Forensic Psychology Reconsidered: A Critique of Mental Illness and the Courts 9780323263122

Forensic psychology is where psychology meets the criminal justice system. An understanding of the intersection of crimi

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Forensic Psychology Reconsidered: A Critique of Mental Illness and the Courts
 9780323263122

Table of contents :
Cover......Page 1
Title Page......Page 4
Copyright Page......Page 5
Table of Contents......Page 6
Preface......Page 8
1. Introduction to Forensic Psychology......Page 12
2. The Social Construction of Mental Illness and the Law......Page 32
3. From the Asylum to the Penitentiary: A Historical Perspective......Page 54
4. Competency to Stand Trial......Page 78
5. Other Types of Legal Competencies......Page 98
6. Criminal Responsibility: State of Mind at the Time of the Crime and the Insanity Defense......Page 120
7. Coerced Treatment, Medication, and Mental Health Courts......Page 146
8. Drug Courts......Page 168
9. Eyewitness Memory......Page 192
10. Closing Reflections......Page 214
Index......Page 222

Citation preview

Forensic Psychology Reconsidered

Forensic psychology is where psychology meets the criminal justice system. An understanding of the intersection of criminal law and psychological issues relating to criminal responsibility is critical for criminal justice students. This accessible text focuses on the criminal law implications of forensic psychology as it relates to topics such as competency to stand trial, state of mind at the time of the crime, suicide by cop, and involuntary psychiatric medication administered in custody. Unlike more traditional texts on this topic, which are primarily concerned with the clinical practice of forensic psychology, this book focuses on critical thinking as it relates to these topics. Each chapter presents a critical analysis of the topic under study, going beyond merely identifying the legal parameters of criminal responsibility to explore the ethical, philosophical, and theoretical foundations of that concept. David Polizzi, PhD, is Associate Professor in the Department of Criminology & Criminal Justice at Indiana State University and a licensed clinical addiction counselor. He is the coeditor of Transforming Corrections: Humanistic Approaches to Corrections and Offender Treatment and Surviving your Clinical Placement: Reflections, Suggestions and Unsolicited Advice, and the editor of the Journal of Theoretical and Philosophical Criminology, an e-publication focused on alternative theoretical and methodological perspectives related to criminology, criminal justice, and offender treatment. He has also published numerous book chapters and journal articles related to the phenomenology of strain, deviance, restorative justice, desistance, suicide by cop, addiction, and the phenomenology of the “criminal body,” as well as a variety of articles related to the theory and practice of offender treatment. Prior to joining the faculty at Indiana State University, he worked as a forensic psychotherapist with the Pennsylvania Department of Corrections, and in a variety of community mental health settings. He has worked clinically with offender populations for nearly twenty years and has used that experience in his integration of theory and practice both in his published writing as well as his work in the classroom. Matthew R. Draper, PhD, is Associate Professor of Behavioral Sciences at Utah Valley University. Before working at Utah Valley, he served as the Director of Clinical Training and the Mental Health Counseling Program Director at Indiana State University. His teaching specialization is in the areas of psychotherapy theory and practice, the history of psychotherapy, and philosophy of the behavioral sciences. Draper’s research and scholarship focuses on the philosophy and practice of psychotherapy, particularly the moral philosophy of forensic psychotherapy, from a broadly hermeneutic and dialogic frame. He also examines how these ideas relate to working with marginalized and underserved groups like the currently and formerly incarcerated.

The authors’ focus on social constructions of mental illness, of the defendant with mental illness, of reality sets this book apart from others in the field. It makes the reader think carefully about the complexity of the questions it addresses—questions that go to the heart of the judicial system, its relationship to psychology, and how we treat the most difficult cases that we face. I hope that this book is read by expert witnesses, by defense counsel, by prosecutors, and perhaps most important of all, by judges. It is a major contribution to the literature. —Professor Emeritus Michael L. Perlin, New York Law School Forensic Psychology Reconsidered offers a refreshing perspective on the place of psychology within the justice system. Polizzi and Draper remind us that social constructions of mental illness—including the history of stigma, institutionalization, and criminalization—are relevant to how the mentally ill adjudicated self-navigates the legal landscape (e.g., criminal competency, insanity defense) and confronts the treatment experience (e.g., drug courts, forced medication). This is a must read for scholars, practitioners, and students! —Bruce Arrigo, University of North Carolina, Charlotte What Polizzi and Draper offer in this book is an authoritative and comprehensive analysis of the ways in which mental illness is dealt with in the criminal justice system, notably in America. There have been others who have attempted such a task but none, I think, with such a close on eye on the hidden legal, political, and philosophical issues at stake. The book elegantly sets out a range of issues in terms of the medical, diagnostic, and therapeutic relationships that pertain under law and their consequences. The way these sensitive issues are set out and illustrated by real world experience is a tour de force both in terms of the scholarship employed and in the opening up of these issues to a much broader social scientific and policyfocused audience. This is an important book and deserves the wide audience it will undoubtedly earn. —Dr. Anthony Amatrudo, Associate Professor of Criminology, Middlesex University, UK

Forensic Psychology Reconsidered A Critique of Mental Illness and the Courts David Polizzi Indiana State University

Matthew R. Draper Utah Valley University

First published 2016 by Routledge 711 Third Avenue, New York, NY 10017 and by Routledge 2 Park Square, Milton Park, Abingdon, Oxon, OX14 4RN Routledge is an imprint of the Taylor & Francis Group, an informa business © 2016 Taylor & Francis The right of David Polizzi and Matthew Draper to be identified as author of this work has been asserted by their in accordance with sections 77 and 78 of the Copyright, Designs and Patents Act 1988. All rights reserved. No part of this book may be reprinted or reproduced or utilised in any form or by any electronic, mechanical, or other means, now known or hereafter invented, including photocopying and recording, or in any information storage or retrieval system, without permission in writing from the publishers. Trademark notice: Product or corporate names may be trademarks or registered trademarks, and are used only for identification and explanation without intent to infringe. Library of Congress Cataloging in Publication Data Polizzi, David. Forensic psychology reconsidered: a critique of mental illness and the courts/David Polizzi, Matthew Draper. pages cm Includes bibliographical references and index. 1. Forensic psychology. I. Draper, Matthew. II. Title. RA1148.P65 2015 614′.15–dc23 2015030205 ISBN: 978-1-138-93995-0 (hbk) ISBN: 978-0-323-26312-2 (pbk) ISBN: 978-1-315-62619-2 (ebk) Typeset in Times New Roman by Florence Production Ltd,. Stoodleigh, Devon, UK

Contents

Preface 1. Introduction to Forensic Psychology

vii 1

2. The Social Construction of Mental Illness and the Law

21

3. From the Asylum to the Penitentiary: A Historical Perspective

43

4. Competency to Stand Trial

67

5. Other Types of Legal Competencies

87

6. Criminal Responsibility: State of Mind at the Time of the Crime and the Insanity Defense

109

7. Coerced Treatment, Medication, and Mental Health Courts

135

8. Drug Courts

157

9. Eyewitness Memory

181

10. Closing Reflections

203

Index

211

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Preface

Forensic Psychology Reconsidered: A Critique of Mental Illness and the Courts In 1981, Ricky Ray Rector fought with friends outside a nightclub and shot three people, killing one. After several days on the run, Ricky agreed to turn himself in to the police. This meeting with the police ended with Rector shooting an officer in the back and killing him, after which Rector turned the gun on himself, self-inflicting the equivalent of a frontal lobotomy. When the case went to trial, the psychologists serving both sides as expert witnesses agreed that Rector’s state of mind at the time of the crime indicated legal culpability; however, they were divided on the issue of his competence to stand trial. The court ruled that Rector demonstrated sufficient competence to move ahead with the trial, and gave him the death penalty after finding him guilty. Rector’s brain damage from the gunshot wound was so severe that when the prison served him his last meal, he carefully saved half of the meal for after the execution, not comprehending that there would be no “after.” In this text we grapple with and try to answer such questions as: • • •

How did our understanding of competence to stand trial evolve? What does state of mind at the time of the crime mean, and how do definitions and applications change over time across states? What effect do these different legal definitions have in court cases?

We also explore many other issues relevant to the practice of psychology and the relationship of this practice to law and the legal system. The field of forensic psychology in its most general sense represents a social space whereby the disciplines of law and psychology meet. More specifically, forensic psychological practice is employed by the courts to answer those questions that the legal system is unable to resolve on its own. It is important to recognize, however, that the relationship between the two disciplines is not an equal one. It is the law generally, and the courts specifically, that determine what role psychology will play in the case. The conceptualization of mental illness does not retain the same set of meanings once situated within the legal system. For example, a diagnosis of schizophrenia brings with it a specific set of implications in the clinical setting that may or may not be viewed as pertinent when examined from the perspective of criminal law. The practice of forensic psychology has evolved into a highly sophisticated and specialized subfield within the discipline of psychology and is applied to assist the courts in resolving a specific legal question, such as competency to stand trial, the credibility of eyewitness testimony, the right to proceed without an attorney, or an offender’s state of mind at the time of the crime. However, what appears to be consistently absent is a rigorous exploration of the

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subtext of this debate and its implications. Perhaps most significant is the way in which the courts, and specifically the Supreme Court, socially construct the concept of mental illness as it relates to the criminal justice system.

What Makes This Text Unique? This book does not just tread the well-worn path of most forensic psychology textbooks. Instead, we uncover the history of the relationship between psychology and the law, particularly why and how the laws regarding mental illness have evolved over time due to certain cases and the court’s changing position during trial and appeal. In essence, this text is concerned with what may be called the meaning-generating process that emerges from the interface of the legal system and the mentally ill defendant. We begin with a general overview of forensic psychological practice and its relationship to the courts. We view this conceptual and practice-driven relationship from the theoretical vantage point of the social construction of reality. Though law and clinical psychology are both highly specialized professions, with philosophically nuanced and theoretically complex levels of expertise, each reflects a process of social construction that forms the reality of those under their care. As these social constructions are particularly significant for mentally ill citizens who find themselves within the criminal justice system, we believe it is essential to distinguish between the defendant who is suffering from some degree of mental illness and the defendant who is not. For the mentally ill defendant, questions concerning the defendant’s state of mind at the time of the crime or his or her competency to stand trial, plead, or waive his or her rights are issues that are never truly resolved, and therefore remain an influence on the process regardless of the legal designation of the defendant. To better explore this distinction, we introduce the concept of the adjudicated self. The adjudicated self is simply the “legalized” self of the individual involved in the criminal justice process, which reflects the process by which the defendant is defined by the law. At first glance, this may seem a philosophical redundancy that merely states the obvious: “Isn’t anyone involved in the criminal justice system, an adjudicated self?” The answer is yes, but what remains less clear are the differences that still remain between the more traditional adjudicated self and the adjudicated self that is mentally ill. Take, for example, the adjudicated self who is suffering from schizophrenia. Once found competent to stand trial, competent to plea, or legally sane, this individual is effectively constructed as any other individual facing trial. As a result of this legal determination, this individual is effectively no longer mentally ill in the eyes of the court, though the individual remains mentally ill in all other areas of his or her experience. The question remains: How do we address this constructive difference when it concerns the mentally ill adjudicated self? What we strive to elucidate is how legal processes are constructed when they involve a mentally ill suspect or defendant. The concept of criminal intent is fundamentally different from the perspective of an individual who is suffering from a chronic mental illness than from the viewpoint of one who is not. How each individual formulates intent is fundamentally predicated upon the cognitive structure employed to arrive at an action. A cognitive structure that determines that an individual must be killed because he or she is actually an alien is quite different from that involved in a premeditated murder intended to achieve some type of material gain. Though a general structure of premeditated thought is clearly recognizable in both cases, the context of that process is drastically different in each.

PREFACE

While many believe that intent constructed by delusional beliefs would necessarily disqualify an individual from prosecution, we are able to show that this is untrue, at least in some jurisdictions. In some states, the only criterion necessary to establish criminal responsibility is the presence of a clearly formulated intent to kill, regardless of the psychological context from which it emerges. This distinction between the mentally ill and the mentally healthy is not exclusive to the concept of criminal responsibility. The adjudicated self suffering from mental illness is placed in a difficult position when asked to function in a process that values above all the ability to comprehend a set of abstract legal concepts. An individual’s ability to comprehend the basic meaning of a trial is much different from the ability to apply that comprehension to all of the important tasks that arise in the process. For instance, an individual who is marginally competent but harbors a lingering paranoid ideation may be allowed to waive his or her right to assistance from counsel, with little concern given to the obvious contradiction located in such a legal arrangement: How can one confer with one’s attorney, when defendant and attorney are the same person? Throughout the text, we explore these difficult concerns. We first identify and discuss the process of the legal construction of the adjudicated self as defined by the courts and then investigate the implications of that construction. We examine how these various legal processes exploit a degree of vulnerability that is for the most part exclusive to the mentally ill population. We believe that the evidence presented in this text shows that the criminal justice system must not conflate mental illness with criminal behavior, and that it is ethically essential that the criminal courts prosecute criminality and not mental illness. We see the text addressing two general functions or purposes. On the one hand, the text provides a thorough discussion of the specific concepts related to the practice of forensic psychology, but perhaps more important, it also provides a philosophical exploration of the theoretical and practical implications concerning the discipline of forensic psychology and its relationship to the law. Too often the sterile professional and technical jargon of these fields can camouflage their human implications. The text invites the reader to explore the ethical and theoretical implications that lay underneath the mere definitional meaning of a concept, and challenges the way in which we come to our ideas of mental illness and the law.

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Introduction to Forensic Psychology On August 7, 2012, the state of Texas scheduled Marvin Wilson to be executed by lethal injection at 6:00 pm for the 1992 killing of Jerry Williams. On the day Mr. Wilson’s sentence was to be carried out, his defense team sought to petition the United States Supreme Court for a stay of execution based on the contention that Mr. Wilson was mentally retarded. The defense team’s legal strategy was motivated by the 2002 opinion delivered by the Court in Atkins v. Virginia, which ruled that the sentencing of a mentally retarded defendant represented a violation of Eighth Amendment protections against cruel and unusual punishment, therefore rendering the sentencing and execution of such an individual unconstitutional (Campos, 2012). Based on the legal parameters of this ruling, Mr. Wilson’s legal team felt that his execution should be stopped given that Mr. Wilson was mentally retarded. However, the Supreme Court disagreed and allowed the execution of Mr. Wilson to go forward without comment (Graczyk, 2012; Grissom, 2012; Orovic, 2012; Rudolf, 2012). At 6:27 pm, Marvin Williams was pronounced dead. The New York Times reported that on July 20, 2012 during a midnight screening of the new Batman film, The Dark Knight Rises, James Holmes, a former graduate student studying neuroscience at the University of Colorado, entered the Century 16 Theater in Aurora, Colorado dressed in a ballistic helmet and gas mask and armed with a variety of military-grade weapons, munitions, and smoke grenades, began his assault on the audience of that film. He entered the theater by a side entrance and then deployed smoke grenades followed by a random volley of semiautomatic pistol- and shotgun fire that left 12 persons dead and 52 persons injured. He was captured without incident by police in the parking lot adjacent to the exit of the theater used to make his escape. Holmes was subsequently convicted on all counts and was sentenced to life without the possibility of parole. On the morning of January 8, 2011, Congresswoman Gabrielle Giffords (D-Ariz) was shot along with 17 other individuals by a lone gunman outside a Tucson, Arizona supermarket where the Congresswoman was holding an outdoor town hall meeting with the constituents of her district (Memmott, 2011; Murray & Horwitz, 2011). As a result of this attack, six individuals died, including a federal judge, a member of Congresswoman Giffords’ congressional

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office staff, and a 9-year-old child who was born on September 11th, 2001 and was attending the event with someone from her neighborhood. It was later confirmed that Jared Loughner, a 22-year-old man from Tucson with a history of drug use and mental health issues, was in police custody and would be charged for his involvement in these shootings. He withdrew from Pima Community College in October 2010 after being suspended for disruptive behavior and refusing to undergo a mental health evaluation. On August 7, 2012, Loughner pled guilty to 19 of 49 charges filed against him in federal court. His plea agreement came after Loughner had been confined in a Missouri psychiatric facility for approximately 19 months where psychiatrists attempted to establish his competency to stand trial. Loughner has been diagnosed with schizophrenia, paranoid type and will be sentenced in November to Life without the Possibility for Parole (Keifer, 2012).

What Is Forensic Psychology? Forensic psychology is the study of the integration of psychology and the law. It is a new blend of two old professions—psychology, which is the study of human behavior, and law, which is the study of how people rule themselves in social situations. (Walker & Shapiro, 2004, p. 3)

Taken at its most general meaning, forensic psychology reflects that point of reference from which the criminal justice system and psychology meet. Most fundamental to this relationship is the role played by psychology and psychiatry in answering a specific question before the court that exceeds the normal body of knowledge of legal practice (Adler & Gray, 2010; Shipley & Arrigo, 2012; Goldstein, 2003; Wrightsman & Fulero, 2005). However, it is important to note that the relationship between psychology and the law is not defined by the expectation of a balance of power between these two disciplines. Though psychological expertise is applied to a specific issue or question before the court, it is psychology that works for the benefit of the law and not the other way around. For example, the practice of forensic psychology is generally applied to the areas of criminal law, civil liabilities, and the best interest of the child in domestic litigation. In each of these areas, forensic psychology is required to answer a specific legal question, which arises within a specific jurisdiction that will facilitate the adjudication process. Complicating forensic psychological practice, however, is the fact that the specific rules governing the adjudication of a mentally ill defendant may vary across federal and state jurisdictions, requiring “different” answers to the same legal question. Such an example was witnessed in the capital murder trial of Marvin Wilson who was convicted and subsequently executed by the state of Texas in 2012. Central to Wilson’s appeal of his capital murder conviction, which was ultimately unsuccessful, was the claim that he was mentally retarded and therefore ineligible for execution. The Supreme Court, in their landmark 2002 decision, Atkins v. Virginia, ruled that the sentencing of a mentally retarded defendant to death constituted cruel and unusual punishment, which was prohibited by the U.S. Constitution. However, the question in the Texas case was not simply concerned with the fact of Wilson’s intellectually disability or mental retardation;

INTRODUCTION TO FORENSIC PSYCHOLOGY

rather, the more important consideration was whether or not Wilson’s condition satisfied the legal definition of mental retardation as described in the Texas Criminal Code. A forensic psychologist could be called upon to determine if the legislatively derived criteria for mental retardation as established by the Texas Legislature had been met, but would not be asked to determine if the definitional criteria illustrated in the statute was accurate or reflected the clinical conceptualization of that construct. Though one may raise any number of legitimate clinical objections to such a process, it is the legislature of a given state and not the mental health community that ultimately determines the legal specificity for these otherwise psychological or psychiatric constructs. More specifically, then, forensic psychology attempts to provide expert opinion and explanation based upon generally established knowledge within the discipline of psychology as this relates to the topics of criminal law, family law, and civil liability law. As such, forensic psychology seeks to assist the legal process in resolving a variety of important issues or concerns related to the various ways in which one’s level of psychological functioning may be compromised to the point that the person could not rationally participate in the criminal legal process. For example, there is a long-standing belief within Western European jurisprudence generally and the American legal tradition specifically that it is unjust to try an individual who clearly exhibits some type of mental deficit that would preclude the possibility for a fair trial. Too often, common public opinion perceives such a circumstance as merely an excuse that shields offenders from their just desserts. However, what this perspective fails to recognize is the way in which one unjust conviction potentially challenges the whole legitimacy of the justice system. From this perspective, we can see how the role of forensic psychology becomes not merely the provider of expert opinion concerning a relevant psychological factor in a specific case, but a type of legal safeguard that protects those individuals who are so psychologically impaired that to require them to participate in a criminal trial would not reflect the notion of justice served, but justice denied. When we read the newspaper accounts of senseless acts of violence, and the shattered lives that are left behind in their wake, or when we are forced to endure another video clip from the Internet or the nightly televised news of terrified bystanders frantically searching for a child or friend who cannot be located in the aftermath of an unfathomable episode of random violence, we become angered and disgusted. When we also are informed that the perpetrator of these crimes may not go to the penitentiary because, even though they are clearly guilty of the acts they are accused of committing, they are also in some way mentally ill and therefore may not be held accountable for their actions, we feel that this is unjust. But we must not lose sight of the fact that no matter how emotionally upending these events may be, they cannot be the foundation upon which justice is pursued. The cases of Jared Loughner and James Holmes certainly reflect the tragic human capacity to inflict random violence on other human beings, but this observation still leaves unanswered the question of how these tragic events could have occurred. Why certain criminal acts occur, why Jared Loughner, for example, acted the way he did on that Saturday morning, is only important to the degree to which the explanation reflects the legal standards outlined in a state’s Criminal Code—in Loughner’s case, the state of Arizona’s. The psychological reasons, which contribute to why an individual acts as he does, evoke a matrix of complex relational dynamics that are simply not the focus of the legal system. Questions such as, “Did this individual know his actions were wrong when committing this act?” “Does this individual understand the consequences of pleading guilty?” or “Does this person have the ability to comprehend the various aspects of the legal proceedings and can

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he actively assist his attorney in his own defense?” though deceptively complex, are really intended to find rather basic answers. When certain cases rise to a level of greater complexity, the experts involved are still required to formulate their opinion in such a way so as to render this complexity more understandable and useful to the court. Given that the practice of forensic psychology—the study of human behavior and the law—may intersect at a variety of points of demarcation, it is important from the outset to identify how our exploration of and reflection on forensic psychology will proceed. As perhaps is evident in the vignettes offered in the beginning of this chapter, the focus of this text will be on the applications of forensic psychology as it applies to the process of the legal system and various aspects of criminal justice practice. Such a focus is not to downplay the other areas where forensic psychology may be used to help resolve a specific issue before the court, but simply to better focus our attention on the criminal justice practitioner. It is therefore important to remind the reader that the discussion offered in this text is not intended to address specific clinical concerns such as which set of clinical instruments are most appropriate in the determination of malingering or psychopathy, or how one determines the relationship between rates of recidivism occurring within certain diagnostic categories or populations. Though such knowledge is certainly essential for any competent clinical practitioner, it simply does not have the same relevance for non-clinical staff or field professionals. The officer on the street has little immediate need for validity scales on the MMPI-2 (The Minnesota Multiphasic Personality Inventory-2, which is a clinical instrument used to determine the immediate presence of some type of mental illness) or the diagnostic distinctions between psychopathy and antisocial personality disorder provided in the psychological literature or in the Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition or DSM-5 (the DSM-5 is used by clinicians to diagnose and treat various types of mental illness). Rather, our main focus for this text will be to explore how psychology helps to inform different varieties of interactions within criminal justice practice when the issue of chronic mental illness is present. This will include the relationship between mental illness and various types of legal competency occurring during the pre-trial, trial, or post-trial process. We will also explore the legal standards for the insanity defense, the administration of involuntary medication in correctional and adjudicative settings, and the phenomenon known as “suicide by cop.” Though this list does not exhaust the areas of interest to be explored, it should certainly provide the reader with a clear sense as to how we will proceed. Perhaps a few examples involving the interface between the law and psychology will better help to situate our question: What is forensic psychology? What each of the opening vignettes reveals is the way in which a specific aspect of the accused’s level of psychological functioning was implicated in the actions for which they were formally charged and/or adjudicated. In the Wilson case, the issues were twofold: first, was Wilson mentally retarded, and if so, was it legal to sentence him to death in light of the Supreme Court’s ruling in Atkins v. Virginia, 536 U.S. 304 (2002), which prohibited such sentences? The decision to introduce the issue of Wilson’s alleged mental retardation was rejected by defense counsel at the time of his initial 1992 trial on the grounds that such a revelation would likely increase the probability of a guilty verdict and would result in a capital sentence (Perlin, 2003). The rationale for this decision was certainly sound given that the Supreme Court just three years earlier argued in their five-to-four majority decision in Penry v. Lynaugh, 492 U.S. 302 (1989) that the Eighth Amendment did not prohibit the sentencing and execution of a defendant diagnosed with mental retardation (Scott & Gerbasi, 2003).

INTRODUCTION TO FORENSIC PSYCHOLOGY

Some 10 years later, the Supreme Court issued its landmark decision in Atkins v. Virginia prohibiting the sentencing of mentally retarded defendants to death based on Eighth Amendment protections against cruel and unusual punishment. As such, the constitutionality of Wilson’s pending execution was now in question based on the opinion provided in Atkins. As a result of this decision, an “eleventh-hour” attempt was made to save Wilson from his execution. Wilson’s defense team moved forward with some confidence that its petition to the Supreme Court would at the very least stay Wilson’s execution temporarily, given the clear language provided by Justice Stevens in his majority opinion, which now prohibited such executions. However, the team’s confidence was quickly shattered when Justice Antoine Scalia, rather than upholding the Court’s decision prohibiting the execution of a mentally retarded individual, refused the stay request and allowed the execution of Wilson to move forward (Williams, 2012; Wilson v. State of Texas, 1999) What has remained a heated point of contention in this case, even after Wilson’s execution, is whether or not the defendant was actually mentally retarded, which in turn would determine whether his execution was constitutional. If Wilson was truly mentally retarded, didn’t the Atkins ruling prohibit such executions, and isn’t the state of Texas required to follow rulings provided by the Court? It is certainly true that Supreme Court rulings are indeed the law of the land, but this was not really the point of contention. What was at issue was how a legitimate claim of mental retardation is established in the Court. As stated previously, though Wilson’s defense team believed that they could establish the fact of their client’s mental retardation, the prosecution never accepted this contention and the lower courts supported this position. However, a very important disagreement in interpretation still remained between the ruling offered by the Court in Atkins and the intent of the state of Texas to follow through with Wilson’s execution. The disagreement was focused on a very obvious question: was Wilson mentally retarded, and if so, what procedure should be used to establish that diagnostic fact? Justice Stevens in his majority decision observed the following: “To the extent there is serious disagreement about the execution of mentally retarded offenders, it is in determining which offenders are in fact mentally retarded,” and herein lies the problem (Atkins v. Virginia, 2002). Though the Court now prohibits the sentencing to death of individuals diagnosed with an intellectual disability or mental retardation, it offered no general standard or definition for mental retardation that all of the states would be required to follow. Rather, the Court left it to the states to determine what procedures would be used to establish that legally constructed clinical fact. It therefore became the responsibility of the states to construct statutory provisions that would allow for the implementation of the Atkins decision—that is, a clear statutory definition of what constituted mental retardation as it related to the death penalty (re Briseno, 135 S.W.3d 1 Tex. Crim. App., 2004). As late as 2004, the state of Texas had no provision in place to accommodate the stipulations of the Court outlined in the Atkins decision, but was now forced to do so when Jose Garcia Briseno petitioned the Court of Criminal Appeals of Texas for a stay of execution with the hope of overturning his death sentence on the grounds that he was mentally retarded and therefore ineligible for this punishment based on the decision offered in Atkins. The Court of Criminal Appeals in Texas awarded Mr. Briseno a stay of execution and returned the case to the lower court. Per the order of the Court of Criminal Appeals, a 5-day hearing was to be conducted to determine if sufficient evidence existed to support Briseno’s

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Atkins claim. At the conclusion of that evaluation process the presiding judge issued the following decision: The applicant, Jose Garcia Briseno, is not mentally retarded, and the State of Texas is therefore not precluded from carrying out the sentence of death in accordance with the verdict of the jury in the trial court. (re Briseno, 135 S.W.3d 1 Tex. Crim. App., 2004)

Finally a resolution! Over the course of the 5-day evaluation process, it was determined that Briseno was not mentally retarded and therefore the state of Texas could carry out the verdict of the court because Briseno’s execution no longer violated the protections offered in Atkins v. Virginia. But this decision really did not resolve the problem. Remember that at the time this case was being heard by the Texas appeals court; there was still no statute defining mental retardation as it pertained to the death penalty in Texas. You may be asking yourself, “Wait a minute! If no statute existed, how could the court determine that Briseno was not mentally retarded?” Some of you may also be wondering, “How is it possible that Texas didn’t have a definition for mental retardation in 2004?” The answer to that question is they did, and they did not! At issue here is the fact that the state of Texas actually has two different standards for intellectual and developmental disabilities (formerly known as mental retardation). The Texas Health and Safety Code 591.003(13) uses very similar language to that found in the definitions provided by the American Association on Intellectual and Developmental Disabilities, which is recognized as perhaps the most authoritative perspective on the topic of this disorder. But this still does not answer the question because definitions that may be appropriate for the determination of various social services may not be appropriate in those situations concerning the death penalty. The Court of Criminal Appeals of Texas sought to address this distinction. Justice Cochran of the Criminal Appeals Court offered the following rationale toward the resolution of this issue in his decision: We, however, must define the level and degree of mental retardation at which a consensus of Texas citizens would agree that a person should be exempted from the death penalty. Most Texas citizens might agree that Steinbeck’s Lennie should, by virtue of his lack of reasoning ability and adaptive skills, be exempt. But, does a consensus of Texas citizens agree that all persons who might legitimately qualify for assistance under the social services definition of mental retardation be exempt from an otherwise constitutional penalty? Put another way, is there a national or Texas consensus that all of those persons whom the mental health profession might diagnose as meeting the criteria for mental retardation are automatically less morally culpable than those who just barely miss meeting those criteria? Is there, and should there be, a “mental retardation” brightline exemption from our state’s maximum statutory punishment? As a court dealing with individual cases and litigants, we decline to answer that normative question without significantly greater assistance from the citizenry acting through its Legislature. (re Briseno, 135 S.W.3d 1 Tex. Crim. App., 2004)

In recognizing that such a mandate from the legislature was not immediately available or forthcoming, Justice Cochran attempted to answer the question. What the Texas appellate court ultimately decided was that regardless the opinions of expert witnesses concerning whether or not the defendant meets the criteria for the diagnosis of mental retardation, it is up to the

INTRODUCTION TO FORENSIC PSYCHOLOGY

trier of fact—the judge and jury—to make that determination as it relates to a defendant’s Atkins protections. As such, Cochran ruled that though Briseno did appear to satisfy the definitions established by the American Association on Intellectual and Developmental Disabilities and the Health and Safety Code of Texas, he failed to provide evidence supporting significant limitations in adaptive functioning, which is also necessary in establishing a diagnosis of mental retardation, and therefore denied his application of appeal. How then does this discussion apply to the case of Marvin Wilson? The case of Marvin Wilson, much like the case of Briseno, was focused upon one main question: did Wilson satisfy the definitional requirements for mental retardation established by the state of Texas? Based on the ruling offered by the Court of Criminal Appeals of Texas, the answer to that question was no. Once the state of Texas had ruled that Wilson did not satisfy the necessary criteria to be deemed mentally retard, his Atkins protections no longer applied. Perhaps more importantly, by having his claim of mental retardation rejected by the Texas court, it allowed Justice Scalia, ironically, the author of the minority opinion in Atkins v. Virginia, to reject Wilson’s appeals application requesting a stay of execution. In the two other more well-known cases discussed above, involving Jared Loughner and James Holmes, important questions emerged concerning what is legally defined as the state of mind at the time of the crime and competency to stand trial. Much like the legal establishment of mental retardation in the Texas courts, criminal responsibility is a legal standard that is established by state legislatures for the process of determining criminal culpability. As such, this process may not only identify the parameters of criminal responsibility, but may also determine the type of procedures to be used or the manner of expert testimony that will be allowed to determine this issue. In Ring v. Arizona, 536 U.S. 584 (2002) and Clark v. Arizona, 548 U.S. 735 (2006), the Court upheld the right of Arizona to construct the limits of the insanity defense, thereby affirming the constitutional right of each state to legislatively construct legal standards pertaining to the death penalty. In Clark, the Court ruled that the Due Process Clause did not prevent Arizona from establishing an insanity test based “solely in terms of the capacity to tell whether an act charged as a crime was right or wrong” (Clark v. Arizona, 2006). The petitioner, Clark, claimed that the definition of insanity as defined by statute in Arizona was unconstitutional given that it excluded a test for cognitive capacity, which seeks to determine if the suspect knew the implications of his actions during the commission of the crime. Though the Arizona legislature had previously recognized in its insanity test the cognitive capacity of the suspect as well as the ability of the individual to understand the wrongfulness of that act in determining criminal responsibility, it was not required to do so. In a subsequent revision of the insanity test, the Arizona legislature decided to drop the cognitive capacity provision from the statute and the Court upheld the right of Arizona to legislatively determine its standard for criminal responsibility. Competency to stand trial, unlike the insanity defense or state of mind at the time of the crime, is concerned with the ability of the accused to assist in his or her own defense. What this standard attempts to determine is whether or not the accused is capable of conferring with his attorney in constructing a legal defense and whether or not the accused understands the implications and consequences of his participation in the legal process (Dusky v. United States, 1960). For example, does the accused understand the role of the judge or jury, or does he understand the consequences of a guilty verdict? Once these basic legal questions have been answered the legal process may move forward. However, if at any point during the pre-trial

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or trial process the legal competency of the accused is in doubt, the legal proceedings will likely stop until such time as the defendant is capable of continuing with this process. In the Jared Loughner case, his competency to proceed to trial was immediately questioned and it was soon determined that he was not legally competent to proceed based on the presence of an untreated chronic mental illness. In the absence of legal competency, all criminal proceedings were suspended and could not be resumed until legal competency had been established. As was stated above, subsequent to his arrest, Loughner was transferred to a psychiatric facility in Missouri for the purpose of establishing his competency to stand trial. After 19 months of psychiatric treatment, Loughner was deemed competent to stand trial and shortly thereafter was allowed to accept a plea agreement, which guaranteed that he would live out the rest of his life in an Arizona penitentiary, and not face possible execution for his crimes. In the case of James Holmes, the former University of Colorado graduate student who entered a movie theater and killed 12 and wounded 52 movie goers, a similar set of legal questions are still in the process of being answered. First, based on Colorado law, was he criminally responsible at the time of his crime and is he competent to stand trial for the crimes for which he is accused? The state of Colorado defines legal insanity in the following way: A person who is so diseased or defective in mind at the time of the commission of the act as to be incapable of distinguishing right from wrong with respect to that act is not accountable. But care should be taken not to confuse such mental disease or defect with moral obliquity, mental depravity, or passion growing out of anger, revenge, hatred, or other motives, and kindred evil conditions, for when the act is induced by any of these causes the person is accountable to the law. (Colorado Statutes, Code of Criminal Procedure, 16–8-101, July 1, 1995)

In pursuing the insanity defense, Holmes and his attorneys were required to establish his inability to distinguish right from wrong at the time of the crime, as well as be able to establish that he did not have the necessary “mental state” or intent to commit his crimes. Neither of these criteria are easy to establish and this attempt by the defendant was also rejected by the Colorado jury that ultimately found Holmes to be criminally responsible for his actions. Holmes seems to have been focused upon the stockpiling of weapons, ammunition, and other equipment necessary to carry out this act, which will likely be used by the state to establish Holmes’ premeditated intent to carry out this horrible event. However, the fact that Holmes had in his possession legally purchased weapons, ammunition, and other equipment used in the Aurora movie theater killings, does not necessarily prove his intent and could easily be viewed as an aspect of his increasingly paranoid and delusional ideation. Additionally, it has yet to be determined whether or not this stockpiling of military equipment was specifically intended for its ultimate use or related to some other purpose. Complicating this process even further is Holmes’ behavior immediately following the shootings and his arrest by police. Upon his arrest by Aurora police, Holmes warned the officer that his apartment was boobytrapped and set to explode if anyone attempted to enter. Does this momentary experience of concern reflect a degree of understanding as this relates to the wrongness of his actions as well as a desire to prevent further bloodshed or is it related to some aspect of his mental illness? Such a determination remains to be seen. Regardless the outcome of that complex question, it still had to be determined if Holmes was competent to stand trial. Once competency had been established, the legal process could move forward.

INTRODUCTION TO FORENSIC PSYCHOLOGY

Without having a clear sense concerning the motivation that compelled Holmes to commit these crimes, it is difficult to speculate upon the degree to which his psychiatric disorder influenced the cause of events that resulted in the Aurora theater shootings. A psychiatric hearing was scheduled to be held on July 24, 2014 to determine if Holmes would be eligible to submit a defense of not guilty by reason of insanity (NGRI). Though a trial date had been set for early December, 2014, over the objections of Holmes’ defense attorneys, it still remains to be seen if Holmes will actually stand trial for the crimes he is currently accused of. It is important to note that in each of these cases, particularly in the two legal proceedings involving Jared Loughner and James Holmes, the question of guilt, the question concerning whether or not these two individuals actually committed the crimes to which they have been accused, does not appear to be a contested point: All sides appear to be in agreement that these two individuals are in fact guilty of these crimes. What remains unresolved is the degree to which the presence of chronic mental illness may lessen or even nullify one’s criminal responsibility or render him or her ineligible to participate in the criminal justice process. Though most state statutes reject the notion that the presence of mental illness is sufficient to nullify one’s criminal responsibility and potential competency, neither do most states contend that all such individuals are criminally responsible for their actions or appropriate participants in a legal proceeding. What is often concluded from descriptions like the one we have just provided is that the real purpose of forensic psychology is to help guilty defendants use the “excuse” of mental illness as a way to avoid taking legal responsibility for their criminal acts. Though such a position seems to overly simplify the complexities of mental illness and its influence on human behavior, it is also equally true that in a large majority of these types of cases the individual being held for trial did indeed commit the crimes for which he or she has been charged. Such an observation then begs the question: What is forensic psychology?

How Does Forensic Psychology Differ from Forensic Psychotherapy? While completing doctoral classwork in clinical psychology at Duquesne University in Pittsburgh, Polizzi had the opportunity to take a mini-course on the subject of forensic psychology, which was offered by Alan Goldstein, a well-known practitioner and author in the field of forensic psychology who had been invited to teach this seminar. At the time, Polizzi was also a psychotherapist with a local community mental health clinic that identified itself as an institute of forensic psychology. When Goldstein inquired about the types of services offered at this clinic, he quickly stated that the facility was misnamed because the primary activities of the clinic were treatment focused. In fact, based on the services offered, the clinic was actually a forensic psychotherapy institute rather than an institute of forensic psychology. Though this distinction may appear insignificant to some, it really does correctly recognize the specific differences between these two types of clinical forensic practice. Perhaps the clearest way to identify the difference between forensic psychology and forensic psychotherapy is with the following distinction. Forensic psychology can be generally defined as an evaluative process that is being called upon to provide an assessment of a specific situation or set of psychological or psychiatric factors as they relate to a specific set of legal questions (Goldstein, 2003; Meloy, 1988). For example, in the case of James Holmes: Was he criminally responsible at the time of the crime based on Colorado law and

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was he found legally competent to go to trial? Though both of these questions also evoke a variety of clinically derived observations, the goal of this process is not to achieve a clinical result, but a legal one. Forensic psychotherapy on the other hand, is generally defined as a type of clinical psychological practice that is focused on the treatment of individuals involved in the criminal justice system. These psychotherapeutic services are provided either within a prison or jail setting or for individuals on probation or parole living in the community. The scope of this type of practice is quite varied and can include very difficult clinical populations, including sexual offenders, those with addiction, and individuals with various forms of chronic mental illness. Participation in these types of forensic programs is for the most part determined by the criminal offense or the history provided by the individual. When practiced in a jail or penitentiary setting, psychotherapists conduct regular individual- or group-psychotherapy sessions, along with psychoeducational programming intended to address a specific diagnostic population or to correct a specifically identified problem. Completion of this type of programming is often required before the individual can be released from incarceration and is often viewed as the measuring stick for subsequent success in the community. For example, the individual who was convicted of a drug crime will likely be required to undergo drug and alcohol counseling while incarcerated. It is also very likely that once this individual is paroled, he or she will be required as a stipulation of release to participate in ongoing psychotherapy in the community. Failure to comply with these post-release stipulations will likely result in the individual’s return to the penitentiary. Numerous state and county jurisdictions now employ drug courts to adjudicate drug and alcohol criminal arrests. However, the purpose of these courts is to divert substance users away from the criminal justice system and toward settings more appropriately focused on treatment. Similar types of mental health courts and diversion programs exist in some jurisdictions and focus on mentally ill offenders. Much like the addicted offender, the mentally ill are viewed as being more appropriate for a mental health treatment intervention than a stay in the local county jail or state correctional system. Another important difference between forensic psychology and forensic psychotherapy is the meaning of the relationship between clinical practitioner and forensic client. When performing a forensic evaluation for the court, the sole role of the forensic examiner is to answer the questions posed by that process, and not provide answers most beneficial to the client. In fact, it is certainly possible that the opinion offered by the expert may not be anticipated by the client and could actually result in a conclusion that weakens one’s case. The forensic psychotherapist, on the other hand, is focused on building a working therapeutic relationship with the forensic client for the purpose of treating an existing psychological issue or problem. In his text, The Psychopathic Mind, Meloy (1988) clearly identified the differences between these two types of forensic practice: The premise of treatment is to heal. It incorporates an attitude of caring, empathy, and optimism for the eventual well-being of the patient. This is fundamentally different from the premise of evaluation, particularly forensic evaluation, wherein the purpose is to gather valid and reliable information to address certain psychological questions. (p. 310)

Whereas the professional psychotherapist is expected to engage in a respectful therapeutic relationship with their client for the purposes clinically specific to that relationship, the

INTRODUCTION TO FORENSIC PSYCHOLOGY

forensic evaluator is required to gather the appropriate clinical information for the court to answer the specific psychological questions implicated within the case before the court. Where this difference becomes most pronounced is in the interaction between evaluator and client and the issue of determining the truth. Psychotherapists are generally trained to believe that what their clients tell them is the truth. Within the context of treatment, the client’s perception concerning a specific situation or relationship, or the client’s description of a presenting set of symptoms, is the only “truth” needed to begin the therapeutic process. What actually happened in a given situation or relationship is oftentimes unknown and therefore clinically less important than are the beliefs and attitudes the client has come to view as the truth. The same, however, cannot be said when attempting to discover the truth during a forensic assessment or evaluation. The adversarial nature of the legal process creates a decidedly different context by which the forensic evaluator must operate. The client involved in a forensic assessment simply has a greater interest in not telling the “truth” than does the client found in psychotherapy. For these very obvious reasons, the forensic evaluator must be wary of providing any face value validity to any claim offered by the client that cannot also be corroborated in another way. The client seeking to use the insanity defense based on the presence of chronic mental illness at the time of the crime must be able not only to provide the necessary clinical evidence that would legitimate such a claim but must also be able to show that such clinical evidence satisfies the specific criteria established by the specific jurisdiction trying the case. The typical psychotherapist merely needs to establish that the client satisfies the necessary clinical criteria for a particular diagnosis and treatment can begin. The forensic psychologist or evaluator, on the other hand, must first determine if the claim of mental illness is legitimate and then determine if the body of clinical evidence satisfies the legal threshold established by law.

What Is the Place of Psychology Within the Criminal Justice System? Up to this point in our conversation, we have discussed what forensic psychology is and how it differs from forensic psychotherapy, but we really have not addressed or asked the more general question concerning if psychology actually has an appropriate role within the day-today practice of criminal justice. Though it is true enough that the disciplines of criminal justice and psychology are fundamentally concerned with very specific aspects of human behavior, such an obvious compatibility does not necessarily imply that one discipline is helpful in assisting in the day-to-day practice of the other, or does it? If, for example, someone has broken the law, should it matter if the suspect was actively psychotic at the time of the crime or that the motivation for that crime was predicated upon a set of psychological factors or beliefs that are specifically implicated in the criminal behavior that followed? Some may argue that “a crime is a crime and the guilty party should be punished,” regardless the presence of any mitigating psychological factors that could be used by suspects to lessen or nullify their ability to be held responsible for their actions. Such a case was heard by the Supreme Court in 2012, which decided upon not merely a specific technicality concerning the insanity defense and the law, but whether or not the insanity defense is constitutional. In Delling v. Idaho (2011), the Court was asked to rule upon a very basic legal question: Is the availability of the insanity defense a basic due process right that is guaranteed by the United States Constitution? Unlike other Supreme Court opinions related to the specific

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application of the insanity defense in a given state, Delling sought to determine if the U.S. Constitution actually required the availability of the insanity defense based upon the due process rights accorded all defendants, as well as the protection against cruel and unusual punishment guaranteed by the Eighth Amendment. If the Court were to rule in Delling’s favor, it would require the state of Idaho to reinstate the availability of the insanity defense, which was no longer allowed in that jurisdiction. Such a decision would also require that the states of Kansas, Montana, and Utah similarly make available the insanity defense to mentally ill defendants who were able to satisfy the specific necessary requirements established by those jurisdictions. However, it is important to recognize that the question before the Court in Delling was exclusively focused upon the availability of the insanity defense in a given jurisdiction and not concerned with the language that standard would employ. John Delling was charged and convicted for the 2007 murder of two Idaho men and the wounding of another individual in Arizona. Upon his arrest it was determined that Delling was not competent to stand trial due to the presence of bizarre delusions commonly associated with paranoid schizophrenia. He remained under psychiatric care for approximately 12 months until his legal competency could be restored. After an unsuccessful attempt to have Idaho’s lack of an insanity defense ruled unconstitutional by the district court, Delling agreed to enter a conditional plea of guilty (Wolfe, 2012). At his sentencing, though the district court recognized that Delling suffered from a serious mental illness and could not appreciate the wrongfulness of his conduct, he was still sentenced to life without the possibility for parole and was handed over to the Department of Corrections where he is currently being housed in solitary confinement at Idaho’s Maximum Security Institution (Wolfe, 2012). In response to the Delling conviction, the American Psychiatric Association (APA) and the American Academy of Psychiatry and the Law (AAPL) filed what is known as a friend of the court brief (or amicus brief) in support of Delling’s request to have his case heard by the Supreme Court. In that brief the APA and AAPL made the following plea to the Court: For centuries and in virtually all American jurisdictions, the law has recognized that, when serious mental illness prevents a defendant from grasping that his conduct was wrong, the defendant should not be held criminally responsible. Under the statutory scheme in place in Idaho, Delling could not defend against the charge of second-degree murder by showing—as the district court accepted—that he had no ability to appreciate the wrongfulness of his conduct. This Court should grant certiorari and hold that, as applied in Delling’s case, Idaho’s abolition of the insanity defense violates due process. (APA & AAPL, 2012, p. 4)

On December 26, 2012, the Court issued its ruling that it had refused Delling’s writ of certiorari, that is—the formal document submitted by the defendant requesting that the Court hear the case—and did so without comment. If the Court had decided to hear the Delling case, the guarantee of the insanity defense in all U.S. jurisdictions may have been legally established. However, by rejecting Delling’s claim, the Court re-established the right of the individual state to determine whether or not the insanity defense would be made available.

The Psychological Expert and the Legal System The first introduction of expert psychological testimony in the United States was established by the Court of Appeals of the District of Columbia in Frye v. United States in 1923. In that

INTRODUCTION TO FORENSIC PSYCHOLOGY

case, the Court determined the standard to be applied to all expert testimony, a test that has commonly become known as the Frye Standard. The question argued before the D.C. appellate court concerned whether or not the results from the systolic blood pressure deception test, or polygraph test, could be used to establish the guilt of a suspect in a court of law. It was believed by the proponents of the test that it could measure the rise in the blood pressure of a witness attempting to conceal the fact of one’s guilt. However, the appellate court rejected the admissibility of this evidence on the grounds that this test did not enjoy a “general acceptance” from the scientific community. As the relationship between the legal system and psychology developed, the various ways in which expert testimony from psychiatry and psychology could assist judges in their decisionmaking process became more and more clear (Walker & Shapiro, 2003). By the early 1950s this relationship between psychology and the legal system became more established and began to more clearly define the various ways in which the profession of psychology could prove to be useful in the day-to-day practice of the courts. Perhaps the most important of these cases was the landmark decision delivered by the Court in Brown v. Board of Education in 1954 (Walker & Shapiro, 2003). In that case, the Court based its decision on the social psychological research provided by Kenneth and Mamie Clark that separate education was not equal education. Chief Justice Earl Warren, in his majority opinion, made the following observation: Segregation of white and colored children in public schools has a detrimental effect upon the colored children. The impact is greater when it has the sanction of law, for the policy of separating the races is usually interpreted as denoting the inferiority of the negro group. A sense of inferiority affects the motivation of a child to learn. Segregation with the sanction of law, therefore, has a tendency to retard the educational and mental development of negro children and to deprive them of some of the benefits they would receive in a racially integrated school system. (Brown v. Board of Education, 1954)

Since the Brown decision, the involvement of psychology in the legal system has continued to develop in a variety of ways based on the needs of the courts. As will be seen in the chapters that follow, this development has taken on an ebb and flow that has often reflected not only the changing proclivities of the Court, but the changing attitudes of the general public as well. An example of this fluid relationship between the legal system and psychology was witnessed in a recent decision offered by the Court in Delling v. Idaho (2011). As was discussed above, John Delling, a diagnosed paranoid schizophrenic, murdered two men that he suspected were stealing his energy. Delling sought to invoke the insanity defense based on his psychiatric diagnosis, but was unable to do so given that Idaho no longer recognized such defenses. As a result of his conviction, Delling appealed his sentence and asked the Supreme Court to rule on the constitutionality of denying a defendant the availability of the insanity defense. Seeing this as an important opportunity in the struggle to expand the legal rights of the mentally ill, the psychiatric community, along with the academic legal community, submitted what is commonly known as a “friend of the court” (or amicus) brief, intended to argue the merits of making the insanity defense available in all legal jurisdictions in the United States. These psychiatric and legal experts argued that the insanity defense has long been recognized as ethically necessary for those defendants who are suffering from serious psychological impairment and has always been an accepted legal protection for such

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individuals; however, the Court has traditionally left it to the states to determine the scope of such defenses. What had not been specifically answered by the Court was whether or not individual states have the constitutional right to deny access to the insanity defense as a matter of state law. For the moment, this question has been answered. In its 2012 opinion, the Court decided not to accept Delling’s writ of certiorari—that is, the formal process by which a defendant petitions the Court to hear his or her case—thereby upholding the state of Idaho’s right to legislatively deny a mentally ill defendant the possibility of invoking the insanity defense as a strategy by which to nullify all criminal culpability. If the Court had accepted Delling’s writ or had agreed to hear his case, the Court would have likely clarified the following questions: • •

Do individual states have the constitutional right to deny the insanity defense as a legal option, regardless the mental condition of the defendant? Is it constitutionally required for individual states simply to provide some version of the insanity defense?

The latter option would have likely required the Idaho legislature to craft specific language concerning the legal construction of this defense, but probably would not have imposed specific guidelines for its definition. The Court’s ultimate decision, however, is really not surprising and reflects the states’ rights proclivities of the current sitting justices. The Court has traditionally left it to the states to determine the specific standard to be applied in insanity cases. The Delling case is merely an extension of that logic. If it is up to the state to determine the statutory legitimacy of such insanity claims, it should also be up to the individual states to determine if such a defense will be allowed at all. It is also important to note that if the Court had ruled in favor of Delling, its decision would also have required the states of Kansas, Montana, and Utah to also make the insanity defense available in their jurisdictions as well. In Hall v. Florida, 2014, the role of the psychological expert once again took center stage within the logic of the Court. In Hall, the Court was asked to decide whether or not the state of Florida’s definition of intellectual disability followed established medical practice for this disorder. More specifically, the Court was asked to determine if the state of Florida’s mandated IQ score of 70 or below was constitutional in establishing the presence of an intellectual disability. At question was whether or not such a “fixed” score of 70 actually reflected a legitimate process by which to establish the presence of an intellectual disability, and whether or not a test result of 70 accurately reflected a precise representation of the defendant’s current level of intellectual function (Hall v. Florida, 2014). On both points the Court disagreed. Freddie Lee Hall and an accomplice, Mark Ruffin, raped and murdered a 21-year-old pregnant newlywed, whom they kidnapped prior to proceeding to a local convenience store that they had planned to rob. While in the parking of that store, they shot and killed a deputy sheriff who was attempting to apprehend them (Hall v. Florida, 2014). Hall was subsequently tried and convicted of murder and sentenced to death for his crimes; his conviction for the murder of the deputy sheriff was later reduced based on the lack of evidence establishing his premeditation to kill the deputy. Upon receiving his sentence, Hall argued that he was not eligible for execution due to the fact of his intellectual disability. During the trial process, it was reported that Hall had a long history of intellectual disability. In establishing this point, Justice Kennedy stated in his majority opinion that there

INTRODUCTION TO FORENSIC PSYCHOLOGY

existed “substantial and unchallenged evidence of intellectual disability. School records indicated that his teachers identified him on numerous occasions as mentally retarded” (Hall v. Florida, 2014). In spite of the overwhelming evidence and expert opinion concerning the fact of Hall’s severe intellectual disability, the jury still recommended that Hall receive the death penalty and the sentencing court agreed (Hall v. Florida, 2014). Though the Florida court recognized that substantial evidence did support the contention that Hall “has been mentally retarded his entire life,” the court also suspected that the defense experts were guilty of some professional overkill, because “nothing of which the experts testified could explain how a psychotic mentally retarded, brain-damaged, learning disabled, speech-impaired person could formulate a plan whereby a car was stolen and a convenience store was robbed.” The sentencing court went on to state that, even assuming the expert testimony to be accurate, “the learning disabilities, mental retardation, and other mental difficulties . . . cannot be used to justify, excuse or extenuate the moral culpability of the defendant in this cause.” (Hall v. Florida, 2014)

Hall then appealed his conviction to the Florida Supreme Court, but was once again denied. In affirming Hall’s lower court conviction, the court ruled that “Hall’s argument that his mental retardation provided a pretext of moral and legal justification had no merit” (Hall v. Florida, 2014). However, after the United States Supreme Court issued its landmark decision in Atkins v. Virginia, Hall was once again in court challenging his sentence based on the 2002 Court ruling, which now prohibited the execution of intellectually disabled defendants. It is also important to note that Hall was convicted for his murders in 1981, well before the Atkins ruling established the prohibition against the execution of individuals with an intellectual disability in 2002. The retroactive application of the Atkins standard now allowed Hall to employ that decision as he attempted to fight his potential date for execution. At question was the constitutionality of the state of Florida’s standard for intellectual disabilities. Approximately five years after Hall’s motion was submitted, based on the Court’s Atkins ruling, the Florida court convened a hearing to take up Hall’s motion concerning his intellectual disability. The record indicated that Hall received nine “IQ evaluations in 40 years, with scores ranging from 60 to 80, but the sentencing court excluded the two scores below 70 for evidentiary reasons, leaving only scores between 71 and 80” (Hall v. Florida, 2014). As a result, the Florida court ruled that Hall could not be found to be intellectually disabled based on the fact that his IQ was not 70 or lower and therefore did not satisfy the necessary criteria for that disorder. As was stated previously, the Court addressed two main concerns related to the Florida court’s refusal to recognize Hall’s claim that he was indeed suffering from an intellectual disability. The Court argued that Florida’s definition for an intellectual disability failed to recognize established medical practice by its exclusive reliance on a “fixed” IQ score (Hall v. Florida, 2014). Though IQ scores are important in determining the presence of an intellectual disability, other evidence, such as adaptive functioning skills, is also necessary in formulating a diagnosis. The Court also argued that the use of IQ scores in the manner outlined in the state’s definition of intellectual disability fundamentally contradicted the way in which these scores were intended to be used. Perlin recognized the potential danger involved in the establishment of a specific cut-off IQ score for determining mental retardation, initially formulated in Atkins (Atkins v. Virginia, 2002; Perlin, 2003).

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Justice Kennedy in his majority opinion argued that Florida’s use of a fixed IQ score to determine intellectual disability fails to recognize that these types of measurement instruments for IQ are not the precise and final result for determining the subject’s level of intellectual functioning; rather, such instruments reflect a range of intellectual functioning that requires the addition of further evidence to appropriately diagnose this condition. Central to the Court’s logic was that the fixed IQ score employed by Florida fails to take into account what is known as the standard error of measurement or SEM. SEM is “a statistical fact reflecting the test’s inherent imprecision,” therefore requiring that individual IQ scores are best understood as a range and not as a fixed score (Hall v. Florida, 2014). The failure to recognize this “inherent imprecision” could likely result in a defendant being denied a legitimate claim of intellectual disability when a fixed score is used to determine eligibility. As a result, the Court found that Florida’s threshold requirement for intellectual disability was unconstitutional and overturned the lower court’s decision. The Court’s rulings in Delling and Hall reflect the continued uncertainty or unwillingness on the part of that judicial body to conclusively state what the relationship should be between the legal system and the community of professional psychiatry and psychology. In Delling, the Court rejected the opinion of informed psychiatric experts concerning the need to establish the availability of the insanity defense across all legal jurisdictions in the United States; yet in Hall, the Court decided to overturn a statutorily established standard for intellectual disability based upon that standard’s disregard for established medical practice. In that decision, Kennedy observed that Atkins acknowledges the inherent error in IQ testing and provides substantial guidance on the definition of intellectual disability. The States play a critical role in advancing the protections of Atkins and providing this Court with an understanding of how intellectual disability should be measured and assessed, but Atkins did give them unfettered discretion to define the full scope of the constitutional protection. (Hall v. Florida, 2014)

On the one hand, the Court decided to continue to recognize the exclusive right of the states to determine how and if the insanity defense would be made available in a given jurisdiction. Yet in Hall, not only did the Court overturn statutorily established criteria for the determination of intellectual disability, it also clearly observed that the states do not have “unfettered discretion” as they do in the establishment of the insanity defense. It could be observed that the results of these two rulings are not contradictory at all insofar as one is clearly focused on the issue of states’ rights and the other upon the appropriate use of a psychological test concerning the measurement of IQ in cases related to intellectual disability. However, though such a distinction seems legitimate, it is one that continues to walk a very fine line of difference concerning how the use of expert testimony should be employed. The logic of the Court seems somewhat strained as it attempts to answer this question.

The Social Construction of Crime, Mental Illness, and the Law Perhaps what emerges as the most daunting challenge faced by forensic psychology is the way in which the introduction of psychological evidence is viewed by the public generally and the criminal justice system specifically when introduced into civil or criminal litigation. As has

INTRODUCTION TO FORENSIC PSYCHOLOGY

been briefly discussed above, such evidence is often perceived by many as the means by which a guilty defendant seeks to shirk his moral responsibility to be held accountable for his actions. Take for example the image of the sexual offender, undoubtedly the most reviled figure within the criminal justice system, by professionals and convicts alike. However, a great many of these offenders have themselves been sexually assaulted as a child, yet little concern is given to their victimization. It is also believed that such offenders recidivate with new sexual offenses at an alarming rate, even though research clearly shows a much lower figure of actual re-offending. New legislation is regularly signed into law prohibiting sexual offenders from being within a certain proximity to a park or school, yet the home remains the most dangerous place for children in America. Many Americans believe that the insanity defense is used almost daily in American courts, even though it is actually sought in only about one half of one percent of all of the criminal trials in the United States, and this figure does not reflect the number of times this defense is actually used successfully. To what can we attribute these obvious contradictions? In their seminal text, The Social Construction of Reality: A Treatise in the Sociology of Knowledge, Berger and Luckmann made the following observation: “The man in the street inhabits a world that is ‘real’ to him, albeit in different degrees, and he ‘knows,’ with different degrees of confidence, that this world possesses such and such characteristics” (Berger & Luckmann, p. 1, 1966). It is from this vantage point that the meaning of the world emerges and its truth is recognized. Perhaps said more simply, the meaning of the world is that which presents itself in our day-to-day experience. However, because we are fundamentally social animals, these meanings are often shared between families and groups that see the world in the same way. However, the social construction of reality is not merely or exclusively the domain of the “man on the street,” but includes any subjective perspective that seeks to view the truth of the world from a specific point of view. For example, the fundamentalist Christian view of the world is much different from that of the atheist, the perspective of the Marxist much different from that of the capitalist, the perspective of the inmate much different from that of the correctional officer. All of these competing perspectives provide a different understanding of the world as experienced, and all are viewed as being true by those who subscribe to their specific “version” of the truth. What all of these competing perspectives of truth share in common is a taken-for-granted understanding concerning what the world means. Take for example the case of James Holmes. One perspective will maintain that he was clearly mentally ill at the time of his horrific crimes, while another perspective will maintain that he was in complete control of his actions and all of his decisions reflect the choices that he freely made. How we view the facts of this case will likely depend upon the way in which we understand the world around us. Is Holmes simply the proof for the widely held belief that the mentally ill are dangerous individuals who need to be confined and kept far away from civil society; or, does this case harken for a greater availability of care for the mentally ill so as to better protect society against such senseless attacks in the future? Does his use of a semi-automatic rifle and the high capacity magazines that allowed him to fire almost continuously into the crowd of the movie theater provide support for the banning of such military hardware, or is this event, along with the tragic school shooting in Connecticut, being used as the vehicle by which our Second Amendment Right to bear arms is about to be taken from us by an oppressive government?

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Regardless how one stands on any of these issues, the social construction of reality is implicated in all of our conclusions. Though it can be argued that certain truth claims are perhaps more subjective than others, the possibility of obtaining a clear view of objective truth will in some way always be hindered by the subjective limitations of human perception and experience. In the next chapter, a more thorough discussion of the social construction of reality will be offered with a specific focus on the social construction of the law and mental illness.

References Adler, J. R., & Gray, J. M. (2010). Forensic psychology: Concepts, debates and practice (2nd ed.; pp. 1–14). Cullompton, UK: Willan. American Psychiatric Association and American Academy of Psychiatry and the Law. (2012). Brief of APA and AAPL as Amici Curiae in Support of Petitioner. Retrieved from www.psychiatry.org/ . . ./Amicus_2012-Delling Berger, P., & Luckmann, T. (1966). The social construction of reality: A treatise in the sociology of knowledge. London, UK: Penguin University Books. Goldstein, A. M. (2003). Overview of forensic psychology. In I. Weiner & R. Otto (Eds.), Handbook of psychology: Volume II forensic psychology (pp. 3–20). Hoboken, NJ: John Wiley & Sons. Meloy, J. R. (1988). The psychopathic mind: Origins, dynamics and treatment. Lanham, MD: Jason Aronson. Perlin, M. (2003). “Life in the mirrors, death disappears”: Giving life to Atkins. New Mexico Law Review, 33, 313–348. Scott, C. L., & Gerbasi, J. B. (2003). Atkins v. Virginia: Execution of mentally retarded defendants revisited. Journal of the American Academy of Psychiatry & Law, 31, 101–105. Shipley, S., & Arrigo, B. (2012). Introduction to forensic psychology: Issues and controversies in law, law enforcement and corrections (3rd ed.). Boston, MA: Academic Press. Walker, L., & Shapiro, D. (2003). Introduction to forensic psychology: Clinical and social psychological perspectives. New York, NY: Kluwer Academic/Plenum. Wrightsman, L., & Fulero, S. (2005). Forensic psychology (2nd ed.). Belmont, CA: Thomson Wadsworth.

Newspaper Stories Campos, P. (2012, August 2). Texas’ next dubious execution. Salon. Retrieved from http://www.salon. com/2012/08/02/would_texas_execute_a_child/ Graczyk, M. (2012, August 7). Marvin Wilson set to be executed after U.S. Supreme Court denies request to stay. (UPDATED). Huffington Post. Retrieved from http://www.huffingtonpost.com/2012/08/07/ marvin-wilson-set-to-be-e_n_1753703.html Grisson, B. (2012, August 7). Supreme Court denies execution stay for Marvin Wilson. Keifer, M. (2007, August, 7). Loughner found competent, pleads guilty to mass shooting. The Republic. Retrieved from http://www.azcentral.com/news/articles/2012/08/07/20120807tucson-shootingloughner-court-hearing.html Memmott, M. (2011, January 8). Rep. Gabriele Giffords, D-Ariz., many others, shot; at least six dead [NPR News Blog]. National Public Radio. Retrieved from http://www.npr.org/blogs/thetwoway/2011/01/09/132764807/rep-gabrielle-giffords-d-ariz-others-reported-wounded-in-shooting Murray, S., & Horwitz, S. (2011, January 9). Rep. Gabrielle Giffords shot in Tuscan rampage; federal judge killed. The Washington Post. Retrieved from http://www.washingtonpost.com/wp-dyn/ content/article/2011/01/08/AR2011010802422.html

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Orovic, J. (2012, August 6). Texas set to execute Marvin Wilson despite diagnosis of ‘mental retardation.’ International Business Times. Retrieved from http://www.ibtimes.com/texas-set-execute-marvinwilson-despite-diagnosis-%E2%80%98mental-retardation%E2%80%99–739036 Rudolf, J. (2012, August 8). Marvin Wilson execution: Texas puts man with 61 IQ to death. Huffington Post. Retrieved from http://www.huffingtonpost.com/2012/08/07/marvin-wilson-execution-texas_n_ 1753968.html The Texas Tribune. Retrieved from http://www.texastribune.org/2012/08/07/advocates-texas-will-executementally-retarded-inm/ Williams, G. (2012, August 8). Texas executes man with IQ of 61 [The Liberty blog]. American Civil Liberties Union of Texas. Retrieved from http://www.aclutx.org/blog/?p=1668

Court Cases Atkins v. Virginia, 536 U.S. 304 (2002) Brown v. Board of Education, 347 U.S. 483 (1954) Clark v. Arizona, 548 U.S. 735 (2006) Delling v. Idaho (2011) Dusky v. United States, 362 U.S. 402 (1960) Frye v. United States, 9293 F 1013 (1923) Hall v. Florida, 572, U.S. ____ (2014) Penry v. Lynaugh, 492 U.S. 302 (1989) Re Briseno, 135 S.W.3d 1 (Tex. Crim. App. 2004) Ring v. Arizona, 536 U.S. 584 (2002) Wilson v. State of Texas, 73043 (1999)

State Statutes Colorado Statutes, Code of Criminal Procedure, 16–8-101, July 1, 1995 Texas Health and Safety Code 591.003(13)

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The Social Construction of Mental Illness and the Law “Seeing (Holmes) in the courtroom today, he is a human just like we all are. He does deserve a fair trial,” said Weaver, who was shot in the arm. “There isn’t a second that goes by that we don’t feel the sting of his actions. Justice will be served in the end.” (Chumley, 2013, May 1st) “He’s a hollow person, very evil,” said Jessica Watts, the cousin of slain theater victim Jonathan Blunk. “He’s absolutely not insane. . . Just, he doesn’t seem like he does a whole lot to help himself. He doesn’t seem real interested in what’s going on in his own future.” (Ingold & Gurman, 2013, June 14th)

Introduction From the two accounts offered above, we get two very different points of view concerning the character, and the very humanness of James Holmes, the man arrested for the Aurora, CO theater shootings. For Weaver, one of the victims wounded in the Aurora shooting, seeing Holmes in the courtroom helped to reaffirm for him the humanness of his assailant. His admission that Holmes is “human just like we all are” (Ingold & Gurman, 2013, June 14th) seems to challenge at least in his own mind what he and others had previously thought of this individual. There is no statement concerning the certainty of Holmes’ evil or any obvious desire for revenge; rather, Weaver’s focus is on the need for fairness and justice, even as he admits that “not a second goes by that we do not feel the sting of his actions” (Ingold & Gurman, 2013, June 14). In the second account, we are provided a much different point of view on the same scene. For Watts, the cousin of one of the individuals killed in the Aurora shooting, there is no discussion of Holmes’ humanness; he is “a hollow person, very evil” (Ingold & Gurman, June 14). She adds, “He’s absolutely not insane.” She is also annoyed by the fact that he seems “uninterested in what’s going on in his own future” (Ingold & Gurman, June 14). Her certainty of his evilness seems to be challenged by the possibility of his insanity, a possibility which

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she adamantly rejects. It is almost as if the possibility of Holmes’ mental illness will nullify her observation that he is simply evil. What is most obvious in these two accounts is that though both individuals were in the same courtroom, witnessing the same proceedings and watching the same defendant, they both came away with two very different accounts of their experience. Perhaps the perceived differences are attributable to the simple fact that Weaver, though present in the theater that night, survived this tragic event with only minor physical injuries, while Watts lost her cousin. Regardless the rationale for the two positions, both reflect a specific understanding or construction of the event that allowed the observers to define the meaning of Holmes’ actions in the way that they do; this is the social construction of reality.

