Recently in Mental State Category

As noted in this Reuters news story, a new study finds that heavy use of potent forms of marijuana doubles the risk of psychosis.  There have been a number of studies in the past several years that have made similar findings, but the conclusions are hotly debated.  For instance, it is not clear whether people who are more prone to mental illness to begin with use marijuana at higher rates than others or whether the drug causes psychotic illness.  The truth is probably somewhere in the middle:  those who are troubled are drawn to the euphoric effects of marijuana which is noted for its anxiolytic properties while research into the body's endocannabinoid system suggests that extrinsic sources can lead to symptoms of mental illness. 

Whether marijuana is a dangerous or harmless drug largely depends on what it is compared to and what one deems as acceptable risk.  Quite clearly compared to alcohol and cocaine the risks are small:  marijuana isn't strongly linked to crime or illness compared to those drugs.  But when the assertion is made that marijuana is harmless, that too is clearly wrong:  marijuana use is linked not only to mental illness but also pulmonary damage, cognitive impairment, and possibly liver disease.  And these points are worth consideration in discussions about marijuana and legal proscriptions irrespective which side of the fence one sits on in terms of prohibition.  

Dr. Edward Shorter has this commentary in the WSJ on the draft DSM-V. The most important part for our topic is near the end:

A new problem is the extension of "schizophrenia" to a larger population, with "psychosis risk syndrome." Even if you aren't floridly psychotic with hallucinations and delusions, eccentric behavior can nonetheless awaken the suspicion that you might someday become psychotic. Let's say you have "disorganized speech." This would apply to about half of my students. Pour on the Seroquel for "psychosis risk syndrome"!

DSM-V accelerates the trend of making variants on the spectrum of everyday behavior into diseases: turning grief into depression, apprehension into anxiety, and boyishness into hyperactivity.

Any collection of behaviors with a code in the DSM will be claimed as mitigation in criminal cases, if not a complete excuse for crimes. The continuing sprawl of such "diseases" is cause for concern.

As detailed in this ABC new story, a draft of the new edition of the Diagnostic and Statistical Manual for Mental Disorders is now available for review.

There was a rumor floating around a few months back that one of the new proposed diagnoses would include obesity.  We'll have to trot our way through the draft to see if that has come to fruition. 

Update: The Guardian reports:

Among the proposals is a new condition, "temper dysregulation with dysphoria", characterised by "severe, recurrent outbursts of temper" several times a week, that are "grossly out of proportion to the situation or provocation and that interfere significantly with functioning". To be considered, the "symptoms" must have been "diagnosed" before age 10.

About a week ago, I noted that John Edwards, the former senator and Vice-Presidential candidate who was under serious consideration to be Attorney General, had been revealed as a serial liar who was leading a double life with a campaign aide at the same time his wife was battling incurable cancer, http://today.msnbc.msn.com/id/34963767/ns/today-today_people/?GT1=43001.  I said then that we should be grateful for the merely clueless Eric Holder.

 

Today comes word that Edwards is in a sex tape, no less, with his mistress, http://today.msnbc.msn.com/id/35145215/ns/today-today_people/?GT1=43001.  I mean, this guy is fifty-six years old.  And doing a sex tape?  Those who believe that Barack Obama is the most self-involved man in public life need seriously to reconsider their position.

 

On the other hand, as Mr. Holder gets more and more dug in on his decision to give jihadist warriors Miranda warnings and all the other rights of standard criminal defendants,  it's harder and harder to be grateful on any account for his tenure at the Justice Department.

 

In Kansas v. Crane, 534 U.S. 407 (2002), the U.S. Supreme Court held that the civil commitment of a sexually violent predator requires some proof that a person subject to commitment has a serious difficulty in controlling his or her behavior in addition to a mental abnormality.  But does that volitional requirement apply to people adjudicated not guilty by reason of insanity?  According to the 2nd Circuit's opinion in Richard S. v. Carpinello  (Docket No. 08-4197-pr., December 15, 2009) the answer is yes:

Petitioner-Appellant Richard S. appeals the July 22, 2008 denial of his petition for habeas corpus by the United States District Court for the Northern District of New York (Hurd, J.). Richard S. argues that the state courts unreasonably refused to apply the United States Supreme Court holding in Kansas v. Crane, 534 U.S. 407 (2002), to his case. For the reasons that follow, we hold that Crane's involuntary commitment standard applies to insanity acquittees, but that the New York courts did not unreasonably conclude that Richard S.'s continued involuntary confinement meets the requirements of the due process clause. The denial of Richard S.'s 28 petition for a writ of habeas corpus is therefore affirmed 

