Imperfect Insanity and Diminished Responsibility

Insanity’s status as an all-or-nothing excuse results in the disproportionate punishment of individuals whose mental disorders significantly impaired, but did not obliterate, their capacities for criminal responsibility. Prohibiting the trier of fact from considering impairment that does not meet the narrow definition of insanity contradicts commonly held intuitions about mental abnormality and gradations of responsibility. It results in systemic over-punishment, juror frustration, and, at times, arbitrary verdicts as triers of fact attempt to better apportion liability to blameworthiness. This Article proposes a generic partial excuse of Diminished Responsibility from Mental Disability, to be asserted as an affirmative defense at the option of the defendant. The excuse would be expressed as a fourth verdict, in addition to the traditional forms of guilty, not guilty, and not guilty by reason of insanity. The partial excuse would recognize that the capabilities necessary for criminal responsibility exist along a spectrum. It would respond to the widespread belief that mental dysfunction may be so destructive of rationality that it merits a reduction in liability, even when not rising to the level of insanity. The verdict would render our justice system more capable of accurately expressing community condemnation and increase its legitimacy. Evidence suggests that jurors would thoughtfully apply a partial responsibility verdict and would experience greater confidence and satisfaction than in the current all-or-nothing system. Outside the United States, numerous countries recognize partial responsibility for mental impairments, demonstrating the feasibility and benefits of the partial excuse. Because a diminished responsibility verdict would mitigate a defendant’s sentence, its operation over time should reduce the mass incarceration and unjustified suffering of those with mental disabilities. The verdict could also connect defendants with treatment necessary for their clinical stability and well-being, as it has done in other countries. Over the decades, several prominent scholars have offered proposals for partial excuses for diminished responsibility. None gained legislative traction. This Article’s proposal differs from prior proposals in four key respects. First, it limits its purview to rationality and volitional impairments from mental disabilities, a traditionally recognized form of diminished blameworthiness. Second, to be workable and attractive to states, this proposal recommends that states draw definitions of partial responsibility from existing statutory frameworks, namely contemporary insanity and Guilty But Mentally Ill standards. The latter, present in about a dozen states, permit juries to find a defendant guilty but highlight their mental illness; however, these verdicts carry no necessary sentencing or treatment consequences. Deriving a partial responsibility standard from existing statutes should carry greater local legitimacy than wholly new language. Third, in light of the realities of mental disorder and its lived experience, this proposal does not advocate for withholding mitigation from defendants who contributed to their impairment through failure to comply with medical directives. Finally, the proposal draws upon foreign partial responsibility statutes to glean possible sentencing and treatment consequences that could accompany the verdict and respond to any public safety threat

Delusions, Moral Incapacity, and the Case for Moral Wrongfulness

Responsibility is a legal—not medical—construct. However, science can be useful in exposing faulty assumptions underlying current doctrine or practice, illuminating changes in practice or evidentiary standards to better effectuate the law’s animating purpose, and even suggesting updates to legal standards to account for modern understandings of functionalities of concern. This Article uses the science of delusions to assess the law regarding, and practice of establishing, criminal irresponsibility for defendants with psychosis. Over the last two decades, researchers from the cognitive sciences have compiled strong evidence that a host of cognitive and emotional impairments contribute to the origin and maintenance of delusions by impairing decision-making. This Article uses insights from those literatures to make three contributions. First, it analyzes current insanity standards and demonstrates their intimate relationship with rationality. It then argues that courts should consider evidence of any significant reasoning impairment, whether cognitive or emotional, as probative to sanity. Second, the Article explains how the reasoning impairments associated with delusions should bear upon assessments of a defendant’s incapacity to know, or ignorance of, the wrongfulness of her criminal act. In assessing the latter, the Article argues that scientific research exposes as misguided the traditional rule expressed in M’Naghten’s Case—which is currently followed to varying extents by nine jurisdictions—that a delusional defendant lacked knowledge of her act’s wrongfulness only if her delusion, if true, would have justified or excused her act. Instead, the science exposes the strict legal wrongfulness standard as inappropriate for populations with delusions and suggests that courts should consider excusing defendants whose delusions cohere with the general thrust or gist of a legal defense

Theorizing Mental Health Courts

To date, no scholarly article has analyzed the theoretical basis of mental health courts, which currently exist in forty-three states. This Article examines the two utilitarian justifications proposed by mental health court advocates—therapeutic jurisprudence and therapeutic rehabilitation—and finds both insufficient. Therapeutic jurisprudence is inadequate to justify mental health courts because of its inability, by definition, to resolve significant normative conflict. In essence, mental health courts express values fundamentally at odds with those underlying the traditional criminal justice system. Furthermore, the sufficiency of rehabilitation, as this concept appears to be defined by mental health court advocates, depends on the validity of an assumed link between mental illness and crime. In particular, mental health courts view participants’ criminal behavior as symptomatic of their mental illnesses and insist that untreated mental illness serves as a major driver of recidivism. Drawing upon social science research and an independent analysis of mental health courts’ eligibility criteria, this Article demonstrates that these relationships may not hold for a substantial proportion of individuals served by mental health courts. The Article concludes by identifying alternative theories that may justify this novel diversion intervention