The Social Construction of Reality In Chapter One, we briefly introduced the philosophical theory known as social construction, or the social construction of reality, and briefly explored its implications for the practice of forensic psychology. However, one could still legitimately ask the question, What is the social construction of reality, and how does that reality differ from the reality of everyday life? Well the short answer to that question is that socially constructed reality is the reality of everyday experience; in fact, it could be argued that it is the only reality that we have access to given that our experience of the world is that which makes the world meaningful for us. Perhaps stated more clearly, the social construction of reality reflects the way we make sense of what the world is and means through our experience of it. If we experience the world as a dangerous and treacherous place, our experience and daily activities could very well reflect that reality. We may feel the need to carry a concealed weapon for protection, we may stay away from certain areas or establishments that we recognize (construct) as dangerous, we may refuse to socialize with certain individuals for fear of being taken advantage of by them or in some other way harmed. These views of the world or perspectives concerning what the world means are often established by the beliefs and values provided to us by our immediate families or by the experiences of those with whom we share a similar point of view or understanding as this relates to other people and the world. It is often through these shared experiences that a specific perspective is constructed that seeks to explain not only what the world means, but more importantly, how we also see ourselves reflected in those meanings. For example, if the world is perceived as dangerous, I may then view myself as a potential victim and structure my life accordingly to prevent that victimization from occurring; or, I may agree that the world is dangerous, but decide to structure my life in such a way that rejects the possibility that danger lurks around every corner in every new situation or in every new relationship. Keep in mind, however, that the various ways by which I perceive the world are further complicated by the various ways I am perceived by others. In the previously discussed courtroom accounts, the defendant James Holmes is viewed from the specific perspectives of the court bystanders or actual victims who identify him as either human or evil. Add to this rather complex equation the fact that a variety of other possible constructions of the accused also exist: cold-blooded killer, former student, patient, son, friend, acquaintance, psychopath, schizophrenic, and neighbor, just to name a few. Absent, of course, from this litany of possible constructions or labels, is the way in which Holmes perceives himself. Does he see himself as the cold-blooded killer depicted in the

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media? Is he the Joker of Batman fame or is he simply someone suffering from the chronic mental illness of schizophrenia that greatly challenges all such reflection? If mentally ill, has he been able to accept his illness or does he reject the existence of such a diagnosis altogether, or does the fact of his mental illness nullify his legal culpability for his violent actions? Any or all of these possibilities may be true depending upon the perspective of the viewer. Though we always share everyday life with other people, this fact tells us little about how these individuals are actually experienced. Berger and Luckmann (1966) in their important text, The Social Construction of Reality: A Treatise in the Sociology of Knowledge, offered the following description of what they called “the face-to-face situation”: In the face-to-face situation the other is appresented to me in a vivid present shared by both of us. I know that in the same vivid present I am appresented to him. My and his ‘here and now’ continuously impinge on each other as long as the face-to-face situation continues. (p. 29)

Berger and Luckmann (1966) continued with the following observation: For instance, I may view the other as someone inherently unfriendly to me and act toward him within a pattern of “unfriendly relation” as understood by me. In the face-to-face situation, however, the other may confront me with attitudes and acts that contradict this pattern, perhaps up to a point where I am led to abandon the pattern as inapplicable and to view him as friendly. (p. 30)

Regardless of the physical proximity of the other person encountered in the face-to-face situation described by Berger and Luckmann, there is no guarantee that the closeness of this individual will allow me to change my image of them. In fact, it is often true that these negative images or beliefs of another person remain fixed, even when the person’s actions or attitudes challenge the way in which they are currently being perceived within the face-to-face situation. The case of Trayvon Martin tragically exemplifies this reality. Recall that Martin was simply walking in his father’s neighborhood on the way to a convenience store, while talking on his cell phone to his girlfriend, when he was followed and then confronted by George Zimmerman, who ultimately took his life (Polizzi, 2013). In this encounter, the closeness of the other did not contradict Zimmerman’s image of Martin. In fact, Zimmerman was so convinced of Martin’s criminal intent that he began to follow him, and even contacted the police to report the presence of this suspicious individual roaming his neighborhood. However, what is most difficult to ignore is the absence of any type of behavior that could in any way legitimize Zimmerman’s view of Martin, except of course the fact of his blackness, which for Zimmerman is viewed as being synonymous with criminality (Covington, 2010; Fanon, 1967; Gordon, 1995; Pager, 2007; Polizzi, 2007, 2013; Rome, 2004; Yancy, 2008). How then did Zimmerman get acquitted? Consider, for example, that many conservative pundits cheered when the accused, George Zimmerman, was acquitted in the killing of Trayvon Martin. Central to this celebratory moment was the belief that Zimmerman had acted correctly in taking Martin’s life, and as a result should not be held criminally responsible for simply acting in self-defense. From this perspective, it was Martin who instigated the course of events that ultimately led to this altercation’s tragic result (Polizzi, 2013). In following this logic to its conclusion, perhaps

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Martin would be alive today, if he had simply accepted the socially constructed fact of his own criminality. Such “logic” constructs Martin as a self-contained social entity, as a threatening rational actor, completely uninfluenced by his social context; even though it is the very structure of this context that first reduces his presence to that of social threat, which in turn provides the necessary legitimacy for his pursuit. The Florida jury that chose not to convict Zimmerman apparently believed it irrelevant that it was the defendant who initially instigated and continually escalated this encounter. It was also apparently inconceivable that Martin could possibly have viewed Zimmerman’s actions as threatening or in some way validating his own right to evoke his “stand your ground” privileges based upon Zimmerman’s unrelenting behavior (Hart, 2013). Martin’s perception of the potential threat posed by the pursuing Zimmerman simply held less social currency with the jury than did Zimmerman’s suspicion of Martin’s presumed criminal intent. Even as the jury viewed the autopsy photos of Martin’s lifeless body, defense counsel thought it necessary to remind them that the image of Martin in the photograph was not the figure who Zimmerman confronted on the night Martin was killed (Polizzi, 2013; Vargas & James, 2013). Rather, the jury was directed to the images of Martin retrieved from his Twitter account, which depicted him as “tattooed, bruised on his shoulder, and showing his middle finger; in another picture, he is smiling, gold-toothed” (Vargas & James, 2013, p. 195). Placed within this larger context, the autopsy photo becomes the end result of a chain of events that connects the image of the “threatening tattooed teen” with his lifeless image on the autopsy table. What becomes tragically ironic here is that it was Martin who ultimately was held exclusively responsible for the racist attitudes harbored by Zimmerman, which ultimately led to his death. Zimmerman’s pursuit of Martin did not appear motivated by any specific actions or behaviors that could be legitimately viewed as criminal in nature (Polizzi, 2013). Rather, Zimmerman constructs and pursues his quarry based on Martin’s “suspicious” appearance, which in turn identifies him as a potential suspect in a string of recent burglaries that had occurred in the neighborhood prior to Zimmerman’s encounter with him. Yet it was Martin who was ultimately viewed as responsible for not only his decision to confront his pursuer, but also for the racist beliefs held by Zimmerman, which fueled the “logic” of this tragic encounter. Hart (2013) powerfully observes: “Trayvon Martin was dead before his deadly encounter with George Zimmerman. His execution (I use this loaded word intentionally) was a postmortem event; a ratification after the fact of the facts of black male being-inAmerica” (p. 91). When we return to the court hearing involving James Holmes, we see similar examples of both of the possibilities discussed by Berger and Luckmann above. For Weaver, his perception of Holmes seems to change based upon his indirect interaction with him in the courtroom. Within this experience, the face-to-face encounter between Weaver and his assailant seems to transform his previously “unfriendly” attitude toward him. The unthreatening courtroom presence of the disheveled and vacant Holmes confronts Weaver’s previous attitudes and beliefs, which seems to allow for his recognition of Holmes as being “a human like we all are.” In the courtroom, Holmes’ human frailties and vulnerabilities become more recognizable, apparently making it much more difficult for Weaver to continue to view his assailant as a monster. This change of perception does not appear to be present in the perspective of Jessica Watts.

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For Watts, Holmes remains more or less unsympathetic and unchanged. Her view of her cousin’s killer appears constant, insofar as any recognition of his humanness is denied or at the very least blurred by the fact of his evil acts. Within this encounter in the face-to-face situation, Holmes retains the image of the “inherently unfriendly” other that remains completely unredeemable in her eyes. When confronted by the possibility of Holmes’ potential insanity, she is quick to reject such a conclusion. The short narrative provided about Watts makes it difficult to determine whether or not her objection is related to her belief that Holmes is sane and therefore responsible for his actions, or due to the personal implication such a belief would impose on her current view of him. What does remain clear is her need to keep the question of the defendant’s mental health out of her formulation of this face-to-face situation. But how would such a face-to-face situation unfold in a less confrontational context? Take for example the individual who suddenly begins to experience auditory or visual hallucinations and attempts to describe this experience to a close friend. Perhaps, unlike the two encounters discussed above, the issue of closeness within this relationship evokes potentially different implications for its social construction. For example, how do these two friends understand the issue of mental illness, and its likely effect on their friendship? Does the individual listening to her friend’s account become more empathic to her plight, or does this revelation evoke fear and uncertainty, which will ultimately undermine the relationship? Does the emerging onset of this life-changing mental illness cause this individual to withdraw from her friend, fearing that she will not faithfully protect her secret? How then does the sudden onset of a severe mental illness impact this relationship? Regardless of how often she is reminded by her friend that what she is experiencing is actually not real, the hallucinations continue. Regardless of how often this individual attempts to describe this experience to her friend, the more concerned or frightened the person hearing this story may become. How this relationship moves forward will be largely based upon the way in which both individuals construct the meaning of mental illness. Instrumental to the construction of this meaning will be the ways that personal experience, familial attitudes, beliefs, and social expectations help to influence this arrived-upon understanding.

The Social Construction of Mental Illness DSM and Mental Illness As we begin to explore the social construction of mental illness, it is important to point out that no single definition or conclusion is really possible. Because one’s construction of mental illness will emerge from the context of one’s experience, be that professional or layperson, the construct of mental illness will be determined by the perspective of the viewer. The “knowledge” employed to arrive at any given conclusion will likely differ across these perceptual frames of reference, therefore making it difficult to conclude that the presence of such “knowledge” will definitively validate the meaning of those constructions for all individuals. Knowledge, like beauty, is very much found in the eye or mind of the beholder. The socially constructed nature of mental illness is perhaps nowhere more evident than in the historical development of the Diagnostic and Statistical Manual of Mental Disorders, also known as the DSM (Kutchins & Kirk, 1997). In its most general sense, the purpose of the DSM since its inception in 1952 has been to provide a “scientifically” based and focused system for the diagnosis of mental illness. Stated

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more simply, the DSM constructs and categorizes differences between what is viewed as a normal experience or feeling and what is not. However, as the history of this text clearly reveals, the parameters for determining these distinctions have constantly changed over time (Clegg, 2012; Kirk & Kutchins, 1992; Kutchins & Kirk, 1997). What was previously viewed as abnormal in one version of the DSM was viewed as normal in a subsequent revision of the manual and vice versa. Perhaps the most famous example of this diagnostic change of heart is witnessed in the rejection of homosexuality as a “disease.” Homosexuality, previously described as a type of sexual deviation in DSM-II, published in 1968, was removed as a diagnosable disorder in DSM-III, which was introduced in 1980 (Kirk & Kutchins, 1992; Kutchins & Kirk, 1997). Within a span of just 12 years the clinical understanding of homosexuality shifted from that of a pathological condition to that of a normal expression of sexual and personal identity. It is important to note, however, that this sudden change in the clinical classification of homosexuality, no longer identified as a clinical condition by DSM, was partially motivated by the general intent of its authors to correct what they perceived as the psychodynamic theoretical bias of past manuals (Kutchins & Kirk, 1997). With its publication in 1980, DSM-III was touted by its creators as a theory-neutral document. As such, it represented a fundamental philosophical departure from previous DSM manuals, which were viewed as having moved too far from the medical roots of American psychiatry. “DSM-III also explicitly attempted to remove all evidence of earlier psychodynamic explanations of disorders and instead, reframed diagnostic categories according to symptom clusters or patterns” (Clegg, 2012, p. 366). Mental illness was now to be viewed from the perspective of specific disorders that could be placed in distinct diagnostic categories, based on the identifiable symptoms or criteria the client presents (Clegg, 2012). Since the publication of DSM-III in 1980, a total of four new editions of the manual have been introduced, including DSM-5 which was recently published in the spring of 2013. Though no significant revisions can be witnessed within DSM-III-R, DSM-IV, and DSMIV-TR, the same cannot be said for DSM-5, which offers significant changes of focus over previous manuals (Krueger & Eaton, 2010). The degree to which these changes reflect a positive new direction has been the focus of much debate and heated criticism. Though Krueger and Eaton (2010) see the newest version of the DSM as a positive work in progress, their opinion is not shared by all in the psychiatric community. As with with earlier versions of the manual, typically occurring experiences such as grief or everyday forgetfulness are now diagnosable disorders in the DSM-5 (Frances, 2012). The particulars of that debate cannot be taken up here, but suffice it to say that professional differences continue to be voiced concerning what constitutes mental illness. The meaning of mental illness is a difficult concept to define even for psychiatric and clinical professionals, and is almost always related to a specific theoretical position or approach by which this phenomenon comes to be understood. The sudden onset of any given set of psychiatric symptoms is often immediately contextualized by the practitioner within a specific theoretical frame of reference that helps to define both illness and course of treatment. But here is where things get tricky. One practitioner may focus solely upon the presenting symptoms of his or her patient or client, while another may focus upon the degree to which these same symptoms reflect the presence of a specific psychiatric condition or disorder, which in turn will direct the focus of the psychotherapeutic process. The way in which either of these clinicians ultimately arrives at their diagnostic conclusion is hardly a value-free project.

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As we briefly saw in our discussion of the development of the DSM, much of the debate and rationale that resulted in revisions to the manual were motivated by theoretical interests related to the formulation of psychiatric diagnosis and treatment. From 1952 through 1980, the DSM reflected a decidedly psychodynamic approach to diagnosis that changed little over that period of time (Grob, 1991). The introduction of the symptom-focused orientation of DSMIII in 1980 returned psychiatric diagnosis to its so-called medical origins, and though it certainly could be argued whether or not this “return” could be legitimately considered atheoretical, what it did accomplish was to drastically minimize the influence of psychodynamic approaches in the diagnosis of mental illness. Subsequent manifestations of the manual stayed the course initially set out in DSM-III by the continued focus on what has been described as “objective empirical evidence.” The newest incarnation of the DSM published in 2013 reflects a decided departure from its predecessors, and reflects the emergence of another set of professional interests, equally convinced that this revision of the manual represents the next “best direction” for professional psychotherapeutic practice in America and beyond. The introduction of the DSM-5 represents a significant change in the practice of professional psychology in America. Heading the list of these changes is the way in which the classification and description of mental illness will occur. In previous versions of the DSM, specific criteria were employed to identify discrete categories of mental illness. Basically what this means is that if a client reports a specific number of symptoms that are consistent with a specific clinical disorder or condition, it would then be legitimate to diagnose that individual with that disorder. Once these criteria or symptoms had been established and all other differential diagnostic possibilities had been ruled out—that is, no other diagnostic category better explained what the client was currently experiencing—the clinician could then reliably begin to treat the client for his specific mental health issue. This is no longer true for the DSM-5, or at the very least, no longer true in quite the same way. Rather than continue with a system of classification that sought to identify discrete categories of mental illness, DSM-5 focuses on what has been described as the “dimensionality of mental illness,” which views psychological symptoms as more fluid than fitting into a discrete clinical category. However, some have argued that the inclusion of a dimensional approach to diagnosis does not replace the old system of discrete clinical categories employed in earlier versions of the DSM; rather it enhances this system by adding a degree of variability within these discrete diagnostic categories (Kraemer, 2007). Though a number of other specific clinical differences exist between the DSM-IV-TR and the DSM-5, the above discussion will need to suffice. However, it is important to note that the professional disagreement with the new manual has been quite intense, and will likely remain so for the foreseeable future. Regardless the disagreement often witnessed between practitioners concerning the nature of diagnosis, such debates often have little effect on the way in which individuals and their families attempt to cope with the reality of mental illness in their day-to-day lives. Where is the patient or client in this debate and how does the subjective experience of the individual suffering from mental illness contribute to or figure into the social construction of this phenomenon? In an editorial published in the American Journal of Psychiatry, the authors criticize DSM-III for removing subjective experience of both clinicians and clients from the diagnostic process. These authors made the following observation: Along with clinicians’ subjective impressions, however, the subjective experiences of people with mental illness were removed as well. The subjective experiences of patients could be a valuable

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component of future editions of DSM, since people’s experiences of a disorder may indicate major underlying processes and may differ from the characteristics of the disorder objectively perceived by outside observers. (Flanagan, Davidson, & Straus, 2007, p. 391)

What these authors addressed is the perspective character of the social construction of reality. By focusing exclusively on the so-called objective characteristics of mental illness, not only do we ignore how mental illness is actually experienced by the individual, but by so doing we privilege an account of that situation that will likely result in the individual’s alienation from his own experience. What this implies for the individual client is that only those characteristics recognized by the treating physician or clinician would be viewed as “objectively” valid. Within this account it is important to point out that “objective” is not really objective; that is, it is not actually value-free. Rather, it reflects a subjectively constructed professional stance that assumes scientific neutrality concerning what is being observed, and claims that it is a stance without specific perspective or interest, which by definition is philosophically impossible for human beings to perform (Giorgi, 1970). Taken from a slightly different philosophical frame of reference, the above observation reflects what Herbert Mead described as the “I/me” aspect of the self. Mead described his conceptualization of the self in the following way. From this perspective, the “me” reflects the various ways in which the individual is socially constructed by the attitudes of others. As such, the “me” generally reflects a set of social expectations concerning the way the “I” is expected to behave in any given social situation. Mead (1967) continued by stating, The “I” is the response of the organism to the attitudes of the others; the “me” is the organized set of attitudes of others which one himself assumes. The attitudes of the others constitute the organized “me,” and then one reacts toward that as an “I.” (p. 175)

Mead (1934, 1967) added that though a certain degree of expectation exists concerning the response of the “I” to these “me” attitudes, this does not guarantee that the “I” aspect of the self will respond as anticipated or expected. All of us have likely found ourselves in social settings where the “appropriate” behavior or response for a given interaction or situation was not provided. The inadvertent or poorly timed joke, the seemingly private comment heard by others, the backhanded compliment or the unsolicited imposition of a truthful observation or opinion, all reflect examples of this disrupted interaction between the expectation of the “me” and the response of the “I.” A similar dynamic exists in the setting of formal or professional interactions as well. Take for example the attitude offered by Jessica Watts. Based on the short narrative she supplied to the media, it seems that she resented the courtroom demeanor of her cousin’s killer and seemed to believe that his attitude and behavior was inappropriate relative to the seriousness of the situation. Her construction of the Holmes/“me” self anticipated a much different social presence than was actually offered by the defendant. The expectation of this “me” attitude anticipated a fully engaged “I,” rather than the uninvolved and vacant character she perceived him to be. Her apparent anticipation that Holmes would be more alert, involved, and concerned about his situation was seemingly challenged by his uncaring silence, which in turn becomes unequivocally viewed as the rational response of the “I.” In returning to the observation offered by Flanagan, Davidson, & Straus above, concerning the need to include the subjective experience of the client in psychotherapeutic treatment, a

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different manifestation of the “me/I” self is explored. Within the context of this more professional interaction, a distinction is made between the subjective experience of the client and the “objective” quality of the symptoms being discussed and diagnosed by the evaluating clinician. Notice how the subjective experience of mental illness is devalued and replaced in DSM-III by the privileging of the “objective” perception of outside observers. What such professional face-to-face encounters evoke is the covering over of the “I” function of the self formulated by Mead. In the absence of subjective experience or reflection, the “I” function of the self is conflated into the “me” and becomes voiceless. Though Mead clearly recognizes the significant role played by this “me” function in the social construction of self, he includes the “I” response as a way to mediate the two aspects of this process. By eliminating the “I” from the context of professional diagnosis, we also remove the ability of the client to respond in a way that is validated in this face-to-face encounter. Rather than invite clients to share their subjective experiences of their disorder, their disorders are viewed and constructed by the exclusive perspective of their psychological symptoms. The consequence of this type of face-to-face encounter between clinician and client occurs not because this perspective emerges from a scientifically neutral or objective attitude, but because the privileged orientation of professional psychiatry, itself a socially constructed perspective, is seen as more valid than the nonprofessional, unscientific, and unreliable account of the individual describing the meaning of their own experience of mental illness. However, such an omission should not imply the irrelevance or unimportance of the subjective view of clients or their family, simply based on its lack of professional grounding; rather, it reflects the degree to which the “me/ I” function of the self is contextually derived. Unfortunately, what is lost in this disrupted face-to-face encounter are the potential ways in which this subjective component of mental illness could help to better inform the objectified stance of the treating clinician. Research focused on this concern (Mittal, Drummond, Blevins, Curran, Corrigan, & Sullivan, 2013; Robinson et al., 2012; van der Sanden, Bos, Stutterheim, Pryor, & Kok, 2013; Watson & Angell, 2013) has attempted to explore how individuals with mental illness attempt to make sense of not only their specific experience, but also the various ways their diagnosis is perceived by family and society. One of the most commonly recognized themes associated with the struggle with mental illness by both afflicted individuals and family members alike is the social stigma this experience evokes.

Stigma and Mental Illness Erving Goffman (1963) in his text, Stigma: Notes on the Management of Spoiled Identity, described his construction of stigma in the following way: Society establishes the means of categorizing persons and the complement of attributes felt to be ordinary and natural for members of each of these categories. Social settings establish the categories of persons likely to be encountered there. The routines of social intercourse in established settings allow us to deal with anticipated others without special attention or thought. (p. 2)

Goffman (1963) continued by identifying what he calls the three general types of stigma: stigma related to deformities of the physical body; stigma reflecting defects in individual moral character; and group or “tribal” stigma related to ethnicity, country, and religion.

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Regardless the specific type of stigma, its target—be it an individual or group—is immediately socially constructed as being “less than normal” or in some way dangerous to the general public. “We construct a stigma-theory, an ideology to explain his inferiority and account for the danger he represents, sometimes rationalizing an animosity based on other differences, such as those of social class” (Goffman, 1963, p. 5). We may add to Goffman’s typology of stigma, the affliction of mental illness. Historically, people with mental illness have always been stigmatized. This stigma pervades writings from medieval to modern times. Thought to be possessed by demons in medieval times, and viewed as constitutionally weak, dangerous, and responsible for their own plight in recent decades, the diagnosis of mental illness is almost always accompanied by stigma. (van der Sanden et al., 2013, p. 73)

Mental illness, whether caused by the hand of a malevolent spirit, or as the result of a lazy or dangerous psychology, reflects a type of “mental deformity” resulting in the social marginalization of the afflicted individual (Arrigo, Bersot, & Sellers, 2011; Foucault, 1965; Goffman, 1961; Rothman, 2002a, 2002b; Scull, 2005; Shalin, 2013). As such, these individuals are forced to confront not only the specific reality of their illness but also the various ways in which they themselves are socially constructed by others (Arrigo, Bersot, & Sellers, 2011; Goffman, 1961; Rothman, 2005b). In a recent study exploring the experience of mental illness from the perspective of patients and their families living in rural communities, researchers found stigma to be the most prominent barrier for these individuals in receiving necessary mental health treatment (Robinson et al., 2012). The study revealed that individuals were more likely to try to hide the fact of their mental illness than have others in the community become aware of their problem; this includes the parents of individuals experiencing mental health issues. Participants agreed with one another that even patients’ family members, those closest to them, often ignored or failed to acknowledge their problems. Because of this, participants (both parents and family members participating in this study) felt rejected and even ostracized by family. This felt like betrayal to many participants and was a barrier to getting help. (Robinson et al., 2012, p. 312)

In another study, researchers explored the experience of stigma associated with the diagnosis of Posttraumatic Stress Disorder (PTSD) in combat veterans (Mittal et al., 2013). PTSD, according to DSM-5, is a stress-related anxiety disorder caused by exposure to actual or threatened injury, death, or sexual violence characterized by intrusion symptoms (like flashbacks or nightmares), avoidance symptoms (avoiding situations similar to the traumatic one), and negative alterations to thoughts and feelings (memory gaps, depression, or anger) (APA, 2013). In this study, combat veterans were asked to describe what it meant for them to be diagnosed with PTSD. These veterans explored the meaning of their mental illness, which necessarily included not only their own personal understanding of their situation but also the various ways in which the general public perceived them as being unpredictable and potentially very dangerous based on their prior combat experiences (Mittal et al., 2013). Study participants admitted, much like the subjects in the Robinson et al. (2012) study, that they initially resisted entering treatment in an attempt to avoid the social stigma connected to this type of mental

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illness (Mittal et al., 2013). Though the participants of the study rejected most of the stigmatizing labels and stereotypes related to PTSD, they appeared most affected by the belief that they were responsible for their condition based on the fact that they volunteered for military service. One participant stated, “Strangers, they blame you. It’s your fault for having PTSD. They treat you like trash or the old shoes, and they don’t care about you” (Mittal et al., 2013, p. 89). Another participant of the study stated, “People treat drug addicts like freaking lepers. You don’t want them people around. They treat us the same way because it’s kinda like we asked for it” (Mittal et al., 2013, p. 89). Within this context, mental illness is constructed as the result of an intentional act, or a rational choice, which in turn disqualifies the individual from any empathy or concern. Absent from this stigmatizing construction of combat-related PTSD is any recognition that these individuals are also casualties of war. This would challenge the social construction of the wartime soldier who is often portrayed as the heroic and invincible protector of American values. So powerful is this idealized representation of the combat veteran that human frailty is simply not allowed to be witnessed alongside such heroic valor. An example of this distinction is reflected by one of the study participants in the following quote: Socially acceptable to have PTSD because of a hurricane hit[ting] your house or where your grandpa got killed in the hospital. I’m from that area. It’s socially acceptable for that. It is not socially acceptable to sign a piece of paper that says I will commit to doing this and go and do it and have a problem with it. (Mittal et al., 2013, p. 90)

What we see in the above quote is the way in which human suffering and vulnerability becomes codified and validated based upon social context. Within this context, the unexpected natural disaster or the unexpected death of a loved one is deemed to be a legitimate circumstance by which PTSD becomes socially accepted. In these examples, the onset of PTSD is the result of an unwanted and uncontrollable event, outside of the control of the individual. The same consideration or recognition apparently does not hold true for the soldier suffering from combat-related injuries. For these individuals, the intentional act of enlistment nullifies any possibility of public sympathy for the simple reason that this was a course of action chosen by the individual and therefore is not socially constructed as an accidental event. From the perspective of the combat veterans in this study, these face-to-face encounters describe the struggle that often ensues between the “me” and “I” aspects within the process of the social construction of the self. As soldiers, these individuals are constructed as infallibly heroic warriors by the “me” function of the self until such time as the effects of their experience become suddenly manifest. As the result of this sudden fall from grace, invulnerability is transformed into weakness and heroism into cowardice. The resulting change in this social construction of the “me” confronts the “I,” with these competing representations of the self: the self as unworthy and damaged and the self as resilient and strong. It is therefore not surprising that these individuals not only resisted entering treatment, but also tended to interact with other veterans who are better able to empathize with their experience from the perspective of the “I” function of the self. Unlike the more socially anonymous versions of the “me-self ” that vacillated between idealized heroism and

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marginalized inferiority, fellow veterans were much more willing to recognize a broader range of emotional responses given the realities of their own lived experience. Similar strategic decisions were employed by those individuals with mental illness living in rural communities. These individuals, much like the group of veterans discussed above, also sought to combat the stigma of mental illness by surrounding themselves with those willing to provide a more empathic construction of the “me” function of the self. In conjunction with this strategy was the attempt to hide the presence of mental illness from those who would be less inclined to construct the “me” in a more understanding light. It will be recalled that in Chapter One, we discussed the decision made by a capital murder defendant’s defense team not to introduce the fact of his mental disability at the time of trial. In this encounter, defense counsel concluded that the introduction of a claim of mental retardation would aggravate, rather than mitigate, their client’s chances in avoiding the death penalty. Within this context, the recognition of a “mentally retarded-me” would exacerbate the already negatively constructed “me” and likely increase the perception of the defendant’s dangerousness and unpredictability in the eyes of the jurors. The construction of the mentally ill individual almost always includes the characteristics of dangerousness and unpredictability as core qualities of these me-self formulations. As seen above, individuals suffering from mental illness are often confronted by images of the meself that rarely reflect an accurate representation of the experience of the “I-self ” targeted by these constructions. Such perceived biases concerning the character of the mentally ill individual unfortunately are not reserved to the so-called “man on the street,” but are often held by professional types in more formal face-to-face settings (Arrigo, 1993, 1996; Kupers, 2013; Maruna, 2004; Mercer, M., 2008; Polizzi, 2013; Ryals, 2009). One such example of this type of encounter can be witnessed in the face-to-face interaction with law enforcement (Arrigo, Bersot, & Sellers, 2011; Manning, 2008; Williams & Arrigo, 2005). Perhaps the most singularly significant change in the day-to-day duties of police officers in American communities over the last three decades has been the increase in calls or encounters directly related to mental health concerns. These encounters have become such a regular part of the routine of policing that officers are now euphuistically called “street corner psychiatrists” (Teplin & Pruett, 1992). Though many in the law enforcement community likely would welcome a return to traditional policing, in the absence of readily available mental health services, officers are now often seen as the first line of defense in addressing the complex set of issues related to mental illness (Watson & Angell, 2013). Unfortunately, the increase in mental health-related concerns has continued to outpace officer training in this increasingly significant area of law enforcement. Officers regularly report that individuals suffering from mental health concerns are often unable to respond appropriately to police interventions, which in turn may result in a further escalation of the encounter. This inability to respond to police in an expected way helps to reinforce the stigma often associated with mental illness, and helps to reinforce the belief concerning mentally ill individuals’ dangerousness and unpredictability. The officer on the scene views this individual initially from the “me” configuration of the self that anticipates the full compliance of the individual “I” in this face-to-face encounter. When the anticipated response is not forthcoming, the “me function” of the self provided by the officer now sees the individual as defiant, noncompliant, and unwilling to recognize the authority of the officer. If the officer in this situation is unwilling to alter his or her tactical interaction with this

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individual, a violent or potentially fatal consequence may result (Klinger, 2006; Woods & Polizzi, 2008). The following example may help to illuminate this point. Upon my arrival to my second doctoral internship rotation within the Pennsylvania Department of Corrections, I was given a list of clients who had been previously seen by staff clinicians. One of these clients, diagnosed with schizophrenia, paranoid type, had reported that he was having difficulty with his medication and was experiencing a return of paranoid symptoms. As his condition worsened, he became more and more paranoid and much less trusting of penitentiary staff. The fact that he had been suddenly transferred to another clinician just as his situation started to change for the worse certainly did not help the situation. One afternoon after lunch, I was called to the cell block to talk with this individual. When I walked onto the cell block, I was informed by the block supervisor that my client was acting up and he was refusing to leave his cell, which was interfering with the resumption of normal movement on the block. I was told that I would either get him to agree to leave the cell or he would order that the inmate be physically removed. In my attempt to prevent the latter, I went to my client’s cell and talked with him about leaving the cell and coming with me to my office where we could talk. Though we were able to have a calm conversation, he was certain that the “police” had already decided to forcibly enter his cell. To that effect, he informed me that he had removed all of his rugs from the floor, so when the police assault began, he would not lose his footing in the struggle. My reply was, “Don’t worry they’re not going to ‘rush’ your cell.” His response was, “Oh yeah, then why are there so many guards behind you?” When I turned around, there were nearly a dozen guards clearly getting ready for a physical encounter with this individual. I immediately went back to the block supervisor and asked him why there were so many guards so close to his cell. His response was something like, “Look Dave, I really don’t have time for this. I have guys that have to go to work, or other programs, so he is either coming out now or I’m going to have him removed.” I responded by saying, “He was ready to come out until he saw all those guards by his cell door.” Once all but two of the correctional officers were ordered to stand down, I returned to the cell, and the individual agreed to exit and we walked to the Mental Health Unit without incident to straighten out his difficulties with his current regime of medication. The above account seems to accurately reflect the two main themes identified by police officers in the study conducted by Watson and Angell (2013) when involved with a person suffering from some type of mental illness: “persons with mental illness do not respond well to traditional policing tactics and such encounters . . . are more time-consuming than other types of calls, and are more likely to result in injuries” (p. 30). In fact, all three of these themes were at least potentially present in the narrative related to the incarcerated mentally ill inmate. The individual certainly did not respond well to the supervisor’s willing show of force to remove him from his cell; in fact, this strategy actually escalated the situation by increasing the degree of paranoia experienced by the individual. Though the encounter did take a little more time to resolve, it did so without any injury to the inmate or penitentiary staff. Additionally, the above penitentiary narrative also reflects a number of other related findings offered by Watson and Angell. Watson and Angell (2013) found that in general an individual was most likely to cooperate with the police when they were treated fairly and with respect. However, this study concluded that the meaning of that cooperation differed based upon the degree to which the individual felt stigmatized in these encounters. If the perception of stigma was low, the individual likely

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felt respected by the police and was more cooperative with them. Unexpectedly, individuals perceiving a high degree of stigma or stigmatizing attitudes from police tended to be cooperative and compliant regardless of their actual treatment by law enforcement. For these individuals, however, compliance was related to the anticipated consequences likely to be experienced from noncompliance and not due to any authentic respect for the officer. If we return to the penitentiary narrative, certain similarities can be recognized. The initial response of the inmate suffering from symptoms of schizophrenia, paranoid type was to become more and more suspicious of the uniformed personnel that were starting to assemble and congregate within view of his cell. His unwillingness to comply was viewed as not only an act of individual defiance but also as an open invitation for others on the block to act in a similar way. Once constructed as a potential threat by cell block authorities, the fact of this individual’s deteriorating mental health became irrelevant to the situation. The more the inmate resisted the demands of uniformed officers, the more frustrated and angry they became. Though this individual remained resistant to institutional authorities, he seemed undeterred by the potential consequences of his actions. Unlike those encounters between police and mentally ill citizens described by Watson and Angell in their study, the fear of retribution appeared to be a much less significant factor in this penitentiary encounter. Rather than fearing police retribution, this individual was prepared to confront it straight on and take his chances. Obviously part of this stance was motivated by the client’s deteriorating mental health and the increasingly belligerent strategy pursued by penitentiary authorities, which in turn exacerbated and validated the individual’s paranoid ideation. The arrival of the individual’s therapist introduced another aspect of penitentiary authority that was better able to mediate a resolution to this encounter. What is perhaps played out between these two images of penitentiary authority is the way the individual seems to construct these conflicting relationships. Though both are inseparably connected to the structure of institutional power, the interaction with correctional officers is perhaps experienced as being so overdetermined in its implications that resistance becomes the only recognized response. The psychotherapist, no less a function of institutional control, provides a more fluid set of possibilities offered in a far less threatening manner. Compliance with the clinical penitentiary authority is experienced in a beneficial and more respectful way that helped to deescalate the situation. It also appears as if the client experienced a much lower degree of stigma in this clinical relationship, making compliance easy to achieve. What the above discussion has attempted to demonstrate are the various ways in which the stigma of mental illness is experienced by the targeted individual. Consistent across all of these differing social contexts is the often inaccurate belief that the individual suffering from mental illness is both dangerous and unpredictable. One of the many consequences of these lingering constructions is the evolving legal image of mental illness as constructed within the law.

Mental Health and the Law Mental disorder among criminal defendants affects every stage of the criminal justice process, from investigational issues to competence to be executed. As in all other areas of mental health law, at least some people with mental disorders, especially severe disorders, are treated specially by the criminal law. (Morse, 2011, p. 886)

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Taken in its most general sense, mental health law represents the legal formulation for the meaning of mental illness as it pertains to the formal process of adjudication in American courts. Perhaps stated more specifically, mental health law in all of its various manifestations attempts to establish the legal parameters by which an individual’s behavior and level of psychological functioning is deemed sufficient to render one legally responsible for his or her actions. Central to this meaning generating the legal process is the way that mental illness is formally defined. Take for example the discussion concerning the legal formulation of mental retardation provided in Chapter One of this text. Recall that the Supreme Court, in its landmark ruling Atkins v. Virginia, 536 U.S. 304 (2002), prohibited the sentencing of individuals with mental retardation to the death penalty. However, this prohibition against such sentencing did not include a specific legal definition for this condition. Rather, the responsibility for developing the legal standard for mental retardation would be left to the states. It is therefore important to note that individual states would be under no legal obligation to adhere to the clinical or psychiatric definitions of this condition; a fact clearly witnessed in the distinction made in Texas law between the definition of mental retardation as it relates to eligibility claims for state social services and the legal definition of this type of cognitive impairment for criminal adjudications. The process by which the psychiatric condition of mental retardation has been legally constructed by the Court can be witnessed in the opinions offered in Penry v. Lynaugh (1989) and Atkins v. Virginia (2002).

Penry v. Lynaugh (1989) In Penry v. Lynaugh, 492 U.S. 302 (1989), the Court sought to answer whether or not the sentencing phase of the trial violated Penry’s constitutional protection against cruel and unusual punishment prohibited by the Eighth Amendment of the U.S. Constitution. Johnny Penry was 22 years old at the time of his arrest, and was convicted and sentenced to death for the brutal rape and murder of Pamela Mosely Carpenter in 1979. At the time of trial it was medically established that Penry suffered from mild-to-medium mental retardation, had the psychological age of a 6-and-a-half-year old and had an IQ of 54 (Penry v. Lynaugh, 1989; Scott & Gerbasi, 2003). Penry’s medical record revealed that he had been diagnosed with organic brain damage that had likely resulted from a trauma at birth, which drastically influenced his ability to learn and resulted in his failure to complete first grade (Penry v. Lynaugh, 1989). The record also revealed a long history of physical abuse during childhood at the hands of his mother. Upon receiving his death sentence for the rape and murder of Pamela Carpenter, Penry filed an appeal claiming that the mitigating evidence concerning the severity of his cognitive impairment was not allowed sufficient consideration by the jury, thereby violating his Eighth Amendment protection against cruel and unusual punishment. At issue here was whether or not the particular aspects of Penry’s mitigating evidence or medical history were given appropriate consideration in the jury’s deliberation during the penalty phase of the trial, which is constitutionally required per the Court’s ruling in Jurek v. Texas, 428 U.S. 262 (1976). Penry also filed an additional claim that challenged the constitutionality of the sentence, given the severity of his diminished cognitive capacity (Perlin, 2003). Justice O’Connor, writing for the majority, stated that the Court agreed to hear this case to resolve two questions. First, was this sentence in violation of the Eighth Amendment because

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of the inadequate instruction to the jury concerning how to apply the mitigating evidence of Penry’s mental retardation as this related to the penalty phase of the trial? Second, “is it cruel and unusual punishment under the Eighth Amendment to execute a mentally retarded person with Penry’s reasoning ability” (Penry v. Lynaugh, 1989)? Though the Court agreed that Penry’s mitigating condition of mental retardation should have received greater consideration during the penalty phase of the trial, it failed to recognize that the execution of mentally retarded defendants violated their Eighth Amendment protections in all such cases. O’Connor reasoned that the Eighth Amendment prohibits punishment that is contrary to current prevailing social standards of decency. She added, however, that Penry’s sentence did not appear to cross that threshold based solely on the fact of his established diagnosis of mental retardation. O’Connor observed that only two states prohibited such sentences at the time of the decision; therefore, providing “objective evidence” that a national consensus against such action did not currently exist (Perlin, 2003; Scott & Gerbasi, 2003; Walker, 2009). However, the Court did agree with Penry that proper consideration was not given to his particular condition and situation, thereby requiring his case to be returned to the lower Courts for resentencing. It is important to note that the Court’s decision was specifically focused on the penalty phase of this case and not with the constitutionality of sentencing a defendant with mental retardation to death. Though the Court recognized that it may indeed be unconstitutional to sentence such a defendant to death, it failed to recognize that a diagnosis of mental retardation rendered the defendant ineligible to such a sentence in all cases (Penry, 1989). Penry’s sentence was overturned, but the larger question remained unanswered. Since the Court’s ruling on Penry in 1989, the defendant’s death sentence has been overturned on two different occasions, most recently in 2005. His sentence was ultimately commuted to life imprisonment without the possibility of parole in 2008 in a deal struck with the state of Texas that agreed to lift the death penalty if Penry agreed to three life sentences and officially rejected any claim of mental retardation. What we witness in the Penry decision is a construction of mental retardation that attempts to recognize the cognitive deficits consistent with this condition, while refusing categorically to remove the eligibility of such defendants from receiving a capital sentence (Perlin, 2003). It is important to note that Penry’s established history of brain trauma and consistent physical abuse, resulting in lasting cognitive and emotional deficits, were not deemed severe enough to overturn his conviction. In fact, the Court had previously denied Penry’s case concerning his claim that the fact of his mental retardation rendered him ineligible to receive the death penalty. The Court, by focusing almost exclusively upon the issue of jury instructions during the guilt phase of the trial, left for another day the more general question concerning whether or not such prosecutions should be allowed at all. That day arrived when the Court issued its landmark ruling in Atkins v. Virginia, 536 U.S. 304 in 2002.

Atkins v. Virginia (2002) Twelve years had elapsed since the Court delivered its opinion in Penry, but the question concerning the constitutionality of sentencing a mentally retarded defendant to death remained unsolved. Though the Court seemed to begin to answer this question by observing that certain defendants may not be sufficiently culpable to be eligible for the death penalty, they offered no definitive resolution to this question. Following the Court’s ruling in Penry, an additional 16 states as well as the federal government banned the execution of mentally retarded

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defendants, representing an emerging social consensus that would prove to be significant in the Court’s finding in Atkins. Daryl Atkins, along with his friend William Jones, went to a local 7-Eleven after a long day of drinking and illegal drug use to buy more beer. Upon their arrival at the convenience store, Atkins realized that he was out of cash and started panhandling for money in the parking lot. Unsuccessful in their panhandling efforts, the pair turned their attention to Eric Nesbitt, the 21-year-old Air Force transportation specialist who had just pulled into the parking lot, with the hope of robbing him. The record shows that Atkins and Williams approached Nesbitt while still seated in his truck and brandished a hand gun to gain entry into his vehicle. The three then left the parking lot and Nesbitt was eventually killed; his body left on a secluded country road (Walker, 2009). Atkins and Williams were subsequently convicted of capital murder and sentenced to death. The Supreme Court agreed to hear the case after the Virginia Supreme Court rejected Atkins’ claim that he could not be sentenced to death due to the fact that he was mentally retarded, basing its opinion on the decision rendered by the Court in Penry v. Lynaugh. Writing for the majority, Justice Stevens began his opinion with a definitive resolution of the issue. “Executions of mentally retarded criminals are ‘cruel and unusual punishments’ prohibited by the Eighth Amendment” (Atkins v. Virginia, 2002). He provided three reasons in support of his rationale: (a) punishment is prohibited if it is not proportioned to the offense; (b) a social consensus exists against such executions; (c) the Court is compelled to agree with this legislative consensus (Atkins v. Virginia, 2002). In discussing the excessive nature of such sentences, Stevens made the following observation: Those mentally retarded persons who meet the law’s requirements for criminal responsibility should be tried and punished when they commit crimes. Because of their disabilities in areas of reasoning, judgment, and control of their impulses, however, they do not act with the level of moral culpability that characterizes the most serious adult criminal conduct. (Atkins v. Virginia, 2002)

Within this context, the proportionality of punishment is violated and rendered excessive when applied to the mentally retardant defendant. As such, these defendants, given their various disabilities, cannot be held to a level of culpability that would exceed that of the more “ordinary” killer who would be ineligible to receive a capital sentence. This point was forcibly articulated in the dissent offered by the Virginia Supreme Court concerning Atkins’ eligibility for the death penalty and was included by Justice Stevens in his decision. They rejected Dr. Samenow’s opinion that Atkins possesses average intelligence as “incredulous as a matter of law,” and concluded that “the imposition of the sentence of death upon a criminal defendant who has the mental age of a child between the ages of 9 and 12 is excessive.” In their opinion, “it is indefensible to conclude that individuals who are mentally retarded are not to some degree less culpable for their criminal acts.” (Atkins v. Virginia, 2002)

What we see in this language is the way in which the fact of mental retardation becomes legally constructed. From this perspective, the mentally retarded defendant is differentiated from the “most serious adult criminals,” along with those individuals who committed homicide, but were not found eligible to receive the death sentence. The cognitive deficits consistent with

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the legitimate diagnosis of this condition are viewed as the core characteristics of such a defendant, and are therefore significant mitigating factors when determining criminal culpability. Such a legal construction of mental retardation reflects a direct confrontation of what the legal scholar Michael Perlin has described as sanism. Perlin (2000) describes the concept of sanism as being similar to any type of “ism” that seeks to marginalize the target of its social construction. Sanism is as insidious as other “isms” and is, in some ways more troubling, because it is (a) largely invisible (b) largely socially acceptable, and (c) frequently practiced (consciously and unconsciously) by individuals who regularly take “liberal” or “progressive” positions decrying similar biases and prejudices that involve sex, race, ethnicity or sexual orientation. (Perlin, 2000, p. 22)

Within the current context, legal sanism is exemplified by the degree to which a criminal defendant legitimately diagnosed with mental retardation is viewed to have the same criminal culpability as that of an individual who commits a premeditated homicide. In his opinion Stevens overturns what was formerly presumed to be socially acceptable, and argues that this legal practice must come to an end. Unlike the decision provided in Penry, Stevens’ position is unequivocal. In recognizing that much has changed since the Court’s ruling in Penry, Stevens made the following observation: Subsequently, a significant number of States have concluded that death is not a suitable punishment for a mentally retarded criminal, and similar bills have passed at least one house in other States. It is not so much the number of these States that is significant, but the consistency of the direction of change. Given that anticrime legislation is far more popular than legislation protecting violent criminals, the large number of States prohibiting the execution of mentally retarded persons (and the complete absence of legislation reinstating such executions) provides powerful evidence that today’s society views a mentally retarded offender as categorically less culpable than the average criminal. The evidence carries even greater force when it is noted that the legislatures addressing the issue have voted overwhelmingly in favor of the prohibition. (Atkins v. Virginia, 2002)

Though it could certainly be argued that the Court’s opinion in Atkins finished the work that was begun in Penry, the issue of sanism as it relates to the mentally retarded defendant has not been necessarily resolved (Perlin, 1998, 2008). Stevens offers an interesting discussion concerning the characteristics of mental retardation that raise a number of concerns and issues. Justice Stevens stated An independent evaluation of the issue reveals no reason for the Court to disagree with the legislative consensus. Clinical definitions of mental retardation require not only subaverage intellectual functioning, but also significant limitations in adaptive skills. Mentally retarded persons frequently know the difference between right and wrong and are competent to stand trial, but, by definition, they have diminished capacities to understand and process information, to communicate, to abstract from mistakes and learn from experience, to engage in logical reasoning, to control impulses, and to understand others’ reactions. Their deficiencies do not warrant an exemption from criminal sanctions, but diminish their personal culpability. (Atkins v. Virginia, 2002)

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It is first necessary to point out that the above observation provided by Stevens is considered dicta—opinions provided by the judge that do not directly relate to the question before the Court—and as such, holds no significance concerning the precedent the Atkins ruling established. However, his language does raise some interesting questions concerning the social construction of the mentally retarded defendant. Perhaps the most obvious question this language raises is how could such a defendant actually be competent to stand trial in the presence of so many cognitive deficits? The standard for competency established in Dusky v. United States (1960) requires “rational as well as factual understanding of the proceedings against him” (Dusky v. United States, 1960). Do the cognitive deficits listed by Stevens, which do reflect the clinical structure of this type of cognitive disorder, actually make it unlikely for the standard of trial competency to be met by such a defendant? Stevens’ language also raises concerns relative to criminal culpability of such defendants. Though such individuals will be spared the death penalty, life imprisonment without the possibility of parole can hardly be viewed as an ethical triumph. The questions resolved by Atkins hopefully will become the foundation for a renewed conversation concerning the ethical legitimacy of such adjudicative practices.

Conclusion The purpose of this chapter has been to explore the implications of the social construction of mental illness as it is generally viewed and as it is constructed within the legal context of the law. Most prominent to this meaning-generating process are the concepts of stigma and sanism, which work hand in hand to not only define the meaning of these “damaged selves,” but to also rationalize our treatment of them. The social self of the stigmatized individual is defined or constructed by concerns of unpredictability and potential danger; whereas the socially constructed self of the mentally ill defendant is defined by the degree to which they are attempting to use the “excuse” of mental illness as a shield by which to fend off their legitimate culpability for their criminal acts. On the one hand stigma is used to discredit or discount the individual based on the fact of their mental illness, while sanism often seeks to ignore these facts in the pursuit of “justice.” The social construction of the mentally ill defendant or offender within the context of the law reflects the various ways in which this legal self is defined. The degree to which clinical symptoms or characteristics are included within the legal definitions used by the courts will reflect the degree to which these psychological factors are recognized and applied within the process of adjudication. The clinical construction or diagnosis of addiction, mental retardation, or schizophrenia does not necessarily bear any resemblance to the way in which these disorders will be constructed by the law and Court precedent. Once established, the parameters of the legal self not only reconfigure the contours of the self but do so in such a way that tends to eclipse all other aspects of the individual that do not coincide with this new fabricated self.

References American Psychiatric Association. (2013). Diagnostic and statistical manual of mental disorders (5th ed.). Arlington, VA: Author. Arrigo, B. A. (1993). Madness, language and law. New York, NY: Harrow and Heston.

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Arrigo, B. A. (1996). The contours of psychiatric justice: A postmodern critique of mental illness, criminal insanity, and the law. Oxford, UK: Routledge. Arrigo, B. A., Bersot, H. Y., & Sellers, B. G. (2011). The ethics of total confinement: A critique of madness, citizenship, and social justice. Oxford, UK: Oxford University Press. Berger, P., & Luckmann, T. (1966). The social construction of reality: A treatise in the sociology of knowledge. New York, NY: Anchor Books. Clegg, J. (2012). Teaching about mental health and illness through the history of the DSM. History of Psychology, 15, 364–370. Covington, J. (2010). Crime and racial constructions: Cultural misinformation about African Americans in the media and academia. Lanham, MD: Lexington Books. Fanon, F. (1967). Black skin, white masks. New York, NY: Grove Weidenfeld. Flanagan, E. H., Davidson, L., & Straus, J. S. (2007). Issues for DSM-V: Incorporating patients’ subjective capabilities. American Journal of Psychiatry, 164, 391–392. Foucault, M. (1965). Madness and civilization: A history of insanity in the age of reason. R. Howard (Trans.). New York, NY: Vintage Books. Frances, A. (2012). DSM5 in distress: The DSM’s impact on mental health practice and research. Retrieved from www.psychologytoday.com/blog/dsm5-in-distress/201212 Giorgi, A. (1970). Psychology as a human science. Pittsburgh, PA: Duquesne University Press. Goffman, E. (1959). The presentation of self in everyday life. New York, NY: Anchor Books. Goffman, E. (1961). Asylums: Essays on the social situation of mental patients and other inmates. New York, NY: Anchor Books. Goffman, E. (1963). Stigma: Notes on the management of spoiled identity. New York, NY: Touchstone. Goffman, E. (1969). The insanity of place. Psychiatry, 32, 357–388. Gordon, L. (1995). Bad faith and anti-black racism. Amherst, NY: Humanity Books. Grob, G. (1991). Origins of DSM-I: A study in appearance and reality. The American Journal of Psychiatry, 148, 421–431 Hart, W. D. (2013). Dead black man, just walking. In G. Yancy & J. Jones (Eds.), Pursuing Trayvon Martin: Historical contexts and contemporary manifestations of racial dynamics (pp. 91–101). Lanham, MD: Lexington Books. Klinger, D. A. (2006) Into the kill zone: A cop’s eye view of deadly force. San Francisco, CA: JosseyBass. Kirk, S. & Kutchins, H. (1992). The selling of DSM: The rhetoric of science in psychiatry. New York, NY: Aldine DeGruyter. Kraemer, H. C. (2007). DSM categories and dimensions in clinical and research contexts. International Journal of Methods in Psychiatric Research, 16, S8-S15. doi:10.1002/mpr. 211 Krueger, R. F., & Eaton, N. R. (2010). Personality traits and the classification of mental disorders: Toward a more complete integration in DSM-5 and an empirical model of psychopathology. Personality Disorders: Theory, Research, and Treatment, 1, 97–118. Kupers, T. (2013). Mutual respect and effective prison management. In D. Polizzi, M. Braswell, & M. Draper (Eds.), Transforming corrections: Humanistic approaches to corrections and offender treatment (2nd ed., pp. 159–172). Durham, NC: Carolina Academic Press. Kutchins, H., & Kirk, S. (1997). Making us crazy: DSM: The psychiatric bible and the creation of mental disorders. New York, NY: Free Press. Manning, P. K. (2008). The technology of policing: Crime mapping, information technology, and the rationality of crime control. New York, NY: New York University Press. Maruna, S. (2004). Is rationalization good for the soul? Resisting “responsibilization” in corrections and the court. In B. Arrigo (Ed.), Psychological jurisprudence: Critical explorations in law, crime, and society (pp. 179–199). Albany, NY: SUNY Press.

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Mead, G. H. (1934). Mind, self and society: From the standpoint of a social behaviourist. C. Morris (Ed.). Chicago, IL: University of Chicago Press. Mead, H. M. (1967). Mind, self, & society from the standpoint of a social behaviorist. Chicago, IL: University of Chicago Press. Mercer, M. (2008). Bearable or unbearable? Unconscious communication in management. In J. Gordon & G. Kirtchuk (Eds.), Psychic assaults and frightened clinicians: Countertransference in forensic settings (pp. 63–83). London, UK: Karnac. Mittal, D., Drummond, K. L., Blevins, D., Curran, G., Corrigan, P., & Sullivan, G. (2013). Stigma associated with PTSD: Perceptions of treatment-seeking combat veterans. Psychiatric Rehabilitation Journal, 36, 86–92. Morse, S. J. (2011). Mental disorder and criminal law. The Journal of Criminal Law & Criminology, 101, 885–968. Pager, D. (2007). Marked: Race, crime, and finding work in an era of mass incarceration. Chicago, IL: Chicago University Press. Perlin, M. (1998). Where the wind hits heavy on the borderline. Loyola of Los Angeles Law Review, 31, 755–794. Perlin, M. (2000). The hidden prejudice: Mental disability on trial. Washington, DC: American Psychological Association. Perlin, M. (2003). “Life is in mirrors, death disappears”: Giving life to Atkins. New Mexico Law Review, 33, 313–348. Polizzi, D. (2007). The social construction of race and crime: The image of the black offender. International Journal of Restorative Justice, 3, 6–20. Polizzi, D. (2013). Social presence, visibility, and the eye of the beholder: A phenomenology of social embodiment. In G. Yancy & J. Jones (Eds.), Pursuing Trayvon Martin: Historical contexts and contemporary manifestations of racial dynamics (pp. 173–181). Lanham, MD: Lexington Books. Polizzi, D. (2014). Developing therapeutic trust with court-ordered clients. In D. Polizzi, M. Braswell, & M. Draper (Eds.), Transforming corrections: Humanistic approaches to corrections and offender treatment (2nd ed., pp. 303–329). Durham, NC: Carolina Academic Press. Robinson, W. D., Springer, P. R., Geske, J., Backer, E., Olson, M., Jarzynka, K., & Swinton, J. (2012). Rural experiences with mental illness: Through the eyes of patients and their families. Families, Systems, & Health, 30, 308–321. Rome, D. (2004). Black demons: The media’s depiction of the African American male criminal stereotype. Westport, CT: Praeger. Rothman, D. (2002a). The discovery of the asylum: Social order and disorder in the new republic. Chicago, IL: Aldine Transaction Publishers. Rothman, D. (2002b). Conscience and convenience: The asylum and its alternatives in progressive America. Chicago, IL: Aldine Transactions Publishers. Ryals, J. S. Jr. (2009). Offender objectification: Implications for social change. In D. Polizzi, M. Braswell, & M. Draper (Eds.), Transforming corrections: Humanistic approaches to corrections and offender treatment (pp. 53–78). Durham, NC: Carolina Academic Press. Scott, C. L., & Gerbasi, J. B. (2003). Atkins v. Virginia: Execution of mentally retarded defendants revisited. Journal of the American Academy of Psychiatry and Law, 31, 101–105. Scull, A. (2005). The most solitary of afflictions: Madness and society in Britain (1700–1900). New Haven, CT: Yale University Press. Shalin, D. N. (2013). Goffman on mental illness: Asylums and “the insanity of place” revisited. Symbolic Interaction, 37, 122–143. Teplin, L.A., & Pruett, N. (1992). Police as street corner psychiatrist: Managing the mentally ill. International Journal of Law and Society, 15, 139–156. doi: 10.1016/0160–2527(92)90010-X

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van der Sanden, R. L. M., Bos, A. E. R., Stutterheim, S. E., Pryor, J. B., & Kok, G. (2013). Experiences of stigma by association among family members of people with mental illness. Rehabilitation Psychology, 56, 73–80. Vargas, J. C., & James, J. A. (2013). Refusing blackness-as-victimization: Trayvon Martin and the black cyborgs. In G. Yancy & J. Jones (Eds.), Pursuing Trayvon Martin: Historical contexts and contemporary manifestations of racial dynamics (pp. 193–203). Lanham, MD: Lexington Books. Walker, T. (2009). Eligible for execution: The story of the Daryl Atkins case. Washington, DC: CQ Press. Watson, A. C., & Angell, B. (2013). The role of stigma and uncertainty in moderating the effect of procedural justice on cooperation and resistance in police encounters with persons with mental illnesses. Psychology, Public Policy, and Law, 19, 30–39. Williams, C. R., & Arrigo, B.A. (2005). Theory, justice, and social change: Theoretical integrations and critical applications. New York, NY: Springer. Woods, D., & Polizzi, D. (2008). “Shoot me”: An overview of suicide by cop. Law Enforcement Executive Forum, 8, 49–60. Yancy, G. (2008). Black bodies, white gazes: The continuing significance of race. Lanham, MD: Rowman & Littlefield Publishers.

Court Cases Atkins v. Virginia, 536 U.S. 304 (2002) Dusky v. US, 362 U.S. 402 (1960) Jurek v. Texas, 428 U.S. 262 (1976) Penry v. Lynaugh, 492 U.S. 302 (1989)

Newspaper Articles Chumley, C. (2013, May 1st). Colorado shooting suspect James Holmes’ attorneys mull insanity plea over client’s objections. Retrieved from www.washingtontimes.com/news/2013/may/1/coloradoshooting-suspect-james-holmes-attorneys-m/print Ingold, J., & Gurman, S. (2013, June 14th). James Holmes refuses to enter a plea at Aurora theater shooting arraignment. Retrieved from www.denverpost.com/breakingnwes/ci_22771388/auroratheater-shooting-james-holmes-faces-plea-decision

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From the Asylum to the Penitentiary A Historical Perspective

Mental Illness in America: A Very Brief History Perhaps one fact more than any other describes the current state of the treatment of mental illness in America: the county jails located in Chicago, Los Angeles, or Manhattan on any given day house and treat more mentally ill patients than any other facility in the United States (Slate, Buffington-Vollum, & Johnson, 2013). Unfortunately, this fact is one that is too often repeated when describing the current state of affairs of the mentally ill in America. However, it is important that we do not lose sight of the fact that the circumstances described by the authors are not the result of a sudden change in social or political perspective or a sudden transformation concerning our understanding of the issue of mental illness in America. Rather, this quote reflects the culmination of an evolving reality that has been nearly four decades in the making, and by this time in its history may be viewed as a fait accompli: the jail and penitentiary are the new psychiatric hospital. The news magazine show 60 Minutes aired a segment on this issue on September 29th, 2013 titled, “Untreated mental illness an imminent danger?” further corroborating this reality (Kroft, 2013). Tom Dart, the Cook County Sheriff who runs the Cook County Jail in Illinois told Steve Kroft of 60 Minutes the following. “I’ve got probably 2,500, 2,800 people with mental illness in my jail today. And you look at their backgrounds, they have been in here 50, 60, 100, we have some people who’ve been in here 400 times” (Kroft, 2013). When asked if he agreed with the view that the criminal justice system has become the new psychiatric hospital, he immediately agreed and added, “There is no person that could argue otherwise” (Kroft, 2013). He stated that he has even gone so far as to require jail guards and employees to videotape incidents, to better help the general public in understanding the severity of this problem. And the videos we’ve shown people are to show them what happens when we take people who are mentally ill and we cram them into the criminal justice system where they’re not supposed to be. And the irony’s so deep that you have a society that finds it wrong to have people warehoused in a state mental institution, but those very same people were OK if we warehouse ’em in a jail. It’s just—you have got to be kidding me. (Kroft, 2013)

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Dart’s observation, though particularly pertinent to the current state of affairs within the American criminal justice system, reflects the same dilemma that has confronted American society from its inception: How should we as a community address the challenges presented by the reality of mental illness? What the above quote reflects is the degree to which the issue of mental illness in America has shifted in focus from that of a public health concern to that of a criminal justice issue. In the span of just 5 decades, we have witnessed the dismantling of the state psychiatric hospital system across America, which has resulted in the drastic decrease of available beds for those individuals in need of intermediate or long-term psychiatric hospital care (Knapp, Beecham, McDaid, & Matosevic, 2011; Lamb & Weinberger, 2005; Slate, Buffington-Vollum, & Johnson, 2013). During more or less the same period of time, we have also witnessed the drastic increase in the number of mentally ill individuals housed in state penitentiaries, which in turn has transformed the American prison system into the primary provider of mental health services for America’s mentally ill (Cloyes, Wong, Latimer, & Abarca, 2010). The American Psychiatric Association reported in 2000 that the U.S. penal system is now responsible for the treatment of more than 10 times the number of mentally ill individuals than one would find receiving clinical services from state psychiatric hospitals and that “most state prison systems are neither clinically nor materially equipped to deliver optimal or, in some cases, even adequate mental health care” (Cloyes et al., 2010, p. 175). The question that this turn of events raises is how did this transformation occur? Though a historically varied set of economic, political, and social factors have all contributed to the slow evolution of the criminalization of mental illness, one consistent factor for the most part has remained unchanged: the attitudes and beliefs concerning the social construction of mental illness. We will begin by offering a brief history of the development of social attitudes as these relate to the social construction of mental illness and the strategies employed to confront the challenges mental illness presented to American society. We will conclude with a discussion of the total institution and the role it has played historically in the treatment of the mentally ill in America.

The Birth of the American Asylum and the Criminalization of Mental Illness The question of the etiology of insanity was a comparatively new one for Americans. The colonists had assumed that its cause, like that of other diseases, rested with God’s will. (Rothman, 1990, p. 109) In accordance with the dominant ideology at home and abroad, the sufferings of the handicapped members of the community were looked upon as the natural consequence of a stern unbending Providence, meting out judgment to the wicked and the innately inferior. Contempt, cold and narrow, rather than sympathy and understanding, characterized the attitudes towards the destitute and dependent classes. (Deutsch, 2007, p. 39)

Mental Illness in Colonial America As the above quotes reflect, the issue of mental illness in Colonial America garnered little public sympathy for those individuals suffering from these conditions. Viewed as a social

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nuisance rather than a public health issue, mental illness was understood as simply one more example of divine intervention that one must simply accept as God’s will (Deutsch, 2007; Grob, 1994, 1995; Rothman, 1990). As a result, mental illness was constructed as a religious problem that spoke to the moral character of the afflicted individual. Given the absence of formal institutions designed to treat mental illness, individuals would either be cared for by family members or would be ultimately left homeless, which in turn made them vulnerable to social scorn and ridicule due to the unseemly social image and potentially dangerous community threat their presence seemed to evoke (Dain, 1980; Deutsch, 2007; Grob, 1994; Rothman, 1990; Slate et al., 2013). The more mildly “stricken” individual would either be held in closed quarters by family members, housed in private dwellings paid for by the state, or held in small city jails or almshouses. These custodial arrangements were more akin to localities of social confinement, rather than places where the mentally ill could seek refuge and care. The more violently mentally ill were most likely to be viewed as common criminals and held under the harsh conditions of the local jail. Such a resolution to this “problem” is not all that surprising given the religious contours of the social construction of mental illness in colonial society. If mental illness was to be viewed as a sign of immorality or the result of divine will, then the focus on punishment rather than on the treatment of mental illness retains perhaps a degree of “logical” consistency insofar as one cannot “cure” the divinely inflicted; this point is particularly salient given that little consideration was offered concerning the possibility of other potential causes for these conditions (Rothman, 1990). Such a configuration of mental illness rendered moot any need for any further explanation or exploration concerning its etiology, but did leave one important question unanswered: How should the “problems” posed by the mentally ill be addressed by the community? As was briefly introduced above, a number of housing arrangements existed for the mentally ill, but these were very often poorly maintained and harshly administered. As it became more and more socially recognized that these current solutions were not sufficient to address the problems incurred by the mentally ill, social momentum started to build for the creation of a public solution to this problem. After some 10 years of public wrangling over this issue in the state of Virginia, it was finally announced that a new public institution would be built with the specific mission of housing the mentally ill, which in turn, ushered in the birth of the American asylum. In 1773, the Eastern Lunatic Asylum was established in Williamsburg, Virginia with the mission of addressing the issue of mental illness (Deutsch, 2007; Rothman, 1990; Torrey, 2001). Unlike the Pennsylvania Hospital located in Philadelphia or the New York Hospital located in New York City, which were established as general hospitals that included wards for the mentally ill, Eastern was the first public institution of its kind to focus exclusively on the problem of mental illness (Dain, 1980). Rothman (1990) observed that the main function of this institution was to address the social “problems” caused by those mentally ill individuals who had no family willing to provide for their material needs. “Although it might help to cure those not ‘quite desperate,’ its primary task was to preserve the peace of the community, to keep the insane from roaming about” (Rothman, 1990, p. 43). The introduction of the Eastern Lunatic Asylum represented a fundamental change in strategy concerning the housing or social visibility of the mentally ill in Colonial America (Deutsch, 2007). With the inception of Eastern, the problem presented by the presence of the mentally ill “dangerously” roaming the community could now to some degree be addressed.

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Those individuals whose families were willing and able to provide material support continued to be cloistered in private family dwellings and were unaffected by the opening of the Williamsburg facility (Deutsch, 2007; Foucault, 1965; Rothman, 1990). Those individuals from families who were either unwilling or unable to provide for their care now were eligible to be housed at Eastern and as a result, were no longer perceived as a social threat to the community. However, the issue of their ethical or humane treatment still evoked little public concern. The Eastern asylum provided for an out-of-sight, out-of-mind solution to this problem, but offered little else concerning the strategies of “treatment” that would be employed. The immediate history concerning the treatment of the mentally ill prior to the opening of Eastern in 1773 was symbolized by the regular use of chains, whips, and other imaginative techniques of control. Viewed not much differently from that of the common criminal, mentally ill individuals were often confined like inmates in conditions not fit for human habitation. As a result, the opening of Eastern did little to fundamentally change the attitude or socially constructed meaning of mental illness in colonial society beyond its utilitarian function of providing a centralized location for their confinement. Unfortunately, no record of the early methods of treatment has come down to us, but Wyndham B. Blanton, the historian of medicine in Virginia, ventures the opinion that “undoubtedly the old reliance on chains and confinement in cells prevailed here as elsewhere,” and he is probably correct. (Deutsch, 2007, p. 71)

A similar attitude is reflected by The Rev. Manasseh Cutler who provided the following account of what he witnessed at the Pennsylvania Hospital in 1787: We next took a view of the Maniacs. Their cells are in the lower story, which is partly underground. These cells are about ten feet square, made as strong as a prison. On the back part is a long entry, from which a door opens into each of them; in each door is a hole, large enough to give them food, etc., which is closed with a little door secured with strong bolts. . . . Here were both men and women. . . . Some of them have beds, most of them clean straw. Some were extremely fierce and raving, nearly or quite naked. This would have been a melancholy scene indeed, had it not been that there was every possible relief afforded in the power of man. From this distressing view of what human nature is liable to, and the pleasing evidence of what humanity and benevolence can do. (Cutler quoted in Deutsch, 2007, p. 62)

The above descriptions provide powerful examples of how the mentally ill were viewed in Colonial America. As “maniacs,” these individuals are recognized as much by the characteristics of their confinement as they are by the quality of their nature. Described as fierce, raving, and naked, the use of prison-like cells, strong bolts, and clean straw became appropriate accessories for the control of such dangerous, nonconforming, and wild individuals. Given that the plight of these inmates had been divinely imposed, the recognition of humanity and benevolence emerges as a fact of their confinement and not by the inhumane or malevolent quality of their treatment. The possibility for melancholy is momentarily entertained by Rev. Cutler, but is quickly brushed aside by “the pleasing evidence of what humanity and benevolence can do.” It’s significant how this final observation effectively separates the mentally ill inmate from this experience of humanity and benevolence. From this perspective, humanity and benevolence

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are witnessed by the qualities of the hospital setting, and not the actual experience of those confined within the institution. The “pleasing evidence” to which Cutler aluded is a benevolence shown to those who are not quite human. Once this initial conceptualization is accepted, it then becomes possible to rationalize the conditions of their confinement. It is remarkable that Rev. Cutler remains unmoved by the plight of those housed in such inhumane conditions, and yet is still capable of feeling a sense of pride in the humanity and benevolence the hospital setting seems to offer these damaged souls. These “maniacs,” safely confined in their cells, were no longer capable of evoking human concern for the simple fact that they were no longer viewed as being equally human. The features of their confinement were validated and even romanticized given that these “accommodations” were not intended for a “normal” human being. The “animal-like qualities” attributed to the behavior of the mentally ill, and the social threat they seemed to evoke, were all the evidence required to legitimize a zoo-like environment by which to contain their raw existence.

Benjamin Rush At the forefront of the American approach to mental illness was Benjamin Rush, often identified as the father of American psychiatry. Rush was appalled by the inhumane conditions of the hospitals in his native state of Pennsylvania, and introduced a variety of moral therapies for the treatment of addiction and mental illness (Slate et al., 2013). Rush advocated for the kind treatment of the mentally ill and required that the patients and their living quarters be kept clean at all times. However, much like many of his contemporaries, Rush continued to embrace the belief in the efficacy of fear-based treatment practices for the control of mental illness. Deutsch (2007) observed that “kindly and humane though he was, Dr. Rush accepted without question the necessity of coercion by mechanical restraint and certain forms of corporal punishment, even advocating whippings in extreme cases” (p. 79). Central to this commonly observed rationale of clinical treatment was the belief that these individuals were not much different from animals found in the wild. As such, the use of fearbased interventions was employed with the purpose of scaring the patient into compliance. For example, Rush believed that the difficult or “uncooperative” patient should be deprived of all sustenance, a tactic borrowed from the training of wild elephants in India. The intent of such a strategy was to break the “spirit” of the client until such time that they became “amenable to domestication” (Deutsch, 2007, p. 80). The more violent patients were often subjected to “interventions” that were often employed in the taming of wild horses (Deutsch, 2007). As the above examples clearly reveal, little substantial change was witnessed concerning the treatment of the mentally ill. Though Rush had some success in reforming certain aspects of the American medical culture, his continued belief in and use of physical coercion as a legitimate treatment regime greatly undermined many of his accomplishments (Deutsch, 2007; Slate et al., 2013). His highly contradictory positions revealed the recognition of the need for positive innovative change, while at the same time holding steadfast to the very types of clinical practices that made the realization of that potential highly unlikely. Central to this contradictory stance was the unchanging view that held to the dogged belief that the mentally ill were more akin to wild animals than suffering human beings. It should not be surprising then that little substantial change was achieved with the introduction of certain reforms related to the material confinement of the mentally ill. Cells

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may have been cleaner and the general temperament of staff less harsh, but the social construction of these individuals remained unchanged. The noncompliant patient was still viewed as a wild animal and treated accordingly. However, in the aftermath of the American and French revolutions a new attitude was emerging that would offer a new promise for the reform of the asylum system and its treatment of those confined within those walls.

