Thread Rating:
  • 0 Vote(s) - 0 Average
  • 1
  • 2
  • 3
  • 4
  • 5

What can be done to rehabilitate the insanity defence? (alternatives to tradition)

#1
C C Offline
https://aeon.co/essays/what-can-be-done-...ty-defence

EXCERPTS (Susan Vinocour): . . . Western societies have recognised that some people shouldn’t be held liable for their acts because they are non compos mentis – not in their right mind. This exemption from criminal sanctions was seen as an act of mercy required by basic morality: it was immoral to exact vengeance against a person who didn’t know that his behaviour was wrong. [...] As a former forensic psychologist and prosecuting attorney in New York, I’ve had a front-row seat to the courts’ struggles to define the parameters of this defence of insanity. Until the 20th century, little was known about mental illness. Judging whether a person was deranged – seriously mentally ill and irrational – was seen as a matter for common knowledge.

[...] The courts tried to codify and standardise the construct of criminal insanity. ... Courts continued to waiver between holding any person guilty who ‘knew’ what he was doing, and holding to account only those who were morally aware of the wrongness of their action. The problem with this formula is that we tend to measure the wickedness of an actor by the degree of outrage we feel at the act. So, though the original spirit and intent of the insanity defence – to not punish those who, through no fault of their own, were driven by mental illness to commit illegal and immoral acts – remained clear, its application was inconsistent.

[...] The courts have been relatively unresponsive to medical expertise, even as the fields of psychiatry and psychology have added to our understanding of mental illness. [...] The current legal definition of insanity has no psychiatric correlate; it is a pure creature of law, owing nothing to psychiatry and the sciences of brain and behaviour. ... The lack of a psychiatric correlate makes it look like psychiatrists and psychologists are unreliable or that mental illness is purely subjective; the fact is, mental health experts often can’t agree on whether a defendant fits into the legal definition of insanity, even though they agree about the defendant’s diagnosis and degree of psychiatric impairment.

As the forensic psychiatrist Thomas Gutheil at Harvard Medical School said in 1998: ‘Psychiatric testimony is about meeting the legal criteria for an insanity-related defence, not about mental illness.’ In ‘On Responsibility’ (1996), the federal judge Richard Lowell Nygaard wrote: "With contemporary psychiatric and psychological data, the legitimate experts, who must testify about mental conditions, are unable to make accurate and scientific determinations fit into the rigid legal definitions the law imposes … Trials in which a jury must decide upon the accused’s guilt based upon the contradictory testimony of experts result in ‘battles of experts’ that virtually assure arbitrary outcomes."

When testifying as a forensic psychologist, I’ve often felt torn between testimony that is legally right and testimony that feels morally right. But perhaps it doesn’t matter: Norman Finkel’s observations on ‘Insanity Defenses’ (1985) remain true today: "Jurors may often disregard or reconstrue both the expert testimony and the instructions to the jury, choosing instead to follow their own, intuitive understanding or common sense notion of what is and is not insane."

The problem with this formula is that we tend to measure the wickedness of an actor by our degree of outrage over the act. When the act is horrific, we impute evil to the actor, without much consideration for his mental state. This allows room for bias, moral condemnation, and the impulse for retribution to enter the process. [...] If jurors don’t identify with the defendant, perhaps because of ethnic, racial, gender or demographic (status) differences, if they fear the defendant (perhaps owing to the same biases), and if the criminal act is one that particularly shocks their conscience, acquittal is unlikely, no matter how mentally ill, delusional or irrational the defendant was at the time of commission of the crime.

I believe this accounts in part for defence attorneys’ hesitation to raise an insanity defence. [...] Studies have consistently found racial and economic disparities in the US criminal justice system, and the insanity defence is not immune from them. ... Here we run into the other factors that account for black people in the US being disproportionally arrested, charged, convicted and harshly sentenced, compared with white people. ... it’s quicker, and often more certain, to use psychiatric evidence to plea-bargain with the prosecutor before trial, in hopes of a lesser sentence. Undoubtedly, many defendants who meet the legal definition of insanity never go to trial or raise this defence; rather than risk such a low-odds defence to a serious charge, they plead guilty to some reduced charge – often one that exposes a defendant to a possible life sentence, or even the death penalty.

But how comfortable should we be when a person who is not morally culpable due to mental illness pleads guilty, instead of being found NGRI? The conviction subjects defendants to moral condemnation for acts of which they had no rational comprehension. Secondly, an NGRI acquittal, unlike a prison sentence, is supposed to provide ‘such individual treatment as will give each of them a realistic opportunity to be cured or to improve his or her mental condition’ [...] Thirdly, a person confined pursuant to an NGRI finding is supposed to be freed when no longer mentally ill and a danger to others; furthermore, it is unconstitutional for a state to confine such an individual for longer than if he had been found guilty of the crime. Periods of confinement after a finding of NGRI should therefore generally be shorter than the sentence for conviction of a crime.

What can be done to rehabilitate the insanity defence? There are the obvious process fixes: all defendants should have equal access to legitimate defences, and this means providing adequate funding for public defender services, smaller caseloads, and more money for investigation and mental health evaluations. There should be clear competency standards for attorneys raising an insanity defence, just as there are for attorneys in cases involving the death penalty. We should establish higher standards for those who perform forensic psychiatric evaluations. Structurally, we should have the issue of insanity decided by a panel of three judges rather than by a jury. This would likely reduce the effects of both bias and emotion, and temper the desire for retribution regardless of mental state.

But the most profound change must be in the definition of insanity itself. It must be brought into conformance with psychiatric realities, and back to its moral and ethical roots. Those whose criminal act is the product of an irrational delusion or compulsion brought about by mental illness, rather than by bad character or the desire for personal gain, should not be the object of conviction and retribution. (MORE - details)
Reply


Possibly Related Threads…
Thread Author Replies Views Last Post
  Why are farmers making gardens that look like crop circles? (non-ET alternatives) C C 0 66 Aug 23, 2021 06:03 PM
Last Post: C C
  Cosmological theories in the distant future may be incorrect (alien alternatives) C C 2 600 May 23, 2018 05:06 PM
Last Post: C C
  Ten Alternatives To Evolution C C 1 662 Nov 5, 2015 06:11 PM
Last Post: Yazata
  Alternatives to the Big Bang theory C C 3 1,267 Oct 24, 2015 09:40 PM
Last Post: Magical Realist



Users browsing this thread: 1 Guest(s)