Recently in Mental State Category

A Watershed Right to the Insanity Defense

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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.   

Psychiatric Medicines and School Shootings

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Some people believe that kids who engage in school shootings are often under the influence of psychiatric medications and that this drives their behavior.  A new study sheds some light onto that theory finding about half of the school shooters had been prescribed these medicines before their crimes.  The authors' conclusion is that is insignificant to suggest a causal link.  Perhaps so.

What is unsurprising is that so many of these kids had received mental health treatment before their crimes. These are deeply troubled individuals.  We should also not be surprised that the mental health professionals did not foresee the risk of violence that these kids posed to their communities.   Many kids get mental health treatment and do not engage in mass shootings.  Red flag laws may have their place but it is important to keep in mind that separating the the typical patient from the dangerous one is tricky business.

Brain Porn

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I have been attending the annual conference of the Association of Government Attorneys in Capital Litigation this week. Among the presentations was one by Dr. J. Randall Price on the subject of brain scans. He reaffirmed what I have heard from other speakers. Those color-enhanced pictures that defense experts use to try to convince jurors that the defendant's "broken brain" made him do it are pretty much junk science. The colors are tweaked for dramatic effect rather than to actually show anything that really has to do with a person's free will and capacity to obey the law. Some call this color tweaking "brain porn." Interesting term.

The Relation of Insanity to Crime

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Here is something interesting I stumbled upon today:

     I approach the discussion of this subject with considerable distrust of my own power of dealing with it satisfactorily, as it cannot be treated fully without a degree of medical knowledge to which I have no pretensions. Moreover, the subject has excited a controversy between the medical and the legal professions in which many things have been said which would, I think, have been better unsaid.

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.

Now John Anderer reports at Study Finds:

[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.
Vern Pierson, District Attorney of El Dorado County, California, has this commentary in CalMatters.

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 problem is nationwide, not limited to California. Yet the formerly golden state tends to be a trend setter, and it is worthwhile for folks elsewhere to pay attention to the consequences of what is happening here.
The U.S. Supreme Court today decided Madison v. Alabama, No. 17-7505, confirming that the state was right on the question that everyone thought the case was about -- whether inability to remember the crime alone exempted a murderer from execution. No, it does not.

Of course, a variety of disorders can cause memory loss. So-called "alcoholic blackout," for example, can prevent the transfer of a memory from volatile current memory to long-term storage, like pulling the plug on on your computer before you save a document to the hard drive. Despite inability the remember, the person will have full mental faculties once he sobers up, and he can understand what he did and why he is being punished for it. In Madison's case, though, the underlying cause is vascular dementia, a broader disorder.

Competency for execution cases have mostly involved psychotic disorders, but the underlying rule is not limited to them. Ford v. Wainwright and Panetti v. Quarterman establish a broader rule that a disorder that prevents rational understanding precludes execution. Because the brief ruling of the state court leaves a majority of the U.S. Supreme Court court in doubt whether it applied the right standard, they send the case back.

The decision is 5-3 with Justice Kavanaugh not participating.  Justice Alito, joined by Justices Thomas and Gorsuch, dissents from the majority's indulgence of Madison's bait-and-switch:

A Disappointing Sequel in Moore v. Texas

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In 1980, Bobby James Moore literally blew the head off James McCarble, 72, while robbing the supermarket where Mr. McCarble worked. Today the U.S. Supreme Court overturned Moore's death sentence for the second time.

The opinion relies on criteria for defining intellectual disability (formerly called mental retardation) established by two private organizations with agendas, the American Association on Intellectual and Developmental Disabilities and the American Psychiatric Association. For the reasons why this is a bad idea, see our brief in the first case. Science has little or nothing to do with it.

The first case was decided 5-3, with Justice Scalia's chair vacant and Chief Justice Roberts dissenting, joined by Justices Thomas and Alito. This time, the Chief concurs because he believes the Texas Court of Criminal Appeals did not properly apply the previous decision. It is binding precedent, even if he does not agree with it. Justice Alito writes the dissent joined by Justice Thomas and Justice Gorsuch.

