On March 23, the Supreme Court issued a decision in the Kahler v. Kansas case that allows the state of Kansas to eliminate the insanity defense as an affirmative defense, except in answering the question of whether or not a defendant had “mens rea,” the state of mind that has to be proven as an element of any crime (usually meaning intent and/or knowledge).
As I read this case, it helps us move in the direction required by the U.N. Convention on the Rights of Persons with Disabilities (CRPD), though there are elements that remain medical model and allow human rights violations. CRPD provisions on legal capacity, access to justice, and liberty and security of the person, as interpreted by the expert international committee that monitors countries’ implementation of that treaty, call for an equal and non-discriminatory approach to both criminal proceedings and criminal responsibility.
The Committee on the Rights of Persons with Disabilities has repeatedly called on states who are parties to the Convention to eliminate declarations of incapacity to be tried or held criminally responsible, and to eliminate the security measures based on those declarations (typically deprivation of liberty in a psychiatric institution). In a U.S. context, that corresponds to eliminating the insanity defense and incompetency to stand trial and eliminating the forensic psychiatric system.
(Readers of this blog will be aware that civil commitments and forced treatments in psychiatry are also required to be eliminated. For more information on the CRPD standard and related reflections, see the Guidelines on Article 14 and other resources at the end of this post.)
As the majority opinion written by Justice Elena Kagan explains, there are four types of insanity defense that U.S. courts have recognized. She frames them mostly in terms of “capacity,” though there are other ways they can be worded. Two come from the M’Naghten rule originating in England: cognitive incapacity (not understanding what you were doing) because of mental illness, and moral incapacity (being unable to distinguish right from wrong) because of mental illness. The two others are volitional capacity (being unable to control your actions) because of mental illness, and generally that the act was a “product” of mental illness.
I will discuss Kansas’ scheme based on the description given in the Supreme Court decision, as it is the approach of the majority that most interests me. A close reading of Kansas’ law is beyond the scope of this post.
The state of Kansas allows evidence of mental illness to disprove the existence of mens rea, the state of mind that has to be proven as an element of any crime. Justice Kagan gives the example of the crime of murder, which requires “intent to kill a human being.” If you shoot a person and kill them, but believed you were shooting a tree, you would be acquitted. Mens rea applies to everyone, and so the singling out of evidence related to how “mental illness” may affect this can be problematic, or it could be simply a signal that the general rule applies to the situation in which someone’s perceptions are altered because of distress or visions, as well as when it is simply a mistake or poor eyesight.
Framing the lack of mens rea in terms of capacity when it is related to unusual states of consciousness, as Justice Kagan does, both takes us into the realm of where and how CRPD applies, and violates the CRPD standard. It should not be evidence of lack of mens rea to have a psychiatrist testify that this person is diagnosed with schizophrenia and for that reason was incapable at the time of the crime of perceiving that the person was a person and not a tree. It should simply be a factual question of whether any person had the requisite mens rea, without singling out “mental illness” for differential treatment.
I think it makes sense to allow expert evidence to affirm that the person’s claim of how it happened to him or her is plausible because this is something people can experience, as it’s something people may not be familiar with or may have biases about. Could the experts be peer supporters/Hearing Voices Network facilitators? That would be great, but pragmatically in the current environment they will not be given enough credibility. It would be psychiatrists or psychologists who provide this testimony, which will make it difficult to keep bias and the capacity framework out.
In addition to the lack of mens rea, Kansas allows evidence of mental illness to mitigate the severity of punishment at the time of sentencing. All the other dimensions of the insanity defense that Justice Kagan describes as present in U.S. law can be brought in at that stage. Though they’re discussed in medical model/capacity language, Justice Kagan’s framework may be a useful way of thinking about different ways that distress/unusual states of consciousness can be relevant—not to categorically exclude a person from culpability but to contextualize how the crime came to happen and consider whether it’s less worthy of punishment for those reasons. That is an approach that the user/survivor/psychosocial disability movement has advocated, along with ensuring a non-discriminatory standard overall.
