What are legal models of abnormality?

Introduction

In the United States, three broadly based legal principles and their elaboration by judicial interpretation (case law) and by legislatures (statutory law) reflect the law’s core assumptions about normal and abnormal behavior. These principles are rationality, the protection of the incompetent, and protection of the public from the dangerous.

The first of these principles is rationality. The normal person is, the law assumes, sufficiently rational that the individual can base his or her choices and actions on a consideration of possible consequences, of benefits and costs. In the civil law, two people making a contract or agreement are expected to be competent to understand its terms. In the criminal law, a destructive act is deemed much worse and punishable if it is intentional and deliberate. Concern about motivation extends through the normal range of illegal acts, and offenses resulting from malice (that is, intentional offenses) are generally dealt with more harshly than those that result from mere negligence. Under the civil law, those incapable of understanding simple business transactions with ordinary prudence may be deemed incompetent. Under the criminal law, in a principle that dates to Roman times, persons who are deprived of understanding are considered incapable of intent and the corresponding guilty mind (mens rea). According to the 1843 M’Naghten rule
(named for Daniel M’Naghten, also spelled McNaughton), if the accused is laboring under such a defect of reason from a disease of the mind as not to know the nature and quality of the act he or she was doing, or if he or she did understand the act’s nature and quality but did not know that the act was wrong, then this accused person is “insane” and cannot be found guilty.

The second principle deals with the state’s duty to protect those who cannot protect themselves, in this case the mentally incompetent. The doctrine of parens patriae
as early as 1324 authorized King Edward II of England to protect the lands and profits of “idiots” and “lunatics.” Under this doctrine, the state may appoint a guardian for the harmless but helpless mentally ill—that is, those incapable of managing their ordinary business affairs. Because mentally incompetent people cannot make an informed decision about their need for treatment, the protection of the state allows the commitment of such people to hospitals, regardless of their own wishes.

The third principle that has been applied to the abnormal is the police power of the state. Inherent in the very concept of a state is a duty to protect its citizens from danger to their personal safety or property. This includes the right to remove from society those abnormal people who are dangerous and to segregate them in institutions. In the United States, the laws of all fifty states authorize the restraint and custody of persons displaying aberrant behaviors that may be dangerous to themselves or others.

These principles of law, all based on logically derived exemptions from assumptions concerning rational intent and understanding, have changed slowly in response to influences from the public and from the mental health professions. In institutionalization decisions, the parens patriae power of the state became more widely used beginning in the mid-nineteenth century as judges and the public became more accepting of the mental health enterprise. Hospitals were considered protective, nonstressful environments where the harmless insane would be safe.

The insanity exemption from legal responsibility also has been adjusted and modified. The central concern of the professionals was that insanity under the strict M’Naghten rule included only the small minority of offenders who had no understanding whatsoever that their offense was unlawful, the sort of offender who shot the victim thinking he was a tree. An offender could be mentally ill by psychiatric standards but still be considered sane. As a response to these criticisms, new legal tests that expanded the meaning of insanity were somewhat experimentally adopted by a few courts. The irresistible impulse rule, stating that a person would not be considered responsible if driven by an impulse so strong it would have occurred had there been “a policeman at his elbow,” supplemented the M’Naghten rule in some states.

In United States v. Durham (1954), the U.S. Court of Appeals for the District of Columbia created through its decision an even simpler rule: Insanity involves simply the illegal act being “the product of mental disease or defect.” This Durham rule was quickly attacked for turning over a legal decision better left to juries to mental health professionals, some of whom seemed to consider virtually all deviancy a disease. The same court rejected the Durham rule in
United States v. Brawner (1972). The federal courts, along with twenty-six states, adopted a rule proposed by the American Law Institute (the ALI rule) that seemed to incorporate aspects of each of the preceding rules:
A person is not responsible for criminal conduct if at the time of such conduct as a result of mental disease or defect he lacks substantial capacity to appreciate the wrongfulness of his conduct or to conform his conduct to the requirements of the law.

In endorsing an illness-caused inability to conform to the requirements of law as a standard for insanity, the ALI rule encouraged a definition that extended the parameters of insanity beyond those used to describe obviously disoriented people and not incidentally continued a major diagnostic role for the mental health professional.

