A healer or an executioner? The proper role of a psychiatrist in a criminal justice system.

• Jurisdiction: United States
• Author: Dolin, Gregory
• Date: 22 June 2002

1. INTRODUCTION II. INSANITY AND CRIMINAL JUSTICE: HISTORICAL PERSPECTIVE A. Why Absolve the "Lunatics?" B. Science and the Law C. Various Judicial Tests for Insanity III. PSYCHIATRY AND THE CRIMINAL JUSTICE SYSTEM IN THE MODERN WORLD A. Psychiatric Involvement Today 1. Competency to Stand Trial 2. Testimony at Trial 3. Competency at Execution 4. Medicating the Prisoners 5. Treating the Acquitted C. The Consequences of Being Adjudged Insane IV. INDEPENDENT PANELS-AN UNACCEPTABLE SOLUTION A. Psychiatric Evaluation in the Soviet Criminal Justice System B. The Case of Colonel Yuri Budanov V. ETHICAL PRACTICE OF PSYCHIATRY WITHIN THE CRIMINAL JUSTICE SYSTEM A. Basic Principles 1. The "No Harm" Principle 2. The "Consent" Principle 3. The "Professionalism" Principle B. Application of Principles 1. Competency to Stand Trial or for Execution 2. Testimony at Trial 3. Actions of "Independent Panels" 4. Medicating the Prisoners 5. Treating the Acquitted 6. Competency for Execution.. VI. CONCLUSION "Render therefore unto Caesar the things that are Caesar's, and unto God the things that are God's." (2)

1. INTRODUCTION

   For well over two thousand years, Western civilization has made a judgment that the mentally ill suffer not only from an illness, but also from a social condition. (3) Nor has it been alone in this judgment; indeed, this view is almost uniform throughout the world. (4) The result of this judgment is that the mentally ill have for a long time been held not responsible for their actions, be they of a civil or criminal nature. (5) Certain problems accompany such a decision. Society needs to distinguish the severely mentally ill, from those who may be ill but not severely. A decision needs to be made about what to do with the mentally ill, in lieu of legal liability. Society has grappled with these questions for generations, with each generation purportedly giving a more progressive and humane answer.

   As the science of medicine in general and of psychiatry (6) in particular has developed, the criminal justice system has attempted to harvest the increased scientific knowledge so that it could help in answering these questions (although it has remained somewhat ambivalent about psychiatric involvement). (7) Psychiatrists are now closely involved in multiple stages of criminal justice administration. (8) Such involvement has quite often been lauded as it is perceived to be scientific, and thus objective, ridding the criminal justice system of arbitrariness and uncertainty in its involvement with the criminally insane. (9) Today psychiatrists are involved in every stage of the criminal process, from the preliminary hearing to long after conviction or acquittal by reason of insanity. (10) Because of their undisputed expertise in mental health, some of the judgments that psychiatrists make go unquestioned by the criminal justice system. (11) When such judgments are questioned however, a "battle of the experts" ensues (12) where the scientific truth gets lost. (13) Psychiatrists are often asked to testify on issues that they have no particular expertise in. A psychiatrist cannot intelligently answer whether the accused poses future danger, yet such questions are routinely asked. A psychiatrist also has no specialized knowledge to answer such questions of morality as "did the person know 'right from wrong' or 'good from evil." However, the courts do tend to allow psychiatrists to offer testimony on such essentially moral questions. Thus, psychiatrists are tempted to justify the judgments of the courts or alternatively to substitute their own morality for that of the rest of the society (as expressed by the jury). Such intertwining of medicine and the law does not do justice, and reflects poorly on the medical profession. The "battle of the experts" and the resultant and concomitant distrust that lay juries often end up having in experts (14) are but a symptom of this problem. This article argues that despite the benefits of ridding the criminal justice system of some uncertainty and ignorance with respect to mental health issues, the very close involvement of psychiatrists in the criminal justice system as practiced in the United States is not only illogical and bad policy, but also unethical from the viewpoint of medical ethics.

   Part II of this article will lay the groundwork for the argument by discussing the history of the insanity defense, and of science's involvement with criminal justice; while Part III, will look into the association of science and the administration of justice in the modern world. Part IV will argue that the alternative methods of linking psychiatry and the criminal justice system, such as independent expert panels, do not solve the fundamental problem of psychiatrists working beyond their ethical boundaries. Finally, Part V will focus on the ethical principles that should guide a psychiatrist in his involvement with the judiciary.