As detailed by Kelly Lowenberg over at the Stanford Law and Neuroscience Blog, psychopathy was recently introduced as a mitigating factor in a capital murder trial:

[N]euroscientist Kent Kiehl recently testified as an expert witness for the defense in the sentencing hearing for Brian Dugan, a man who pled guilty to the 1983 rape and murder of a ten-year old girl. The defense argued that Dugan suffers from psychopathy, a psychiatric disorder typified by antisocial behavior, impulsivity, and lack of remorse, which made it difficult for him to control his behavior. As a result, the defense argued, Dugan is less culpable for his criminal behavior, and his disorder should be considered a mitigating factor. Kiehl testified that based on functional magnetic resonance imaging (fMRI) tests and a diagnostic checklist, Dugan showed abnormal brain functioning and responses similar to other psychopaths Kiehl has tested.

But the crucial question is what is that abnormal brain functioning?  Is it an abnormality that renders the defendant unable to bring reason to bear on his or her decisions?  Keep in mind that the hallmark feature of psychopathy is willful engagement in planned, predatory behavior.  Neurotalk can make any behavior sound pathological, but describing brain patterns doesn't equate to excuse (yet) in any jurisdiction.

But what if those doctrines were to change?

At the least, they were have to hold that defendants who have a sophisticated enough understanding of legal wrongfulness that they often engage in planned behavior designed to subvert detection by law enforcement are insane.  What's more, they would hold that citizens who have antisocial tendencies, are impulsive, and hurt other without feeling bad about it deserve excuse. 

And that is no small doctrinal change.

The neuroscience world has been buzzing as of late about a recent study, Association of Poor Childhood Fear Conditioning and Adult Crime, published in a recent issue of the American Journal of Psychiatry.  The gist of the article is the claim that children at the age of 3 who had an abnormal amygdala were more likely to engage in criminal conduct as adults.  There are problems with the study, however, as The Last Psychiatrist aptly points out.  

But there's an additional observation worth noting: the amygdala has become hot again, but what it can explain about human behavior is limited. 

Back in the 1990s, the amygdala was all the rage in the explanatory models of schizophrenia (with some renewed interested today).  But as of late, the amygdala has become the focus of explanatory models of psychopathic behavior. And while it makes intuitive sense that the amygdala could be (and probably is) involved in both disorders, there's a larger lesson to be learned. 

Back in the 1980s and early 1990s (before the widespread use of fMRI) the tool of choice in biological psychiatry was the EEG.   Stories were written with much fervor that the EEG could peer inside the brain and explain the mind by describing the electrical impulses detected by the EEG apparatus.  Soon, a particular type of brain wave was identified which seemed to have explanatory value in various behavioral models.   The P300 wave had been around for a while, but the evolution of psychiatry from its psychoanalytic traditions to one dominated by biological psychiatry was well under way by the 1980s.  Before long, researchers found that the P300 wave was abnormal in people with schizophrenia.  Then it was observed that the P300 was abnormal in alcoholics, people who abused cocaine, depression, Alzheimer's, smokers, borderline personality disorder... and the list goes on.

The point is not that the P300 models were wrong in the descriptive sense- they were surely right.  The issue is what localization models can explain.  Inasmuch as the P300 is indeed abnormal in schizophrenia and a myriad of other behavioral disorders, the amygdala is likely involved in various behavioral phenomena as well.  What that tells us about why people behave as they do, however, is quite limited and circumspect.   

As Kent notes, there have been a series of posts over the internet about the impending execution of Bobby Woods.  Many have claimed that Woods is mentally retarded and his execution would therefore violate Atkins v. Virginia.  But what evidence is there that Woods is mentally retarded?  As Kent notes, there are three criteria which all must be meet in order for someone to meet a clinical diagnosis of mental retardation:

1. A full-scale IQ score of 70 of less;
2. Significant limitations in adaptive functioning (e.g., an inability to dress oneself or use the bathroom without assistance);
3. Age of onset before 18. 

Of course, in Atkins, the Court did not expressly claim that these clinical criteria were dispositive; rather the Court was willing to defer to the various state legislatures.  But those legislatures have largely adapted these clinical criteria with the understanding that they have been formulated by the scientific knowledge of the professional bodies which promulgated them.

