Recently in Mental State Category

One of the oddities of federal gun law is that the right to bear arms is generally taken away only for felonies, but domestic violence is treated specially, and the right to own a gun can be taken away for a misdemeanor.

A recurring problem in both gun possession law and recidivist sentencing is dealing with the wide variety of ways that crimes are defined in the 50 states and handful of almost-states that make up our federal republic.  Yesterday, the U.S. Supreme Court took up the "misdemeanor crime of domestic violence" question in Voisine v. United States, No. 14-10154.  Amy Howe has this post at SCOTUSblog.

Counsel for the defendants asked the Court to take two questions:

1. Does a misdemeanor crime with the mens rea of recklessness qualify as a "misdemeanor crime of domestic violence" as defined by 18 U.S.C. §§ 921(a)(33)(A) and 922(g)(9)?

2. Are 18 U.S.C. §§ 921(a)(33)(A) and 922(g)(9) unconstitutional under the Second, Fifth, and Sixth Amendments and the Ex Post Facto Clause of the United States Constitution?
Mens rea means guilty mental state, an issue we discussed last term in relation to the Elonis case.  See, e.g., this post.

The high court took the statutory question, number 1, but said "fuggetaboutit" to the constitutional question, number 2.  No treat for Second Amendment fans this Halloween.
Emily Dalesio reports for AP:

A North Carolina man accused of trying to join al-Qaida-linked fighters in Syria should be forcibly injected with anti-psychotic medication to see if that will make him competent to face trial, a federal judge ruled Tuesday.

Basit Sheikh faces serious charges that need a trial and prison doctors could medicate him with limited side effects, U.S. District Judge Terrence Boyle said in his order. He put the order on hold, however, to allow an expected appeal. Court orders to forcibly medicate a suspect before trial are rare, but at least four similar cases in the appeals court region that includes North Carolina were later overturned.
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Pearls Of Wisdom

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In his book Admirable Evasions author and psychiatrist Theodore Dalrymple has these truisms:

It is more usual [in our modern world], however, to attribute good character to those those who behave badly than bad character to those who behave well (the latter propensity often being the consequence of envy).  I once heard a fond mother of a boy aged fifteen, who had burgled more than two hundred houses, say of him on the radio that "he's a good boy really," that is to say, a lad with a heart of gold, despite the considerable amount of misery to others that each of his crimes had almost certainty caused.  No doubt it is a natural and to some degree necessary thing for a mother to indulge in special pleading on behalf of her son, but it is absurd that it should be accorded any intellectual respect.


The European Court of Human Rights recently ruled that whole-life sentences to prison are against Man's fundamental rights because they eliminate the possibility of repentance and redemption (known in the trade as rehabilitation).  Thus, the judges of a court that is supreme in matters relating to supposed human rights for a continent on which, within living memory, tens of millions of people have been systematically starved or abused to death or put to death industrially on an unimaginably vast scale, could conceive of no crime so terrible that the person who committed it was beyond earthly redemption.  On this basis, someone like Himmler, had he not committed suicide, or Beria, had he not been shot by his erstwhile colleagues, would have been eligible for parole, provided only that they showed reformed character by, for example, making toys for children or Braille books for the blind.

Another Bogus Atkins Claim

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Serial killer Alfredo Prieto is sentenced to death in two states, one of which actually carries out its sentences.  The anti-DP public relations machine is raising a stink with a claim that Prieto is intellectually disabled (formerly known as mentally retarded).  The U.S. Court of Appeals for the Fourth Circuit considered that claim in June.  After summarizing Prieto's evidence, the court said:

At the same time, however, the Commonwealth also presented extensive evidence that Prieto's adaptive functioning was not deficient. The jury heard from the prosecution that three prison psychologists had evaluated Prieto when he was incarcerated in California and that each had concluded that he was not intellectually disabled. One of these psychologists reported that Prieto's "cognitive functions were adequately developed, and that his level of conceptual thinking and reasoning were adequate for the formation of good judgement [sic]." The jury learned that Prieto had written his own prison grievances challenging his lack of access to recreation and had filed a pro se legal challenge to the conditions of his confinement on Virginia's death row. In these documents, Prieto employed accurate legal terminology and to prepare them, he conducted self-directed legal research. The jury received copies of Prieto's elementary and high school report cards indicating that he mostly received grades of "good" and "very good." The jury was reminded that Prieto acted alone in his crimes, and that he had exhibited leadership abilities when committing prior crimes.

Community-based Chaos

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James Panero has this article in the City Journal with the above title.  It is subtitled "The de Blasio administration has all the wrong answers on the homeless mentally ill."

For New Yorkers who remember the bad old days, the recent reminders of an era when urban pathologies ruled the streets can be jarring. Back when times were tough, residents of my neighborhood on the Upper West Side passed by abandoned graffiti-covered lots, crunched red-capped crack vials under their feet, and worried about when Larry Hogue, the "Wild Man of 96th Street," would make his next appearance. Now some of this sense of foreboding seems to be coming back.