The Age of Reason and the Moral Treatment of Mental Illness As the eighteenth century was reaching its end, a changing attitude toward the treatment of the mentally ill was slowly starting to emerge in Europe and making its way across the ocean to the newly formed United States. Motivated by similar insights offered by the Italian criminologist Cesare Beccaria concerning the relationship between humane laws and the eradication of crime, this new approach sought to fundamentally transform the way the mentally ill were treated. Central to this new understanding was the belief that if the care and treatment of the mentally ill was gentler in its approach and temperament it too could cure insanity, in much the same way as Beccaria postulated that humane laws could put an end to crime (Rothman, 1990; Torrey, 1997). Propelled by the fervor created by the French revolution and its promise to liberate the common man from the chains of oppression, a small group within the medical community sought to take advantage of this historic moment to remove the literal chains from those confined in the asylums of Europe and America. At the forefront of this reform movement was the French physician Philippe Pinel and his English contemporary William Tuke (Deutsch, 2007; Rothman, 1990). Though the ideals that gave birth to the introduction of these reforms were not exclusive to Pinel and Tuke, they were very important in their implementation. It was Pinel’s work at the Paris asylums that enabled him to demonstrate the ineffectiveness of harsh treatment strategies for mentally ill patients, which in turn allowed for the introduction of more humane clinical practices (Deutsch, 2007; Kloos, 2005; Rothman, 1990). Pinel rejected both the inhumane conditions in which the mentally ill were held and the brutal clinical practices used to “treat” their condition; this period ushered in what came to be known as the moral management of mental illness. In a very similar way, William Tuke sought to create a hospital in England that would be predicated on the gentle treatment of the mentally ill. Tuke named his facility The Retreat in the hope of lessening the stigma “associated with the common terms asylum or madhouse” (Deutsch, 2007, p. 93). Unlike treatment strategies of the day, which relied on harsh prison-like environments and brutal strategies of physical control, the moral management of mental illness sought to forgo the use of the chain and the whip and rather rely on what has been defined as a type of “moral vigilance” (Deutsch, 2007; Rothman, 1980). The purpose of the system of moral management was described as a strategy by which to convince the client of the power of the physician while at the same time requiring humane treatment by all of those in the service of their care. It was believed that clean and livable conditions and a kind and tolerant response from the physician and his staff would in turn become the model by which the “patient will minister himself ” (Deutsch, 2007, p. 92). It is important to mention that the introduction of the moral management approach for the treatment of mental illness still contained many of the same assumptions concerning its social construction. As Foucault (1965) powerfully observed, this sudden shift in perspective

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concerning the mentally ill merely reflected a shifting of the strategies of control and not necessarily a fundamental transformation of the power relationships implicit in these new types of medical interactions. These new relationships between physician and patient sought to internalize the control of the treating doctor through various acts of kindness and the absence of the whip and the shackle (Foucault, 1965; Grob, 1994; Rothman, 1990; Tuntiya, 2007). Though Foucault’s point is certainly well taken, such a change in focus and strategy likely resulted in a fundamental change in the quality of life experienced by those held under such challenging circumstances and certainly should not be underestimated. Hardly ideal, but these changes did reflect a sea change concerning the treatment of the mentally ill. As these methods made their way to America, many of the same contradictions continued. After a short period of time, the influence of these mental health treatment “successes” reached America, ushering in the introduction of a number of private institutions for the mentally ill. Beginning in the first quarter of the nineteenth century, nine different states opened state mental health institutions based upon the ideals imported from Europe. However, many of these facilities were private hospitals, which meant that only those with sufficient financial resources could be admitted. Being privately sponsored, the institutions had to raise funds through popular subscription, which meant that the initiators, acting as private citizens, must educate the public as well as the legislators who would have to sanction a charter of often given subsidies as well. At the same time, though they were not for profit, the new mental hospitals were designed for middle- and upper-middle-class patients by their middle- and upper-middle-class founders. (Dain, 1980, p. 38)

Though it was not uncommon for a poor patient to be admitted to such a facility, it was not a practice that was highly encouraged. “The individual in need of assistance was apt to receive public attention only when his condition was looked upon as a social danger or a public nuisance—and he was then ‘disposed of’ rather than helped” (Deutsch, 2007). As a result, a double system of mental health care was effectively created: one for those who were financially able to afford the price of private institutions and one for those who could not. For those who found themselves as public dependents, the promise offered by the sweeping reforms in psychiatric care was never realized. Unable to afford the price of privately run psychiatric institutions, the vast majority of the mentally ill were forced to endure the same type of conditions that existed prior to the creation of the psychiatric asylum (Deutsch, 2007; Rothman, 1990). Those individuals who were too poor to purchase appropriate psychiatric care or unable to provide for their own welfare soon found themselves relegated to pauper class within American society. For these publicly supported mentally ill individuals, very little actually had changed from the days of brutal treatment practices and substandard living arrangements of the almshouse, local jail, or psychiatric asylum (Dain, 1980; Deutsch, 2007; Rothman, 1980, 1990). The almshouses and the local jail continued to be the place of last resort for the vast majority of individuals living in poverty or suffering from mental illness. With a keen eye on the cost to the public, a variety of strategies were employed by which to address the needs of this group of mentally ill individuals (Coy, 2006; Dain, 1980; Rothman, 1990). The most draconian of these strategies was the selling of the mentally ill to the lowest bidder. Though this method was used predominately in rural areas by farmers in need of cheap labor in both the north and the south, its auction-block setting closely resembled the horrific practice of chattel slavery and generally included all those individuals identified as representing

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this pauper class (Deutsch, 2007). Deutsch provides a description of how these auctions likely looked: Huddled on the auction block is a ragged and unkempt group—paupers on sale. Men, women, and children, ranging through all ages. Among them may be seen one or two insane persons. The “town idiot” is in all likelihood present, standing side-by-side, perhaps, with an epileptic. (p. 117)

Driven by the desire to remove the economic “problem” posed by the mentally ill from the community, strategies such as these were employed to achieve that result. Not unlike those attitudes that were commonly held in Colonial America, the presence of the mentally ill in the community continued to be viewed as a social or public nuisance that needed to be addressed. However, as the demands presented by the needs of the mentally ill continued unabated and the strategies for their care proved more and more unsatisfactory, a different solution toward the resolution of this issue began to emerge. By the beginning of the early 1830s another trend started to coalesce within the American psychiatric community that fundamentally transformed theoretical attitudes toward the curability of mental illness (Deutsch, 2007; Rothman, 1980, 1990). Unlike the beginning of the nineteenth century, which viewed mental illness as an unchangeable medical condition, an alternative view was emerging that described mental illness as perhaps the most curable of all medical diseases. Accompanying this more optimistic perspective concerning the curability of mental illness was the creation of a number of public psychiatric state hospitals, which made psychiatric care available to all and began to conceptualize the specific needs of the indigent mentally ill that required a public solution. Accompanying this new trend in American psychiatry was the belief that 90 percent of all mental illness could be easily cured. Such a bold claim flew in the face of more objective data, which revealed that approximately only 15 percent of that same population was actually cured. Regardless the actual reality, the curability of mental illness continued to be embraced by the psychiatric community and disseminated as a medical truth to the general public (Rothman, 1980). It has been speculated that the motivating rationale for this questionable degree of confidence was based upon its influencing effect on the procurement of public funds for the building of public psychiatric facilities (Rothman, 1990). If it was now true that mental illness could be quickly and easily treated, the degree of public funding necessary to support such an endeavor would be much less burdensome on the public than was originally perceived. One interesting consequence of this newfound confidence in the curability of mental illness and the psychiatric hospitals this attitude helped to build was the competitive atmosphere it created amongst psychiatric facilities (Deutsch, 2007; Grob, 1994; Rothman, 1980). Now that the general public had accepted the belief that mental illness could in fact be easily cured, and that state institutions could do so in a financially inexpensive way, concrete results of this process needed to be produced. In the aftermath of these successes, a “curability race” broke out between various psychiatric institutions which sought to validate psychiatry’s theoretical claims with actual proof of individuals having been cured of mental illness. At the forefront of this struggle was the introduction of statistical analyses upon which many of these erroneous claims were based. As more and more sensational “evidence” was being released by competing state hospital administrators concerning rates of cure at their institutions, a number of voices from within the psychiatric community began to question the accuracy of such claims.

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As the rigorous examination of these inflated institutional claims of success grew, so too did the public’s renewed apprehension concerning the curability of mental illness (Rothman, 1980). Report after report revealed how institutional administrators manipulated institutional data to conform to the belief that mental illness could in fact be easily cured (Deutsch, 2007). Each new revelation concerning the erroneous claims of institutional successes further eroded public confidence that such a solution could be found. Within a few short decades, the myth of curability had been completely exposed and the general public returned to the age-old adage: once mentally ill, always mentally ill. Though the myth of curability was discredited, the question concerning mental illness remained unresolved.

Dorothea Dix and the Call for a National Mental Health System Occurring alongside the rise and fall of the myth of the curability of mental illness was the dawning of a new religious movement starting in New England. This hybrid religious movement cobbled together aspects of Puritanism with the newly recognized philosophical ideals of liberalism—with its emphasis upon the importance of individual liberty—and humanitarianism—with its focus on the promotion of human welfare and social reform— resulting in a humanized version of the old Puritan religion. Central to this new religious orientation was the recognition that man’s relationship to God must be predicated upon love and not fear; thereby leaving behind the strict and austere practices of traditional Puritan belief (Deutsch, 2007). It therefore followed that a similar type of relationship should exist between individuals in the social world: one that recognized the dignity and worth of each individual. Still based on the ideals of Christian love, the new movement incorporated these emerging secular ideals that were viewed as compatible within this new religious vision. Horrified by the inhumanity reflected in the treatment and confinement of the mentally ill and inspired by the promise of the religious humanism of her day, Dorothea Dix sought to champion the hopeless cause of the mentally ill in Massachusetts. Armed with her strong Puritan upbringing, she sought to make the public aware of the shameful treatment of these innocent individuals and demand justice for their plight (Dain, 1980; Deutsch, 2007; Slate et al., 2013). During this period of time, individuals were held in jails and forced to live in horrific conditions kept far from the view of the American public who appeared well satisfied with this arrangement (Slate et al., 2013). Dix spent much of her adult life championing the cause of the mentally ill in America and through her hard work helped to see the creation of 32 psychiatric hospitals in 14 states. Her grand vision included a plan that would require the federal government to purchase 5 million acres of land across the existing 30 states for the purpose of building psychiatric hospitals that would provide for all those in need. I ask, the thirty states of the Union, 5,000,000 acres of land, of the many hundreds of millions of public lands, appropriated in such a manner as shall assure the greatest benefits to all who are in circumstances of extreme necessity, and who, through the providence of God, are the wards of the nation, claimants on the sympathy and care of the public, through the miseries and disqualifications brought upon them by the sorest afflictions with which humanity can be visited. (Dix as quoted in Deutsch, 2007, p. 178)

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Perhaps most significant in this proposal was the unprecedented claim that the mentally ill should in fact be viewed as wards of the nation, and as such it should be incumbent upon the federal government to provide for their needs. Needless to say such a proclamation created a great deal of controversy, and resulted in very loud opposition to her proposal, which ultimately suffered a political defeat. However, this turn of events seemed to embolden Dix. Unwilling to admit defeat, she reintroduced a bill that this time requested the allocation of 10,000,000 acres for the insane and another 2,225,000 acres for the hearing impaired, all to be purchased by the federal government. After a number of years of back and forth legislative gamesmanship between the Senate and the House of Representatives, a bill was finally approved by both houses of Congress and was ready to receive the presidential signature for its passage into law. Having gained the support of both the general public and Congress, Dix’s dream was about to become reality. However, this dream came to an abrupt end when President Franklin Pierce vetoed the legislation in 1854. Pierce defended his veto by arguing that if Congress was granted the limitless power to provide for the insane, what would be next to receive this legislative beneficence? He continued by claiming that such a humanitarian project required the federal government to usurp the individual powers of the states guaranteed by the U.S. Constitution. Dix’s legislative defeat was a crushing blow that resulted in her relocation to England, where she sought some privacy to recoup from this loss. While in England, however, she refocused her energy to address the plight of the insane in that country. Though her dream of creating a federally funded network of psychiatric hospitals was never realized, her work did represent the beginning phase of the institutionalization of the mentally ill in America (Deutsch, 2007; Gollaher, 1995; Slate et al., 2013; Torrey, 1997).

The Uncertain Place of Asylum and the Emergence of the Mental Hygiene Movement In the aftermath of the work of Dorothea Dix, the asylum emerged as the central strategy for the care and treatment of the chronically mentally ill (Kloos, 2005; Rothman, 1980). However, as the role and reputation of the asylum began to gradually wane, another clinical approach was offered that critically examined the efficacy of a system almost exclusively focused on custodial care. By the beginning of the twentieth century, the very utility of the continued use of the asylum was called into question. Reformers in the field, no longer satisfied with the mere confinement of the chronically mentally ill, sought to ultimately discover mental illness’ root causes. Motivating this new psychiatric call-to-arms was the belief that if the causes of mental illness could be uncovered, not only could mental illness be treated and even cured but this newly acquired knowledge could be used as a preventative strategy as well. Driven by the desire to reduce the overall levels of mental illness in American society, psychiatry sought to reach beyond the walls of the asylum and establish itself within the community. As dwindling confidence concerning the curability of mental illness continued to grow based upon the poor performance of the psychiatric asylum, another strategy needed to be tried. This change in attitude required the development of outpatient treatment facilities and the introduction of the psychopathic hospital, whose mission would be to provide intense short-term psychiatric treatment services as an alternative to the failed asylum

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system (Deutsch, 2007; Grob, 1983, 1994; Rothman, 1980). Complicating the position of the asylum was the fact that physical medicine was making great strides in its ability to cure certain diseases, whereas mental illness seemed to remain untouched by this progress (Rothman, 1980). Though skepticism toward the asylum system was being voiced in many quarters of American society, its most authoritative criticism came from the psychiatric establishment itself. The following opinion given by a leading psychiatrist of the day clearly announced that for some within American psychiatry, the days of the asylum were numbered. “The asylum had lost all purpose. It was inadequate as a custodial setting, a total failure as a rehabilitation institution, and altogether dismal as a teaching or training place. It lacked, in short, any basis of justification” (Rothman, 1980, p. 295). The emerging conclusion was that if real medical advances were to be witnessed in psychiatry, as they were being achieved in physical medicine, the asylum needed to be replaced by medical facilities that were more like general hospitals and not like the glorified boarding homes that the asylum had come to represent. As the outcries calling for the end of the asylum system continued to build within the American psychiatric community, support for this view was suddenly heard from an unexpected source. In 1907, Clifford Beers published his powerful autobiography titled A Mind That Found Itself that detailed his experience as a patient within a psychiatric asylum. Rothman (1980) observed that what made Beers’ expose so powerful was the fact that he readily admitted his illness and his need for treatment. Traditionally, such accounts were offered by individuals who had been committed by family members against their will and were forced to endure the horrific conditions of the asylum (Deutsch, 2007; Rothman, 1980). Beers, on the other hand, was legitimately suffering from mental illness and was very much interested in receiving treatment for his condition, but received no relief. Ironically, Beers called for the need to reform the asylum system rather than suggest its closing. With few other legitimate options for the mentally ill, he still believed that the insane person was better off in the asylum rather than being left to fend for themselves in the community. He called for the end of the physical abuse of patients and believed that if better pay was offered, it would attract more qualified individuals to work in these institutions (Rothman, 1980). However, for many the call for the reform of the asylum was simply unacceptable and a different approach to the problem of mental illness needed to be found. It is from this process that the mental hygiene movement was born. Based on the revelations offered by Beers in his autobiography, the outlines of the mental hygiene movement began to take shape. Initially named by American psychiatrist Adolf Meyer, mental hygiene was identified as the process by which mental illness could be prevented and normal psychological functioning restored or maintained (Deutsch, 2007; Felix & Bowers, 1948; Rothman, 1980; Torrey, 1997). From this perspective, mental illness came to be viewed as a socio-environmental condition that manifests within the individual (Felix & Bowers, 1948). To that end, Beers used his own experience as a patient to describe the brutal reality of someone confined in such an institution and offered a variety of suggestions concerning its reform. In discussing his rationale for sharing his story with the world he made the following observation. “I am not telling the story of my life just to write a book,” Beers declared, “I tell it because it seems my plain duty to do so.” Elsewhere he wrote: “Uncle Tom’s Cabin had a decided effect on the question of slavery of the Negro race. Why cannot a book be written which will free the

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helpless slaves of all creeds and colors confined today in the asylums and sanitariums throughout the world? That is, free them from the unnecessary abuses to which they are now subjected.” (Clifford Beers quoted from Deutsch, 2007, p. 308)

Though Beers attempted to make known the conditions of the asylum while still hospitalized, his letters to the governor of Connecticut went unanswered. It was during this period that he formulated his ideas concerning the reform of the mental hospital and decided that once recovered he would dedicate himself to the creation of a reform movement that would address the abuses that he and his fellow patients suffered at the hands of hospital administrators and staff (Deutsch, 2007). Once published, his personal account became the rallying cry for all those seriously interested in protecting the rights of the mentally ill and ending the abusive treatment strategies used in their care. In 1908, Beers was able to establish the Connecticut Society for Mental Hygiene, which was intended to be the first step toward the creation of a national society. On February 19, 1909, Beers’ vision of creating a national organization was realized with the introduction of the National Committee for Mental Hygiene, which convened in New York City. The national committee outlined its position and objectives as follows: To work for the protection of the mental health of the public; to help raise the standard of care for those in danger of developing mental disorders or actually insane; to promote the study of mental disorders in all of their forms and relations and to disseminate knowledge concerning their causes, treatment and prevention; to obtain from every source reliable data regarding conditions and methods of dealing with mental disorders; to enlist the aid of the Federal Government so far as may seem desirable; to coordinate existing agencies and help to organize in each State in the Union an allied, but independent, Society for Mental Hygiene, similar to the existing Connecticut Society for Mental Hygiene. (National Committee for Mental Hygiene, 1912, p. 2)

Regardless its promise, the mental hygiene movement still needed to confront the cynicism of the general public, which simply did not believe that mental illness was a curable condition. Perhaps most influential in changing the public’s attitude toward mental illness and its curability was America’s entrance into World War I in 1917. One of the most noticeable results experienced by combat veterans in World War I was the condition identified as a type of combat neurosis, more commonly known as “shell shock” or battle fatigue. By the time U.S. forces joined the war in 1917, a great deal of evidence had already been compiled concerning the psychological effect of combat on military personnel. As a result, the federal government created the division of neurology and psychiatry within the office of the Surgeon General. The new division, organized by the leadership of the National Committee for Mental Hygiene, was charged with four basic tasks: evaluate all recruits concerning their appropriateness for military service and disqualify those with a mental health condition; oversee the creation of facilities that would be used for the treatment and care of soldiers with mental health conditions as a result of their combat experience and who were approaching discharge from the military; provide treatment for American military forces who due to their combat experiences were currently suffering from battle related mental health conditions; and finally, provide ongoing treatment for those soldiers who returned home, but were currently incapacitated due to their combat experiences (Deutsch, 2007).

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In the aftermath of World War I, the concept of mental hygiene became more and more popular. The public, itself fatigued and concerned over the complex issues related to the psychological effect of warfare on returning American servicemen became more focused on the prevention of mental illness, which in turn cultivated greater support in seeing the introduction of more effective methods of treatment. As a result, the mental hygiene movement became the dominant force within American psychiatry and was able to expand its influence into a variety of disciplines, such as social work and education. However, this expanding influence did not result in a loss of focus. Still fundamentally concerned with the issue of preventable mental illness, a variety of community-based facilities were introduced with the purpose of expanding the availability of mental health treatment to a much larger segment of the American community. The introduction of the psychopathic hospital was designed with the purpose of providing community care to those individuals who formerly were exclusively treated in the asylum. Given that these facilities would be located within the community, it afforded the opportunity for accessible psychiatric treatment without the stigma imposed by the asylum. The rationale for these new facilities was motivated by the belief that if psychiatric treatment was available in the early stages of onset, these conditions could be better controlled and certain chronic examples of mental illness could be avoided. If a more structured environment was required, the psychopathic hospital was also capable of providing inpatient services for those individuals who were in need of a more extended stay, but were not in need of longer term psychiatric care (Rothman, 1980). Given that the main focus of the psychopathic hospital was to provide clinical treatment for those individuals entering the beginning stages of mental illness, the more chronically mentally ill patient was deemed inappropriate for these facilities. Within this new psychiatric arrangement, the psychopathic hospitals would address the acutely mentally ill, and the state hospital would continue its focus on those individuals whose condition was more chronic. However, the psychopathic hospitals soon began admitting more of the chronically mentally ill, which effectively turned these new facilities into the patient’s first stop on the way to the state hospital. These facilities actually became the hospital of choice, given the legal difficulties encountered by the commitment process. Frustrated by the numerous legal hurdles the treating psychiatrist was required to negotiate, reformers demanded that the process by which the mentally ill were to access clinical services should be no different from that of the individual receiving care for any other type of illness. As political pressure mounted, state legislatures became more amenable to the creation of temporary commitment laws, making it easy for the individual to receive psychiatric care. The mounting influx of the chronically mentally ill made it more and more difficult for the psychopathic hospitals to fulfill their initial mission and ultimately they were transformed into the staging area for those who would be confined long term to a state psychiatric hospital, once again calling into question the efficacy of psychiatric care in America.

The Pharmacological Revolution: The Age of Thorazine As the failure of the asylum transitioned into the failure of the state hospital system, American society was once again confronted with the daunting reality that perhaps mental illness was

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in fact incurable. Wasn’t it true that the promise of the mental hygiene movement concerning its belief in the curability of insanity was equally as incorrect as those that came before it? And wasn’t it true that the deplorable conditions of the state hospital system provided little relief for the individuals under their care, a set of conditions they were tasked to reform? Given the history of this process, the public’s reemerging skepticism concerning the treatment of mental illness was certainly justifiable. But with the beginning of the 1950s, yet another possibility was offered concerning the curability of mental illness that would perhaps be better able to correct the broken promises of the past. Once again, the promise of a cure for mental illness emerged in France. However, unlike other failed treatment strategies that were unable to realize the promise of their initially felt optimism, this newest “cure for mental illness” would be contained in a pill, rather than the within the attitudes or policy initiatives of lay activists or the psychiatric community. Initially used in the treatment of allergies or nausea, chlorpromazine, better known by its brand name Thorazine, was viewed as a possible strategy for the treatment of the symptoms of mental illness (Slate et al., 2013). Motivated by the sedating effect this drug caused in allergy patients, it was believed that it could have a similar influence on the agitated symptoms present in various types of schizophrenia (Healy, 2004). However, the American psychiatric community, much more focused on the use of talk therapy for the treatment of mental illness, was unsupportive of this new pharmacological invention. As a result of this skepticism, the drug’s manufacturer, Smith Kline, sought to sidestep the psychiatric opposition to the drug, and went instead directly to state legislatures. The main focus of their marketing campaign was to convince state legislatures that they could save substantial amounts of tax-payer money by investing in this treatment. It was argued that the effectiveness of their drug would make it possible to treat these individuals in the community, and as a result would greatly decrease the need for long-term hospitalization. In the decade following the introduction of Thorazine, over 50 million patients would be treated with the drug (Earley, 2006). However, much like its overly optimistic predecessors concerning the curability of mental illness, Thorazine suffered the same fate. Though successful in addressing certain symptoms related to schizophrenia, the results of using the drug did not reflect the potential cure that was initially hoped for. Not only was it ineffective in the treatment of certain types of psychotic disorders, but it also produced a variety of neurological side effects, now well recognized with a variety of antipsychotic medication (Slate, BuffingtonVollum, & Johnson, 2013). Regardless its claims of success, mental illness continued to remain a lingering social concern. The continued failure reflected in psychiatry’s inability to advance a legitimate cure for mental illness evoked a fundamental distrust in psychiatry itself, which in turn saw the creation of a variety of social movements that sought to challenge the very foundations of mental health treatment.

When Good Intentions Go Bad: Deinstitutionalization and the Criminalization of Mental Illness The roots of this transformational process date back to the late 1940s. After the culmination of World War II, President H.S. Truman signed into law the Mental Health Act of 1946, which established the National Institute of Mental Health (NIMH). Central to this federal initiative was the desire to shift the treatment of the mentally ill away from psychiatric hospitals into a

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network of community-based clinics (Slate et al., 2013; Torrey, 1997, 2013). However, it was not until 1955 under the Eisenhower administration that Congress once again took up the issue of mental illness in America, which resulted in the Mental Health Study Act. As a result of Eisenhower’s political initiative, the Joint Commission on Mental Illness and Health was established to formally study the problem of mental illness in America. In 1961, the Commission issued its final report, titled Action for Mental Health, and called for a national effort to treat the mentally ill in community-based treatment facilities with a stronger emphasis on prevention, to improve the treatment of the chronically mentally ill in psychiatric hospitals, and to provide professional training for those charged with the care of this clinical population (Slate et al., 2013). Concomitant with these changing legislative attitudes within the American political process was the ongoing skepticism of the general public aimed at the psychiatric hospital system in America in the 1940s and 1950s. The anti-psychiatry movement emerged as a critical voice to the status quo, which sought to end what it perceived as the unethical treatment of individuals being held or treated in large psychiatric hospital settings across America. The movement consisted of “psychiatrists and academics critical of the profession of psychiatry; many were skeptical of the very concept of mental illness” (Slate et al., 2013, p. 32). At the core of this critique was the belief that psychiatry was being utilized as a mechanism of control that sought to ensure social conformity and threaten the personal freedom of those targeted for psychiatric institutionalization (Foucault, 1965; Goffman, 1961; Szasz, 1961). In 1963, President Kennedy became the first President to address Congress directly on the issue of mental illness in America. Supporting the recommendations offered by the Commission in their final report in 1961, Kennedy called for the downsizing of the traditional state hospital, the reduction in the number of patients being held in those facilities, and the expansion of community-based mental health treatment (Slate et al., 2013). Kennedy’s initiative seemed to take advantage of the growing professional and public dissatisfaction with the state hospital system, which seemed unable to provide any legitimate advances in the treatment and prevention of mental illness. Based on the confluence of a variety of overlapping pharmacological, political, psychiatric, and social influences, the process of deinstitutionalization had begun. The process or concept of deinstitutionalization was initially conceived to achieve the following goals: (1) the establishment of specialized community treatment services for the mentally ill; (2) the movement of psychiatric hospital patients out of state institutions and into community treatment facilities; (3) and the diversion of individuals who would have previously been hospitalized to alternative community facilities and treatments (Slate et al., 2013, p. 38). However, problems with funding immediately emerged. The assassination of President Kennedy occurred approximately one month after legislation designated to fund the development of community-based facilities was signed into law. At the same time, the Vietnam War was ramping up and gradually consuming more and more of the government budget, resulting in funds formerly allocated for mental health to be diverted to the war effort. This culmination of events left the community mental health movement underfunded and falling far short of its initial vision. Add to this the fact that the lack of funding did not cease the process of releasing large numbers of individuals with ongoing mental health concerns back into the community (Gideon, 2013; Slate et al., 2013). A number of researchers have observed that from between

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1965 and 1975, the number of individuals being treated in state psychiatric hospitals went from approximately 500,000 in 1965 to around 200,000 in 1975 (Lamb & Weinberger, 2005; Slate et al., 2013; Torrey, 1997). As a result, the physical process of deinstitutionalization moved forward without having in place the community-based treatment facilities that were required for this transition to achieve the success initially envisioned for it. In fact, as deinstitutionalization moved forward, many people in communities across America began to experience firsthand the specific circumstances related to untreated mental illness. The formerly invisible population of hospitalized mentally ill individuals was now front and center in the American consciousness, and could often be viewed on the street or within the confines of one’s community. The immediacy of the experience of mental illness evoked emotions of fear and confusion among the general population who no longer felt comfortable interacting with individuals whose behavior left them frightened and insecure. From the early 1970s to the present, a variety of circumstances emerged making the criminalization of mental illness an established social reality. Those behind the deinstitutionalization movement fought hard to change involuntary commitment laws, making it much more difficult for individuals to be placed in a psychiatric state hospital against their will. Though this strategy was focused on protecting the civil rights of the mentally ill, it resulted in making this population more vulnerable to involvement with the criminal justice system. In the absence of available treatment facilities, the jail and penitentiary became the de facto institution for addressing this group of individuals. What this brief history of mental illness in America reveals is the degree to which we have come full circle from those initial strategies used to address this issue. Much like the attitudes in Colonial America that reacted to the social visibility of the mentally ill by creating a system of custodial arrangements that would hide these individuals from public view, the process of criminalization, which has evolved over the last four decades, has arrived at a similar result. With the gradual shrinking of the state psychiatric hospital system and the process of deinstitutionalization, which returned large numbers of mentally ill individuals back to the community without the necessary resources for their care, the social visibility of the mentally ill once again came into focus. However, with few other options available or desired, the total confinement setting of the jail or penitentiary has become the locality of course for this group. As Tom Dart, the Cook County Sheriff administrator in charge of the Cook County Jail in Chicago, observed, this turn of events reflects a tragic social irony. The social appetite for the warehousing of the mentally ill in state institutions in the 1940s through the 1960s so soured the public’s perception for this type of social practice that it helped to usher in the process of deinstitutionalization. However, as deinstitutionalization moved forward, it brought with it the lack of any desire to provide the funding necessary for this strategy to work. The result of this failure was the gradual confinement of the mentally ill in facilities fundamentally ill suited to address their specific needs. Perhaps in the end, the only real change that has been witnessed within this evolving history has been the type of total confinement institution to be employed. What remains unmistakable, and tragically consistent over time, has been the degree to which these institutions have supported the public’s desire to confine persons with mental illness and the complex social challenges they bring. Viewed almost exclusively as a social nuisance, the complexity of mental illness has been viewed as something to hide away rather than to legitimately confront.

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Total Confinement Institutions: From the Asylum to the Penitentiary In his important text, Asylums: Essays on the Social Situation of Mental Patients and Other Inmates, Goffman (1961) introduced the concept of the “total institution.” A total institution may be defined as a place of residence or work where a large number of likesituated individuals, cut off from the wider society for an appreciable period of time, together lead an enclosed, formally administered round of life. Prisons serve as a clear example, providing we appreciate that what is prison-like about prisons is found in institutions whose members have broken no laws. (p. xiii)

These like-situated individuals may refer to those found in a secure psychiatric or forensic hospital setting, the penitentiary, or those participating in the military or some type of religious order. Regardless of one’s specific organizational affiliation or specific social status, the role of the total institution is to construct a group of like-minded individuals or selves that will conform to a prescribed regime or set of established regulations spelled out by the specific contextual requirements of the institution. One way this goal is achieved is through the elimination of certain barriers that exist in the normal day-to-day occurrences of social existence. Goffman observed that total institutions differ from normal experience insofar as normal social existence includes the activities of work, play, and sleep, all of which take place within different contexts and are constructed under the guise of differing authorities and differing types of co-participation (Goffman, 1961). The central defining characteristic of total institutions, on the other hand, is characterized by the absence of these social barriers, thereby resulting in the construction of a single social context from which the activities of work, play, and sleep are all performed in the same social space without separation in any meaningful way. In the absence of such social barriers or separation, individual experience becomes totalized under a specific institutional regime that intrudes on every aspect of individual experience. As Goffman powerfully observed, the conceptualization of the total institution or total confinement (Arrigo, Bersot, & Sellers, 2011), perhaps most easily recognized within the example of the penitentiary, is not the exclusive reserve for those who have broken the law. Perhaps what is most revealing in Goffman’s observation is not witnessed in the institutional similarities between the prison and the psychiatric hospital, but rather in the way those institutions reflect the socially constructed nature of those individuals targeted for placement in such total organizational localities (Goffman, 1961; Smith, 2009). In its most general sense the concept of the total institution and its use of total confinement practices is most easily recognized as a socially sanctioned institution intended for the most marginalized groups or individuals within a given society, and as such carries the greatest degree of social stigma; this same process may certainly be witnessed within the institutional context of the military or that of the religious orders, with one significant exception: the participants within these total institutional contexts are not stigmatized in the same way as are the “society of captives” found in the penitentiary or in inpatient psychiatric facilities (Arrigo & Milovanovic, 2010; Sykes, 2007). All total institutions may require that some or all of the individual’s current identity be wiped away as a core requirement of entry into this institutional order; however, not all of these institutional contexts view the entering individual

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as a problem to be contained or “re-fabricated” in quite the same way. If we return to the initial introduction of the total institution represented by the asylum in Colonial America, this distinction can be clearly recognized. Albert Deutsch, in his text The Mentally Ill in America: A History of Their Care and Treatment from Colonial Times, first published in 1937, described the social context that was present prior to the creation of the Williamsburg psychiatric facility: Demoniacal possession was the common explanation of most forms of mental disorder, and the scourge, the rack, the stake and the gallows were the common methods of treatment. The fate of the mentally ill who managed to escape the accusation of being witches or bewitched was hardly better. If “violent,” they were thrown into prison dungeons like common criminals; if “harmless,” they were sometimes permitted to wander about the country aimlessly, with never a public thought of their welfare. (Deutsch, 2007, pp. 24–25)

Deutsch continued by observing that the public attitude toward the mentally ill had more to do with the difficulties these individuals posed as a social danger rather than an ethical dilemma that needed to be resolved. “The individual in need of assistance was apt to receive public attention only when his condition was looked upon as a social danger or public nuisance— and was then ‘disposed of’ rather than helped” (Deutsch, 2007, pp. 39–40). The introduction of the asylum, one of the first examples of the total institution in America, achieved two very specific goals: (1) it provided a “solution” for the social nuisance or threat posed by the mentally ill, and (2) it became recognized as a legitimate dumping space for those individuals. Such a resolution to the “problem” caused by the social visibility of the mentally ill provided not only for an immediate solution concerning the “problem” these individuals posed to civil society but also helped to more firmly establish the social relationship between the stigmatized individual and the emerging reliance upon the total institution for their custody and control. What becomes very clear in the above description is not only the specific way in which mental illness was constructed and stigmatized but how this process of stigmatization created the necessity for the total confinement institution to be created. The stigmatized presence of the mentally ill individual in the community created the necessity for a strategy to be devised that would effectively allow this problem to disappear from public consciousness. As was discussed above, the introduction of the asylum became the solution to that problem. It is important to recognize, however, that this solution had little concern for the individual suffering from mental illness; rather, it sought to address the specific issue created by the inability of this group of individuals to conform their behavior to established social norms and standards. A similar type of social dynamic can be witnessed in the creation of the total confinement institution of the penitentiary. It will be recalled that the introduction of the penitentiary did not appear in America until around the early 1820s. As the American population expanded and became more and more transient, the use of moral shaming techniques employed to deter subsequent criminal behavior became less and less effective. Larger and less socially isolated populations were now less likely to respond to social shaming in the way their predecessors had, therefore requiring a different social response to the growing presence of crime and criminal behavior. The problem posed by the social presence of mental illness was no different.

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The attitudes in Colonial America concerning the status of the mentally ill individual are similarly reflected in Goffman’s description of the relationship between those persons targeted with stigma and those responsible for its construction. Goffman (1963) stated it thusly: The attitudes we normals have toward a person with a stigma, and the actions we take in regard to him, are well known, since these responses are what benevolent social action is designed to soften and ameliorate. By definition, of course, we believe the person with stigma is not quite human. On this assumption we exercise varieties of discrimination, through which we effectively, if often unthinkingly, reduce his life chances. (p. 5)

This benevolent social action, reflected in the introduction of the asylum, sought to soften or cover over those beliefs that viewed these individuals as “not quite human.” Once constructed from this perspective, the problem posed by their ongoing social presence must be resolved. As the above historical description explored, the problem of mental illness was always constructed from the perspective of the existing social order. If mental illness was a problem, its resolution was rarely situated within the confines of those individuals suffering from this condition. Not surprisingly, in almost every instance, some manifestation of the total confinement facility or institution was employed to address this issue. In those strategies where more progressive solutions were envisioned, the ultimate conclusion always returned to the use of these facilities. Whether this entailed the use of the poorhouse or local jails, asylums, psychiatric hospitals, or the Cook County jail, mental illness has a long tradition of being treated as a condition in need of containment, control, and invisibility. Regardless the historical moment under consideration, the total confinement institution has been employed as the social receptacle by which to remove unwanted or stigmatized groups from the community. Whether examining practices in Colonial America or those employed during the process of deinstitutionalization over the last 40 years, the total confinement institution came to be viewed as the most “effective” way of addressing the issue of mental illness. Even as state psychiatric hospitals were being decommissioned nationwide based in part upon the social perception that these facilities had become little more than human warehouses for the mentally ill, public attitudes appeared to remain indifferent to the fact that these same individuals were ultimately finding their way into the criminal justice system: effectively substituting one type of total confinement institution for another. As was discussed above, the total confinement institution has always emerged in the aftermath of the stigmatization of a certain group within American society. Once this process had been completed and the targets of stigma identified, the need arose to construct a “solution” relative to the containment of this newly constructed “problem.” Whether this locality was the asylum, penitentiary, plantation, or reservation, its primary function was the same: provide a locality for the containment of those stigmatized individuals who were recognized as being “not quite human” (Goffman, 1963). Taken from this perspective, it is not surprising that the penitentiary and the local county jail system have come to be viewed as a suitable alternative to the perceived failures of the state psychiatric hospital. The contradictory logic of this shift from the state hospital to the penitentiary seems to reflect a surface incongruence that is difficult to reconcile. As Sheriff Dart observed, how could one be uncomfortable with the warehousing of the mentally ill in state hospitals, yet seemingly unconcerned with the warehousing of this same group within the criminal justice system? The answer appears to lie in the psychology of this dynamic.

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If one were to identify the main priority involved in the historical treatment and confinement of the mentally ill, it would reflect the desire to have this group of individuals disappear. Initially experienced as a problem based on their inability to conform their behavior to acceptable normative standards, the mentally ill were stigmatized for their condition and then locked way from public view for the upset they caused to the community. Being either unable or unwilling to confront the challenges these individuals posed on everyday society, it became easier to simply lock the “problem” away. Such a strategy closely resembles the process of repression discussed in the work of Sigmund Freud. Such a social psychological strategy is consistent with the Freudian conceptualization of the unconscious and the Freudian defense mechanism known as repression. The Freudian concept of repression is described as a psychological process (defense mechanism) that removes painful or unwanted experiences, beliefs, or thoughts from conscious awareness and relocates them within the unconscious; thereby rendering them inaccessible to the waking ego. (Lanier, Polizzi, & Wade, 2013, p. 572)

When taken from the psychological context of Freudian theory, the emergence of the total confinement institution becomes a powerful social psychological metaphor for this process. If the role of the Freudian unconscious is to protect the ego from contact with these unwanted thoughts or feelings, then the creation of the total institution is the process by which these unwanted individuals are locked away from public view for their own psychological protection. Faced with the daunting task of confronting the challenges posed by the social visibility of the mentally ill, an alternative strategy was constructed that seems to correct the problem. However, when these strategies of confinement fail, the problem once again makes its way back into conscious awareness. When this occurs, only two options remain: either successfully confront the problem by bringing it to a legitimate resolution, or once again usher the problem back to the recesses of the social unconscious. The initial strategy for addressing the social discomfort provoked by the unconstrained visibility of mental illness invited the practice of literally locking the problem behind closed doors. Throughout its developmental history, the social presence of mental illness in American society was “effectively” addressed by its containment within the various manifestations of the psychiatric asylum. With the onset of the deinstitutionalization movement, the mentally ill were released from psychiatric hospitals and returned to the community. However, as this reintegration process moved forward, it was not accompanied by the creation of sufficient treatment options that could legitimately address the psychiatric needs of this population. Without recourse to the state hospital system and without sufficient treatment options available in the community, the mentally ill were effectively left to fend for themselves. When viewed from the theoretical context of Freudian theory, such a turn of events reflects what has been identified as the return of the repressed. Within the context of individual psychodynamic theory, the return of the repressed represents a psychological process whereby formerly repressed material once again invades conscious awareness and is followed by the experience of anxiety (Gay, 1989; Lacan, 2006). No longer effectively contained within the structure of the unconscious, the normal defenses of the ego are overwhelmed and must either resolve the psychological problem this formerly repressed material imposes on conscious experience or must employ a strategy that is able to sufficiently repair the “breaks” within the structure of the unconscious that have been currently

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breached. The implications of this process may be metaphorically applied to the topic of deinstitutionalization and the consequences that followed. Deinstitutionalization, when taken from the perspective of Freudian theory, represents the return of the socially repressed reality of mental illness. No longer contained within the metaphorical unconscious structure of the psychiatric hospital, the problem of mental illness once again confronted the social consciousness of American society. As the numbers of mentally ill patients released from psychiatric hospitals across the country continued to grow, little was offered in the way of legitimate public health policy that was sufficient to this task. Though a variety of public debates ensued, the initial promise envisioned by the deinstitutionalization movement failed to materialize. Patients continued to be released back to the community as the state psychiatric hospital network continued to shrink, only to discover upon their return that it would be much more difficult to access necessary treatment services than was initially promised. As the social visibility of the mentally ill became more and more prominent in American cities due in part to growing populations of individuals who were now untreated and often homeless, the image of the mentally ill as a public nuisance once again became prominent. However, unlike the failed strategies of the past, the recourse or desire to employ the psychiatric asylum or hospital was no longer a viable option. Unfortunately, a total institution of last resort did remain—the penitentiary—and with it, the process of criminalization began. The lack of social concern for the warehousing of the mentally ill within the criminal justice system as observed by Sheriff Dart in the beginning of this chapter makes much more sense when the social psychological component discussed above is added to the discussion of the criminalization of mental illness. It is important to recognize that the one factor that is more or less present in every historical turn of the development of the “treatment” of the mentally ill in America is the removal of this group of individuals from public view. Though it is certainly true that the brief history discussed above did identify specific moments in American social history that sought to fundamentally transform the issue of mental illness in a number of very important ways, regardless of these efforts, the negative stigma of mental illness remained. The obvious contradiction identified by Sheriff Dart concerning the warehousing of the mentally ill powerfully reflects an example of the return of the repressed. Confronted by the need to address the deep social discomfort the issue of mental illness creates, the strategy is very clear: reconcile oneself to a thorough and painstaking examination of the problem and all of its manifest implications or once again usher it back into the recesses of the social unconscious. As the last several decades reveal, the answer to that question has been answered. In fact, it could be argued that the criminalization of mental illness has always been in some way implicated within the process of its social construction. A certain degree of illogic certainly exists within the strategy of substituting one total confinement institution—the psychiatric asylum—for another—the penitentiary system. However, this contradiction is resolved when the focus is placed not on its surface structure, but upon the underlying social psychological dynamic that allows such a “solution” to take place. Most important here is a rather obvious observation: the discomfort of warehousing individuals in psychiatric hospitals was less socially troubling than the social anxiety and concern the presence of the mentally ill evoked in the public imagination. Stated more simply, it is often believed that it is easier to ignore the messy work of confronting a problem than it is to actually attempt to solve it

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and move on with one’s life. Deinstitutionalization was an opportunity to begin the process of resolution, but resulted in the problem becoming more deeply entrenched, and will be all that much more difficult to resolve.

References Arrigo, B., Bersot, H., & Sellers, B. (2011). The ethics of total confinement: A critique of madness, citizenship, and social justice. Oxford, UK: Oxford University Press. Arrigo, B. A. & Milovanovic, D. (2010). Revolution in penology: Rethinking the society of captives. Lanham, MD: Rowman & Littlefield. Cloyes, K. G., Wong, B., Latimer, S., & Abarca, J. (2010). Time to prison return for offenders with serious mental illness released from prison. Criminal Justice and Behavior, 37, 175–187. Coy, A. (May, 2006). Mental health in colonial America. The Hospitalist. Retrieved from www.thehospitalist.org/details/article/252399/Mental_Health_in_Colonial_America.html Dain, N. (1980). The chronic mental patient in 19th-century America. Psychiatric Annals, 10, 323–327. Deutsch, A. (2007). The mentally ill in America: A history of their care and treatment from colonial times (3rd ed.). New York, NY: Columbia University Press. Earley, P. (2006). Crazy: A father’s search through America’s mental health madness. New York, NY: G. P. Putnam and Sons. Felix, R. H., & Bowers, R. V. (1948). Mental hygiene and socio-environmental factors. The Milbank Memorial Fund Quarterly, 26, 125–147. Foucault, M. (1965). Madness and civilization: A history of insanity in the age of reason. New York, NY: Vintage Books. Gay, P. (Ed.). (1989). The Freud Reader. New York, NY: W. W. Norton Gideon, L. (2013). Introduction: Special needs offenders. In L. Gideon (Ed.), Special needs offenders in correctional institutions (pp. 1–20). Los Angeles, CA: Sage. Goffman, E. (1961). Asylums: Essays on the social situation of mental patients and other inmates. New York, NY: Anchor Books. Goffman, E. (1963). Stigma: Notes on the management of spoiled identity. New York, NY: Simon & Schuster. Gollaher, D. (1995). Voice of the mad: The life of Dorothea Dix. New York, NY: Free Press. Grob, G. (1983). Mental illness and American society, 1875–1940. Princeton, NJ: Princeton University Press. Grob, G. (1994). The mad among us: A history of America’s care of the mentally ill. New York, NY: Free Press. Grob, G. (1995). The mad among us: A history of the care of America’s mentally ill. Oxford, UK: Oxford University Press. Healy, D. (2004). The creation of psychopharmacology. Cambridge, MA: Harvard University Press. Kloos, B. (2005). Creating new possibilities for promoting liberation, well-being and recovery: Learning from experiences of psychiatric consumers/survivors. In G. Nelson & I. Prilleltensky (Eds.), Community psychology: In pursuit of liberation and well-being (pp. 426–447). New York, NY: Palgrave Macmillan. Knapp, M., Beecham, J., McDaid, D., & Matosevic, T. (2011). The economic consequences of deinstitutionalization of mental health services: Lessons from a systematic review of European experience. Health and Social Care in the Community, 19, 113–125. Kroft, S. (Writer). (2013). Untreated mental illness an imminent danger? In G. Messick & C. Cowan (Producers), 60 Minutes. New York: NY: CBS News. Lacan, J. (2006). Ecrits: The first complete edition in English. B. Fink (Trans.). New York, NY: W. W. Norton.

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Lamb, H. R., & Weinberger, L. E. (2005). The shift of psychiatric inpatient care from hospitals to jails and prisons. Journal of the American Academy of Psychiatry and Law, 33, 529–534. Lanier, M. M., Polizzi, D., & Wade, A. L. (2013). Addressing the “inherent” philosophical and operational dichotomies of corrections from an EpiCrim approach. In B. Arrigo & H. Bersot (Eds.), The Routledge handbook of international crime and justice studies (pp. 565–584). London, UK: Routledge. National Committee for Mental Hygiene, Origins, Objects and Plans of the National Committee for Mental Hygiene. (1912). National Committee for Mental Hygiene: Publication No. 1, p. 2. New York, NY. Rothman, D. (1980). Conscience and convenience: The asylum and its alternatives in progressive America. Boston, MA: Little, Brown. Rothman, D. (1990). The discovery of the asylum: Social order in the new republic. Boston, MA: Little, Brown. Slate, R. N., Buffington-Vollum, J. K., & Johnson, W. W. (2013). The criminalization of mental illness: Crisis and opportunity for the criminal justice system (2nd ed.). Durham, NC: Carolina Academic Press. Smith, C. (2009). The prison & the American imagination. New Haven, CT: Yale University Press. Sykes, G. M. (2007). The society of captives: A study of a maximum security prison. Princeton, NJ: Princeton University Press. Szasz, T. (1961). The myth of mental illness: Foundations of a theory of personal conduct. New York, NY: Hoeber-Harper & Row. Torrey, E. F. (1997). Out of the shadows: Confronting America’s mental health crisis. New York, NY: John Wiley & Sons. Torrey, E. F. (2001). The invisible plague: The rise of mental illness from 1750 to the present. New Brunswick, NJ: Rutgers University Press. Torrey, E. F. (2013). American psychosis: How the federal government destroyed the mental health treatment system. Oxford, UK: Oxford University Press. Tuntiya, N. (2007). Free-air treatment for mental patients: The deinstitutionalization debate of the nineteenth century. Sociological Perspectives, 50, 469–488.

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4

Competency to Stand Trial Perhaps one of the most important and least understood due process rights guaranteed by the U.S. Constitution is the concept of competency to stand trial (CST) (Bardwell & Arrigo, 2002; Fulero & Wrightsman, 2008; Morse, 2011; Mossman et al., 2007; Otto, 2006; Perlin, 2003; Stafford, 2003; Walker & Shapiro, 2003). Often confused with the concept of state of mind at the time of the crime, which pertains solely to the legal culpability of the defendant, CST is concerned exclusively with defendants’ ability to understand the trial process and assist their attorney in their own defense (Bardwell & Arrigo, 2002; Morris & Meloy, 1993; Morse, 2011; Perlin, 2003). Stated more simply, CST is concerned solely with the legal process that follows the arrest of an individual charged with a criminal offense. For example, at the time of arrest, it must be determined whether or not the suspect has the necessary psychological capacity to participate in the trial process. Failure to legitimately establish the competency of the defendant places into question every legal conclusion reached in the absence of this essential legal fact. Once the competency of the defendant has been established the adjudication process can move forward. However, it is important to recognize that the establishment of competency does not also establish the defendant’s criminal responsibility at the time of the crime. It is possible for an individual to be incompetent to stand trial, but technically criminally responsible for his or her actions at the time of the crime. It is also possible for the defendant to be found criminally insane at the time of the offense (see Chapter Six) but later found to be competent to proceed to trial. However, regardless the specific circumstances of a given case, CST and criminal responsibility remain two distinct and different legal determination categories. Generally speaking, the most important function of establishing competency to stand trial is to prevent a mentally incompetent defendant from participating in the adjudication process (Morris & Meloy, 1994; Morse, 2011; Mossman et al., 2007; Otto, 2006; Perlin, 2003). The Supreme Court in its important ruling in Dusky v. United States (1960) established the standard for CST by requiring that the defendant have “sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding—and whether he has a rational as well as factual understanding of the proceedings against him” (Dusky v. United States, 1960). Any defendant who is unable to establish the requirements set out by the Court in Dusky is given the status of incompetent to stand trial (IST) and the legal process must stop until such time that competency has been restored. If it is medically impossible to restore

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competency in a reasonable time (Jackson v. Indiana, 1972), the adjudication process must cease and the defendant must be transferred to civil court, where he or she will be involuntarily committed to a psychiatric facility (Jackson v. Indiana, 1972). The CST process is complicated by the presence of overlapping or competing pre-trial competency concerns, such as competency to waive one’s right to counsel, competency to confess and plead guilty, and the competency to waive one’s Miranda rights (Perlin, 2003). Therefore, some questions remain concerning the relationship between CST and these other types of legal competency (see Chapter Five). However, before we attempt to discuss CST in its most contemporary legal meaning and application, it may be helpful to explore this concept’s history.

History of the Concept of Competency to Stand Trial (CST) The concept of legal competency dates back to seventeenth-century English common law (Bardwell & Arrigo, 2002). The legal standard was established when defendants failed to submit their required plea to the judge. As a result of the defendant’s silence, a determination needed to be made concerning the reason for a failure to plea. Was this defendant “mute by visitation of God” or “mute by malice” (Bardwell & Arrigo, 2002, p. 16)? If the court determined that malice was involved in the defendant’s silence, specific “examples” were employed to induce the defendant to submit their plea; if on the other hand, the defendant was considered “deaf and dumb,” their silence would be attributed to God. Unfortunately, this determination was often clarified only after the defendant had been subjected to various forms of torture in an attempt to “break their silence” (Bardwell & Arrigo, 2002, p. 16). In the eighteenth century, the concept of mental defect was introduced and used as the legal standard in the determination of the legal competency of the defendant. William Blackstone argued that the defendant suffering from a mental defect does not have the necessary rational faculties to provide a reasoned and cautioned plea (Bardwell & Arrigo, 2002). Blackstone continued to reason that such a defendant should be excused from prosecution based on the fact that it would not be possible for that individual to receive a fair trial. The power of Blackstone’s logic was ultimately recognized by the English courts and was used to establish the legal legitimacy for the concept of trial competency (Bardwell & Arrigo, 2002). In 1790, the English courts established the legitimacy of trial competency in the important ruling rendered in the Frith case. In that ruling the court opined that no man shall be called upon to make his defence at a time when his mind is in that situation as not to appear capable of so doing; for, however guilty he may be, the inquiring into his guilt must be postponed to that season, when by collecting together his intellects, and having them entire, he shall be able so to model his defence as to ward off the punishment of the law. . . (Bardwell & Arrigo, 2002, p. 17)

What is significant here is the way in which guilt is disqualified as the legal rationale for criminal prosecution. It was determined by the English court that if the trial process was to

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be fair, it must include a defendant with the mental capabilities to defend himself against the charges claimed by the state. If the defendant was absent these qualities, the proceeding was postponed until such time that the defendant could participate in his own defense. The ethical legitimacy of the process was therefore viewed as more important than the fact of actual guilt. The concept of mental defect introduced by Blackstone and ultimately legitimized by the ruling in the Frith case helped to usher in a new construction for the criminal defendant that was no longer construed from a religious point of view. Courts in the United States in the nineteenth century, following in the English Common Law tradition, began recognizing the ethical requirement of competency (Mossman et al., 2007). However, in the absence of any recognized standard to determine competency, these courts were forced to create their own tests, which often differed across various jurisdictions. In 1899, a federal appeals court noted that “it is not due process of law to subject an insane person to trial upon an indictment involving liberty or life” (Mossman et al. 2007, p. S5). In 1906, in United States v. Chisolm, 149 F. 224, the federal Circuit Court for Southern Alabama District provided language to establish a test for trial competency. Does the mental impairment of the prisoner’s mind, if such there be, whatever it is, disable him . . . from fairly presenting his defense, whatever it may be, and make it unjust to go on with his trial at this time, or is he feigning to be in that condition . . . ? (Mossman, 2007, p. S5)

Another test sought to require the defendant’s recognition of the seriousness of his or her current legal situation and one’s current ability to provide assistance in the defense (Mossman et al., 2007). Prior to the establishment of a national standard for competency in 1960, Title 18 Section 4244 of the United States Code (USC) was the legal standard most commonly used to determine the legal competency of a convicted defendant. In that section of the Federal Criminal Code it states: A defendant found guilty of an offense or an attorney for the Government, may, within ten days after the defendant is found guilty, and prior to the time the defendant is sentenced, file a motion for a hearing on the present mental condition of the defendant if the motion is supported by substantial information indicating that the defendant may presently be suffering from a mental disease or defect for the treatment of which he is in need of custody for care or treatment in a suitable facility. (18 USC 4244, p. 813)

It is important to recognize that Title 18 Section 4244 does not include any language concerning the defendant’s competency prior to conviction; rather it is concerned exclusively with the mental condition of the defendant subsequent to his or her conviction, and prior to sentencing. If this motion is accepted by the court, the defendant may be transferred to a “suitable facility” until the individual’s mental condition has been appropriately treated. However, if this treatment is unsuccessful or the individual is determined to be in need of continued care, the commitment to a suitable facility will be viewed as a “provisional sentence of imprisonment to the maximum term authorized by law for the offense for which the defendant was found guilty” (18 USC 4244, p. 814).

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The Supreme Court and the Legal Evolution of the Competency to Stand Trial Standard Long established by English Common Law as a necessary legal requirement to ensure a fair and just trial, competency to stand trial was not officially recognized by the Court until 1960. As we shall see, the concept of CST may also relate to a variety of different legal procedures, all of which require the active participation of a legally competent defendant. Though CST is generally recognized as the standard necessary for an individual to proceed to trial, there remains a great deal of legal and psychological debate concerning how one’s general competency to proceed to trial is understood relative to a variety of other legal decisions, such as competency to plead, competency to proceed to trial without an attorney, competency to submit to a search, or competency to waive one’s right to a jury trial (Arrigo, 2003; Bardwell & Arrigo, 2002; Perlin, 2003). What remains at legal issue is whether or not there should be a single legal standard for competency. On one side of this debate is the belief that the CST standard, established by the Court in 1960, is sufficient for all other types of pre-trial competency concerns. The opposition in this debate argues that though the competency standard established by the Supreme Court in 1960 should remain, it is insufficient in addressing the various competency issues that arise during the course of the legal process. Perhaps stated more simply, one side seeks to retain a “one size fits all” approach to the issue of legal competency, while the other position is more in favor of a tiered system of determining competency based on the specific legal procedure under question. We will now move to a discussion of the Court’s landmark opinion in Dusky v. United States, 362 U.S. 402 (1960).

Dusky v. United States (1960) In the Court’s landmark decision in Dusky v. United States, a minimal standard for competency to stand trial was established. Milton Dusky was arrested and charged with the unlawful transport of a female minor across state borders where he eventually raped her (Mossman et al., 2007). During his pre-trial evaluation it was determined that Dusky was schizophrenic and was unable to assist in his own defense due to his belief that he was being framed by law enforcement. In spite of these concerns, Dusky was found to be competent by the trial judge due to his ability to recall events and the fact that he was oriented to time and place, and was ultimately convicted of rape. Dusky appealed his conviction to the Eighth Circuit Court of Appeals, where his conviction was affirmed. Following the Eighth Circuit Court’s affirmation of Dusky’s conviction the U.S. Supreme Court heard the case based on a petition for writ of certiorari. The Court, in overturning the lower court’s ruling, stated that the recollection of events and orientation to time and place were insufficient in determining competency. Rather, the Court held that the standard for competency must establish “whether he had sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding—and whether he had a rational as well as factual understanding of the proceedings against him” (Dusky v. United States, 1960). The Court ordered that Dusky be remanded back to the lower court and retried if it could be established that he was currently competent to standard trial on his original charges.

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Though the Dusky ruling established a minimum standard for trial competency it did not offer any specific language concerning the types of mental illness that may render a defendant incompetent to stand trial. The standards of “sufficient present ability” and “rational understanding” are ultimately left to the trial judge to determine. Neither did it clearly establish how nor under what set of circumstances this reasonable degree of rational understanding would be sufficiently identified (Slobogin, 2008). As a result of this rather short and vague ruling, a number of important cases made their way to the Court, which in turn helped to build upon what had been established in Dusky.

Pate v. Robinson (1966) Approximately six years after its landmark ruling in Dusky, the Court once again took up the issue of competency. However, unlike Dusky, which focused on the standard for competency to stand trial, Pate and Westbrook took up the issue of the right of a defendant to be evaluated to determine competency prior to the proceedings advancing to trial. In Pate v. Robinson, 383 U.S. 375 (1966), the Court was asked to resolve two main questions: Did Robinson, by not specifically requesting a pre-trial insanity hearing, also knowingly waive his right for the court to determine his competency to stand trial, and did the trial court err by not recognizing the defense attorney’s claim concerning his client’s competency to stand trial? In 1959, Robinson was convicted of killing his common-law wife and was sentenced to life imprisonment (Pate v. Robinson, 1966). Though the evidence of the case seemed to establish that Robinson did indeed shoot his wife, it was claimed by his attorney that Robinson was insane at the time of the crime and was not competent to stand trial. Robinson presented an uncontested personal history that revealed well-established episodes of disturbed behavior that included the murder of his infant son and an attempted suicide. The trial court rejected rebuttal testimony from four defense witnesses who claimed that the defendant was insane. The presiding judge argued that his decision was based upon the results of a psychiatric evaluation that was conducted approximately two months prior to the trial; in that report the psychiatrist concluded that Robinson was capable of consulting with his attorney (Pate v. Robinson, 1966). Robinson appealed his conviction to the Illinois State Supreme Court, which upheld his conviction on the grounds that no competency hearing was requested and the evidence presented in court was insufficient to necessitate the trial judge to order one suo sponte—that is, without a request. Robinson then appealed to the U.S. Supreme Court, which denied the petitioner’s writ of certiorari. After Robinson was denied by the U.S. Supreme Court, he pursued a remedy at the District Court in Illinois where he filed a writ of habeas corpus—challenging the legality of his confinement on the premise of an illegal conviction—arguing that the speed of the legal proceedings that resulted in his conviction did not provide adequate time for his attorney to establish his insanity and competency claims. The District Court denied Robinson’s habeas corpus petition, resulting in him seeking relief in the Federal Court of Appeals. This time, the court agreed with Robinson’s claims that the speed of the trial process denied him a “fair opportunity” to introduce the necessary evidence to establish his competency and insanity claims, thereby overturning the lower court’s ruling. The case ultimately was resolved by the U.S. Supreme Court. The U.S. Supreme Court agreed with the decision offered by the Federal Appellate Court and ruled that Robinson must be granted a new trial or all charges against him must be dropped.

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The rationale for the Court’s position was based on the fact that sufficient evidence was presented that challenged the lower court’s position concerning Robinson’s competency to stand trial. The Court, therefore ruled that (a)The conviction of a legally incompetent defendant violates due process. (b)The record shows that the respondent did not waive the defense of incompetent to stand trial. (c) In view of evidence raising a doubt on the competence issue, the court was required to impanel a jury and conduct a sanity hearing and could not rely in lieu thereof on respondent’s demeanor at trial or on the stipulated medical testimony. (Pate v. Robinson, 1966)

During the same term in which Pate was decided, the Court heard a case that sought to answer the question that has become central to the current competency debate: Does the establishment of a defendant’s competency to stand trial imply that the defendant is also competent to serve as his or her own attorney, or does another standard need to be established dependent upon the specific legal context in which the defendant is involved? Does the Dusky standard sufficiently establish the concept of competency within all legal domains, or does it simply reflect a minimum threshold that a defendant must meet if they are to continue through the legal process? A preliminary answer to this question was provided by the Court in its ruling in Westbrook v. Arizona, 384 U.S. 150 (1966); however, as we shall see below, this question remains unresolved.

Westbrook v. Arizona (1966) In Westbrook v. Arizona, the Court sought to clarify a rather straightforward issue: Does the establishment of CST require another hearing to establish a defendant’s competency to waive his or her right to consult with an attorney? What seems equally straightforward is that based on the language provided by the Court, a clear distinction was made between competency to stand trial and competency to serve as one’s attorney. The Court, relying on the rationale provided in the Pate opinion, argued that in light of that finding, it may be necessary to reexamine whether or not a finding of competency to stand trial also allows for this defendant to then waive his or her right to assistance of counsel. The majority provided the following observation: Although petitioner received a hearing on the issue of his competence to stand trial, there appears to have been no hearing or inquiry into the issue of his competence to waive his constitutional right to the assistance of counsel and proceed, as he did, to conduct his own defense. (Westbrook v. Arizona, 1966)

The Court’s rationale in the Westbrook decision appears to recognize a clear distinction between the competency of a defendant who will be assisted by counsel and the competency of a defendant who will waive that right. In the former case, the standard for competency established by Dusky appears sufficient, insofar as the due process rights of the defendant will be protected by legal counsel. In the latter case, however, no such protection is guaranteed given that the defendant has decided to waive the right to counsel and conduct his own defense. It is the absence of this protection that seems to most concern the Court in this decision.

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The constitutional right of an accused to be represented by counsel invokes, of itself, the protection of the trial court, in which the accused—whose life or liberty is at stake—is without counsel. This protecting duty imposes the serious and weighty responsibility upon the trial judge of determining whether there is an intelligent and competent waiver by the accused. (Westbrook v. Arizona, 1966)

It seems clear from this language that the Court believed that the absence of a second hearing to establish the defendant’s competency to conduct his own defense, regardless the initial recognition of the individual’s competence to stand trial, was a violation of the “serious responsibility” imposed on the trial judge to protect the accused. What appears most significant in this ruling is the way in which the Court moves “past” the fact of the defendant’s competency to stand trial, and places all of its focus upon the competency of a defendant acting without the assistance of counsel. By directing its attention in the way that it does, the Court appears to be signaling that perhaps the standard for competency described in Dusky is not sufficient in determining other types of pre-trial competency issues.

Drope v. Missouri (1975) Approximately nine years after the Pate and Westbrook rulings, the Court once again was called to take up the issue of competency. Drope, arrested with two others for the rape of his wife, filed a continuance with the Missouri court to allow him to receive further psychiatric treatment rather than proceed immediately to trial. Drope included with his motion a psychiatric report from an evaluation conducted on the defendant per his attorney’s request concerning the need for such treatment. Drope’s motion was denied and his case proceeded to trial. Drope’s wife initially had not intended to prosecute her husband, but changed her mind after he attempted to kill her a few days before the trial was to begin. On the second day of the trial, Drope was hospitalized for a failed suicide attempt and was unable to attend his trial. As a result of his client’s absence, Drope’s attorney filed a motion for a mistrial. However, this request was denied by the trial judge who ruled that the defendant’s absence from the courtroom was voluntary in nature. After Drope was convicted on all charges, a flurry of appeals filed by his attorney followed concerning the defendant’s absence from the courtroom and the failure of the judge to order a competency hearing to determine competence based on the evidence provided in the court process. Once the appeal process came to an unsuccessful conclusion, Drope’s case made its way to the U.S. Supreme Court. The Court, in its unanimous decision ruled that (1) the Missouri courts “failed to accord proper weight” (Drope v. Missouri, 1975) to the evidence that seemed to suggest the defendant’s possible incompetence; (2) the lower courts failed to thoroughly explore the relationship between Drope’s apparent mental illness and his ability to competently participate in his trial; (3) it was not sufficiently established that Drope knowingly waived his right to be present at trial; and (4) conducting an evaluation would not protect Drope’s due process rights. In addition, the Court added that the state of Missouri could retry Drope, assuming that the defendant was competent to stand trial at the time of the trial to determine his current ability to participate in court (Drope v. Missouri, 1975). In many ways, the unanimous decision offered in Drope helped to solidify the central importance of establishing the trial competency of a criminal defendant. Beginning with Dusky and following in the Court’s decisions in Pate, Westbrook, and Drope, the concept of trial

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competency evolved into a significant due process right that the trial judge was now specifically charged to uphold and protect. If a legitimate question emerged concerning the competency of a defendant, the legal process must be suspended and a psychiatric evaluation conducted to ensure that the due process rights of the defendant were appropriately protected. This added responsibility seemed to be the central focus of Westbrook in its recognition of the need to consider the various contexts in which a defendant’s competency could potentially be called into question. In Westbrook, the Court introduced for the first time the potential need for different standards of competency depending upon the specific procedural requirement asked of the defendant. The standard established in Dusky concerning the defendant’s ability to participate at trial seemed insufficient for an individual interested in going to trial without counsel. These differing legal contexts seemed to convince the Court of the need to at least be open to the possibility that a single standard for competency was in need of further examination. Such a consideration was taken up in the Court’s opinion in Godinez v. Moran.

Godinez v. Moran (1993) In Godinez v. Moran 509 U.S. 389 (1993), the Court was asked to resolve a lingering disagreement that was initially introduced in Westbrook v. Arizona: Did the competency standard offered in Dusky also apply to all other questions concerning the defendant’s competency, such as to plead guilty or to waive the right of assistance of counsel? Perlin (1996) observed that, Before Godinez, “courts traditionally had generally recognized that the standard for competence to plead guilty is generally higher than for other sorts of consent or waiver. However, courts had split on the significant question of whether the standard to plead guilty is the same as, higher than, or otherwise different from,” the traditional standard for assessing competence to stand trial. (p. 65)

Godinez provided the Court the opportunity finally to resolve this issue. On August 2, 1984, Godinez entered the Red Pearl Saloon in Las Vegas, Nevada and murdered the bartender and a bar patron during the course of an armed robbery. Nine days later the defendant went to the residence of his former wife, and after shooting her to death, proceeded to shoot himself in the abdomen and slit his wrists in what ultimately proved to be an unsuccessful attempt at suicide. While still hospitalized for his self-inflicted wounds, he contacted the police and confessed to the killing of his wife and the two individuals in the Red Pearl Saloon (Godinez v. Moran, 1993). At his arraignment the defendant pleaded not guilty to three counts of murder in the first degree. The trial judge ordered that a competency hearing be conducted by two appointed psychiatrists who determined that the defendant was competent to stand trial. Approximately two and a half months after the completion of the psychiatric evaluations, the defendant was returned to court where he informed the judge that he wished to change his plea to guilty. When asked the reason for his decision to change his plea, the defendant indicated that his intent was to prevent the introduction of evidence that may threaten the possibility of his execution (Godinez v. Moran, 1993).

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At this time, Moran was reminded of his right to be assisted by counsel, or to represent himself. He was also informed about the dangers of self-representation and was questioned concerning his understanding of the proceedings, his understanding of his legal rights, and his rationale for representing himself. Once these questions were sufficiently answered, the judge accepted the defendant’s waiver of counsel. The newly entered plea of guilty on all counts was also accepted by the judge after it was determined that the defendant’s plea was not in any way coerced and the plea was not based on threats or promises and that the defendant understood the charges and potential consequences for the guilty plea (Godinez v. Moran, 1993). On January 21, 1985, the defendant was sentenced to death for each of the murders. Approximately two years later the case was back in court on appeal. The defendant filed a post-conviction petition with the Supreme Court of Nevada, claiming that he was mentally incompetent and should not have been allowed to represent himself. The Nevada court disagreed, arguing that the defendant had been found to be competent to stand trial by two court-appointed psychiatrists, and therefore rejected his petition. After being denied by the Nevada court, the defendant filed a habeas corpus petition in the U.S. District Court, which was also denied. However, the district court’s ruling was reversed on appeal by the Ninth Circuit Court of Appeals. In the circuit court’s decision, they opined that credible evidence did exist concerning the status of the defendant’s competency, which questioned the defendant’s ability: to make a voluntary, knowing, and intelligent waiver of constitutional rights, and that the Due Process Clause therefore “required the court to hold a hearing to evaluate and determine competency . . . before it accepted his decision to discharge counsel and change his pleas.” (Godinez v. Moran, 1993)

The circuit court concluded in its opinion that the state court had applied the incorrect legal standard for competency. The appellate court stated that “Competency to waive constitutional rights,” according to the Court of Appeals, “requires a higher level of mental functioning than that required to stand trial;” while a defendant is competent to stand trial if he has “a rational and factual understanding of the proceedings and is capable of assisting his counsel,” a defendant is competent to waive counsel or plead guilty only if he has “the capacity for ‘reasoned choice’ among the alternatives available to him.” (Godinez v. Moran, 1993)

As a result of this opinion, the Court decided to hear the case and resolve the issue. Central to the decision offered by the Court in Godinez is the Court’s rejection of the idea that different standards of competency are required for competency to stand trial, to plead guilty, or to waive one’s constitutionally protected right to counsel. The Court argued that the circuit court relied too heavily on the Westbrook decision, and rejected the position taken by the appellate court, which argued that the “clear implication of Westbrook is that the Dusky formulation is not ‘a high enough standard’ for determining whether a defendant is competent to waive a constitutional right” (Godinez v. Moran, 1993). The Court concluded its decision in the following way:

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Requiring that a criminal defendant be competent has a modest aim: It seeks to ensure that he has the capacity to understand the proceedings and to assist counsel. While psychiatrists and scholars may find it useful to classify the various kinds and degrees of competence, and while States are free to adopt competency standards that are more elaborate than the Dusky formulation, the Due Process Clause does not impose these additional requirements. (Godinez v. Moran, 1993)

As a result of this ruling, Moran’s convictions were upheld and he was ultimately executed. Though the Court’s decision “resolved” for the moment the debate concerning differing standards of competency, it did little to clarify the potential vulnerability of the mentally ill defendant involved in the criminal justice system (Slobogin, 2008). In fact, its decision minimizes the rather clear distinction discussed above in Westbrook v. Arizona, and seems to erode some of the very legitimacy that this decision seemed to offer. To argue that the Dusky formulation is sufficient “from the time of arraignment through the return of the verdict,” (Godinez v. Moran, 1993) seems to ignore an important fact: Who will assist the defendant at trial? If the basic purpose of a competency standard is to protect the rights of the defendant from unfair prosecution, how is this goal obtained with such a vulnerable defendant? In Faretta v. California (discussed in more detail in Chapter Five), the Court reaffirmed defendants’ constitutional right to represent themselves despite the lack of formal legal training, even though it strongly suggested against such an action. As Slobogin (2008) argued however, the real question in Godinez is not whether a defendant has the right to waive assistance of counsel; rather, the question should concern how the defendant arrived at that decision. If that decision was determined by a delusional thought process or paranoid thinking—such as, the appointed attorney is working for the state to guarantee my conviction— the right to waive counsel should not be allowed at least until the defendant’s competency has been clearly established (Slobogin, 2008). The very focus of the Dusky standard seems to already suggest the direction of a tiered system of competency. If not, why does the Court specify as it does in Dusky that the competent defendant must be able to assist counsel in his or her own defense and be able to understand the significance of the proceedings? In the absence of the assistance of counsel, does the defendant’s ability to understand the process sufficiently satisfy this standard, which is clearly intended to include the presumed involvement of a trained attorney? Perhaps the answer to these questions can be resolved by returning to the closing words of this decision: “while States are free to adopt competency standards that are more elaborate than the Dusky formulation, the Due Process Clause does not impose these additional requirements” (Godinez v. Moran, 1993). In the end, does the decision in Godinez reflect a legitimate desire to resolve the issue of competency or is it simply an attempt to prevent its further “federalization”? It seems accurate to reach such a cynical conclusion given that the practical implications of this ruling actually provided fewer legal protections afforded to these most vulnerable defendants than existed prior to its announcement (Perlin, 1996, 2003). However, this opinion did not resolve this conflict as the majority had hoped, and within the span of 12 years this issue was again before the Court.

