Tuesday, February 10, 2015

Is the insanity defence valid?

Peter Kinderman's latest post on the Salomons blog questions whether we need the idea of mental illness in criminal justice. He's not saying that the criminal justice system shouldn't take account of people's personal and social circumstances. But he is worried that courts may think that mental illness makes people commit crimes. In fact, as I've pointed out before in a previous post, he doesn't think there's a place for psychiatric diagnosis.

It does worry me that the critical mental health movement gets caught up in an apparent split about the validity of the insanity defence. Thomas Szasz, of course, famously argued against the insanity defence, as he did not believe in the notion of mental illness. Essentially, he thought there is no need for any specific mental health legislation (see eg. previous post). Whilst I agree that mental health services should not insist that people accept that their problems are symptoms of an underlying illness, Peter seems to be verging, at least, on rejecting the notion of mental illness altogether. We might benefit from more clarity about whether he thinks there should be a Mental Health Act.

The point is that what is designated as mental illness may lead to mental incapacity. People who are psychotic may not make the  most rational of decisions because of their mental illness. Crimes, including homicide, may be committed for psychotic reasons. It is generally accepted that it is wrong to punish a person deprived, even if only temporarily, of the capacity to form a necessary mental intent that the definition of crime requires. People should be presumed to have a sufficient degree of reason to be responsible for their crimes unless the contrary can be proved. But, in some cases people do appear to have acted irrationally because of mental disorder in committing their crime.

The legal test of criminal insanity in England was developed in the trial of Daniel McNaughton. On the 20th January 1843, Daniel McNaughton fired a pistol at point blank range into the back of Edward Drummond, the private secretary of the Prime Minister, Robert Peel. McNaughton may well have  thought he was shooting the prime minister. In the magistrates court the next day he said, "The Tories in my native city have compelled me to do this. They follow, persecute me wherever I go, and have entirely destroyed my peace of mind." Although the court did not examine whether there was any element of truth to his claim and it was not explained why he had a bank receipt for a large sum of money on him when arrested, both the prosecution and defence agreed he suffered from delusions of persecution. No medical evidence was offered to say he was not deluded and the jury returned a verdict of not guilty by reason of insanity. McNaughton was admitted to Bethlem hospital and transferred to Broadmoor when it opened, where he died in 1865. His diminished responsibility for the homicide was accepted on the basis of his mental illness.

In practice, courts may well be sceptical of psychiatrists' assessment of mental illness. For example, see my post about the case of Anders Breivik. I do understand what Peter means when he asks whether we really need the notion of mental illness to determine a Court adjudication. He seems happier with the notion of psychosis, so maybe we should use that term. Whatever we call it, mental dysfunction can diminish responsibility for a crime. Personally, I am happy to see such psychotic dysfunction as illness, in the same way as bodily dysfunction is illness. The real problem is seeing mental illness as brain disease (e.g. see another previous post).

9 comments:

Chrys Muirhead said...

I think the crux of the matter is more about mental capacity than mental illness. Whether a person has the capacity to make decisions rationally and sensibly. I don't like the term "psychosis" as it's such a broad brush affair. Labelled with psychosis equates to a mental disorder, in my experience, because I resisted swallowing psychiatric drugs and so was forced to conform. Injected or made to ingest them.

I've never believed in "mental illness" because of seeing what happened to my mother from the 1960's until her death in 1998. She was given a schizophrenia "diagnosis" because she experienced nervous breakdowns or altered mind states due to stress, although she didn't "hear voices". She told psychiatrists that she didn't hear voices but they didn't believe her. Gave her the label anyway.

Therefore in 1970, aged 17, when I first met up with psychiatrists, in Murray Royal Hospital, Perth, to discuss my mother's "illness" I remember being very skeptical, not believing a word of it. Because I'd seen my mother in the locked ward, how she and other patients were treated. It did not make sense. The psychiatrists said I had an old head on young shoulders. Now the opposite is true: young head on old shoulders.

I have experienced three episodes of psychoses, two of them linked to the pain of induced childbirth and the third at the menopause. I had capacity and insight but I wasn't sleeping well, had altered mind states. However I knew that I didn't want the antipsychotics. They took away my agency, left me vulnerable to people and situations in the psych ward. Very scary. So I resisted the drugs and was forced. Now the mental health act is more used to enforce compulsory treatment. The safeguards in my experience have not been safe.

I don't want clinical psychology taking over from psychiatry. I think they would do a worse job of it, from what I've seen. I want to see psychiatry shifting their practice. Bringing in more therapeutic choices. Not just drugs or nothing. In Fife my son's psychiatrist worked with him, and I giving peer support, in the tapering of Haloperidol in 2012. My son got off the 25mgs within 7 months, tapering by small amounts every 3 weeks, from the 3rd month after he was forcibly injected with it, in the IPCU.

