Law, Civil Commitment, and the Courts
The Court's Insanity
The Insane of the courts are not necessarily the insane of the Diagnostic and Statistical Manual. "Insanity" is a legal category all its own, similar, but not identical to, the concept of mental illness. The relationship between law and madness has largely been thought as one of exclusion. If one is mad, they cannot be legally responsible and ought instead be subject to some other form of regulation or treatment. This relationship goes both ways for the legally responsible citizen is in turn defined by being an adult of sound mind. The origin of this division lies in the European courts' use of the “wild beast” test to determine legal responsibility. It was believed that "the raving lunatics" shared a mental constitution with that of the low beast compelled by passion to lash out and express itself in bursts of incoherent speech. What is at stake in a case involving insanity is not whether or not in fact a crime was committed by the defendant, but rather their knowledge of its wrongness and their capacity for grasping its import. Though the tests used for the insanity defense have become more precise and sensitive, the line between the the inculpable insane and the responsible criminal stands at the limit of legal thought and possibility. Even though law and madness ought to exclude one another, a long tradition has developed to deal with the problem of madness in the courts.
The Psycho's Allure
Public Interest in forensic psychiatry is primarily tied to a handful of cases involving the violence of a figure known as a "psychopath." The figure of the psychopath fascinates us because it is tasked with embodying a space between the pity and hate or between the treatment and retribution that separates psychiatry from the law, which is reflected in the division between the “mad” and the “bad.” Associated today with violent men, the word was first used in a court setting to defend men against women making rape charges by arguing that the latter were "sexual psychopaths" compelled to lie. Psychopaths have gone by many names (partially insane, the morally insane), but have always been made to embody the one trait that binds the insane in the eyes of the law: "compulsion." Compulsion is often thought to be acting without the ability to stop, but in some contexts can also include acting in a "delusional" framework. For example, if one chooses to steal bread because a voice advised them to, they didn't really choose to do so. Despite their compulsions (i.e. lack of choice), "psychopaths" are routinely imprisoned in forensic units of prisons and committed after completing their sentences. The psychopath is the first figure to erode the existential boundary separating law and madness. But without this line securing the limits of the law, how are its acts to be thought and justified? Who is mad and who is bad?
What is presented as the opposition between medicine and the law has failed to produce a binary categorization of deviancy, but is nevertheless the productive site of conflicting notions of its eradication and the defense of society. The introduction of psychiatrists as forensic experts in the court has not yet fulfilled its promise to soften the violence of criminal law. At worst, it spreads it further and confuses the matter; in most other cases, it is a curious diversion and source of mysticism for the judge, who speaks a wholly different language, and takes psychiatric knowledge completely at face value. In civil commitment proceedings, the disabled and mentally ill are, when they are not either “dangerous” or “gravely disabled,” entitled to the least restrictive environments and permitted to live outside of institutions. “Danger” may seem to be a high bar at first glance, but how is dangerousness determined, by whom, and under what circumstances? Being potentially dangerous in the future is neither a psychiatric symptom nor a criminal deed; nevertheless, it acts as a foundation for indefinite psychiatric incarceration. The problematic nature of the term is clearer when it is noted that, when it became the standard, Black men were committed at much higher rates. When such decisions are challenged, the court relies on the expertise of the psychiatrist, the very figure whose determination is under question. Groups like the Treatment Advocacy Center are currently lobbying for the lower standard of "need for treatment" and pushing for the legal recognition of "anosognosia," (lack of awareness of condition), which would remove the small remaining gap between psychiatric determination and court decision. Such a court could no longer be represented as the battleground of two antagonistic parties, but as a well-oiled machine. The law and psychiatry are inextricably bound together, both practically and theoretically, but their relation is essentially unstable and asymmetrical.
Articles, sites, guides
o Bazelon Center. Amicus Briefs.
o Disability Justice. Basic Legal Rights.
o Andrew Scull. "The Theory and Practice of Civil Commitment."
o Harry Oosterhuis and Arlie Loughnan. "Madness and Crime: Historical Perspectives on Forensic Psychiatry."
o Elizabeth Lundbeck. "Narrating Nymphomania between Psychiatry and the Law"
o Alexander D. Brooks. "Notes on Defining the 'Dangerousness' of the Mentally III."
o Sasha Durakov Warren. "Beware the Influencing Machines! Daniel Paul Schreber's Mad History of Psychiatry and Law."
o Law's Madness. Edited by Austin Sarat, Lawrence Douglas and Martha Umphrey.
o Danial Paul Schreber. Memoirs of My Nervous Illness.
o Bruce A. Arrigo. Punishing The Mentally Ill: A Critical Analysis Of Law And Psychiatry.
o Peter Goodrich. Schreber's Law: Jurisprudence and Judgment in Transition.
o Warren, Carol A.B. Court of Last Resort: Mental Illness and the Law