Indiana v. Edwards (2008) In the case of Indiana v. Edwards, 554 U.S. 164 (2008), the Court was once again asked to resolve the question concerning competency and the right to waive the constitutional right of

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assistance from counsel. Though Edwards is not directly related to the Dusky formulation for competency to stand trial, it does involve the Court’s ruling in Godinez, which by implication is concerned with whether or not the due process clause requires different standards for competency. Edwards was charged with attempted murder and other crimes during his attempt to steal a pair of shoes. The severity of his mental illness required three competency hearings and two requests to waive his right to counsel. It was established that Edwards suffered from schizophrenia and though he was deemed competent to stand trial, he did not appear competent to defend himself. After his trial, which was conducted with the involvement of a public defender, Edwards was convicted of his charges (Indiana v. Edwards, 2008, pp. 164–165). However, an Indiana appellate court ruled for a new trial based on the fact that Edwards was denied his right to defend himself at trial; a Sixth Amendment right further clarified by the Court in Faretta v. California, 442 U.S. 806 (1975) and in Godinez. The state of Indiana challenged this ruling, and the case was sent to the Supreme Court for resolution. The Court, in its ruling in Edwards, held the following: The Constitution does not forbid States from insisting upon representation by counsel for those competent enough to stand trial but who suffer from severe mental illness to the point where they are not competent to conduct trial proceedings by themselves. (Indiana v. Edwards, 544 U.S. 164, 2008)

In this ruling, the Court sought to answer whether it was constitutionally permissible to deny a defendant the right of self-representation. Whereas, in Godinez, the Court allowed that “a State may permit a gray-area defendant to represent himself it does not tell a State whether it may deny such a defendant the right to represent himself at trial” (Indiana v. Edwards, 2008). The Court offered two basic factors in reaching its decision: a.) Previous Court precedents help to frame the current question before the Court, but do not actually answer the question. b.) Several considerations taken together lead the Court to conclude that the Constitution permits a State to limit a defendant’s self-representation right by insisting upon trial counsel when the defendant lacks the mental competency to conduct his trial defense unless represented. (Indiana v. Edwards, 2008)

In describing its position, the Court argued that the opinions offered in Dusky and Drope are in fact predicated upon the assistance of counsel and therefore, it would appear that a defendant seeking to proceed to trial without counsel evokes a very different set of circumstances (Indiana v. Edwards, 2008). The Court continued by observing that the varied nature of mental illness and its varied influence on individual functioning at various moments would seem to argue against a single standard for competency. They conclude by stating, “a self-representation right at trial will not ‘affirm the dignity’ of the defendant who lacks the mental capacity to conduct his defense without the assistance of counsel” (Indiana v. Edwards, 2008). The Court’s ruling in Indiana v. Edwards offers a subtle glimpse into the politics of established precedent. Did the Court in Edwards overturn Godinez, or did it simply expand that ruling? There seems to be little question based on the language of this opinion that a higher standard of competency now exists at least as this relates to the marginally competent defendant and waiving one’s right to counsel. Or, does this decision simply represent the Court’s

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desire to expand upon the opportunity offered in Godinez: “while States are free to adopt competency standards that are more elaborate than the Dusky formulation, the Due Process Clause does not impose them” (Godinez v. Moran, 1993)? What can be witnessed in the decisions offered in Dusky, Pate, Westbrook, Drope, Godinez, and Edwards is the Court’s ongoing struggle to clearly establish the specific meaning of competency to stand trial as it relates to other types of legal competency. The specificity of the competency to stand trial standard is implicated in a variety of other legal activities that become particularly problematic and ethically questionable when posed to the mentally ill defendant. The contextual concerns of CST are simply different, for example, from those related to competency to plea, competency to waive one’s Miranda rights, or competency to advance to trial without legal representation, and as such, likely require differing levels of cognitive functioning. But as Slobogin (2008) argued, even the Dusky standard is limited in its ability to recognize the various ways in which mental illness may influence one’s actual trial competency. We will now move to a discussion of the concept of incompetency and will end with a discussion and introduction of the concept of the adjudicative self.

Incompetent to Stand Trial: What Occurs When Competency Cannot Be Established? As was stated in the introduction of this chapter, the determination of incompetency to stand trial is concerned exclusively with the ability of the defendant to communicate with his or her attorney and have a “reasonable understanding” of the legal process in which the defendant is currently involved. If at any time during this process a legitimate question is raised concerning the defendant’s competency, the process must stop, and some type of procedural evaluation must be held to determine if the trial can move forward. However, as we have witnessed in the discussion on competency, how this determination is established is not always as clear as one would hope. Though an evaluation is required to establish a defendant’s competency to stand trial, if this ability is under question, are subsequent evaluations required for other types of competency once CST has been established? Perhaps of greater importance concerns what happens to the defendant who has been deemed incompetent to stand trial. How is competency restored so the trial process can continue? What occurs if competency is not restorable based on the severity of the individual’s level of chronic mental illness: What happens to the accused and how is the case adjudicated? The Court attempted to answer some of these questions in its landmark ruling in Jackson v. Indiana.

Jackson v. Indiana (1972) In Jackson v. Indiana, 406 U.S. 715 (1972), the Court took up the issue of the length of pretrial commitment for an accused who was currently found to be incompetent to stand trial. Jackson, 27 years old at the time of his arrest, was described by the Court as a “mentally defective deaf mute with a mental level of a pre-school child. He cannot read, write, or otherwise communicate except through limited sign language” (Jackson v. Indiana, 1972). Jackson was charged in two separate robberies: in the first robbery he stole a purse and its contents valued at 4 dollars, and in the second he robbed another woman of 5 dollars. Jackson

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pleaded not guilty, but was immediately found incompetent to stand trial and per Indiana law was required to undergo a psychiatric evaluation to determine competency. As was required by Indiana law, an evaluation hearing was conducted by two psychiatrists to determine Jackson’s competency to stand trial. The report concluded that “Jackson’s almost nonexistent communication skill, together with his lack of hearing and his mental deficiency, left him unable to understand the nature of the charges against him or to participate in his defense” (Jackson v. Indiana, 1972). One of the evaluating psychiatrists noted that it was extremely unlikely that the defendant would ever be able to learn how to read or write, or develop a proficiency to use sign language. The other psychiatrist added that even if Jackson were not a “deaf mute,” he doubted that Jackson had sufficient intelligence to ever be found appropriate for trial. Jackson was then remanded to the Indiana Department of Health until such time that competency could be restored (Jackson v. Indiana, 1972). The order by the Indiana court immediately resulted in Jackson’s counsel filing a motion for a new trial, given that his client’s “sanity” was not at issue, but his competence to stand trial certainly was. The claim in the motion focused on the rather obvious fact that due to Jackson’s condition it was highly unlikely that he would ever be competent to stand trial. Jackson’s defense counsel argued that his client’s commitment would effectively result in a life sentence without ever having gone to trial: “the commitment therefore deprived Jackson of his Fourteenth Amendment rights to due process and equal protection, and constituted cruel and unusual punishment under the Eighth Amendment made applicable to the States through the Fourteenth” (Jackson v. Indiana, 1972). In overturning the lower court’s decision, the Supreme Court unanimously ruled that “Indiana cannot constitutionally commit the petitioner for an indefinite period simply on account of his incompetency to stand trial on the charges filed against him” (Jackson v. Indiana, 1972). Court continued by stating: We hold, consequently, that a person charged by a State with a criminal offense who is committed solely on account of his incapacity to proceed to trial cannot be held more than the reasonable period of time necessary to determine whether there is a substantial probability that he will attain that capacity in the foreseeable future. If it is determined that this is not the case, then the State must either institute the customary civil commitment proceeding that would be required to commit indefinitely any other citizen, or release the defendant. Furthermore, even if it is determined that the defendant probably soon will be able to stand trial, his continued commitment must be justified by progress toward that goal. (Jackson v. Indiana, 1972)

Prior to the Court’s ruling in Jackson, the states have regularly sanctioned the practice of holding individuals indefinitely on the status of incompetent to stand trial (Kaufman, Way, & Suardi, 2012; Morris & Meloy, 1994). However, for the chronically mentally ill individual who had little legitimate expectation of being “restored to competency,” this strategy resulted in what could be practically viewed as a life sentence without due process or equal protection of the law. In fact, such an individual would enjoy neither equal protection under the law nor the rights provided to a civilly committed individual not involved in a criminal proceeding: the denial of due process rights allows for indefinite incarceration without conviction and the denial of those privileges afforded to the non-criminal mentally ill eligible for commitment in an appropriate psychiatric facility. The Court added that

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Since the issue of petitioner’s criminal responsibility at the time of the alleged offenses (as distinguished from the issue of competency stand trial) has not been determined and other matters of defense may remain to be resolved, it would be premature for This Court to dismiss the charges against the petitioner. (Jackson v. Indiana, 1972)

Out of Mind? Out of Sight: Incompetency After Jackson In their important article, “Out of Mind? Out of Sight: The Uncivil Commitment of Permanently Incompetent Criminal Defendants,” Morris and Meloy explored the effect of the Jackson ruling 20 years after the case was initially decided. The authors, in their attempt to explore the impact of the Jackson ruling 20 years later, focused on the legislative response to Jackson, and upon how the lives of these individuals have been changed by this process (Morris & Meloy, 1994). The authors began by exploring the Court’s requirement for the establishment of a reasonable period of time by which to determine the competency of the individual. They made the following observation: Although more than twenty years have passed since the Court decided Jackson, this question has not been answered by the statutes of thirty states and the District of Columbia. Of this number, twenty-three jurisdictions do not address the issue at all. Eight states address the issue but do not specify the length of the evaluation detention period. Typically, these statutes merely parrot the Jackson language allowing the incompetent defendant’s detention for a “reasonable” period. Of the twenty states that specify the length of the detention period, ninety days is the most frequent period specified, with the shortest being thirty days and the longest being twelve months. (Morris & Meloy, 1994, p. 7)

Though the Court did not offer a specific time frame by which to reasonably decide if competence could be restored, it did offer some recognition of what a reasonable duration would be. Given that the Court determined that Jackson’s 3.5 years of confinement constituted an unreasonably excessive duration, it could be reasonably argued that any confinement beyond that point is unquestionably unconstitutional. This observation is not intended to justify the actions of those state legislatures willing to deny due process to their mentally ill citizens; rather, it intends to show that no legitimate justification actually exists for long durations of confinement for this class of criminal defendant. The authors continued by observing that certain clients are so profoundly mentally ill that there is simply no possibility that competency could ever be “restored.” In such cases, the trial judge should be allowed to declare the defendant permanently incompetent without any further evaluations or confinement (Morris & Meloy, 1994). The authors reported that only seven states have actually addressed this issue with only four from that group allowing the court to evaluate the probability that the individual will be resorted to competency in the foreseeable future (Morris & Meloy, 1994). By allowing the trial court to determine the probability of foreseeable trial competency, the defendant may be sheltered from the possibility of having to endure unnecessary treatment and confinement to restore competency, which is a central aim of the Jackson decision. The reality of this issue is a simple one: certain chronic developmental disorders affecting brain function cannot be reversed regardless their treatment and in the end become a thinly veiled

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strategy by which indeterminate confinement is legitimized. An individual with the variety of psychological and physiological deficits like those suffered by Jackson should have been sufficient evidence to result in a finding of permanent incompetence. A second consideration explored by the authors focused upon the limits placed on the treatment of the incompetent defendant. Within this context, the authors found only 22 states in compliance with the Jackson ruling. Of those found in compliance with this ruling, 18 states limited the period of confinement to 18 months, while four states utilized the civil commitment process immediately (Morris & Meloy, 1994). Unfortunately, Morris and Meloy (1994) also found that 15 states have pursued a legislative course that seeks to circumvent the Jackson requirement. In those states that have actively sought to ignore the Court’s ruling, a variety of strategies to that end have been enacted. The Florida legislature, for example, enacted a 5-year-treatment provision, which seems to violate the “reasonable duration” standard established by the Court. Other states have resorted to the constitutionally questionable strategy of calculating the duration of treatment based on the maximum length of sentence one would expect to receive if convicted of that crime or offense. Though the calculus used to determine this period of “treatment confinement” varies among states, for all practical purposes, these strategies reflect the seemingly accepted practice of sentencing an incompetent mentally ill defendant for a crime they have never been convicted of in a court of law. Another strategy employed by various states to circumvent Jackson has focused upon the presumed guilt of the individual. In these instances, state courts have used this presumption of guilt as the driving rationale for supporting confinement periods that far exceed the standard established by Jackson. However, such a legal strategy seeks to conflate the concepts of criminal responsibility and competency to stand trial into a legal hybrid that is exclusively applied to the mentally ill defendant; as a result, the application of this strategy becomes a fundamental contradiction to the cherished American legal values of due process and equal protection under the law. In a direct challenge to this type of legal reasoning, the Court in a footnote found in Jones v. United States, 463, U.S. 354 (1983) provides the following observation: The proof beyond a reasonable doubt that the acquittee committed a criminal act distinguishes this case from Jackson v. Indiana, 406 U.S. 715 (1972) in which the Court held that a person found incompetent to stand trial could not be committed indefinitely solely on the basis of the finding of incompetency. In Jackson there never was any affirmative proof that the accused had committed criminal acts or otherwise was dangerous. (Jones v. United States, 1983)

The Court appears to be making a clear distinction between criminal responsibility, which relates exclusively to the defendant’s state of mind at the time of the crime, and the process required to establish that fact with that of incompetency, which is established by a different evaluative process. In Jackson, the sole concern of the Court seems to focus on the time frame required to restore competency and not the presumed guilt of the defendant. Morris and Meloy (1994) added that “because a factual finding of guilt is not related to progress in treatment to restore competence, a factual guilt hearing cannot justify an extended period of treatment” (p. 6). Morris and Meloy (1994) concluded by observing that though it is true enough that proven guilt is required prior to the imposition of punishment, this fact is not sufficient to justify that the states deny the fundamental recognition of the importance of due process and equal

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protection under the law. The Court clearly states as much in its Jackson decision. Whereas, the Court in its decision attempted to prevent the criminalization of mental illness by prohibiting indefinite confinements, the actions of state legislatures have effectively circumvented the law.

Forty Years After Jackson In their article “Out of Mind? Out of Sight: The Uncivil Commitment of Permanently Incompetent Criminal Defendants,” Morris and Meloy (1994) provided a powerful analysis of the implications of Jackson v. Indiana. The most significant and troubling finding of that work revealed that nearly 60 percent of U.S. states have actively worked to produce legislation that fundamentally contradicts the main premises of this ruling that is now the “law of the land.” At the writing of this chapter, we are currently 20 more years removed from the article provided by Morris and Meloy, and over 40 years removed from the Court’s initial ruling in Jackson offered in 1972. Where does this issue currently stand? In a recent article titled, “Forty Years After Jackson v. Indiana: States’ Compliance with ‘Reasonable Period of Time’ Ruling,” Kaufman, Way, and Suardi (2012) attempted to answer that question. Unfortunately, their research uncovered many of the same concerns that Morris and Meloy explored approximately 20 years ago. The authors begin with the troubling observation: The Jackson Court called for limitations on length of stay for competency restoration, noting that indefinite commitment violates due process. Yet, as of 2007, 30 percent of states allowed for indefinite commitment for the purpose of restoration in their statutory schema for felony defendants, in direct violation of Jackson. Further, about 40 percent of the other states imposed a lengthy treatment period (1–10 years) or linked the duration of the commitment to potential criminal sentence, which can vary from one year to life. (Kaufman, Way, & Suardi, 2012, p. 261)

Though we have witnessed a general decrease in the amount of time a non-criminal mentally ill individual will be held on a civil commitment, the same has not held true for the mentally ill individual involved in the criminal justice system. The authors added that this duration is also true of individuals involved in a violent neighborhood altercation that results in police being called to the scene. Even in these cases, only about 11 percent of these mentally ill individuals are actually arrested; rather, they are taken to a psychiatric hospital where they will be evaluated for dangerousness and shortly discharged. However, if this same individual was arrested, and determined to be incompetent to stand trial, he or she could be confined for years in a psychiatric hospital (Kaufman, Way, & Suardi, 2012). Perhaps the most important distinction uncovered by Kaufman et al. is the large disparity between those individuals restored to competency and those who are not. One study showed that between 80 and 90 percent of those defendants deemed incompetent to stand trial were restored to competency in 6 months or less (Pinals, 2005). Other studies discovered similar duration periods for the restoration of competency. A Florida study conducted in 1992 revealed a disturbing trend. In that study, which consisted of 133 male defendants, the restoration of competency was completed in approximately 219 days on average. For those individuals whose competency was never restored, their duration of confinement was nearly two years longer than those who were actually cleared for trial.

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What remains in question is the actual length of stay of those individuals never restored to competency. What seems most apparent by the continued circumvention of the Jackson ruling is the proclivity of the legal system to continue to criminalize mental illness. Though the ruling offered by the Court in Jackson was fundamentally concerned with the constitutionality of the indefinite confinement of those individuals deemed incompetent to stand trial, this same population remains vulnerable to the very practice this decision rejected some 40 years ago. Such a blatant rejection of Supreme Court precedent reflects what the Italian philosopher Giorgio Agamben has called the state of exception.

Incompetency Status and the State of Exception The state of exception generally entails an “ambiguous, uncertain, borderline fringe, at the intersection of the legal and the political” (Agamben, 2005, p. 1). It reflects what de la Durantaye (2009) described as that moment or event when the “rule of law has been suspended” (p. 336). These exceptions can be generally understood as a type of manufactured event that requires a certain strategy that is generally recognized or described as being “unwanted” or “distasteful,” but is viewed as immediately necessary given the circumstances at hand; or, may be experienced as a sudden and unexpected event, such as the September 11 attacks that requires the pursuit of strategies equal to the current level of threat. The exception, which necessity “validates,” is almost always a course of action that is fundamentally inconsistent with established normative legal practice, but is pursued regardless how obvious the contradiction; thereby legitimizing the state of exception, as well as the legal, political, or military actions that are likely to follow. These exceptions can reflect a wide variety of situations that differ greatly in their severity and immediate political and legal implications. Many such examples exist: turning a blind eye to the actions of a political supporter for the assumed purpose of some type of “greater” good, police officers who refuse to recognize the criminal behavior of fellow officers, or the more serious attempts to disenfranchise voting blocks of a given party or using a government apparatus to spy or punish political adversaries. Agamben (2005) added, however, that the real danger posed by these exceptions occurs when they are allowed to become the “new” normal. Agamben identified such a reality in the strategies employed in the U.S. War on Terror. In the aftermath of the September 11 attacks, then President George W. Bush declared his War on Terror. It will be recalled that Bush proclaimed that any noncitizen could be detained indefinitely, if they were suspected of terrorist activities; this declaration ultimately resulted in the creation of the prison facility located in Guantanamo, Cuba, which was constructed for the sole purpose of housing those individuals targeted for indefinite confinement. (Lanier, Polizzi, & Wade, 2013, p. 569)

Within this context, the War on Terror reflects the emerging state of exception brought about by the necessity of the September 11 attacks, which in turn has helped to legitimize government practices that would normally be viewed as unconstitutional and potentially criminal in nature (Humphreys, 2006). Some 13 years later, the fundamental intent of that declaration has remained intact, regardless the change of presidential administrations. When we return our critical focus to Jackson, a similar type of state of exception can be witnessed.

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From the vantage point of the Court’s ruling in Jackson and the subsequent behavior of a variety of state legislatures that have explicitly chosen to overlook the legality of that decision, the contours of a more “mundane” example of a state of exception begin to emerge. Though it is perhaps true that the topic of indefinite detention for incompetent individuals may not rise to the level of necessity witnessed in terror attacks, it nonetheless exemplifies the very same dynamic that seeks to nullify the rule of the law for the purposes of pursuing a set of actions or strategies that would and should normally be illegal. In fact, it could even be justifiably argued that the legislative refusal in recognizing the legal requirements stipulated in Jackson, is actually a far more dangerous state of affairs, given that it reflects the tacit intention of the states to refuse to recognize the constitutionally mandated authority role of the Court. The choice of some states to disregard the constitutional prohibition against the practice of indefinite confinement without conviction generally reflects the same set of legal concerns witnessed in the practice of indeterminate detention at Guantanamo Bay. The mentally ill detainee, much like those detained at the Guantanamo Bay facility, is a prisoner without status, and as such may be held seemingly indefinitely: he is confined without conviction and denied the right of due process on the basis of his incompetent status, which is unlikely change due to his condition being deemed “untreatable.” This differs with the specifics of the Guantanamo detainees who are denied the status of prisoners of war, while at the same time viewed as ineligible to receive the normal legal protections enjoyed by a U.S. citizen. However, the fact of citizenship for the mentally ill detainee is not in question; but neither has this obvious fact helped to guarantee his due process rights protected under the Constitution and specifically established by the Court’s ruling in Jackson v. Indiana.

The Legal Construction of Competency to Stand Trial and the Adjudicative Self The basic function of the standard of competency is to ensure that the due process rights of the defendant are protected and the legitimacy of the legal process ensured. What we witness from English Common Law moving forward is the recognition that a mentally ill defendant is simply incapable of utilizing the appropriate cognitive skills necessary for a fair trial to be conducted. In fact, as was discussed above, one federal appellate court ruled that the trying of an incompetent defendant reflects the absence of due process for that individual. As a result of the legal distinction established by the recognition of what will constitute legal competency and what will not, an image of the individual emerges that can be identified by what we will call the adjudicative self. The adjudicative self reflects the process of social construction that is experienced by any individual entering the criminal justice system. Once entering this process, a specific set of skills is required for the proceedings to legitimately move forward. This network of meaninggenerating processes creates a variety of procedural actions and stipulations that must be recognized and followed by all those involved, which in turn fabricates the adjudicative self relative to that involvement. In most cases this process is relatively matter of fact, allowing the individual to move to trial once the minimum standards for participation have been established. For the mentally ill suspect or defendant, however, this manifestation of the adjudicative self disrupts the normal pace of these proceedings and requires a more thorough accounting for the individual and his continued involvement in the trial process.

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Taken from this perspective, the concept of the adjudicative self is fabricated in part by the specific legal contours established by the competency-to-stand-trial standard. By identifying the specific psychological capacities or skills needed for an accused individual to participate legitimately in the legal process, it also establishes two distinct categories of the adjudicative self upon which that participation is predicated: those who are eligible to go to trial and those who are not. Whether the adjudicative self is ultimately deemed appropriate to proceed to trial or is temporarily disqualified from the process due to the inability to establish competency, its specific status and meaning still remains the exclusive by-product of this legal context. Though a variety of other legal requirements are also implicated in the construction of the adjudicative self, CST can be viewed as the most influential requirement of this process. However, much like any process of social construction, the specific materials employed to fabricate this adjudicative self will likely reflect the specific needs or conditions required by the trial process. Such a distinction, however, does not necessarily guarantee that these differences will always be clearly and effectively recognized by the legal system. As was discussed above, the legal standard for competency to stand trial as established by the U.S. Supreme Court in Dusky v. United States (1960) focuses almost exclusively upon those specific skills needed by the adjudicated self to participate in the legal process. Such a result may seem reasonable given that the purpose of this opinion was to establish a constitutional standard for this concept. However, the Court’s exclusive focus on those skills, which are deemed constitutionally necessary for the trial to move forward, may also fail to recognize certain psychological deficits not directly related to one’s ability to participate in the legal process. In fact, as has been clearly established in the aftermath of the ruling offered by the Court in Jackson v. Indiana, even the status of incompetent to stand trial provides no guaranteed protection for one’s due process rights. The state of exception that exists for the incompetent defendant reflects a tragic irony for the adjudicative self suffering from mental illness. Though the Dusky standard is singularly focused on the shielding of the incompetent defendant from unfair participation in the legal process, it has been unable to protect those individuals whose competency continues to remain in question. Within this context, the state of exception emerges in the gray area between the status of incompetent to stand trial and the practice of indeterminate confinement. These individuals exist within the bizarre contradiction of being ineligible for trial, but eligible for indefinite confinement without officially being convicted of any charge. The non-citizen status, which this contradictory set of circumstances constructs for the mentally ill adjudicative self, is similar to that of the prisoners held at Guantanamo Bay, who are recognized neither as prisoners of war nor individuals eligible to be tried in U.S. courts. Though the circumstances leading to the confinement of these two different populations may appear to be far too incongruent for any legitimate comparison to made, one basic characteristic links them both: the state of exception has blurred the necessity for such types of confinement, which in turn and in their own specific ways have allowed for the basic foundation of U.S. law to be ignored, incomprehensibly, in the name of justice.

References Agamben, G. (2005). State of exception. K. Attell (Trans.). Chicago, IL: Chicago University Press. Arrigo, B. A. (2003). Justice and the deconstruction of psychological jurisprudence: The case of competency to stand trial. Theoretical Criminology, 7, 55–88.

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Bardwell, M. C., & Arrigo, B. A. (2002). Criminal competency on trial: The case of Colin Ferguson. Durham, NC: Carolina Academic Press. de la Durantaye, L. (2009). Giorgio Agamben: A critical introduction. Stanford, CA: Stanford University Press. Fulero, S., & Wrightsman, L. (2008). Forensic psychology. Independence, KY: Cengage Learning. Humphreys, S. (2006). Legalizing lawlessness: On Giorgio Agamben’s state of exception. The European Journal of International Law, 17, 677–687. Kaufman, A. R., Way, B. B., & Suardi, E. (2012). Forty years after Jackson v. Indiana: States’ compliance with “reasonable period of time” ruling. Journal of the American Academy of Psychiatry and Law, 40, 261–265. Lanier, M. M., Polizzi, D., & Wade, A. L. (2013). Addressing the “inherent” philosophical and operational dichotomies of corrections from an EpiCrim approach. In B. Arrigo & H. Bersot (Eds), The Routledge handbook of international crime and justice studies (pp. 565–584). London, UK: Routledge. Morris, G. H., & Meloy, J. R. (1994). Out of mind? Out of sight: The uncivil commitment of permanently incompetent criminal defendants. University of California Davis Law Review, 27, 1–96 Morse, S. J. (2011). Mental disorder and the law. Journal of Criminal Law and Criminology, 101, 885–968. Mossman, D., Noffsinger, S. G., Ash, P., Frierson, R. L., Gerbasi, J. D., Hackett, M., . . . Zonana, H. V. (2007). AAPL practice guidelines for the forensic evaluation of competence to stand trial. Journal of the American Academy of Psychiatry and the Law, 35, S4–S72 Supplement. Otto, R. K. (2006). Competency to stand trial. Applied Psychology in Criminal Justice, 2, 82–113. Perlin, M. L. (1996). “Dignity was the first to leave”: Godinez v. Moran, Colin Ferguson, and the trial of mentally disabled criminal defendants. Behavioral Sciences and the Law, 14, 61–81. Perlin, M. L. (2003). Beyond Dusky and Godinez: Competency before and after trial. Behavioral Sciences and the Law, 21, 297–310. Pinals, D. A. (2005). Where two roads meet: Restoration of competence to stand trial from a clinical perspective. New England Journal of Criminal and Civil Confinement, 31, 81–108. Slobogin, C. (2008). Mental illness and self-representation: Faretta, Godinez and Edwards. Ohio State Journal of Criminal Law, 7, 391–411. Stafford, K. P. (2003). Assessment of competence to stand trial. In A. Goldstein (Ed.), Handbook of psychology: Forensic psychology (Vol. II, pp. 359–380). Hoboken, NJ: John Wiley & Sons. Walker, L. A., & Shapiro, D. L. (2003). Introduction to forensic psychology: Clinical and social psychological perspectives. New York, NY: Kluwer Academic/Plenum Publishers.

Court Cases Drope v. Missouri, 420 U.S. 162 (1975) Dusky v. United States, 362 U.S. 402 (1960) Faretta v. California, 442 U.S. 806 (1975) Frith Case (1790) Godinez v. Moran, 509 U.S. 389 (1993) Indiana v. Edwards, 554 U.S. 164 (2008) Jackson v. Indiana, 406 U.S. 715 (1972) Jones v. United States, 463 U.S. 354 (1983) Pate v. Robinson, 383 U.S. 375 (1966) United States v. Chisolm, 149 F. 224 (1906) Westbrook v. Arizona, 384 U.S. 150 (1966)

5

Other Types of Legal Competencies Competency to stand trial represents perhaps the most fundamental procedural challenge of any legal proceeding: if competency has not been established, the legal process cannot move forward (Bonnie, 1992; Morse, 2011; Wettstein, 1992). However, the defendant’s ability to understand the legal proceedings and to be able to assist defense counsel in proving his or her innocence is not the only area where the concept of competency is applied. In fact, a variety of legal actions are directly influenced by the issue of competency. For example, the competency to plead, competency to waive one’s Miranda rights, and competency to proceed without counsel all require that the defendant is cognitively able to make those decisions. As we saw in Chapter Four, the debate concerning the importance of competency to stand trial (CST) as this relates to other competency considerations remains somewhat of an open legal question. In the years following the Court’s 1960 decision provided in Dusky v. United States, the question concerning the exact legal implications of the competency to stand trial standard continued to be revisited by the Court with varying results. Is the Dusky standard sufficient for all types of competency, particularly those related to the pre-trial process or does the Dusky standard merely establish an initial minimum standard for legal participation that must be revisited when focused on competency issues not specific to conferring with one’s attorney and understanding the legal process? The Court has offered a variety of opinions on this issue without resolving the question or reconciling the din of competing voices within its rulings. How then to proceed? The main focus of this chapter will be to explore those procedural pre-trial areas where the issue of competency is in question and may supersede or require further clarification not specifically provided in Dusky. Perhaps the most obvious area for these types of competency concerns is witnessed in the ability of a defendant to waive his or her right to be assisted at trial by an attorney. The right of a defendant to waive right to counsel appears to be the most obvious place to begin for the simple reason that the language provided by the Court’s decision in Dusky makes mention only of the defendant’s right to confer with an attorney and offers no language concerning what should occur if the defendant decides to waive that right.

The Right to Refuse Assistance from Counsel The Sixth Amendment of the U.S. Constitution establishes the right of a defendant to be represented by legal counsel. However, the Constitution is ironically silent concerning whether

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or not a defendant may waive that right and proceed to trial without the assistance of an attorney or to proceed to trial pro se. How does one resolve this seemingly obvious contradiction? It seems reasonable to argue that the central role played by legal counsel is not only clearly established in the Sixth Amendment, but is also a fundamental component of the competency to stand trial standard established in Dusky. Can these “circumstantial facts” be used to answer this question? For some, the answer is clearly no; an answer which is evidenced by the obvious absence of any specific constitutional language that would prohibit such a legal practice. Before this discussion moves to the topic of waiving one’s right to counsel, it may be helpful to briefly explore the Supreme Court’s opinion in Betts v. Brady, 316 U.S. 455 (1942) and its landmark decision in Gideon v. Wainwright, 372 U.S. 335 (1963), which clarified the general right to counsel as identified in the Sixth Amendment to the U.S. Constitution.

Establishing the Right to Counsel The heading of this section may be cause for some to say, “Why are we talking about establishing the right to counsel when the Sixth Amendment to the Constitution already has established this right?” The short answer to this question is rather straightforward and decidedly insufficient to address the complexity of the topic, but will have to suffice: the right to counsel has been historically viewed by state jurisdictions as a federal right, and therefore only constitutionally required for defendants being tried in federal jurisdictions. The legal disagreement concerning the applicability of the Constitution within federal and state jurisdictions has been a contentious one since the creation of that document and is simply too complex to be included here. It is also important to note, however, that the Constitution has attempted to answer this very complex and contentious question with the inclusion of the Tenth Amendment, which states “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people” (Tenth Amendment of the United States Constitution). Even with this inclusion, however, this question for some remains unresolved. As we shall see, though each individual state did have a provision for the right to counsel, it was generally recognized in only the most serious of cases, often related to the potential application of the death penalty; most importantly, however, it was not viewed as a basic right that should be provided to all individuals regardless the specific nature of the charges against them. In fact, the right to counsel was most often explored under the auspices of the Fourteenth Amendment, which states that “nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws” (Fourteenth Amendment of the United States Constitution). Within this context, the failure to recognize the right of assistance from counsel was viewed as a violation of due process and a failure to provide the defendant equal protection under the law rather than a violation of the Sixth Amendment, which identifies the assistance of counsel as constitutionally protected right. The Court attempted to address this concern in their ruling in Betts v. Brady, 316 U.S. 455 (1942).

Betts v. Brady (1942) Betts was arrested on a robbery charge, but due to lack of funds, was unable to hire an attorney for his defense. As a result, he requested that the trial judge appoint him with legal counsel.

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The judge informed Betts that the state of Maryland only provided court-appointed counsel to indigent defendants involved in criminal cases concerning rape and murder, and therefore, his request for counsel was denied. Without waiving his asserted right to an appointed attorney, Betts pleaded not guilty to the charges and proceeded to trial. Betts also decided to waive his right to a jury trial. Betts was ultimately found guilty and sentenced to eight years in the state penitentiary (Betts v. Brady, 1942). While incarcerated, Betts filed a habeas corpus petition with the Circuit Court of Washington County, Maryland claiming that his incarceration was illegal due to the trial judge’s failure to provide him with court-appointed legal counsel, which is protected under the Fourteenth Amendment of the U.S. Constitution. His petition was denied. Betts than filed a petition with the Maryland Court of Appeals a short time later, and this time the court agreed to hear his petition, which was ultimately denied for a second time. After this second defeat in the Maryland court, Betts petitioned the U.S. Supreme Court, which based on the importance of the legal issue, decided to hear his case. The Court attempted in this case to answer three very specific questions. First, did the Maryland court have the legal right to rule on a habeas corpus petition in that state; secondly, did the Maryland court appropriately follow the law concerning its final judgment, and based on that fact, did the Supreme Court have the legal jurisdiction to review that finding? Finally, and most importantly to this discussion, did the Betts conviction represent an example of loss of liberty without due process because of the trial judge’s failure to provide a court-appointed attorney? In its opinion, the Court ruled that the Appeals Court of Maryland did have the legal jurisdiction to act on this petition, and given that they were also the court of last resort in that state, it was also appropriate for the Supreme Court to review the finding offered by that jurisdiction. On this third legal question, the Court once again ruled in favor of the Maryland court. In addressing the specific issue the right to counsel, the Court offered the following ruling: The Sixth Amendment of the national Constitution applies only to trials in federal courts. The due process clause of the Fourteenth Amendment does not incorporate, as such, the specific guarantees found in the Sixth Amendment, although a denial by a State of rights or privileges specifically embodied in that and others of the first eight amendments may, in certain circumstances, or in connection with other elements, operate, in a given case, to deprive a litigant of due process of law in violation of the Fourteenth. (Betts v. Brady, 1942)

The Court went on to reject the claim offered by Betts that the ruling offered by the Maryland court violates the constitutionally protected right of assistance of counsel in all state and federal jurisdictions. The Court flatly states that no such precedent exists. However, in formulating its response to this last claim, the Court returns to the historical period when the Bill of Rights (1791) was enacted and maintains that any discussion of the right to counsel was addressed statutorily by the 13 states and not as a constitutional provision. The Court continues to argue that a similar statutory proclivity can be witnessed within the contemporary legislation of the day (1942) concerning this issue. At of the time of this ruling, only 18 states required the court to appoint counsel regardless the crime; the remaining states either denied this right or reserved its use to those cases that were viewed more serious in nature and more consequential in outcome (Betts v. Brady, 1942).

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The Court finally concluded: This material demonstrates that, in the great majority of the States, it has been the considered judgment of the people, their representatives and their courts that appointment of counsel is not a fundamental right, essential to a fair trial. On the contrary, the matter has generally been deemed one of legislative policy. In the light of this evidence, we are unable to say that the concept of due process incorporated in the Fourteenth Amendment obligates States, whatever may be their view, to furnish counsel in every such case. Every court has the power, if it proper, to appoint counsel where that course seems to be required in the interest of fairness. (Betts v. Brady, 1942)

However, this was not to be the last discussion of this topic, and by 1963, the Court was once again positioned to reexamine this question in what would become one of the landmark decisions offered by the Warren Court.

Gideon v. Wainwright (1963) The Court’s decision in Gideon v. Wainwright, 372 U.S. 335 (1963) once again sought to resolve the question concerning whether courts are constitutionally required to provide assistance of counsel to those individuals who are financially unable to acquire counsel on their own. Gideon was arrested for “breaking and entering” and was subsequently arraigned on that charge. During his arraignment, he informed the judge that he was financially unable to secure legal counsel and requested that legal counsel be appointed by the court. Much like in Betts, Gideon was informed by the trial judge that the only time it is legally permissible in the state of Florida to provide legal counsel is in the event of an indigent defendant facing a capital offense charge. After his petition for assistance of counsel was denied, Gideon went to trial and was subsequently found guilty and sentenced to five years in the state penitentiary. Soon after his conviction, he filed a habeas corpus petition with the Florida Supreme Court, claiming that the failure of the trial court to appoint him legal counsel denied him those legal rights guaranteed by the Bill of Rights. After being denied by the Florida court, Gideon then filed a petition with the United States Supreme Court, which decided to hear the case. In deciding to hear this case, the U.S. Supreme Court reasoned that the issue concerning the constitutional right to counsel had become more controversial and contested since the Court’s divided decision offered in Betts v. Brady and believed that it was now necessary to reexamine that opinion. The Court reasoned that given the near identical facts of these two cases, only two possible options could be explored: either to affirm the position held in Betts “that refusal to appoint counsel under the particular facts and circumstances in the Betts case was not so ‘offensive to the common and fundamental ideas of fairness’ as to amount to a denial of due process” (Gideon v. Wainwright, 1963); or, to overturn that ruling. The Court began its argument by returning to the basic question argued in Betts: was the Sixth Amendment guarantee of appointed counsel fundamental to due process or merely a right granted to indigent defendants at the federal court level? In that ruling, the Court argued that the absence of counsel did not result in a violation of the defendant’s due process rights, and therefore, refused to require that the states also provide counsel for those individuals unable to afford one. In rejecting that rationale, the Gideon Court responded by stating

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We think the Court in Betts had ample precedent for acknowledging that those guarantees of the Bill of Rights which are fundamental safeguards of liberty immune from federal abridgment are equally protected against state invasion by the Due Process Clause of the Fourteenth Amendment. (Gideon v. Wainwright, 1963)

The Court continued to argue that it believed that it had erred in the Betts opinion by not including the guarantee of counsel as an essential provision of the Bill of Rights. The absence of counsel represented for the Gideon Court such an egregious omission that a fair trial would simply not be possible under such circumstances and would therefore violate the defendant’s expectation of equal protection under the law. Central to the rationale of the Court was the opinion that the federal guarantees offered by the first eight amendments of the Bill of Rights should also be guaranteed or incorporated by the states as a fundamental due process right as described in the Fourteenth Amendment. As such, the right to be assisted by counsel now became an incorporated constitutional provision or guarantee for any defendant regardless the jurisdiction of that legal proceeding (Garner, 2009). Perhaps stated more simply, the Court’s decision in Gideon rejected the idea that the right to counsel was reserved for application in federal jurisdictions exclusively. The Court ended its landmark ruling with the following observation: Left without the aid of counsel, he may be put on trial without a proper charge, and convicted upon incompetent evidence, or evidence irrelevant to the issue or otherwise inadmissible. He lacks both skill and knowledge adequately to prepare his defense, even though he have a perfect one. He requires the guiding hand of counsel at every step in the proceedings against him. Without it, though he be not guilty, he faces the danger of conviction because he does not know how to establish his innocence. (Gideon v. Wainwright, 1963)

The Court’s ruling in Gideon not only definitively answered the question concerning the right to counsel, but has also served as the backdrop for those cases concerned with the right to waive the assistance of legal counsel. As we will see, the question posed to the Court in Faretta focused on whether a defendant has the right to waive the guarantee of counsel and defend himself at trial without being required to accept the assistance of legal counsel. However, the forceful language offered by the Court in Gideon seems to argue that the presence of counsel is a fundamental necessity in achieving a fair trial. Does this fundamental necessity lessen in importance when a defendant decides to proceed to the trial process without legal representation? Does the absence of legal counsel also by implication invite the absence of due process and an unfair trial verdict? The court certainly seemed to believe as much in Gideon.

Faretta v. California (1975) In Faretta v. California, 422 U.S. 806 (1975), the Court sought to determine whether or not a defendant should be allowed to waive his Sixth Amendment right of assistance from counsel if that defendant intelligently and voluntarily decided to do so. Anthony Faretta appeared before the trial judge to be arraigned on a felony auto theft charge. Prior to going to court, he made it known that he did not want to accept assistance from a court-appointed public defender,

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and requested to defend himself. The trial judge initially granted Faretta’s motion, but informed the defendant that he would rescind that decision if it appeared that Faretta was unable to adequately provide for his own defense. Prior to the trial, the presiding judge called a hearing to determine Faretta’s ability to conduct his own defense as it specifically concerned the hearsay rule and the procedure for challenging potential jurors (Faretta v. California, 1975). As a result of that hearing, the trial judge concluded that Faretta had “not made an intelligent and knowing waiver of his right to the assistance of counsel, and also ruled that Faretta had no constitutional right to conduct his own defense” (Faretta v. California, 1975). A public defender was appointed and Faretta went to trial where he was ultimately found guilty and sentenced to prison. As a result of his conviction, Faretta filed an appeal with the California Court of Appeals who rejected the defendant’s claim that his request to proceed to trial without the assistance of counsel was a constitutionally protected right. The appeals court upheld the trial judge’s decision and the state Supreme Court refused to hear an appeal on that ruling. Faretta then appealed his case to the U.S. Supreme Court for final resolution of this question. The question before the Court focused upon whether the Sixth Amendment, through its incorporation by the Fourteenth Amendment, allowed the government to impose assistance from counsel even in those instances when this right had been waived by the defendant. The Court began their decision with the following observation: “In the federal courts, the right of self-representation has been protected by statute since the beginnings of our Nation. Section 35 of the Judiciary Act of 1798, 1 Stat. 73, 92, enacted by the First Congress and signed by President Washington one day before the Sixth Amendment was proposed, provided that, ‘in all courts of the United States, the parties may plead and manage their own causes personally or by the assistance of . . . counsel.’” (Faretta v. California, 422 U.S. 806, 1975)

The Court continues by observing that the right to self-representation has also been recognized by a large majority of state constitutions and argues that the Sixth Amendment right to assistance from counsel carries with it “the correlative right to dispense with a lawyer’s help” (Faretta v. California, 422 U.S. 806, 1975). However, the Court did not stop there; though the majority strongly held that the right of self-representation had been recognized since the introduction of the Bill of Rights, it did not ignore the obvious contradiction this decision evoked when viewed within the context of past decisions related to the importance of a defendant’s assistance by counsel. There can be no blinking the fact that the right of an accused to conduct his own defense seems to cut against the grain of the Court’s decisions holding that the Constitution requires that no accused can be convicted and imprisoned unless he has been accorded the right to the assistance of counsel. For it is surely true that the basic thesis of those decisions is that the help of a lawyer is essential to assure the defendant a fair trial. (Faretta v. California, 422 U.S. 806, 1975)

In an attempt to reconcile the Faretta ruling with those opinions that established the right of the guarantee of counsel, a specific strategy was employed to resolve the problem: a defendant’s constitutional right to receive assistance from counsel does not constitutionally prohibit that same defendant from deciding to waive that right, no matter how potentially

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dangerous such a decision may turn out to be. The distinction made by the Court continued to uphold the constitutionally protected right of the guarantee of counsel; however, it also observed that this right loses its meaning if it is imposed upon a defendant who wishes to waive that right and proceed to trial without counsel. To further argue its position, the Court contended that the very language of the Sixth Amendment recognizes the assistance of counsel as a protected constitutional guarantee, but observed that “an assistant, however expert, is still an assistant” (Faretta v. California, 422 U.S. 806, 1975). Within this logic, the assistance of counsel is viewed as a legal tool that is available to the willing defendant, but not required. To thrust counsel upon the accused, against his considered wish, thus violates the logic of the Amendment. In such a case, counsel is not an assistant, but a master; and the right to make a defense is stripped of the personal character upon which the Amendment insists. (Faretta v. California, 422 U.S. 806, 1975)

In Faretta, the Court established the right of self-representation as a complementary provision of the Sixth Amendment’s guarantee of counsel, but may have helped to validate a constitutional “protection” that seems to jeopardize the right of the accused to a fair trial. Regardless the significance given to the right of self-representation, this logic seems to remain incongruent with the language provided by Gideon concerning the importance of legal representation (Perlin, 2003; Slobogin, 2009). It will be recalled from our above discussion that the Gideon Court argued that the absence of counsel establishes the possibility of an unfair trial process, which in turn seems of greater concern than does the right of self-representation. The minority opinion addressed this point directly by stating, “The fact of the matter is that, in all but an extraordinarily small number of cases an accused will lose whatever defense he may have if he undertakes to conduct the trial himself ” (Faretta v. California, 422 U.S. 806, 1975). For the time being, Faretta settled the question concerning the right to self-representation. It would take nearly 20 years before the Court would once again take up this issue. However, as we shall see, the issue of self-representation takes on a much different urgency when the defendant is mentally ill.

Godinez v. Moran (1993) and Indiana v. Edwards (2008) Unlike Faretta, the defendants in Godinez v. Moran, 509 U.S. 389 (1993) and Indiana v. Edwards, 544 U.S. 164 (2008) placed a much greater urgency on the issue of self-representation given that both defendants in these cases were seriously mentally ill (Stender, 2012). The concern offered by Chief Justice Burger in his dissenting opinion in Faretta becomes particularly salient in these instances. In his article titled, “Mental Illness and SelfRepresentation: Faretta, Godinez and Edwards,” Slobogin explored the implications of the Faretta decision as it relates to the mentally ill defendant who has requested to represent himself at trial. Slobogin (2009) began by observing that “Indiana v. Edwards, which involved a mentally ill defendant who wanted to represent himself, starkly poses the tension between the ‘inestimable worth of free choice’ and the desire for desirable outcomes that appear fair and legitimate” (p. 391). However, as Slobogin (2009) also pointed out, this tension between free

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choice and fairness is logically unsustainable within the language offered in Godinez and Edwards, causing the author to conclude: If a mentally ill defendant who is nonetheless competent to stand trial wants to plead guilty without counsel, Godinez suggests, he should be allowed to do so, but if the defendant wants to go to trial on his own, Edwards advises, he should usually be forced to accept counsel. One would not be churlish in concluding that the overriding objective of Godinez and Edwards is to ensure that the state can proceed as efficiently as possible in dealing with mentally ill people. (Slobogin, 2009, p. 392)

Regardless the actual intent of the Court, its ruling in Edwards directly contradicts much of the logic offered in Godinez and Faretta without actually officially overruling those decisions. The right of self-representation remains a constitutionally protected one, except in those instances when the ability of the defendant to wage a proper defense is in question, which in turn threatens the legitimacy of the trial process. Competency to stand trial remains unchanged, but cannot be viewed as an analogous standard for determining one’s ability to proceed to trial without the assistance of legal counsel on which the Dusky standard is based (Morse, 2011). However, in the aftermath of the Edwards decision, a great deal of uncertainty remains. Slobogin (2009) explained that even though it is now legal to refuse a mentally ill defendant the right of self-representation, even after competency to stand trial has been established, there was no criterion offered by the Court, specifically outlining the circumstances in which the trial judge may refuse such a request. The language of the Edwards Court recognized that the “Constitution permits judges to take realistic account of the particular defendant’s mental capacities by asking whether a defendant who seeks to conduct his own defense at trial is mentally component to do so” (Indiana v. Edwards, 2008). But the Court failed to provide any language outlining the particulars of such a process or what is even implied by a realistic accounting of the trial judge (Stender, 2012). In the absence of any further clarification by the Court, what remains is a legal framework that continues to reflect a specific set of legal dangers for the individual suffering from mental illness. Unless a mentally ill defendant is found to be incompetent to stand trial, there remains the possibility that he may be permitted to waive his right to counsel and proceed to trial, which will almost certainly result in a guilty verdict (Morse, 2011). The recognition of a defendant’s right to waive assistance of counsel loses much of its constitutional gravitas when the individual requesting that right is mentally ill; and when the very application of that right threatens to delegitimize the trial process (Morse, 2011).

Competency to Waive One’s Right to Remain Silent Perlin (2003) made the following observation concerning a defendant’s ability to waive his right to remain silent: Since 1960, it has appeared clear that a confession is inadmissible if the defendant was mentally incompetent at the time it was given. Since the U.S. Supreme Court’s decision in Miranda v. Arizona, the prosecution has been prohibited from using any custodial statements unless the defendant has waived his right to silence by a voluntary, knowing, and intelligent waiver. (p. 300).

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Perlin continued by stating that the determination concerning whether or not a defendant has knowingly and intelligently waived his right to remain silent depends upon the specifics of the case with the burden of proof falling on the state. An example of this situation can be witnessed in the Court’s decision offered in Berghuis v. Thompkins, 560 U.S. 370 (2010). In Thompkins, one of the questions the Court sought to resolve was when has an accused suspect legitimately established the right to remain silent and when has that client knowingly waived that right as established by Miranda v. Arizona, 384 U.S. 436. (The Court also addressed the issue of effectiveness of counsel, but that aspect of the decision will not be discussed.) On January 10, 2000, Van Thompkins and an accomplice fatally shot one man and seriously wounded another during an altercation that took place in a Michigan shopping mall. Thompkins fled the scene and traveled to Ohio where he was subsequently arrested approximately one year later (Berghuis v. Thompkins, 2010). Upon his arrest in Ohio, Thompkins was presented with a form that identified his five Miranda rights, which were read to him by the arresting officer. In an attempt to determine if Thompkins could read, the accused was asked to read the following: “You have the right to decide at any time before or during questioning to use your right to remain silent and your right to talk with a lawyer while you are being questioned” (Berghuis v. Thompkins, 2010). Thompkins complied with the arresting officer’s request. The officer then read Thompkins the remaining sections of this Miranda form and asked him to sign it to establish that he understood his rights, but he refused to do so. Subsequent to his arrest it became evident that conflicting evidence existed concerning whether or not Thompkins actually verbally stated that he understood his rights. During a suppression hearing—a procedure used to determine the admissibility of evidence—the arresting officer maintained that Thompkins verbally stated that he understood his Miranda rights, but during his trial testimony stated, “I don’t know that I orally asked him” [if he understood his rights] (Berghuis v. Thompkins, 2010). The record offered by the Court in its decision states that at no point during the interrogation did Thompkins state that he wished to remain silent or that he refused to talk to police. Also absent from the record was any evidence that the accused requested to speak with a lawyer. Thompkins was in police custody for approximately 3 hours, and for the part of that time, remained silent. He did from time to time provide very limited verbal responses such as “yeah,” “no,” or “I don’t know,” but offered little else to the arresting officers. At one point in the interrogation the accused was asked if he believed in God, at which time Thompkins said yes. The following interaction took place: About 2 hours and 45 minutes into the interrogation, Helgert asked Thompkins, “Do you believe in God?” Thompkins made eye contact with Helgert and said “Yes,” as his eyes well[ed] up with tears. Helgert asked, “Do you pray to God?” Thompkins said “Yes.” Helgert asked, “Do you pray to God to forgive you for shooing that boy down?” Thompkins answered “Yes” and looked away. Thompkins refused to make a written confusion, and the interrogation ended about 15 minutes later. (Berghuis v. Thompkins, 2010)

As a result of Thompkins’ alleged confession, he was charged with first-degree murder, assault with the intent to commit murder, and a number of firearms-related charges. Thompkins then filed a motion to suppress all of his statements made during his interrogation claiming that the use of that evidence was obtained in violation of his Miranda rights. He continued by claiming that he had invoked his right to remain silent, that his silence during the

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interrogation reflected his desire to invoke his right to remain silent, therefore, requiring the police to end their questioning of him. He also claimed that he never waived his right to remain silent and his “confession” was involuntary (Berghuis v. Thompkins, 2010). The lower state courts rejected this line of reasoning and upheld the conviction based on the belief that Thompkins never invoked his right to remain silent and his responses to the police during his interrogation reflected his desire to waive that right, even though the trial evidence appears to be unclear on this point. Thompkins then petitioned his case to the United States Court of Appeals for the Sixth Circuit. The circuit court’s ruling held that Thompkins’ claim of ineffective assistance of counsel was legitimate and that his Miranda rights were violated in obtaining his confession, thereby reversing the lower court conviction. The circuit court reasoned that the lower court had “unreasonably applied clearly established federal law and based its decision on an unreasonable determination of the facts” (Berghuis v. Thompkins, 2010). The court continued by stating that the right to remain silent does not need to be explicitly stated by the accused and can be “inferred from the actions and words of the person interrogated” (Berghuis v. Thompkins, 2010). Central to this rationale was the fact that Thompkins had remained silent for approximately 2 hours and 45 minutes and argued that the accused’s silence sent a clear message to officers concerning his desire not to participate in the interrogation. The state of Michigan appealed the decision and the case finally made its way to the Supreme Court. The two questions that the Court needed to resolve concerned whether Thompkins invoked his Miranda right to remain silent and whether his brief interactions with the arresting officer represented a waiver of that right. The Court ruled that the accused must make an explicit and unambiguous statement concerning the right to remain silent, in much the same way a defendant would request assistance from counsel. If no clear statement is provided by the accused, then the police are under no obligation to end their interrogation of a suspect. In rejecting Thompkins’ claim, the Court ruled that had Thompkins stated to the officers his desire to remain silent, or his desire not to speak with the police, this would have been sufficient to invoke his Miranda rights and require an end to all police questioning. Thompkins did neither (Berghuis v. Thompkins, 2010). In turning to the second question, concerning whether or not Thompkins’ interaction with police represented a waiver of his right to remain silent, a more difficult fact needed to be established: Did Thompkins’ responses to police questioning reflect a knowing and voluntary waiver of his Miranda rights? How the Court chose to answer this question would determine the outcome of the case. In answering this question two further questions needed to be resolved: The waiver inquiry “has two distinct dimensions”: waiver must be “voluntary in the sense that it was the product of a free and deliberate choice rather than intimidation, coercion, or deception,” and “made with a full awareness of both the nature of the right being abandoned and the consequences of the decision to abandon it.” (Berghuis v. Thompkins, 2010)

In following the rationale after Miranda, the Court found that it was not required of the prosecution to provide an express waiver of one’s Miranda rights; rather, if an implicit waiver of the right to remain silent is present based on the preponderance of the evidence, then any statement made by the accused may be entered into record and subsequently used against the defendant during trial. In an attempt to clarify the position of the Court, the majority returned to the 1979 ruling in North Carolina v. Butler. In that decision the Court stated that:

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Butler made clear that a waiver of Miranda rights may be implied through “the defendant’s silence, coupled with an understanding of his rights and a course of conduct indicating waiver.” The Court in Butler therefore “retreated” from the “language and tenor of the Miranda opinion,” which “suggested that the Court would require that a waiver . . . be specially made.” (Berghuis v. Thompkins, 2010).

Central to the Court’s reasoning in this case was whether or not the prosecution established the presence of a valid waiver. The Court observed that “if the State establishes that a Miranda warning was given and the accused made an uncoerced statement, this showing, standing alone, is insufficient to demonstrate ‘a valid waiver’ of Miranda rights” (Berghuis v. Thompkins, 2010). However, in those instances where the Miranda warning was given and understood by the accused, any uncoerced statement becomes recognized as an implicit waiver of the right to remain silent (Berghuis v. Thompkins, 2010). In reversing the circuit court’s opinion, the Court ruled that Thompkins effectively waived his right to remain silent by talking with police and offered no evidence to suggest that he did not understand his rights; therefore, his decision to break his silence represents a legitimate implicit waiver of his rights and his admission of guilt was admissible as evidence (Berghuis v. Thompkins, 2010). In her minority opinion, Justice Sotomayor made the following observation. The Court concludes today that a criminal suspect waives his right to remain silent if, after sitting tacit and uncommunicative through nearly three hours of interrogation, he utters a few one-word responses. The Court also concludes that a suspect who wishes to guard his right to remain silent against such a finding of “waiver” must, counterintuitively, speak—and must do so with sufficient precision to satisfy a clear-statement rule that construes ambiguity in favor of the police. (Berghuis v. Thompkins, 2010).

Sotomayor’s observation seems consistent with the language offered in Miranda, which reasoned that when an individual indicates in any way prior to or during questioning that he wishes to invoke his right to remain silent, all further questioning by police must immediately cease (Miranda v. Arizona, 1966). Did the fact of Thompkins’ silence for nearly 3 hours reflect his desire to invoke his right to remain silent? Did his refusal to sign the statement reflect that he understood his Miranda rights, and was therefore going to remain silent? Regardless Thompkins’ actual intent, the Court ruled that a legitimate request to waive the right to remain silent had been offered by the accused when he answered yes to the detective’s question concerning his need to ask God for forgiveness. The Court found that in the absence of a clearly stated waiver to invoke one’s right to remain silent or to request assistance from an attorney, no specific waiver had been made by Thompkins, therefore allowing the police to continue their questioning of the arrested individual. The actions of Thompkins during his arrest and interrogation raise an interesting set of questions concerning the process by which the accused may clearly invoke the right to remain silent. The arresting officers stated that Thompkins was able to read and appeared to comprehend his Miranda rights as read to him by the police. The officers therefore believed based upon this observation that Thompkins understood his Miranda rights, and in the absence of any specific unambiguous statement to the contrary, were legally allowed to continue to interrogate the suspect.

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Thompkins, on the other hand, countered by arguing that the fact of his nearly 3-hour silence while in police custody clearly reflected his desire to invoke his right to remain silent. As a result of this refusal to speak with police, his interrogation and the subsequent conversation that led to his ultimate “confession” should all be ruled as inadmissible. Sotomayor forcibly argues in her dissent that “the Court’s opinion downplays record evidence that Thompkins remained almost completely silent and unresponsive throughout that session” (Berghuis v. Thompkins, 2010). Add to this the fact that the officers never inquired into Thompkins’ silence and certainly never attempted to clarify his intentions further by simply asking him if his refusal to talk simply meant that he was invoking his constitutionally protected right to do so. In similar cases adjudicated by the United States Ninth Circuit Court of Appeals in 2008, and the Court of Appeals of Indiana in 2012, the right to remain silent was upheld when the clear intent of the defendant was recognizable in the record (Mendoza-Vargas v. State of Indiana, 2012; Welch v. Harrington, 2010). In both of these cases, it was determined that law enforcement authorities failed to honor the defendant’s right to invoke Miranda, ultimately resulting in the lower court findings to be overturned. However, the perceived ambiguity in Thompkins’ claim was substantial enough in the eyes of the Court to allow his “confession” to stand. Though the Court’s decision in Thompkins may arguably seem appropriate given the facts and circumstances of this case, its retreat from the traditional understanding of Miranda and its favoring of the police when a defendant’s claim to remain silent is ambiguous creates a potentially dangerous situation for innocent suspects, particularly if that individual has some type of mental illness (Gudjonsson, 2010; Kassin, Drizin, Grisso, Gudjonsson, & Redlich, 2010; Perillo & Kassin, 2011; Redlich, Kulish, & Steadman, 2011; Redlich, Summers, & Hoover, 2010). In his article “On the Psychology of Confessions: Does Innocence Put Innocence at Risk?” Kassin addresses what he identifies as the phenomenology of innocence. Kassin (2005) stated that Innocence does not protect a suspect from interview-based judgments of deception. For those who “fail” (i.e., who are judged as being deceptive), the questioning transitions into a highly confrontational interrogation characterized by the use of social influence tactics . . . (p. 217)

In other words, if the innocent subject is perceived by police as guilty, the police will likely intensify their interrogation strategies to obtain a confession from the subject. Within this context, any attempt to invoke one’s constitutional right to silence or one’s right to speak with an attorney becomes further proof of guilt. In an attempt to be cooperative with police, given the certainty of their innocence, such individuals are likely to waive their constitutionally protected due process rights based on the simple fact that they have nothing to hide. However, the belief in the power one’s innocence seems to fly in the face of Kassin’s (2005) research, which revealed that police generally believe that the individual whom they are questioning is actually guilty of the crime under investigation. When interviewing police, Kassin asked these officers if they felt that “persuasive methods of influence” used by police could result in innocent individuals admitting to a crime they did not commit. “The most common answer, which I have heard repeatedly, is ‘No, because I do not interrogate innocent people’” (Kassin, 2005, p. 216). Kassin (2005) attempts to further contextualize this remark by observing that the interrogation of the suspect follows an information-gathering interview, which is structured

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to determine guilt or innocence. “Sometimes this initial judgment is reasonably based on witnesses, informants, or other extrinsic evidence. At other times, it may be based on crimerelated schemas or ‘profiles’ about likely perpetrators or motives” (Kassin, 2005, p. 216). More problematically, however, Kassin (2005) reported that at other times guilt may be determined based solely on the “hunch” of the interviewer. In these instances, the innocent suspect becomes highly vulnerable to the possibility of a false confession based upon the confrontational strategies that will likely follow when the suspect has been constructed as guilty. Kassin (2005) continued by observing that It is possible that police who commit themselves to this course of action are, at times, not merely blinded by their initial beliefs but motivated to reinforce them (e.g., by a desire for closure, to help secure a conviction). For innocent people initially misjudged, one would hope that investigators would remain open-minded and periodically reevaluate their beliefs. However, a warehouse of psychology research suggests that once people form an impression, they unwittingly seek, interpret, and create behavioral data that verify it. (p. 219)

Kassin’s observation powerfully exemplifies what Berger and Luckmann (1966) described as the face-to-face situation discussed in Chapter Two of this text. It will be recalled that the face-to-face situation is that moment when the other person becomes fully real for me (Berger & Luckmann, 1966). Every expression of mine is oriented toward him, and vice versa, and this continuous reciprocity of expressive acts is simultaneously available to both of us. This means that, in the face-to-face situation, the other’s subjectivity is available to me through a maximum of symptoms. (p. 29).

Berger and Luckmann (1966) cautioned by stating For instance, I may view the other as someone inherently unfriendly to me and act toward him within a pattern of “unfriendly relations” as understood by me. In the face-to-face situation, however, the other may confront me with attitudes and acts that contradict this pattern, perhaps up to the point where I am led to abandon the pattern as inapplicable and to view him as friendly. In other words, the pattern cannot sustain the massive evidence of the other’s subjectivity that is available to me in the face-to-face situation. (p. 30)

Though it is certainly true that the other may become fully real in the face-to-face situation, the foundation upon which that reality is based, is always “colored” by the taken for granted assumptions of subjective belief. The possibility always exists that I will abandon my preconceived notions of the individual that I encounter; but there is certainly no guarantee that I will allow them to step outside of my initial perception of them. As Kassin’s research shows, once an investigator has “determined” the suspect’s guilt, the face-to-face situation of the interrogation process does little to change or alter the officer’s perception of the suspect. The officer’s friendly style is not caused by the sudden realization of the suspect’s innocence; rather, it becomes a strategy by which the guilt of the suspect may be established. Kassin (2005) stated that the phenomenology of innocence is likely motivated by the belief in a just world that can easily discern just desserts. “It may also stem from an ‘illusion of transparency,’ a tendency for people to overestimate the extent to which their true thoughts,

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emotions, and other inner states can be seen by others” (Kassin, 2005, p. 218). However, the overly determined context of police interrogation simply is incapable of seeing the assumed transparency of innocence, and therefore police are unwilling to abandon these initial constructions of the suspect that have already determined his or her guilt. Kassin’s finding that police only interrogate the guilty identifies some troubling concerns related to the process of suspect interrogation. Though it is impossible to extrapolate any general conclusions from a set of qualitative studies on this topic, it is equally difficult to ignore what these limited studies may reveal about the general focus of suspect interrogation. In fact, police strategies—i.e., offers of leniency or invitations to disburden oneself of guilt—focused on establishing rapport for the purpose of “reassuring” the suspect (innocent until proven guilty evidently is no longer applicable) greatly increase the chances of false arrest. Once innocent suspects abandon the likely anticipation of an adversarial encounter with police, their innocence, if actual, does not become more recognizable to their interrogator; rather, they simply make themselves more vulnerable to police assumptions concerning the transparency of their guilt. Nowhere is this threat more real than it is with the intellectually disabled or mentally ill suspect. It should not come as much of a surprise that the offender suffering from serious mental illness or an intellectual disability is more likely to waive his or her Miranda rights and offer a false confession than is the offender without a legitimate mental health diagnosis (Redlich, Kulish, & Steadman, 2011). Individuals suffering from mental illness are more likely to be arrested than are those without mental illness and more likely to spend longer periods of time in jail (Ellis & Luckasson, 1985; Herrington & Roberts, 2012; Perske, 2010; Redlich, Kulish, & Steadman, 2011; Redlich, Summers, & Hoover, 2010). The manipulative strategies employed by police during the interrogation process, along with the intrinsic vulnerabilities caused by various types of cognitive impairment related to mental illness, make this population much more vulnerable to false arrest and wrongful convictions (Redlich et al., 2010). “By definition, interrogations are adversarial—though often not appearing so—and guilt-presumptive” (Redlich et al., 2010, p. 81). The adversarial context of police interrogations may also be explored from the perspective of the “I/me” formulation offered by Mead, which was introduced in Chapter Two of this text. It will be recalled that the “me” constructions of the self reflect those externally derived perceptions of the individual, which reflect the attitudes and beliefs of other people. The “I” aspect of the self reflects that segment of the self that reacts to these imposed social meanings (Mead, 1967). Placed within the context of the police interrogation of an innocent or mentally ill suspect, the “me” segment of the self is the self as guilty, the self as criminal defined by the investigating officers. The “I” segment of the self is that of the innocent and perhaps mentally ill suspect who chooses to cooperate with the police in the belief that his unguarded participation will be the “transparent” proof of his innocence. Mead (1967) stated that The “I,” then, in this relation of the “I” and the “me,” is something that is, so to speak, responding to a social situation which is within the experience of the individual. It is the answer which the individual makes to the attitude which others take toward him when he assumes an attitude toward them. (p. 177)

During the initial stages of a police interrogation, officers will likely embrace a nonadversarial stance toward the suspect with the hope of getting the individual to talk and finally

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confess his guilt. Within this context, the “I”/“me” configuration of the self appears to be seemingly in agreement. The innocent suspect interacts with police in a relaxing way given the “reasonable” demeanor of the officers who will soon discover their error and allow the innocent individual to go free. In fact, this same attitudinal demeanor could also be present with a suspect who is actually guilty of breaking the law and who therefore sees no reason to extend his or her encounter with police any longer than is necessary: the police are not going to change their mind about the suspect’s guilt, perhaps making it advantageous for the guilty individual to confess to their crime (Bailey, Barr, & Bunting, 2001; Redlich, et al., 2011). However, this all changes when the suspect refuses to admit guilt, and it is at this point that a false confession and/or a subsequent wrongful conviction becomes possible. Once it becomes clear that a voluntary confession is not forthcoming, police interrogators will likely change their stance toward the individual and become much more aggressive and manipulative. The seemingly reasonable demeanor of the interrogating officer(s) suddenly disappears and in its place emerges a much more combative and threatening individual. For the innocent or innocent mentally ill or intellectually disabled suspect, this sudden reconstruction of the “me” as guilty and resistant forces the “I” to respond to this unexpected change in attitude with confusion, fear, and uncertainty. Now no longer convinced that this process will recognize the “transparency of innocence,” the suspect may simply wish to end this terrifying experience and in doing so may waive all of his or her due process rights and confess to a crime he or she did not commit (Kassin, 2005; Perillo & Kassin, 2011; Perske, 2010; Redlich et al., 2010; Redlich et al., 2011). As a result of the strategies and context of the police interrogation, the intellectually disabled suspect is particularly vulnerable. Intellectual disability is defined by the American Association on Intellectual and Developmental Disabilities (AAIDD) as a “disability characterized by significant limitations in both intellectual functioning and in adaptive behavior, which covers everyday social and practical skills” (AAIDD). These disorders may be permanent or chronic, genetic or acquired, and are likely to be manifest prior to 22 years of age (Neidert, Dozier, Iwata, & Hafen, 2010). This class of disabilities includes mental retardation, Down’s syndrome, and autism (Neidert et al., 2010). Individuals with an intellectual disability will be hindered in a variety of areas related to cognitive functioning, which make them potentially vulnerable when they find themselves in the criminal justice system (Ellis & Luckasson, 1985). For example, an individual with an intellectual disability may have some difficulty in abstracting from concrete thought or may be unable to understand the abstract meaning of waiving one’s right to remain silent or waiving one’s right to speak to an attorney. Such individuals also have documented difficulty with the valid or complete recall of past events; are vulnerable to suggestibility (Beail, 2002; Cooper & Zapf, 2008; Herrington & Roberts, 2012); are quick to take blame; attempt to exhibit a greater degree of competence than is actually available; or due to impaired judgment, share invalid “information” with police that may make it much easier for them to be charged with a crime (Beail, 2002; Ellis & Luckasson, 1985; Gudjonsson, 2003, 2010; Hayes, 2002; McGroarty & Thomson, 2013; Perske, 2010; Redlich et al., 2010). Given the documented cognitive deficits of those legitimately diagnosed with an intellectual disability, it is easy to see how such an individual is clearly vulnerable not just to police interrogation, but to the adjudication process in its totality. For example, how does an individual with an intellectual disability successfully negotiate the highly stressful and manipulative environment of a police interrogation? If police already believe this individual

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is guilty per their perception gained from the pre-interrogation interview, how will his or her due process rights be protected when confronted with the strategies employed by police to obtain a confession? How does an individual with cognitive deficits in memory recall, suggestibility, and the inability to differentiate abstract from concrete thoughts provide a legitimate interaction with police that does not directly result in an arrest and likely conviction? It is perhaps parenthetically necessary to add that any of the above scenarios can likely occur without the presence of identifiable police misconduct. The mere reading of one’s Miranda rights is simply no true guarantee that these rights are actually understood by the accused, or that this individual is capable of the abstract reasoning skills necessary to apply those rights to his or her immediate situation (Cooper & Zapf, 2008). As the minority opinion argued in Thompkins, it is certainly somewhat contradictory to inform a suspect, particularly one who is cognitively challenged, of his right to remain silent while requiring him to break that silence to acknowledge his intention to invoke that right (Berghuis v. Thompkins, 2010). For the intellectually disabled individual, it would be unlikely that they would be able to remain silent for the length of time witnessed by Thompkins, and it would be unlikely that such an individual would be able to comprehend the abstract subtleties of Miranda. The intellectually disabled suspect could be easily manipulated by the affable stance likely offered by police and would likely be unaware of the distinctions between the pre-interrogation interview, which depending on the actual circumstances of that setting, may not even legally require that the individual be read his Miranda rights, and the official interrogation process that generally occurs after the individual has been arrested and read his Miranda rights. Add to this the individual’s general lack of ability to provide a valid and complete recall of events and his desire to be cooperative regardless the consequences that attitude may bring, and one can easily see how this adjudicative vulnerability emerges. However, this is not the only potential vulnerability present for the intellectually disabled suspect involved in the criminal justice system. Perhaps a less recognized vulnerability is found in the fact that the individual with an intellectual disability is categorically different from the suspect who is suffering from a chronic mental illness. The individual suffering from schizophrenia or some other type of delusional or psychotic disorder, for example, may waive his right to speak to an attorney based upon how the person perceives this invitation. If for example, the actively psychotic defendant perceives the offer of legal assistance as part of an illegal “plot” by the state to ensure his likely incarceration, such an offer would be immediately rejected. Though it is unlikely that such an individual would be allowed to proceed to trial, his condition and current set of symptoms are treatable, and competency would likely be restored at some later date; this is simply not the case for the intellectually disabled individual. For the intellectually disabled individual, there is no cure or treatment that can substantially transform their current level of cognitive functioning. As was witnessed in Jackson v. Indiana (1972), there was no reasonable possibility that competency could ever be restored given the organic nature of these deficits. However, these same individuals are not psychotic and are not suffering from any delusional system. The lack of identifiable psychotic symptoms along with their ability to somewhat engage in conversation makes them more vulnerable to the process of police investigation and interrogation and more likely to waive their due process rights without a full or in-depth appreciation of that decision.

