Running head: MENTAL ILLNESS AND THE LAW
Mental Illness and the Law
Lea Garner
Brigham Young University
Mental Illness and the Law
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Running head: MENTAL ILLNESS AND THE LAW
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Over time what is considered legal and ethical towards mental illness has changed. “How we
treat people with psychological disorders is partly a function of how society views these people.” (pg.
571 Barlow & Durand)” Do we view the mentally ill as needing protection, or does the public need to be
protected from them? A lot of people claim insanity when they are accused of a crime, where some
people are sent to get treatment and others are sent to jail or prison. Earlier this year it was reported
that there are “10 times more mentally ill Americans in prisons and jails than in state psychiatric
hospitals,” (Lewis, 1). In 2012 there were roughly 358,268 inmates with a mental illness in prisons and
jails while 35,000 people with the same illnesses were in state psychiatric hospitals (Mencimer, 2014).
Studies have also shown that there are 14.5% of men and 31% of women in jails with a severe mental
illness (Wilson et. Al, 2014). These numbers mean that there are a surprising number of people with
severe mental illness who are incarcerated. There needs to be a way where those who are mentally ill
and commit a crime should be sent to get treatment, and not just thrown into jail or prison, but it isn’t
always that easy.
There has been a long debate on what is even considered to be mentally ill when committing a
crime, and if they are truly insane, how should they be dealt with. Should a person who has a mental
illness not be considered guilty if they commit a crime? In most cases if a person is mentally ill at the
time and place of the crime and the person didn’t know what was done was wrong, that individual might
not be prosecuted. But then there is the scenario where the person knew that what he was doing was
wrong, but the person couldn’t help it because of the illness. The third scenario involves the person who
claims to be insane, so that he can get off with a lighter or easier sentence. Every person that pleads
insanity under goes intense speculation to see if the crime they committed was intentional or not and
for their reasoning, why they did it. Every individual case is different because of the circumstances and
exactness of the crime, and how the illness is affecting the person.
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Mental Illness and Violence
Does mental illness lead to criminal activity? Being mentally ill does have a likelihood of future
violence which could lead to breaking the law. But there is also not one answer on how often those that
commit crimes are motivated by symptoms of mental illness, it all depends on how “broadly one defines
symptoms of mental illness” (Peterson et el. 2014, p. 439). With symptoms of hallucinations or delusions
there is an increased risk for violence. The definition of mental illness can be hard to really understand
where there are difficulties in distinguishing between symptoms of the illness and the traits that are
similar to symptoms. Anger can be connected with symptoms of psychosis, personality disorders, mood
disorders and post traumatic mental disorder. On the other side anger can also be just another human
emotion (Peterson, et al. 2014). Knowing what motive is behind a perpetrator is crucial to know if they
are acting on a mental illness or if they are sane and have a clear conscience. Interesting enough though
people with mental illness are not violent, the news and entertainment make it seem as if this is true
and that there is a sizeable correlation. Whenever there is a crime committed by someone who is
mentally ill it makes headlines and a lot of attention is drawn to the matter. In movies and television
those with mental illness are usually portrayed as being dangerous
Rights of the Mentally Ill
There have been several rules to protect the mentally ill and the law. The M’Naghten rule was
developed in 1843 which states that it must clearly be proved that when committing an act the person
had a disease of the mind, that they did not know what he was doing or if they did know what they were
doing, but did not know that it was wrong. The Durham rule says that a person accused is not criminally
responsible if the act was because of a mental disease or mental effect. A good example of this is that if
a person accidently hits another person with a car and it kills them, they are not held criminally
responsible because there was no criminal intent. They weren’t deliberately trying to hit the person and
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attempt murder. This can relate to a person with mental illness who commits a criminal offense,
because of their sickness they had no criminal intent and cannot be held responsible. In 1978 diminished
capacity is evidence of abnormal behavior to show that their criminal intent can be diminished by their
mental illness. The most recent law to protect the mentally ill is the Insanity Defense Reform Act that
came out in 1984, which says that that a person is not held responsible for a crime if the person was
mentally ill at the time of the crime committed (Barlow, Durand 2002). All of the states use a different
combination of these laws to protect the mentally ill. Utah, Idaho, Montana, and Kansas abolished the
insanity defense, but Utah, Idaho and Montana allow a guilty but insane verdict.