I managed to taper and get off psych drugs 3 times, after episodes of psychoses, in 1978, 1984 and 2002. Chlorpromazine in the former years. Latterly Risperidone, Venlafaxine and Lithium. Harder to taper when polypharmacy, in my experience. The point being that I was able to taper and recover. In Scotland. Psychiatry did not make me conform when I was in the community and demonstrating capacity. Therefore I would like to see the determination of capacity in psychiatric settings to be a more fine tuned affair.

This will require all disciplines in psychiatric settings to be singing from the same hymn sheet. I have had more issues with psychiatric nurses than psychiatrists. Clinical psychology I have not found to be person-centred where I live, in Fife, Scotland. They are like young pretenders to the throne. I have to be honest. I prefer to work with psychiatrists.

Allan Seltzer said...

I think that a bifurcated trial is the best way to deal with mentally ill offenders. This removes the psychiatrist from the adversarial nature of the legal process and which makes the uncertainties of diagnosis even more obvious. It also would eliminate the problem of "hired guns" pitying defence against prosecution. This does nothing for professional credibility. In a split trial the issue of culpability is addressed first. ie did the person commit the crime. The psychiatrists then only becomes involved with sentencing. A schizophrenic would be handled differently from a psychopath of course.

Anonymous said...

"The point is that what is designated as mental illness may lead to mental incapacity."

Absolute crap. Incapacity means incapable, and if you were honest with yourself, your ONLY evidence to go on is thus far demonstrated behavior.

I have not become a millionaire yet. That does not mean I am incapable of becoming so. Before I quit smoking, I had not yet demonstrated that I could do so, once I did, my capacity to do so was proven.

There were times when I believed I was Jesus Christ. The fact that I no longer do, proves I had the capacity to stop believing that.

If some quack, had labeled/libeled me as "incapable", or not having the "capacity" to stop believing that, during the time I was still believing this, it would be nothing but an unproven claim.

Paraplegics are verifiably suffering from walking incapacity.

Just because someone yesterday, today the day they commit a crime, and tomorrow believes something you find bizarre, doesn't mean they are like an Alzheimer's patient.

"People who are psychotic may not make the most rational of decisions because of their mental illness."

I don't see any reason to accept the premise that just because your mob invented a word, "psychotic", that this is some absolute fact about some "state" they are said to be in.

"may not make the most rational of decisions because of their mental illness."

This is circular logic at its worst. Why are they not making decisions you consider rational? Because of their alleged "mental illness". Why do you say they have a "mental illness"? Because the decisions you don't find to be rational. The only evidence for the "mental illness" is the very behavior calling the behavior an illness purports to explain.

And what is "rational"? Is getting a tattoo on your face rational? Is wife swapping rational? Is voting Tory rational? Is invading Iraq rational? Is getting silicone bags implanted in your breasts rational? Is working yourself to death and dying 3 years into a retirement you looked forward to all your life rational? Are the billions of people that believe in a deity making a rational decision? Is slicing off 40% of the penile skin of newborn baby boys rational? Is being embarrassed by your bad teeth rational? Is holding a rabbit's foot at the slot machine in Las Vegas rational? Is buying a lottery ticket rational? Is the cultural practice of men wearing a piece of fabric tied around their neck rational? Is caging millions of people for doing drugs rational? Is a shotgun wedding rational? Is giving the police tasers rational?

Anonymous said...

"Crimes, including homicide, may be committed for psychotic reasons."

I've read tens of thousands of sources and lived through the extremes of mind that get called "psychosis", and the fact that this is the first time I've read the phrase "psychotic reasons" doesn't bode well. What is a "psychotic reason"? A reason you find bizarre and alien?

People believe things. They act on these beliefs. Beliefs don't come handed down from the fully formed homo sapiens body into the world as either "psychotic beliefs" or "not psychotic beliefs".

There are people in prison for the rest of their lives for bombing abortion clinics. They had beliefs, that you and the majority of people wouldn't call rational.

There are people living in resplendent wealth on Texas ranches guarded for life by the Secret Service who have made "rational" "non psychotic" decisions to cause the deaths of hundreds of thousands of Iraqis.

There are countless people sitting in a prison cell because of a non-deliberated snap decision to lash out and stab their wives to death because they believe they were cheating on them. Some of them did so without any evidence that any infidelity was taking place. They must live with that mistake for the rest of their lives.

