AuthorMaliha, George

In 1973, Herb Mullin was convicted of murdering thirteen people in Santa Cruz County, California. (1) Before that fateful moment, Mullin had drifted between involuntary commitment, clinical improvement, noncompliance with medications, and release. (2) His vacillation between treatment compliance and noncompliance is sadly typical. (3) Mullin--as far as we can tell--never realized that he was ill and often refused treatment. (4) One author described Mullin as "refusing] to take medication because prophets of God did not need it. Even today he continues to refuse [medication], convinced nothing is wrong with him. He even wonders whether it was the [medication] he took during his initial hospitalization that caused his homicidal behavior." (5) Indeed, around half of people suffering from schizophrenia do not realize that they are suffering from an illness and accordingly resist treatment. (6)

The question is what to do about that other half if they commit a crime--that is, those who realize that they have an illness yet still refuse treatment. A classic problem in nearly every introductory criminal law course is what to do with an epileptic defendant who fails to take his medication (7) or a defendant who consumes a substance that predisposes him to commit a crime. (8) The case of a schizophrenic defendant is slightly different. (9) On the one hand, when defendants have insight into their disease and "voluntarily" choose not to take medication, allowing them to plead the insanity defense seems counterintuitive. (10) Indeed, "there is no explicit fault category in the law that we could call something like 'self-induced insanity' or 'voluntary insanity.'" (11) On the other hand, that same defendant is suffering from a psychosis at the time of the crime. (12) In essence, the question is how far back judicial inquiry should extend. Complicating this analysis is a growing body of research that suggests that psychiatric disease can affect many cognitive functions--even those not associated with delusions or psychoses. (13) This Note seeks to explore the question of insanity caused by an omission, namely failure to take medication. Part I will briefly describe the problem of noncompliance and lack of insight (14) in psychiatric illness, focusing on schizophrenia. Part II will look at the limited judicial interaction with this problem, starting with the recent case of Commonwealth v. Shin. (15) Although there are few cases that attempt to grapple with the problem head-on, the rising awareness of mental illness (16) and its potential effects on blameworthiness may soon change that. In any event, the issue lies under the surface in many cases. (17) Part III will consider how far back the inquiry into insanity should extend. This Part will conclude that the mental processes surrounding noncompliance require further elucidation. Part IV, however, will try to solve--or at least re-channel--this empirical question by exploring potential analogies from other areas of criminal law. A conclusion will follow that argues that courts should maintain the status quo for now--and confine the insanity inquiry to the events directly surrounding the crime. But, as the neuroscience around treatment compliance develops, courts may need to reexamine their approach. (18)


    The DSM-519 defines schizophrenia by the following features:

    1. Two (or more) of the following, each present for a significant portion of time during a 1-month period (or less if successfully treated). At least one of these must be (1), (2), or (3):

      1. Delusions.

      2. Hallucinations.

      3. Disorganized speech (e.g., frequent derailment or incoherence).

      4. Grossly disorganized or catatonic behavior.

      5. Negative symptoms (i.e., diminished emotional expression or avolition).

    2. For a significant portion of the time since the onset of the disturbance, level of functioning in one or more major areas, such as work, interpersonal relations, or self-care, is markedly below the level achieved prior to the onset (or when the onset is in childhood or adolescence, there is failure to achieve expected level of interpersonal, academic, or occupational functioning).

    3. Continuous signs of the disturbance persist for at least 6 months. This 6-month period must include at least 1 month of symptoms (or less if successfully treated) that meet Criterion A (i.e., active-phase symptoms) and may include periods of prodromal or residual symptoms. During these prodromal or residual periods, the signs of the disturbance may be manifested by only negative symptoms or by two or more symptoms listed in Criterion A present in an attenuated form (e.g., odd beliefs, unusual perceptual experiences).