There have been legal systems to protect those who do behave abnormally from themselves
and society. Each state has civil commitment laws that can hospitalize those that are considered to be
mentally ill; it can even be done involuntarily but only if there is evidence that they may be harmful to
others or themselves. So those who do show signs of abnormal behavior, but are not a threat can not be
forced to be hospitalized. These Civil Commitment laws in the United States date back to the late 19th
century at this time most people with severe illness were cared for by family the community, or they
were left by themselves. A trend began where many people were admitted into hospitals for reasons
unrelated to mental illness. In some instances women were admitted into psychiatric hospitals by their
husband just because of differing personalities or political views, and the husband thought that she was
dangerous spiritually to children and the community. (Barlow, Durand 2002). Although some may not
think that involuntary hospitalization is taking away a person’s freedom rights, I believe it is completely
necessary to hospitalize them if they are a threat to others or themselves. But those who should and
should not be hospitalized should be considered carefully. I think that people, who are thrown into a
hospital because they show subtle signs of insanity, could become even more insane in a hospital. If they
think they are sick it could push them to become even worse.
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One major concern in this country is the death penalty and mental illness. The death penalty is
an intirely other ethical issue on its own, but should those with a serious illness be sent to death? Dating
back to the medieval period excluding the mentally ill from execution has a history in the AngloAmerican law. This take on the matter carried its way into the nineteenth-century America where it is
prohibited to execute those that are mentally incompetent. (Miller 1993) According to formal rules,
those with a mental disorder should not be executed, instead they should serve long terms, or life in
prison. “In every state with a death penalty statute, execution of the insane is forbidden by statute or
case law,” (Ewing, pg. 177). The Ford vs. Wainwright in 1986 states that those who are mentally ill
cannot be executed and it is unconstitutional. If the convicted criminal cannot comprehend why they
are being punished, then they cannot be given the death penalty (Arrigo, 2002). On the other side
though if they restore their mental capacity and see what they did was wrong they can be eligible for
execution.
Some people become mentally ill after the crime that they committed and become insane
waiting for their death sentence. Because of this psychologists and psychiatrists have two roles that they
must take with this capital sentencing process. First, they must see if the criminal is “sane” to go through
with the execution. Second, if a criminal becomes insane before an execution, they must help restore
his or her insanity so that they can carry on with the execution. Basically psychologists and psychiatrists
are brought in to help decide which inmates are insane and decide which are not fit for execution. They
also treat the insane; by helping them become “sane” and make them suitable for execution (Miller &
Radelet, 1993).
When it comes to the death penalty for those that are mentally ill, I think it really depends on
what kind of crime they committed and how bad their mental state was when they committed the
crime. If they were obviously in a psychotic state and really have no idea what they did instead of the
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death penalty they need to be in a hospital receiving treatment. But even if they were mentally unstable
and knew exactly what they were doing and that it was wrong I wouldn’t be against the death penalty.
The problem is that how do we determine how severe a person’s mental state is currently and how
severe it was at the time of the crime? One way is for psychologist and psychiatrist to do intense
watching and interviewing and see how they behave to determine if they know what they did was
against the law. There are also different types of tests to determine the mental state of the defendant at
the time of the incident if he or she uses the insanity defense.
Faking It
Ever since the insanity defense in the mid-19th century people have been faking mental illness
to avoid jail or prison time or in some cases even the death penalty. After a crime is committed the
criminal will act crazy and mimic symptoms of those who are mentally ill before their trial. Some do very
a good job at faking it where others are too dramatic or are not consistent with acting mentally ill. At
times some defendants will yell throughout their trial or will say irrelevant things to make it seem like
they have an illness. Some will act up when an officer or psychiatrist is watching them, but get along just
fine with their cell-mates. To know who really is insane or not they are put through a series of tests and
watch how they act with others. They also look to see if they have any past mental illness and see if they
were ever treated by a physician or not.
The Failure of Deinstitutionalization
When hospitals in the 1950s became overcrowded deinstitutionalization began, where the
mentally ill were removed from psychiatric hospitals and sent to local health centers. When it first came
out it was “one of the most well-meaning but poorly planned social changes ever carried out in the
United States” (Torrey, 2010. p. 2). People were treated with medication, but they did not understand
that many of the sickest patients were not able to make decisions on their own when it came to
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medication. Deinstitutionalization achieved its goal by reducing the use of state hospitals, but it never
really provided sufficient or appropriate treatment to those who suffered a mental illness (Lurigio,
2011).