Applying Atkins is difficult.  Obviously, anyone on death row has a vested interest in appearing mentally retarded.  This is known in psychology as the problem of secondary gain.  The problem is amplified in Atkins claims because the various psychological tests used to assess IQ assume that the test-taker is exerting maximum effort.  None of the tests are designed to detect whether the test-taker is intentionally trying to appear less intelligent than he or she really is.  After all, in most contexts, higher intelligence has direct benefits for the test-taker.  Not so when an Atkins claim is at issue.

To overcome this difficulty, most forensic psychologists rely on historical records to collaborate their hypothesis.  And none are more relied upon than prior IQ tests that were administered before the test-taker had a powerful incentive to appear less intelligent than they really are.  When only 1 out of 5 IQ tests indicate mild mental retardation (with the rest showing no retardation) the weight of evidence is strongly against the hypothesis of mental retardation.  The fact that the only test indicative of mental retardation was administered during pending litigation makes it highly suspect.

More curiously, though, are claims that watching short video clips is a reliable and valid method of assessing mental retardation.  It surely is not.  Psychological assessment of intelligence is a highly involved and complex affair. This is even more true in borderline cases such as this Woods case.  Woods' only score indicative of mental retardation is 68, which - if it were to be believed as accurate - would barely place him in the mildly mentally retarded range.  The idea that one could ascertain someone as mentally retarded immediately upon meeting them only holds weight if the person was profoundly retarded - which clearly Woods is not.    And it was this distinction that the common law got right before Atkins.  

SL&P has this post, linking to this post at Stand Down Texas, regarding Bobby Wayne Woods, who has an appointment with the Grim Reaper tomorrow. Reading these posts, you might think that Woods has a substantial argument that he is mentally retarded and hence ineligible for execution. Jumping to that conclusion without reading the opinions in the case would, of course, be foolish. Here are two of the opinions: the Fifth Circuit's 2007 opinion on the retardation issue and its 2002 opinion disposing of the pre-Atkins issues. I've put the facts of the crime after the jump.

A diagnosis of mental retardation requires three elements. Somewhat simplified, they are sub-70 IQ, poor functioning in society, and being that way before 18 (as opposed to, e.g., later brain damage). Let's look at the IQ first. Here are Woods' IQ test results:

1st grade: 78 (WISC)
4th grade: 80 (WISC)
1972 (age 7): 86 (Cal. Short Form)
1998 (age 33): 83 (short form upon entry to Tex. prison system)
recently: 68 (WAIS-III, during Atkins litigation)

Which of these tests is the least reliable? The last one, obviously. It is an outlier from the others and it was given at a time when Woods had the strongest possible incentive to do poorly on a test where effort is essential to validity. From the Fifth Circuit's summary of the state court opinion:

Based on this evidence, the state habeas court concluded that Woods failed to prove each required element by a preponderance of the evidence. Regarding Woods' general intellectual functioning, the court noted, in part, the existence of four IQ test scores placing Woods above the seventy-point cutoff. It also found compelling the fact that Dr. Schmitt, the defense's expert, was the only person to test Woods' IQ below seventy and the only expert who has tested Woods and concluded that he is mentally retarded. The court further noted that Woods' lowest IQ score was attained when he had an incentive to perform poorly, but Woods' IQ scores were higher when he had no such incentive.

Bingo. That is sufficient to dispose of the retardation claim. But there is more. See the opinion for details.

Oh, and what did the sainted Mr. Woods do, BTW?

From the California Supreme Court today in People v. Concha, S163811:

Reyas Concha, Julio Hernandez, and Max Sanchez attempted to murder Jimmy Lee Harris. During the attempt, Harris responded in self-defense by stabbing Max Sanchez to death. Relying on the so-called provocative act murder doctrine, the jury convicted defendants Concha and Hernandez of first degree murder for the death of Sanchez. We granted review to determine whether a defendant may be liable for first degree murder when his accomplice is killed by the intended victim in the course of an attempted murder. We hold that a defendant may be convicted of first degree murder under these circumstances if the defendant personally acted willfully, deliberately, and with premeditation during the attempted murder.

I'm not a big fan of prosecutions such as this. The death of Sanchez was not a crime. The world is a better place without him. Concha and Hernandez should have been prosecuted for their crimes against Harris, but that's it.

