Providing those with mental illness full and fair treatment: legislative considerations in the post-Clark era.

• Author: Cormier, Joseph W.

INTRODUCTION I. SCHIZOPHRENIA: A STUDY OF ONE EXTREME OF MENTAL DISEASE A. Manifestation, Onset, and Progression 1. Manifestation 2. Onset and Progression B. The Treatment Puzzle C. The Legal System and Individuals with Schizophrenia II. DEFENDING THOSE WITH MENTAL ILLNESS DURING THE LAST 170 YEARS A. From Daniel M'Naghten to John Hinckley, Jr. B. Current Status 1. Constitutional Minima 2. Areas of Evolving Standards III. ALTERNATIVE PUBLIC POLICY: A THREE-PRONGED APPROACH A. Invest in Mental Health Facilities and Support Structures B. Provide Juries with Full and Accurate Information C. Expand the Availability of the Insanity Defense CONCLUSION APPENDIX: CRIMINAL INSANITY DEFENSES IN THE UNITED STATES INTRODUCTION

Reforming legal treatment of individuals with mental illness has been a topic that periodically resurfaces only to quickly be replaced by the next emergent public policy issue. Decisions are generally made in a reactionary fashion instead of the more deliberative processes afforded other ongoing issues such as taxes, health care, budgets, and others. Now that the dust has settled from the Supreme Court's decision in Clark v. Arizona, (1) it is time that legislatures take another look, this time with a broader and perhaps more sober perspective, at how their legal system approaches such individuals.

Generally speaking, the civil legal system deals with people with mental illness in terms of public services such as treatment facilities, mental health care provisions, and non-discrimination policies, among others. The criminal justice system, on the other hand, interfaces with people with mental illness through several mechanisms: diversion to alternative sentencing programs such as mental health courts, defendant competency requirements, and the availability, scope, and use of the insanity defense. Although the rise of the regulatory state has born some strict liability criminal statutes, actus reus, mens rea, justification, and excuse, together, form the basic fundament of criminal liability and the resultant ability of the government to deprive an individual of liberty and even life. When considering defendants with mental illness, Clark v. Arizona upheld extremely narrow policy choices with respect to mens rea and the insanity defense. (2) Legislatures, of course, remain free to consider alternative strategies; indeed, the Supreme Court has demonstrated a remarkable deference to local formulations of the insanity defense. (3) This Note will argue that narrow rules serve neither the public nor a prisoner's interest in rehabilitation and that legislatures should broaden the insanity defense and fund policies that ensure early detection, provide adequate treatment, and enable people with mental illness to lead productive lives.

The United States criminal justice system fails to serve adequately both the individual inmate and societal needs when dealing with defendants with mental illness. This problem is illustrated in cases involving persons with schizophrenia. For these individuals, incarceration based on either just desert or incapacitation functions as a way for society to ignore the underlying issues of treatment and post-release psychological care. Providing adequate treatment services before, during, and after confinement is necessary to meet the moral obligation we have to take care of the most vulnerable within our society. This is not to say that such individuals necessarily should be free from responsibility. Rather, people with mental illness present unique challenges to our judicial system and to the host of public services that the government provides its citizens. Addressing these issues--making the difficult policy choices--is incumbent upon legislatures, the courts, and the public at large.

For individuals with mental illness, existing approaches provide a mechanism for the public to avoid the long-term problems of mental illness and the ability to either prevent such crimes from even occurring or to help reduce their recurrence after release from confinement. Specific social programs and services are needed, together with legal reforms, in order to address these issues. These changes are neither popular nor cheap in the short-term; however, a longer-horizon approach will show that such programs provide the public with lower incarceration rates and lower recidivism and give individuals with mental illness a chance at a more productive and healthy life.

This Note will begin by examining the current understandings of both the pathology and effectiveness of treatment for individuals with schizophrenia and how the legal system interacts with individuals with mental illness. Then the historical progression of the law's treatment of those with mental illness will be reviewed. A detailed accounting of the current status of the insanity defense will be discussed. This Note will conclude by proposing alternatives for legislatures to consider in the wake of the Clark v. Arizona decision.