It’s interesting that “cognitive capacity” maps onto mens rea in Kansas’ scheme, which is a generally-applicable standard, while the others do not map onto any generally-applicable standards. Thus the Supreme Court’s majority and dissent characterize Kansas’ law differently; the majority say Kansas still has an insanity defense, while the dissent, and the news headlines, say it is “effectively abolished” there. It would be worth exploring from a non-discrimination perspective to what extent there are (or could be) comparable general categories of mitigation that correspond to those other dimensions, onto which psychosocial disability or distress/unusual states of consciousness map in a similar way. As a start, they can be reframed without using “capacity” or “mental illness” language as moral limitation, volitional limitation, and a general sense of “that’s not really what I’m like, I regret it and promise not to do it again.”
We have to look at the intersectionality with sex in this context, as well as the use of insanity defenses to avoid the death penalty. In the case at issue, the defendant had killed the woman who was divorcing him, her two daughters, and her grandmother while sparing his youngest child, a son. His lawyer brought forward “mental illness” evidence in all the ways Kansas allowed, but the jury found him guilty and imposed the death penalty. The appeal argued that Kansas was constitutionally obligated to allow the other M’Naghten prong of the insanity defense, i.e. not knowing right from wrong. The majority opinion points out that he had the opportunity to present such evidence at sentencing phase and didn’t succeed. The facts of this case should alert us to the problematic misuse of defenses and mitigation based on emotional distress, particularly in cases of femicide, which has been a long-standing concern of feminists in relation to criminal law and procedure.
The third way that Kansas takes account of mental illness in criminal trials is to allow the defendant to be placed in a psychiatric facility instead of prison if the judge considers that they “need mental health care.” This, of course, is contrary to the CRPD as it amounts to impairment-based detention that perpetuates discrimination based on a medical model of disability. Support and services should be provided to defendants while allowing them the same access and rights as others within detention settings; if the person prefers transfer to a psychiatric facility, this needs to be purely as a place to receive needed supports and services while under detention in the penal system and not as transfer to a regime of detention in which rights, privileges, and release are based on medical criteria.
The intellectual and scholarly debate between the majority and dissent shows how painfully distorted and destructive the stereotypes of madness are as they have passed down through the law. Characterizations of mad persons as similar to beasts, as mindless, as objects of pity and terror, still inform most legal frameworks and ground the approach of the dissenters, who argue that it is constitutionally required to retain “moral incapacity” as a defense to crimes by people who are mentally ill. It is rather shocking to contrast their vehemence in promoting such views with the capacity-based approach of the majority, which, although not completely free of discrimination, acknowledges the complexity of issues involved and the possibility for change in doctrine.
The dissenters, like many liberal and progressive defense lawyers, view the insanity defense as a way of avoiding what they see as the worst harms of the criminal justice system, such as the death penalty in this case. They may also see any defense as worth keeping, within a context of increasing repressiveness by and within the justice system. Yet psychiatry is not a panacea, and as we see, the failure to understand the psychiatric system as an auxiliary form of control, which is also increasingly repressive, leads progressives to endorse profound discrimination both conceptually and as a matter of result.
Some members of the majority may well see the insanity defense as simply an obstacle to convictions and imposition of the death penalty, as has been the motivation for states to enact abolition of the insanity defense as an expression of tough “law and order” politics. But there are also winds of change coming from tensions inherent in the insanity defense itself, and we should take this opportunity to develop some sensible policies, bringing in restorative/transformative justice, prison abolition, feminism/women’s human rights, and disability.
For more resources from a CRPD perspective, see:
Minkowitz, T, Rethinking criminal responsibility from a critical disability perspective: The abolition of insanity/incapacity acquittals and unfitness to plead, and beyond
Committee on the Rights of Persons with Disabilities, Guidelines on Article 14 (as Annex to bi-annual report of 2015)
OHCHR expert meeting on deprivation of liberty of persons with disabilities (download background note and concept paper from this page)
ERC Voices project, Workshop on Criminal Responsibility (disclaimer: not all views are in agreement, but worthwhile to share explorations taking CRPD into account)
Discpacidad y Justicia project of Documenta, a civil society organization in Mexico that provides “justice facilitators” to assist people with psychosocial and/or intellectual disabilities to participate in criminal proceedings and ensure that any accommodations are provided.
MIA readers may also wish to refer back to my earlier post in this space, Some Thoughts on the Insanity Defense.