Psychiatric Science and Legal Tradition

The legal model assumed that most people are rational in that they can foresee the immediate consequences of their decisions. Those incompetent to comprehend a legal proceeding, those unable to care for themselves, or those unable to understand the wrongfulness of a criminal act must be treated differently. Abnormality in the legal sense was any condition that involved the incapacity to make rational decisions with an awareness of the consequences. There was a sharp dividing line between “normality” and the rare condition of abnormality.

As research into psychology and psychiatry progressed, more discriminating, accurate, and sensitive appraisals of abnormal individuals became possible. In practice, the concept of mental illness proved to be an elastic one, with boundaries that could easily be expanded to include new conditions. Mental health experts looked for the causes behind the behavior of the mentally ill, such as childhood emotional trauma or chemical imbalances within the body. In contrast to the legal model, which interpreted such unwanted or inadequate human behavior as bad decisions willfully undertaken, the mental illness model implied that this behavior was caused by events in the past and beyond the individual’s control.

Criticism and Doubts

The least restricted use of psychiatric standards by the legal profession occurred in the 1950s and 1960s, when faith in the potential of the science of psychiatry appeared unbounded. The ALI rule, which by the 1960s was used in federal courts throughout the United States, premised an underlying condition of mental illness manifested by a lack of control as insanity, a phrase that could easily encompass a wide range of conditions. However, the expansion of conditions that were viewed as insanity caused a backlash of sorts. In the latter part of the twentieth century, the role of psychiatric decision making in the law diminished, with the adoption of procedural safeguards and a return to more restricted legal definitions of insanity.

In the 1960s and 1970s, psychiatrist Thomas Szasz argued that mental illnesses were little more than metaphors for problems in living, myths that were used harmfully to deprive individuals of their feelings of responsibility. Erving Goffman
charged that institutionalization was not a health-restoring, protective sanctuary but rather a degrading, dependency-producing process. John Monahan reviewed research that suggested that the prediction of dangerousness, a primary reason for commitment to institutions, even under the best conditions involved more failures than successes.

Public criticism of psychiatric influence on the law heightened after the use of the insanity defense in some prominent cases. Especially influential was the acquittal by reason of insanity of presidential assailant John Hinckley in 1982. Hinckley’s act had many of the characteristics of one resulting from mental illness. An aimless wanderer who had been diagnosed as schizophrenic, he shot and wounded President Ronald Reagan under the fantastic assumption that this would win admiration from and a date with an actor he had never met. He was committed to a mental hospital after his trial. Nevertheless, his crime seemed premeditated and particularly heinous. The possibility that he might someday be “cured” and released struck many as outrageous. In other well-publicized cases, it was argued, often unsuccessfully, that otherwise criminal behavior resulted from such events as contamination by excessive television viewing, premenstrual syndrome (PMS), or hyperglycemia from eating sugary snack cakes. It appeared to many ordinary citizens that apparent mental illness could be used to excuse practically any type of crime or, alternatively, to have almost anyone involuntarily committed to a mental institution.

Procedural and Definitional Adjustments

As a result of such criticisms, civil commitment decisions were subject to increasing procedural safeguards. According to the illness model, such decisions should be left to the doctors, the experts who could diagnose the patient as “sick” and pronounce the patient “cured.” However, civil commitment was less oriented toward treatment and more like incarceration in prison, depriving the mental patient of many freedoms. Increasingly, the legal system began to focus on commitment to a mental hospital in terms of the freedoms denied rather than health benefits conferred. Reasons for such enforced hospitalization were narrowed. Laws and judges demanded that the disability had to be grave and the inability to care for the self life-threatening before the parens patriae powers of the state could be invoked. “Dangerousness” increasingly meant dangers that were imminent, such as suicide or physical violence against others. Emergency detention, a loose procedure invoked during an emotional crisis, became limited in time to a few days.

In
Wyatt v. Stickney (1971), the Supreme Court held that institutionalized mental patients must be actively treated. Also, in the landmark decision of
Addington v. Texas (1979), the Supreme Court decreed that civil commitment required a formal hearing, adversarial in nature. In such a hearing, the prospective patient should be permitted counsel and the cross-examination of witnesses. The state must demonstrate clear and convincing evidence of the need for such commitment.