The Knucklehead Defense

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Judge Barry Silverman, writing the opinion for the U.S. Court of Appeals for the Ninth Circuit in United States v. Rodriguez, No. 14-10122 today:

There ought to be a law against shining a laser pointer at an aircraft. In fact, there is, and it's punishable by up to five years in prison, as appellant Sergio Rodriguez discovered for himself. Rodriguez, his girlfriend, and their kids were fooling around with a laser pointer one summer evening in the courtyard of their apartment complex - trying to see just how far it could go - and they shined it at overflying helicopters. Rodriguez was convicted of Aiming a Laser Pointer at an Aircraft, in violation of 18 U.S.C. § 39A, and was sentenced to the maximum sentence: five years in prison. Rodriguez does not challenge that conviction.

He also was convicted of another crime stemming from the same conduct - Attempting to Interfere with the Safe Operation of an Aircraft, in violation of 18 U.S.C. § 32(a)(5) and (8). That crime requires proof of a willful attempt to interfere with the operator of an aircraft, with either the intent to endanger others or reckless disregard for human life. Rodriguez was charged with and found guilty of the reckless variety, and for that offense, was sentenced to fourteen years in prison.
"Even a dog distinguishes between being stumbled over and being kicked," Justice Holmes famously said. 

The role of intent in distinguishing criminal acts from noncriminal accidents and higher-degree offense from lower ones is deeply ingrained in our law.  It may be deeply ingrained in our brains.  Robert Sapolsky reports for the WSJ on a study of scanning people's brains as they read about intentional and unintentional killings.  The study is Treadway, et al., Corticolimbic gating of emotion-driven punishment, Nature Neuroscience 17, 1270-1275 (2014).

Lessard's Legacy

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Alberta Lessard has died.  Lessard was the plaintiff in the landmark case that carries her name that dramatically changed the way civil commitment is handled in the United States.  Before Lessard, people with mental illness were routinely committed to mental hospitals on the basis of informal testimony of a psychiatrist without much opportunity to oppose the proceedings.  It was a system that didn't take seriously the right to be free from forced confinement by the government and the propensity of such a system to allow people committed to the asylums to linger regardless of their improved mental health.  In short, it was a system that needed reform.

But the Lessard decision has a dark side.  It changed the way we think about civil commitment and mental illness.  Before Lessard, commitment was largely premised on the government's parens patriae powers - the need to care for the sick.  In its place, commitment focused almost exclusively on dangerousness and hence the lens in which we view the mentally ill was now focused on seeing them as dangerous people.  As the district court ruefully noted, Lessard's commitment was devoid of the safeguards afforded criminal defendant's and so, the thinking goes, the mentally ill ought to at least have those rights when deprivation of liberty is at stake.  And so the court and subsequently most state legislatures obliged by providing the mentally ill subject to commitment rights enjoyed by criminal defendants including notice, silence, counsel and even a jury.  Unsurprisingly, civil commitment was now wed to criminal procedure and with the requirement of overt acts of harm, adjudication now was about a system responding to scary and dangerous behavior instead of care for the sick.

It is no small wonder then that present day civil commitment includes sex offenders.  They are viewed as dangerous people who lack control over their behavior and need significant management and even confinement.  They are commonly thought of as criminals and even punished as so yet somehow have a mental abnormality that requires treatment.  Sadly, many people with severe mental disorders such as schizophrenia now find themselves routinely in and out of jails and prisons with long-term asylum care almost unheard of except in the obligatory forensic hospital.   The distinction between the sick and the bad has largely vanished.

What has the Lessard decision wrought?  We no longer cabin commitment to people we feel sorry for because they are sick.  Commitment is for the dangerous; those on the cusp of criminality.   To invoke its power requires many of the formalities of the criminal justice system because it is a police power, not an obligation of a virtuous society to care for its citizens.  
There is a regular pattern in constitutional law.  The U.S. Supreme Court announces that the Constitution has magically sprouted a new rule, trumping the power of the people to enact laws through the democratic process in a way that it never did before.  Many people, perhaps most, agree with the rule in its simple form.  Ah, but life is not simple.  With every rule comes pesky little details about its boundaries in the gray zone and the means by which disputes on its application are resolved.  Since no one but the U.S. Supreme Court can authoritatively decide for the whole country what a federal constitution rule actually means, the high court is stuck with the details.

Should people with intellectual disability, formerly called mental retardation, be categorically exempt from capital punishment, regardless of how many or horrible their crimes?  I will assume for the sake of argument that the consensus of the American people would be "yes" for the moderately retarded and below.  I very much doubt that such a consensus would exist for the mildly retarded if people knew what that meant.  If fully informed, I think most people would agree with the 1989 rule of Penry v. Lynaugh that intellectual disability in that range should be considered as a mitigating factor to be weighed in the balance, not a trump card.

Even so, in Atkins v. Virginia in 2002, the Supreme Court extended the blanket prohibition to everyone diagnosable as retarded, but not to "borderline intellectual functioning," the next step up.  The fuzzy distinction between mildly retarded and borderline had been of little consequence while both were mitigating and neither was a trump card, but suddenly the distinction made a great difference.  A wave of death row inmates claiming to be retarded, a few of whom actually were, made Atkins claims.  How do we go about deciding them?  Does every one who makes the claim get a full-blown hearing?