There is no express indication of Justice Kavanaugh's position. "Per curiam" opinions are not expressly joined, though they express the position of a majority of the Court. It is disappointing not to see him join the dissent. Hopefully he merely has a position like Justice Roberts's, that he does not think the state court followed the precedent, without revisiting the issues decided there. He seems to be generally lying low after his brutal confirmation battle.

There are many bad ideas in constitutional law, but delegating to private, unaccountable, agenda-driven organizations the power to amend the Eighth Amendment and decide who can be executed for murder is among the worst. I had hoped that this case would be taken for full briefing and argument to reconsider that question, but the Court should take it up in another one soon.
The California Supreme Court decided today in People v. Superior Court (Smith), No. S225562 that the District Attorney may obtain otherwise confidential treatment records in a case of civil commitment of a "sexually violent predator."
Amy Howe has this report at Howe on the Court on the Supreme Court argument in Madison v. Alabama, No. 17-7505. She believes that Madison may eke out a win on narrow grounds.

The case has been widely described as presenting the question of whether a person can be executed for a crime he does not remember. Counsel for Madison quickly conceded that he was not seeking a rule anywhere near that broad. That's good, because a rule that broad would be a disaster.

A Stumble Down Memory Lane

Much of the commentary on the recent Kavanaugh controversy has simply assumed that if two people tell inconsistent stories about a long ago event, one of them must be lying. I noted in this post a week ago why that is not necessarily so. Sometimes people simply remember things wrong, especially at long time intervals. A person can be fully candid in a statement of how he or she remembers an event and still say things that are factually incorrect.

This morning Prof. Richard MacKenzie of UC Irvine has this op-ed in the WSJ with the above title:

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.

The Problems With Old Memories

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How do you deal with an accusation based on a memory so long ago and so lacking in detail that it can neither be proved nor disproved?  The Senate Judiciary Committee is going to hold a hearing on the accusation by Christine Ford against Brett Kavanaugh, but we can already be fairly sure it will be inconclusive, with many people seeing the result they want to see.

In criminal law, an accusation that can't be proved results in acquittal, even though it can't be disproved either. As we have noted before on this blog, "exonerations" on the so-called "innocence list" can be the result of a case going back to the trial court decades after the crime.

How about nominations? Should an unprovable-undisprovable accusation from decades ago scuttle the nomination of a person who has been a straight arrow ever since and (according to dozens of  contemporaries) was also one at the time with the possible/possibly not exception of this one incident? The WSJ has this editorial taking the "no" side of that question.
Developments in psychology are worth keeping an eye on. You never know what new theory is coming soon to a criminal courtroom near you.

Ben Guarino has this article in the WaPo with the above subhead. The headline is "Scientists identify four personality types."

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.

Partial Fix to Cal. Diversion Bill

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Last week I noted a disastrous change to California law on mental health diversion that was sneaked through the Legislature. Today the Assembly passed a bill to make the change somewhat less disastrous.  SB 215 would exclude some of the more serious offenses.  Dan Morain at CalMatters notes this bill among others. Scroll about half way down. Morain also notes the bail bill described in Kym's post.
The title is taken from this article by veteran California political commentator Dan Walters at CalMatters regarding the California Legislature's practice of putting together a hodgepodge of legislation in a single bill near the end of the session and calling it a "budget trailer" bill.  Legislative rules for the budget are different from those for other legislation, but the "trailer" bills are just items that "affect" the budget, and nearly everything does.  As noted in my post last week, this evasion of the constitutional single-subject rule was used this year to stick a horrifying stack of "get out of jail free" cards into a health funding measure.  Walters describes this debacle:

A prime example occurred two months ago when one of the trailer bills was loaded up with a massive rewrite of the state's criminal laws, allowing virtually anyone convicted of a felony, even rape or murder, to avoid prison if they are declared in need of psychiatric treatment and they receive it for two years.

Gov. Jerry Brown, who has made softening California's criminal laws a hallmark of his final term, backed the change but prosecutors howled that it was a get-out-of-jail card for vicious criminals and complained, with good reason, about the diversion language being buried in a massive "trailer bill" relating to social services rather than being openly debated and decided.

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