If I harmed someone when I believed I was Jesus Christ, which I didn't, but if I did, that was still me committing those acts, those were still my beliefs I would have acted on. I don't want an apartheid justice system where I am dehumanized and considered an "ill" human and denied my right to equal treatment under the law just as if you had bombed an abortion clinic based on your "irrational" beliefs (if you were that way inclined).

A judge, or a jury, as Thomas Szasz always said, should be able to look at all the circumstances and show mercy. I think that having an overall legal framework of "the people various quacks say are not responsible are not responsible" is chaos.


"It is generally accepted that it is wrong to punish a person deprived, even if only temporarily, of the capacity to form a necessary mental intent that the definition of crime requires."

Don't pretend for a SECOND that the people found not guilty by virtue of unproven psychiatric brain disease, are not punished ten times harder than people who get off with mere prison. Being sentenced to INDEFINITE forced drugging, having your brain raped and prodded daily, by psychiatric quacks, IN ADDITION TO being locked in a building, is far more punishing then being merely locked in a building called a prison.

Anonymous said...

Like someone who has been to 70 weddings but never been married, I wouldn't expect you understand states of mind you've never experienced. Yes, decision making can be very intense, rapid, and cascading while in such a state, but if someone punches you in the face because he believes you're part of the MI-5 plot, that is still someone, a real, actual, adult citizen with rights and responsibilities in a society, acting on their beliefs. They can come to regret their behavior and be embarrassed by it later, and so can the abortion clinic bomber, or the reformed Jihadi. Or the guy who was wrong about his wife cheating on him. Being wrong about something but acting on it, especially if acting on it in a dangerous way, still sends society the message you're a dangerous person. They are going to want to lock you up. Trust is lost. This is a tragedy, yes. But you seriously err, if you think for a second that rather than being sentenced to a finite sentence and being given time to reflect on your actions, and pay your debt to society, people would be better off being handed over to your psychiatry quack prison instead, where you can fill their head with all sorts of disempowering myths about how they only thought what they thought or believed what they believed "because of their mental illness". Give me liberty or give me death, give me prison over being handed over to the mental healthists, or give me death.

"People should be presumed to have a sufficient degree of reason to be responsible for their crimes unless the contrary can be proved."

I don't think you can prove it at all. As Szasz said, incompetent people are incapable of committing complicated crimes. Picture the staggering difference in complexity, between an elderly dementia patient lashing out at a nurse with a flailing arm, and a young, fit, healthy, angry, hateful, man, training with machine guns for months and picking the perfect time to publicly gun down as many people as possible. The sheer amount of hiding from the police, and coordination that even goes in to the many cases of women hiding dead babies, speaks to the cognizance and competence of criminals. If you can pull off a complicated crime, you are responsible, even if you, find the reasons people give for their actions to be "psychotic reasons".

Anonymous said...

"But, in some cases people do appear to have acted irrationally because of mental disorder in committing their crime."

Key word is APPEAR, and I'd add this "appears to be the case to you", you, trained all your life to see "mental illness" at the slightest whiff of seemingly isolated irrationality in individuals, groups, whole societies, get a pass from your gaze though, for no good reason that I can see. And again, the above quote is another one of psychiatry's circular logic fests.

"Why'd she act irrationally?"
"Because of her mental disorder"
"Why do you say she has a mental disorder?"
"Because she acted irrationally"

The explanatory value of such a statement is nil, except in cloud psychiatry land, where inventing an "illness" conception of the alien extremes of life has been acting as a permanent tumor in psychiatrists' ability to reason for hundreds of years.

Maybe it is psychiatrists, that have a "mental incapacity" to see beyond their own quackery.


"Whilst I agree that mental health services should not insist that people accept that their problems are symptoms of an underlying illness,"

Only when you come to understand why that paragraph reads to me exactly like the following, will you understand...

My translation....

Whilst I agree that Iran's religious police should not insist that people accept that their problems are the result of being haram, they should accept that their beliefs are haram, and we still need a religious police Act

Iran's religious police, and Britain's psychiatrists literally live in a completely different version of reality to me, one where it is taken as a given that "haram" or "psychosis" are things they can be the arbiters of, and quite frankly Mr. Double, it is the most tyrannical, oppressive, violent, scary, sickening, absurd conceptual system I have ever had the displeasure of becoming acquainted with, and the notion, the reality, that I'm subject to laws written by psychiatrists based on psychiatry's ideology, is utterly obscene to me, that it is something I will go to my grave never accepting and never forgiving.

Anonymous said...

The very fact that you can with a straight face say that there is a "service" that reserves the right to smash its way into my life, or divert me against my will from the criminal justice system's checks and balances, built up over centuries since the Magna Carta, in favor of some 5th rate pseudoscience having the power to define my "capacity" or otherwise, is quite simply utterly on par with what I imagine it is like living in fear of being rounded up in Saudi Arabia.