Conditions of Confinement at Sentencing: The Case of Seriously Disordered Offenders

At sentencing, a judge can often foresee that an individual, given his major mental disorder and other vulnerabilities, will experience serious harm in prison. These harms may include psychological deterioration and mental distress, attempted suicide, or victimization by staff or other inmates. In response, some jurisdictions allow a judge to commit a disordered offender for treatment in lieu of incarceration, while others designate need for treatment and undue offender hardship as mitigating factors for use at sentencing. None of these measures, however, goes far enough to protect vulnerable prisoners. This Article builds a case for expanding judges’ sentencing power by authorizing them to tailor the conditions of confinement for vulnerable offenders with major mental disorders when certain conditions are necessary to fulfill the purposes of punishment or for its humaneness. It defends the premise that vulnerability is a legitimate source of concern for sentencing judges, addresses concerns of judicial competence and undue infringement into correctional affairs, and evaluates a number of possible sentencing conditions that judges could order. Potential conditions, which vary in cost and degree of intrusiveness, could include requiring comprehensive mental health evaluations, disqualifying facilities with insufficient mental health or protective resources, specifying types of facilities where an offender will serve or begin his sentence, and mandating certain treatment in prison

An Administrative Death Sentence for Asylum Seekers: Deprivation of Due Process under 8 U.S.C. § 1158(d)(6)\u27s Frivolousness Standard

In 1996, Congress amended the Immigration and Nationality Act by providing a new sanction for asylum seekers: if an immigration judge makes a finding that a noncitizen has knowingly filed a fraudulent asylum application, then that person is permanently ineligible for immigration benefits. For eleven years, immigration judges, the Board of Immigration Appeals, and federal courts have imposed and reviewed this sanction without specifying a burden of proof. When it did act to fill the statutory gap in April 2007, the Board held that the government must prove the elements of the statute by a preponderance of the evidence. This Article argues that the Due Process Clause guarantees that the government must prove that a noncitizen knowingly filed a frivolous asylum application by clear and convincing evidence before rendering him permanently ineligible for benefits. It also proposes that immigration judges should consider only certain categories of evidence when determining whether the government has established elements of the statute by clear and convincing evidence, while other categories should be held ineligible as a matter of law

Theorizing Mental Health Courts

To date, no scholarly article has analyzed the theoretical basis of mental health courts, which currently exist in forty-three states. This Article examines the two utilitarian justifications proposed by mental health court advocates—therapeutic jurisprudence and therapeutic rehabilitation—and finds both insufficient. Therapeutic jurisprudence is inadequate to justify mental health courts because of its inability, by definition, to resolve significant normative conflict. In essence, mental health courts express values fundamentally at odds with those underlying the traditional criminal justice system. Furthermore, the sufficiency of rehabilitation, as this concept appears to be defined by mental health court advocates, depends on the validity of an assumed link between mental illness and crime. In particular, mental health courts view participants’ criminal behavior as symptomatic of their mental illnesses and insist that untreated mental illness serves as a major driver of recidivism. Drawing upon social science research and an independent analysis of mental health courts’ eligibility criteria, this Article demonstrates that these relationships may not hold for a substantial proportion of individuals served by mental health courts. The Article concludes by identifying alternative theories that may justify this novel diversion intervention

Vulnerability and Just Desert: A Theory of Sentencing and Mental Illness

This Article analyzes risks of serious harms posed to prisoners with major mental disorders and investigates their import for sentencing under a just deserts analysis. Drawing upon social science research, the Article first establishes that offenders with serious mental illnesses are more likely than non-ill offenders to suffer physical and sexual assaults, endure housing in solitary confinement, and experience psychological deterioration during their carceral terms. The Article then explores the significance of this differential impact for sentencing within a retributive framework. It first suggests a particular expressive understanding of punishment, capacious enough to encompass foreseeable, substantial risks of serious harm proximately caused by the state during confinement and addresses in particular the troublesome issue of prison violence. It then turns to just desert theory and principles of ordinal and cardinal proportionality to identify three ways in which vulnerability to serious harm may factor into sentencing. In so doing, the Article advances the current debate about the relevance of individual suffering to retributivism and lays the theoretical groundwork for the consideration of vulnerability due to mental illness as a morally relevant element in sentencing decisions