Mad in America hosts blogs by a diverse group of writers. These posts are designed to serve as a public forum for a discussion—broadly speaking—of psychiatry and its treatments. The opinions expressed are the writers’ own.
you write regarding the appeal case
“The facts of this case should alert us to the problematic misuse of defenses and mitigation based on emotional distress”
I understand the differences in cases can lead the legal system in some very different directions but we had a case here where a man had poured petrol on his children during a domestic dispute and set fire to them. He later claimed in court that he had been ‘spiked’ with drugs by a person unknown (or at least that’s what I gathered from the newspapers) and that under normal conditions he would never have committed such an act. His defense was rejected and he went to prison.
However, what concerns me is that I found myself in a situation where I had been ‘spiked’ with benzodiazepines, and Police and a Community Nurse then conspired to conceal the evidence of that spiking from me using the false claim that I was already a “patient” and therefore had no rights. This of course could not be true as the police referred me to mental health based on a s. 195 Police Powers referral, and NOT a ‘home visit’ to a “patient” of the hospital concerned. The benzos were used to incapacitate me to plant a knife and some cannabis to enable lawful referral using those Police Powers, and combined with a deliberate acute stress reaction (roughing up by police) to have me talk when it was known I would maintain my right to silence. (I personally consider this to be torture and a conspiracy to stupefy and commit an indictable offence namely kidnapping, but police can’t find their copy of the Criminal Code so its not criminal they tell me, and in fact I can be arrested for having the documented proof of what I’m claiming). And with no avenue of complaint, and being denied access to legal representation …….
I have been thinking through this defendants claims and wonder about the State concealing ‘spikings’ from citizens and the legal consequences of that. Particularly in regards the use of ‘spikings’ before police interrogations which as my paper trail shows is being enabled by my State government, and then concealed via cover ups. For example the fraudulent set of documents sent to my legal representatives where the documents proving the spiking were removed and others inserted to give the appearance that I was a long term “patient” of the hospital that kidnapped me. Anyone looking was told that my claim that I was ‘spiked’ was evidence of my paranoid delusions (slander) and not as a result of the crimes of public officers. This particular Community Nurse simply setting up citizens to be referred by police to him, and then having them jump them with the false claim they are “mental patients with a weapon” and presenting them at his hospital as such (police referrals and not as “patients”. A classic three card monte. Police think patient, his colleagues think police referral. At stake your human rights, and no choice about the bet)
I’ve often thought through the different opinions that would come about if two lawyers were given the different sets of documents and placed in separate rooms. One sees the torture and kidnapping, the other nothing to see here lawful Police referral to Mental Health Services. Quite clever of them and of course then they started threatening any witnesses, and attempted to retrieve the documents I have and failed. Not that it matters when police are of the opinion that “it might be best I don’t know about that” before neglecting their duty to take evidence and make mental health referrals based on a person “hallucinating” regarding a ‘spiking’ they have seen the proof of, but would prefer they hadn’t. And of course a Doctor knowing of the offences committed by his ‘colleagues’ waiting at the other end of the chain to ‘treat’ the victim of the crimes.
Is mens rea absent if one is intoxicated by deception? And if so, should the State be allowed to conceal that evidence from defendants and the Courts to ensure convictions? Or is this as I have claimed compounding or concealing evidence of a criminal offence and an attempt to pervert the course of justice?
I’ll look through the resources you link to because whilst i’m not the sharpest tool in the shed, these matters interest me.
One point regarding the process of referral.
I had a knife and cannabis planted on me after I was incapacitated via the ‘spiking’, and after being roughed up by police and referred to the waiting Community Nurse for ‘assessment’. He placed me on a Form 1 Referral for an examination by a psychiatrist and I then became a “referred person” and significantly NOT a “patient”. One can only become a “patient” after being examined by a psychiatrist and the decision being taken that the referred person needs to be made an involuntary patient.
This was not done in my instance, and thus my status never went beyond referred person who maintains their human and civil rights other than the right to liberty until the examination has taken place. So I was released and never obtained the status of “patient” and yet Police maintain that status for me to this day out of a need to utter with false information and deny their use of known methods of torture. Because they did interrogate me in the driveway of my home, this was documented by the Community Nurse who I was referred to. It must be nice to be in such a position to tamper with evidence before presenting it to the courts, or ensure it never sees the light of day via the use of the medical system to do cover ups.