A schizophrenic man named Andrew Goldstein ran into this problem where he stopped taking
his medication. One morning he waited anxiously for the next subway at the Twenty-third Street station
in Manhattan. Standing beside him was a young woman, Kendra Webdale. As the subway car came into
the station, Goldsteain suddenly shoved Webdale onto the tracks, killing her instantly. Goldstein waited
at the station as the police came and he was booked that night for murder. The scary thing was that
many psychiatrists, therapists, and social workers knew that he had these mental issues and that he was
dangerous. Two years before he killed Webdale he attacked at least thirteen other people, who were
hospitalized because of his chronic schizophrenia. He had even attacked two psychiatrists, a nurse, a
social worker, and a therapy aide in two years’ time. Each time he was hospitalized he was treated with
medication and then discharged. At times Goldstein would even walk into the emergency room by
himself complaining of voices that he was hearing. Two weeks before his attack on Webdale his
psychiatrist described him as being disorganized, and very delusional. The hospital discharged him with
a week’s supply of medicine and a form telling him to report to a counseling center. After his killing of
Webdale his defense at his trial was insanity which ended in a hung jury. At his second trial he was
convicted of second degree murder, rejecting his insanity claim. Then the Court of Appeals ordered a
new trial because of hearing there was evidence used by the prosecution’s psychiatrist in testifying at
trial. But instead of a new trial Goldsteain pled guilty to manslaughter, which got him twenty-three years
in prison with five years of post release supervision.
The thing I don’t understand is why Goldstein kept getting discharged when the hospital knew
that he was violent and had a seriousness mental illness. Just because he was told to take his
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medication, does not mean that he will follow through. This seems to be the problem in a lot of cases,
where people are given medication and sent along their way with not much follow up. Problems begin
to rise again in the patient when the medication does not work or in this case Goldsteain stopped taking
his medication. The failed attempt of deinstitutionalizations doesn’t mean that the mentally ill should
be left in jails or prisons, but should be given proper help in a hospital.
From this situation in 1999 New York passed the Kendra Law, which gives judges the authority
to require people who meet certain criteria to undergo psychiatric treatment (Perlin, 2003). There has
been question though if it is right to hold a person against their will in a mental facility even if they never
committed an offense. They might have not done anything harmful, but if they don’t receive treatment
they could do something. The problem with forcing a mentally ill person to be locked up in a mental
hospital can run into violating a person’s constitutional rights. I think if a person is a potential threat to
others and themselves they are not stable to make up their own decisions and should be hospitalized.
Conclusion
There are many reasons why those with mental illness should not be kept in jail or prison, but
rather be in a hospital getting help. First off staff members in jails are not psychiatric caretakers and are
not meant to care for those who are mentally ill. There is also a big difference in cost; it is more
expensive to keep mentally ill inmates then non-mentally ill inmate for many reasons. In Texas it costs
an average prisoner the state about $22,000 a year, but for a prisoner with a mental illness it can range
from $30,000-$50,000 a year. This cost comes from increased staff needs, psychiatric examinations, and
the number of lawsuits. Other reasons why the mentally ill should not be in jails or prisons include; they
usually stay longer, they may commit suicide, and they are sometimes abused. It is also less expensive to
place those with illnesses in hospitals than keeping them in jail or prison. Also, if patients receive needed
treatment and stay on it, it keeps them out of jail. Those who are in jail and receive no treatment and
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are prematurely released, chances are they are going to do something again to land themselves back
behind bars (Torrey, et el. 2010).
Those that do commit a crime are clearly unstable even when they do know what they are doing
is wrong have some type of mental problem, and these people need to be protected from society. With
those that have absolutely have no idea what they did wrong still need to be treated and/or prosecuted
if they did know what they did was wrong. I do not think they should get the death penalty, but I think
they should serve the same amount of time that would be sentenced but instead in a hospital
institution, or until they are clearly stable and/or cured. If they are just released out again into society,
they could commit another crime because they still don’t really know what they got in trouble for in the
first place. Mentally ill people should only be released from the authorities if they absolutely know what
they did was wrong, and that they are taking medication to keep their illness under control.
.