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Competency to Be Executed One of the most controversial areas in the competency debate is the competency to be executed. Historically, common law held that a prisoner could not be executed if the prisoner did not understand why the sentence was being imposed (Morse, 2011; Perlin, 2013; White, 1923). In 1986, the Supreme Court upheld this common law rule in the majority decision offered in Ford v. Wainwright, 477 U.S. 399 (1986) found that the execution of a mentally ill, incompetent inmate constituted cruel and unusual punishment, and was prohibited by the Eighth Amendment of the U.S. Constitution (Morse, 2011; Perlin, 2013). The Court reaffirmed this position 21 years later in Panetti v. Quarterman, 551 U.S. 930 (2007), where they ruled that an offender who is unable to recognize how his criminal act is related to the punishment he has been sentenced to receive is not appropriate for execution. In exploring this issue further, Morse argued that certain assumptions must be in place to justify the execution of an incompetent prisoner. He continued by arguing that such a prisoner is likely suffering from a chronic psychiatric disorder that typically appears in adolescence or early adulthood (Morse, 2011). Therefore, many people later found incompetent to be executed were probably suffering from substantial mental problems at the time of the crime and during trial and sentencing—problems that were not sufficiently addressed or properly considered. Consequently, many such offenders should not have been sentenced in the first place because, at the least, mental abnormality should have mitigated punishment at sentencing. (Morse, 2011, p. 947)

Though Morse offers his above observation more as a hypothetical scenario, it does leave unanswered a difficult question that remains unresolved: What is the process by which such an inmate is found to be incompetent for execution? One of the most troubling aspects of this issue is the fact that “many states have still never defined criteria for competency to be executed” (Perlin, 2013). Though the Panetti ruling requires that the condemned prisoner be allowed to challenge the conclusion of the state concerning execution competency by introducing its own expert testimony and requires that the prisoner have some degree of rational understanding for the reasons of his execution, the absence of clear criteria defined by the states can easily disrupt any significant benefit offered in this ruling.

Ford v. Wainwright (1986) In 1974, Alvin Ford, during an attempted armed robbery, murdered a police officer at the scene, ultimately leading to his arrest and conviction. He was subsequently sentenced to death for his crime (Perlin, 2013). Ford’s legal competency was never in question at any time during the trial nor at the sentencing phase of this case (Ford v. Wainwright, 477 U.S. 399, 1986). However, nearly eight years after his conviction, he began to develop severe paranoid and delusional ideation and hallucinations (Dick, 1987; Ford v. Wainwright, 1986; Perlin, 2013). As a result of Ford’s ongoing psychological deterioration, his counsel requested that his client undergo a psychological evaluation to determine competency (Dick, 1987). The result of this evaluation determined that Ford was currently suffering from a type of schizophrenia, and was therefore incapable of participating in the legal challenge related to his pending execution.

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Ford’s psychiatric evaluation concluded that he was currently suffering from a severe psychotic disorder, which rendered him ineligible for execution. Once Ford was found to be incompetent, it was now necessary per Florida law to convene a hearing to determine if the condemned inmate had the psychological ability to understand the nature of the death penalty and if he understood why the death sentence was imposed. After a brief 30-minute meeting conducted by three psychiatrists, it was determined that though Ford did exhibit symptoms consistent with a psychotic disorder, these symptoms were not severe enough to prevent him from understanding the purpose of the death penalty or to understand why this sentence would be imposed on him (Ford v. Wainwright, 1986). Ford was therefore deemed competent for execution, which resulted in the governor’s decision to sign the death warrant that would clear the way for the death penalty to be imposed on the condemned prisoner. After Ford’s execution date had been set by the governor, his attorney filed a petition requesting a hearing in state court to determine if the condemned prisoner was currently competent for execution; this petition was denied. As a result of the state court’s refusal to order a new competency hearing, counsel then filed a writ of habeas corpus with the U.S. District Court seeking a new evidentiary hearing concerning Ford’s competency. In this petition, counsel sought to challenge the state’s finding of competency and the methods used by the court-appointed psychiatrists in establishing Ford’s eligibility for execution. However, this petition was also denied without a hearing. Ford’s case finally made its way to the U.S. Court of Appeals, which ruled that sufficient probable cause existed concerning Ford’s incompetency for execution, resulting in a temporary stay of that sentence (Ford v. Wainwright, 1986). The state of Florida then submitted a petition to have the stay of execution lifted, which was denied by the appeals court. The case finally made its way to the U.S. Supreme Court on a petition for certiorari, which was asked to take up two related questions: Does the “Eighth Amendment prohibit the execution of the insane, and, if so, whether the District Court should have held a hearing on petitioner’s claim” (Ford v. Wainwright, 1986). Perhaps the most central issue to be resolved by the Court in Ford concerned the general question of whether the U.S. Constitution prohibits the execution of an insane condemned prisoner on the grounds that such practice violates the prohibition against cruel and unusual punishment, a protection guaranteed by the Eighth Amendment. Related to this more general consideration was whether this prohibition should be imposed upon the states as well. In answering the question concerning whether the U.S. Constitution should prohibit the execution of a mentally incompetent prisoner, Justice Marshall was unequivocal in his response. Drawing on the long tradition of common law, which has barred such executions, Marshall observed that “the practice consistently has been branded ‘savage and inhuman’” (Ford v. Wainwright, 1986). He continued by observing that this common law legacy remains equally present today and notes that “no State in the Union permits the execution of the insane” (Ford v. Wainwright, 1986). He powerfully concluded by stating Faced with such wide spread evidence of a restriction upon sovereign power, this Court is compelled to conclude that the Eighth Amendment prohibits a State from carrying out a sentence of death upon a prisoner who is insane. Whether its aim be to protect the condemned from fear and pain without comfort of understanding, or to protect the dignity of society itself from the barbarity of exacting mindless vengeance, the restriction finds enforcement in the Eighth Amendment. (Ford v. Wainwright, 1986)

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The Court further clarified this ruling when asked once again to take up the issue of execution competency in Panetti v. Quarterman, 551 U.S. 930 (2007).

Panetti v. Quarterman (2007) Panetti was convicted of capital murder for killing the parents of his estranged wife and was sentenced to death. Panetti had a long history of issues related to chronic mental illness, which were present at the time of his arrest and conviction. Regardless these potentially mitigating factors, he was found competent to stand trial and competent to waive his right to counsel. He attempted to use the insanity defense, but was found guilty and sentenced to death (Perlin, 2013). Subsequent to his conviction and sentencing, Panetti filed numerous habeas corpus claims, which were denied. He then filed another habeas corpus petition claiming that he did not understand the reasons for his pending execution; this petition was also denied based upon the rationale that “the petitioner knew no more than the fact of his impending execution and the factual predicate for the execution” (Panetti v. Dretke, 2006). In Panetti, the Court was asked to clarify whether or not the state of Texas adequately followed the standard established in the decision provided in Ford. Perlin (2013) observed that the reason for the Court’s willingness to hear this case was likely related to the confusion that ensued subsequent to the ruling delivered in Ford. One of the more important questions at issue concerned the issue of malingering. As a result, the Court decided to hear the case in the attempt to clarify some of these concerns. In outlining the rationale for its decision, the Court ruled that the lower courts erred by not allowing Panetti to introduce evidence that could establish his claim of insanity. Perhaps more importantly, the Court also rejected the opinion that a defendant is only required to know that he committed murder, that he understands that he is going to be executed, and that he understands the state’s reasons for sentencing him to death. The Court ruled that this established knowledge concerning the act, its consequence, and the reasoning behind the sentence of death does not imply that Panetti’s clearly established fact of delusional thoughts could be ignored. In fact, it observed that the presence of a fixed delusional system can and often does occur alongside the ability to comprehend certain facts or situations. In clarifying its position in Ford, the Court affirmed that nowhere in that decision did it state that a defendant’s delusional fixations are irrelevant or that they can be ignored when attempting to determine execution competency. The Court’s elaboration in Panetti seems to reintroduce a variety of issues that have been previously discussed. Perhaps most significant is the obvious, or at least a seemingly obvious, contradiction concerning the issue of trial competency and execution competency. If Panetti’s delusional or psychotic structure was serious enough not to be ignored by the trial court, how is it possible that the only relief provided is a stay of execution, particularly when he was allowed to act as his own legal counsel? Though under the circumstances this result is hardly insignificant, particularly for Panetti, it does raise the question concerning the legitimacy of his so-called competency to proceed to trial in the first place. Perhaps Panetti’s situation would have been considerably different if his case had occurred subsequent to the Court’s ruling in Indiana v. Edwards. It is at least possible that Panetti, per the finding in Edwards, based on the fact of his history of mental illness and psychiatric hospitalizations, would not have been permitted to serve as his own counsel, which could have

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established his potential incompetency to stand trial or his successful application of the insanity defense. His stay of execution is certainly significant, but in the end it merely represents an eleventh-hour reversal of the most egregious consequence of such trials. Though the clarification of the Court’s position in Panetti with its strengthening of its initial rationale provided in Ford is an important improvement concerning the more general application of these findings, it still has not actually resolved the problem. Until we see the establishment of specific federal standards that the states must recognize, equal-protection claims will likely remain captive to the specific jurisdictional proclivities in which these cases are heard. Being spared an unjust sentence simply reflects the depth of this problem and not its resolution.

The Competencies of the Adjudicated Self As we witnessed with the competency to stand trial standard, a specific set of characteristics, qualities, or skills are required to adequately perform the role of the adjudicative self. These competencies or cognitive legal skills must be manifest during every phase of the adjudicative process—from arrest and conviction to possible execution—within varying degrees of qualitative performance. As such, the concept of the adjudicated self reflects the ability to employ those general cognitive skills necessary for participation in the legal process. However, it seems less able to identify the various nuanced positions that exist with this conceptualization. As has been discussed above, the adjudicative self may be viewed as a contextually contingent aspect of the self that is constructed via the specific requirements of the American criminal justice system. However, once deemed eligible to participate as a defendant, the adjudicative self tends to lose all of those aspects of the self that existed prior to this involvement, but have now been found to be insignificant relative to the legal proceedings about to be convened. Stated more simply, the mentally ill defendant who has been found competent to waive his Miranda rights, competent to stand trial, or competent to be executed is now constructed as somehow no longer influenced by the presence of an ongoing mental illness at least as this relates to the specific requirements of the courts. The mentally ill defendant is effectively deemed “cured” by the legal system and his chronic condition downgraded. The most necessary characteristic for the adjudicated self is the ability to exhibit competency in all of its various legal manifestations. However, once this general characteristic has been established—trial competency—the distinction between the “normal” functioning individual and the chronically mentally ill person seems to disappear. The ability to confer with one’s attorney or one’s ability to comprehend the legal process reflects a set of abstract legal criteria that are often not required to make any other further distinctions. Missing from this standard is any practical application or consideration concerning how this understanding is constructed. Once competency has been established, it would be a mistake to conclude that the “quality” of that competency is the same or equal for all criminal defendants. This is not to imply that all defendants must be able to exhibit the same level of individual competency; rather, our observation seeks to recognize the simple fact that the establishment of competency may not be a sufficient safeguard for such defendants. The chronically mentally ill defendant who has been determined competent for trial, is still chronically mentally ill, regardless their legal status as an adjudicated self. Though the courts at both the state and federal levels have clearly ruled that the fact of mental illness is

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not sufficient to exempt one from criminal responsibility or trial competency, neither have they adequately recognized how the fact of mental illness influences all subsequent interactions with the criminal justice system. As the brief exploration of Supreme Court opinions has established, regardless the specific legal status of the defendant, the fact of one’s mental illness continues to remain an inseparable fact of the overall psychology of the individual.

References American Association of Intellectual and Development Disorders. Definition of intellectual disability. Retrieved from aaidd.org/intellectual-disability/definition. Bailey, A., Barr, O., & Bunting, B. (2001). Police attitudes toward people with intellectual disability: An evaluation of awareness training. Journal of Intellectual Disability Research, 45, 344–350. Beail, N. (2002) Interrogative suggestibility, memory and intellectual disability. Journal of Applied Research in Intellectual Disabilities, 15, 129–137. Berger, P., & Luckmann, T. (1966). The social construction of reality: A treatise in the sociology of knowledge. New York, NY: Anchor Books. Bonnie R. (1992). The competency of criminal defendants: A theoretical reformulation. Behavioral Sciences & the Law, 10(3), 291–316. Cooper, V. G., & Zapf, P. A. (2008). Psychiatric patients’ comprehension of Miranda rights. Law and Human Behavior, 32(5), 390–405. Dick, R. D. (1987). Ford v. Wainwright—Sanity on death row may be hazardous to your health. Louisiana Law Review, 47, 1351–1364. Ellis, J. W., & Luckasson, R. A. (1985). Symposium on the American Bar Association’s criminal justice mental health standards: Mentally retarded criminal defendants. The George Washington Law Review, 53, 338–607. Gudjonsson, G. (2003). The psychology of interrogations and confessions. Chichester, UK: Wiley. Gudjonsson, G. (2010). Psychological vulnerabilities during police interviews. Why are they important? Legal and Criminological Psychology, 15, 161–175. Hayes, S. C. (2002). Early intervention or early incarceration? Using a screening test for intellectual disability in the criminal justice system. Journal of Applied Research in Intellectual Disabilities, 15(2), 120–128. Herrington, V., & Roberts, K. (2012). Addressing psychological vulnerability in the police suspect interview. Policing, 6(2), 177–186. Kassin, S. M. (2005). On the psychology of confessions: Does innocence put innocents at risk? American Psychologist, 60(3), 215–228. Kassin, S. M., Drizin, S. A., Grisso, T., Gudjonsson, L. R., & Redlich, A. D. (2010). Police-induced confessions: Risk factors and recommendations. Law and Human Behavior, 34, 3–38. McGroarty, A., & Thomson, H. (2013). Negative emotional states, life adversity, and interrogative suggestibility. Legal & Criminological Psychology, 18(2), 287–299. Mead, G. H. (1967). Mind, self, & society: From the standpoint of a social behaviorist, Vol. 1. Chicago, IL: University of Chicago Press. Morse, S. (2011). Mental disorder and criminal law. Journal of Criminal Law and Criminology, 101, 885–968. Neidert, P. L., Dozier, C. L., Iwata, B. A., & Hafen, M. (2010). Behavior analysis in intellectual and developmental disabilities. Psychological Services, 7(2), 103–113. Perillo, J. T., & Kassin, S. M. (2011). Inside interrogation: The lie, the bluff, and false confessions. Law and Human Behavior, 35(4), 327–337. Perlin, M. (2003). Beyond Dusky and Godinez: Competency before and after trial. Behavioral Sciences and the Law, 21(3), 297–310.

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Perlin, M. (2013). Mental disability and the death penalty: The shame of the states. Lanham, MD: Rowman & Littlefield Publishers. Perske, R. (2010). Misunderstood responses in police interrogations rooms. Intellectual and Developmental Disabilities, 48(1), 75–77. Redlich, A. D., Summers, A., & Hoover, S. (2010). Self-reported false confessions and false guilty pleas among offenders with mental illness. Law and Human Behavior, 34, 79–90. Redlich, A. D., Kulish, R., & Steadman, H. J. (2011). Comparing true and false confessions among persons with serious mental illness. Psychology, Public Policy, and the Law, 17, 394–418. Slobogin, C. (2009). Mental illness and self-representation: Faretta, Godinez and Edwards. Ohio State Journal of Criminal Law, 7, 391–411. Stender, J. (2012). Protect me from myself: Determining competency to waive the right to counsel during civil-commitment proceedings in Washington State. Seattle University Law Review, 35, 973–1013. Wettstein, R. M. (1992). Criminal competencies. Behavioral Sciences & the Law, 10(3), 289–290. White, W. (1923). Insanity and the criminal law. New York, NY: Macmillan.

Court Cases Berghuis v. Thompkins, 560 U.S. 370 (2010). Betts v. Brady, 316 U.S. 455 (1942) Dusky v. U.S., 362 U.S. 402 (1960) Faretta v. California, 442 U.S. 806 (1975) Ford v. Wainwright, 477 U.S. 399 (1986) Gideon v. Wainwright, 372 U.S. 335 (1963) Godinez v. Moran, 509 U.S. 389 (1993) Indiana v. Edwards, 544 U.S. 164 (2008) Jackson v. Indiana, 406 U.S. 715 (1972) Mendoza-Vargas v. State of Indiana, 974 N.E.2d590; 2012 Ind. App. LEXIS 470 Miranda v. Arizona, 384 U.S. 436 (1966) North Carolina v. Butler, 441 U.S. 439 (1979) Panetti v. Quarterman, 551 U.S. 930 (2007) Panetti v. Dretke, 448 F. 3d 815 (5th Cir. 2006) Mendoza-Vargas v. State of Indiana, 974 N.E.2d590; 2012 Ind. App. LEXIS 470 Welch v. Harrington, 2010 U.S. Dist. LEXIS 122428

6

Criminal Responsibility State of Mind at the Time of the Crime and the Insanity Defense

Perhaps no single legal concept or procedure has evoked more controversy than the concept of criminal responsibility or the insanity defense. It has long been recognized within Western and American jurisprudence that not only is it unjust to convict a defendant who is lacking the rational awareness concerning the wrongfulness of their actions, it is immoral as well (Blackstone, 2011; Bonnie, 1983). Stated more simply, the fact of one’s guilt is of less ethical importance than is the act of placing an “insane” defendant on trial for those actions. Justice cannot be served, and punishment is not legitimate under such legal circumstances. As such, the insanity defense is exclusively concerned with the state of mind of the accused, at the time of the actual crime (Costanzo & Krauss, 2012; Shipley & Arrigo, 2012; Walker & Shapiro, 2003; Wrightsman & Fulero, 2008). The central question that needs to be answered in this regard is exclusively focused upon whether the state of mind of the accused at the time of the crime satisfies the jurisdictional legal standard for that defense. If sufficient evidence exists establishing these facts, the defense may go forward; if not, the individual will go to trial as any typical defendant facing criminal charges. You may be asking yourself, “What relationship if any does the insanity defense have to competency to stand trial?” Though the same set of psychological factors used to determine one’s criminal responsibility may extend into the discussion concerning the accused’s competency to stand trial, it is essential to recognize that these are completely distinct legal concepts, which need to be established based on their own merit. The standards reflected in the establishment of legal insanity are much different from those needed to prove one’s competency to stand trial. These specific legal concerns notwithstanding, the general public remains highly skeptical concerning the legitimacy of the insanity defense. The most common misperception concerning the legal and ethical efficacy of the insanity defense is related to the belief that it is a legal strategy regularly used by guilty criminal defendants who are attempting to avoid the legal consequences of their illegal actions (Grachek, 2006; Perlin, 2009). An example of this was discussed in Chapter One, when a family member of one of the shooting victims in the Aurora, CO theater killings adamantly contended that James Holmes was definitely not insane and therefore legally responsible for his actions. Unfortunately, when it comes to the actual use of the insanity defense by criminal defendants, public perception does not accurately reflect the legal reality.

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Regardless these socially constructed views, the insanity defense is rarely used—requested in less than 0.500 percent of all criminal cases—and more often than not unsuccessful (Shipley & Arrigo, 2012). In fact, it has been argued that defense teams regularly attempt to avoid the insanity defense when possible. The difficulty in establishing the requisite evidentiary standards demanded by the legal jurisdiction and the potential consequences for the defendant who may be denied this defense makes this a complicated strategy to pursue (Grachek, 2006; Perlin, 2009; Shipley & Arrigo, 2012). Recall that in the Texas capital murder trial of Marvin Wilson, his defense team specifically chose not to pursue the insanity defense. Wilson’s defense team claimed that they had sufficient evidence to establish their client’s intellectual disability (formerly known as mental retardation), but they still believed that such an admission would likely prejudice the jury, and guarantee a guilty verdict. It is difficult to determine in retrospect whether or not the decision to forgo the use of the insanity defense was actually correct. However, what this specific example does reveal is the degree to which an experienced defense counsel is willing to reject the insanity defense based upon the potentially negative consequences such a strategy may evoke for his client. Wilson’s defense team obviously came to the conclusion that the insanity defense was actually no defense at all. Rather, they believed that their client would be better served in pursuing a different legal strategy by which to establish his innocence. Though it is rarely used and more often than not unsuccessful, the public dislike of the insanity defense remains consistently strong. At the core of this dislike is the belief that the accused individual is in fact guilty of the charges, and therefore should be held responsible for their actions. Such a conclusion is certainly reasonable based on the fact that in a vast majority of these types of cases, a great deal of evidence exists that clearly implicates the defendant in these crimes. However, what these attitudes overlook is that within our legal tradition the facts of one’s guilt cannot be separated from the facts of one’s level of cognitive and emotional functioning. Criminal responsibility has never been viewed within the American legal tradition as simply a matter of the fact of one’s potential guilt (Morse & Bonnie, 2013). Rather, the evidentiary fact of one’s guilt must be accompanied by the minimal ability to comprehend the severity of the act for criminal responsibility to be established. In most criminal cases, these two conditions are more or less equally present, allowing the individual to be legitimately tried for his or her alleged actions. When this same “equation” is applied to the mentally ill defendant, the solving of this problem becomes much more complex.

Incompetence to Stand Trial versus the Insanity Defense Forensic psychologists are interested in and employed to assess two different issues that are often confused for one another but are two importantly separate processes, namely competence to stand trial and insanity (Grisso, 2003). Competence to stand trial means that the accused is competent to both understand the court proceedings and meaningfully participate in his or her own defense. A woman, for example, who is diagnosed with co-morbid depression and anxiety disorders may suffer great stress through the process of the trial, but if nothing about her mental illnesses prevents her from understanding what’s going on in court or prevents her from communicating effectively with her lawyer, then she is competent to stand trial. If, however, the stress of the trial causes her to decompensate further so she is diagnosable with

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major depressive disorder with psychotic features (meaning that not only is she depressed but she also begins losing touch with reality and experiencing delusions and hallucinations), then she may lose the ability to understand what’s going on in court and/or the ability to communicate effectively with counsel. Mental health professionals are employed by the court to assess accused individuals and to provide the assessment results to the court so the court can determine competence. Should the court deem the accused incompetent, then the accused is held until they are stabilized sufficient to stand trial, which can take an indefinite period of time in some cases (Perlin & Dlugacz, 2007). Insanity, on the other hand, considers the state of mind of the accused at the time he committed the crime (Grisso, 2003; Hartwig & Guyer, 2013; Warren, Rosenfeld, & Fitch, 1994). The definition of insanity has taken varied forms through the years. A common core to these definitions, however, is whether an accused person was in control of his actions at the time he committed the crime, or was so mentally ill that he could not tell right from wrong when he did so. If the person was not in control of his actions, or could not tell right from wrong, then he may not be held criminally responsible for his actions. At the heart of this philosophy since ancient times in the West is that moral accountability requires at least some free will (Shipley & Arrigo, 2012; Costanzo & Krauss, 2012; Deutsch, 2007; Robinson, 1996). If someone cannot make a choice, then he cannot commit a moral action. Imagine a hypothetical scenario in which a scientist plants a radio-controlled computer chip in the brain of one of his subjects which allows the scientist to control his subject’s behavior remotely. He runs out of funding for his experiments and so, using his remote control, he uses his subject to rob a bank. Not in control, the research subject, sweating and protesting the entire time, has no control as his arm is raised and pointed at the bank teller and no control as his other arm hands her a note demanding cash. The ethical claim here is that because the subject had no choice in his behavior, he should not go to prison for the robbery. Instead, the scientist controlling the subject should go to prison because he had control over the subject’s behavior and chose to rob a bank. From this perspective, mental illness can remove a person’s ability to choose by either causing him to commit a crime or preventing his ability to choose right from wrong. In essence, the ill person lacked free will, thus did not have the capacity to choose whether or not to commit the crime. This is particularly interesting in a legal setting, because the term “free will” does not appear in the law or in legal literature on the issue of insanity, but it is very much a part of the fundamental assumptions behind that language and the legal profession’s assertions of guilt and innocence (Felthous, 2007). A mentally ill woman, for example, suffering from command hallucinations (voices in her head that tell her to do certain things), who in her delusional state believes that the voices are divine messengers, kills a child because the voices told her that the child was actually a demon sent to corrupt mankind and needed to be removed from the world for the protection of others. In this case, she would lack free will because her illness prevents her from seeing the situation clearly enough to make a moral choice. By this reasoning, because she lacked free will, she is not guilty of committing a crime. What is important to understand is that four different combinations may occur relative to competency and insanity: 1.

A person could be insane at the time of the crime, but competent to stand trial. This could happen in the case where the accused faces an extremely stressful situation,

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2.

3.

4.

which overwhelms his capacity to make rational or moral decisions in the moment, but once the situation is over, his usual capacity returns (like in the case of fanaticus below). A person could be sane at the time of the crime but incompetent to stand trial by the time the court process commences. This could happen in cases where someone plans a crime, knowing what he is doing is wrong, and follows through and commits the crime anyway. However, between the time of arrest and the commencement of trial, the psychological degeneration of the accused can occur (Ostfeld, 1997), especially given the stresses associated with arrest and prosecution. A person could be insane at the time of the crime and incompetent to stand trial. This would indicate severe and chronic impairment, wherein the accused does not have the capacity to make rational choices or understand right from wrong at the time of the crime, which also interferes with their ability to understand and participate meaningfully in the court process (like in the case of non compos mentis, below). A person could be sane both at the time of the crime and competent to stand trial, which is by far the most likely in any given case (as we mentioned above).

It is the job of consulting psychologists to perform the assessments to help the courts make these distinctions. The issue of whether someone was sane when he or she committed a crime has proven difficult for philosophers and psychologists to determine for some time.

The History of Criminal Responsibility and the Insanity Defense Robinson (1995), when reviewing the history of psychology, discussed the relationship between state of mind when someone commits a crime and how legally and morally culpable that person is to society or in the eyes of one’s king or court. The ancient Greeks discussed two states of mind, in particular, that mitigated the guilt of the accused, because the amount of guilt a person has depends upon their ability to do otherwise (in this case, their ability not to commit the crime). They called these two states of mind fanaticus and non compos mentis. Fanaticus meant “frenzied” or “mad” when used in a legal setting, the sort of madness of a wild beast or animal (Robinson, 1995, p. 305). Non compos mentis, on the other hand, meant “not in command of one’s mind” or “not in control of one’s mind” (p. 305). Fanaticus is what the Greeks associated with crimes of passion, issues that inflamed the psyche to the point where the criminal lost control of his behavior, and wasn’t in his right mind when he committed the crime. For example, a woman who finds her husband having sex with her sister and reacts violently, assaulting them both, was not in her usual or normal state of mind when she committed the crime. A court would take into consideration her state of mind when she committed the crime as part of the overall context when determining her guilt or punishment. Non compos mentis, however, describes a different phenomenon. This term describes someone who has not controlled, and could not control his faculties for some time (in essence, a chronic condition, rather than an acute condition like fanaticus). For example, a chronically paranoid and delusional man assaults the local baker, believing that he is poisoning his customers with his breads. Because of his chronic delusions and hallucinations, the court knows that he is non compos mentis, and that he is not guilty of the crime because he lacks the capability to make rational choice.

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The intent to knowingly commit wrongdoing, in legal parlance, is called mens rea. It translates, quite literally, as “guilty mind” from Latin (Garner, 2009; Wortzel, 2006). For the court to determine mens rea, it assesses whether or not the accused actually committed the crime (actus reus in Latin) and whether he committed the crime knowing what he was doing was wrong (Carson & Felthous, 2003). From this viewpoint, someone is only guilty of a crime if he or she satisfies both conditions (committed the act and knew it was wrong). If one of the two conditions is not met, then the person is not legally culpable of a crime (the individual has no guilty mind, therefore no mens rea). Imagine a case, for example, wherein the defendant has suffered from paranoid schizophrenia since adolescence. As he grows into adulthood, his only surviving relative and caretaker, his father, becomes terminally ill. Believing, in his delusional state, his father to be dead (when in actuality his father is unconscious and unable to communicate), the accused cuts open his father’s skull and eats a portion of his brain in order to keep a part of his father’s soul with him so he will not have to grieve his father’s passing. In this case, the accused lacked mens rea. Although he did unintentionally kill his father (actus reus), he did not know that what he was doing was wrong (mens rea). The ancient Greeks and Romans are not the only people to struggle with these psychological issues in a legal setting. A landmark case in Britain established case law for over 100 years. Daniel M’Naghten, a well-educated wood turner, although normally known as studious, industrious, and self-disciplined, grew increasingly delusional believing that the Tories (members of a prominent political party of the time) were spying on him, following him, and interfering with his life. In the year 1843, M’Naghten was seen suspiciously loitering outside of Whitehall (close to Parliament Square); a man passed who M’Naghten delusively believed was the prime minister. M’Naghten approached the man from behind and shot him in the back. The man proved not to be the prime minister, but his personal secretary, Edward Drummond. Mr. Drummond died five days later, and the authorities of the time charged M’Naghten with murder (Tillim, 1951). M’Naghten pleaded not guilty due to his mental state at the time of the crime and the court found him not guilty on the grounds that he lacked mens rea and was therefore insane. The House of Lords debated the case at length and asked for the judiciary to justify its finding. The response of the judiciary established the standard which read: [T]o establish a defense on the ground of insanity, it must be clearly proved that, at the time of committing of the act, the party accused was laboring under such a defect of reason, from disease of the mind, as not to know the nature and quality of the act he was doing; or, if he did know it, that he did not know what he was doing was wrong. (Frederick, Mrad, & DeMier, 2007, p. 35)

This standard for an insanity plea was called the “M’Naghten rule” and courts used it as a standard for over 160 years. As helpful as the M’Naghten standard has been, there are still limitations to its applicability or sensibility to all cases (Ward, 1962). Of particular concern to legal professionals are the conceptual differences between the standards of psychiatric science and the law. Psychiatric language is devoid of concepts of moral and ethical responsibility, while legal language is replete with them. This tends to create some confusion because when a psychiatrist or psychologist assesses an accused individual, they do not look for moral culpability, they only look for the symptoms of mental illness. When judges or lawyers read the assessment report from the mental health professional, they read about the symptoms and diagnosis of the accused, but no indication as to how much or how little those

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symptoms prevented the accused from thinking and behaving ethically. Therefore members of the jury are left to make a decision during the trial that they may not be trained to make, namely the degree to which the symptoms of the illness caused loss of control of the accused’s faculties. This confusion resulted in the United States Court of Appeals (District of Columbia) hearing Durham v. United States (1954). In this particular case, Monte Durham pleaded not guilty by reason of insanity to the charge of breaking and entering. Durham was convicted, and he appealed. The case made its way to the United States Court of Appeals, which overturned Durham’s conviction on the grounds that 1) 2)

“the trial court did not correctly apply existing rules governing the burden of proof on the defense of insanity . . .” “existing tests of criminal responsibility are obsolete and should be superseded.” (Durham v. United States, 214 F.2d 862, 1954)

The Court opined that the M’Naghten standard did not reflect advances in medical knowledge regarding mental illness and that if someone committed a crime, he or she was not criminally responsible if the criminal act was caused by a mental illness in any way (Rolf, 2006). This rule proved much more lenient than the M’Naghten rule. It is also important to recognize that the application of Durham only applied to federal jurisdictions and the D.C. circuit court; because this case was never heard by the U.S. Supreme Court, the D.C. appellate court’s ruling did not have any effect on any state jurisdictions. It is also very likely that during this period no other circuit court offered an opinion that was significantly different from the D.C. circuit court’s ruling. When significant disagreement occurs between various United States courts of appeal circuits, the U.S. Supreme Court often intervenes to resolve the issue. Under Durham, even if a mentally ill defendant knows right from wrong, and remains in full control of his moral faculties at the time of the crime, if the illness is in any way related to the criminal act, the accused is not guilty by reason of insanity. Under M’Naghten, the impairment must be so severe as to prevent the accused from knowing what he was doing or knowing right from wrong As lawyers, judges, and jury members are not well-versed in mental illnesses and how they can relate to the crime, the courts need to call in expert witnesses to opine as to the mental health condition of the accused. The court proceedings could then become a duel between the two experts who would use increasingly specialized language at the expense of the comprehension of the judge and jury. In addition, any diagnosable condition listed in the Diagnostic and Statistical Manual of Mental Disorders (the DSM) could be used as grounds for a “not guilty” plea (including controversial diagnoses like compulsive gambling or nicotine dependence) (Rolf, 2006). The Durham standard lasted only 18 years before the same circuit court once again took up this issue in United States v. Brawner (1972), which found it sufficiently unhelpful and adopted new criteria for insanity and found the Durham rule no longer in effect. (It is important to note that it was the United States Court of Appeals, District of Columbia Circuit, which overturned the decision that was offered in Durham in 1954.) In attempting to resolve this confusion, the court asked the American Psychological Association (APA) as well as some other organizations for amicus briefs about the nature of the insanity defense. According to the APA:

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APA’s brief dealt with two of the questions: whether (1) the medical model should be abandoned, and (2) the results of psychological tests like the Rorschach should be admissible. APA argued that: (1) current court practice recognizes non-medical expertise; (2) mental illness is largely a metaphor; (3) psychologists should be allowed to testify in court; (4) various changes in the language of the insanity rule should be considered; (5) tests are one tool for assessment, and are superior to interviews alone; and (6) the instructions to the jury should indicate that the jury has the ultimate decision but that it should take psychological tests into consideration unless expert opinion suggests otherwise. (American Psychological Association, 1972)

In the court’s response, the judges indicated that they would not uncouple the insanity defense from the medical model because they could not predict the outcome of such an action. They also ruled to limit the sorts of diagnostic and clinical information experts could present, and upend the value of the input of mental health professionals in the process, particularly mental health assessment data. The court did not mention, however, whether or not to provide explicit instruction to jurors on the interpretation of assessment data. The Brawner rule, which replaced Durham, came to be known as the American Law Institute standard (or Model Penal Code Test). In this standard, the judges held that the accused is not guilty if, because of mental illness, he did not have “substantial capacity either to appreciate the criminality of his conduct or to conform his conduct to the requirements of the law” (United States v. Brawner, 1972). This new standard reflects the mens rea of the M’Naghten standard more than the Durham standard did, because like M’Naghten, the core issue is whether the defendant understood right from wrong, and whether he was in control of his actions (Finkel & Slobogin, 1995). This standard changed in 1981 when John Hinckley Jr. shot President Reagan, and in the resulting trial the jury found him not guilty by reason of insanity in 1982. The public outcry over this verdict prompted politicians and legal scholars to revisit the Model Penal Code Test. The relevant section of the resulting Comprehensive Crime Control Act (CCCA) states: (a) Affirmative Defense.— It is an affirmative defense to a prosecution under any Federal statute that, at the time of the commission of the acts constituting the offense, the defendant, as a result of a severe mental disease or defect, was unable to appreciate the nature and quality or the wrongfulness of his acts. Mental disease or defect does not otherwise constitute a defense. (b) Burden of Proof. — The defendant has the burden of proving the defense of insanity by clear and convincing evidence (Legal Information Institute, 2014).

In addition, the Insanity Defense Reform Act of 1984 was passed that amended federal law governing the insanity defense, making it more challenging for defendants to make the claim of not guilty by reason of insanity. Although highly reminiscent of the original M’Naghten rule, the Act of 1984 adds a very important element: it shifts the burden of proving insanity to the defendant and the defendant alone. However, given that the accused may be sufficiently ill so as to remain unable to make an adequate determination of his own sanity, experts are still used by the defense (and counter-experts can be used by the prosecution as well) (Perlin, 1977, 2009, 2013). This Act prohibits these mental health experts for both the prosecution and the defense from testifying about the sanity of the defendant (as defined by law), but rather permits them to testify about the abilities (or lack thereof) possessed by the defendant at the time of the crime. It is then up to the finder of fact to make the legal

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determination, based on all the evidence at hand, whether or not the defendant was insane. Part of the reason for this is that the definition of “insanity” and the role psychologists play in assessing whether or not the illness of the person they assess warrants the definition of “insanity” was at the time (and remains) a moving target (Faust, 2008). In a given case, the nature of insanity may prove altogether different than in a separate case, leaving mental health and legal professionals generally unable to create specific definitions and rules around such adjudication that fit with every case, so such determinations must be made on a case-by-case basis (Coles, 2000).

The Case of Andrea Yates and the Insanity Defense The case of Andrea Yates demonstrates both the insanity defense as well as the role of political pressure in the legal process. Andrea Yates, in June of 2001, drowned all five of her children in the bathtub. She suffered from both postpartum depression as well as postpartum psychosis at the time of the crime. Postpartum depression is a fairly common experience for women after giving birth (Kammerer et al., 2009). Women suffering from this often exhibit symptoms of major depressive disorder, presumably due to hormonal fluctuations, sleep disturbance, loneliness, as well as a significant shift in their daily lives and routines (Serhan, Ege, Ayrancī, & Koskeroglu, 2013; Don & Mickelson, 2012). In some cases of severe postpartum depression, women can also demonstrate symptoms of postpartum psychosis, wherein they show symptoms of paranoid schizophrenia, particularly delusions (believing things are true that are demonstrably false) and hallucinations (seeing, hearing, feeling, or smelling things that aren’t there) (Doucet, Jones, Letourneau, Dennis, & Blackmore, 2011). Andrea’s postpartum depression began after the birth of her fourth child, to such severity that she demonstrated motoric trembling, chewed on her fingers, and attempted and threatened suicide several times. After a course of treatment that included the antipsychotic drug Haldol, her physician strongly encouraged her not to have any more children, because giving birth to another child would probably create another, even more severe, postpartum episode. Against the counsel of her physician, she became pregnant seven weeks later. After giving birth to her fifth child, her psychotic symptoms returned. She grew increasingly catatonic, mutilated herself with a blade, and grew increasingly suicidal. On June 20, 2001, her husband left for work (contrary to physician’s counsel, who had recommended 24-hour supervision). Shortly after he left, she systematically drowned each of her children. One was old enough to struggle and to attempt to escape; she laid the bodies of the other four on their beds after drowning them. Once finished, she called the police and her husband, obsessively saying, “It’s time” over and over again (Misri, 2007). Yates reported later, while under supervision of a psychiatrist, that she believes she is inherently evil, so evil in fact that her children were developing improperly, and that because of her evil parenting, they would be doomed to burn in hell for an eternity. To protect them from such a horrific fate, she drowned them to prevent them from getting any worse, saving them from a fate worse than death (Misri, 2007). Although originally convicted of homicide, the state of Texas did not pursue the death penalty because the court learned that the psychiatrist who testified for the prosecution gave false evidence in the case. On appeal in 2006, Yates’ defense fielded an appeal resulting in the reversal of her original capital murder conviction. She was then retried and found not

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guilty by reason of insanity. She was referred to a mental health hospital, and eventually to a low-security state hospital in Texas (Misri, 2007). The publicity in this case (it commanded national headlines) seemed to play a role in the original conviction. Given that some lawyers and all judges hold their positions politically, personal ideology and political pressure can play a role in conviction (Medwed, 2004). However, during appeal, the issue of mens rea came to the attention of the court. And although the appeal proved successful, of particular issue in the court was the false testimony of Dr. Dietz. He testified that Yates had seen an episode of Law & Order: Criminal Intent in which a woman drowns her children and pleaded not guilty by reason of insanity and got away with murder. By watching this episode, he testified, Yates demonstrated that she was culpable because she knew she was committing murder, and because of the “lesson” she learned from the television show, she believed she would get away with it and would find a way out of her struggles (Yates, Andrea Pia v. The State of Texas, 2005). This testimony proved false. The producers of this show demonstrated that no episode like this one had been filmed, so Dr. Dietz testified falsely. Although Yates raised 19 points of error in her defense, the court only heard two, particularly that of mens rea and the false testimony of Dr. Dietz. The mens rea standard seems to apply universally; it is interesting to note the power of our culturally and socially constructed ideas about cases like that of Yates. So powerful, in fact, that a psychiatrist mistakenly testified as to the existence of a show and the defendant’s watching the show, when the show did not even exist. Many states hold different standards regarding the insanity defense, and it was only after Yates met the Texas standard, proving that at the time of the crime she did not know right from wrong, in addition to the finding of false testimony, that the court overturned her capital conviction and re-tried her.

The Legal Construction of Insanity As the above discussion reflects, the legal construction of the specific definitional contours of the insanity defense have changed and evolved over time. However, it is important to recognize that the specific standard used to define the insanity defense in the United States differs across federal and state jurisdictions as well. In fact, as we will discuss, there is no constitutional requirement for either federal or state jurisdictions to provide the availability of the insanity defense as a matter of law. As a result, four states have no provision in their criminal code defining criminal responsibility, and the remaining federal and state jurisdictions that do recognize this as a legitimate defense employ a variation of the M’Naghten rule or Model Penal Code (Cormier, 2010; Gilles-Phillips & Woodman, 2008; Morse, 2011; Shipley & Arrigo, 2012). Unlike the Dusky standard, which established the minimum criteria for competency to stand trial (CST), no constitutionally mandated standard exists that all states are required to follow. Legal scholar Stephen Morse (2011) defined legal insanity as “an affirmative, complete defense to crime” (p. 925). When successful, the insanity defense results in the defendant being found not guilty for their actions due to the presence of serious mental illness, which has been found to play a major role in the accused’s criminal behavior. As a complete defense, the verdict of not guilty by reason of insanity (NGRI) ends the legal process by acquitting the defendant of all criminal charges (Grachek, 2006; Morse & Hoffman, 2008; Morse, 2011). However, unlike other acquittals, the defendant found NGRI is turned over to state authorities.

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How this process moves forward once the trial has been decided will be determined by the specific state involved. Some states may opt to involuntarily commit the individual to a civil inpatient mental health facility until such time that it has been determined that he or she no longer presents a realistic danger to self or others in the community. Other states may opt to place the individual in a forensic facility to better guarantee the protection of the public. Once involuntarily committed, the length of confinement is open-ended and may exceed the amount of time the individual would have received if he or she were actually found guilty (Grachek, 2006). As was stated above, the practical efficacy of the insanity defense is caught between two differing legal questions: Should we prosecute an individual who is severely mentally ill, regardless of his or her actions, and is it just to allow an individual who clearly has committed a serious crime to not be held accountable for those actions, regardless of his or her state of mind at the time of the crime? Central to the resolution of this issue is whether or not the fact of one’s guilt supersedes the ethical questions involved in prosecuting an individual who is legitimately mentally ill and was likely severely psychologically impaired at the time of the crime. Should there be a national standard, much like competency to stand trial, or should this be left to the states, which has been the consistent position of the United States Supreme Court? However, the Court refused to accept Delling’s writ, thereby allowing the lower court’s decision to stand.

The Supreme Court and the Insanity Defense In the Delling case, the petitioner sought to have the Court answer a very general question: Does the U.S. Constitution guarantee the availability of the insanity defense as a constitutionally protected due process right for every defendant in all legal jurisdictions in the United States? Though the Court has heard a variety of cases concerning the insanity defense, it has never directly addressed whether or not the insanity defense is a constitutionally protected right that must be available in all legal jurisdictions within the U.S. (Leland v. Oregon, 1952; Powell v. Texas, 1968). The Court has clearly established that the criminal defendant not capable of knowing right from wrong at the time of his offense should not be eligible for criminal punishment based on these psychological deficits. However, these decisions were predicated upon a simple legal fact: the jurisdictions in which these cases were decided made available the insanity defense to those defendants capable of satisfying the statutory requirements of these standards. If the insanity defense was available in that jurisdiction and the defendant satisfied the statutory requirements, which legitimately established such a defense, then it would be presumed that such an individual would be constitutionally protected from prosecution. But what happens to the same mentally ill defendant whose crimes occurred in a jurisdiction that did not have the insanity defense as a legal option for such individuals? This was the question that the Court was asked to answer in Delling v. Idaho (2012). Delling was initially charged with two counts of murder in the first-degree in the deaths of two Idaho men; a charge that was subsequently reduced to two counts of second degree murder. Shortly after the official charges were filed with the Idaho District Court of the Fourth Judicial District, Delling’s attorney filed a motion requesting that a mental health evaluation be completed to determine his client’s competency to stand trial. Upon completion of that evaluation, Delling was found to be unfit for trial and the district court ordered that he be involuntarily committed in the hope that competency could be restored and the accused could proceed to trial. After

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approximately twelve months, the district court ruled that Delling had improved to the point that he could aid in his own defense. (State of Idaho v. Delling, 2011)

Once Delling’s competency was restored, a pre-trial motion was filed by his legal counsel, which challenged Delling’s ability to legitimately formulate mens rea, which requires an accused to have sufficient ability to formulate the necessary intent required in the commission of a specific crime. Also included in this motion was the claim by Delling that the absence of the insanity defense in Idaho violated his due process rights of equal protection under the law. The challenge concerning Delling’s ability to establish mens rea was rather straightforward, but was rejected by the district court. The question before the court was whether or not Delling’s behavior reflected a sufficient degree of intent that allowed him to commit murder. The simple answer to that question was yes, and it is for this reason that mens rea is not a suitable standard by which to establish criminal responsibility. As we saw in the case of Andrea Yates discussed above, the fact of mens rea could be rather easily established (Gilles-Phillips & Woodman, 2008). She clearly planned out her crime with the intent of seeing it to completion. However, in this case the issue was not on intent; rather, the focus was placed upon the “psychological context” from which that intent was formed. Yates was unable to recognize the wrongfulness of her actions, for the simple reason that she actually believed that she was saving her children from an eternity in hell. Yates was ultimately found NGRI, not based on her intent, but upon her inability to recognize the wrongfulness of her actions. Similarly, Delling formed the intent to murder, but did so as a result of psychotic ideation that viewed his two victims as a threat because he believed they were “stealing his energy.” However, unlike Yates who was tried in the state of Texas, which does allow for the insanity defense, Delling could not utilize this option given that the state of Idaho abolished the insanity defense in 1982. The Supreme Court of Idaho opined that the prosecution was still required to “prove beyond a reasonable doubt that a defendant had the mental capacity to form the necessary intent,” thereby rejecting Delling’s claim that mens rea was an inappropriate standard, which threatened his due process rights (State of Idaho v. Delling, 2011). Delling’s claim concerning the constitutionally protected right to the insanity defense was also rejected by the Idaho court, on the grounds that the Supreme Court has long established the right of individual states to determine the availability and scope of the insanity defense. With no other legal option, Delling appealed his case to the U.S. Supreme Court. On November 26, 2012, the Court denied Delling’s petition for writ of certiorari, refusing to hear his case. The Court’s refusal to hear the Delling case affirmed the right of individual states to determine via the legislative process whether or not the insanity defense will be made available to defendants in their jurisdiction (Clark v. Arizona, 2006). Though Delling provided the Court the opportunity to establish a constitutional standard for the insanity defense in all legal jurisdictions in the United States, by refusing to hear this case, it decided not to do so. In his dissenting opinion, Justice Breyer argued that “the law has long recognized that criminal punishment is not appropriate for those who, by reason of insanity, cannot tell right from wrong” (Delling v. Idaho, 2012). He continued by observing that, If a defendant establishes an insanity defense, he is not criminally liable, though the government may confine him civilly for as long as he continues to pose a danger to himself or to others by reason of his mental illness. (Delling v. Idaho, 2012)

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Most importantly, the minority opinion observed that the Idaho law actually allowed for the prosecution of mentally ill individuals who clearly did not understand that their actions were wrong, as long as a clear intention to commit the crime had been established. The dissenting opinion provided the following hypothetical example: Case One: The defendant, due to insanity, believes that the victim is a wolf. He shoots and kills the victim. Case Two: The defendant, due to insanity, believes that a wolf, a supernatural figure, has ordered him to kill the victim. In Case One, the defendant does not know that he has killed a human being, and his insanity negates a mental element necessary to commit the crime. In Case Two, the defendant has intentionally killed a victim whom he knows is a human being; he possesses the necessary mens rea. In both cases the defendant is unable, due to insanity, to appreciate the true quality of his act, and therefore unable to perceive that it is wrong. (Delling v. Idaho, 2012)

Based on the above hypothetical scenarios, the minority argued that in Idaho, the defendant in the first case could challenge mens rea, but in the second case, would not be able to raise any defense based on the fact of his mental illness. In Delling, the facts of the case seem to reflect the circumstances provided by Breyer’s second scenario, insofar as the defendant delusively believed that his two human victims had the power to destroy his brain and “steal his energy.” From this perspective, even though Delling’s motivation to kill was predicated upon a set of delusional beliefs, he was still able to formulate the necessary intent, or mens rea, for murder. Under Idaho law, Delling’s behavior was in fact criminal given his ability to form the intent to kill, regardless the psychotic nature of that motivation. The larger question evoked by these facts, perhaps, is, should it be? What if this case took place in another jurisdiction, like Pennsylvania for example, which has the insanity defense; would the result necessarily be different? The Pennsylvania Criminal Code defines the insanity defense in the following way: The mental soundness of an actor engaged in conduct charged to constitute an offense shall only be a defense to the charged offense when the actor proves by a preponderance of evidence that the actor was legally insane at the time of the commission of the offense.

“Legally insane” means that, at the time of the commission of the offense, the actor was laboring under such a defect of reason, from disease of the mind, as not to know the nature and quality of the act he was doing or, if the actor did know the quality of the act, that he did not know that what he was doing was wrong. (Title 18, Section 315). To further establish this point, the Pennsylvania Criminal Code states that Even if the defendant believed that there were witches and that he had the right to kill them and such belief was product of a diseased brain, or if there was reasonable doubt that such condition of brain existed at the time of homicide and that homicide was result of such diseased brain, the defendant would not be entitled to acquittal if he knew the nature and quality of his acts or that they were wrong. (as cited in Commonwealth of Pennsylvania. v. Bruno, 1979)

Notice that intent is also not included in this definition and as a result Delling would likely have been convicted in a Pennsylvania court under the same circumstances, albeit perhaps for

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slightly different legal reasons. Using the Pennsylvania definition, Delling’s belief that he needed to kill these two individuals based on the threat they posed to his “energy,” or that they were witches, would be legally irrelevant. Given that each of these insanity standards focuses on wrongfulness, the rationale or intent for the action is simply not relevant if it includes the awareness that killing is wrong. As long as the wrongfulness of killing has been established, it does not necessarily seem to matter if the victims are viewed as human beings, aliens, or witches. The Court’s refusal to hear the Delling case ends the jurisdictional question concerning the insanity defense for the time being. In fact, it could be argued that the Delling ruling actually helped to further clarify the Court’s position established in Clark v. Arizona. In that case, the Court upheld the right of the state of Arizona to amend the language of the M’Naghten rule regarding the formulation of the insanity defense. In Arizona, insanity is now defined as the inability of the accused to recognize that his or her conduct was wrong. Absent from this revision of the M’Naghten rule was the requirement of the accused to understand the nature and consequences of the act; an omission that Clark claimed was unconstitutional and violated his due process rights (Gilles-Phillips & Woodman, 2008; Morse & Bonnie, 2013; Westen, 2006). The Court disagreed and affirmed his conviction. However, a more potentially onerous consequence of that ruling upheld an Arizona law, which states that “evidence of mental disease or defect could be used only to establish the affirmative defense of insanity; it could not be used to negate the specific intent elements of the crime charged” (Gilles-Phillips & Woodman, 2008). Stated more simply, it would be permissible to introduce evidence of mental illness as this relates to establishing the inability of the accused to recognize the wrongfulness of his actions. However, that same evidence could not be introduced to negate the intent of the accused to actually commit the crime (Westen, 2006). The significance of this distinction is an important one, insofar as the fact of mental illness can no longer be used to challenge the criminal intent of the accused, even when that intent is fundamentally structured by psychotic or delusion ideation. Per the logic offered by the Court in Clark, and in part supported by its refusal to hear the Delling case, intent is conflated within the definitional confines of the state’s insanity standard and no longer a distinct legal category that must be established in its own right (Morse & Bonnie, 2013). Though it is legitimate to observe that there is a substantial qualitative difference between offering a version of the insanity defense and not making that defense available at all, the Court has decided to continue to allow individual states to determine the legal import of that difference. If the jurisdictional authority for the insanity defense lies solely within the purview of state legislatures, then it follows per the logic of the Court that this privilege includes the right to not make available this legal defense, regardless the potential ethical concerns such a decision evokes. The Court, by refusing to hear the Delling case, reestablished the constitutionally protected right of the individual states to determine whether or not the insanity defense must be made available in a given jurisdiction. Though some may see this decision as a victory for states’ rights, it may also be viewed as the further erosion of a legal protection that has been part of the Western jurisprudence for over 200 years.

Jurisdictional Constructions of Insanity As both the Clark and Delling cases establish, the definition and application of the insanity defense will remain the legal responsibility of individual state jurisdictions. As such, this

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implies that no shared legal definition for criminal responsibility or the insanity defense exists in the United States. As we have seen above, the states have few federally imposed restrictions concerning the definition or language employed in insanity standards, and may legislatively amend this language at any time. Though no requirement demands that a given state recognize or make available the insanity defense to a mentally ill defendant, most states do in fact offer some manner of legal protection to the accused who are severely mentally ill. For most state jurisdictions in the United States, the insanity defense is defined by what has been described as either the M’Naghten standard or the Model Penal Code standard created by the American Legal Institute (ALI) or some revised variation of the same. Recall that the M’Naghten rule consists of a cognitive component that is concerned with the defendant’s awareness of the nature and quality of his actions; it also includes a moral component that is concerned with whether or not the individual was aware that his action was wrong. The Model Penal Code, or the ALI standard, while retaining the cognitive test reflected in M’Naghten, included an emotional test that was focused on the individual’s ability to confirm his behavior to established social expectations. A list of the various state insanity defense standards is provided in Box 6.1.

BOX

6.1: The Insanity Defense Among the States

ALABAMA: The state uses the M’Naghten rule. The burden of proof is on the defendant. ALASKA: The state uses a modified version of the M’Naghten rule. The burden of proof is on the defendant. A “guilty but mentally ill” verdict is allowed. ARIZONA: The state uses a modified version of the M’Naghten rule. The burden of proof is on the defendant. A “guilty but insane” verdict is allowed. ARKANSAS: The state uses a modified version of the Model Penal Code rule. The burden of proof is on the defendant. CALIFORNIA: The state uses the M’Naghten rule. The burden of proof is on the defendant. COLORADO: The state uses a modified version of the M’Naghten rule with the Irresistible Impulse Test. The burden of proof is on the state. CONNECTICUT: The state uses a modified version of the Model Penal Code rule. The burden of proof is on the defendant. DELAWARE: The state uses a modified version of the Model Penal Code rule. The burden of proof is on the defendant. DISTRICT OF COLUMBIA: The state uses the Model Penal Code rule. The burden of proof is on the defendant. FLORIDA: The state uses the M’Naghten rule. The burden of proof is on the state. GEORGIA: The state uses a modified version of the M’Naghten rule. The burden of proof is on the defendant. A “guilty but mentally ill” verdict is allowed.

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HAWAII: The state uses the Model Penal Code rule. The burden of proof is on the defendant. IDAHO: The state has abolished the insanity defense. The state offers a “guilty but insane” verdict. ILLINOIS: The state uses a modified version of the Model Penal Code rule. The burden of proof is on the defendant. INDIANA: The state uses a modified version of the Model Penal Code rule. The burden of proof is on the defendant. IOWA: The state uses the M’Naghten rule. The burden of proof is on the defendant. KANSAS: The state has abolished the insanity defense. KENTUCKY: The state uses the Model Penal Code rule. The burden of proof is on the defendant. LOUISIANA: The state uses the M’Naghten rule. The burden of proof is on the defendant. MAINE: The state uses a modified version of the Model Penal Code rule. The burden of proof is on the defendant. MARYLAND: The state uses the Model Penal Code rule. The burden of proof is on the defendant. MASSACHUSETTS: The state uses the Model Penal Code rule. The burden of proof is on the state. MICHIGAN: The state uses the Model Penal Code rule. The burden of proof is on the state. MINNESOTA: The state uses the M’Naghten rule. The burden of proof is on the defendant. MISSISSIPPI: The state uses the M’Naghten rule. The burden of proof is on the state. An “acquittal by reason of insanity” verdict is allowed. MISSOURI: The state uses a modified version of the M’Naghten rule. The burden of proof is on the defendant. MONTANA: The state has abolished the insanity defense, although a “guilty but insane” verdict is allowed. NEBRASKA: The state uses the M’Naghten rule. The burden of proof is on the defendant. NEVADA: The state uses the M’Naghten rule. The burden of proof is on the defendant. NEW HAMPSHIRE: The state uses the Durham standard. The burden of proof is on the defendant. NEW JERSEY: The state uses the M’Naghten rule. The burden of proof is on the state. NEW MEXICO: The state uses the M’Naghten rule with the Irresistible Impulse Test. The burden of proof is on the state.

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NEW YORK: The state uses the Model Penal Code rule. The burden of proof is on the defendant. NORTH CAROLINA: The state uses the M’Naghten rule. The burden of proof is on the defendant. NORTH DAKOTA: The state uses the Model Penal Code rule. The burden of proof is on the state. OHIO: The state uses the M’Naghten rule. The burden of proof is on the defendant. OKLAHOMA: The state uses the M’Naghten rule. The burden of proof is on the state. OREGON: The state uses the Model Penal Code rule. The burden of proof is on the defendant. PENNSYLVANIA: The state uses the M’Naghten rule. The burden of proof is on the defendant. RHODE ISLAND: The state uses the Model Penal Code rule. The burden of proof is on the defendant. SOUTH CAROLINA: The state uses the M’Naghten rule. The burden of proof is on the defendant. SOUTH DAKOTA: The state uses the M’Naghten rule. The burden of proof is on the defendant. TENNESSEE: The state uses the Model Penal Code rule. The burden of proof is on the state. TEXAS: The state uses the M’Naghten rule with the Irresistible Impulse Test. The burden of proof is on the defendant. UTAH: The state has abolished the insanity defense, but “guilty but mentally ill” verdicts are allowed. VERMONT: The state uses the Model Penal Code rule. The burden of proof is on the defendant. VIRGINIA: The state uses the M’Naghten rule with the Irresistible Impulse Test. The burden of proof is on the defendant. WASHINGTON: The state uses the M’Naghten rule. The burden of proof is on the defendant. WEST VIRGINIA: The state uses the Model Penal Code rule. The burden of proof is on the state. WISCONSIN: The state uses the Model Penal Code rule. The burden of proof is on the defendant. WYOMING: The state uses the Model Penal Code rule. The burden of proof is on the defendant.

Note: Retrieved from FindLaw.com

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What follows in Box 6.2 is a grouping of the individual states concerning the specific standard used in each of these jurisdictions. BOX

6.2: Specific Standards Used M’Naghten Rule



States that use the M’Naghten rule/burden of proof on the defendant: Alabama, California, Iowa, Louisiana, Minnesota, Nebraska, Nevada, North Carolina, Ohio, Pennsylvania, South Carolina, South Dakota, Washington



States that use the M’Naghten rule/burden of proof on the state: Florida, New Jersey, Oklahoma



States that use the M’Naghten rule with Irresistible Impulse Test/burden of proof on the defendant: Texas, Virginia



State that uses the M’Naghten rule with Irresistible Impulse Test/burden of proof on the state: New Mexico



State that uses a modified version of the M’Naghten rule/burden of proof on the defendant: Missouri



States that use a modified version of the M’Naghten rule/burden of proof on the defendant and also allow a “guilty but mentally ill” verdict: Alaska, Arizona, Georgia,



State that uses a modified version of the M’Naghten rule with Irresistible Impulse Test/burden of proof on the state: Colorado



State that uses the M’Naghten rule/burden of proof on the state and allows acquittal by reason of insanity: Mississippi

Model Penal Code •

States that use the Model Penal Code rule/burden of proof on the defendant: District of Columbia, Hawaii, New York, Oregon, Rhode Island, Vermont, Wisconsin, Wyoming



States that use the Model Penal Code rule/burden of proof on the state: Michigan, North Dakota, Tennessee, West Virginia

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States that use a modified version of the Model Penal Code rule/burden of proof on the defendant: Arkansas, Connecticut, Delaware, Illinois, Indiana, Kentucky, Maine, Maryland



State that uses a modified version of the Model Penal Code rule/burden of proof on the state: Massachusetts

Durham Standard •

State that uses the Durham standard: New Hampshire

Insanity Defense Not Allowed •

State that has abolished the insanity defense: Kansas



States that have abolished the insanity defense but allow a “guilty but mentally ill” verdict: Idaho, Montana, Utah

What the above chart reveals is that 25 states use some version of the M’Naghten rule, while 21 states use some variation of the Model Penal Code rule; the chart also identifies one state that uses the Durham standard and four other states that do not allow the insanity defense at all. However, within these four general categories of the insanity defense, there exists further variation to these standards. Though 13 states use the M’Naghten rule and eight states use the Model Penal Code rule, requiring that the burden of proof be established by the defendant, another 26 jurisdictions use some modified version of these standards. These variations include the burden of proof being on the state; the allowance for an acquittal by reason of insanity, which would be introduced at the end of the trial process; the inclusion of the Irresistible Impulse Test; or a “guilty but mentally ill” verdict. In total, there are four general standards used for the insanity defense, and 15 different variations of those categories across 51 jurisdictions, with the largest number of jurisdictional variation found with those states that use some M’Naghten rule variation.

Irresistible Impulse Test Black’s Law Dictionary (Garner, 2009) defines the Irresistible Impulse Test (IIT) as a “test for insanity, holding that a person is not criminally responsible for an act if mental disease prevented that person from controlling potentially criminal conduct” (p. 906). The irresistible impulse defense was first used in the United States in the state of Massachusetts in 1844 in Commonwealth v. Abner Rogers Jr. (1844). In his instruction to the jury, the trial judge made the following distinction:

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If then it is proved, to the satisfaction of the jury, that the mind of the accused was in a diseased and unsound state, the question will be, whether the disease existed to so high a degree, that for the time being it overwhelmed reason, conscience, and judgment, and whether the prisoner . . . acted from an irresistible and incontrollable impulse: If so, then the act was not the act of a voluntary agent, but the involuntary act of the body, without the concurrence of a mind directing it. (Commonwealth v. Abner Rogers Jr., 1844)

It’s not surprising that the Irresistible Impulse Test, when used in insanity defense standards, is always applied in conjunction with M’Naghten, which is a cognitive standard. The inclusion of the IIT with the M’Naghten rule helps to expand the legal protection offered by the insanity defense, insofar as wrongfulness is not recognized as the sole criterion for the determination of criminal responsibility. The M’Naghten rule, with its exclusive focus on the wrongfulness of the act, fails to recognize those aspects of mental illness that greatly influence individual conduct. It is not at all unusual for an actively psychotic individual to formulate a clearly structured premeditated intention concerning subsequent criminal conduct. Neither is it unlikely for an actively psychotic individual to have a general understanding of wrongfulness. For example, one should not be surprised to hear that an individual planned with some detail the murder of a person believed to be an alien or witch or believed to hold some threatening power over the accused, which “justified” the murder. More importantly, however, it is essential that we also recognize that both clear premeditation and understanding of wrongfulness emerge from a highly psychotic structure, which the inclusion of the irresistible impulse is intended to address.

Guilty but Mentally Ill (GBMI) The “guilty but mentally ill” (GBMI) verdict is a much more recent legal construction and is meant to address two divergent circumstances often found when a severely mentally ill individual commits a serious criminal act: the fact of the accused’s guilt and the mitigating fact of his or her mental illness. First introduced in 1975, the GBMI verdict has been focused upon the desire to decrease the frequency of NGRI defenses in those jurisdictions that make this verdict available to juries (Fentiman, 1985; Mellvile & Naimark, 2002; Plaut, 1983; Shipley & Arrigo, 2012). Black’s Law Dictionary (Garner, 2009) defines GBMI as “a form of verdict in a criminal case whereby the jury rejects the defendant’s insanity defense but still recommends psychiatric treatment because the defendant is mentally ill” (p. 776). What this implies is that though the individual is recognized as suffering from a serious mental illness that likely contributed to the criminal offense, the individual was not insane at the time of the crime and therefore is criminally responsible (Mickenberg, 1987). It can be furthered argued that the availability of the GBMI verdict is also a direct challenge to the validity of the insanity defense, which exonerates the accused from all criminal liability once the defense has been effectively established and accepted by the legal process (Fentiman, 1985; Melville & Naimark, 2002; Shipley & Arrigo, 2012). By offering a verdict of GBMI, a jury is allowed to reject what is perhaps a legitimate NGRI defense and deliver a guilty verdict that results in incarceration rather than appropriate mental health treatment for the inflicted individual. The rationale for this verdict seems predicated upon the general public’s distrust or lack of support for the more traditional defense of NGRI. The GBMI verdict appears to satisfy both the public’s need for the accused to be punished for their crime while

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at the same time recognizing the fact of his or her mental illness. Mickenberg (1987) observed that the most obvious and important function of the GBMI verdict is to permit juries to make an unambiguous statement about factual guilt, mental condition, and moral responsibility of a defendant. Theoretically, this should allow jurors to feel more comfortable in returning NGRI verdicts in cases where the defendant committed a criminal act but fit the statutory definition of insanity. (p. 973)

However, what is often the reality of such verdicts is that the mentally ill defendant is sent to a maximum security penitentiary that is often unable to provide adequate mental health care. This is a rather troubling reality given that a central component of the GBMI verdict was to ensure that mental health services be provided (Fentiman, 1985; Melville & Naimark, 2002; Shipley & Arrigo, 2012). In fact, it has been shown that when juries are given the option between a verdict of NGRI or GBMI, not only do they decide to convict but do so without having been informed by the trial judge, the exact set of circumstances that the defendant will experience upon entering the criminal justice system (Kutys & Esterman, 2009; Melville & Naimark, 2002). Perhaps an example will help to clarify this issue. While employed for the Pennsylvania Department of Corrections, a clinician worked with an individual who had been arrested and convicted of murder and subsequently sentenced to 54 years in a maximum security penitentiary under the GBMI verdict. The defendant had suffered from paranoid schizophrenia since his late teens and claimed to hear voices that informed him that not everyone he encountered was a human being. In fact, the voices claimed that some of these individuals were aliens from another planet and presented a threat not only to him, but to the earth as well. He stated that over time these voices evolved from identifying the alleged aliens, to actually demanding that he kill one of them to provide him the needed proof that aliens were among us. His “rationale” was that once dead, the alien would morph back into its alien form and the proof would then be obvious for all to see. What was of course also obvious was that his victim was indeed human and not an alien. Once dead, the victim did not morph into the alien form he anticipated, and he soon found himself under arrest for a possible first-degree murder charge. Though the client was subsequently found GBMI and not made vulnerable to a potential capital sentence, his case certainly raises a number of serious concerns related to the adjudication of the severely mentally ill defendant. Under Pennsylvania law, a defendant who is found guilty but mentally ill may be given any sentence which may be lawfully imposed on any person convicted of the same crime. However, before imposing sentence, the court must hold a hearing and make findings concerning the defendant’s current mental condition and need for treatment. (Commonwealth of Pennsylvania v. Rabold, 2008)

The law continues by stating, The law provides that a defendant who is severely mentally disabled and in need of treatment at the time of sentencing shall consistently with available resources be furnished such treatment as is psychiatrically or psychologically indicated for his mental illness. The Mental Health

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Procedures Act in Pennsylvania dictates where and how he will be treated; for example, whether that person will be in a prison setting or in a mental treatment facility. (Commonwealth of Pennsylvania v. Rabold, 2008)

Based on the language of the Pennsylvania standard for GBMI, it is not all that unreasonable to conclude that there is virtually no protection for the mentally ill defendant who is unable to satisfy the rigid requirements for the insanity defense in that state. One is either so severely impaired that even a general understanding of wrongfulness cannot be established or slightly less impaired, thereby nullifying almost any protection from the court, and in the end treated like any other convicted inmate. The fact that such a mentally ill individual is eligible to receive some degree of psychiatric or psychological care is of little consolation or import given that any inmate is eligible for such care if the need arises. What the following example will show is that in Pennsylvania, GBMI is really nothing more than another name for guilty. Given that a general understanding of wrongfulness is easy to establish, it is difficult to see what if any actual benefit is received by those severely mentally ill defendants who are convicted on such a verdict. Perhaps the first question that comes to mind for the reader is, “Why wasn’t this individual eligible for the insanity defense?” As was discussed above, Pennsylvania uses the M’Naghten rule, and therefore the legal test for insanity is the wrongfulness of the act. It is also important to recognize that as long as the accused has some awareness of the wrongfulness of his or her actions, the context and motivation for that action seems less important, as can be witnessed in the language offered in the Commonwealth of Pennsylvania v. Bruno decision. Though the client planned to murder his victim based on the belief that he was an alien and posed a “legitimate” threat, he still had a general understanding of the wrongfulness and severity of taking a life and was not eligible to apply for a NGRI defense based on the establishment of those facts. However, this discussion raises a more complex question: Is it ethical to convict a mentally ill defendant of murder if that defendant does not believe that he or she is actually killing a human being? Is there any legal distinction to be made between knowing that it is wrong to kill a human being and killing an alleged alien who presented a threat both to the accused and the community? This is certainly the argument raised by Justice Breyer in his dissent in Delling. It seems virtually impossible to assert that the presence of severe psychotic symptoms, in this case, command hallucinations—that is, voices that command the individual to perform a certain act—have no legitimate influence on the criminal act of the individual. It is certainly true that this defendant clearly demonstrated his intent to kill and demonstrated his awareness of the act of killing. What is not at all clear is whether or not this individual would have acted as he had in the absence of his psychotic experience. Perhaps most troubling is the simple fact that if this same situation had occurred within another state jurisdiction, it is possible that a very different outcome would have resulted. Depending on the state in which the crime took place, a variety of possible outcomes can be recognized: • • • • •

Found NGRI and sent to a state psychiatric facility Found GBMI and sent to a maximum security penitentiary Guilty of murder in the first degree and sentenced to life without parole Sentenced to death for first-degree murder Sentenced to a lesser charge of homicide or manslaughter

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Though the Supreme Court could have established the constitutionally protected right for the availability of the insanity defense and perhaps even established a single standard for insanity to be applicable in all jurisdictions across the United States, it refused to do so. Rather, it chose to continue to allow the states to establish their own legal standards for insanity and in so doing continue the vulnerability of those most threatened by the criminal justice system. The GBMI verdict simply reflects one example of this continued threat.

The Adjudicated Self and Legal Insanity For the adjudicated self that is also mentally ill, the process for establishing legal insanity is fraught with a number of difficult challenges. Under the most normal legal circumstances, the adjudicated self is not an individual suffering from some type of psychological disorder that in some way influences every aspect of day-to-day existence. For the adjudicated self that is also chronically mentally ill, participation in the legal process evokes a variety of vulnerabilities that simply are not present for the “normal” defendant involved with the criminal justice system. Nowhere do these differences become more pronounced than with the issues pertaining to the concept of criminal responsibility. What is perhaps the most obvious contradiction within this relationship between the mentally ill adjudicated self and the insanity defense is the way in which the reality of mental illness is constructed and tragically minimized. Though certain jurisdictions are perhaps less guilty of this charge than others, there is little doubt that the law is fundamentally ill-suited to establish the degree to which one’s level of mental illness influenced subsequent criminal behavior, and the penitentiary system is drastically ill-equipped to provide adequate psychiatric treatment once the individual is handed over to custodial care. Add to this observation the fact that legal standards concerning criminal responsibility are more vulnerable to political whim than they are to sound clinical assessment, and it is not surprising that the current ethical quandary exists.