The fact that someone like you, someone who stumbles and falls over his own slipshod logic "irrational because of mental illness, mentally ill because of irrationality", the fact that someone like you has the power to sign a piece of paper and violently flood my bloodstream with drugs, simply will not do.

I truly wish, that your religion, psychiatry, would be separated from state, separation of all churches and state, because you people truly have no conception of how utterly life destroying one of your forced conversions can be.

Which brings us full circle, to who should be punished and when. Psychiatrists don't intend, don't have the mens rea, to decimate innocent lives, but they do, nonetheless. Their absurd hubris, and global fanaticism and "illness" labeling and "researching" causes immense harm, but they are not held accountable.

When a war criminal, finds himself in the Hague, or at Nuremberg, and still, throughout his imprisonment, doesn't "agree" that what he did was wrong, we still hold him accountable.

Psychiatry has killed many people I feel a kinship with through shared experience, it has destroyed many innocent lives that I have witnessed, it nearly destroyed mine.

Will the fact that psychiatrists are acting on false beliefs, and the fact they only wanted to help, wash the blood off their hands? I don't think so.

Ask not is the insanity defense valid, ask is the "we believed these people were ill" defense valid.

I remember every thought and decision I made during the times you would have slapped me with the "psychosis" label. Someone claiming that I have "incapacity" or had "incapacity" simply on the basis of how "strange and irrational it looked to the outside observer" is offensive, dehumanizing, and the true tragedy of it all is, you can't even see how in an effort to build a humanizing, compassionate thing into the law, the very fact you people are willing to violently break the will of the person you claim as the target of your compassion, basically means your profession crosses human rights lines that utterly, utterly destroy any good intentions you may have had. It's the mark of the psychiatric fanatic, and I've pondered this for years and I've come to the following conclusion...

Anybody that would stab a syringe into the body of someone who is locking eyes with your soul and pleading for their very lives not to be injected, is not fit to be in a courtroom in any other place than the dock.

Psychiatry, with its centuries of violent oppression against its "patients", posing as all concerned when someone who stabs someone commits a violent crime.

The very psychiatrists that give "expert" testimony in a stabbing case, are themselves, people who wield sharp steel in aggression.

A psychiatrist testifying in a kidnapping case? is someone who has spent a career locking innocent people in tiny rooms.

Whether it is the abortion clinic bomber, the Jihadi beheader, the troubled mother who drowns her kids in the bath because of a belief it will please God or Satan, or the psychiatrist that sections and forcibly drugs, rapes the brain, of someone for believing something strange, people in all walks of life, across the whole of humanity, show us man's inhumanity to man.

Andrew Levitin said...

Reasonable Accommodation: My blog is ibelieveintheada2013.blogspot.com
My name is Andrew M Levitin. I am not a danger to myself or anyone and my disabilities are blatantly simple. One key disability is "Vulgar Language".

Below is one of my posts from my blog. JIC it does not geth into the space allotted I included the URL for it also:
https://plus.google.com/104613038171422492333/posts/3zBUcXWZbuj

Civil Rights Violations - Sarasota Herald Tribune - Sarasota Florida news from the Herald-Tribune and SNN.

Reasonable Accommodation:

I am required by law to say that term before even saying Hello and it is a royal pain to me to state it as it seems that many people that are not necessarily ignorant not stupid but unaware that the only way they can legally respond while living in the USA is “What is your Reasonable Accommodation” which in essence when those people that respond to me do not state it are violating my Civil Rights as they are not accepting what Title 111 of the ADA is.


To anybody that is reading this entry as a stand alone, I will explain when I get verbally antagonized I per my US Social Security Disability have as my classification Tourettes and Aspergers Syndrome plus Verbal Intermittent Explosive Disorder.

Full Definition of INTERMITTENT

: coming and going at intervals : not continuous ; also : occasional

— in·ter·mit·tent·ly adverb


Now if any of you have read any or all of my entries on my blog you have seen a repeating theme which is yes I am disabled, yes I am off, yes people from all walks of life retaliate by using Law Enforcement Officers (LEO) to cry wolf when there isn't one or in the case of this specific Entry Use Sarasota Herald Tribune - Sarasota Florida news from the Herald-Tribune and SNN. Most people including you whomever is reading this think you have an inalienable right to cry wolf and let the LEO's sort it out however as long as the ADA exists, your rights are nonexistent as long as I state the term of REASONABLE ACCOMMODATION prior to even saying Hello.

Andrew Levitin said...

JIC it does not geth should have been get( didn't catch it in time)