I was never a “patient” but this truth has not suited the authorities and so they have, as was explained to me by the Operations Manager who did the cover up, needed to fuking destroy me (and by proxy my family). My wife being threatened by the hospital administrators and making attempts to have me made into a “patient” post hoc to deny me any of my rights, and have my self appointed ‘carer’ make decisions in line with the requests of the hospital (eg get him to sign this document, get him to obtain a referral from a General Practitioner for us to be able to conspire against him with you lawfully) Trust in haste, regret at leisure is my warning to the public of Western Australia.
The ‘mental health system’ is being used for purposes other than what it was designed for. And it’s the enablers that concern me more than the vicious gaslighting criminals operating at the lower levels of this system of abuse. The similarities to the child raping priests and their covering up of their ‘character flaws’ chilling. And it is precisely the covering up that demonstrates the mens rea concerning the offences as far as i’m concerned.
Did you know that offences had occurred Minister? And what was your response to that knowledge, given the provisions under s.28 of the Corruption and Crimes Commission Act of mandatory reporting, as soon as you became aware of suspected offences carrying a prison term of more than 2 years? (What? The Operations Manger told you they got the documents back? She was wrong, or should I say she has ‘misrepresented’ the information she provided you with. Much like the rewritten burden of proof form the Chief Psychiatrist from “suspect on reasonable grounds” to “suspect on grounds we believe to be reasonable” is not, according to you a ‘misrepresentation’ and does not open the path for arbitrary detentions for mental health workers. I’d have expected better.)
Certainly not reported, see the Parliamentary Hansards.
Still, who is going to listen to a person who has been slandered “mental patient” against a Cabinet Minister? Better to ‘dispose’ of the evidence when your above the law.
A crime committed in a state of acute psychosis is not a reason to treat such people for chronic psychosis for life. Moreover, most of these crimes are committed in a state of psychosis, which lasts only about a week.
What makes attributing chronic disease to such people just ridiculous.
And finally the longer the duration of psychosis, the less likely it is to cause harm.
Interesting documentary on the problems associated with ‘acute psychosis’ and crimes.
Madness in the Fast Lane.
Suffering from “induced delusional disorder” (Folie au Deux), or “Acute Polymorphic Psychotic Disorder” (Bouffée délirante)? No longer considered ‘mad’ how can the court sentence this person?
The insanity defense should absolutely go. John Brown refused to take advantage of it.
On the other hand the concept of extenuating circumstances is valid, including one’s state of mind in some circumstances.
This was a difficult read for me, with all its legal parlance.
What is obvious to me from this discussion is not only how confused our legal and justice systems have always been, but also how confused most of us remain as individuals about these issues.
Most people still agree that a person “guilty” of a “crime” should be “punished.” This is actually the social basis, I think, for the continued acceptance of psychiatric practices, the “crime” in that case being “mentally ill.” The punishment is delivered in the guise of “treatment,” but so little concern is placed on whether people (patients) actually get well, that it seems most find the whole process acceptable anyway, just as it is with “criminals,” even though punishment does not stop crime.
It is interesting to me that my studies of these issues have led towards the inescapable conclusion that crime and lack of mental well-being are closely related phenomena, particularly if we limit our idea of “crime” to the more destructive behaviors.
Neither of these phenomena actually solve using punishment as the “treatment.” But punishment still garners enormous social support for use in all sorts of situations, including in schools (via grades) and in business (via competition). There is something about punishment that lots of people like (until, maybe, they have to experience it themselves).
Thus I see a broader social issue clouding the whole arena of how communities and governments should respond when an individual dramatizes “bad behavior.” Most still see “punishment” as the only answer, and do not understand the causes of these behaviors well enough to realize that a more effective response is possible.
Besides limiting crime to more destructive behaviors society only publicizes “Mental illness” linked to the most destructive behaviors.
Psychiatry pretends to be merciful in how it punishes or “helps” the “SMI” criminal as a means to an end. That end? Legal impunity to inflict life long punishment on the innocent by accusing them of the potential to commit crimes.
Psychiatry is a legal force. Their treatments are cruel and unusual punishments inflicted on those guilty of having been deemed unfit to survive.
There’s an article from a few months back about a prominent shrink requesting special police who will answer to him alone. Pretty chilling.