References American Psychological Association. (1972). United States v. Brawner. Downloaded from http://www.apa.org/about/offices/ogc/amicus/brawner.aspx June 23, 2014. Blackstone, W. (2011). The commentaries of Sir William Blackstone, knight, on the laws and constitution of England. Washington, DC: American Bar Association. Bonnie, R. J. (1983). The moral basis for the insanity defense. American Bar Association Journal, 69, 194–197. Carson, D. C., & Felthous, A. R. (2003). Introduction to this issue: Mens rea. Behavioral Sciences & the Law, 21(5), 559–562. doi:10.1002/bsl.557 Coles, E. (2000). The emperor in the courtroom: Psychology and pseudo-science. Journal of Forensic Psychiatry, 11(1), 1–6. doi:10.1080/095851800362300 Cormier, J. W. (2010). Providing those with mental illness full and fair treatment: Legislative considerations in the post-Clark era. American Criminal Law Review, 47, 129–157. Costanzo, M., & Krauss, D. (2012). Forensic and legal psychology: Psychological science applied to law. New York, NY: BFW/Worth Publishers. Deutsch, A. (2007). The mentally ill in America: A history of their care and treatment from colonial times (3rd ed.). New York, NY: Columbia University Press.

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Don, B., & Mickelson, K. D. (2012). Paternal postpartum depression: The role of maternal postpartum depression, spousal support, and relationship satisfaction. Couple and Family Psychology: Research and Practice, 1(4), 323–334. doi:10.1037/a0029148 Doucet, S., Jones, I., Letourneau, N., Dennis, C., & Blackmore, E. (2011). Interventions for the prevention and treatment of postpartum psychosis: A systematic review. Archives of Women’s Mental Health, 14(2), 89–98. doi:10.1007/s00737–010–0199–6 Faust, D. (2008). Use and then prove, or prove and then use? Some thoughts on the ethics of mental health professionals’ courtroom involvement. In D. N. Bersoff (Ed.), Ethical conflicts in psychology (4th ed., p. 455). Washington, DC: American Psychological Association. Felthous, A. R. (2007). Introduction to this issue: Free will. Behavioral Sciences & The Law, 25(2), 163–164. doi:10.1002/bsl.755 Fentiman, L. (1985). “Guilty but mentally ill”: The real verdict is guilty. Boston College Law Review, 26, 601–653. Finkel, N. J., & Slobogin, C. (1995). Insanity, justification, and culpability toward a unifying schema. Law and Human Behavior, 19(5), 447–464. doi:hh10.1007/BF01499337 Frederick, R., Mrad, D., & DeMier, R. (2007). Examinations of criminal responsibility: Foundations in mental health case law. Sarasota, FL: Professional Resource Press. Garner, B. A. (2009). Black’s law dictionary, standard (9th ed.). St. Paul, MN: WEST. Gilles-Phillips, J. K., & Woodman, R. E. (2008). The insanity of the mens rea model: Due process and the abolition of the insanity defense. Pace Law Review, 28(3), 455–494. Grachek, J. E. (2006). The insanity defense in the twenty-first century: How recent United States Supreme Court case law can improve the system. Indiana Journal of Law, 81, 1479–1501. Grisso, T. (2003). Evaluating competencies: Forensic assessments and instruments (2nd ed.). New York, NY: Kluwer Academic/Plenum Publishers. Hartwig, T., & Guyer, M. (2013). Claim of ineffective assistance of counsel: Failure to raise competenceto-stand-trial, insanity, and diminished capacity defenses. Journal of the American Academy of Psychiatry and the Law, 41(4), 595–597. Insanity Defense Reform Act of 1984. Downloaded from http://www.justice.gov/usao/eousa/foia_ reading_room/usam/title9/crm00634.htm July 8, 2014. Kammerer, M., Marks, M. N., Pinard, C., Taylor, A., von Castelberg, B., Künzli, H., & Glover, V. (2009). Symptoms associated with the DSM IV diagnosis of depression in pregnancy and post partum. Archives of Women’s Mental Health, 12(3), 135–141. doi:10.1007/s00737–009–0062–9 Kutys, J., & Esterman, J. (2009). Guilty but mentally ill (GBMI) vs not guilty by reason of insanity: An annotated bibliography. The Jury Expert, 21, 28–37. Legal Information Institute 18 U.S. Code § 17 – Insanity Defense downloaded from http://www.law. cornell.edu/uscode/text/18/17 June 23, 2014. Medwed, D. (2004). The zeal deal: Prosecutorial resistance to post-conviction claims of innocence. Boston University Law Review, 84, 125–184. Melville, J. D., & Naimark, D. (2002). Punishing the insane: The verdict of guilty but mentally ill. Journal of the American Academy of Psychiatry and Law, 30, 553–555. Mickenberg, I. (1987). A pleasant surprise: The guilty but mentally ill verdict has both succeeded in its own right and successfully preserved the traditional role of the insanity defense. University of Cincinnati Law Review, 55, 943–997. Misri, S. (2007). Suffering in silence: The burden of perinatal depression. The Canadian Journal of Psychiatry/La Revue Canadienne De Psychiatrie, 52(8), 477–478. Morse, S. (2011). Mental disorder and criminal law. The Journal of Criminal Law and Criminology, 101, 885–968. Morse, S., & Hoffman, M. (2008). The uneasy entente between legal insanity and mens rea: Beyond Clark v. Arizona. The Journal of Criminal Law & Criminology, 97, 1071–1149.

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Morse, S., & Bonnie, R. J. (2013). Abolition of the insanity defense violates due process. The Journal of the American Academy of Psychiatry and the Law, 41(4), 488–495. Ostfeld, G. (Summer, 1997). Speedy justice and timeless delays: The validity of open-ended ‘ends-ofjustice’ continuances under the Speedy Trial Act. University of Chicago Law Review, 64, 1037. Perlin, M. L. (1977). The legal status of the psychologist in the courtroom. Journal of Psychiatry & Law, 5(1), 41–54. Perlin, M. L. (2009). His brain has been mismanaged with great skill: How will jurors respond to neuroimaging testimony in insanity defense cases? Akron Law Review, 42(2), 885–925. Perlin, M. L. (2013). Mental disability and the death penalty: The same of the states. Lanham, MD: Rowman & Littlefield Publishers. Perlin, M., & Dlugacz, H. (2007). Mental health issues in jails and prisons: Cases and materials. Durham, NC: Carolina Academic Press. Plaut, V. (1983). Punishment versus treatment of the guilty but mentally ill. Journal of Criminal Law & Criminology, 74, 428–456. Robinson, D. (1995). An intellectual history of psychology (3rd ed.). Madison, WI: The University of Wisconsin Press. Robinson, D. (1996). Wild beasts & idle humours: The insanity defense from antiquity to the present. Cambridge, MA: Harvard University Press. Rolf, C. (2006). From M’Naghten to Yates: Transformation of the insanity defense in the United States— is it still viable? Rivier College Online Academic Journal, 2(1), 1–18. Serhan, N., Ege, E., Ayrancı, U., & Kosgeroglu, N. (2013). Prevalence of postpartum depression in mothers and fathers and its correlates. Journal of Clinical Nursing, 22(1–2), 279–284. doi:10.1111/j.1365–2702.2012.04281.x Shipley, S. L., & Arrigo, B. A. (2012). Introduction to forensic psychology: Court, law enforcement, and correctional practices (3rd ed.). Boston, MA: Academic Press. Tillim, S. J. (1951). Mental disorder and criminal responsibility. Journal of Criminal Law & Criminology, 41(5), 600–608. Walker, L. E. A., & Shapiro, D. L. (2003). Introduction to forensic psychology: Clinical and social psychological perspectives. New York, NY: Kluwer Academic/Plenum Publishers. Ward, D. (1962). The M’Naghten rule: A re-evaluation. Marquette Law Review, 45(4), 506–510. Warren, J. I., Rosenfeld, B., & Fitch, W. (1994). Beyond competence and sanity: The influence of pretrial evaluation on case disposition. Bulletin of the American Academy of Psychiatry & the Law, 22(3), 379–388. Westen, P. (2006). The Supreme Court’s bout with insanity: Clark v. Arizona. Ohio State Journal of Criminal Law, 4, 143–165. Wortzel, H. S. (2006). The abridged M’Naghten standard and the consideration of mental-disorder evidence in relation to mens rea. Journal of the American Academy of Psychiatry and the Law, 34(3), 425–427. Wright, R. G. (2014). Pulling on the thread of the insanity defense. Villanova Law Review, 59, 221–241. Wrightsman, L. S., & Fulero, S. M. (2008). Forensic psychology (3rd ed.). Belmont, CA: Wadsworth.

Court Cases Clark v. Arizona, 548 U.S. 735 (2006) Commonwealth vs. Abner Rogers Jr., 7 Met. 500, 48 Mass. 500–504 (1844) Commonwealth of Pennsylvania v. Bruno, 407 A.2d 413 (PA Super. Ct. 1979) Commonwealth of Pennsylvania v. Rabold, (2008) Delling v. Idaho, 568 U.S.___ (2012) Durham v. United States, 214 F.2d 862 (D.C. Cir. 1954)

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Hall v. Florida, 134 U.S. 471 (2013) Kansas v. Cheever, 134 S.Ct. 596 (2013) Leland v. Oregon, 343 U.S. 790 (1952) Powell v. Texas, 392 U.S. 514 (1968) State of Idaho v. Delling, 267 P.3d 709 (2011) United States v. Brawner, 471 F.2d 969 (D.C. Cir. 1972) Yates, Andrea Pia v. The State of Texas—Appeal from 230th District Court of Harris County, NOS. 01–02–00462-CR (2005)

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7

Coerced Treatment, Medication, and Mental Health Courts Vignette Working as a psychologist, I stood in the medical wing of the services building in the maximum security prison where I worked. My supervisor, a nun who obtained permission to go to graduate school and obtain her clinical psychologist’s license, pulled me into her office with a look of grave concern on her face. She shared that the custody officers in one of the wings of supermax felt at a loss about how to handle the erratic and unpredictable behavior of one of her patients. A chronic paranoid schizophrenic, this patient had a reputation for occasionally becoming violent due to the intensity of his delusions and hallucinations. Although the violence was undirected (the patient rarely attacked another person as he flailed incoherently), officers still feared for their safety as well as the safety of the patient. The day before, they had found him screaming, punching, and head-butting the walls in his cell so hard that he split the skin of his hands and forehead, leaving large bloody smears across the walls and ceiling of his cell. Terrified of him, the officers ordered him to “cuff up” (a process where they prisoner stands with his back to the cell door with his hands extended through the tray slot so the officers can cuff him). The patient, however, seemingly distracted by internal stimuli (meaning he could not hear them or understand them over the screaming voices in his head), did not comply. Desperate, the officers called the extraction team, a team trained to wear body armor, carry shields, grapple with, and subdue non-compliant offenders while removing them from their cell. The extraction team also called medical, given that this offender was a long-time patient of psychiatric services. The extraction team arrived with the psychiatrist and did their job with quick and professional efficiency. Half-carrying the screaming and shackled patient, they brought him to an examination room and secured him in “four points”—that is strapped or shackled face up, arms and legs spread, and bound by his ankles and wrists. Once the patient was physically secured in the restraints, the psychiatrist sedated him with potent anti-psychotic medication to treat his

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intense schizophrenic symptoms and to lessen his dangerousness. When my supervisor learned of this, she immediately approached the psychiatrist and reminded him that this same patient had a history of adverse reactions to anti-psychotic medication. The psychiatrist assured her that the officers kept a close watch on the patient, and that any signs of a toxic reaction would be reported. My supervisor, however, knew that human nature is what it is, and men paid just above minimum wage to sit and watch a man strapped to a table for hours on end will grow distracted and will look for other things to occupy their mind. When she went personally to check on her patient she was rebuffed, the officers giving the excuse that it was “too dangerous” despite her protests that it could not be a dangerous situation, given that the prisoner was strapped to a table. Given that I’m male, she thought the officers might let me see the prisoner. I arrived just after shift change, and the officers now in charge of watching the patient simply let me in without worry or complaint after our friendly greetings. I noted with worry that the officers stood outside the room, unable to directly see the patient. Walking in, I found an African-American man, ashen-gray, slender and bony, staring incoherently at the wall to his right, drool dribbling from the corner of his mouth, strapped to a cold, hard examining table, shivering. Livid bruises stood out around his bandages where the nurses had treated his injuries, but he lay nearly naked except for stained yellow boxers, a puddle of yellow-brown urine forming underneath him. I called him by name, to no avail. Breaking protocol, I gently touched his shoulder, and his eyes slowly swiveled toward me focusing briefly as he let out a deep sob, and whispered the words “so cold” under his breath before his eyes glazed over once more. Stepping out to call a nurse, I asked the officers why the man was lying on a cold table uncovered; they responded professionally citing policy, procedure, and protocol required when an inmate behaves erratically, as this man had. The nurse and I cleaned the man up, but policy prohibited us from fully unstrapping him (two limbs must remain strapped down at all times until the psychiatrist releases the inmate from watch). She brought two blankets with her, one to warm him from the cold table, and the other to cover him to warm him from the cold air. Remaining insensate due to the sedative effects of the potent anti-psychotic injections, the man raised no struggle and we left him wrapped in warm blankets the best we could while he lay in four points, glazed eyes, staring at the in-between places, lost in the fog of medication. Leaving, I reported back to my supervisor that the patient showed no symptoms of a toxic reaction to the medication, but began tearing up when discussing his current condition and our complicit role in his suffering.

Sometimes we hear stories of a complex and troubling nature. We encounter people who have engaged in troubling and criminal behavior, but sometimes the behavior makes sense in the context of their lives and within their own life histories. As frequently proves the case, many prisoners are no more or less inherently criminal than individuals on the outside, when their stories are considered in full. The man discussed above, raised in a severely impoverished and

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broken family, showed symptoms of schizophrenia beginning at a young age and started running away from home impulsively and erratically to the point that the state took custody of him; he ran away from the foster care system as well. Lacking adequate supervision or treatment for him, the judges in his case, starting in his teens, would try to get him the maximum sentence they could for his odd and minor crimes. For example, after living homeless, cold, and hungry for a time, he walked into a small grocery store and started eating the food right in the store in full view of the clerks. For this he received five years, because there was nowhere else for him to go. His most recent crime, years earlier, was wrenching a purse away from an elderly woman in a park, injuring her shoulder. When the officers came to arrest him, he hallucinated that they were devils and fought with them to the best of his ability. He was arrested, sentenced for robbery, assault on the woman, and assault on several officers, all of which resulted in a lengthy sentence. Once in prison, each psychotic break that required officers to physically intervene resulted in more criminal charges and additional time on his sentence. Although a relatively young man, he will die in prison from the accumulated years of his sentence. The efforts in prison—from the psychotherapeutic staff, to medical, to corrections—all work to keep inmates docile bodies, harmless to the overall system (Polizzi, Draper, & Andersen, 2013). Note that the treatments serve the needs of the system, not the needs of the patients. If the needs of the system contradict the needs of the patient, the needs of the system always win out. For many psychologists, this process of incarceration begs a series of questions, such as “Why do we see so many mentally ill men and women in prisons?” and “Is prison the best place to house our mentally ill?”

Mental Illness and the Corrections System Currently, the penitentiary system is the largest mental health service provider in the country, a trend that has grown significantly through the years. Torrey (1995) documented this trend by surveying the state of the mentally ill in the correctional system, and 15 years later noted that not only had the trend continued but had significantly increased (Torrey, Kennard, Eslinger, Lamb, & Pavle, 2010). By way of example they found that most states had more mentally ill people in jail than in treatment centers or hospitals. Some states, like Arizona and Nevada, have almost 10 times more mentally ill individuals in jails and prisons than in hospitals, but almost all states have rather high incarceration rates of the mentally ill (except for North Dakota, where the ratio of mentally ill between hospitals and prisons is 1:1). The authors found that this trend is increasing, pointing out that the percentage of severely mentally ill individuals in jails and prisons increased by nearly 300 percent from 1983 to 2010. By the time Torrey and his colleagues completed their survey, they found that 40 percent of people with serious mental illness had histories of incarceration. Whether in corrections or in mental health treatment centers, an issue psychologists find pressing is the question of the number of “beds” a facility has available for the mentally ill. “Beds,” in this case, literally represents the number of beds a facility has for housing or treating the mentally ill in a long-term fashion. However, it also represents statistically the overall availability of a given system to treat the mentally ill. Torrey and his colleagues found that the number of beds available (as a representation of a community’s availability to treat the mentally ill) plummeted significantly over five decades. In 1955, communities had available

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one bed per 300 citizens, but by 2005 communities only had one bed for every 3,000 citizens, a tenfold decrease (Torrey et al., 2010). Practically speaking, psychologists see the effect of this decrease every day. When family members call to find treatment for a loved one who behaves in an increasingly erratic and bizarre manner, psychologists do what they can in an outpatient setting—that is, the patient stays out of the treatment center, sleeping in his own bed at night. Regularly, however, psychologists find that some patients require 24-hour supervision and treatment due to the severity of their illness in an inpatient setting, in which the patient lives in the treatment facility. Unfortunately, in most communities, there simply are not any beds available in treatment centers, leaving the ill person without adequate (or any) treatment. As his condition worsens and his behavior becomes more and more erratic, the chances of someone having to call the police greatly increase. Following police involvement, the jail system provides what little treatment it can, but the “patient” becomes a criminal in the eyes of the state, one to be controlled and redirected, rather than an actual patient in need of caring treatment. Imagine the difficulty such a person faces. In the throes of severe mental illness, like schizophrenia, the sense of self can become quite troubled due to brain deterioration and the consequent delusions (believing things that are demonstrably false) and hallucinations (hearing or seeing things that aren’t there). Due to erratic behavior and the lack of treatment available, he ends up in the legal system. Once there, he becomes both a fragmented and adjudicated self, and once society takes him up as such, it greatly limits his relationships and possibilities in our society. This may, in turn, perpetuate his psychological suffering.

History of the Problem Looking at the trends over the past 200 years, we note an interesting trend. Until the 1840s in the United States, the state housed the mentally ill in jails and prisons. A reform movement started at that time led by Dorothea Dix who felt appalled at the treatment of the mentally ill in the correctional system. She appealed to Congress for land and money to treat the acutely or chronically mentally ill, and her appeal seemed successful. Congress passed the legislation, but then-president Franklin Pierce vetoed it. Although Dix made an undeniable and significant contribution to the humane treatment of the mentally ill, the U.S. federal government did not become significantly involved in the support or treatment of its mentally ill citizens until after World War II. This practice peaked early, with President John F. Kennedy passing legislation to facilitate a community mental health care system. This legislation charged each state to develop mental health service plans and to divide into districts, or catchment areas, and to determine not only what the common illnesses were in each area but also to then develop treatment systems tailored to each area (Bloom, 2010). Although the plan was compassionate and well intended in design, the implementation partly failed. As states created these centers, the centers quickly became overwhelmed, and states found that the limited funding for implementation inhibited their ability to meet the demand (Mechanic & Rochefort, 1990). This fragile system fell apart at the federal level starting in the Carter administration of the late 1970s because of the deinstitutionalization movement. The deinstitutionalization movement came about due to the invention and widespread use of anti-psychotic medication (medication that treats the delusions, hallucinations, and erratic behavior of schizophrenia) coupled with the creation of SSI (or supplemental social security income), as well as national

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ambivalence about where to treat the mentally ill (Mechanic & Rochefort, 1990). Because these anti-psychotic medications seemed to pacify the mentally ill, the overwhelmed and underfunded treatment centers began giving this medication to the patients and then releasing them back to their communities (which often inadvertently led to a life on the streets and homelessness). The tragedy of the deinstitutionalization movement is that it perpetuated our social construction of the medicated individual as somehow “treated” even though the medication merely treated a few of the symptoms and not the disease. In essence, just because somebody’s behavior is less erratic does not mean that person has the capacity to care for himself, and with no community-based mental health care systems in place, the “treat then street”1 dynamic began in earnest during the Reagan administration. Too often, these patients are released from the hospital with nowhere to go, resulting in homelessness. This dynamic started early in the Regan administration, when researchers began commenting on this unfortunate process because the federal government (and subsequently state governments) cut all funding from the Kennedy mental health plan and provided nothing in its place (Braun et al., 1981). Interested social scientists, for example, conducted an experiment regarding the outcome of those released from institutions and found that “satisfactory deinstitutionalization appears to depend on the availability of appropriate programs for care in the community” (Braun et al., 1981, p. 736). However, with the decline of community mental health programs due to the lack of funding, increasing numbers of patients found themselves on the streets with no continued care. Note that Braun et al. did their research in the late 1970s and very early 1980s (publishing in 1981); despite their findings and observations among mental health professionals nationwide, the deinstitutionalization movement proceeded in earnest. Those working in the jails and prisons see the effect of this every day. For example, a 75year-old mentally ill man named Robert Taylor died in custody in Burlington, New Jersey. Staff in the Burlington County Jail noted that Taylor, a longtime alcoholic, showed symptoms of severe alcohol detoxification. The withdrawal symptoms from alcohol are potentially deadly (Brown, Anton, Malcolm, & Ballenger, 1988), so those working in corrections need to watch inmates suffering from alcohol withdrawal quite closely. Because Taylor suffered withdrawal symptoms and the jail lacked the staff to transport him to the hospital, they placed him in solitary confinement for five days with no food or shower during that time. After they found Taylor dead in his cell, another inmate, Sean Turzanski, described the neglect he witnessed after attempting repeatedly to encourage the officers to attend to Taylor, who seemed very ill for days. Turzanski told reporters of the culture of the jail: “It’s amazing how you can go through this life being homeless and no one cares,” Turzanski said. “When you enter jail as a murderer or a drug dealer, you get double food trays a day, and the guards take care of you. You’re one of their homeboys from the street, and you’re given better treatment. The mentally ill, though, are forgotten.” (Ray, 2014, para. 39)

Sanism Issues like the one discussed in the news article above are perpetuated by a commonly held bias. Many of us have heard of, or even experienced, racism—the belief that one racial group has less-than-desirable characteristics or is somehow inferior to another. However, another bias that pervades law enforcement, jurisprudence, and corrections systems is a bias called sanism. Perlin and Dlugacz (2007) offered the term sanism to describe the underlying bias in many

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professionals throughout these systems that the mentally ill are less capable of defending themselves, are less capable of speaking accurately of their experiences, and don’t report facts consistently enough to help their cases. Perlin and Dlugacz called this phenomenon sanism because the sane (the cognitively rational) are assumed to be superior to the insane (the cognitively irrational). Therefore, they are often dictated to rather than listened to. To a degree, sanism is understandable. When a member of law enforcement or the legal profession is stressed and in a rush, listening to the incoherent ramblings of a homeless schizophrenic seems a waste of time. The effect this has, however, is pernicious, whether deliberate or not. Effectively, by ignoring or not rigorously seeing to the rights of the mentally ill, these professionals make sure the mentally ill population is not treated equally under the law. In essence, the mentally healthy in the system have more rights than the mentally ill do, whose rights are ignored. This sets up a tiered system where the mentally ill are more likely to be convicted and more likely to serve maximum sentences compared to the mentally healthy (Whitaker, 2010). Increasing the punitive nature of the correctional system increases the stresses on the mentally ill within the system. Such stresses may increase the severity of their illness (Haney, 2001), which in turn may increase their contact with law enforcement, and potentially result in arrest and conviction, repeating the cycle. For example, we (the authors) have worked in supermaximum penitentiaries as clinical psychologists; over and over again we have met with patients whose initial offense was non-violent, but due to their mental illness and the erratic behavior associated with their illness, coupled with the stress of incarceration, which exacerbated their symptoms, they often found themselves placed in solitary confinement (sometimes referred to as “the hole”) for administrative reasons. Sometimes clothed in only a hospital gown, they were left in solitary confinement—a 6’ by 9’ concrete cell with dim fluorescent light, a metal bench with a thin mattress on it for a bed, and nothing to do but pace all day every day. The stress of isolation and lack of stimuli often severely exacerbated their illness, sometimes permanently. We had a saying in one of the prisons where we worked: “The hole either finds you insane or leaves you that way.” We would like to believe that only “bad guys”— those people who are dangerous, have hurt others, and thus deserve to suffer—are the ones in solitary confinement. However, the reality proves somewhat different. Solitary confinement does house some violent offenders, but also some are those whose very lives, very minds are torturous prisons already, the severely mentally ill.

Pretextuality When following cases involving the mentally ill, we regularly find that those employed by the system follow the system in a rote or inauthentic manner. When it comes to certain accused, these professionals go through the motions already knowing in advance what the outcome will be—sometimes given the nature of the crime, but other times due to the mentally ill status of the accused. Because they know that the accused will be convicted, much of what proceeds from arrest to incarceration seems a show rather than an actual trial. In essence, the arrest and trial of the accused is merely a pretext for his inevitable incarceration. Perlin and Dlugacz (2007) described this as pretextuality, and how it originally occurred in certain drug trials when the prosecution and the defense believed that the testifying officers were lying, but given the low status of the accused, they skipped rigorous cross-examination to save time and effort, certain the accused would be convicted anyway. Due in part to the sanism described above, what started with drug cases we now see in the arrest and conviction of the severely mentally

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ill, especially when they have had multiple contacts with law enforcement and the courts (Perlin & Dlugacz, 2007). Because the prosecution and defense are often overtaxed, and given mentally ill clients’ inability to defend themselves or advocate for their own needs, the sanist legal process remains a pretext for conviction and incarceration.

Relevant Legal Cases Given the problem of the increase of the mentally ill in prison, we find that the courts have ruled on various aspects of this problem, particularly regarding the rights of the mentally ill in the legal process and proceedings. These cases directly involve prisoners’ rights to treatment, as well as their rights not to be treated for the mental illness. Estelle v. Gamble, 429 U.S. 97 (1976) established the link between health care and the Eighth Amendment, which protects against cruel and unusual punishment. For psychiatrists (physicians who also provide mental health services) this link between health care and the Eighth Amendment also linked mental health care (because it is seen as a medical issue to many physicians). In this particular case, Gamble was an inmate who, while doing hard labor in prison, injured his back. Gamble claimed that doctors in the system failed to provide adequate health care. While the Court found that depriving inmates of health care does violate the Eighth Amendment, it ruled that Gamble’s claims were unfounded because they concerned a failure to X-ray or perform other diagnostic tests on his back (Perlin & Dlugacz, 2007). Although some see the Gamble case as linking mental health care and the Eighth Amendment, not all courts viewed the case that way. This medical treatment issue came up again in the courts in the case of Bowring v. Godwin (1977). In this case, Bowring (who struggled with mental illness) was denied parole on the grounds that due to his mental illness, he would not be able to successfully complete the amount of time specified in the parole (Klein, 1978). Bowring filed a pro se, arguing that if the state denied him parole due to illness, the state should be required to provide a diagnosis and mental health care. Failing to do so, Bowring argued, was a violation of due process and a cruel and unusual punishment. It was a violation of due process because the state denied him parole not consequent to his criminal behavior, but due to an illness. It was cruel and unusual because he suffered from his illness in prison without respite or treatment that he could have received outside of prison. Initially, the District Court for the Western District of Virginia dismissed the case, arguing that prisoners do not have a right to treatment. Bowring appealed, and the case came before the Fourth District court. The court ruled that an inmate is entitled to treatment if (based on a thorough assessment by a medical professional) the inmate has a “serious” injury or disease, that the symptoms of the disease are curable or the symptoms could be ameliorated, and that not providing treatment would cause the inmate further harm. The courts established (in Estelle and Bowring) that mentally ill inmates could reasonably expect a certain standard of care relative to their diagnoses. As the percentage of mentally ill individuals in the prison system continues to grow, so too will the pressure on the medical staff to provide care, and the costs of incarceration would logically increase as well. Whereas Estelle established the link between mental health treatment and the Eighth Amendment, it did not clarify what sorts of treatment should be made available and under what circumstances they should be applied. This was clarified in Washington v. Harper, 494 U.S. 210 (1990). Harper was an inmate with a history of violently acting out against fellow inmates and staff. When he became violent, the psychiatrists would administer anti-psychotic medications to subdue and sedate him. Harper filed suit in the state court of Washington under

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42 U.S. Code §1983 arguing that the forced, involuntary medication violated his Fourteenth Amendment right to due process (that the forcible administration should have required a judicial hearing first). The trial court of the state rejected this claim, and the case ended up in the state supreme court. The court reversed and remanded and stated that if the state proved that it had “clear, cogent, and convincing” evidence that the medication facilitated the state’s interest in the case, then it could forcibly use such a procedure (Melton, 1997). In an effort to provide guidance to the court, the American Psychological Association (APA) filed an amicus brief stating: (1) due process requires that a prisoner receive an impartial hearing before he can be forced to take psychotropic medication because medication may have severe side effects and indiscriminate and incorrect use of these medications exacerbate these side effects; (2) forcible administration and significant changes in conditions of confinement implicate basic liberty interests and prisoners usually have a right to refuse invasive and dangerous therapies; and (3) abridgment of this constitutional right requires due process (i.e., constitutional rights of prisoners may be limited only as required for correctional operations and involuntary administration of antipsychotic drugs is proper only if an unbiased decision maker concludes that the prisoner is dangerous or incompetent and that alternative treatments have failed). (APA, 1990)

The case of Gamble linked mental illness to the right to treatment, and the case of Harper entailed the issue of coerced treatment. This next case involved the issue of forcible or coerced medication during pre-trial and other trial phases. For example, in Riggins v. Nevada, 504 U.S. 127 (1992), the question of the legality of medication during these phases came before the Court. Riggins was an inmate in Nevada who was convicted of murder and robbery. After his initial arrest for the crime, he informed the physicians in the jail that he had been prescribed the anti-psychotic drug Mellaril in the past. Riggins reported hearing voices and suffering from insomnia after his arrest, so the psychiatrist employed by the jail kept working to find a combination of medications that would work for him. By the time he went to trial he was on a high dose of Mellaril and was also taking Dilantin. Following proceedings in which Riggins was found competent to stand trial, the defense petitioned the court for an order suspending the administration of his medication. The defense explained that Riggins intended to raise a “not guilty by reason of insanity” defense and that the administration of the medications allowed the jury to perceive him as sane or as higher-functioning than he was at the time of the crime when he was unmedicated. Specifically, he argued that he had a right to “show jurors his ‘true mental state’” (Riggins v. Nevada, 1992). However, the court denied Riggins’ motion. True to his word, Riggins testified on his own behalf during the trial presenting that he delusively believed that the victim was going to kill him. “Riggins admitted fighting with Wade, but claimed that Wade was trying to kill him and that voices in his head said that killing Wade would be justifiable homicide” (Riggins v. Nevada). Therefore (due to the influence of the auditory hallucinations) Riggins believed that the homicide was actually justified (or seemed that way in his mentally ill stage, hence his attempt to plead “not guilty by reason of insanity”). The jury, however, convicted him of murder and robbery, and during the penalty phase, sentenced him to death. Riggins appealed and the case made it to the Nevada Supreme Court, reasoning that because he had been forced medication he could not show himself effectively or accurately as insane. The Nevada Supreme Court affirmed his conviction and sentence, which prompted Riggins to appeal to the United States Supreme Court. The U.S. Supreme

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Court responded that the state should have provided a less-restrictive alternative, or failing that, should have established the valid need for the anti-psychotic drug at such a dose (Riggins’ dose was considered extremely high). So, according to the Court’s ruling, the state can use drugs to facilitate competency, but must also follow the guideline that the drug cannot overly interfere with the defendant’s functioning, nor exceed the medically approved dose. Therefore, once Riggins requested termination of the medication, the state was obligated to establish both the medical appropriateness of the anti-psychotic drug to provide for Riggins’ safety and that of others. If the state had done this, due process would have been satisfied. The state might have been able to justify the treatment, if medically appropriate, if it set forth that the adjudication of guilt or innocence could not be established by using less-intrusive means than medication if possible. As the Riggins ruling states, “Under Harper, forcing antipsychotic drugs on a convicted prisoner is impermissible absent a finding of overriding justification and a determination of medical appropriateness. The Fourteenth Amendment affords at least as much protection to persons the State detains for trial . . . Thus, once Riggins moved to terminate administration of antipsychotic medication, the State became obligated to establish the need for Mellaril and the medical appropriateness of the drug” (Riggins v. Nevada, 504 U.S. 127, 1992). Sell v. United States, 539 U.S. 166 (2003) builds on the previous two cases. In this particular case, the defendant was charged with Medicaid fraud, money laundering, and attempted murder. Despite having been found competent to stand trial, Sell’s condition worsened causing the court to place him in a medical detention facility to determine if competency could be restored. The jail’s physician had prescribed Sell anti-psychotic medication to maintain safety and restore his competence, and upon arrival to the hospital the staff continued to forcibly medicate Sell, against his consent. Sell appealed to the federal district court, which ruled that the medication was necessary to maintain Sell’s competence. This established a precedent for the involuntary medication of prisoners, but only under very specific criteria. Leong (2005) outlined the “Sell Criteria” or the criteria prisons and jails should follow regarding involuntarily medicating inmates (p. 292): 1. 2.

3. 4.

Did the defendant commit a serious crime? Is there a substantial likelihood that involuntary medication will restore the defendant’s competence and do so without causing side effects that will significantly interfere with the defendant’s ability to assist counsel? Is involuntary medication the least intrusive treatment for restoration of competence? Is the proposed treatment medically appropriate?

The American Psychological Association (2003a; 2003b) filed an amicus brief with the courts on behalf of the field of psychology (because psychologists are employed to assess competence). APA emphasized that non-drug interventions should be considered in order to restore competence for those standing trial. The APA also agreed with the court’s position, that the use of drugs alone to reestablish competence should be rare (APA, 2003a, 2003b). The reasoning behind this amicus brief entails the ethic that anytime an intervention or treatment is required (regardless of setting) that the least intrusive treatment be considered first. This seems particularly important to those working with the mentally ill in the courts and correctional system because anti-psychotic medications, commonly given to those who

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are not competent, have severe side effects, some of which are unpleasant (like motor and cognitive inhibition, or even long-term cognitive damage with some medications) (Owens, 2014). However, sometimes (especially in less severe cases) talk therapy may be able to restore competence without the danger of the side effects of the medication.

The Adjudicated and Mentally Ill Offender As we discussed earlier, the legal process constructs an adjudicative self, or the self that may be convicted and incarcerated, and constructed as “convict” or “offender.” If oneself becomes so constructed, identity changes both personally and relationally. People committing or convicted of a crime understand themselves differently, and their society understands them differently. For example many patients have told us through the years that those of us on the “outside” (those of us who have never experienced prison life) cannot understand the unwritten rules of prison life or of being a prisoner. In addition, our society reacts quite differently to those who have been convicted of crime. Job application forms contain questions regarding convictions, and our society even revokes the right to vote for citizens convicted of felonies because they are constructed as fundamentally different from the non-adjudicative selves of the rest of society who maintain their voting rights. The construction, in the case of the mentally ill, becomes more challenging. Do we, as a society through the court system, construct them as “offender” or as “sick”? If they are an “offender,” then the full weight of the law can be brought to bear against them, but without taking into consideration the effect of their mental illness on their behavior. If we construct them as “sick,” then we can bring to bear the treatments available for their condition, but that doesn’t necessarily take into consideration their role in committing a crime. Determining if the accused is either “offender” or “sick” dictates the nature and process of the construction from that point forward. The outcome of the Sell case offers guidelines to the courts to determine if the accused is an offender or sick. If someone has committed a crime, for example, and medication will help restore competency, then the court can proceed with a criminal trial and if the accused is found guilty, he or she is identified in the correction system and by society as “offender.” If, however, the treatments do not restore competency, then the accused is found not guilty and is determined by the court (and by society) to be “sick” and then given treatment (even if this treatment occurs in a correctional setting, he or she is “mentally ill”). What arises from these court cases and rulings is an interesting tension. On one hand, inmates have the right to health care, and are, in fact, the only people in the United States who have a legal right to health care (Perlin & Dlugacz, 2007). On the other hand, however, that same health care can be wielded like a weapon of the state to control an inmate’s behavior. This phenomenon is called coerced treatment (Geller, 1986; Melton, 1997). Coerced treatment occurs because of a sometimes puzzling dichotomy in prison therapy. Whereas if a non-inmate goes to the doctor or to a therapist, it is only the best interest of that individual patient that concerns the health-care professional, in the case of prison medicine and therapy, however, it is not only the needs of the individual patient that concerns the health-care professional, but the demands and safety of the state as well. As we see in Harper and Riggins above, the courts have ruled that the interests of the state can forcibly apply medical treatment to an individual in the corrections system when he is dangerous to himself or others and when the treatment is in his best interest. Because of this, the state can force treatment on an inmate who does

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not want treatment if the interests of the state dictate that the inmate should have treatment. Therefore, if someone becomes a prison therapist or physician, that individual is practicing his or her craft following two simultaneous (and sometimes conflicting) goals. One goal is to meet the needs of the patient; two, to meet to the needs of the state. When the needs of the state exceed the needs of the individual patient, then the needs of the state are met with the goal of doing as little damage as possible to the patient. Basically, a treatment professional is put in the difficult position of seeing to the needs of the state first, anytime the wishes of the state may conflict with the individual needs of the patient. That poses a challenge to provider–patient rapport, because many patients in prison learn quickly that the treatment provider is an agent of the state first, and sees to their needs secondarily.

Mental Health Courts Due to the influx of mentally ill citizens into the corrections system, the states began to try to find alternative programs as well as to develop designated courts that could take the special issues of the mentally ill into consideration. Similar to drug courts, these “mental health courts” (or MHCs) are an attempt within certain jurisdictions for the courts to deal with a primary contributor for some people’s involvement with the court system, namely their mental illness. By dealing directly with the mental illness, these courts attempt to lessen the contact of these accused by lessening the symptoms that may lead them to commit crime (like drug abuse to manage the symptoms of a mental illness) (Goldkamp & Irons-Guynn, 2000). The case of Dusky v. United States (1960) set the precedent for the treatment of the mentally ill involved in the court system. In the case of Dusky, a mentally ill offender who was not given a competency evaluation before trial, the Court ruled that the accused is to be assessed “whether he has sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding – and whether he has a rational as well as factual understanding of the proceedings against him” (Dusky, 1960). Should the accused be found lacking sufficient rationality to proceed, then he is deemed incompetent to stand trial, as we discussed earlier in this book. However, being deemed competent to stand trial does not mean that a person is free from mental illness, only that he can understand (at least basically) what’s going on in his case. If he does not understand, then the court’s first job is to attempt to restore the defendant’s competency through treatment (more about that below under the section Coerced Treatment in the Courts and Prisons). If he does understand, then the case can proceed, but now the court system has a medical issue to deal with, and as discussed above, those incarcerated in the United States have a right to medical care under the Eighth Amendment. Due to this right, the court and correctional system became a vehicle for mental health care for those convicted of crimes. Starting in Broward County Florida in 1997, legal professionals created a new type of court dedicated to diverting the mentally ill from the traditional legal and correctional system, to better see to their treatment needs within the system, and to reduce the involvement of the mentally ill into the correctional system (Slate, Buffington-Vollum, & Johnson, 2013). Not only did these professionals hope that the court system would be a means of helping the mentally ill accused and convicted access mental health care, they came to see the court system itself as a therapeutic intervention. In essence, the court system itself becomes a means by which mental illness is treated through compassion, a system of extralegal rewards and punishments. For example, if a mentally ill offender is diverted into the

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mental health court system after arrest, then the courts may require treatment and other behavioral changes on the part of the offender, and the offender can remain out of jail contingent upon his compliance. This approach to diversion and treatment in the court system is an example of therapeutic jurisprudence or the use of the courts as a therapeutic agent of change for the mentally ill offender (Dirks-Linhorst & Linhorst, 2012). This therapeutic jurisprudence is not a mandatory process within these jurisdictions, but a voluntary one. In other words, the court system does not mandate to a person whether or not his case will be transferred to the mental health court. Rather, the courts consult with and offer the mental health courts as an option. In many cases the person potentially referred to the court is sufficiently competent to volunteer. Unfortunately, in some cases “voluntariness” can be very hard to assess. For example, if a severely schizophrenic and homeless man commits shoplifting at a local bodega and the police arrest him for the crime, he may be too severely disabled to even coherently answer questions about whether or not he volunteers to have his case heard in the mental health courts. In such cases, the courts may inadvertently coerce the mentally ill to volunteer for the mental health court in order to see to his best interest (Poythress, Petrila, McGaha, & Boothroyd, 2002).

Mental Health Court Procedure According to Slate, Buffington-Vollum, and Johnson (2013, pp. 382–384) the mental health court (MHC) system follows general, but highly flexible, guidelines. The decision tree in many mental health court systems proves quite complex with decisions and assessments made by many individuals, each of which can have a wide variety of results. The guidelines are as follows: DAY 1: 1.

2. 3.

4.

5.

A potentially mentally ill individual is arrested. The officers note behavioral anomalies that may be consistent with mental illness. They take the individual to the jail. Officers and/or the jail caseworker speak to the individual about the mental health court (where available). Should the person volunteer to be assessed and referred to the mental health court, an officer or caseworker notifies the mental health court of the referral for the individual in question. Mental health professionals assess the individual in the jail diagnostically and provide crisis intervention and stabilization as necessary (sometimes this happens after the initial hearing). Initial hearing held (not necessarily held on the same day as the arrest) a. b. c. d.

The court may require further evaluation and stabilization. If the individual is stable and depending on circumstances, the court may dispose of the case. The court, upon review of the case, may set release conditions, such as some form of treatment, location of housing, employment, etc. The court may decide the accused doesn’t meet MHC criteria and refer the individual to a regular criminal court.

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e.

The court may rule that based on the experience of the court and the assessment results from the mental health professionals, the individual requires a competency evaluation to determine if the client is competent to participate in the proceedings.

DAY 2 (AND AFTER): 1.

If the individual required time in jail for medication and stabilization, the individual receives a second hearing at this time. For others, the second hearing is scheduled based on the availability of the court. a. b. c. d. e. f.

g.

2.

The court establishes case tracking for the individual. The court and constituent professionals assess, with the individual, whether or not the individual is willing and able to seek treatment. The court reviews any potential issues around competency post-assessment (when required). The court and constituent professionals evaluate the symptoms and needs of the individual, and the court requires treatment or intervention where appropriate. The constituent professionals offer their assessment on whether the individual is actually or potentially dangerous to themselves or others. The court reminds the individual of his right to have the charges addressed in a trial (in which case, the mental health court then forwards the case to criminal court). In those cases where the case stays within the mental health court system, the court approves and requires a case-managed treatment plan for the individual and sets a future date for review.

After a period of time decided by the court during the second hearing, the court judicially reviews the case with the aid of the individual and the legal and treatment professionals. a. b. c. d.

The court assesses the adequacy of treatment. The court determines if the accused complied with the treatment specified during the second hearing. The court determines if the accused lives stably in the community. The court determines if other needs, like social or medical needs, are being met. i. If needs are not met, the court may recommend intervention. ii. Court may require another follow-up hearing after another course of treatment, or may move to dispose of the case.

3.

Depending on the outcome of the second hearing, the court may choose between the following dispositions for the case: a.

b.

The court may impose pre-trial release conditions (the individual may remain on the street before trial if he complies with the mental health requirements of the court). The court may dispose of the case if the person is stable by considering the time in treatment as “time served.”

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c. d.

The court may sentence the accused to jail/prison due to non-compliance or other factors. The court may apply different statuses based on the needs of the accused and the state. For example, in some jurisdictions the court may find the defendant “guilty but mentally ill” and sentence him to serve in a mental health prison facility, or the court could apply specifications for probation that may include ongoing treatment requirements.

We’ll use a hypothetical case of a mentally ill individual named “John” who suffers from the delusions and hallucinations of paranoid schizophrenia. In this case, John hears very negative voices at all times, unless he’s heavily medicated, a sedative feeling John doesn’t like. He also believes that he can hear other people’s thoughts, which he experiences as incredibly critical of him. John has no family that can see to his complex needs or deal with his erratic behavior, nor is he employable for the same reason. Because of this, John lives on the street begging for money and hustling for alcohol, which is the only substance that offers him relief from his symptoms. A chronic alcoholic, John regularly comes in contact with the police in the downtown area where he lives. Day 1: John, thoroughly intoxicated, wanders around the fountain area downtown screaming incoherently in forceful outbursts, mixed with quiet muttering. This behavior causes concern for a passer-by who calls 911, and two officers arrive in response to the call. John, upon seeing the police, becomes more agitated and starts yelling at them, but between his illness and his drunken state, the officers can’t make out what he’s saying. They arrest him on charges of public intoxication and take him to the jail. As John calms down in the back of the police car, he describes in slurred speech how he knows what the officers are thinking, and offers bizarre and delusional descriptions of the officers’ thoughts. When the officers take John into the jail for booking, they inform the jail officers that John might be mentally ill. In the meantime, they place John in a cell to sober up so he can be assessed while waiting for his appearance in court. The jail staff, upon interacting with John, agrees with the officers’ assessment that John might be mentally ill and refer John to the mental health court. At John’s initial hearing, the court notes John’s strange behavior and orders a mental health evaluation. After two days, John meets with a mental health professional who assesses him and diagnoses him with schizophrenia, paranoid type. The jail physician prescribes potent anti-psychotics for John (which John dislikes), in an effort to stabilize him for his second hearing. After John is stabilized on the medication, the court evaluates John once more, with the assistance of trained professionals. They determine that John is competent to understand the proceedings and assess whether John is willing to volunteer to seek treatment; John indicates he is. The court also assesses his dangerousness to himself or others, and John does not appear to be a threat to anyone actively. The court finishes by asking John if he wishes to challenge his charges by going to a jury trial, and John informs the court that he does not. The court then mandates treatment and case supervision for John, and a review in three months. John complies with his treatment, and although it is difficult for him to live around others, stays in a series of shelters and meets with his caseworkers, therapist, and medical provider as ordered by the court. After three months, the court reviews his case and finds that he complied with treatment, and has remained relatively stable for that period of time. The court, in conjunction with mental health professionals, also reviews any of John’s other needs, and makes recommendations where

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possible. In John’s case, they find his unstable housing problematic, but there are neither beds in the community nor any way to pay for them, so the court reluctantly accepts John’s living situation. However, it also finds that although John is mostly compliant, he still demonstrates active symptoms. To John’s dismay, the judge mandates three more months of treatment and compliance and informs John that he expects to see him in three months. In John’s case we see that (in general) the goal of the mental health court is to increase the well-being of the mentally ill and to decrease their involvement in the court system (or increase their well-being particularly by decreasing their involvement in the criminal court system). As you can also see, the court has a great deal of latitude in determining what forms of assessment should occur, and where or under what conditions the defendant should be held, and the like. In many cases the court’s goal is to act as a therapeutic agent of change. This is a counterintuitive way of thinking about the court system for many people, because courts serve as neutral arbiters and finders of law, and in some cases (i.e., bench trials) finders of fact. In the case of mental health courts, however, the court professionals try to make the process itself therapeutic rather than punitive. For example, the goal for both the prosecution and the defense is to work together in a non-adversarial manner to determine the best course of action to help the defendant. Once they put that plan in place, they use the court system to reward healthy behavior through encouragement and praise, but also through “reintegrative shaming” (the court specifying to the person when his behavior is contrary to the court’s requirements) and sanctions for unhealthy behavior that run counter to the court’s plan (Ray, Dollar, & Thames, 2011; Burns, Hiday, & Ray, 2013). By doing so, the hope of this court system is to lessen the patterns that underlie an individual’s criminal behavior thereby reducing recidivism and the strain on the court system. If the individual complies with the court’s recommendations, he may find his jail sentences greatly reduced or his case dismissed outright.

Coerced Treatment in the Courts and Prisons Given the skyrocketing rates of incarceration for the mentally ill, and the lack of affordable beds in mental health treatment centers, mental health courts and therapeutic jurisprudence seem like a cultural step in a compassionate direction. Indeed, some research indicates that the mental health court system makes a difference, not in terms of “curing” mental illness, but in diverting the mentally ill from traditional jails and prisons and lowering recidivism rates (Burns, Hiday, & Ray, 2013; McNiel & Binder, 2007). Although somewhat successful, some scholars of criminology and some practitioners in the system remain concerned. Arrigo (2004) pointed out that the mental health court system upholds and perpetuates a certain set of cultural values which are themselves never questioned, and the unstated goal of the court system is compliance to these unquestioned values. However, some individuals and groups may engage in behavior that the dominant culture sees as deviant, even if harmless. For example, imagine a man who comes from a culture where they commonly practice plural marriage. After moving to the United States, he seeks out and marries multiple women. After his arrest, he insists that he has heard “divine voices” confirming his religious belief that he should practice polygamy, and that he has seen “angelic beings” at his multiple weddings. Given that polygamy is illegal in this country, he is a criminal. Because he purports to have had supernatural confirmation of this practice and his religious beliefs, he would be seen by a psychologist or psychiatrist as suffering paranoid schizophrenia (suffering delusions and

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hallucinations). If he is deemed mentally ill by the system, and should he volunteer to do so, he could be referred to the mental health court. The mental health court, whether deliberately or inadvertently, serves to enforce the ethics of U.S. society, which in his case would not be questioned. However, some people question the process and attempt to find solutions, even if they ultimately agree with mandating treatment. Jeffrey Geller, a psychiatrist, wrote an essay in 1986 and offered case studies and examples of the ethical problems that mental health professionals face when trying to encourage medical compliance in their patients (Geller, 1986). When encouragement does not work, Geller argued that sometimes, and in some cases, medical coercion may be required when ill patients refuse treatment. Medical coercion means that the treatment professional benevolently, but forcibly, treats the patient against his will. Geller suggested that outpatient commitment could prove an option to maintain ethically sound treatment for the patient while providing much-needed care for the patient and also increasing public welfare. Outpatient commitment involves the court system mandating treatment for a patient who is non-compliant. Ethically speaking, under threat of contempt of court and jail, the patient complies with treatment, and the process of therapeutic jurisprudence continues. Certain scholars argue that the coercion of treatment can yield positive results for both the patient and for the community (Schopp, 2003). However, forced treatment also impinges upon basic civil rights, so Geller (1986) advocated for clear guidelines for outpatient civil commitment that minimize the removal of civil rights and maximize treatment. In such a way, treatment professionals can use the words “benevolent” and “coercion” in the same sentence. Although this may strike others as ironic at best, and oxymoronic at worst, to do otherwise seems problematic to those who desire to help the chronically mentally ill who refuse treatment. They hope to set up policies and procedures so effective that they will not see mentally ill men and women wandering in the throes of their illnesses, potentially hurting or neglecting themselves (or others). Some researchers have found that although coercion is certainly a part of the mental health court process, it did not necessarily guarantee a negative experience for the clients of the court. Some participants, in fact, reported a more positive experience, although the positivity related to the degree of coercion they experienced (Poythress, Petrila, McGaha, & Boothroyd, 2002). The tension remains, however, because ethically finding a clear demarcation between benevolent coercion and arbitrary coercion in the name of benevolence can be quite difficult. This is particularly difficult in a prison context, as the opening vignette indicates. Christensen (1997) highlighted many of the ethical and philosophical issues involved in coerced treatment. He discussed how any “right” decision regarding a patient’s treatment involves the professional’s judgments about moral, social, and legal issues in interrelated areas of potential ethical conflict. First, is consent to be treated and refusal of consent allowed? When the health professional and the patient have a disagreement about treatment, whose will should be followed, the patient’s or the physician’s? Should physicians be allowed to hospitalize patients against their will or to coerce them to comply with treatment? Second, where will the resources come from to treat the patient? (Many chronically ill patients cannot afford treatment.) And third, what about organizational relationships? Who can take on the patient? Which facility? What reciprocity will be demanded? The issue of coercion of mental health treatment becomes particularly worrisome and acute when a mentally ill individual is accused of a crime and becomes involved in the legal system. As discussed above, the Dusky case established the right of the mentally ill accused

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to receive a competency evaluation. Although these standards of competence seem straightforward, they’re difficult to precisely assess, and there are research findings that highlight the complications of the assessment and interpretation processes. For example, Marcus, Poythress, Edens, and Lilienfeld (2010) found that although the first two capacities for competence are continuous (the degree that the accused can or cannot consult with counsel or comprehend the court proceedings is variable and approximate), the third ability, rational understanding of proceedings, proved dichotomous. The accused either can comprehend the proceedings accurately despite his illness, or the illness interferes and he cannot actually understand the proceedings adequately. The issue remains, given that the first two standards of competency are fluid, the cut-off for adjudication of competence becomes arbitrary at best. However, Marcus et al. argued that because the third standard seems dichotomous that it would be easier for psychologists to assess and therefore less arbitrary. Although on the face of it that may seem to be the case, worrying issues still remain. Murrie, Boccaccini, Guarnera, and Rufino (2013) researched the assessments recommendations of expert witnesses for opposing legal counsel— that is experts who believed they were hired by the prosecution and the defense to assess the same individual. They found that the psychologists interpreted the results of the same assessment differently (on average) and made different recommendations, biased for the side that retained them. In 2014, however, Blais and Forth (2014) examined risk assessment reports written by prosecution-retained and court-appointed experts. The court-appointed experts wrote significantly longer reports and contained more on risk factors and management than prosecution-retained experts. Overall, however, they found that both sets of reports proved far more similar than different, and both lacked assessment of protective and dynamic factors that could prove vital in preventative detention hearing. In essence, both groups focused on the negative and failed to mention the positives in the case that could have proven important information for the court. What differentiates psychologists from other mental health professionals is their focus on assessment and diagnosis (Watkins, Campbell, Nieberding, & Hallmark, 1995). Psychologists are employed to assess the mental health of those arrested before trial, those needing a competence assessment before trial (or after a trial has started, depending on the health of the accused) as well as a part of treatment post-conviction within jails or prisons. Often, these psychologists recommend treatment that includes psychoactive mediation that changes (hopefully for the better) the state of mind of the accused. If the accused can be psychologically stabilized or those symptoms that might interfere with his competence mitigated, the accused would prove better able to adequately participate in his own case. As Hughes and Peak (2013) demonstrated in their research, there are few researchers and scholars addressing the shortand long-term effects of the use of these medications and their actual helpfulness or adequacy in stabilizing accused individuals before their trials or their participation in the mental health courts. They note a tendency towards coerced treatment. For example, sometimes the courts adopt a “take this medication or we’ll deem you non-compliant to treatment and send you to jail/prison” stance. Because of this, Watkins, Campbell, Nieberding, and Hallmark (1995) strongly recommended that the field adequately establish the effectiveness of pre-trial treatments, and that practitioners utilize only adequately researched and established treatments. In addition, they also recommended self-determination relative to treatment, meaning that they emphasized the ethic that the patients/accused should be the ones to voluntarily choose which treatments they will accept (if any at all). Although scholars like Hughes and Peak make a vital and important point applicable in most cases, following such recommendations proves

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challenging in the cases of patients who suffer from disorders that increase paranoia, like paranoid schizophrenia. Because of their illness, they are likely to interpret any efforts of the treatment staff to help as attempts to harm. Therefore, balancing self-determination with demonstrable need for treatment for the courts and treatment professionals remains ethically tense and difficult (in some cases) to adequately navigate. Not only can medication treatments of the mentally ill affect their experience pre-trial, during the trial itself changes in medication can actually interfere with an accused person’s ability to participate meaningfully in his case. In Riggins v. Nevada, the defendant was prescribed and required to take new medications during his trial (Mellaril and Dilantin, antipsychotic medications that reduce delusions/hallucinations and emotionally stabilize patients). These medications proved effective to stabilize him, completing the goal of the court. This proved problematic in Riggins’ case, however, because the medication created a different state of mind during the trial than during his crime. In essence, Riggins argued that during the crime he suffered delusions and hallucinations causing him to commit the crime resulting in his “not guilty by reason of insanity” plea. Because of the coerced medication during the trial, however, Riggins seemed sane and coherent, giving the court and the jury the wrong impression of his actual mental health. Because of this, the courts ruled that forcing medication upon him during the trial interfered with the accused’s Sixth and Fourteenth Amendment rights (Dlugacz, 1993). The issue of coerced treatment continues in the jails and prison system as well, for those who either do not have a mental health court available in their district, or for those sent to prison from the mental health court system due to non-compliance. In the case of Washington v. Harper, the defendant had a long history of acting violently and erratically when not on his medication within the prison system. After his transfer to a special offender center for severely mentally ill prisoners, the medical staff treated him with anti-psychotic medications against his will. Harper sued the state of Washington, alleging that forcing medication upon him violated his Fourteenth Amendment rights, and particularly that the state violated the principle of due process (Sem, 2012). The United States Supreme Court ruled that (1) “The Due Process Clause does not require a judicial hearing before the State may treat a mentally ill prisoner with antipsychotic drugs against his will,” and (2) “The Due Process Clause permits the State to treat a prison inmate who has a serious mental illness with antipsychotic drugs against his will, if he is dangerous to himself or others and the treatment is in his medical interest” (Washington v. Harper, 1990). The Court specified that psychiatrists can coerce treatment or apply non-voluntary treatment “when an inmate ‘refuses or is unable to consent to the administration of medication,’ and the inmate is either gravely disabled or, as a result of a mental illness, is a danger to one’s self or others” (Sem, 2012, p. 772). Although medical staff may deem the treatment necessary for the good of the individual patient as well as for the prison system and structure, ethical issues still remain (as you can see in the introductory vignette for this chapter). Prendergast and his colleagues evaluated the effect of both voluntary mental health medication and involuntary medication on two groups of inmates in a prison in California (Prendergast, Farabee, Cartier, & Henkin, 2002). They assessed the two groups (those voluntarily treated and those involuntarily treated) by measuring the social and psychological functioning of each group member. “Psychological functioning” they operationalized as selfesteem, depression, anxiety, decision making, and self-efficacy. “Social functioning” entailed relating well with and getting along with others. They found that both groups indicated statistically significant during-treatment change on most dimensions except social functioning.

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In addition, very similar percentages of the members of each group improved enough not to require treatment anymore, and a similar percentage agreed to follow-up on community-based mental health treatment post-release. This research helps to justify the use of involuntary medication to treat mentally ill individuals in prison, but it may prove helpful to practitioners in prison to remember that Prendergast’s research reported averages that will generally reflect individual outcomes and experiences, but not specifically. There may be some who do not improve with treatment, and others who may experience iatrogenesis, or harm due to treatment (Moos, 2012). Therefore, in addition to the ethical conundrum of taking away a patient’s selfdetermination, medical professionals may find it important to carefully track whether or not the treatment is helping, harming, or doing nothing for the patient’s well-being. Concerned with the issue of inmate well-being, Bowen, Rogers, and Shaw (2009) sought to examine inmates’ experience of medication practices in prisons by speaking to a large group of inmates across four different prisons (a technique called qualitative research wherein the research subjects are encouraged to present their own story and point of view2). According to these inmates, upon entering prison, the medical staff usually changed their medication (even if it was working for them), and also dictated and took control over the patients’ well-being, fostering dependence on medical staff. The inmates presented examples of when this practice actually contributed to the deterioration of the mental health of some of the most vulnerable and sick inmates. In particular, the researchers summarized the experience of the dual-diagnosed inmates suffering from addiction plus an additional mental health condition, and their struggles while suffering from withdrawal sickness as medical staff attempted to stabilize them on new medications. This proved particularly difficult for them, given that many psychoactive stabilizing medications take days to weeks for a therapeutic effect (Julien, 2001).

Research on Mental Health Courts Researching mental health courts proves highly challenging due to the protected nature of the clientele, the confidential nature of treatment, and the homeless and/or highly vagrant status of many participants. McGaha, Boothroyd, Poythress, Petrila, and Ort (2002) offered guidelines for researchers to help manage these significant challenges. In particular, they offered guidelines on gaining access to the clients, addressing the issue of random selection, identifying controls to compare against mental health court subjects, including subjects who may need to be hospitalized, and minimizing attrition (the client’s tendency to leave). Because of these lingering and practical issues, mental health courts seem worthy (even if difficult) to follow up with and research. To that end, many researchers have conducted research designed to examine whether or not the mental health court system works practically. Burns, Hiday, and Ray (2013) examined subjects for two years after their release from this form of court process. They found that the same variables that predict recidivism in a regular criminal court also predict recidivism in a mental health court setting. Those variables include demographics, mental health status, criminal history, number of previous arrests, and length between re-incarcerations. Basically, those clients coming from certain areas of cities with high poverty and low support struggled more, those who suffered severe mental illness longer struggled more, as did those with numerous previous arrests. However, those clients with fewer previous convictions, and who stayed in the mental health court system long enough to complete their requirements, had a significantly lower rate of recidivism within the two years

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than those who did not. Regardless, only 24.6 percent of total subjects in their study were re-arrested within the two years, which is significantly lower than the average number of arrests for those mentally ill clients who proceeded through the usual criminal courts (McNiel & Binder, 2007; Moore & Hiday, 2006; Steadman, Redlich, Callahan, Robbins, & Vesselinov, 2011). It is comparable to that of one of the only two other studies that reported 2-year postexit recidivism (28 percent; Hiday & Ray, 2010) and lower than the other (36 percent; McNiel & Binder, 2007). Graduates had lower recidivism than non-completers, as reported by the four earlier studies that examined effects of mental health court completion on recidivism (DirksLinhorst & Linhorst, 2012; Hiday & Ray, 2010; McNiel & Binder, 2007; Moore & Hiday, 2006), and they had a smaller number of post mental health court-exit jail days. Of the three exit groups, graduates had the only decline in jail days from the two years prior to mental health court entry. Although lingering issues with ethical and practical matters remain with coerced treatment pre-trial, trial, and post-conviction, the mental health court system seems a viable alternative to the mainstream criminal court system for those suffering with mental illness. In particular, mental health courts appear to be more humane and more practical than perpetuating the ongoing criminalization of the mentally ill.

Notes 1.

2.

“Treat then street” is a colloquialism among mental health professionals (psychologists, nurses, physicians, social workers) that refers to the process of treating mentally ill patients (usually short term) but having nowhere to release them after treatment. This technique is different from the quantitative approach, wherein the researcher frames and asks the question from the researcher’s point of view, and measures the responses numerically. Qualitative research takes the form of narrative or stories, while quantitative research takes the form of statistical analyses.

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Murrie, D. C., Boccaccini, M. T., Guarnera, L. A., & Rufino, K. A. (2013). Are forensic experts biased by the side that retained them? Psychological Science, 24(10), 1889–1897. Owens, D. G. C. (2014). A guide to the extra-pyramidal side effects of anti-psychotic drugs (2nd ed.). New York, NY: Cambridge University Press. Perlin, M., & Dlugacz, H. (2007). Mental health issues in jails and prisons: Cases and materials. Durham, NC: Carolina Academic Press. Polizzi, D., Draper, M., & Andersen, M. (2013). Fabricated selves and the rehabilitative machine: Toward a phenomenology of the social construction of offender treatment. In Bersot, H & Arrigo B. (Eds.), The Routledge handbook of international crime and justice studies. New York, NY: Routledge, 233–255. Poythress, N. G., Petrila, J., McGaha, A., & Boothroyd, R. (2002). Perceived coercion and procedural justice in the Broward mental health court. International Journal of Law and Psychiatry, 25(5), 517–533. doi:10.1016/S0160–2527(01)00110–8 Prendergast, M. L., Farabee, D., Cartier, J., & Henkin, S. (2002). Involuntary treatment within a prison setting: Impact on psychosocial change during treatment. Criminal Justice and Behavior, 29(1), 5–26. doi:10.1177/0093854802029001002 Ray, B., Dollar, C., & Thames, K. M. (2011). Observations of reintegrative shaming in a mental health court. International Journal of Law and Psychiatry, 34(1), 49–55. doi:10.1016/j.ijlp.2010.11.008 Ray, P. (2014). Horrific conditions described in homeless man’s death at Burlington county jail. The Trentonian. Retrieved from http://www.trentonian.com/general-news/20140309/horrific-conditionsdescribed-in-homeless-mans-death-at-burlington-county-jail Schopp, R. F. (2003). Outpatient civil commitment: A dangerous charade or a component of a comprehensive institution of civil commitment? Psychology, Public Policy, and Law, 9(1–2), 33–69. doi:10.1037/1076–8971.9.1–2.33 Sem, R. (2012). Chapter 665: Changing the process for the administration of involuntary psychotropic medications to state inmates. McGeorge Law Review, 43(3), 766–778 Slate, R., Buffington-Vollum, J., & Johnson, W. (2013). The criminalization of mental illness: Crisis and opportunity for the justice system. Durham, NC: Carolina Academic Press. Steadman, H. J., Redlich, A., Callahan, L., Robbins, P., & Vesselinov, R. (2011). Effect of mental health courts on arrests and jail days: A multisite study. Archives of General Psychiatry, 68(2), 167–172. doi:10.1001/archgenpsychiatry.2010.134 Torrey, E. F. (1995). Jails and prisons—America’s new mental hospitals. American Journal of Public Health, 85(12), 1611–1613. Torrey, E. F., Kennard, A., Eslinger, D., Lamb, R., & Pavle, J. (2010). More mentally ill persons are in jails and prisons than hospitals: A survey of the states. Arlington, VA: Treatment Advocacy Center. Watkins, C., Campbell, V. L., Nieberding, R., & Hallmark, R. (1995). Contemporary practice of psychological assessment by clinical psychologists. Professional Psychology: Research and Practice, 26(1), 54–60. doi:10.1037/0735–7028.26.1.54 Whitaker, R. (2010). Mad in America: Bad science, bad medicine, and the enduring mistreatment of the mentally ill. Philadelphia, PA: Basic Books.

Court Cases Bowring v. Godwin, 551 F.2d 44 (1977) Dusky v. United States, 362 U.S. 402 (1960) Estelle v. Gamble, 429 U.S. 97 (1976) Riggins v. Nevada, 504 U.S. 127 (1992) Sell v. United States, 539 U.S. 166 (2003) Washington v. Harper, 494 U.S. 210 (1990)

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Introduction: The Purpose of Drug Use Garren sat shifting in the uncomfortable hard plastic chair, his gaze locked to his right, chin in his hands, and he seemed determined not to look at his parole officer. Shaved head, tattooed skin, and an angry expression usually served to keep people at a distance and protect Garren from their annoying questions. After multiple arrests and incarcerations for drug possession and distribution (particularly marijuana and methamphetamine), he resented having to come in for his “piss test” (a urinalysis test to determine recent drug use) so the system could check if he “dropped dirty” (failed the urinalysis test). Should he drop dirty, they would send him back to jail immediately. He refused to speak to his parole officer other than to answer questions in a simple and direct manner. No, he responded, he hadn’t been getting into trouble. Yes, he responded, he’d been going to work. No, he did not associate with his old friends who still did drugs. Satisfied with the nature of his answers, his parole officer let him go after scheduling another follow-up brief meeting. Garren and I walked out to the car so I could give him a ride back home. I never used drugs much and didn’t understand the appeal, but I felt concerned for Garren so I asked him how his meeting went. Garren’s usually quiet and stern demeanor changed for a few minutes as he vented his anger about the injustice and unfairness he experienced with the legal process. I listened as we drove, nodding my head, offering non-committal responses. When Garren finished his rant, I looked at him and asked, “You’re angry because the man, the system, keeps interfering with your life. If you could have any one wish about this process, what would it be?” Garren sat in sullen silence for a few minutes, then responded, “I would want them to leave me the f*ck alone so I could get high in peace.” I glanced over at him, as he leaned heavily against the passenger side door, and asked, “Is your life so miserable that you need to get high to feel happy?” Garren sighed, like a thousand years added to his life, and he responded quietly, “You don’t get it man, it’s not about feeling good, it’s about feeling different.”

