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 otherwise incarcerated on criminal charges and psychiatrized.
I have 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 community as a corollary of the capacity to exercise rights, assume obligations and create legal relationships. 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. 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. (For these writings see materials under Legal Capacity and under 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. Linda Steele and Fleur Beaupert raised the question from a disability perspective as to whether the problem is not the insanity defense per se but that there is discriminatory treatment of an insanity acquittal compared with other acquittals. 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. 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 is legally determined to be incapable of being treated as a moral agent. 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. Just as with ordinary prisons, a large number of people are locked up for trivial and unfair reasons, and had incompetent legal representation at trial. Racism, misogyny, all kinds of other-ing in addition to disability (psychiatrization) add up the unfairness. So it is desirable 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. 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. 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. 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. 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. 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. (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. Survivors of violent crimes want to know that perpetrators will be held accountable and punished. 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.” 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. (A good book in this regard is Why Does He Do That?: Inside the Minds of Angry and Controlling Men, by Lundy Bancroft. 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? 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. While some writers whom I respect refer to “therapeutic jurisprudence” in their work that 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), from a psychiatric abuse survivor perspective it is a concept to avoid. I would say that the link between healing and justice needs to be made by building trust on all sides and not by 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. This criticism 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.