1. SCHIZOPHRENIA: A STUDY OF ONE EXTREME OF MENTAL DISEASE

   Professor Stephen Morse begins a 2006 article with the emphatic declaration that "[b]rains do not commit crimes; people commit crimes." (4) Morse frequently discusses the "normative debate about responsibility" as a conversation regarding whether the goal of neuroscience and behavioral studies negate "the very possibility of criminal responsibility." (5) These kinds of statements distract readers by reframing the discussion of how we deal with persons with mental illness in our legal system as a debate over determinism when the issues should focus on (1) the effects of mental disease on the mind and behavior and (2) how the law should appropriately interact with such individuals. Although individuals with bipolar disorder, depression, and other forms of mental illness also present similar issues, this section will focus on one specific mental illness, schizophrenia.

   It is important to note at the outset that individuals with mental illness are no more likely to commit crimes than those who are not mentally ill. (6) Indeed, the vast majority of individuals with mental illness are not in the criminal justice system. However, when mental illness is combined with substance abuse there is a rise in the criminality among such individuals. (7) People with schizophrenia, frequently due to the negative symptoms of the disease, see Section I.A.1., infra, may become homeless. Homelessness, in turn, regularly results in general victimization and even substance abuse. (8)

   An individual with schizophrenia, while not experiencing an episode, can be quite lucid and remorseful. Yet without adequate and appropriate treatment, the individual is apt to relapse into psychotic breaks, continuing a cycle in and out of the criminal and civil judicial systems. These individuals seem to epitomize the defendants that the insanity defense was intended to cover, and therefore provide low-hanging fruit in terms of reform.

   Without doubt, schizophrenia presents significant challenges to our judicial system and to the public at large. But, by turning the debate to that of determinism versus free will, proponents of Morse's view ignore the difficult realities of mental disease. A more complete understanding of these diseases will demonstrate the false choice Morse advances. Rather than trying to engage in a futile philosophical discussion of free will, legislatures should focus on the public policy choices at hand and deal with the problems of mental illness with an understanding of these diseases not just from an abstract perspective but from an informed, detailed clinical view.

   The American Psychiatric Association dedicates an entire section of the Diagnostic and Statistical Manual (DSM) to schizophrenia spectrum disorders. (9) The layperson generally misuses the term "schizophrenia" to include a host of disorders that present with delusions and hallucinations. (10) Because many of these disorders are defined by less significant manifestation of symptoms of schizophrenia, sections A and B will discuss the presentation, pathology, and treatment of schizophrenia only. However, because the legal justice system is interested only with the clinical manifestations at the time of the committed crime, the discussion of the treatment of these individuals by the legal system in section C, and subsequent parts of this Note will encompass schizophrenia and the other schizophrenia-related disorders that have similar outward manifestations.

   In order to avoid the trap of the determinism debate advanced by Morse, this section will attempt to provide specific information and background on schizophrenia and how individuals with schizophrenia are treated, both clinically and legally. Specifically, this section will discuss (A) the manifestation, onset, and progression of schizophrenia, (B) the difficulties of treating individuals with this debilitating spectrum of disease, and (C) how the legal system interfaces with defendants with schizophrenia.

   1. Manifestation, Onset, and Progression

      Schizophrenia, like most psychiatric disorders, is diagnosed by a trained psychiatrist or psychologist based on his or her opinion and experience. The patient's behaviors, actions, clinical signs, and symptoms are compared with a set of criteria agreed to by the American Psychiatric Association. Schizophrenia is evaluated with respect to six criteria: (A) characteristic symptoms are present for, at least, most of a one month period; (B) these symptoms are associated with marked social and occupational dysfunction; (C) some of these symptoms are present for at least six months; (D) the disorder is not better characterized as schizoaffective disorder or a mood disorder with psychotic features; (E) nor is the disorder due to the direct effects of substance abuse or a general medical condition; and (F) if the patient has been diagnosed with autistic disorder or other developmental disorder, whether the...