    4. Schizoaffective disorder and depressive or bipolar disorder with psychotic features have been ruled out because either 1) no major depressive or manic episodes have occurred concurrently with the active-phase symptoms, or 2) if mood episodes have occurred during active-phase symptoms, they have been present for a minority of the total duration of the active and residual periods of the illness.

    5. The disturbance is not attributable to the physiological effects of a substance (e.g., a drug of abuse, a medication) or another medical condition.

    6. If there is a history of autism spectrum disorder or a communication disorder of childhood onset, the additional diagnosis of schizophrenia is made only if prominent delusions or hallucinations, in addition to the other required symptoms of schizophrenia, are also present for at least 1 month (or less if successfully treated). (20)

      Many reviews of this debilitating psychiatric disorder have been published, (21) but this section will concentrate on lack of insight into the disorder and the possibly related problem of noncompliance with medication. Although the term "insight" refers to several different pathologies in the disease, at its base, lack of insight refers to "reduced awareness of illness and functional impairment and of a need for treatment." (22) Lack of insight is not unique to schizophrenia or even mental illness; many diseases have been associated with lack of awareness into that specific disease process. (23)

      Insight is not one-dimensional. In fact, even those who understand their disease in an academic way may not fully grasp the significance of their symptoms. For instance, one patient--who happened to be a clinical psychologist himself--explained his symptoms in a relatively detached way:

      [C]oncerning my subsequent breakdowns, I notice in retrospect that each time I began to experience an episode, my mind would begin to behave in a particular manner. As I would go into psychosis I would begin to make connections that would lead my thought processes to come to conclusions that in retrospect were very strange. Since those early days I have come to understand that every few months my mind will start over-connecting concepts and ideas. At first this activity can be very interesting, but I have learned that if I allow this process to continue, I will soon be talking and acting in a manner that other persons may view as being problematic. (24) Many different types of insight can be defined. For example, one author has proposed dividing the concept into three groups: first, "awareness that one is suffering from a mental illness or condition," second, "ability to relabel mental events such as hallucinations and delusions as pathological," and third "[acceptance of the need for treatment." (25) Other commentators have proposed further divisions to comport with clinical observations. (26) To be clear, however, a patient experiencing more insight into his condition is not always better; in fact, increased insight is associated with suicidal ideations, distress, and depression. (27)

      Unsurprisingly, the relationship between noncompliance and lack of insight is complex, and the factors overlying the relationship are not yet completely elucidated. Psychiatric medications produce several side effects that can discourage treatment even when a patient acknowledges his mental illness and need for treatment. (28) Several studies have nonetheless suggested that patients who have stopped taking their medications believe that they no longer need treatment. (29) Although the most severely ill do not acknowledge the schizophrenia diagnosis, many have some inkling of insight that they do have some mental illness--and at least connect taking medication to preventing recommitment. (30) These same studies have suggested a link between insight and medication compliance. (31) Yet patients who once actively (32) refused medication were rated to have more severe symptoms even after they were on a stable treatment regimen. (33) Interestingly, these results do not mean that explaining mental illness to a patient increases compliance (34)--although there are other important reasons to attempt to do so.

      With the caveat that insight is a vague clinical term that may represent many pathways arising from many brain regions, neuroimaging studies have begun to shed some light on the phenomenon. (35) For instance, one study has found that tissue loss in the insula correlates with loss of insight into the condition. (36) More broadly, many studies have begun to link changes in neuroanatomy and brain structure to the cognitive symptoms of schizophrenia, even as it has become increasingly clear that schizophrenia is a global disorder of the brain that arises early in development. (37)

      Although much remains to be discovered, at the very least, emerging research into lack of insight in schizophrenia demonstrates that courts ought to treat mental illness quite differently than traditional physical illness. This research calls into doubt the equivalence between "physical" and mental illness that drives the thinking of many courts:

      Persons in need of hospitalization for physical ailments are allowed the choice of whether to undergo hospitalization and treatment or...

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