Mental disorder and criminal law.

• Author: Morse, Stephen J.
• Position: Symposium: Preventive Detention

1. INTRODUCTION II. WHAT IS MENTAL DISORDER AND WHY DOES IT AUTHORIZE SPECIAL LEGAL TREATMENT? A. MENTAL HEALTH DEFINITIONS B. CRIMINAL LAW AND MENTAL DISORDER C. DISTRACTIONS AND CONFUSIONS ABOUT WHY MENTAL DISORDER AUTHORIZES SPECIAL TREATMENT III. PRETRIAL ISSUES A. INVESTIGATION B. FORENSIC EVALUATION AND THE RIGHT TO A MENTAL HEALTH EXPERT C. COMPETENCE TO STAND TRIAL D. COMPETENCE TO PLEAD GUILTY IV. TRIAL ISSUES A. THE RIGHT TO PROCEED PRO SE B. NEGATING MENS REA C. LEGAL INSANITY D. GUILTY BUT PARTIALLY RESPONSIBLE V. POST-TRIAL ISSUES A. COMPETENCE TO BE SENTENCED B. FORCIBLE MEDICATION AND TRANSFER TO HOSPITAL .... C. SENTENCING D. COMPETENCE TO BE EXECUTED AND FORCIBLE RESTORATION OF COMPETENCE VI. PREVENTIVE DETENTION THROUGH CIVIL COMMITMENT A. SEXUAL PREDATOR COMMITMENT B. COMMITMENT AFTER ACQUITTAL BY REASON OF LEGAL INSANITY VII. THE RADICAL CLAIM THAT WE ARE NOT AGENTS VIII. CONCLUSION I. INTRODUCTION

   Mental disorder among criminal defendants affects every stage of the criminal justice process, from investigational issues to competence to be executed. (1) 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. The underlying thesis of this Article is that people with mental disorder should, as far as is practicable and consistent with justice, be treated just like everyone else. In some areas, the law is relatively sensible and just. In others, too often the opposite is true and the laws sweep too broadly. I believe, however, that special rules to deal with at least some people with mental disorder (2) are justified because they substantially lack rational capacity, a condition that justifies disparate treatment. Treating people with mental disorder specially is a two-edged sword. Failing to do so when it is appropriate is unjust, but the opposite is demeaning, stigmatizing, and paternalistic. The central normative question is when special treatment is justified, a question the next Part addresses.

   This Article will focus mainly on United States Supreme Court cases to review the current state of the law, with special attention to the many criminal mental health law contexts in which preventive detention is an issue. It makes no pretense to covering every issue, to providing a complete analysis of these cases, or to comprehensive coverage of all the arguments concerning the issues raised. The Court's cases are simply a vehicle for organizing the overview. To celebrate the one-hundredth anniversary of the Journal of Criminal Law and Criminology, I will survey the landscape from the vantage of four decades of working in this field as a scholar, legislative drafter, advocate, and practitioner in both law and mental health. The goal is to explore what I consider the most just approach in each area. In some cases, my preferences are foreclosed by constitutional constraints; in others, the preferred approach could be achieved by statute or by state supreme court decisions.

   Part II provides an analysis of the concept of mental disorder, both in the fields of mental health, primarily psychiatry and psychology, and in law. I consider why the law treats some people with severe mental disorder specially and I address confusions and distractions about this issue. Then I turn to the legal survey, beginning in Part III with pretrial issues, including competence to waive constitutional rights during pretrial investigation, the fight to a court-appointed mental health expert, competence to stand trial, commitment to restore trial competence, the right of the state to involuntarily medicate an incompetent defendant to restore competence, and competence to plead guilty. Part W considers trial-related procedural issues, including the fight to represent oneself, and culpability issues, including negation of mens rea (so-called diminished capacity), partial responsibility mitigations, such as the Model Penal Code's "extreme mental or emotional disturbance" doctrine, the defense of legal insanity, the "guilty but mentally ill" verdict, and the potential for adopting a generic mitigating doctrine of partial responsibility.

