Recently in Mental State Category

In a couple of weeks, the Supreme Court will hear arguments in the case of Kahler v. Kansas.  The central question is whether there is a federal constitutional right to the insanity defense.  It is my view that the Court should find such a right and I would like to explain why.

The cornerstone of our criminal justice system is responsibility.   We presume that people are responsible for their conduct and should be punished when they violate the law.  Punishment and social condemnation are reserved for the criminal justice system.  A system of crime control without blame and punishment is merely a civil system of behavioral management (which we now see with the various civil sex offender statutes). 

For someone to be responsible, he must be a rational agent.  To be rational is to have reasons based on accurate perceptions and the ability to form sound judgments.  Only humans are capable of being guided by reasons, and the law presumes that people can and should be judged by their reasons.  The capacity for rationality is a necessity for legal and moral responsibility, which is why young children and those with profound intellectual disabilities have long been considered not responsible for their conduct.   

The American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders (5th ed.), known as the DSM-5 for short, is a controversial document that often makes its way into criminal cases. See CJLF's brief in the Supreme Court case of Moore v. Texas, No. 15-797, pages 18-21.

[A] new study conducted at the University of Liverpool has raised eyebrows by concluding that psychiatric diagnoses are "scientifically meaningless," and worthless as tools to accurately identify and address mental distress at an individual level.

Ronald Reagan emptied the psychiatric hospitals and Jerry Brown emptied the prisons, or so some people say. Although neither statement is completely true, there are elements of harsh reality in both. And they are connected.

Reagan and Brown, two of the most consequential governors ever in California, led the state during two of the most well intended but poorly executed movements in this state's history.

The first was the de-institutionalization of the mentally ill starting in the 1960's. The movement, started in Europe, was supported by President Kennedy and ultimately complicated by a U.S. Supreme Court opinion and civil liberty concerns over forced treatment.

The second in recent years was fueled by concerns about perceived mass incarceration, and the reality that our jails and prisons had become the de facto mental facilities.

The result: fewer inmates, and significant increases in homelessness and untreated mental illness.

I have witnessed this as a county prosecutor, deputy attorney general and El Dorado County District Attorney. As someone with more than 27 years in the pursuit of justice, I worry for the people on the streets, and for the future victims of crime.

The more remote a memory is in time, the less reliable it tends to be, partly because of decay and partly because recalled memories can be corrupted by new information. New and old memories can be conflated, sometimes emerging as totally false memories. Memories can be warped by leading questions from therapists, lawyers, journalists or others.

My colleague Elizabeth Loftus was able to "implant" false memories in a significant subset of laboratory subjects by showing them an official-looking poster of Disney characters, including Mickey Mouse and Bugs Bunny. Many subjects later remembered meeting Bugs Bunny on a childhood trip to Disneyland. Some of them even reported that Bugs had touched them inappropriately.

That was impossible. Bugs Bunny isn't a Disney character.

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Pundits have drawn a line between Judge Kavanaugh and his accusers, and insisted Americans take sides. But there is a third way: Remain agnostic until you know whether the accusations are backed by independent corroborating evidence. Without corroboration the public--and members of congressional committees--can't know whether a memory is authentic or is a product of some other process.

Personality tests are hugely popular, though if you ask working psychologists, they'll tell you the results are little better than astrological signs. But a new study, based on huge sets of personality data representing 1.5 million people, has persuaded one of the staunchest critics of personality tests to conclude that maybe distinct personality types exist, after all.