Modifying Unjust Sentences

The United States is in the midst of an incarceration crisis. Over-incarceration is depleting state budgets and decimating communities. It has also led to the overfilling of prisons, which has degraded conditions of confinement, increased violence, and reduced access to needed medical and mental health care. Judicial sentence modification offers a means to address both the phenomenon of over-incarceration and harsh prison conditions that threaten unjust punishment. Indeed, some legislatures have framed states’ early release provisions as fulfilling goals of proportionality and just punishment. Proportionality is also an express purpose of the proposed Model Penal Code provisions on judicial sentence modification. This paper explores whether the tools available to judges at sentence modification hearings are adequate to respond to the unjust punishment experienced by prisoners. In examining this question, the article focuses on one population particularly likely to experience disproportionate or inhumane punishment: inmates with serious mental disorders. A deep literature suggests that individuals with serious mental illnesses are especially likely to be victimized by staff and inmates, to be housed in isolation, and to experience an exacerbation of mental illness while incarcerated. This article’s analysis reveals a gap in remedial coverage for some members of this population. In particular, existing remedies are inadequate to respond to the plight of those prisoners who must remain incarcerated, but for whom incarceration in current conditions constitutes a disproportionate or inhumane punishment. To remedy this shortcoming, the article proposes that states authorize judges, upon a finding of past and likely future unjust punishment, to modify a mentally disordered prisoner’s conditions of confinement. Only with such expanded authority will the process of sentence modification allow judges to reserve prison for those who deserve it and ensure that continued confinement will be a just and appropriate sanction

Reconceptualizing Criminal Justice Reform for Offenders with Serious Mental Illness

Roughly 14% of male inmates and 31% of female inmates suffer from one or more serious mental illnesses, such as schizophrenia, bipolar disorder, and major depressive disorder. Policymakers and the public widely ascribe the overrepresentation of offenders with serious mental illness in the justice system to the “criminalization” of the symptoms of this afflicted population. The criminalization theory posits that the criminal justice system has served as the primary agent of social control over symptomatic individuals since the closure of state psychiatric hospitals in the 1950s and the tightening of civil commitment laws. The theory identifies untreated mental illness as the origin of individuals’ criminal justice involvement and mental health treatment as the clear solution to breaking their cycle of recidivism. This Article evaluates the three main bodies of evidence offered in support of the criminalization theory: individuals’ movement from psychiatric hospitals to jails and prisons (“transinstitutionalization”), the heightened policing of individuals with serious mental illness, and the science linking mental illness and crime. This evaluation reveals that the criminalization theory—the understanding that animates most current policies aimed at offenders with serious mental illness—rests largely on intuitive assumptions that are often unverified and sometimes false. A growing body of behavioral sciences literature constructs an alternative account of the relationship between mental illness and crime. Coined the “normalization theory,” it relies upon decades of research that demonstrate that clinical factors, such as diagnosis and treatment history, are not predictive of criminal activity. Instead, the same risks and needs that motivate individuals without mental illness also drive those with mental disorders to commit crimes. These “criminogenic risks” include, among others, substance abuse, employment instability, family problems, and poorly structured leisure time. Behavioral science researchers reject the premise that individuals with serious mental illness are overrepresented in the justice system because these individuals’ illnesses directly lead to criminal behavior. Instead, they theorize that serious mental illnesses fuel the greater accumulation and concentration of typical criminogenic risk factors. This recognition holds dramatic potential for the redesign of criminal justice programs. Programs that target the criminal behavior of offenders with mental illness should principally focus on addressing criminogenic risk factors that can be mitigated. Officials should also address mental health needs, but only to the extent necessary to facilitate a better criminogenic risk profile and fulfill constitutional obligations. Moreover, correctional experience suggests that institutions should allocate their scarce programmatic resources according to offenders’ risk of reoffending and potential to achieve programmatic goals. These insights, which federal agencies are beginning to recognize, hold radical implications for the redesign—and possibly the existence—of jail diversion programs, mental health courts, specialized probation and parole, and reentry programs for offenders with serious mental illness

Theorizing Mental Health Courts

To date, no scholarly article has analyzed the theoretical basis of mental health courts, which currently exist in forty-three states. This Article examines the two utilitarian justifications proposed by mental health court advocates—therapeutic jurisprudence and therapeutic rehabilitation—and finds both insufficient. Therapeutic jurisprudence is inadequate to justify mental health courts because of its inability, by definition, to resolve significant normative conflict. In essence, mental health courts express values fundamentally at odds with those underlying the traditional criminal justice system. Furthermore, the sufficiency of rehabilitation, as this concept appears to be defined by mental health court advocates, depends on the validity of an assumed link between mental illness and crime. In particular, mental health courts view participants\u27 criminal behavior as symptomatic of their mental illnesses and insist that untreated mental illness serves as a major driver of recidivism. Drawing upon social science research and an independent analysis of mental health courts\u27 eligibility criteria, this Article demonstrates that these relationships may not hold for a substantial proportion of individuals served by mental health courts. The Article concludes by identifying alternative theories that may justify this novel diversion intervention