From the New Scientist: Murderer with 'aggression genes' gets sentence cut.  And Prof. Farahany gets it right:  There are easily many more genes that could suggest a defendant should be incapacitated far longer than a typical sentence dolled out these days.  The real danger of linking genes with responsibility is that our genetic make-up is permanent. And that generally precludes any rehabilitative efforts.  

The lead article in this month's issue of the American Psychologist is an article titled Are Adolescents Less Mature than Adults?  The article attempts to reconcile the contradictory positions of the American Psychological Association highlighted by Justice Scalia in his dissent in Roper v. Simmons:

[T]he American Psychological Association (APA), which claims in this case that scientific evidence shows persons under 18 lack the ability to take moral responsibility for their decisions, has previously taken precisely the opposite position before this very Court. In its brief in Hodgson v. Minnesota, 497 U.S. 417 (1990), the APA found a "rich body of research" showing that juveniles are mature enough to decide whether to obtain an abortion without parental involvement.

Simmons at 617 (Scalia, J. dissenting)

Since those lines were laid to text, the American Psychological Association has tried to defend its position that when it comes to obtaining an abortion, the scientific evidence shows that adolescents posses the cognitive capacity to make that choice free from parental consent yet when it comes to the criminal punishment, juveniles as a categorical group, are insufficiently mature to be subject to the full range of criminal sanctions available under the law.  The article in this month's American Psychologist claims to demonstrate how these positions are compatible despite the robust intuition that they simply can't be. 

The insanity plea is the last refuge of a murderer who is so clearly proven guilty that there is nothing left to argue. Defense counsel typically tells the jury that incapacitation is not an issue in the case, because the defendant will be locked up for the rest of his life regardless of whether the verdict is guilty or NGI.

Not quite. Nicholas Geranios reports for AP:

A criminally insane killer from eastern Washington is on the run after escaping during a field trip to the county fair that his mental hospital organized.

Why such a dangerous person was out in public was a question many, including Washington Gov. Chris Gregoire, were asking as authorities searched for Phillip Arnold Paul.

Authorities at Eastern State Hospital, where Paul is a patient, are being criticized for allowing him to visit the fair despite his violent criminal past and a history of trying to escape.

Is there a difference between being in the mental wing of the state prison versus the dangerous wing of the state mental hospital? Well, there may be a cultural difference in the staff. The department of "corrections," despite the name, is more likely to see incapacitation for the protection of the public as its main job.

Question: If you put a dead fish in a brain scanning apparatus and ask it to determine the emotions of humans presented as pictures, will you get a response?  Seem ridiculous?  The superb blog Neuroskeptic has the details.  

Justice Jackson had these wise words many years ago:

The contention that an injury can amount to a crime only when inflicted by intention is no provincial or transient notion.  It is universal and persistent in mature systems of law as belief in freedom of the human will and a consequent ability and duty of the normal individual to choose between good and evil. 

The elementary premise that most people, most of the time, have the ability to guide their behavior by bringing reason to bear on their conduct is firmly rooted in substantive criminal law.  The entrenched concepts of intentions, aforethought, and malice strongly suggests that the structure of our criminal law rests on the idea of human agency: That people evaluate the world, make choices, and impose those choices on the world.  When people offend the criminal code, they are properly held blameworthy because it is assumed that they could have chosen differently despite their personal genetic liability, propensities, and desires.

Anyone who has followed criminal law for some time knows that the findings in the behavioral sciences are often proffered by some as evidence that these basic assumptions in modern legal systems are fallacies.  People are said to be compelled into criminal behavior or genetically determined to act against the precepts of law.  We are said to have little, if any, ability to choose our conduct. 

The latest chapter of this story comes from the highly publicized area of neurolaw.  Applying cognitive neuroscience (and particularly brain scans) to legal questions of responsibility, neurolaw continues the mission of the hard determinists who claim that free will is an illusion, and therefore, Jackson, most substantive criminal law, and enduing cross-cultural intuitions of justice are flat-out wrong.

But despite all of the persuasive neuolaw talk (and pictures in particular) there are problems with the nurolaw model.  As I discuss in this Article, we should skeptical of these claims for a number of reasons.  Chief among them is the belief that a criminal code influenced by neuroscience would lend itself more easily to fairness, compassion, and mercy.  On the contrary, there is every reason to believe the opposite.