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September 4, 2006

Mental Illness, Mental Abnormality, and Insanity

The law of behavioral responsibility, on both the criminal and civil sides of the docket, is in a state of moral and empiricial disrepair.  There are a host of different theories that States use to determine when someone should be "excused" from conduct that otherwise would be criminal.  (Of course, the very low number of defendants who successfully claim "insanity" are not "let go," but often spend the remainder of their days in mental hospitals.)  In the recent case of Clark v. Arizona, the Supreme Court usefully summarized the many different theories employed today:

The main variants are the cognitive incapacity, the moral incapacity, the volitional incapacity, and the product-of-mental-illness tests.  The first two emanate from the alternatives stated in the M'Naghten rule. The volitional incapacity or irresistible-impulse test, which surfaced over two centuries ago (first in England,  then in this country), asks whether a person was so lacking in volition due to a mental defect or illness that he could not have controlled his actions. And the product-of-mental-illness test was used as early as 1870, and simply asks whether a person's action was a product of a mental disease or defect.  Seventeen States and the Federal Government have adopted a recognizable version of the M'Naghten test with both its cognitive incapacity and moral incapacity components.  One State [Alaska] has adopted only M'Naghten's cognitive incapacity test, and 10 (including Arizona) have adopted the moral incapacity test alone.  Fourteen jurisdictions, inspired by the Model Penal Code, have in place an amalgam of the volitional incapacity test and some variant of the moral incapacity test, satisfaction of either (generally by showing a defendant's substantial lack of capacity) being enough to excuse.  Three States combine a full M'Naghten test with a volitional incapacity formula.  And New Hampshire alone stands by the product-of-mental-illness test.  The alternatives are multiplied further by variations in the prescribed insanity verdict: a significant number of these jurisdictions supplement the traditional "not guilty by reason of insanity" verdict with an alternative of "guilty but mentally ill."   Finally, four States have no affirmative insanity defense, though one provides for a "guilty and mentally ill" verdict.  These four, like a number of others that recognize an affirmative insanity defense, allow consideration of evidence of mental illness directly on the element of mens rea defining the offense.

In Clark itself, the Court held that the Arizona rule of  "moral incapacity," was not unconstitutional.  Under this rule, an Arizona defendant can claim insanity only if a mental disease or defect leaves him unable to understand that his action was wrong.  Moreover, the Clark Court also held that the Arizona rule that evidence of mental incapacity was admissible only to show insanity, and could not be admitted to negate mens rea, did not violate the Constitution.  (For an excellent discussion of this aspect of the Clark ruling, see Sherry Colb's analysis on Findlaw.com -- see here.

The Clark Court held that this patchwork of approaches to criminal responsibility was essentially a product of our federalist system, which defers greatly to the judgment of the States.  But, at some point, the Constitution should require a certain basic minimum regarding what states of mind are necessary to assume responsibility over behavior.  Professor Colb, for instance, argues in the piece cited above that mental states that negate mens rea, at the least, should qualify under basic standards of due process.  Perhaps, more importantly, the Constitution should contain some basic conception or philosophy of human behavior.  After all, much of the basic rationale for criminal punishment follows from the view that people have free will and thus are responsible for the consequences of their behavior (at least, for those results that were intended, known, or foreseeable).

But this raises an even deeper contradiction in the Supreme Court's, and thus the Constitution's, views of behavioral responsibility.  On the civil side of the docket, the Supreme Court held in a couple of cases that sexual aggressors can be committed indefinitely if a State demonstrates that they are mentally abnormal and likely to be violent.  In the cases of Kansas v. Hendricks and Kansas v. Crane, the Court developed a definition of mental abnormality that is inconsistent with much of the jurisprudence that it has accepted on the criminal side.  According to the Court, the reason why a "mentally abnormal" person can be civilly committed is that the twin pillars of the criminal system -- retribution and deterrence -- are not implicated when someone is mentally abnormal.  The Court defined "mental abnormality" as "substantial lack of volitional control."  The reasoning is straightforward:  if someone cannot control their behavior, then they should not be punished for their behavior (i.e., retribution is not implicated as a goal), and they will not be deterred from acting criminally.  Yet, as the above discussion of insanity makes clear, this volitional control argument is employed by very few states in criminal cases and is generally thought to be unworkable in practice.  How, after all, does one distinguish between behavior that someone cannot control and behavior not controlled?

In any case, what is clear is that the Supreme Court has accepted different versions of human agency on the criminal and civil sides of their docket.  Someone who lacks volitional control, therefore, can constitutionally be held responsible for his conduct and be put in prison.  When that person emerges from prison, he can then be incarcerated in a mental hospital idefinitely, because he lacks volitional control.  I suppose that given the stark political realities of the situation, this outcome should not be so surprising.  The defendant is locked up on both sides of the equation.  But the Constitution is not supposed to trade in stark political realities, and should have a more sophisticated understanding, or at least a more consistent definition, of human agency.
-- DLF

September 4, 2006 | Permalink


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