The Mental Illness Excuse
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November 2000
By Charlotte Morrison
W hen Raymond Alves left prison at the end of his seven-year sentence last
March he triggered a nationwide hunt. Because Alves is a convicted sex offender,
New Jersey’s recently enacted Sexually Violent Predator statute required prison
officials to notify prosecutors 30 days prior to his release. The statute provides
for the indefinite civil commitment of convicted sex offenders following the
completion of their criminal sentences and the 30-day notice enables prosecutors
to complete commitment proceedings while the offender is incarcerated.
As a result of what the New York Times called a “bureaucratic blunder,” New
Jersey prison officials failed to notify local authorities until the day after they had
released Alves. The “bureaucratic blunder” was, in fact, the professional
judgment of two psychiatrists appointed by Governor Whitman and responsible
for evaluating Alves, who believed that Alves did not pose a danger to the
community. Federal and state law enforcement disagreed with their assessment
and issued warrants for his arrest. Nineteen states have passed Sexually Violent
Predator (SVP) statutes, which permit the state to indefinitely confine offenders
who suffer from a “mental abnormality” even after they have served their full
criminal sentence. The law’s depiction of sex offenders as mentally ill has gained
political popularity as lawmakers have learned that they can appear to effectively
manage the threat of violence by treating it as a medical one.
Predator laws are also popular with politicians because, by defining persons with
sexually deviant predilections as mentally ill, they enable lawmakers and courts to
deflect responsibility for repeat sex offenders onto medical experts. Thus,
responsibility for Alves ultimately came to rest with the doctors who evaluated
him. New Jersey Commissioner of Corrections, Jack T erhune, fired the
psychiatrists within two days of Alves’s release. These statutes effectively make
doctors agents of the state, and as such, they make decisions dictated by
political necessity, even when medically indefensible.
While the medical approach to violent crime is politically successful, it is an
ominous development from the perspective of civil rights and mental health
advocates. The stated intent behind these statutes is to treat, not punish, a small
group of sex offenders, particularly child predators, who suffer from an illness
that makes it almost certain that they will re-offend. There is nothing in the
statute, however, that can serve to differentiate sex offenders whose offense
was a result of mental illness from those who were simply, and culpably, bad.
Most states have adopted statutes like New Jersey’s that defined “mental
abnormality” as a condition predisposing one to commit acts of sexual violence.
The American Psychiatric Association (APA), which opposes these laws, has
found that there is no way for medical professionals to apply this term in a fair
and consistent way. The APA explains that if deviant acts alone establish evidence
that a person has an impaired ability to conform her conduct in order to avoid
violating the law, then all criminals are mentally ill. With nothing in the statute to
differentiate those offenders for whom commitment is or is not appropriate, the
ultimate decision made by prosecutors, doctors, judges, and juries is arbitrary.
The only requirements, abnormality and dangerousness, serve as invitations for
bias and not as calls for medical competence.
Although initially intended to enable the state to commit recidivist child predators
whose mental disease did not render them incompetent and therefore precluded
them from commitment under ordinary civil commitment laws, the vague wording
of these statutes has enabled prosecutors in practice to indefinitely commit new
offenders without even going to trial. Many states segregate “predators” from
persons committed through the ordinary process by precluding placement of
“predators” in state mental facilities and instead placing sexual offender wards in
the same maximum security prisons that housed them during their term of
criminal incarceration. As “predators,” however, they are required to wear
distinctive dress and lose many of the privileges and opportunities, such as
employment and classes that they had while serving their criminal sentence.
The ostensible therapeutic, non- punitive purpose of these statutes enables the
state to bypass the Constitution’s double jeopardy bar and the stricter
procedural standards of criminal law. The Supreme Court has recognized that civil
commitment is a profound deprivation of liberty comparative to criminal
incarceration, but the Court has upheld the constitutionality of affording
diminished procedural rights to mentally ill persons because of the state’s
interest in treating mentally ill persons and the presumed independence of the
professionals who provide that treatment.
The state’s benevolent purpose, however, does not give it unlimited power. The
Court has interpreted the constitutional prohibition against arbitrary detention as
requiring the state to prove that the person is not only dangerous but also
mentally ill. The mental illness requirement has traditionally functioned to narrow
the class of persons subject to this type of civil confinement to those persons
who are incompetent and lack the capacity to rationally direct their behavior. In
effect, the requirement functions to ensure that the state primarily exercises
social control through the criminal justice institution. Absent mental illness, the
Constitution requires that the state exercise control over dangerous persons
through the institution of criminal justice and subject to that institution’s stricter
requirements of due process.
In its 1997 decision in Kansas v. Hendricks to uphold the Kansas SVP law against
constitutional challenges, the Court signaled that the primacy of the criminal
justice system as the principal institution of social control is yielding. While the
Court recognized that mental illness is a predicate to involuntary commitment, it
accepted the Act’s sweeping definition of mental illness. The freedom of states to
define mental illness means that the mental illness requirement no longer
functions to preserve individual liberty as a limit on the state’s pursuit of collective
welfare. So-called “chemical castration” statutes demonstrate the kind of abuse
of medicine this freedom allows. Chemical castration statutes, now the law in
several states, make castration, in the form of taking drugs that eliminate the
sex drive, a condition of parole, without any finding of medical appropriateness.
Legislators are using the mental illness excuse to obtain what is ultimately an
unjustifiable extension of power. They are building on a long tradition in our
society of using mental illness to excuse gross violations of liberty. Though the
popular media typically depicts criminal defendants asserting the mental illness
excuse to avoid responsibility for their crimes, it is less often that a defendant
uses the excuse of mental illness than the state. For example, in Buck v. Bell, a
1927 Supreme Court case which upheld the constitutionality of a Kentucky law
requiring sterilization of third generation mentally retarded persons, Justice
Holmes wrote: “It is better for all the world if, instead of waiting to execute
degenerate offspring for crime, or let them starve for their imbecility, society can
prevent those who are manifestly unfit from continuing their kind.” He concluded
that, “Three generations of imbeciles are enough.” As a result of this judgment,
Kentucky was able to sterilize Carrie Buck, who along with her mother and her
daughter were found to be mentally retarded. It turned out, however, that Carrie
Buck’s daughter was not retarded. She was an unusually quiet infant. We should
recognize with shame our tradition of using the excuse of mental illness to
compromise our ideals of ordered liberty for persons we fear, like Raymond
Alves, or do not want to understand, like Carrie Buck. Z
From: Z Net - The Spirit Of Resistance Lives
URL: http://www.zcommunications.org/the-mental-illness-excuse-by-charlotte-morrison