2. INSANITY AND CRIMINAL JUSTICE: HISTORICAL PERSPECTIVE

   1. Why Absolve the "Lunatics?"

      The mentally ill and feeble minded have for a long time been treated differently in the law. (15) This legal distinction can be traced as far back as the Roman Empire Law. (16) This exception from criminal responsibility survived through the ages to the present day. This section of the article will attempt to articulate a variety of policy and ethical reasons as to why the mentally ill have enjoyed and continue to enjoy an exemption from criminal responsibility.

      Any reason to exclude a group of people from punishment for certain acts must rest in the reasons and theory underlying punishment itself. (17) Thus, when one looks at various reasons for punishment advanced throughout the ages, one will have a better understanding of why the mentally ill were often not subject to the full range thereof.

      Several classic theories for punishment have been advanced throughout the years. None of these theories however can be applied to the insane. As no theory of punishment fits them, it must follow that punishment is not to apply to the mad.

      One theory for why society punishes wayward individuals is to prevent these same individuals from inflicting further harm upon the society. (18) This is best understood as specific deterrence. In essence this theory is very Pavlovian (19) in its nature. By subjecting a violator to negative experiences, the society hopes to elicit an understanding that further rule-breaking will lead to more negative experiences, while following the rules will result in positive experiences. (20) However, this mechanism cannot succeed merely on the "stimulus-response" axis. Some understanding of events surrounding the punishment and of the punishment itself must occur in order for this theory to be effective. (21)

      Another theory of punishment is rehabilitation of the wayward members of society. (22) The offenders are incarcerated not just to make them safe, (23) but also more productive members of society. (24) Of course, penance requires that one understands that his actions are wrong, and more importantly, that he has the ability to act "right." (25)

      Oftentimes, the desire to educate society on the principles of right and wrong drives the criminal justice system. (26) Two theories are at work. One is that the very process of apprehending, prosecuting and punishing the culprit serves to educate the rest of society as to the prohibited type of conduct, especially as the laws and regulations proliferate at such rate that few individuals can keep pace. (27) The other is that punishment (by being an unpleasant experience) deters other members of society from engaging in unpalatable conduct. (28) By punishing individuals, society affirmatively tells everyone that certain behavior is wrong, and showcases what awaits those who do not heed societal prohibitions. (29)

      The oldest theory of punishment is the one of "just deserts." (30) It is aimed directly at the culprit and is based on the idea that the suffering inherent in any punishment is deserved. (31) Through punishment, society exacts its vengeance on those who choose to disregard its rules. (32) The pain that the punishment inflicts on the criminal is in return for the pain that the criminal inflicts on society through his own freely chosen wrongful actions. (33)

      Finally, punishment is also inflicted to incapacitate the offender, i.e., to place him in such a surrounding where he can commit no more crimes. (34) (This of course discounts the possibility of crime "on the inside," but even with this factor accounted for, it is undeniable that a person against whom strict control is exercised is not able to cause as much damage as he would otherwise be able to do.) (35) Prison incapacitates dangerous criminals and the society therefore justifiably feels safer. (36)

      The mentally ill are not subject to the punishments meted out by the criminal justice system for a variety of reasons. Some, such as "specific deterrence" (37) and "rehabilitation," (38) have to do with the fact that mentally ill cannot understand the nature of punishment anymore than they can understand the nature of the crime, (39) and the significance of punishment is therefore lost on them. (40) Some, such as "education" (41) or "deterrence" (42) theories have to do with the benefits that inure to the public from such exculpation; because by exculpating the mentally ill, the "right" and "wrong" are brought into focus more clearly. (43) Yet other rationales come from policy reasons that caution against equating a lunatic with a sinister criminal, accordingly making "retribution" inappropriate. (44) Although restraint may seem applicable to both sane and insane, (45) the incapacitation of the insane cannot be viewed as punishment, for they are not merely incapacitated, but treated. (46) Underlying it all, however, is a moral judgment that the mentally ill are not sufficiently "bad" to warrant the condemnation inherent in conviction and criminal sanction...