Why People Use Drugs The very idea of “drugs” is a social construction, one developed over a long period of time that continues to evolve. To give you a sense, what’s the difference between “drugs” and “medicine”? That’s a tricky question, because what we now construct as “drugs” was once

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“medicine” in our culture. For example, Sigmund Freud, one of the founding fathers of psychology, used cocaine medicinally for many years, and prescribed it to his patients (Jones, 2003). Likewise, narcotic medicines are somehow simultaneously “medicine” and “drugs” in our modern age (DeAndrea, Troost, & Anthony, 2013; Elliott, 2011). When we look at the research on these issues, we find that the difference in our social construction lies with the question of legitimacy. A particular medicine changes to a drug when we socially construct its use to be illegitimate. Analgesia, for example, means “painkiller” and we consider people’s use of analgesics legitimate. When people use the same medicine to create a euphoric effect rather than (or in addition to) an analgesic effect, we change the meaning of the exact medication to indicate its illegitimacy by calling it a “drug” in the illicit sense of the word. Granted, drugs originally meant “medicine” but our social construction of the word has slowly changed in popular culture to mean “illegitimate intoxicant.” Interestingly, this leads to a society where a person who grows addicted to a medicine prescribed for pain in a perfectly legal way becomes a criminal if he or she obtains the drug on the black market after the prescription runs out (O’Malley & Valverde, 2004; Turner et al., 1982). This does not mean, however, that we socially construct all euphoria-inducing intoxicants as illegitimate. Alcohol, for example, remains governmentally regulated and legal in all states, and increasingly states are seeking to governmentally regulate the legal (and therefore legitimate) use of marijuana (Roffman, 2013). Given the ready availability of alcohol and the increasing availability of marijuana on the legal market, it may seem odd that people still use other sorts of illegal drugs when they can get “high” (intoxicated, euphoric) legally. In looking through the research, we find many reasons and many processes relative to people’s motivation to take various sorts of drugs. In 2006 Nuño-Gutiérrez, Rodriguez-Cerda, and Alvarez-Nemegyei, in their large research study of teenagers in Mexico, found that the social dynamic of drugs, the desire for promised drug euphoria, and the use of drugs to facilitate certain social goals starts with a basic vulnerability. When they examined this process closely, they found that issues in the family life at home facilitated the need to seek out drugs and/or the sorts of social relations that can involve drugs. As psychologists, we find that a lack of validation at home for a child, contention among family members, as well as abuse and neglect relate to substance abuse, and many studies demonstrate this factually (Lee, Bellamy, & Guterman, 2009). If the child does not get his or her emotional needs met at home for validation and affection, he or she may seek it out among peers, and substance use serves as one way for some people to experience that validation. Of course, in other cases, parental use correlates with substance use among the children of those who use (Söderström & Skårderud, 2013), even if these parents lecture their children not to use drugs. Modeled behavior (what we show by our actions) proves 10 times more powerful in teaching children than verbal lessons (Bryan & Walbek, 1970a, 1970b). Even children who have stable homes and sober parents may grow up to use drugs. Some researchers argue that peer pressure causes drug use among teenagers (Wright & Pearl, 1995). Two factors in particular relate to the social dynamic of drug use. One is how we feel in relation to others, like feeling adult or bigger in the world, or to show off to peers. The other relates directly to fitting in, and taking drugs because friends or prospective friends do. These researchers do not deny, however, that another large factor remains the fact that drug use can feel pleasurable in its own right, even without the participation of others. Earlier research indicated that drug use and underage drinking not only entailed peer pressure, but

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also entailed experimentation driven by curiosity for many survey respondents, even more commonly than the euphoric or relaxing effect drugs or alcohol can have (Johnson & O’Malley, 1986). More recently, McIntosh, MacDonald, and McKeganey (2006) found that peer pressure reduces in strength as teenagers approach adulthood. They noted, however, that although drug experimentation becomes a matter of personal choice, the choice to use remains mediated by social processes because the teenagers in their study reported that they felt more comfortable around others after getting high. As their subjects aged, boredom and curiosity became increasingly strong motivators for drug experimentation and use. Similarly, Comasco, Berglund, Oreland, and Nilsson (2010) interviewed teenagers intermittently over a period of four years. They found that three major themes arose: social enhancement, coping, and dominance. Social enhancement involved the process by which the teenager could gain prestige or friends in his social group. Coping was described as the use of intoxicants to help the teen handle difficult situations and emotions. Finally, dominance involved the way in which intoxicants helped the teens gain confidence to assert themselves over others in his peer group. In this case, we see that two out of the three reasons Camasco et al. (2010) found for using drugs involved the ways in which drugs are socially constructed and utilized in human relationships, in this case prestige and assertive power with their peers. Donna Coffman (2007) and her colleagues, adding to this observation that alcohol use seems situated in social relationships of teens, looked for reasons why a given teenager might begin to abuse alcohol while another teenager in the same group might not. They found four different personality profiles for boys and girls in their study of high-school seniors that related to alcohol use, in particular. These four personality profiles included Experimenters, ThrillSeekers, Multi-Reasoners, and Relaxers. Experimenters drank to experience different sensations and flavors associated with drinking and intoxication. Thrill-Seekers drank to experience the euphoria of drinking or the risk-taking of breaking the rules. Multi-Reasoners drank for any combination of these reasons, and Relaxers drank to obtain the mellowing effect from alcohol. These researchers found that the riskiest profile associated with problematic drinking was the Multi-Reasoner group—that is, those with the most reasons to drink are the most likely to do so. Some researchers, however, look to the ways in which the environment operates on our behavior. Behavioral theorists define operant behavior as behavior that is controlled by the environment. Basically, when the environment rewards a behavior, we are more likely to engage in that behavior again. For example, if the environment rewards taking drugs (because it feels good to take drugs) then we are more likely to do drugs again. When something gives us pain, we tend not to do those things again. Many scholars believe that this model is the most objective and most scientific. For example, Pandina and Johnson (1999) from this perspective argued that there are two major factors in drug use. The first is that drug use tends to happen in certain patterns in society, more frequent in some places than others (called topography), and the second is the combination of the given biological sensitivities to drugs of a particular “respondent” (person) and the environment that controls one’s behavior. Earlier, Nicholi (1983), using this theory of operant conditioning, argued that drugs act as a positive reinforcer (the feeling from taking the drug increases the likelihood of taking the drug again), and as a negative reinforcer (the sensation of coming off drugs also increases this likelihood). Coupled with the ways in which drugs can divert attention from other aversive experiences (like loneliness or depression) link or “chain” together to create a complicated series of behaviors

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related to using a particular drug. For example, those who drink engage in a different series of behaviors than those who inject heroin. Drinkers obtain their drug in a different way, prepare it in a different way, and ingest it in a different way than heroin addicts do. Nicholi also added that social stimulation unrelated to the drug effects and social stimulation related to the drug effects both can add complexity to this chain. What he seems to mean by this is that some social interactions reinforce drug use. These reinforcers, some unrelated to the drug (e.g., when people treat us like an addict we tend to behave like an addict) and others directly related to the drug (e.g., hanging out with friends who use tends to increase our use) add to the complex chain of drug use. Interestingly, these studies indicate that other people are part of the environment controlling our behavior. These researchers, although motivated to remove the messiness of human relationships and their social constructions from their research, found that these relationships are very important. Often, human relationships are an important variable when considering the dynamics of drug use. Researchers sometimes overlook the effect of the drug itself as a motivator for use. If drugs made people feel sick, nauseated, or depressed the first time they used them, we would not need this chapter. Some, however, look carefully at how drug taking and other risky behaviors relate to how people feel. They found, in part, that many adolescents who use drugs believe that participation in drug use will increase positive emotions and will decrease negative emotions, while adolescents who do not use drugs believe that drug use will increase negative emotions (Caffray & Schneider, 2000). Some researchers, building on observations like this one, posit that drugs activate our biological reinforcement system. When drugs activate this system, we experience motivation to activate it again, through our efforts to seek out the feeling that drugs give us (Spanagel, 2011). Given that different drugs have different effects, some people choose particular drugs in order to experience the particular effect. The more they experience the effect from that particular drug, the more they will seek that drug. For example, think of the cup of coffee or energy drink many people consume before class. If you ask them why they consume that drug (caffeine) they will potentially offer many different responses, but common responses include wakefulness, alertness, or concentration. So, for those who want to wake up or concentrate when they are tired, some will drink caffeine because it has those effects. Many readers are college students, and given the very busy schedules and sometimes hectic lives college students can lead, some reach for prescription stimulants like those prescribed for attention-deficit/hyperactivity disorder (ADHD) to increase their wakefulness and concentration. While certain stimulant drugs help those with ADHD to concentrate and finish their work, it only increases wakefulness in those without this condition. Interestingly, researchers have found a correlation between prescription stimulant abuse and overall recreational drug and alcohol use among college students (Arria & DuPont, 2010). Arria and DuPont also pointed out that many other factors in a person’s life relate to their substance use. These other factors indicate that substance abuse happens within a whole-life context, meaning that in order to understand the reasons why people use or abuse drugs and alcohol relates to their context, and makes a certain sense from within that particular context. For example, perhaps stimulant drug use among college students would decrease if college and cost of living were not so expensive, which requires students to work and go to school, causing them to lose sleep, which perpetuates exhaustion. In essence, drug use and abuse can relate directly and in common-sense ways to the life problems people face. In the case of Garren at the beginning of the chapter, for example, one of his drugs of choice was methamphetamine. When he used this drug, it caused intense wakefulness and energy, and he would use the drug so he never

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had to “miss out on anything.” He could work all day and party all night, because the drug seemed to eliminate his need for sleep (in actuality, it only postponed his need, and he would “crash” when the high wore off, sometimes sleeping for days). Every classification of drug relates to this dynamic. Those who use and abuse opiates and opioids (codeine, morphine, heroin, and their synthetic relatives), for example, seem to seek the painkilling effect these drugs offer. Researchers have found that when you ask these drug users why they take these pills or inject these drugs, their responses commonly include to reduce pain, help them sleep, or to experience euphoria. Likewise, if someone feels a great deal of emotional or even physical pain, they may inject heroin or take other narcotics because these drugs have those analgesic (painkilling) effects, even emotionally (Goode, 1989). This same pattern of effect relates directly to the use of hallucinogenic drugs as well. Hallucinogenic drugs, as the name implies, cause hallucinations and often include synesthesia. Synesthesia is the phenomenon of the wrong sensory system in the brain activating in response to a stimulus in the environment that should have activated a different sensory system instead. This includes experiences of “hearing color” or “tasting sound” (Grossenbacher & Lovelace, 2001). In 1998, MacDonald and Agar asked teenagers to explain, in their own words, why they use LSD. Several common themes emerged, two of which were the ways in which hallucinations changed their sensory experience of their world, and the ways in which it changed their thinking about their world. This implies to some readers that the subjects in question did not like their experience of their world and sought to alter it. They may have experienced their world as boring, or their own thinking as limited or both. In some cases, however, they used LSD as a way of relating to their peers, by having a mind-altering experience with them, in order to feel accepted or part of something larger than them. These subjects acknowledged that sometimes this came at a cost, such as when they experienced what they termed a “bad trip” wherein the sensations and cognitions while on the drug proved extremely unpleasant. The delusions, hallucinations, and negative symptoms for those suffering from a mental illness called schizophrenia are also generally very unpleasant. Two of the primary symptoms of schizophrenia are delusions and hallucinations (called “positive symptoms” because they are symptoms added to experience by the disease). Hallucinations are the sensation of objects or processes not actually present, like hearing voices or seeing things that aren’t actually there. Delusions entail beliefs that are demonstrably false, like “I’m the antichrist” or “the government is sending spies to kill me.” Schizophrenia also involves other symptoms, such as difficulty thinking clearly, speaking coherently, or following through on daily tasks like hygiene (these are called “negative symptoms” because they are abilities that the disease has removed from the person). These include agnosia (difficulty in remembering or thinking), alogia (difficulty in speaking), and apraxia (difficulty with executing complex coordinated movements, like bathing or shoe tying). These delusions, hallucinations, and negative symptoms experienced by those suffering from schizophrenia are also generally coupled with dysphoria—that is, a feeling of emotional misery similar to depression. Those working with chronically or severely mentally ill patients in hospitals and prisons have noted for some time that there seems to be a strong relationship between mental illness and substance use. Researchers have confirmed this relationship and have sought out explanations for it. In 2001, Phillips and Johnson found that the mentally ill subjects they studied seemed to abuse drugs because the effects reduced this feeling of emotional misery (dysphoria) and seemed to mitigate the negative symptoms. This indicates that the use of certain illicit drugs actually helped the schizophrenic patients

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function to a degree. This helped perpetuate the idea that some people use illicit drugs to “selfmedicate” underlying mental illnesses. However, in 2011, Kolliakou, Joseph, Ismail, Atakan, and Murray found that cannabis (marijuana) use was the most popular non-prescribed drug among schizophrenic subjects in their research, but found no evidence to support the “selfmedication” hypothesis of drug use. Conversely, they found that mentally ill subjects who use marijuana demonstrated an increase in the severity of their symptoms rather than a remediation of them, leading them to argue that these subjects use marijuana to alleviate their feelings of dysphoria rather than to treat or “medicate” their underlying symptoms. For those of us who work clinically with schizophrenic patients we find that their drug use is situated in their human relationships, a theme we find across the research we’ve cited above. Patterns of drug use differ between socioeconomic and cultural groups in the United States (Hanson & Chen, 2007); the same pattern exists worldwide. Although substance use and abuse appears a universal human phenomenon, rates of use and drugs of choice vary greatly. Some situate the use of drugs within human culture itself, noting that most cultures symbolize substance use and abuse, and different cultural dynamics prompt the use of some drugs and not others (Winship, 2012). The United Nations (2010) published a comprehensive study of international drug use and abuse and verified this observation. Certain continents, like Asia, have higher rates of opiate use, while other continents, like North America, show higher rates of cocaine and cannabis use. They also tracked drug production and drug seizures from around the globe, indicating that substance use and abuse is a global phenomenon, and that countries struggle to enforce their laws regarding drug use and misuse worldwide. This begs the question, “Why are drugs illegal?”

Drug and the Law The relationship between drugs and the court system is a long one motivated by certain forces and one that arguably entails a great deal of both expected and unexpected consequences. In the United States, the efforts to control substance sales and use began in 1909 with the Act to Prohibit Importation and Use of Opium. This Act arose during a time of great crusades against intoxicants as part of the overall temperance movement, which culminated in the passage of the Harrison Narcotics Act in 1914. This Act sought to curb the sales and use of both opiates and cocaine by imposing heavy taxation on the substances. This required the registrationof manufacturers, distributors, vendors, and “legitimate users” of these substances through the use of the appropriate forms. Those manufacturing, distributing, selling, or using cocaineor opiates without the particular forms or without going through legally documented channels faced a very hefty fine and prison time for violation of this Act ($2000 or five years in prison). Drug users were socially constructed to be moral degenerates, and this Act cemented the image by removing “prevention of withdrawal symptoms” from the list of legitimate reasons to use narcotics. The law made no provision for the continued care of individuals who became addicted to a narcotic as a result of legitimate medical use (e.g., painkillers, cough suppressants, etc.). Therefore, the cultural construction of addicts as degenerates became true as those addicted, regardless of the nature or source of their addiction, found themselves forced to purchase their drugs on the black market where prices soared. Due to the increased prices, addicts began committing crimes to pay for the drug they needed to prevent severe withdrawal sickness (Bonnie & Whitebread, 1970). The Harrison Act became a self-fulfilling prophecy

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in that by preventing access to drugs from medical professionals, those who became addicted through legitimate medical use were forced to obtain the drugs illegitimately and illegally, thus further supporting the social construction of them as moral degenerates. Although the Harrison Act applied law to the entire country, it focused on the sale and taxation of narcotics; an outright ban of substances then had to take place at the state level. When examining the justifications for historical anti-narcotic legislation, they seem murky and troublesome to our modern eyes. Bonnie and Whitebread (1970) wrote an article detailing the history of narcotics legislation in several states. They found that in Oregon, for example, the anti-opium legislation was aimed at persecuting the “heathen Chinese” who were widely believed to be opium addicts and therefore moral degenerates. However, Nevada’s reasoning shortly thereafter focused on the health, psychological, and sociological consequences of frequent opium use to justify the prohibition of narcotics. This same reasoning soon led to the passing of the National Prohibition Act (also known as the Volstead Act), which led to the adoption of the Eighteenth Amendment. This Act prohibited intoxicating beverages, as well as greatly restricted the manufacture and sale of alcohol in 1919. After 14 years of controversy, the Blaine Act was passed creating the Twenty-first Amendment, placing regulation and sale of alcohol back in control of individual states effectively ending prohibition (Murchison, 1994).

Crime and Punishment A tension predominates the world of law enforcement. On one side, there’s an idea that rehabilitation prevents crime. On the other side, there’s an idea that punishment prevents crime. In essence, rehabilitation programs entail education, job training, mentorship, and counseling to prevent crime or recidivism, whereas the punishment model entails incarcerating criminals. Punishers believe this is a painful experience that will decrease criminals’ desire to commit crimes because they will associate the crime they committed with the pain of incarceration. Both models have their supporters and detractors, but culturally, many people prefer the punishment model over the rehabilitation model. For example, Carlsmith, Darley, and Robinson (2002) found that the citizens they studied strongly valued the “just-desserts” model of prevention as opposed to the deterrence model of prevention. The just-desserts model entails making the punishment for a crime as painful as that experienced by the victim of the crime, so punishment balances some imaginary scale of justice. The deterrence side, on the other hand, entails prevention—that is, making the consequences of the crime so clear that citizens would not commit the crime in the first place. They provided evidence that the just-desserts model predominates our court system. Robinson and Darley (2004) argued that the law “no doubt” deters criminal conduct (p. 173), but they went on to add that once a law has passed that details punishment for a given behavior, future increases in the sentence for the given behavior no longer serve as a deterrent. For example, a law that prohibits the sale and possession of marijuana, which exists in many states, is a sufficient deterrent; the deterrent effect does not increase by amending the penalties to include higher minimum-mandatory sentences. What we learn from this is that people who care about the law find that the law itself informs their behavior. For those who do not, the degree of punishment associated with an illegal act does not decrease criminal behavior. Much of our current drug legislation traces back to the Harrison Narcotics Act of 1914 and the Heroin Act of 1924, which banned the manufacture, sale, and possession of heroin, as well as the Uniform State Narcotic Drug Act of 1934, which effectively prohibited marijuana

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and cocaine as well (Inciardi, 1986). From these Acts arose special law enforcement agencies (the Bureau of Alcohol, Tobacco, Firearms and Explosives and the Drug Enforcement Administration) as well as a variety of state and federal laws further prohibiting or legalizing narcotic substances. However, new laws established in hopes of correcting a perceived problem often created a host of new problems. For example, the passing of a law that prohibits the possession and sale of drugs may result in a large amount of arrests due to the number of people in the jurisdiction engaging in that conduct. Thus, the expensive and difficult problem of jail overcrowding was created. To deal with these problems, various cities and jurisdictions developed different responses, one of which is the drug court system, detailed below.

History of the Drug Court System Since the time of the Harrison Act, jurisdictions and judges have wrestled with the issue of what to do with the sudden influx of criminals to the court system with the passage of every new drug law. Back in the 1920s, for example, judges experienced the tension between punishing those breaking the new laws, and the need for treatment to help them overcome their addictions (Belenko, 2000; Musto, 1987). These judges sought to find a way to integrate drug treatment into the criminal justice system; however, the emphasis remained strongly on the side of punishment as opposed to rehabilitation. Likewise, in the 1950s we saw special narcotics courts opening in both Chicago and New York. Unfortunately, like in the 1920s, the focus remained more on punishment than rehabilitation for the approximately 9,000 people who passed through the system on an annual basis (Lindesmith, 1965). From our perspective as psychologists today, we find this unfortunate. Punishment does not seem to ameliorate addiction or addictive dynamics. For example, in 1980 Erickson examined the degree of punishment (length and severity of sentence) for marijuana users and found that the more severe the punishment, the more likely the subjects were to smoke marijuana after release. Even in the 1950s, some judges were aware of this dynamic based on their own experience and indicated that they would have preferred treatment for the accused rather than punishment (Lindesmith, 1965; Belenko, 2000). The observations of these judges influenced federal legislation as well. In 1966, Congress passed the Narcotic Addict Rehabilitation Act. The act sought to place power in the hands of judges to detour drug offenders into outpatient and residential addiction recovery programs. This Act led to the creation of TASC (Treatment Alternatives to Street Crime) programs. TASC programs give judges a treatment alternative to incarceration when working with the accused as well as funding for community drug prevention and treatment. So, if convicted, the judge can sentence offenders to a drug-treatment program rather than remanding them into custody for the duration of their sentence. After the accused finish with their courtadjudicated TASC treatment, they would return to court for a second time for disposition of their case. If an offender failed to complete the TASC program, the disposition of his or her case may have entailed a jail sentence. Conversely, if he or she successfully completed the program, he or she may be released and his or her case may be closed. The TASC program, historically, becomes important to understanding the history of drug courts because with this program two separate systems (namely the system of criminal courts and system of treatment) join for the first time while still remaining separate systems (Nolan, 2002). Through cooperation of these two systems, the TASC programs, in general, proved effective. Anglin et al. (1996) undertook a very large longitudinal research1 study and in their final report

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stated that, “TASC outcomes across sites were consistently favorable though often modest or confined to high-risk offender subsamples. We believe the consistency of findings represents a strong signal of effectiveness of the TASC model in different environments” (p. 1). They went on to discuss how their study indicates that the TASC program seemed more effective for the highest-risk groups than low-risk groups. Therefore, for the offenders with severe issues, TASC programs, rather than criminal punishment, helped far more efficiently in terms of time and money. Despite the successes of TASC programs, judges and law enforcement professionals in New York found themselves unable to refer offenders to treatment in the 1970s due to the passage of the “Rockefeller” drug laws, which added long mandatory sentences and harsher punishments for possession of even small amounts of narcotics (Belenko, 2000; Drucker, 2002). Nelson Rockefeller, the former governor after whom this bill was named, was seen as too “liberal” and too soft on crime for reelection, which frustrated not only his attempts to remain governor, but also his aspirations for the presidency (although he did eventually serve as vice president under Ford). In response to this public opinion, he developed a series of tough-on-crime policies to make him appear more conservative (Sayegh, 2009). Unfortunately, this had the unintended effect of flooding the justice system with new arrests, prompting officials at that time to develop special narcotics courts like those seen previously in Chicago in order to process the large influx of cases more efficiently (Belenko, 1990; Japha, 1978). However, the observation by some in the criminal justice system remained that many people in the system needed treatment, not just punishment. In the state and national prison systems, for example, the percentage of prisoners who are diagnosable with substance dependence or abuse disorders varies from 68–74 percent (Karberg & James, 2005; Peters, Greenbaum, Edens, Carter, & Ortiz, 1998). In addition, the only access many of these men and women have to treatment is in the prison system (Center for Substance Abuse Treatment, 2005). Approximately 64 percent of those currently incarcerated have received treatment, mostly through the prison systems, previous to their current incarceration (Karberg & James, 2005). Like today, most drug abuse treatment programs in the 1970s took place in prisons and jails. Back then, however, a great deal of the treatment programs entailed the process of civil, rather than criminal, commitment (Anglin, 1988; Belenko, 1990; Inciardi, 1988; McGlothlin, Anglin, & Wilson, 1977). Starting with the Harrison Act and building to today, the rates of incarceration for drug offenses have threatened to overwhelm our justice system. Early attempts to manage this flood began in the 1930s when Congress established what have been called “narcotic farms” in Texas and Kentucky. Judges sent addicts to these farms through a civil commitment process either as a dispositional alternative to criminal proceedings, or based solely on the fact that the defendant suffered addiction (Musto, 1987). This lightened the load on the criminal justice system slightly, causing New York and California to follow suit with similar programs in the 1960s (Incardi & Martin, 1993). These programs involved a highly structured and secure environment that required manual (farm or other) labor and participation in therapeutic communities (Wexler & Williams, 1986). These therapeutic communities entailed people with a common psychological issue (in this case, addiction) living, working, and following the same treatment program together; the treatment program was usually based on the Alcoholics Anonymous 12-step program (Clark, 1987; De Leon, 2000). Unfortunately, then, like today, most of the incarcerated men and women who needed treatment did not have access to it due to a lack of funding at the state and federal level, which led to a shortage of beds in these

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programs, and minimum-mandatory sentences that prevented judges from referring offenders to these programs (Belenko & Peugh, 1998). This is true for the treatment programs inside of prisons as well. Starting in the 1960s, prisons began adopting the treatment community model used on the narcotic farms to provide therapeutic services for their inmates. Researchers found that these programs, when coupled with aftercare, reduce recidivism and re-arrest (Knight, Simpson, & Hiller, 1999; Martin, Butzin, Saum, & Inciardi, 1999; Wexler, Melnick, Lowe, & Peters, 1999). Despite evidence that treatment programs prove far more cost effective than incarceration alone by lowering recidivism and re-arrest rates, the majority of the public believes that therapy for the incarcerated is “soft” and supports funding cuts on these programs, keeping access highly limited (Belenko & Peugh, 1998; Cullen & Johnson, 2011). We can see this particularly during the Reagan and Bush administrations of the 1980s and into the 1990s. First, they reduced funding for mental health programs, which offered prevention and treatment, and put that funding into drug treatment. This was despite evidence that prevention, which is more cost effective, could have prevented mental illness thereby cutting down on the rates of addiction (Durlak & Wells, 1997; Kazdin, 1993). Second, government grant funding follows policy, which then deeply colors the sorts of research questions the grants will support. When researchers can only receive grants based on the criteria established by policy, they research what the policy allows. After they publish their research, the results are then used by policymakers to perpetuate policy or to create new policy (Humphreys & Rappaport, 1993). In this way, the political process can become a self-fulfilling prophecy. Laws are proposed and passed for political ends, then grants are funded for those same ends. Researchers apply for and receive the grants, which then support the original political agenda (Finkleman, 1993; Chambliss, 2001). Because of these processes, the War on Drugs quadrupled the number of inmates in prison from 1980–2007, as it entailed minimum-mandatory sentencing for those convicted of drug crimes (Blaze, 2011). This war then swelled the legal and judicial system to the breaking point, prompting local jurisdictions to innovate ways of relieving the pressure. Officials in Miami, Florida established the first drug treatment court in 1989. The Miami correctional system found itself particularly overwhelmed by drug arrests because Miami serves as a major trans-shipment hub for drug trafficking (Harrison & Scarpitti, 2002). Most of the arrests, however, did not involve those offenders dealing in large quantities of drugs, but rather the arrest and prosecution of low-level drug dealers, because new drug laws increased the penalty for even small quantities of possession or sale (Belenko, 2000). This created a significant backlog in the judicial system between arrest and trial of those accused of felony drug trafficking that averaged 223 days (Harrison & Scarpitti, 2002). A crisis developed in the system, because Florida law specified that the accused was entitled to a trial within 175 days of his arrest (Boland, Mahanna, & Sones, 1992). This prompted the officials in Miami (and since, other venues as well) to experiment with new ways of managing their caseloads. Beginning in 1986, officials in Miami created the expedited drug case management (EDCM) system and differentiated case management (DCM) (Cooper, Solomon, Bakke, & Lane, 1992; Cooper & Trotter, 1994; Jacoby, 1994). The philosophy behind these systems entails a lighter or more lenient sentence for the accused if he enters a quick guilty plea and waives his right to a grand jury proceeding (Belenko & Dumanovsky, 1993; Smith, Davis, & Lurigio, 1994). EDCM courts streamlined the processing of drug offense cases by dedicating

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a single court to drug cases. This served to decrease the time between arrest and hearing for these cases. Hora, Schma, and Rosenthal (1999) stated that EDCM courts have the following core elements: “(1) clear guidelines for plea offers to facilitate early resolution; (2) consistent dates for plea negotiations, trials, and motions; and (3) bypassing of the grand jury process, where appropriate, through use of information or defendant waiver” (p. 451). EDCMs still utilize traditional methods for adjudicating drug offenses, including the adversarial relationship between prosecutor and defense attorney, judge as detached referee, and incarceration and supervision as the consequence of an offense. EDCMs do not emphasize treatment and recovery and do not try to solve the underlying problem of many, if not all, drug cases—the drug addiction of the accused. This expedited process dramatically decreased the time between arrest and disposition, however officials noted that all they were doing was cycling the drug offenders through the court in a quicker manner rather than addressing the root of the problem—addiction. They realized they needed a drug-abuse or addiction-intervention program to decrease recidivism, so they began to link treatment with the judicial system. One particularly influential figure was Judge Stanley Goldstein, who firmly believed in the drug court concept and had the strength of personality to show leadership in creating the drug court movement (Harrison & Scarpitti, 2002). What surprised the professionals working in Miami was the overwhelmingly positive response to the program by offenders, anxious to either receive treatment, expedite the process, or both (Cooper et al., 1992). Under the leadership of Goldstein, many jurisprudence professionals experienced a benefit to the drug court system quite quickly. This resulted in the formation of a consortium to appeal to the United States Congress to grant funding for the drug court system, and lobbying efforts to obtain funding for the drug treatment court system from the United States Justice Department. Their efforts resulted in the Violent Crime Control Enforcement Act of 1994, the largest crime bill in the history of the United States. Their lobbying proved so successful that by 1999 the federal government distributed over $50 million to the treatment courts. This represented, at the time, an even greater shift in the direction of the corrections process than the “narcotics farms” earlier in the century had made (Wenzel, Longshore, Turner, & Ridgely, 2001). In looking across the theory and research on drug court processes, seven distinctions become clear between the criminal court system and the drug court system (Belenko, 2001; Harrison & Scarpitti, 2002; Hora, 2002; Hora, Schma, & Rosenthal, 1999; Johnson, Hubbard, & Latressa, 2000; Office of Justice Programs, 1999; Tyuse & Linhorst, 2005; Vigdal, 1995). First, the process within the drug court system proves non-adversarial at its core, with an implicit (and sometimes explicit) goal of cooperation between the defendant, the court, and the treatment professional. This stands in stark contrast to the usual criminal court procedures, which prove highly adversarial with the prosecution and defense working hard to oppose one another over the guilt or innocence of the accused. Second, decisions about the case are made in teams composed of a representative of the judicial system, an advocate for the defendant, and a representative of the treatment system working in cooperation. In the usual criminal court system, the jury or judge pronounces guilt (or innocence), and for those found guilty, the judge pronounces sentence. Third, the drug courts use a combination of sanctions and incentives in order to reduce recidivism and promote sobriety. Sanctions and incentives are a combination of punishments

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(or threat of punishment) and promise of reward. If, for example, the offender completes his drug treatment program, then the judge may waive the rest of his sentence. In the normal court system, the only option for the judge is punishment, in the form of prison or jail, or other sentences. Fourth, the judge directly interacts with the offender and monitors his progress through the treatment system. In the normal criminal court system, the judge refers the offender to custody (if convicted) or releases him (if not), which marks the end of their interaction. Fifth, the drug courts can offer case management services to assist those looking to break the cycle of addiction with housing, health care, educational, and daily-life issues that may arise. In the criminal court system, the offender is either remanded directly to probation with a suspended sentence, or the prison or jail becomes the sole custodian and caretaker of the offender. If not convicted, then the formerly accused is sent back to his life without any resources. Sixth, drug courts can require long-term treatment of abuse and addiction disorders and can legally order an offender to attend such treatment. In the normal correctional system, treatment options generally prove wanting or lacking entirely. Seventh, the drug court system entails close supervision of the offender by the judge as well as the treatment staff. In a typical prison system, the offenders are housed and not monitored for progress. In essence, the drug court system emphasized treatment, monitoring, and ongoing supervision. Judge Hora (2002) outlined her 10-part model for drug courts in this way:

Key Components of Drug Courts 1. Drug courts integrate alcohol and other drug treatment services with justice system case processing. 2. Using a non-adversarial approach, prosecution and defense counsel promote public safety while protecting participants’ due process rights. 3. Eligible participants are identified early and promptly placed in the drug court program. 4. Drug courts provide access to a continuum of alcohol, other drug, and related treatment and rehabilitation services. 5. Abstinence is monitored by frequent alcohol and other drug testing. 6. A coordinated strategy governs drug court responses to participants’ compliance. 7. Ongoing judicial interaction with each drug court participant is essential. 8. Monitoring and evaluation measure the achievement of program goals and gauge effectiveness. 9. Continuing interdisciplinary education promotes effective drug court planning, implementation, and operations. 10. Forging partnerships among drug courts, public agencies, and community-based organizations generates local support and enhances drug court program effectiveness. The National Association of Drug Court Professionals published its Best Practice Standards in 2013, which reflects Hora’s summary of the purpose and nature of drug courts. The association reviewed research from the past 20 years to construct best standards of practice for drug court personnel across five domains.

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The first issue taken up was the issue of the target population. Ideally, drug courts target high-risk offenders, namely those that are addicted to drugs or alcohol. The authors noted from their research, however, that if a drug court also serves less risky offenders, the high-risk offenders should not be intermixed with low-risk offenders in the treatment process. They also specified that if a mental illness issue would prevent success in the program, the offender may be referred to a different court rather than proceeding through the drug courts. The second issue addressed was the issue of historically disadvantaged groups, and the role of their historically disadvantaged status relative to the process. The authors proved unequivocal on this point in that disadvantaged groups are not to be discriminated against in the drug court system in terms of access, retention, treatment, and incentives/sanctions. They suggested assessment procedures along each step of the entire system to monitor for discrimination. The third issue they addressed was the bench, particularly the roles and responsibility of the judge relative to the unique nature of drug courts. In particular, they suggested that judges receive training on ethics, evidence-based treatment, and the community-supervision process. As part of this training they suggested that judges serve lengthy enough terms to preserve continuity of the court program and their cases, and to ensure that participants in the program see the same judge throughout the process. They are also counseled to meet regularly with all participants, including the offender, to discuss the offender’s progress. Fourth, the authors described how to apply incentives and sanctions. From the research, they found that both need to be predictable (the offender knows in advance the consequence he receives for a violation of the program). The sanctions and incentives also need to be fair, in that the severity of the sanction or the desirability of the incentive matches the severity or excellence of the offender’s behavior. These incentives and sanctions also need to be consistent, in that every time the offender behaves in a particular way, he knows what the outcome will be with some reliability. Fifth, substance abuse treatment professionals are to utilize standardized assessments, meaning assessments that are research based and valid across the offender continuum. They suggested that professionals provide treatment for its own sake, not as a reward or punishment. They encouraged professionals to offer clinical services validated by research. These key components and standards of practice reflect a shift in thinking about the nature of addiction and the courts’ intervention in the processes of substance dependence and crime. The key components demonstrate a less individualistic and more systemic approach to both jurisprudence and intervention. The role of the court system transforms from one of behavior change through punishment and/or monitoring to one of behavior change through understanding and treatment. The courts, in essence, become involved in the therapeutic process and encourage offenders to seek treatment by mandating they do so in exchange for a reduced sentence or parole instead of prison. The willingness of these offenders to authentically and willingly accept help when they feel coerced into accepting the treatment becomes of issue for psychologists and other therapists receiving referrals from the courts. Some of these clients come in willingly and genuinely seek change. Others do so only with great reluctance, and passively or actively fight intervention. Some psychologists, assuming that their clients are reluctant to receive help, become reluctant to deeply relate to their clients. This creates four possible continua of relating between therapist and court-referred client in therapy. One is the client is some degree of closed to relating to the therapist and what she has to say, while the therapist is also closed and

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shallowly intervenes without compassion. Two is the client is some degree of closed while the therapist seeks to remain open and compassionately intervene. Three, the client is genuinely open and desires to change, while the therapist remains closed to compassion and minimally intervenes. Fourth, both therapist and client are open to one another and to the interventions they attempt (Polizzi & Draper, 2014). This fourth possibility seems ideal, but issues still remain. Of particular interest is the issue of whose good the therapist and client are seeking. If the good is the needs of society, then this therapy is actually for the benefit of people not in the room, and the interventions may not make sense or even apply in the life of a uniquely individual client. For example, if a client is court-referred for treatment for substance use and possession, the goal of the therapy may be to cease that process. However, the courts and the therapist assume that in the particular life of this client, alternatives to substance abuse are not only viable but better than a life of substance use. It may be hard for the members of the court and therapy staff to imagine the life of a given client whose community is economically depressed with few to any opportunities for stable employment and rife with crime, violence, and economic and social stagnation. Two non-exclusive therapeutic models have been designed to provide intervention for offenders in the court or correctional system. One, the Risk-Need-Responsivity (RNR) model, is designed to provide intervention from the perspective of what the therapeutic community believes is needful in the life of the client (Andrews & Bonta, 2010). These authors described their psychology of criminal conduct (or PCC), which is an effort to identify generalizable factors of criminal behavior that exist across cultural and demographic groups. The therapists assess the risks of re-offending, the needs of the client that may predict re-offending, and help the client to respond to his or her needs in new ways. It is, in essence, a crime-control model rather than a therapeutic model (Polizzi, 2014). The second is the Good Lives Model (GLM), which the researchers base on positive psychology (Ward, 2002; Ward & Mann, 2004). In the GLM, the client’s perspective and holistic life centrally dictate the goals of therapy. Ward and his colleagues conceptualized treatment not as a crime-control model directly, but rather that crime is what happens when people attempt to meet their needs in a problematic way. By assessing the needs of the offender in treatment, they work with him or her to find other ways of meeting these needs. They argued that there are primary needs (needs we all share and desire to meet) and secondary needs (methods that seem needful in and of themselves but actually serve to meet primary needs). Ward and Gannon (2006, p. 79) listed the 11 primary needs, which are: 1. 2. 3. 4. 5. 6. 7. 8. 9. 10. 11.

Life (including healthy living and functioning) Knowledge Excellence in work (including mastery experiences) Excellence in play (including mastery experiences) Excellence in agency (i.e., autonomy and self-directedness) Inner peace (i.e., freedom from emotional turmoil and stress) Friendship (including intimate, romantic, and family relationships) Community Spirituality (in a broad sense of finding meaning and purpose in life) Pleasure Creativity

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Ward and his colleagues argued that pro-social secondary needs not only help clients meet their primary needs, but such secondary needs are greatly inhibitory to criminogenic practices. Therefore, therapists working to rehabilitate those in the correctional system work to help the client identify his or her primary needs and all the ways the client has available to him or her to meet these needs. By having the clients identify needs and work toward them within the clients’ life-contexts, the overall health and functioning of the clients should improve (their primary goal), and secondarily, recidivism should decrease (Ward & Gannon, 2006). However, there are those who argue that the jurisprudence system can be therapeutic itself, and can help offenders change.

Therapeutic Jurisprudence “Therapeutic jurisprudence is the study of the extent to which substantive rules, legal procedures, and the roles of lawyers and judges produce therapeutic or antitherapeutic consequences for individuals involved in the legal process” (Chase & Hora, 2000, p. 12). This involves a recognition by the courts and by legal professionals that drug use represents more than just a crime. Instead, it also serves as an acknowledgement that drug use also represents a significant sickness, both for the individual abusing drugs as well as for the society itself in which he lives. This also acknowledges that drug abuse and addiction often manifest as chronic conditions, with uncertain outcomes relative to punishment or treatment (Harrison & Scarpitti, 2002). In addition, legal professionals, scholars, and the general public have grown increasingly skeptical about the effectiveness of lengthy sentencing, and hungered for new methods of working with this issue (Blumstein & Beck, 1999). Scholars cannot emphasize this shift sufficiently to capture the magnitude. Judges, in essence, become therapeutic agents in the effort to treat addiction and substance abuse as much as the addictions professional, the lawyer, and the probation and parole officers do (Harrison & Scarpitti, 2002). For those of us working in the system as therapists, however, the marriage of law and therapy results in some tensions and compromises that can prove difficult to balance at times. Therapy in correctional settings involves a tension not often seen outside, namely the tension between the needs of the offender (the “client” in therapeutic language) and the needs of the legal system (Polizzi, Braswell, & Draper, 2013; Polizzi, Draper, & Andersen, 2013). The legal system makes demands on which therapies we do, how we do them, and which outcomes count positively and which count negatively. For example, in many jurisdictions marijuana possession and use remains illegal with stiff sentences associated with this crime. If officers arrest someone with a personal-use quantity of marijuana, thereby prompting a referral by the system to the drug courts, the offender will meet with a substance abuse counselor. That counselor is required by the system to implement treatments approved of by the system itself. After the counselor does so, the system defines “therapeutic success” often as total abstinence from using drugs after. This can put the counselor and client in a difficult situation. Imagine that the client reduces his marijuana use from several times a day to once a week. This represents a highly significant therapeutic improvement, one worth celebrating. However, if the system defines “treatment success” as “total abstinence,” this would be considered a treatment failure. Belenko (2002) highlighted many similar issues with assessing the efficacy of the drug court system, including which data to gather, how to gather it, how to justify one form of data over another, and how to systematize the whole process to ensure that professionals are defining the issues in the

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same way. Progress is underway, but remains incomplete; however, despite the difficulties, treatment professionals see this process as a significant improvement over the mandatorysentencing process currently used in many jurisdictions (Farabee, Prendergast, & Anglin, 1998; Goldkamp, 2000).

The Need for Drug Courts The “crack cocaine scare” of the 1980s prompted much of the severe anti-drug legislation (Harrison & Scarpitti, 2002) and the increased criminalization of drugs inspired by that scare led to an immense surge in the percentage of Americans incarcerated. Although the rates of incarceration have slowly declined since 2007, the rates are still the highest in the world (Glaze & Parks, 2012; International Centre for Prison Studies, 2010). Those who value the “toughon-crime” approach to legislation around sentencing point out the significant correlation between drug use and violent crime (Pew Center, 2009). However, others point out that when “foot soldiers” (minor dealers) are arrested and locked up that does little to decrease the drug trade in their community. They point to the phenomenon that when the system incarcerates drug dealers, new, younger, and more violent dealers simply take their place and the community remains dangerous, and potentially even more so when the jurisdiction follows a tough-oncrime approach (Blumstein, 2008; Western, 2006). Americans who are members of ethnic minority groups make up a disproportionate population of these communities and, by extension, make up a disproportionate percentage of those incarcerated (Justice Policy Institute, 2009). For example, African Americans find themselves incarcerated at nearly six times the rate of Caucasians for the same crimes. In addition, Latinos find themselves incarcerated at nearly double the rates of Caucasians for the same crime (Mauer & King, 2007). This makes sense, because African Americans and Latinos are disproportionately represented in poor communities (Bradley, Corwyn, McAdoo, & Coll, 2003). Unfortunately, some lawmakers may believe “people are only poor if they don’t work hard, so if they don’t want to be poor they should just work”—effectively blaming these communities for their own problems. Unfortunately, many of these communities exist because of decades, if not centuries, or more of racism and marginalization (Quandango, 1994). Earlier in the last century we saw efforts to bring more equality across the United States through the “war on poverty.” Credited in part to former president Lyndon B. Johnson, this war was characterized by large state and government investment into the economic development of communities, job creation, education, and health and crime prevention programs (Quandango, 1994; Zarefsky, 1986). Unfortunately, in the eyes of the general public, members of ethnic minority groups (particularly African Americans) were associated with drugs and violent crime due to two primary factors. First, due to a long history of discrimination and oppression, the War on Drugs involved marginalized and poor members of our society, a disproportionate number of which were from ethnic minority groups. Second, media images portrayed these issues as largely an ethnic-minority issue, but one that affected Caucasians due to the violent crime attributed to the drugs (Quandango, 1994). When the War on Drugs began in earnest late in the Nixon administration, much of the funding for this war was deferred from the War on Poverty to fund it (Finkleman, 1993). So the very programs designed to help members of poor communities were closed and a war began that took a disproportionate toll on those same communities. The amount of money spent on law enforcement and court processes remains

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more strongly correlated with incarceration rates in a given community than actual rates of drug use (FBI, 2007; Justice Policy Institute, 2009; Levine & Small, 2008). Likewise, we see a similar process with the zero-tolerance policies common in many public school systems. With over 5 million young adults ranging in age from 16 to 24 living in poverty, the zerotolerance policy keeps many of them from obtaining schooling, learning a trade, or breaking out of poverty. Again, members of ethnic minority groups remain disproportionately represented in this group with no access to education, and all of the risk factors for further incarceration remain for themselves and their children. The War on Drugs, in essence, became a war on education (Blumenson & Nilsen, 2002). With a significant percentage of the men and women in a community incarcerated, it proves very difficult for the community to grow and change, so the cycle repeats itself. The numbers involved seem quite staggering; according to the Bureau of Justice Statistics there were over 94,600 prisoners both sentenced and serving time for drug offenses at the federal level in 2012. The state level was many times that, giving a total of over 500,000 people incarcerated for drug crimes (Carson & Golinelli, 2013; Justice Policy Institute, 2008). The drug court system, by offering education and treatment, can (to a degree) help curb this trend. Economically, the pressure for alternatives remains intense. By 2008, the cost of incarceration was over $75 billion in the United States, with 60 percent of that cost coming from tax-derived state funds (Schmitt, Warner, & Gupta, 2010). When state budgets become tight, the need to find alternative programs grows, or the citizens end up paying more taxes to keep the prisons open. Unfortunately, prisons are designed to house a predetermined number of people, and overcrowding becomes intense in some places. Twenty-three states, as of 2009, were operating at over 100 percent capacity, creating highly unsafe environments for the prisoners, officers, and administrators (Justice Policy Institute, 2009). With financial pressure growing and physical space becoming limited, alternative systems, like the drug courts, are increasingly important.

The Effectiveness of Drug Courts Significantly, between 16–18 percent of the prison population convicted of violent crimes committed the crime to obtain money for drugs (Mumola & Karberg, 2006). With over onequarter of the incarcerated population serving sentences for drug offenses, this indicates that drugs are implicated in almost half of the cases of incarcerated Americans. Although the pressure on incarceration continues, when adding the overall cost of crime, incarceration saves society $0.37 per dollar spent on incarceration, while treatment yields $18 in savings to society per dollar spent on incarceration (Aos, 2001). In contrast with incarceration, community intervention and treatment programs save the taxpayers over $20,000 dollars per inmate per year. Jurisdictions with drug courts, which refer the most offenders to treatment nationwide, decrease the number of incarcerations by 100 per 100,000 convicted (Justice Policy Institute, 2008), saving a significant sum of money to those jurisdictions. According to the Bureau of Justice Statistics, treatment for those convicted of drug offenses has increased. As of 2009, an estimated 23 percent of people convicted of drug crimes were referred to treatment as a condition of their sentencing (Rosenmerkel, Durose, & Farole, 2009). Turner et al. (2002) summarized findings of studies conducted on the drug court process. Although primarily positive, their six findings indicate that problems still exist within the drug court system.

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First, most cases that drug court professionals see are not simple drug-abuse-only cases. In fact, they see some offenders with serious crimes in their histories, which the drug courts were not designed for. In addition, many of those within the drug court system report that they have tried treatment before, but without any real success. Complicating this even further, is that some offenders in drug courts demonstrate mild to severe mental illness, history of homelessness, as well as chronic if not terminal health problems like HIV infection. Second, although the offenders in the drug treatment court are more complicated than the system was designed for, those within the drug court system use drugs significantly less often than those going through the regular incarceration process. Third, drug court offenders show much higher graduation and retention rates than those in other drug treatment programs. For example, their research indicated that the average across the articles they reviewed demonstrate an average graduation rate of between 47 percent and 67 percent. Fourth, the drug court program significantly reduces re-arrest, but their data was limited to the duration of the drug court program for their sample. However, the re-arrest rates were as low as 12 percent in some drug court programs, but as high as 45 percent in others. Fifth, although long-term post-program recidivism data remain lacking, a few studies indicated statistically significant post-program differences compared to non drug court offenders. Overall, the studies they reviewed indicated that the post-program rates of recidivism were somewhat lower for those graduating from drug court. Sixth, they reviewed the research on cost savings and found cost savings in three primary areas, namely jails, probation, and law enforcement. However, they noted that comprehensive cost research is lacking in terms of how much (specifically) the drug court system saves the state and the taxpayer.

In Summary Garren, the young man we discussed early in this chapter, went through a drug court system eventually. Although he complained and reportedly did not enjoy the process, the outcome proved positive. He stopped pursuing his drugs of choice (methamphetamine and marijuana) and graduated from a program. Thereafter, he joined job-training programs linked to the drug court that he learned of through one of his drug court therapists. From that training he gained employment in the construction industry. Not all experiences through the drug court process prove as helpful as Garren’s in terms of lowering rates of addiction and increasing employability, but the drug court system seems to avail offenders of opportunities and advantages that the standard system of retribution and incarceration cannot offer.

Note 1.

Longitudinal research studies follow the same group of subjects for an extended period of time, from a matter of weeks to several decades or more.

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Levine, H., & Small, D. P. (2008). Marijuana arrest crusade: Racial bias and police policy in New York City, 1997–2007. New York, NY: New York Civil Liberties Union. Downloaded January 4, 2014 from www.nyclu.org/files/MARIJUANA-ARREST-CRUSADE_Final.pdf Lindesmith, A. R. (1965). The addict and the law. Bloomington, IN: Indiana University Press. MacDonald, J., & Agar, M. (1998). What is a trip—and why take one? In L. A. Henderson & W. J. Glass (Eds.), LSD: Still with us after all these years (pp. 9–36). San Francisco, CA: Jossey-Bass. McGlothlin, W. M., Anglin, M. D., & Wilson, B. D. (1977). An evaluation of the California civil addict program. National Institute on Drug Abuse Services Research Monograph Series, DHEW Publication No. (ADM). U.S. Washington, DC: Government Printing Office. McIntosh, J. J., MacDonald, F. F., & McKeganey, N. N. (2006). Why do children experiment with illegal drugs? The declining role of peer pressure with increasing age. Addiction Research & Theory, 14(3), 275–287. Martin, S. S., Butzin, C. A., Saum, C. A., & Inciardi, J. A. (1999). Three-year outcomes of therapeutic community treatment for drug-involved offenders in Delaware: From prison to work release to aftercare. Prison Journal, 79(3), 294–320. Mauer, M., & King, R. (2007). Uneven justice: State rates of incarceration by race and ethnicity. Washington, DC: The Sentencing Project. Mumola, C., & Karberg, J. (2006). Drug use and dependence, state and federal prisoners. Washington, DC: Bureau of Justice Statistics. Retrieved January 4, 2014 from http://bjs.ojp.usdoj.gov/content/ pub/pdf/dudsfp04.pdf Murchison, K. M. (1994). Federal criminal law doctrines: The forgotten influence of national prohibition. Durham, NC: Duke University Press. Musto, D. (1987). The American disease: Origins of narcotic control (expanded edition). New York, NY: Oxford University Press. Nicholi, A. (1983). The nontherapeutic use of psychoactive drugs: A modern epidemic. The New England Journal of Medicine, 308(16), 925–933 Nolan, J. L. (2002). Drug treatment courts and the disease. Substance Use and Misuse, 37(12), 1723–1750. Nuño-Gutiérrez, B., Rodriguez-Cerda, O., & Álvarez-Nemegyei, J. (2006). Why do adolescents use drugs? A common sense explanatory model from the social actor’s perspective. Adolescence, 41(164), 649–665. O’Malley, P., & Valverde, M. (2004). Pleasure, freedom and drugs: The uses of “pleasure” in liberal governance of drug and alcohol consumption. Sociology, 38(1), 25–42. Office of Justice Programs. (1999). Looking at a decade of drug courts. Drug court clearinghouse and technical assistance project. Washington, DC: U.S. Department of Justice. Pandina, R. J., & Johnson, V. L. (1999). Why people use, abuse, and become dependent on drugs: Progress toward a heuristic model. In M. D. Glantz & C. R. Hartel (Eds.), Drug abuse: Origins & interventions (pp. 119–147). Washington, DC: American Psychological Association. Peters, R. H., Greenbaum, P. E., Edens, J. F., Carter, C. R., & Ortiz, M. M. (1998). Prevalence of DSMIV substance abuse and dependence disorder among prison inmates. The American Journal of Drug and Alcohol Abuse, 24(4), 573–587. Pew Center on the States (2009). One in 31: The long reach of American corrections. Washington, DC: The Pew Charitable Trusts. Retrieved January 4, 2014 from http://www.pewstates.org/uploadedFiles/ PCS_Assets/2009/PSPP_1in31_report_FINAL_WEB_3–26–09.pdf Phillips, P. P., & Johnson, S. S. (2001). How does drug and alcohol misuse develop among people with psychotic illness? A literature review. Social Psychiatry and Psychiatric Epidemiology, 36(6), 269–276. Polizzi, D. (2014). Developing therapeutic trust with court-ordered clients. In D. Polizzi, M. Braswell, & M. Draper, (Eds.), Transforming corrections: Humanistic approaches to corrections and offender treatment. (pp. 213–227). Durham, NC: Carolina Academic Press.

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Polizzi, D., Braswell, M., & Draper, M. (2013). Transforming corrections: Humanistic approaches to corrections and offender treatment. Durham, NC: Carolina Academic Press. Polizzi, D., Draper, M., & Andersen, M. (2013). Fabricated selves and the rehabilitative machine: Toward a phenomenology of the social construction of offender treatment. In B. Arrigo, & H. Bersot, (Eds.), International Handbook of Criminology. New York, NY: Routledge. Quandango, J. (1994). The color of welfare: How racism undermined the war on poverty. New York: NY, Oxford University Press. Robinson, P., & Darley, J. (2004) Does criminal law deter? A behavioural science investigation. Oxford Journal of Legal Studies, 24(2), 173–205. Roffman, R. A. (2013). Legalization of marijuana: Unraveling quandaries for the addiction professional. Frontiers in Psychiatry, 4, 1–3. Rosenmerkel, S., Durose, M., & Farole, D. (2009). Felony Sentences in State Courts, 2006 – Statistical Tables. Bureau of Justice Statistics. Washington, DC: US Department of Justice. Sayegh, G. (2009). New York City’s massive marijuana arrests. huffingtonpost.com Retrieved January 3, 2014 from http://www.huffingtonpost.com/gabriel-sayegh/new-york-citys-massivema_b_269384.html Schmitt, J., Warner, K., & Gupta, S. (2010). The high budgetary cost of incarceration. Washington, DC: Center for Economic and Policy Research. Smith, B. E., Davis, R., & Lurigio, A. J. (1994) Introduction to the Special Issue. Justice Syst. J., 17 (1), v–x. Söderström, K., & Skårderud, F. (2013). The good, the bad, and the invisible father: A phenomenological study of fatherhood in men with substance use disorder. Fathering, 11(1), 31–51. Spanagel, R. (2011). Why do we take drugs? From the drug-reinforcement theory to a novel concept of drug instrumentalization. Behavioral and Brain Sciences, 34(6), 328–347. doi:10.1017/ S0140525X11000847 Turner, J. A., Calsyn, D. A., Fordyce, W. E., & Ready, L. (1982). Drug utilization patterns in chronic pain patients. Pain, 12(4), 357–363. Turner, S., Longshore, D., Wenzel, S., Deschenes, E., Greenwood, P., Fain, T., . . . McBride, D. (2002). A decade of drug treatment court research. Substance Use & Misuse, 37(12–13), 1489–1521. Tyuse, S. W., & Linhorst, D. M. (2005). Drug courts and mental health courts: Implications for social work. Health & Social Work, 30(3), 233–240. United Nations. (2010). Drug Statistics and Trends. Undocs.org, Retrieved January 1, 2014 from http://www.unodc.org/documents/wdr/WDR_2010/2.0_Drug_statistics_and_Trends.pdf Vigdal (1995). Planning for alcohol and other drug abuse treatment for adults in the criminal justice system. CSAT TIP Series 17. U.S. Department of Health and Human Services, Rockville, MD. Ward, T. (2002). Good lives and the rehabilitation of offenders: Promises and problems. Aggression and Violent Behavior, 7, 513–528. doi:10.1016/S1359–1789(01)00076–3 Ward, T., & Mann, R. (2004). Good lives and the rehabilitation of offenders: A positive approach to treatment. In A. Linley & S. Joseph (Eds.), Positive psychology in practice (pp. 598–616). New York, NY: John Wiley. Ward, T., & Gannon, T. A. (2006). Rehabilitation, etiology, and self-regulation: The comprehensive good lives model of treatment for sexual offenders. Aggression and Violent Behavior, 11(1), 77–94. Wenzel, S. L., Longshore, D., Turner, S., & Ridgely, M. S. (2001). Drug courts, a bridge between criminal justice and health services. J. Crim. Justice, 29, 241–253. Western, B. (2006). Punishment and inequality in America. New York, NY: Russell Sage. Wexler, H., & Williams, R. (1986). The stay’n out therapeutic community: Prison treatment for substance abusers. Journal of Psychoactive Drugs, 18, 221–230. Wexler, H. K., Melnick, G., Lowe, L., & Peters, J. (1999). Three-year re-incarceration outcomes for amity in-prison therapeutic community and aftercare in California. Prison Journal, 79(3), 321–336.

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9

Eyewitness Memory

Introduction: Eyewitness Memory in Action The following case study comes from the National Registry of Exonerations (Penlaver, 2015).

On June 26, 1994, a Palm Beach County police officer discovered a convertible on fire near South Bay, Florida. The car was registered to 48-year-old Casmir Sucharski, owner of Casey’s Nickelodeon restaurant. Police attempted to find Sucharski but did not find him at his home. The next morning the mother of 25-year-old Marie Rogers reported her daughter missing. She said Rogers had gone to Casey’s restaurant on the night of June 25 with a friend, 25-year-old Sharon Anderson. A police officer went to the restaurant and learned that Sucharski, Rogers, and Anderson had left the restaurant together shortly after midnight. The officer went to Sucharski’s home again where Anderson’s car was found parked. After knocking and receiving no answer again, they looked through a window and saw the bodies of Anderson, Rogers, and Sucharski. All three had been fatally shot. In looking around the home the officers noticed that Sucharski had a home surveillance system. When the police viewed the videotape from the 26th they watched two men, one with a cap and sunglasses and another with a shirt over his head, beat Sucharski then shoot all three victims. Upon leaving, the man with a shirt uncovered his face. The suspect revealing his face gave police an important lead in the case. The police believed that the suspect who revealed his face looked like Pablo Ibar. Although only two suspects appeared in the video, police arrested Ibar and two of his roommates in connection with the three homicides. After arresting the three roommates, the officers interviewed a fourth named Klimeckzo and showed him the video of the homicides. In Klimeckzco’s opinion, the man in the ball cap and sunglasses looked like Seth Penalver, a friend of the roommates. The police issued a warrant for Penalver, and when he learned the police were looking for him, Penalver turned himself in on August 5th. Penalver and Ibar went on trial for charges of first-degree murder, robbery, burglary, and attempted robbery in Broward County Circuit Court in June 1997.

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Evidence including fingerprints, hair, and blood was collected from Ibar’s and Sucharski’s residence, but none could be linked to the defendants. Two facial reconstruction experts testified—one for and one against the prosecution. Neither could link the video image of the man with sunglasses and hat to Penalver because the video was of poor quality. Because physical evidence could not be linked to the defendants, the court relied on the testimony of five witnesses: Klimeczko, Milman, Munroe, San, and Foy. Klimeczko, the roommate who originally identified Penalver from the videotape, admitted to being intoxicated on alcohol and narcotics during his interview with police, and therefore could not be certain of Penalver’s identification. Milman, a witness who knew all of the men, described how he followed the police officer’s instructions to sign his name under the photos of Ibar and Penalver and only learned later that his signature was taken as identifying the two men as murderers. Munroe, a former lover of Penalver, similarly to Milman, admitted that she signed her name under Penalver’s thinking that she was merely signing off that she had seen his picture, not that she was identifying him as the gunman. San, a former roommate of Penalver, identified Penalver as the man in the sunglasses and cap based on the way he walked and moved on the videotape. When pressed, however, she admitted that she could not identify the face of the man in the photo as Penalver. She also confessed that she offered her testimony in exchange for leniency on her then-boyfriend, who was facing a charge of aggravated battery on a pregnant woman. Foy, Sucharski’s neighbor, testified that as he was leaving his home on the morning of the murders, a car with two men left Sucharski’s house and drove behind him for about 10 minutes. Foy identified the passenger as Ibar, but could not identify the driver. In January of 1998, a mistrial was declared and both cases were retried separately. In 1999, Penalver was convicted and sentenced to death, followed by Ibar in 2000. The cases went to the Florida Supreme Court, who then reversed Penalver’s conviction in 2006. The justices concluded that it was too difficult to match Penalver to the man with sunglasses in the videotape. During this time, Ibar’s new lawyer acquired information that contained raw notes of detective interviews with witnesses, including Klimeczko, showing that the witnesses had been unable to identify Penalver at first. According to the notes, only after considerable pressure did the witnesses allegedly identify Penalver, though at trial they denied doing so at all. The report also revealed that Crime Stoppers had given reward money to Klimeczko shortly after his initial interview with police per the lead detective’s request. In light of this new information, the Florida Supreme Court reversed Penalver’s conviction in 2006. On December 21, 2012, after his third trial, the jury acquitted Penalver. Ibar’s conviction was upheld by the Florida Supreme Court and he remains on Florida’s death row.

There are several issues worthy of discussion in this particular case. First is the issue of recognition and memory. Both Klimeczko and San (initially) told police or the court that they recognized the man in the videotape as Penalver because they knew him and remembered what he looked like and how he moved. The second issue is the police suggesting to witnesses that Penalver was one of the murderers, or misleading them by giving them unclear instruction as

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to what their signature meant, in the cases of Munroe and San. A third issue, in the cases of Klimeczko, San, and Foy, was the issue of clear view, sufficient to adequately recognize who they were actually seeing, given the quality of the surveillance tape and the cap and sunglasses concealing the suspect. We will discuss each of these issues, and more, below.

Definition of Eyewitness Testimony Eyewitness testimony is the report of an individual who observed an event that is being investigated by a court or law enforcement, often for the purpose of identifying a perpetrator (Smalarz & Wells, 2014). This can be considered evidence in a trial, and is frequently used to convict criminals (Semmler, Brewer, & Douglass, 2012). After all, many people believe that what we know is what we observe, and what we observe is what we know. Therefore, if a man saw someone commit a crime, then there is no reason to doubt his report of his own observation. Many people hold this assumption, namely that empirical evidence (what we know due to direct observation) is a source of valid knowledge (American Heritage Dictionary, 2000). In addition, the physical senses (particularly sight) are the primary source of empirical evidence, and that memory and testimony relate back to the physical senses (Audi, 1999). So, the physical senses, like sight, are a source of truth, therefore what we see must be true, then when we tell the court what we have seen the court believes we are telling the truth. However, in the Penalver case above, we can see that eyewitness testimony is not always reliable. In the case of the testimony against him, we have reason to suspect the invalidity of much of the eyewitness testimony against him. Law enforcement interrogators seemed to believe that Penalver was the culprit, and guided or even coerced supposed eyewitnesses to identify him as the person committing the crime. Apart from the coercive aspects of the Penalver case, we are left wondering why some of the eyewitnesses believed that he was the one who committed the murders. To understand why there are discrepancies between eyewitness testimony and what actually happened at the scene of the crime, we need to look at some basic philosophy that psychology professionals and the legal system assume about eyewitness testimony.

Epistemology of Eyewitness Testimony Epistemology simply means the study of how people know what they know (Audi, 1999). There are many different theories and philosophies of epistemology, but when it comes to eyewitness testimony many people in the social sciences and law assume an empirical epistemology (Slife & Williams, 1995; Wells & Quinlivan, 2009). As mentioned above, empirical means that knowledge is created through direct observation; that if we wish to know about something we need to observe it directly, and that everything we truly know is based on direct observation (Godfrey-Smith, 2003). In addition, many social scientists involved in eyewitness testimony research assume a reductionism as well (Slife & Williams, 1995; Lackey & Sosa, 2006). Reductionism means that any complex process or system, like witnessing a crime in progress, is reducible to its individual parts (like the position, biology, personality, intellect, attitude, and communication of all of the observers involved) (Jones, 2013). Basically everything, no matter how complex, is merely a sum of its parts, so to understand something you need to understand its parts by breaking a complex process down into ever smaller and smaller parts and processes. Once all of these smaller parts and processes are understood and accounted

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for, then researchers can explain any differences or inconsistencies in the process of eyewitness testimony. This is important, because researchers have noted for over 100 years that eyewitnesses are notoriously inaccurate observers of crime (Wells, 1985, 1988; Wells & Leippe, 1981; Wells, Lindsay, & Ferguson, 1979; Wells et al., 1998). With that goal in mind, researchers have looked at some of the variables, the small parts of an overall observation that cause eyewitness testimony to be more accurate or less accurate. However, it could be that if we hold the assumptions of empiricism and reductionism we may not be able to understand complex processes like the observation, memory, and testifying about crime. Because most social scientists and legal professionals assume empiricism and reductionism, we will examine the empirical research on the accuracy and validity of memory, and then eyewitness testimony.

Research on the Accuracy of Memory Over 2,000 years, ago philosophers theorized about memory, and our theorizing continues even today. Plato, for example, argued that the process of forming a memory is like the process of a seal or a stamp pressing into a piece of wax (Hamilton, 1961). Another way of thinking about this is that every experience we have can potentially leave a trace on us, and that trace links to our memory of the experience. The stronger the trace, theorists believe, the more vivid the memory and the easier it will be to recall the experience. This very ancient idea is still with us today in the form of trace-dependent or trace-access theories (King, Zechmeister, & Shaughnessy, 1980; Tulving, 1974). Unfortunately, the “trace” part of these theories left them scientifically questionable. Although researchers could study recall of experience, they had no way of researching the actual trace itself, which left their theory vulnerable to criticism. Neuroscientists, however, believe that memories actually leave a physical trace. Like a muscle that’s regularly exercised, recall of memory strengthens and enlarges brain cells called neurons and the connections between neurons. This enlargement of neurons and their connections is called an engram and there is evidence that engrams exist (Bergstrom, McDonald, Dey, Fernandez, & Johnson, 2013; Sakaguchi &Hayashi, 2012). In essence, when a memory is created there is a physical trace of that memory. When the trace is strong the memory is more vivid and detailed, and we can recall it easier. Unfortunately, memory doesn’t always work that way. These scientists, in their efforts to reduce a complex process like memory to a physical trace, leave out a great number of factors that influence actual memory storage and recall, particularly the context of retrieval. The context of retrieval is the setting we are in when we try to remember, and our state of mind within that context. When either or both of our context and our state of mind change, then our recall of memories often changes as well (Wixed & Mickes, 2010; Tulving, 1974). The research relevant to criminal justice and eyewitness testimony indicates that we can manipulate the mental state of others, which affects their recall in marked ways. Rubin and Wallace (1989) gave a simple example of this in their research. They wanted to see what it would take for the majority of their research subjects to remember the word “ghost.” To one group they gave the cue “a mythical being” and no one recalled “ghost.” To the second group they gave the cue “a word ending in ost” and not a single subject offered the word “ghost.” When they combined the two cues “mythical being” and “ends in ost” all of the subjects recalled the word “ghost.” Context cues don’t just come from instructions given to us by others. Our state of mind, like emotion, intoxication, and the places and activities that bring about emotion or are

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associated with intoxication, affects our memory recall as well, sometimes radically so (Bower, 1994; Lang, Craske, Brown, & Ghaneian, 2001). In an attempt to control for these effects on memories, some scientists reasoned that the stronger the memory, the more accurate the recall and consequently the higher the subjects’ confidence in the accuracy of their memories (Dunlosky & Metcalfe, 2009). In an effort to test this, researchers undertook a series of studies to compare the confidence of memory with the accuracy of memory (Busey, Tunnicliff, Loftus, & Loftus, 2000; Shaw, 1996; Shaw & McClure, 1996; Tulving, 1981; Wells & Bradfield 1999). Sometimes, our confidence in a memory nicely follows the accuracy of our memory. For example, Busey et al. (2000) presented subjects with 30 pictures of different men’s faces. Each picture demonstrated different levels of luminosity (how brightly lit the faces in the pictures were), and the researchers varied the amount of time the subjects looked at the pictures and how much time they were given after the looked at the pictures to rehearse the images they had seen. The researchers then gave the subjects a series of distracting tasks (like solving some math problems), then showed them 60 faces, 30 new mixed in with the ones they had seen before. They found that the subjects’ memory of which faces they had seen before, and the new faces correlated very closely. In other words, in this simple experiment, subjects’ confidence in their memory nicely mirrored the actual accuracy of their memory (Busey et al., 2000). Although Busey et al. (2000) varied luminosity, exposure to a picture, rehearsal time, and even added in distracting tasks, a carefully controlled laboratory study may not be able to account for a real-life situation with multiple sorts of variables that may influence accuracy of memory with multiple distractors and levels of information. To address this issue, researchers have examined the relationship between memory accuracy and confidence (Shaw & McClure, 1996; Wells & Bradfield, 1999). Some researchers have found that although confidence in memory and accuracy of memory correlate strongly for certain specific and obvious features we can see, when we use language to tell a story about what we have seen, our confidence in our memory is actually higher than the accuracy of our memory (Brewer, Sampaio, & Barlow, 2005; Sampaio & Brewer, 2009). Roediger and McDermott (1995), for example, found that we have a tendency to “fill in the blanks” or to complete an implication for a story. For example, if presented during an experiment with a sentence “the man hit the wall,” we are likely to claim later in the experiment that the sentence “the man punched a hole in the wall” was the one we read earlier, even when it was not. What we remember in those cases is the picture in our head when we read the first sentence. A man punching a wall leads logically to there being a hole in the wall. Therefore, since the hole in the wall is a logical extension of a man punching it, we then remember the sentence saying there was a hole in the wall (because the man punched it) even though the sentence merely said he hit the wall (and did not elaborate). Furthermore, even if the man in the story had broken his hand from punching the wall, we will tend to remember whatever came to mind when we read the first sentence. Complicating this issue further, some researchers found that memory is essentially a socially constructed event, and that reductionism doesn’t accurately account for the complexities of memory. Our culture, language, personal history, and where and with whom we attempt recall all play a role in our memory formation and recall. For example, some researchers found that we are better able to differentiate between members of our own race than those of other races (Meissner & Brigham, 2001). Not only do culture and race inform our memory formation and recall, as we try to put into language our memory in the presence of others who are motivated to help us remember, and by our repeated efforts to remember,

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we can distort the accuracy of our memory (Roediger & Gallo, 2002; Roediger, Jacoby, & McDermott, 1996; Roediger & McDaniel, 2007). By way of example, imagine Becky and Bob sitting together talking about an incident that happened at a party they both attended. Bob’s feelings were hurt by a friend who splashed him with a drink, but initially Becky remembers the event as an accidental spill, not a deliberate splash. However, Bob asks her if she saw the mutual friend splash him with a drink. At first, it’s likely that she will remember the spill, but Bob replies “No, she splashed me with the drink after I told her that the horizontal stripes on her dress were not flattering.” Their mutual friend splashing him with her drink makes sense after he made such an unflattering assessment of her attire, so Becky’s thinking about the spill changes a little. The more they talk and the more Bob points out that their mutual friend was in a bad mood, and the nature of his unflattering words about her, the more Becky will come to remember the spill as a deliberate splash. So, Bob wants Becky to remember the event in a particular way, and offers information that confirms his memory of the event, and combined with her repeated effort to remember this event will slowly warp Becky’s memory. Interestingly, her confidence in her memory of a deliberate splash may go up, even if it was a simple accidental spill. The social construction of memory research also points out that we socially construct memory formation, not just recall (Morgan et al., 2004). These researchers induced a great deal of stress in their research subjects and asked them to recall what happened. When they did so, they found out that the level of stress in the observers correlated negatively with the accuracy of their memories, although it did not have a relationship with their confidence. To test this, an experimenter could demand that her subjects perform a difficult time-task in order for them to receive their payment for participating in the experiment, like solving difficult equations in a couple of minutes. Once the experimenter does this repeatedly and induces stress in her subjects, she could have a man (secretly assisting with the research) storm in the room yelling at her, throwing a book against the wall and storming out, adding additional stress. The more stressed the subjects are at that time, the less likely they are to remember accurately what the confederate looked like, what he said, the type of book he threw, and the like. If we couple these research findings with those on the social construction of retrieval, we have very good reason to doubt people’s accounts of stressful events, especially if they are being questioned while they remember a stressful event like a crime they witnessed. To counter this, some psychologists utilized hypnotically induced recall hoping to move past the social construction and the stress and trauma of the event, which would color or prevent memory. Platoni, a psychologist and hypnotherapist, described how we record our sensory experiences of stressful events with a great deal of accuracy, but that we are motivated to forget those memories that are formed in stressful conditions, such as those formed during an abusive or violent incident (2013). The memories recovered through hypnosis are called “recovered memories” (Loftus & Ketcham, 1994). To get to the memories, hypnotherapists perform a hypnotic regression on their patients, which entails walking the patient backward in their memory to ever younger ages until the therapist finds the age at which the stressful or traumatic event occurred (Hunter & Eimer, 2012). However, psychologists found that how the hypnotic induction happened (the process of hypnotizing someone is called induction), and the questions they asked during the induction could actually create memories of events that did not happen (Belli, 2012). This process created what some psychologists and legal professionals call false memory syndrome or FMS (Olio, 2004). These false memories are particularly likely when the hypnotist asks leading questions, like “tell me what your abuser

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was wearing” when the patient has not mentioned anything about an abuser at all. Under hypnosis, we are open to suggestion, or ideas about what we should think or how we should behave. Therefore, in this case, the patient received an accidental suggestion that he was abused, and the probability increases that he will remember abuse when it did not occur. The creation of this false memory can be very traumatic and can lead to further psychological problems for the patient and legal action against those individuals mistakenly remembered as abusers (Harris, 1996). Aware of these issues, some psychologists have attempted to practice hypnosis in a manner that does not plant suggestion in order to increase the validity and accuracy of memory. One method of doing so entails the psychologist focusing on the emotion that the patient feels during the hypnotic regression, staying with that emotion and elaborating upon it. Unfortunately, even during a “clean induction” (one in which the therapist does not accidentally plant a memory suggestion), the emotional content of the memory can still lead to false memories (Drivdahl, Zaragoza, & Learned, 2009). This makes sense, given the relationship between stress and memory recall mentioned above. Regardless, after numerous court cases, recovered memories are not accepted in many states as evidence in a court so the number of attempts to offer this into evidence has sharply declined because of these problems with accuracy (see Althaus v. Cohen, 2000; Carl v. Keraga, 1997; Carlson v. Humenansky, 1996; Hamanne v. Humenansky, 1994; Holbrook v. Moore, 1936).