   Part V next addresses post-trial issues, including competence to be sentenced, the role of mental disorder in setting sentences, including the imposition of capital punishment, involuntary medication of prisoners, transfer of prisoners to mental hospitals, competence to be executed, and the right of the state to involuntarily medicate an incompetent prisoner to restore competence to be executed. Part VI considers two forms of involuntary civil commitment that are used primarily for preventive detention, commitment of so-called mentally abnormal sexually violent predators and commitment after a defendant is found not guilty by reason of insanity. The last substantive section, Part VII, briefly considers the challenge to criminal law from the new neuroscience, a challenge that threatens the very foundation of criminal responsibility for all defendants and not just for those who suffer from severe mental disorder. A brief conclusion follows.

2. WHAT IS MENTAL DISORDER AND WHY DOES IT AUTHORIZE SPECIAL LEGAL TREATMENT?

   This Part begins with the mental health profession's definition of mental disorder. It then turns to the legal definition and explains why it authorizes special legal treatment. The differing definitions reflect the different goals of the criminal law and mental health systems. The former is primarily concerned with justice and social safety; the latter is primarily concerned with the prevention and treatment of mental disorders. The Part concludes by explaining prevalent confusions and distractions about why people with mental disorder are treated differently.

   1. MENTAL HEALTH DEFINITIONS

      Let us begin with the American Psychiatric Association's generic definition of mental disorder:

      [E]ach of the mental disorders is conceptualized as a clinically significant behavioral or psychological syndrome or pattern that occurs in an individual and that is associated with present distress (e.g., a painful symptom) or disability (i.e., impairment in one or more important areas of functioning) or with significantly increased risk of suffering death, pain, disability, or an important loss of freedom. In addition, this syndrome or pattern must not be merely an expectable and culturally sanctioned response to a particular event.... Whatever its original cause, it must be considered a manifestation of a behavioral, psychological or biological dysfunction in the individual. Neither deviant behavior (e.g., political, religious, or sexual) nor conflicts that are primarily between the individual and society are mental disorders unless the deviance or conflict is a symptom of a dysfunction in the individual, as described above. (3) With respect, this definition is so broad, vague, and subjective that it is of little help in determining who should be treated specially by the law and why. To its credit, the American Psychiatric Association's authors recognize these problems. They attempt to remedy it with various caveats, but the difficulty remains. Consequently, to obtain clearer understanding of the nature of the phenomenon under consideration, it is useful to turn to an examination of the specific diagnostic categories encompassed in the manual. Before doing so, however, we should note two cautions that the Diagnostic and Statistical Manual of Mental Disorders (DSM) raises. First, there is enormous heterogeneity within each disorder category. (4) That is, people who technically meet the criteria for the diagnosis may have quite different presentations. This is not surprising because it is also true of physical diseases. All sufferers from the same type of cancer, for example, do not present precisely alike. Second, these diagnostic criteria were developed for clinical and research purposes; they were not developed to answer legal questions and indeed do not do so. (5)

      If one examines the "elements" of mental disorders, the criteria that must be established to make a diagnosis, mental disorder is diagnosed entirely on the basis of behavioral indicia, broadly defined to include perceptions, thoughts, desires, feelings, moods, and actions. (6) Despite the astonishing recent advances in the brain sciences and the drumbeat of claims that mental disorder is a brain disease, we still have very little understanding of the causation of mental disorder and few measures of it that do not require substantial amounts of subjective judgment by either the subject providing a self-report or the external diagnostician. There are no physical tests, including brain scans, that can accurately diagnose mental disorders. (7) The undoubted success of some biological interventions to ameliorate the behavioral signs and symptoms of mental disorder does not undermine this conclusion. The ability to successfully treat a disorder at some level of intervention, such as the biological, the psychological, or the sociological, does not mean that the problem was caused at that level. For example, alleviating with ethanol (alcohol) the sad feelings occasioned by an adverse life event does not mean that the sad feelings were primarily produced by "ethanol deficiency disorder." To believe otherwise is to be guilty of the "treatment aetiology fallacy." (8) The most compelling assumption about the causation of complex human behavior, including severe mental disorders, is that it will require a multifield, multilevel approach to explanation that avoids biological reductionism or any other form of univariate explanation. (9)

      If mental disorder is best understood today as a behavioral disorder--a behavioral abnormality--the question is what kind of behavior qualifies for consideration as a disorder or illness. After all, many kinds of statistically abnormal behaviors or behavioral capacities, such as enormously high intelligence or...