Should a judge who receives an Atkins claim look to the record of a pre-Atkins sentencing and decide on the basis of that record alone, without giving the inmate an opportunity to submit any additional evidence, that he has no claim?  Of course not.  If you read only the question presented as phrased by lawyers for the inmate in Brumfield v. Cain, No. 13-1433, you might think that is what happened in that case.  Not really.

Examining the Medical Model of Crime

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The Heritage Foundation is in my view on the wrong side of sentencing "reform," but remains a valuable, intellectually stimulating and honest organization.  (For example, its Senior Fellow, John Malcolm, acknowledges that increased incarceration accounts for from 25 to 35 percent of the huge decline in crime over the last generation).

Those who are interested and able might wish to attend its Tuesday, April 14 lecture titled, "How Modern Psychology Undermines Morality" by psychiatrist and author Theodore Dalrymple. Its description is:

Modern psychology is one of the most powerful intellectual authorities of our time. Its appeal derives in no small part from its ability to absolve us of responsibility for our misdeeds, vices, and failings. It's never our fault. It's the fault of our subconscious drives, our parents, or our genes. And the solution to our behavioral problems lies not in reforming our character, but in medicines and therapy that can cure the diseases and disorders diagnosed by psychology.

In Admirable Evasions: How Psychology Undermines Morality, the well-known writer, social critic, and psychiatrist Theodore Dalrymple shows how the findings of psychology are superficial and its net effects deleterious. Dalrymple examines the damage psychology has done to our politics by relieving individuals of moral responsibility and diminishing their ability for honest self-reflection. Theodore Dalrymple is the pen name of Anthony Daniels.

Toca Set For Argument Anyway

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Last week we noted that the U.S. Supreme Court case of Toca v. Louisiana, No. 14-6381, was moot because a settlement had been reached back in the state court.

Apparently no one has told the Supreme Court that yet, and they have set the argument for March 30.

Update:  A stipulation to dismiss has been filed.  Rule 46.1 provides that "the Clerk, without further reference to the Court, will enter an order of dismissal."  Update 2 (2/3): Done.

Brumfield v. Cain, No. 13-1433, another Louisiana case, is set for the same day and probably will go as scheduled.  It has to do with the way that state handles murderers' claims that they are intellectually disabled.

That's it for criminal cases on the March calendar.  San Francisco v. Sheehan, No. 13-1412, is a law-enforcement-related civil case on the Americans with Disabilities Act and accommodating "an armed, violent, and mentally ill suspect."  It is set for March 23.

New SCOTUS Cases

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The U.S. Supreme Court has taken up a number of new cases for full briefing and argument.  All the buzz is about the same-sex marriage cases, off-topic for this blog.  There is one actual criminal case, McFadden v. United States, No. 14-378.  The question presented is:

Whether, to convict a defendant of distribution of a controlled substance analogue - a substance with a chemical structure that is "substantially similar" to a schedule I or II drug and has a "substantially similar" effect on the user (or is believed or represented by the defendant to have such a similar effect) - the government must prove that the defendant knew that the substance constituted a controlled substance analogue, as held by the Second, Seventh, and Eighth Circuits, but rejected by the Fourth and Fifth Circuits.
Kind of an interesting "mental state" question, but not a big case.

Elonis Podcast, Claremont Edition

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My teleforum on the Elonis case with John Eastman of the Claremont Institute is now available as a podcast.  It's about 10 minutes.
The Supreme Court of Georgia denied a stay of execution to Robert Wayne Holsey, who shot and killed Baldwin County Deputy Sheriff Will Robinson in December 1995.  A press release is here.  Holsey wanted the determination that he is not intellectually disabled reconsidered after Hall v. Florida.

The US Supreme Court subsequently denied a stay 7-2.  Justices Breyer and Sotomayor would have granted the stay.
Kevan Brumfield murdered Police Corporal Betty Smothers in Baton Rouge, Louisiana in 1993.  He went on trial in 1995.  Six years earlier the Supreme Court decided in Penry v. Lynaugh that mental retardation (now called intellectual disability) is a mitigating factor that the jury must be allowed to consider but not a categorical exclusion.  Brumfield's lawyers put on no evidence of retardation, instead arguing other factors as mitigation, and he was sentenced to death.

Seven years after the trial, the Supreme Court decided in Atkins v. Virginia that retardation would be a categorical exclusion after all.  The high court did not apologize for its flip-flop.  On state collateral review, the trial judge denied the petition on the basis of the trial record.

What to do on federal habeas?  The deference standard of 28 U.S.C. §2254(d) allows a federal court to grant relief despite a state court's denial on the merits if the state court's "adjudication of the claim ... (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding." 

But what if the argument is that the state court's unreasonableness was in not allowing evidence, rather than assessment of evidence?  Can a rule to deal with that issue be crafted without opening the door to federal micromanagement of state collateral review or the wholesale relitigation that the AEDPA reforms were enacted to prevent?

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