Memory and Eyewitness Testimony In Harvard University professor Hugo Munsterberg’s 1908 book entitled On the Witness Stand (Munsterberg, 2012), he shares a simple experiment that shows how fallible eyewitness memory and testimony can be. His demonstrations, unlike witnessing crimes, happened in the calm and stable environment of his classrooms at Harvard. During class he would give his students instruction to write down very carefully what they observed. He would then reveal to them a sheet of white cardboard on which he had drawn black dots in an irregular pattern. After waiting 5 seconds, he would then conceal the dots and ask the class how many dots they had observed on the sheet. Surprisingly, some of his students reported seeing 7 to 8 times the number of dots than other students who saw less than the number of dots actually on the sheet. Munsterberg would also perform experiments with his students on their estimates of how fast a person or object was moving, how much time they believed passed between the beginning and end of an experiment, as well as their memory and descriptions of sounds (like voices). In each and every case they found a surprising degree of variation between the students, many of whom reported that they were very sure of the accuracy of their reports, even though what they reported was quite different from what actually happened. Because of this, Munsterberg argued in his book that human memory can be remarkably inaccurate. Given that he conducted these experiments in the calm and quiet environs of Harvard University, the chaos, trauma, and complexity of witnessing an actual crime would conceivably decrease the reliability of an eyewitness even further. Munsterberg argued that human memory is easily affected by what he called illusions, or the circumstances of memory. Memory, it turns out, is affected by judgments, associations, and suggestions. Judgments affect memory because when we recall what we observe we do so in such a way that our observations make sense to us. Unfortunately, this can have the effect of changing our memory. If we see someone steal a heavy television, we may remember that person as larger than he actually is, because in our judgment heavy TVs could only be lifted by a larger, stronger person. Our memories, it seemed

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to Münsterberg, are constructions involving what we sensed and what we judge to be possible. In addition, what we sense is associated with other things that we have sensed or have been told before, and what we currently hold to be true is greatly mixed up in our beliefs and values (Pasupathi, 2001; Taber, Lodge, & Glathar, 2001). For example, when we observe a crime we make sense of what we saw based on the language used, the culture we come from, the meanings of the activities involved, and stories we have heard before about crime and criminals. If we watch a drug deal and testify about what we saw later, our cultural constructions about crime will potentially color our memory. We are more likely to remember those people we believe are more likely to participate in crime, and this association may alter our recollection of the drug deal, which may cause us to identify the wrong suspect if asked. Münsterberg’s worry about the wrongful conviction of suspects based on eyewitness testimony has persisted long after his career ended, and evidence continues to mount that eyewitnesses are not always reliable (Roediger, Wixted, & DeSoto, 2012; Wells & Quinlivan, 2009). One researcher who has done a great deal of work on the topic of eyewitness testimony is Elizabeth Loftus, who is often used as an expert witness in court cases around issues of eyewitness accuracy (Loftus, 1979, 1996; Loftus & Doyle, 1997; Loftus & Greene, 1980; Loftus, Loftus, & Messo, 1987; Loftus & Ketcham, 1991; Loftus & Harley, 2005; Loftus & Palmer, 1974; Palmer, Brewer, & Weber, 2012; Passley, 2012; Roediger, 2008). In an early study, Loftus found that the language a questioner uses about an event affects the recall of the event. Specifically, she showed subjects a movie of a car accident, and then asked them what they observed, but changed the language of the question for each group. She would use verbs such as “smashed” or “hit,” “collided” or “bumped,” with two different groups. For one group she asked, “How fast were the cars going when they smashed into each other?” and for another group she asked, “How fast were the cars going when they hit each other?” The memories of the participants varied. Although the video presented a fender-bender, the “smashed” group remembered the cars going at a higher speed, and remembered more glass on the ground than the “hit” group (Loftus & Palmer, 1974). Loftus later researched multiple variables in the process of memory formation and eyewitness reports. In one study, for example, she found that memory for faces may be contagious. She and her colleague showed research subjects one set of five faces and asked them to examine these faces closely. After viewing each face for 30 seconds, she gave them a series of distracting tasks. The subjects then read a series of essays written about the people depicted in the photographs. Some of the essays were accurate, others misleading on one minor detail. Afterward, the subjects were asked to reconstruct the people depicted in the photographs using an identi-kit (a kit full of transparencies of facial features used by law enforcement to construct an image of a suspect during an interview with a witness). Loftus and her colleague found that the misleading detail added into the essay appeared in the identi-kit image 33 percent of the time. They then performed an iteration of this study by using actors who broke into argument in a class. The researchers then interviewed the subjects who witnessed the argument and included misleading details during their questioning (by using a restrictive relative clause, like asking “Did you see the mustache on the man on the left?”). They found that 39 percent of the subjects responded “yes” when asked if they had seen a detail of one of the men (like a mustache) that neither man had (Loftus & Greene, 1980). They concluded that facial recognition can be contagious, meaning that when two or more people communicate whether through writing or questioning, there’s a chance that memories could be altered. Exacerbating this process is the human tendency to detect familiarity in incorrect contexts. Wells and Loftus (2003) discussed how people make mistakes when they report seeing a

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particular face during a crime. One source for those mistakes is the photographs and videos law enforcement officers show eyewitnesses after the crime. Once a witness has been shown a photograph or video, the person(s) in the depiction becomes familiar. This sense of familiarity sometimes leads the eyewitnesses to identify an accused person as the perpetrator of the crime because that person has this sense of familiarity about his face, not because the eyewitness necessarily saw the accused at the crime (Wells & Loftus, 2003). Loftus and her colleagues found that many factors affect what eyewitnesses see and remember, not only face memory. They conducted a study to prove this hypothesis. One group of subjects was shown 35mm projection slides depicting a man handing a check to a cashier at a fast food restaurant. The second group of subjects was shown 35mm projection slides depicting the same man pointing a gun at the cashier (Loftus, Loftus, & Messo, 1987). Even though Loftus performed much of her research in the later twentieth and early twentyfirst centuries, her concerns reflect the concerns of Münsterberg earlier in the last century. In particular, Musterberger found that memory, and hence eyewitness testimony, is subject to suggestion, whether deliberate or accidental. Suggestion, in this case, is the deliberate or accidental indication by law enforcement personnel about who they believe is the perpetrator of the crime. As we see in the Penalver case opening this chapter, law enforcement officers, even apart from coercion, suggested Penalver as the suspect in the case to the witnesses. The reason the judge did not throw out this testimony was that the Supreme Court deliberated upon the issue of suggestive interviewing and interrogation of witnesses and ruled that the testimony of these witnesses is admissible in some cases (Wells & Quinlivan, 2009). This surprises psychologists who note over a century of research demonstrating that eyewitness testimony is easily influenced, modified, and corrupted—findings that remain largely ignored by legal professionals (Wells & Quinlivan, 2009).

Suggestibility of Eyewitness Testimony Neil v. Biggers, 409 U.S. 188, 1972 offered justices criteria by which to determine if an eyewitness’ testimony would lead to inappropriate identification. These criteria (discussed further below) were used in a later case, Manson v. Brathwaite (432 U.S. 98, 97 S.Ct. 2243, 53 L.Ed.2d 140, 1977), a seminal case around the issue of suggested identification testimony. In this case, Brathwaite appealed his conviction for heroin possession and sale after reportedly selling to an undercover agent. Much of the original conviction rested on the testimony of this undercover agent, Jimmy Glover, who identified a photograph of Brathwaite (while alone) after another officer, D’Onofrio, showed it to him, because Glover described him as being a colored man, approximately five feet eleven inches tall, dark complexion, black hair, short Afro style, and having high cheekbones, and of heavy build. He was wearing at the time blue pants and a plaid shirt. D’Onofrio, suspecting from this description that respondent might be the seller, obtained a photograph of respondent from the Records Division of the Hartford Police Department (pp. 36–37).

Although Glover’s identifying Brathwaite’s photo alone and testifying against him later proved controversial enough, he did not know the person who sold him the heroin. According to the case report, in essence, D’Onofrio suggested to Glover that Brathwaite was the guilty party. This provided grounds for appeal because our expectations distort our interpretation of

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what we experience and also our memory after the fact (Pasupathi, 2001; Taber, Lodge, & Glathar, 2001). Our certainty of the accuracy of our memory can even increase when events confirm our original expectation, which happened in this case when officers arrested Brathwaite at the address provided by Glover (Wells & Bradfield, 1998b). This confirming feedback may have increased Glover’s certainty as he testified against Brathwaite in trial. Brathwaite was found guilty of both possession and sale of heroin and was sentenced to more than six but less than nine years in prison. Brathwaite appealed and the United States Court of Appeals for the Second Circuit reversed the conviction. As highlighted in the case summary: The court felt that evidence as to the photograph should have been excluded, regardless of reliability, because the examination of the single photograph was unnecessary and suggestive. And, in the court’s view, the evidence was unreliable in any event. The U.S. Supreme Court granted Certiorari and reversed the case holding that the Due Process Clause of the Fourteenth Amendment does not compel the exclusion of the identification evidence. (Manson v. Braithwaite, 1974)

Then-Justice Marshall, who offered a dissenting opinion, described a series of problems in this case and used five criteria established in Neil v. Biggers (1972) to determine if the suggested testimony was admissible. These criteria were: (1) whether or not the witness had sufficient view of the crime and the participants, (2) whether or not the witness paid sufficient attention to the events of the crime to form an accurate memory, (3) whether or not the witness gave a strong description of what and who he or she witnessed independent of input from the investigators, (4) whether or not too much time had passed between the time of the crime and the time of identification, and (5) the degree of certainty the eyewitness felt about what was witnessed during the crime. In this case, even though the Court reversed the case by majority vote, Marshall and Brennan argued that after reviewing the details of the case, there were potential problems under each of these five criteria in the Brathwaite case. They opined that Glover only interacted with the person who sold him the heroin for maybe 15–20 seconds with a total period of observation in which Glover actually looked at Brathwaite of only 5–10 seconds at the most (problem with view); the seller of the heroin kept the door open approximately 12 inches and Glover also needed to attend to the details of the transaction (problem with attention); Glover saw the photo of Brathwaite a full two days after the sale, during which time memory can fade (problem with time); Glover gave only a vague description of the person who sold him heroin, noting that he was African American with high cheekbones (when Brathwaite was actually from the West Indies) and the court discounted the description of the clothing because it was insignificant in this case (problem with description); and Glover testified for the state, the same organization that pays him as an officer, and the court also noted that once a witness has picked an accused, the witness rarely goes back on his word (a problem with certainty). Despite these limitations to the case, Marshall and Brennan were outvoted. Although psychologists had researched issues of memory, eyewitness accuracy, and suggestibility of testimony long before Neil v. Biggers and Manson v. Brathwaite, the criteria established and tested in these cases give psychologists specific legal criteria with which to respond. In addition, this gave researchers the opportunity to examine the legal procedures involved to examine the role of the procedures themselves as potentially suggestive. As Wells

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and Quinlivan (2009) described, there are two types of suggestibility, suggestibility by commission and suggestibility by omission. Suggestibility by commission occurs when something in the procedure puts pressure on the witness that a particular person in a lineup might be guilty. Suggestibility by omission occurs when something in the procedure fails to alleviate pressure on the eyewitness to make a lineup selection, even when they don’t recognize anyone. Based on these two cases researchers can study the role of suggestibility on view, attention, passage of time, verbal descriptions, eyewitness certainty, and procedural suggestiveness. Wells and Quinlivan (2009) offered a superlative summary of the research in each of these areas, and we will offer a brief review of their work in describing the research in each of these areas.

View Researchers have found several issues regarding how good a view the witness had of the suspect. These include distance and the hindsight illusion, attention, exposure time, visual occlusions, and the effect of suggestive remarks on the part of investigators. Distance and the Hindsight Illusion – Loftus and Harley (2005) found that in distances up to 25 feet witnesses demonstrate no deterioration of recognition of a face. Over 25 feet and up to 150 feet, recognition accuracy drops off significantly until reaching zero at distances of over 150 feet. When we see our friend at 200 feet away, however, that distance does not feel that far and we feel confident when we recognize him even at that distance. The hindsight illusion (or hindsight bias) is the tendency to believe that “we knew it all along” (Harley, Carlsen, & Loftus, 2004), or when we are given a piece of information “Did you see the suspect on the stand at the time and place of the crime?” we are more likely to affirm that we did. This is problematic because Loftus and Harley (2005) found that when they told research subjects the identity of someone distant, the subjects reported the ability to identify the person clearly out to 300 feet or more. When the researchers did not share the identity in advance, the subjects’ ability to accurately identify the person dropped to zero at around 150 feet. This research indicates two potentially problematic issues relative to eyewitness testimony. First, if someone witnesses a crime at some distance, his or her chances of mistakenly identifying the suspect go up significantly. Second, if an investigator suggests to the witness that he or she actually saw a particular suspect, that increases the chance that the witness will believe that his or her view of the suspect was better by 27 percent. Attention and Weapon Focus Effect – Steblay (1992) performed a meta-analysis1 on one issue relative to eyewitness attention during a crime and the role it has in memory and the accuracy of reports. In particular, she summarized years of research on the weapon focus effect. When someone uses a weapon during a crime the victims and observers tend to attend to the weapon at the expense of attending to peripheral details (e.g., the perpetrator). Therefore, they demonstrate a decreased chance of recognizing the perpetrator later when law enforcement investigates the crime. Exposure Time – Exposure time is the amount of time the witness was exposed to the crime or the perpetrator. Common sense indicates that the longer a victim sees the face of a perpetrator, the more accurate his or her recognition. Surprisingly, the relationship between exposure time (the amount of time a victim sees a perpetrators face) and accuracy of facial recognition is weak (Shapiro & Penrod, 1986). In addition, victims tend to overestimate the

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amount of time they saw the perpetrator, because stress and anxiety decrease the accuracy of memory in some cases (Shiffman & Bobko, 1975; Sarason & Stroops, 1978). Therefore, when a witness recalls a bank robbery they observed, they are likely to overestimate the amount of time they saw the robber’s face, and their recognition of a suspect later at the police station will not necessarily prove accurate, even if the witness expresses strong confidence in their memory. Visual Occlusions – Vision occlusions are those things and people that block our vision of a person or event either partially or completely. If we are witnessing a murder across a busy street, the cars passing by occlude our view of the crime as they block our vision momentarily. According to research by Wells and Murray (1983), subjects tended to underestimate the amount of time something occluded their view of the crime or the perpetrator. Consequently, if a prosecutor asks a witness on the stand what they saw, the witness will likely report having a better view of the crime than they actually had, and when the defense cross-examines and points out the occlusions, the witness will likely minimize the effect of them on their perception. Because of these issues with distance, exposure time, and visual occlusions, witnesses are highly prone to suggestion. Wells and Bradfield (1998) performed an experiment on the effect of suggestion on the recall of subjects who witnessed a simulated crime in their lab. They found that when subjects were asked to point out whom they witnessed commit the crime in a lineup, their responses differed based on the feedback they received after making their selection. One group was told that they picked out the person who committed the simulated crime. This group reported 27 percent of the time that their view of the crime was “good” or “excellent.” The researchers did not provide the confirmatory feedback to the second group, and none of them reported that they could make out specific features of the face of the person committing the crime, not having a good view of the crime at all. We learn from these studies that how law enforcement and lawyers interact with eyewitnesses has a very strong effect on what they believe they saw and how confident they are in their observation and recall, which can influence accuracy of testimony.

Attention Attention refers to whether or not the eyewitness focused on the perpetrator of the crime and paid attention to what the perpetrator looked like. We would guess that the more a witness focused on the specific features of a perpetrator (the fullness of his mustache, the number of moles on her face, how tan her skin was, her hairline, his cleft chin), the better the witness could identify or describe a suspect. Research conducted by Patterson and Baddeley (1977) and Wells and Hryciw (1984) actually proves otherwise. They found a difference between holistic perception and specific perception. Holistic perception refers to a rapid perception of an event where we attend to the whole moment at once, in one snapshot. Specific perception refers to looking at specific features (like a person’s eyes, chin, hair, shirt, necklace, etc.) one after another. These researchers found that holistic perception led to better ability to recognize the face they had seen holistically and briefly when that face was mixed in with unfamiliar faces in a photo lineup (Patterson & Baddeley, 1977). However, from Wells and Hryciw (1984) we learned that holistic perceptions are less helpful when forensic artists try to recreate a face from the testimony of an eyewitness, and that specific perception proves much more helpful to them.

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A significant challenge to the validity of eyewitness’ experience is their own attention. Attention is purely subjective and there is no way to scientifically and objectively verify the type of attention the eyewitness paid, and the amount of attention. The problem of suggestion once again makes this concern worse. Douglass and Steblay (2006), in a meta-analysis on the issue of attention and suggestibility, found that when researchers in the lab or law enforcement officers in the precinct gave the witnesses confirmatory remarks like “yes, you identified the right man” the witnesses responded with an increased amount of certainty that they had paid sufficient attention to correctly identify the perpetrator when, in actuality, they had not.

Passage of Time Our memories decay at the quickest rate right after an observation or event (Barrouillet, Portrat, Vergauwe, Diependaele, & Camo, 2009). Almost a century and a half ago, Ebbinghaus (1885) documented this “forgetting curve” and found that people lost most of their information immediately, and that memory decreased over time. However, the shape of the curve varies considerably depending on the information we attempt to remember. Some things, such as the name of the person sitting next to you in a meeting whom you have never met before, fade quite quickly while others, like your childhood address, take much longer to fade. Unfortunately, we know little about the relationship between time and memory loss of actual eyewitness events. Some researchers have demonstrated that the longer the passage of time between a witnessed event and identification of suspects, the less accurate the identification proves to be (Cutler & Penrod, 1995). Additionally, relative to our concern about suggestion and suggestibility is that the longer time passes the more suggestible their memories become (Wells & Quinlivan, 2009).

Verbal Descriptions Verbal descriptions are the statements the eyewitness use to describe the person they witnessed commit the crime. Law enforcement professionals should proceed with caution about the nature of these descriptions because of the way officers typically determine accuracy of the statement. Usually, law enforcement professionals determine the accuracy of a witness’ description by comparing the witness’ description of a culprit with the description of a suspect they have in custody (Wells & Quinlivan, 2009). Unfortunately, this indicates that the officers have confused the culprit (the one who actually committed the crime) and the defendant (the person they suspect), who may not be the same person (Wells & Quinlivan, 2009). However, the Brathwaite standard assumes that the more consistently the eyewitnesses make their descriptions, and the more detail they use, the more certain the court can be that their testimony is valid. The research on the relationship between verbal consistency and detail of description with accuracy of testimony indicates a very weak relationship. Just because a witness tells his story consistently and with good detail does not mean that the story is actually accurate (Pigott & Brigham, 1985; Wells, 1985). This can lead to an unintentional suggestion on the part of law enforcement. Upon hearing the compelling description by a witness, officers will then take that description and construct their lineup (whether by photograph or in person) based on that description. If one of the people in the lineup matches the description of the eyewitness, he is much more likely to point to that person as the culprit, even if that person is innocent. Innocent people have been convicted and executed because of these combined factors (Junkin,

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2004), therefore it is imperative for law enforcement and jurisprudence professionals to exercise great caution.

Eyewitness Certainty Certainty refers to the level of confidence the eyewitness feels about his identification of the suspect. Lawyers pay particular attention to the amount of certainty an eyewitness expresses, because the more certain an eyewitness seems, the bigger the impact his testimony will have on the jurors in a trial (Bradfield & Wells, 2000). Unfortunately, the research on the relationship between certainty and accuracy is mixed, which means that the certainty the witness feels may not actually lead to accurate identification of a suspect. In a meta-analysis performed by Sporer et al. (1995) we learned that the correlation between certainty and accuracy can be as high as 41 percent, but only for those who actually correctly identified the suspect in a lineup. Wells and Quinlivan (2009) described it this way: If you took 100 eyewitnesses and divided them into two groups, 50 who identified the suspect correctly and 50 who did not, you find that 70 percent of those reporting a great deal of certainty are correct but 30 percent are incorrect. Inversely, if you took the other 50, 30 percent reporting high confidence are correct, and 70 percent with low certainty are incorrect. They summed with “scientists have generally concluded that eyewitness certainty, although of limited utility, can have some diagnostic value” (p. 12). Although eyewitness certainty may have some value, suggestion decreases the value significantly. Research has found that confidence of a witness can increase when the lineup administrator provides positive feedback about the witness’ selection. This is especially true if the witness’ selection was inaccurate (Bradfield et al., 2002).

Procedural Suggestion Malpass and Devine (1981) and Clark (2005) performed meta-analyses on the accuracy of the suspect lineup in identifying the perpetrator of a witnessed crime. In this case, they looked to see how big the effect of the suspect lineup was in identifying criminals, and the role of biased and un-biased witness instructions. These researchers found that witnesses mistakenly identify the culprit frequently during lineups, particularly when the instructions were biased. Researchers found that this presented a case of suggestibility by omission, because the officers omit the fact that the actual perpetrator of the crime may not be present. By instructing witnesses that they may not see the perpetrator of the crime in the lineup the researchers noted a significant drop in the rate of mistaken identification. The makeup of a lineup also plays a role in the accuracy of a witness’ identification of a culprit. Researchers found that when officers compose the lineup with people different from the eyewitness’ description of whom they observed commit the crime, rates of mistaken identification go up (Clark & Tunnicliff, 2001; Wells, Rydell, & Seelau, 1993; Wright & McDaid, 1996). However, if officers only include people in the lineup who approximately meet the description of the suspect, the rates of accurate identification go up significantly. Given that some witnesses feel pressure to make an identification in a lineup, some investigators use show-ups instead of lineups. During the show-up procedure, the investigators show the witness either a photograph or a single person whom the investigators believe

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might be involved. Steblay, Dysart, Fulero, & Lindsay (2003) performed a meta-analysis on the research of show-ups and found that there was a “surprising commonality in outcome between presentation formats, and—specific to target-absent displays—an apparent contradiction of the ambient knowledge that show ups are more dangerous for innocent suspects than are line ups” (p. 535). Photo show-ups, they found, do not increase the number of falsepositive identifications. Other researchers examined the role of the investigator’s instructions to the witness during the identification procedure (Rosenthal, 2002, Russano, Dickinson, Greathouse, & Kovera, 2006 for examples). These researchers examined covert communication, or the subtle communication by the investigator to the witness indicating whom the investigator believes should be the suspect. This communication can be verbal or non-verbal, deliberate or accidental. An example of covert communication during a lineup procedure would entail the investigator, upon hearing the witness call out the number of a suspect that the investigator knows could not be the suspect, asking the witness leading questions or urging them to try again. However, the investigator also engages in covert communication when the investigator praises the witness for identifying whom the investigator believes to be the actual suspect (suggestibility by commission). In order to correct for this, Wells and his colleagues developed the double-blind lineup procedure (Wells, 1988; Wells & Bradfield, 1998b). In this procedure an investigator who is unaware of the identity of the suspect presents the lineup or show-up to the witness; this process removes suggestibility. Researchers found another unintentional factor, called multiple presentations, that increases false identification of suspects. Multiple presentations occur when a witness sees a person repeatedly whether in person, on video or photograph. When witnesses see someone repeatedly, they are more likely to mistakenly identify that person as the person they witnessed commit a crime (Deffenbacher, Bornstein, & Penrod, 2006). This suggestion of commission seems difficult to control for, but if investigators are aware of this process they can decrease the number of false identifications.

Remaining Issues in Eyewitness Identification When we look at the Brathwaite standard for eyewitness testimony, namely the issues of view, attention, verbal description, time, and certainty, we find that the research on each of these five criteria indicates many problems. Overall the research indicates that eyewitnesses are not adequate for a valid conviction in a surprising number of cases (Penrod, 2005; Doyle, 2005). The Innocence Project (2013) reports that 75 percent of the cases later overturned due to DNA evidence had original convictions based on mistaken identification (also see Scheck, Neufeld, & Dwyer, 2000). The issues with eyewitness testimony are nothing new, and law enforcement officers have known for years that eyewitnesses can be notoriously unreliable, as indicated by both archival and laboratory studies.2 Behrman and Richards (2005) summarized years of archival data and compared that data to a laboratory study they conducted. According to their research into the archival data, they found that in 15 percent of real-world lineups eyewitnesses identified an innocent filler 15 percent of the time. In their laboratory follow-up study, they had research subjects witness a mock crime, then had them pick the perpetrator out of the lineup. They had two conditions, one condition where the perpetrator was actually present in the lineup, and another where the perpetrator was actually absent. In the perpetrator-present condition,

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the subjects identified an innocent filler as the perpetrator 5 percent of the time. When the perpetrator was absent, however, that number increased to 33 percent. Imagine you’re an officer in the Penalver case. You genuinely believe that Penalver is a “bad guy” and that he probably committed the murder. However, from personal experience and the stories you have heard from other officers, you know that eyewitnesses, when shown a photo lineup or an actual lineup, identify an innocent “filler” a significant percentage of the time. It might have felt right to suggest to the witness that Penalver was the man they saw, to make sure they identify the same person you suspected. However, by offering a suggestion, you may taint the actual eyewitness process. Exacerbating this problem is the issue of stereotyping and race. Our memories work by assigning meaning to what we witness. Assigning meaning, contrary to the reductionism of some of the articles above, proves a complex and socially constructed process. Eberhardt, Goff, Purdie, and Davies (2004) found that when people view African-American faces they think of crime. Likewise, they found that when people think of crime they think of African Americans. This can create a problem in real-time law enforcement, like in the case of Trayvon Martin, an unarmed 17-year-old. Beety (2013) summarized the memory and action research and related them to this case. She indicated that given the ways in which we store and retrieve memories, social meanings play a large part in what we remember and how. Given that Martin was African American and wearing a hoodie, a typical observer would perceive him as more threatening given the ways in which we socially construct race and clothing in our country. Indeed, when looking at records of shootings, unarmed African Americans are significantly at greater risk of gunshot fatalities and injury than unarmed Caucasians (Benforado, 2010). Relating this issue to eyewitness testimony, we find that more African Americans are incarcerated than Caucasians and are more often exonerated later after a false conviction (Roberts, 2004; innocenceproject.org). Although many issues of social construction of race and culture as well as issues of justice and poverty contribute to these statistics, the nature of the ways in which we construct memories of what we see certainly contributes as well. Another issue we need to keep in mind when we review the research on eyewitness accuracy is that many studies actually underestimate the extent and severity of the problem. Because university professors do most of the research they often use the people around them, namely college students, when they do their studies and experiments. Unfortunately, college students perform differently in these experiments than non-college students do. When college students take memory tests during an eyewitness experiment, they tend to demonstrate a better memory than non-college students (especially when compared to children or the elderly) (Bartlett & Memon, 2006; Pozzulo, 2006). They particularly demonstrate difference from noncollege students when the researchers add suggestion to the experiment, as a way to influence what the college students report. Unlike non-college students, they tend to show resistance to suggestion (both implicit and explicit) and hence, are more likely to accurately identify a suspect (Bartlett & Memon, 2006). So, the extent of faulty eyewitness testimony may be significantly higher in actual courts where non-college students serve as eyewitnesses. Scholars in both law and psychology argue for a substantial revision of the law and law enforcement practices because of this research (e.g., Beety, 2013; Wells & Quinlivan, 2009). If you are interested in a career in criminal law or law enforcement, what do you plan to do differently to increase accurate eyewitness testimony and decrease faulty eyewitness testimony?

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Notes 1. 2.

Researchers use a meta-analytic statistical technique to look at the overall effect size of the results of the research findings across many different studies. A laboratory study takes place in carefully controlled environments where researchers can eliminate any variables that may cause unnecessary variability in the outcome of their experiments. A researcher performs an archival study by going back through records of old cases and tracking the number of incidents of a particular phenomenon.

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Court Cases Althaus v. Cohen, Court of Common Pleas, Allegheny Co., Penn., No. GD92020893 (2000) Carl v. Keraga, U.S. Federal Ct., Southern Dist, Tex., Case No. H-95–66 1 (1997) Carlson v. Humenansky, Dist. Ct., 2nd Dist., Minn., No. CX-93–7260 (1996) Hamanne v. Humenansky, U.S. Dist. Ct., 2nd Dist., Minn., No. C4–94–203 (1994) Holbrook v. Moore, Dist. Ct., Dallas Co., Tex., No. 92–11849 (1936) Manson v. Brathwaite, 432 U.S. 98 (1977) Neil v. Biggers, 409 U.S. 188. (1972)

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10

Closing Reflections

The work of forensic psychologists is to determine who is, or who is not, mentally ill. This task is not a simple one, and despite changes in case law and precedent over the years the issue remains as complicated as ever. As difficult as determining sanity can be, the general question of this text, and one we attempt to answer, is what are the legal and ethical implications for the adjudicated self who is mentally ill? To that end, we have explored the various ways in which the mentally ill adjudicated self negotiates the criminal justice process. As you will recall, the adjudicated self is the self that is constructed by and participates within the legal system. What is perhaps most important to recognize is that once found to be competent to participate in the trial process, the adjudicated self becomes a type of generic legal image that is viewed as being more or less the same as any other individual entering the legal system. As such, the adjudicated self is the manifestation of this specialized legal construction that is defined by the contextual demands of existing state and federal law. For example, the Bill of Rights—the first 10 amendments of the U.S. Constitution—defines legal protections offered to individuals living in the United States. These rights help to define certain aspects or legal characteristics of daily personal and social life, which in turn, provides a general “blue print” related to the protections enjoyed by U.S. citizens; this same process becomes less certain when the adjudicated self is suffering from mental illness. Though the mentally ill adjudicated self is no less a citizen than is someone not suffering from mental illness, the lines of legal participation and equal protection under the law may become blurred by the assumed equally of all individuals involved in the trial process. The mentally ill adjudicated self, once found competent to go to trial, is presumed, therefore, to be like any other legal participant, which may simply be not true. Establishing the minimum necessary requirements for trial, means simply that: the defendant is eligible to proceed. It does not imply, however, that this same individual has somehow been cured of his or her mental illness. Take for example the case of Andrea Yates. It will be recalled that Yates drowned her five young children in the belief that she was saving them from an eternity in hell. She believed that she was such a poor mother that she was raising diabolical children. She believed that if she killed her children, she would correct the error of her poor mothering skills, and spare these kids from eternal damnation. Yates was initially found competent to stand trial and was subsequently convicted on five counts of murder in the first degree, and sentenced to life imprisonment without the possibility of parole. The jury had the option to sentence her to death, but refused to do so. It is important to recall that

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Yates was disallowed the availability of a “not guilty by reason of insanity” defense in the Texas court, based on the clear premeditation of her actions. The standard for criminal responsibility in the state of Texas is the M’Naughten rule along with the irresistible impulse test and the burden of proof falls on the defendant. In the initial trial the trial judge ruled that the irresistible impulse test did not apply for Yates, given that she methodically planned and carried out these murders and could have easily stopped her deadly plan at any time, thereby disqualifying her for the insanity defense in Texas. But the question remains: Could she? The way this question is answered is fundamental to the core issue of this text concerning the legal and ethical implications confronted by the mentally ill adjudicated self in the criminal justice system. First off, what does premeditation mean in this context (and in other situations like this one)? Though it is certainly true that Yates did indeed plan her crime like any other perpetrator whose intent is to carry out the plan successfully; how do we understand the motivation of these actions without also recognizing their inseparable relationship to a severe mental illness? Should any consideration by given to the structure of that “intent,” when it is reasonably clear that it is psychotic in nature? If her intent to murder was predicated upon the religious delusional structure that to do so would spare her children from an eternity of damnation, does this reflect a rational example of premeditation? The simple answer is, of course: yes and no. Yates clearly employed premeditation as the judge correctly observed; however, the specific structure of that premeditation would likely not have been present in the absence of her psychotic condition. At issue here is whether or not premeditation or intent should be viewed as the exclusive proof of a cognitively intact decision-making process, or can intent and premeditation also be equally present in the individual who is severely psychotic? To be charged with murder in the first degree, for example, the defendant must be able to formulate the necessary intent—that is, the ability to plan and then perform the act—to be legally charged with the crime. It is not at all unusual for an individual who is not mentally ill at the time of the crime to be charged with a lesser degree of homicide because the necessary intent or premeditation could not be established to legitimize the charge of murder in the first degree. In this example, sufficient evidence exists that establishes that the defendant was responsible for taking the life of their victim; however, what is not present is the clear premeditation required to charge this individual with murder in the first degree. Our discussion gets further complicated when the reverse is true: premeditation is present, but intent is the product of a delusional thought process that is not predicated on a desire to harm due to malice. Could Yates really have stopped her plan at any time as the judge opined? She believed per her delusions that she was saving her children, and this act of saving was articulated in their murder. She killed them to save them; so powerful was this belief that she went to great lengths to be sure she would be successful. Given her delusional frame of reference directly prior to and during her crimes, she would have been unable to stop her plan given what her believed was at stake. Even though a clear intent was present, it must also be recognized that her motivation was delusional and a result of a severe mental illness. What is the answer then? How then do we understand this verdict based on the seemingly contradictory logic employed by the jury? On the one hand, the jury had no difficulty in the rejection of the insanity defense based upon the fact of premeditation, but on the other, refused to sentence her to death because of the unavoidable fact of her mental illness. It appears that the jury could not look past the horror of her crimes—a mother murdering her five children—but simultaneously could

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not hold her accountable to the ultimate price: taking her life in the Texas death chamber; as a result they sentenced her to life in prison without parole. What is witnessed in this example is the way in which the mentally ill adjudicated self becomes bifurcated by the legal process. Though Yates is severely mentally ill, this fact is ignored when her premeditation is considered “rationally intentional.” Simply because she could plan these crimes, it was believed that the cognitive process used to reach this decision, must have been rational as well. The bifurcation takes place when an aspect of her delusional experience—in this case, her delusional system—is removed from its context of mental illness and viewed as if mental illness played no role in its formulation or articulation A similar example was discussed in Chapter Six of this text, concerning the Pennsylvania defendant who murdered his victim based on the instruction provided to him by auditory hallucinations. It will be recalled that in this case the defendant murdered an individual whom he believed to be an alien in human form. Much like Andrea Yates, this individual also intentionally planned his crime to ensure that he would be successful in killing his victim; additionally he believed that once he had murdered his victim, the individual would morph back into its alien form, providing proof that aliens are secretly living among us. However, in this example a more fundamental question is in play: Can one establish the intent to commit murder in the first degree when the victim is presumed not to be human? In Clark v. United States (2006), the Court took up this very issue. It will be recalled that Clark, who suffered from paranoid schizophrenia, killed a police officer during a traffic stop because he believed the individual was an alien. The Arizona court denied his claim that he was incapable of developing legal intent (mens rea) given that psychiatric evidence could only be offered in Arizona relative to an insanity defense and not to challenge the defendant’s ability to formulate the requisite intent to be charged with the crime. The Court agreed by opining that it was constitutional to make the legal distinction between the insanity defense, which allows the introduction of “unobservable psychiatric evidence in Arizona” and mens rea, which does not, so as to prevent “confusing” the finder of fact (the judge and jury). By upholding the Arizona law, the Court acknowledged that though a defendant may pursue the insanity defense based on the presence of severe mental illness at the time of the crime that same mental illness may not be used to question whether the defendant had the ability to form the necessary rational intent to commit the crime. A similar type of disjointed logic was applied in the Pennsylvania murder case briefly discussed above. Under Pennsylvania law, M’Naughten is used to determine criminal responsibility; as long as the wrongfulness of the act is recognized by the defendant, it makes no difference if the act is concerned with killing an alien masquerading in human form. Once again we see how the fact of one’s mental illness is ignored or minimized. Within this context, the very structure of the intent and action of the defendant is impossible without the accompanying fact of paranoid schizophrenia. Perhaps more troubling than either of the circumstances witnessed in Yates or Clark, is the fact that the Pennsylvania defendant not only was viewed as having the capacity to formulate the necessary intent to commit his crime but was found to be criminally responsible because he understood that killing was wrong. It was apparently irrelevant that his victim was presumed not to be human or that his structure of intentionality was exclusively driven by the psychotic motivation to kill what he believed to be a threatening alien presence. Based on these brief examples, and the numerous examples discussed in this text, it is difficult to argue that the mentally ill adjudicated self enjoys the same degree of equal protection under the law as does the defendant who is not suffering from some manner of

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severe mental illness. How can equal protection exist for such a defendant when most of the more subtle aspects of these conditions or disorders are ignored or not given sufficient importance? Can it be legitimately argued that no difference exists between the individual who suffers from a severe mental illness with that of the individual who is more or less “normal” in the eyes of the court once competency and criminal responsibility has been established? Readers critical of this position may argue that numerous safeguards are in place and as a result such defendants are sufficiently recognized by the law to help insure the promise of equal protection; a further objection could be raised concerning the legal fact that every state and federal criminal code clearly states that the presence of mental illness is not sufficient to render a defendant ineligible to go to trial. Despite this controversy, the issue remains. Both authors work with those in prison who suffer from severe mental illness and have seen first-hand the attempts of the justice system to be fair and impartial and provide equal protection. Generally, the system works. Specifically, however, sometimes the system fails. For example, one young man that one of the authors (Draper) worked with was serving time in a maximum-security prison. This young man suffered from schizophrenia (he demonstrated mild auditory hallucinations and delusions of persecution) and his IQ score indicated he was mildly mentally retarded (WAIS IQ of 60–70). When examining his case, Draper learned that this young man stood convicted and sentenced for stealing a turkey from a turkey farm, killing it, and eating it. His history proved interesting. His father also suffered from schizophrenia, and the two of them lived their life on the road. At the age of 16, the father “set him free” and encouraged him to find his own way, which this young man did to the best of his ability by begging and doing some day-labor jobs as he drifted from town to town. One January he found himself cold and starving in farm country in the rural Midwest. Desperately hungry and freezing as he walked along the fence of a turkey farm, he decided to steal and eat one of the turkeys, reasoning that given the hundreds of turkeys in the squat barns the farmer would not miss one. Climbing the fence he walked into one of the barns and easily caught one of the turkeys in a smaller pen and wrung its neck. Although the barn felt warm compared to the freezing weather outside, he did not want to start a fire and risk burning the barn, so he climbed back over the fence and after some effort started a fire and built it while plucking and gutting the turkey. Once he had the turkey spitted and roasting the farmer noticed him and approached him. The farmer felt a great deal of sympathy for the freezing starving boy, and invited him into his house for a real meal, and the young man volunteered to work off the price of the turkey. The young man worked for the rest of the day and the farmer fed him two meals in return. Once dusk came, however, the farmer did not have room to house the young man in his small house, so he called his friend, a sheriff’s deputy, to pick up the young man reasoning he could sleep in the one-room jail in the police station and he could find work in town. It took some convincing, given the young man’s varied history with law enforcement, but the young man relented and the deputy took him to the police station. Unfortunately, two intoxicated men currently resided in the cell and after the deputy dropped the young man off and shut the cell, a fight broke out. The young man reports that the two men in the cell attempted to sexually assault him, and he fought back. Unfortunately, one of the two assailants was severely injured when he struck his head on the edge of the toilet during the course of the altercation. What started as a good-faith violation of department policy (giving the young man a cot for the evening despite the fact he was not under arrest), turned into a formal arrest, charge, conviction, and incarceration for assault. When this young man went to trial, the judge gave him the maximum sentence he could, not out of an expressed desire for

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retribution, but because the young man was both mentally ill and mentally retarded, “prison was the best place” for him because he would have “three hots and a cot” (meaning three meals a day and a place to sleep that he wouldn’t have if he remained homeless on the outside). In essence, the judge was trying to be merciful. Although whether or not sentencing someone to a maximum-security prison is merciful is indeed debatable, this vignette demonstrates that mental illness and mental retardation remain of issue to not only the adjudicated selves, but also those who construct the mentally ill as such and experience the injustice of the bifurcation (the judges, lawyers, and juries). As we discussed in Chapter Seven, some jurisdictions developed mental health courts to unify the bifurcated self, to work with the mentally ill in a court setting in a manner that acknowledges the client’s issue holistically by refusing to deny the two seemingly incompatible parts of their problem, but rather to deal with both parts simultaneously (the two parts are being accused of, or having broken the law and being diagnosable as mentally ill at the same time). These courts do not deny moral and criminal culpability regarding a criminal act committed by someone who is simultaneously mentally ill. However, these courts acknowledge that although mental illness alone in many cases is insufficient to remove criminal responsibility, the mental illness does provide a great deal of complexity in terms of their state of mind during the time of the crime as well as their ability to interact with the court. Interestingly, these courts not only unify the normally bifurcated self but treat the courts as a therapeutic medium (the process of therapeutic jurisprudence), addressing the mental illness and the criminal behavior at once in an effort to decrease recidivism. We would like to argue in this conclusion that drug courts attempt to accomplish the same unification of these often bifurcated adjudicated selves. Addiction, for those who have suffered it, colors one’s being in a very deep and thorough way, such that the meaning of everything around the addict (as well as the addict themselves) changes significantly. Addicts report thinking, feeling, and doing things that they never would have without the addiction. For example, one patient of Draper’s served his sentence in maximum security for assaulting his own grandmother, the woman who raised him from late childhood. This patient suffered an abusive and neglectful childhood and his grandmother sued for custody and won. After moving in with his grandmother he proved more and more recalcitrant and began using drugs heavily in adolescence as a way of coping with the trauma he suffered after years of abuse. Shortly after his eighteenth birthday his grandmother moved him into his own apartment unaware of the depth of his addiction. Within two months, suffering from withdrawal sickness from his favorite drug and desperate for relief, he broke into his grandmother’s home and began to collect valuables he could sell quickly for drug money. Unfortunately, she came home and tried to reason with him and restrain him from leaving. He became violent with her and struck her twice, injuring her significantly. Unaware of and uncaring about the amount of damage he had done to the one woman who unconditionally loved him, he headed directly to the pawnshop and his dealers for relief. The police found him shortly thereafter and arrested him for breaking and entering, robbery, and assault. When he saw the damage he had inflicted upon his grandmother, he felt so ashamed of himself and so grieved for what he had done that he waived his right to counsel and pled guilty to all charges. Once in prison he sought treatment not to deal with the stress of incarceration, or even to work towards stable sobriety, but instead to seek relief from the desperate shame and guilt he felt for injuring his grandmother. He would state over and over again, “I can’t believe I did that, it’s just not me. I didn’t think I was a violent person, and I don’t want to be, but I am.” The process of addiction, and the withdrawal

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symptom that comes from it, informs and contextualizes crime as much (in some cases) as severe mental illness. Although the case of this particular patient would not have ended up in a drug court (because it involved violent crime instead of possession and use, which drug courts are designed to manage), drug courts are an indication that the legal system, in some jurisdictions, is prepared to handle drug cases and treat them differently from non-drug cases. As we saw in Chapter Eight, drug courts originally served the purpose of alleviating the significant pressure put on the court system by the increasing number of arrests due to changes in drug legislation. However, they take the issue of addiction into consideration and do not just ignore it like a standard criminal court would (which would create the bifurcated self). Instead, these courts are designed from the outset to encourage sobriety through mandatory treatment, drug testing, and incentives for sobriety in the form of reinforcement and punishment. (Reinforcement in the form of praise or reduced sentences/probation, and punishment in the form of increased sentence or incarceration.) These courts hopefully will serve the purpose of helping to reduce the rates of assaults like the one committed by the patient discussed above. Note that they can only do so by dealing with the whole person, the whole issue at stake. If they only look at these cases criminally, then they would not offer equal protection under the law because what a crime meant and the motivation and nature of the crime was indelibly colored by the intoxication or addiction dynamics. Likewise, if they ignored the crime and just took this up as a matter of treatment, they would ignore the way in which the crime affected the victims or society at large (which would also cause a bifurcated process). By doing both, they prevent the bifurcation and deal with addiction issues as not just health issues but the possession and use as criminal simultaneously. Although mental health courts and drug courts are signs that jurisdictions are mindful of, and trying to provide, equal protection under the law by addressing the whole person and the whole problem, issues still remain. Some jurisdictions lack mental health courts or drug courts, and no jurisdictions we are aware of deal successfully with other lingering injustices that demonstrate that people do not always have equal protection under the law. One common concern regarding equal protection under the law is the issue of disproportionality and disparity in conviction rates of different racial groups. Disproportionality refers to a disproportion of convictions of members of a particular racial group compared to their proportion of the population. For example, if African Americans compose 12 percent of the population, then there would be an issue of disproportionality if the proportion of African Americans was significantly higher in prison than in the population. When we look at the national and regional data on conviction and incarceration, we see that there is indeed a problem of disproportionality in many jurisdictions (Steen, Engen, & Gainey, 2005; Huizinga et al., 2007; Mauer & King, 2007). Some researchers estimate that the incarceration rate of African Americans is nearly six times higher than whites, and the rates of incarceration are nearly double for Latinos (Mauer & King, 2007). Disparity, on the other hand, refers to inequality in arrest, conviction, and incarceration due to criminal justice policies and practices. Like disproportionality, there are issues of disparity in the criminal justice system as well, with some policies of profiling and bias in the courtroom (Crutchfield, Bridges, & Pitchford, 1994; Engen, Gainey, Crutchfield, & Weis, 2003). In Chapter Nine, we discussed how eyewitness testimony remains an important part of the courtroom process, despite all of the research demonstrating the variances and issues with courts relying on flawed memories or influenced testimony. The process of eyewitness testimony presents a source of disparity in the court system, and eyewitnesses demonstrate racial bias (Steen, Engen, & Gaines, 2005).

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Such disproportionalities and disparities are complex, however, because issues of race are also tied to issues of socioeconomic status (SES) disproportionality. In essence, the poor are disproportionately represented in prisons, and ethnic minorities are disproportionately represented among the poor creating a double disproportionality (APA, 2010; Reiman, 1997). Regardless, such issues as racial and socioeconomic disproportionalities and disparities present a lingering issue challenging the notion of fair treatment under the law. For forensic psychologists, those actually employed by the courts or employed by clients going through the court system, there is reason to hope that this country is trending towards ameliorating the issue of the bifurcated adjudicated self. With progress shown in both mental health courts as well as drug courts, assessing mental health and drug dependence processes and informing the courts the degree to which these processes contextualize the crime will continue to prove a valuable role these psychologists can serve.

References American Psychological Association. (2010). Fact sheet: Ethnic and racial minorities & socioeconomic status. Published Oct. 17, 2010. Retrieved from http://www.apa.org/pi/ses/resources/publications/ factsheet-erm.aspx Crutchfield, R., Bridges, G., & Pitchford, S. (1994). Analytical and aggregation biases in analyses of imprisonment: Reconciling discrepancies in the studies of racial disparity. Journal of Research in Crime and Delinquency, 31(2), 166–182. Engen, R., Gainey, R., Crutchfield, R., & Weis, J. (2003). Discretion and disparity under sentencing guidelines: The role of departures and structured sentencing alternatives. Criminology, 41, 99–130. Huizinga, D., Thornberry, T., Knight, K., Lovegrove, P., Loeber R., Hill, K., & Farrington, D. (2007). Disproportionate minority contact in the juvenile justice system: A study of differential minority arrest/referral to court in three cities. A Report to the Office of Juvenile Justice and Delinquency Prevention. Mauer, M., & King, R. (2007) Uneven justice: State rates of incarceration by race and ethnicity. The Sentencing Project. Retrieved August 19, 2014 from www.sentencingproject.org Reiman, J. (1997). The rich get richer and the poor get prison: Ideology, class, and criminal justice. New York, NY: New Press. Steen, S., Engen, R., & Gainey, R. (2005). Images of danger and culpability: Racial stereotyping, case processing, and criminal sentencing. Criminology, 43, 435–468.

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Index

Note: Page numbers followed by ‘n’ refer to notes accountability: moral 111 Act to Prohibit Importation and Use of Opium (1909) 162 Action for Mental Health (Joint Commission on Mental Illness and Health) 57 actus reus (guilty act) 113 addiction 207–8; intervention 167; programs 10 adjudicated and mentally ill offenders 144–5 adjudicated self: competencies 106–7; competency to stand trial (CST) 84–5; legal insanity 130 affirmative defense 115 African Americans 208 Agamben, G. 83 Agar, M.: and MacDonald, J. 161 Age of Reason: moral treatment of mental illness 48–51 agnosia 161 alcohol 158; counselling 10; personality profiles of teen users 159 Alcoholics Anonymous (AA): 12-step program 165 American Academy of Psychiatry and the Law (AAPL) 12 American Association on Intellectual and Development Disabilities (AAIDD) 101 American Journal of Psychiatry 27–8 American Law Institute standard: Model Penal Code Test 115, 117, 122 American Psychiatric Association (APA) 12 American Psychological Association (APA) 114–15, 142, 143 amicus (friend of the court) brief 12, 13 analgesia 158 Anglin, M.D.: et al. 164–5 anti-psychotic medication 138 anti-social personality disorder 4 apraxia 161 Arria, A.M.: and DuPont, R.L. 160

assistance to counsel: right to refuse 87–8, 91–4 Asylums: Essays on the Social Situation of Mental Patients and Other Inmates (Goffman) 59 asylums: birth of American 44–55; uncertain place 52–5 Atkins, D. 37 Atkins v. Virginia (2002) 1–7, 15, 16, 36–9 attention-deficit/hyperactivity disorder (ADHD) 160 Aurora movie theater see Colorado movie theater attack (2012) autism 101 Bardwell, M.C.: and Arrigo, B.A. 68 Beccaria, C. 48 Beers, C.: A Mind that Found Itself 53–4 behavior: law 163; operant 159 Belenko, S. 171 Berger, P.: and Luckmann, T. 17, 23, 99 Berghuis v. Thompkins (2010) 95–8, 102 Betts v. Brady (1942) 88–90 Bill of Rights (1791) 89, 90, 91, 203 Black’s Law Dictionary 126, 127 Blackstone, W.: mental defect concept 68–9 Blaine Act (1933) 163 Blanton, W. B. 46 Blunk, J. 21 Bowen, R.A.: Rogers, A. and Shaw, J. 153 Bowring v. Godwin (1977) 141 Braun, P.: et al. 139 Brawner rule 115 Breyer, Justice S. 119–20, 129 Briseno, J.G. 5–6, 7 Brown v. Board of Education (1954) 13 Burger, Chief Justice W.E. 93 Burns, P.J.: Hiday, V. and Ray, B. 153 Busey, T.A.: et al. 185 Bush, G.W.: War on Terror 83

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cannabis 162 care: in the community 55, 139; health 141 Carpenter, P.M. 35 Chase, D.: and Hora, P.F. 171 chlorpromazine (Thorazine) 56 Christensen, R.C. 150 civil rights: removal 150 Clark, K.: and Clark, M. 13 Clark v. Arizona (2006) 7, 121, 205 cocaine 158, 162, 164, 172 Cochran, Justice C. 6–7 coerced treatment 135–56 coercion: medical 150 Coffman, D. 159 cognitive deficits 39 Colonial America: mental illness 44–7 Colorado: legal insanity 8 Colorado movie theater attack (2012) 1, 3, 7, 8, 9; Watts on 21, 22, 24, 25, 28; Weaver on 21, 22, 24 combat veterans: Post Traumatic Stress Disorder (PTSD) 30–1 Commonwealth v. Abner Rogers Jr (1844) 126–7 community care 55, 139 community mental health movement 57 competency: adjudicated self 106–7; other types of legal 87–108; right to refuse assistance to counsel 87–8, 91–4 competency standards 151; Title 18 Section 4244 – 1960 (United States Code) 69 competency to be executed 103–6 competency to stand trial (CST) 7–8, 67–86; adjudicated self 84–5; commitment to suitable facility 69; Drope v. Missouri (1975) 73–4; Dusky v. United States (1960) 67, 70–1; function 67; Godinez v. Moran (1993) 74–6; history of concept 68–9; Indiana v. Edwards (2008) 76–8; legal construction and adjudicative self 84–5; Pate v. Robinson (1966) 71–2; pre-trial competency 68; restoration 82; Supreme Court 70–8; test 69; v. insanity defense 110–12; Westbrook v. Arizona (1966) 72–3 competency to waive constitutional rights 75–6 competency to waive ones right to silence 94–102 Comprehensive Crime Control Act (CCCA – 1984) 115 conditioning: operant 159

confessions 94–6, 98–102; and innocence 98–100 confinement: indefinite 83; solitary 140; total 59–64 Connecticut Society for Mental Hygiene 54 Constitution (US): Second Amendment 17; Sixth Amendment 87–8, 89, 90, 91, 92, 93; Eighth Amendment 1, 4, 12, 35–7, 79, 103–5, 141; Tenth Amendment 88; Fourteenth Amendment 88, 89, 90, 91, 92, 142–3, 152 constitutional rights: competency to waive 75–6 Cook County Jail: deinstitutionalization effects 58; numbers of mentally ill inmates 43 coping: drugs 159 corrections system see prison costs: prison 173 counsel: establishing right to 88–91; right to refuse assistance to 72–3, 87–8, 91–4 counselling 10 courts: drug 164–71, 173–4, 208; mental health (MHC) 145–9, 153–4, 208 crack cocaine scare 172 crime: and punishment 163–4; social construction 16–18 Criminal Justice System: place of forensic psychology 11–12 criminal responsibility 7, 109–33; CST 67; history 112–16; of Holmes 9–10 criminalization: mental illness 44–55, 56–8 cure: mental illness 50, 56 Cutler, Rev M. 46–7 Dart, T. 43, 58, 61, 63 defense: affirmative 115, see also insanity defense deinstitutionalization: criminalization of mental health 56–8; entrenching problem 63–4; funding issues 57–8; goals 57; movement 138; tragedy 139 Delling, J.: amicus brief 12, 13; writ of certiorari 12, 14, 118–20 Delling v. Idaho (2011) 11–13, 16, 118–19, 121, 129 delusions 112, 138, 161 Deutsch, A.: The Mentally Ill in America 44, 46–50, 60 diagnosis of mental illness: subjective experience 27–8

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Diagnostic and Statistical Manual of Mental Disorders (DSM) 114; 5th Edition (DSM-5) 4, 26–7; historical development 25–7; homosexuality 26 Dietz, Dr P. 117 differentiated case management (DCM): Miami 166 dimensionality: mental illness 27 disability: intellectual 6, 15, 101 disparity: African Americans 208 disproportionality 208 Dix, D. 51–2, 138 Dlugacz, H.: and Perlin, M. 140–1 dominance 159 Down’s syndrome 101 Drope v. Missouri (1975): competency to stand trial (CST) 73–4 drug courts 208; effectiveness 173–4; history 164–71; key components 168–71; need for 172–3; problems 173–4; sanctions and incentives 167–8; 10-part model 168; therapeutic models 170 drug interventions: American Psychological Association 143 drug laws 162–3, 165 drugs: addiction intervention 167; coping 159; counselling 10; crime and punishment 163–4; dominance 159; global usage 162; hallucinogenic 161; medicine 157–8; numbers of offenders 173; peer pressure 158; prison numbers 166; production 162; purpose 157; social dynamics 158; social enhancement 159; treatment 164; treatment program 166; US law 162–3; war on 166, 172, 173; why people use 157–62 Drummond, E. 113 Due Process Clause 7, 76, 78, 91, 152 Durham v. United States (1954) 114, 115, 126 Dusky, M. 70 Dusky v. United States (1960) 39, 145; competency to stand trial (CST) 67, 70–1, 117 dysphoria 161 Eastern Lunatic Asylum 45–6 Eighth Amendment (Constitution) 1, 4, 12, 35–7, 79, 103–5, 141 empirical term: definition 183 engrams 184 equality: mentally ill people 139–40 established precedent 77

Estelle v. Gamble (1976) 141, 142 ethnic minorities 172, 173, 209 evil 21 excuse: of mental illness 9 execution: competency to be executed 103–6; of Wilson 1, 2–3, 4, 5 expedited drug case management system (EDCM): Miami 166–7 eyewitness identification: issues 195–6 eyewitness memory 181–201; accuracy 185; attention 192–3; attention and weapon focus effect 185; recall 184; research on accuracy 184–7; social construct 185–6; suggestion 187, 189; testimony 187–9; verbal descriptions 193–4; view 191–2; vision occlusions 192–3 eyewitness testimony: definition 183; epistemology 183–4; memory 187–9; suggestibility 189–95 face-to-face situation 23, 99 facial recognition 188, 189 false memory syndrome (FMS) 186–7 fanaticus (frenzied/mad) 112 Faretta v. California (1975) 76, 91–3, 93–4 Ford, A. 103 Ford v. Wainwright (1986) 103–4 forensic psychology: definition 2–9 forensic psychotherapy: and forensic psychology difference 9–11 forgetting curve 193 Forth, A.E.: and Plais, J. 151 Forty Years After Jackson v. Indiana: States’ Compliance with ‘Reasonable Period of Time’ Ruling article (Kaufman, Way and Suardi) 82 Foucault, M. 48–9 Fourteenth Amendment (Constitution) 88, 89, 90, 91, 92, 142–3, 152 free will: and moral accountability 111 freedom: and social conformity 57 Freud, S. 62 Frith Case (England, 1790) 68, 69 Frye Standard 13 Frye v. United States (1923) 12–13 funding: deinstitutionalization 57–8; psychiatric hospitals 52 Geller, J. 150 Gideon v. Wainwright (1963) 90–1

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Giffords, Congresswoman G. 1–2 Godinez v. Moran (1993): competency to stand trial (CST) 74–6, 93–4 God’s will: mental health 44–5 Goffman, E.: Asylums: Essays on the Social Situation of Mental Patients and Other Inmates 59; Stigma: Notes on the Management of Spoiled Identity 29–30, 61 Goldstein, A. 9 Goldstein, Judge Stanley 167 Good Lives Model (GLM): treatment 170 Guantanamo Bay 84–5 guilt: Jackson v. Indiana 81 guilty act (actus reus) 113 guilty but mentally ill (GBMI) 126, 127–30 guilty mind (mens rea) 113 habeas corpus petition: by Betts 89; by Gideon 90 Hall, F.L. 14, 15 Hall v. Florida (2014) 14, 15, 16 hallucinations 112, 138, 161 hallucinogenic drugs 161 Harrison Narcotics Act (1914) 162–4 health care 141 heroin 160 Heroin Act (1924) 1163 Hinckley Jr, J. 115 Holmes, J.: Colorado movie theater attack 1, 3, 7, 8, 9; criminal responsibility 9–10; humanness 21, 24; perceptions of 22, 24–5 homosexuality 26 Hora, P.F. 168–9; and Chase, D. 171 hospitals: private mental 49; psychiatric 44, 52; psychopathic 55 Hughes, S.: and Peak, T. 151 humane laws 48 hygiene: mental 52–5 hypnotic regression: memory 186 I/me: self 28–9, 31–2, 100–1 iatrogenesis 153 Idaho: insanity defense 12 identi-kits 188 identification: eyewitness 195–6 illness see mental illness illusions: memory 187 incompetence to stand trial (IST) 67–8, 78–84; v. insanity defence 110–12

incompetency: after Jackson ruling 80–2; forty years after Jackson 82–3; Jackson v. Indiana (1972) 78–80; reasonable duration of confinement 81, 82; state of exception 83–4 indefinite confinement: and terrorism 83 Indiana v. Edwards (2008): competency to stand trial (CST) 76–8, 93–4, 105 innocence: and confessions 98–100; transparency of 101 insanity: burden of proof 115; jurisdictional constructions 121–30; Law & Order: Criminal Intent 117; legal 8, 130; legal construction 117–18; legal definition (Colorado) 8; test 7 insanity defense 11–12, 109–33; Andrea Yates case 116–17; case-by-case definition 116; figures in criminal trials 17, 109–10; history 112–16; Idaho 12; for incompetence to stand trial 110–12; standards used in different States 125–6; States of America 122–4; Supreme Court 118–21 Insanity Defense Reform Act (1984) 115 intellectual disability 15; defined AAIDD 101; Texas 6, see also mental retardation intent 204 interrogation 95–102 IQ scores 14, 15, 35, 206; standard error of measurement (SEM) 16 irresistible impulse test (IIT) 126–7 Jackson v. Indiana (1972) 68; after 80–2; forty years after 82–4; guilt 81; incompetency 78–80 jail see prison Johnson, L.B. 172 Joint Commission on Mental Illness and Health: Action for Mental Health (1961) 57 Jones v. United States (1983) 81 Jones, W. 37 Judiciary Act (1798) 92 Jurek v. Texas (1976) 35 jurisdictional constructions of insanity 121–30 jurisprudence: therapeutic 146, 171–2 justice 21 Kansas: abolished insanity defense 126 Kassin, S.M.: innocence and confessions 98–100 Kaufman, A.R., Way, B.B. and Suardi, E. 82 Kennedy, Justice A. 16 Kennedy, President J.F.: mental illness 57, 138

INDEX

knowledge 25 Kolliakou, A.: et al. 162 Kroft, S. 43 Lanier, M.M., Polizzi, D. and Wade, A.L. 62 law: mental health 34–9; mental illness 16–18; US drugs 162–3, 165 Law & Order: Criminal Intent 117 law enforcement agencies 164 legal competency: types 87–108 legal insanity 120, 130; adjudicated self 130; Colorado 8 legal system: psychological expert 12–16 Leong, G.B. 143 line-ups 194–5; double blind 195 Loftus, E. 188–9 Loughner, J.: Tucson shooting 2, 3, 7, 8, 9 LSD 161 McDermott, K.B.: and Roediger, H.L. 185 MacDonald, J.: and Agar, M. 161 McGaha, A.: et al. 153 Manson v. Brathwaite (1977) 189–90 Marcus, D.K.: et al. 151 marginalization 172; social 30 marijuana 158, 162, 163 Marshall, Justice T. 104–5 Martin, T. 196; killing 23–4 me/I: self 28–9, 31–2, 100–1 Mead, H. 28–9, 100–1 medical coercion 150 medication 135–56; anti-psychotic 138; coerced 142; drugs 157–8; effects during trial and pretrial 152; inmates’ experience 153; paranoid schizophrenia 152; self- 162 Meloy, J.R.: and Morris, G.H. 80–2; The Psychopathic Mind 10 memory see eyewitness memory mens rea (guilty mind) 113, 117, 119, 205 mental defect concept (Blackstone) 68–9 mental health: law 34–9; national system 51–2 Mental Health Act (1946) 56 mental health courts (MHC) 145–9, 208; procedure 146–9; research 153–4 mental health movement: community 57 mental health services: and police officers 32 mental health treatment: fear-based 47–8; zoolike environment 46–7 mental hospitals: private 49 mental hygiene movement 52–5

mental illness: Colonial America 44–7; Cook County Jail inmates 43; corrections system 137–8; criminalization 44–55; cure 50, 56; dimensionality 27; excuse 9; history in America 43–4; law 16–18; meaning 26; moral treatment 48–51; social construction 25–34; stigma 29–34; subjective diagnosis 27–8 Mental Illness and Self-Representation: Faretta, Godinez and Edwards (Slobogin) 93–4 mental retardation 6–7, 15, 101; legal definition 3, 6, see also intellectual disability Mentally Ill in America, The (Deutsch) 44, 46–50, 60 mentally ill people: equality 139–40; levels of incarceration 137; offenders 144–5; selfrepresentation 93–4; warehousing 63 methamphetamine 160 Meyer, A. 53 Miami: differentiated case management (DCM) 166; expedited drug case management system (EDCM) 166–7 Mickenberg, I. 128 mind: state at time of crime 109–33 Mind that Found Itself, A (Beers) 53–4 Minnesota Multiphasic Personality Inventory-2 (MMPI-2) 4 Miranda v. Arizona (1966) 94–8, 100, 102, 106 Mittal, D.: et al. 30–1 M’Naghten, D. 113 M’Naghten rule 114–15, 117, 121–2, 125, 127, 204–5 Model Penal Code Test (American Law Institute standard) 115, 117, 122, 125–6 moral accountability 111 moral treatment: mental illness 48–51 Morris, G.H.: and Meloy, J.R. 80–2 Morse, S.J. 34, 103; legal insanity definition 117 Mossman, D.: et al. 69 Murrie, D.C.: et al. 151 Musterberger, H.: On the Witness Stand 187–8 Narcotic Addict Rehabilitation Act (1966) 164 narcotic farms 165 National Association of Drug Court Professionals (NADCP) 168 National Committee for Mental Hygiene 54 National Institute of Mental Health (MIMH) 56 national mental health system 51–2 National Prohibition (Volstead) Act (1919) 163 needs: primary 170

215

216

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Neil v. Biggers (1972) 189, 190 Nesbitt, E. 37 neurons 184 Nicholi, A. 159, 160 non compos mentis (not in command of one’s mind) 112 non-citizen status 84–5 North Carolina v. Butler (1979) 96–7 not guilty by reason of insanity (NGRI) 9, 117 O’Connor, Justice S.D. 35–6 offenders: drugs numbers 173; mentally ill 144–5; sexual 10, 17 On the Witness Stand (Musterberger) 187 operant behavior 159 operant conditioning 159 opiates/opioids 161 opium: Act to Prohibit Importation and Use of (1909) 162 outpatient commitment 150 Panetti v. Quarterman (2007) 103, 105–6 paranoid schizophrenia 149–50; medication 152 Pate v. Robinson (1966): competency to stand trial (CST) 71–2 Peak, T.: and Hughes, S. 151 penitentiary system: and mental illness 137–8; total confinement institutions 59–64, see also prison Penlaver, S.: case (2015) 1, 181–2, 183, 189, 196 Pennsylvania Criminal Code 120 Pennsylvania Hospital 46 Pennsylvania v. Bruno (1979) 129 Pennsylvania v. Rabold (2008) 128–9 Penry v. Lynaugh (1989) 4, 35–6 perception: eyewitness memory 192 Perlin, M. 15, 38, 74, 94–5; and Dlugacz, H. 140–1 pharmacological revolution: Thorazine age 55–6 Pierce, F. 52, 138 Pinel, P. 48 Plais, J.: and Forth, A.E. 151 Plato 184 Platoni, K. 186 plea: failure to 68 police officers 33; and mental health services 32 Polizzi, D. 9 postpartum psychosis 116 Post Traumatic Stress Disorder (PTSD) 30–1 poverty: war on 172

precedent: established 77 premeditation 204 Prendergast, M.L.: et al. 152–3 pretextuality 140–1 prevention programs 166 prisoners’ rights 141 prisons: costs 173; and ethnic minorities 172; and mental illness 137–8; numbers of mentally ill inmates 43; penitentiary system 59–64, 137–8 psychiatric hospitals: drastic decrease in 44; public funding 52 psychological expert: legal system 12–16 psychological functioning 152 psychopathic hospitals 55 Psychopathic Mind, The (Meloy) 10 psychopathy 4 psychosis: postpartum 116 punishment: and crime 163–4 race 185; socioeconomics 209; stereotyping 196 racism 24, 172 Reagan, R. 115, 139 reality: social construction 22–5 recidivism 153–4; reducing 149; treatment programs 166 recognition: facial 188, 189 reductionism: definition 183 reintegrative shaming 149 representation: self- 77, 91–3, 93–4 repression 62 responsibility: criminal 7, 9–10, 67, 109–33 retardation: mental 3, 6–7, 15, 101 Retreat, The 48 Riggins v. Nevada (1992) 142–3, 152 right to counsel: establishing 88–91 right to refuse assistance to counsel 72–3, 87–8, 91–4; competency 87–8 right to silence: competency to waive 94–102 rights: constitutional 75–6; prisoners’ 141 Ring v. Arizona (2002) 7 risk assessment 151 Risk-Need-Responsivity (RNR) model 170 Robinson, D. 112 Robinson, W.D.: et al. 30 Rockefeller, N. 165 Roediger, H.L.: and McDermott, K.B. 185 Rothman, D. 44–5, 53 Rubin, D.C.: and Wallace, W.T. 184 Ruffin, M. 14 Rush, B. 47–8

INDEX

sanism 38, 139–40 Scalia, Justice A. 5, 7 schizophrenia 103, 161, 206; paranoid 149–50, 152 Second Amendment (Constitution) 17 sedation 56 self: adjudicated 84–5, 106–7, 130; conceptualization 28–9; me 31–2, 100 self-medication 162 self-representation 77; mentally ill 93–4; right 91–3 Sell Criteria 143 Sell v. United States (2003) 143 September 11th terrorist attacks (2001) 83 services: mental health 46–8 sexual offenders 10; history of victimization 17 shaming: reintegrative 149 Shapiro, D.: and Walker, L. 2 shell shock: WWI 54–5 show-ups 194–5 silence 68; competency to waive ones right to 94–102 Sixth Amendment (Constitution) 87–8, 89, 90, 91, 92, 93 Slate, R., Buffington-Vollum, J. and Johnson, W. 146–8 Slobogin, C. 76, 78; Mental Illness and SelfRepresentation: Faretta, Godinez and Edwards 93–4 Smith Kline: chlorpromazine 56 social conformity 57 social construction: of crime 16–18; of memory 185–6; of mental illness 25–34; of reality 22–5 Social Construction of Reality: A Treatise in the Sociology of Knowledge (Berger and Luckmann) 17, 23, 99 social functioning 152 social marginalization 30 socioeconomics: of race 209 solitary confinement 140 Sotomayor, Justice S. 97, 98 SSI (supplemental social security income) 138 standard error of measurement (SEM): IQ scores 16 standing trial: competency to (CST) 7–8, 67–86 state of exception: incompetency 83–4 state of mind at time of the crime 109–33 States of America: insanity defense 122–4; insanity defence, standards used 125–6

status: non-citizen 84–5 stereotyping: race 196 Stevens, Justice J.P. 5, 37–9 Stigma: Notes on the Management of Spoiled Identity (Goffman) 29–30, 61 stigma: mental illness 29–34 subjective experience: mental illness diagnosis 27–8 success: therapeutic 171 Sucharski, C. 181 suggestibility 101; commission 191; eyewitness testimony 189–95; omission 191 suggestion: and memory 187, 189 suicide 4 Supreme Court: competency to stand trial (CST) 70–8; insanity defense 118–21 synesthesia 161 talk therapy 144 Taylor, R. 139 teens: alcohol user profiles 159 Tenth Amendment (Constitution) 88 terrorism: indefinite confinement 83; September 11th attacks (2001) 83; War on Terror 83 testimony: eyewitness 183–4, 187–9, 189–95 Texas 6 therapeutic jurisprudence 146, 171–2 therapeutic success 171 therapy: talk 144 Thorazine age: pharmacological revolution 55–6 Torrey, E.F. 137–8 total confinement: penitentiary 59–64 total institution: total confinement 59 tough-on-crime approach 172 trace-access memory 184 trace-dependent memory 184 transparency of innocence 101 treat then street 139, 154n treatment: coerced 135–56; confinement of reasonable duration 81; drugs 164, 166; Good Lives Model (GLM) 170; lack of beds 137–8; program recidivism 166; Risk-NeedResponsivity (RNR) model 170 Treatment Alternatives to Street Crime (TASC) program 164 trial: competency to stand (CST) 7–8, 67–86; incompetence to stand (IST) 67–8, 78–84, 110–12 Truman, H.S. 56

217

218

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truth 11, 17 Tucson shooting (2011) 1–2, 3, 7, 8, 9 Tuke, W. 48 Turner, J.A.: et al. 173–4 Turzanski, S. 139 Uniform State Narcotic Drug Act (1934) 163 United States Code (USC): competency standard (Title 18 Section 4244 – 1960) 69 United States Constitution see Constitution (US) United States v. Brawner (1972) 114, 115 United States v. Chisholm (1906) 69 verbal descriptions 193–4 veterans: combat 30–1 victimization: of sexual offenders 17 Violent Crime Control Enforcement Act (1994) 167 Volstead (National Prohibition) Act (1919) 163 voluntariness 146 Walker, L.: and Shapiro, D. 2 Wallace, W.T.: and Rubin, D.C. 184 War on Drugs 166, 172, 173 War on Poverty 172

War on Terror 83 Ward, T.: and Gannon, T.A. 170 warehousing: mentally ill people 63 Warren, Chief Justice E. 13 Washington v. Harper (1990) 141–2, 152 Watkins, C.: et al. 151 Watson, A.C.: and Angell, B. 32–4 Watts, J. 21, 22, 24, 25, 28 weapon focus effect: eyewitness memory 191 Weaver, M. 21, 22, 24 Wells, G.L.: and Quinlivan, D.S. 191, 193, 194 Westbrook v. Arizona (1966): competency to stand trial (CST) 72–3 Wilson, M. 110; appeal and execution 1, 2–3, 4, 5 world views/perspectives 22 World War I (1914–18): shell shock 54–5 writ of certiorari 12, 14, 70, 118–20 writ of habeas corpus 71 Yates, Andrea Pia v. Texas (2005) 117, 119, 203–4, 205 zero tolerance policies 173 Zimmerman, G. 23–4