The legislatures of most states enacted legislation requiring that inpatient hospitalization be employed only as a last resort. Such “least restrictive alternative” laws compelled judges to consider placement of the mentally ill outside hospitals whenever possible. Increasingly, patients who continued to take their medication were permitted to live under supervision in the community.

In a similar vein, the rules concerning the determination of legal incompetency were tightened in the last decades of the twentieth century. Ordinary citizens are required to make many important decisions in matters such as handling everyday purchases, willing property to heirs, selecting and consenting to medical treatments, and standing trial for an alleged offense. Each situation requires a certain level of comprehension and an ability to appraise the benefits and risks. The mere diagnosis of schizophrenia or mental retardation came to be regarded as insufficient evidence of incompetence in any legal situation. Instead, legal tests for incompetence focused on the presence or absence of decision-making skills demanded in specific situations.

Procedural and definitional changes in evaluating a defendant’s competence to stand trial, or adjudicative competence, offers a case in point. Such competence demands that defendants in criminal trials possess the ability to understand the charges against them, the nature of a court, the role of the participants (judge, prosecutor, defense lawyer, and jury), and the consequences of being found guilty or innocent. Throughout the earlier part of the twentieth century, defendants who had been diagnosed as psychotic might be automatically considered to lack such understanding and be institutionalized for an indefinite period. By the 1980s and 1990s, the specific required understandings were being investigated, often by psychologists. Tests were developed that quantitatively measured defendants’ capacity to understand courtroom procedures. Procedural safeguards were developed against using such incompetence as a pretext for indefinite hospitalization. The Supreme Court ruled in
Jackson v. Indiana (1972) that confinement of defendants incompetent to stand trial could last only for the limited period necessary to determine whether competence could be restored. If competence was restored, defendants should stand trial; if not, they must be formally committed or released.

Similar trends occurred in criminal law, where definitions of insanity narrowed and the conditions under which an insanity defense could be employed were restricted. The insanity defense is employed in only about 1 percent of criminal cases, and most contested attempts to employ this defense fail. Many cases involve defendants so clearly impaired that they are uncontested by the prosecution, and most defendants decreed insane spend many years in mental hospitals. However, because of a very few, highly publicized cases such as that of Hinckley, public opinion moved sharply to a concern that the insanity defense was a convenient loophole permitting wealthy defendants to escape punishment by having themselves declared “mentally ill.” Closing this loophole became of public concern.

In 1984, Congress enacted the Insanity Defense Reform Act, which removed the “inability to conform to the requirements of law” phrase from the definition of insanity and returned to the narrower “inability to appreciate the wrongfulness of one’s acts” of the M’Naghten rule. This act further specified that an insanity defense could be considered only in cases of a severe mental illness. The Insanity Defense Reform Act applied to the federal courts. The scope of the insanity defense was reduced by at least twelve states in another way. These states added a “guilty but mentally ill” alternative to strict M’Naghten rule insanity. Under this alternative, mentally ill but not “insane” defendants might serve part of their sentence in a hospital rather than a prison. Only institutional placement, not the length of the sentence, would be affected by the presence of mental illness or its cure. The presumption was that juries, with an alternative way to treat a defendant with an obvious mental illness, would reserve insanity verdicts for only the most extreme cases.

Psychology in the Service of Law

The era of the law’s enchantment with the science of abnormal psychology has ended. Forensic psychologists and psychiatrists remain important to the law’s functioning, but their psychological concepts and perspectives have receded in importance as legal safeguards have reduced their discretion in determining who is legally insane. The law’s allegiance to its assumption of a rational citizen who makes rational decisions endures. Necessary exceptions to this rule also endure. Citizens incompetent to make legal decisions or unable to determine the difference between right and wrong continue to be treated as special cases. In 2002, the U.S. Supreme Court ruled that it was unconstitutional to execute intellectually disabled murderers. Forensic scientists are essential in examining these conditions and in applying the legal rules to individual cases, but they function within the legal framework as servants of the law.

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