alienated way – judges and juries don’t have to carry out the sentence, prison staff aren’t responsible for having imposed it, the general public wants more sympathy for defendants or more jail time but doesn’t have to take responsibility for consequences of either decision.
I would like to investigate more about community courts that are being started, unfortunately the mental health courts are one way that this happens and it is an illegitimate version because it perpetuates forced drugging and medicalization of life issues. But there are other kinds of community courts and it might have insights that are directly applicable to prison abolition in non-indigenous settings.
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“One remedy I understand was used by native Americans was a type of shunning ā in some religious communities also called disfellowshipping even now.”
Well, that can only work in small communities. In today’s world the person would just move neighbourhoods or cities and go on committing violence.
I am not sure if total abolition of prisons is even possible as I am strongly against death penalty – I’d be unsure what to do about a serial killer who openly says “if you let me out I’ll kill again”. But it should be minimised and people should be held in humane conditions. Also rehabilitation should be offered. People often mention the Norwegian prison system as a model, I don’t know how well it really works but it’s supposedly very lenient and has very good results comes recidivism.
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One more thing to add: for the serial killers and such actually prison also serves a protective role – if you release them to the community there is going to be lynching.
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That is a complicated matter but in essence I agree with you – the insanity defence as it is used now as well as the idea that sending people to psych wards for an undetermined amount of time to be drugged and stripped off of rights to their own bodies is somehow better than jail are ludicrous and we see just how much harm and injustice is done in the process.
I think that the justice system is perfectly able to adjudicate cases of crime when a person had limited ability to recognise the meaning of its actions without the need to psychiatry to step in. Judges routinely deal with cases when people are intoxicated or act under strong emotions (unfortunately if the psychiatric assault on civil rights continues it may soon not be true – they will all get labelled “sick” and be funneled to psychiatric/pharma complex). I have a friend who’s a judge and she had to take decisions like that in cases of child or animal abuse by people who clearly had intellectual disability – she refrained from strong punishment and limited it to protection of the victims by either removal of them from the dangerous person or putting them under supervision.
What also worries me about the current system is the idea that if someone is labelled as mentally ill all of this person’s criminal actions must be a result of this illness. That is clearly not true – a person in a psychotic state may commit a crime because of some delusions and hallucinations but the same person can commit a crime while 100% lucid. It results is total injustice when some people “get away with it” for serious crimes and others are locked up in psych wards for minor infractions. The crime should be always judged on the circumstances of it – if a person was competent to control and understand his/her actions at that moment and not because they have been diagnosed with something 3yrs earlier.
Also do any statistics exist as to how many violent crimes (resulting in serious bodily harm or death) are really committed by people in psychotic states as opposed to all such crime? My guess it’s a tiny fraction…
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Just to add: the above mentioned judge friend has told me that she purposefully avoids calling in “professionals” on cases like that since she knows that would lead to incarceration of these people in psych wards resulting in destruction of families and lives without improving anything. So taking account of mental disability or distress without any use of psychiatry is possible in the legal system and in some cases it’s being practiced.
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Hi Tina,
I’m currently researching the compatibility of the Insanity Defense with the UNCRPD and have found your writing incredibly insightful. However I was wondering what your thoughts were on the defense from an Article 13 analysis? Surely you would agree the abolition of the defense whilst reducing stigmatisation and increasing equal recognition, could lead to people being held culpable when they shouldn’t? Thus raising issues around access to justice.
Would love to hear your thoughts.
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Tina – Your selection of Slobogin in your 2015 continuation of this topic presents the greatly needed study in contrasts that illuminates the differences you and Bonnie Burstow are talking over above–that is, I see to look for that there, now. I think that his proposal makes the ideal pivot for moving between how to aim for one or the other route to change. For one thing, because he makes his case so plausibly by ordinary standards of social acceptability for “diminished mental capacity”, saying that we aren’t discriminating by considering persons as subject to compulsive derangements, however much their capacity is diminished being the expert’s call. A mental patient is a mental patient, a real qualitative difference. He was and he is, or … she wasn’t but should’ve been. For another thing, he asserts his premises on the matter as though they were reasoned conclusions, and still makes himself sound forthright. So he does knows something about what he doesn’t know that he could learn in order to do better jurisprudential theorizing…. Just offhandedly considering, and my perceptions may not be correct. But what is true and known is that I could only feel like reading such material as the Slobogin article given the framework provided by your work and attention to the matter. In addition, how very nice and easy to believe that the psychiatrization issue can inform the native justice debate on more general points of legal interpretation, whether in reciprocity or not.
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In the US, I believe I recall reading that the number of accepted insanity defenses was 0.1%. However, those who attempt it are frequently treated much more severely by the jury. There is an assumption in this country that mental illness is an excuse… A way to get away with murder. When the jurors were interviewed following the sentencing of notorious serial killer, John Wayne Gacy, they were asked about his attempt to plead insanity. One juror said simply, “Oh, we all knew he was crazy; we just thought he should fry anyway.”
Our current attempt at justice is anything but just. Defendants who were found unfit to stand trial are simply shipped to an institution and medicated until they can sit quietly while they are found guilty. They are being sentenced based on their prior state of mind, and their guilt is being determined based on their state of mind after being heavily medicated. This is often a result of a public demand for justice based on a complete misunderstanding of what the word means. In the law, justice merely means to treat everyone the same.
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