Vol. 9 No. 7 (July 1999) pp. 328-331.
Criminal Justice and the Mentally Disordered by Jill Peay (ed.). Brookfield, VT: Ashgate Publishing Company, 1998. 556 pp. ISBN 1 85521 962 X.
Reviewed by Douglas Goldschmidt, CSW, psychotherapist in private practice in New York City. Email: dgoldsc974@aol.com
Jill Peay has compiled a wide ranging series of essays addressing how mental illness is treated within the criminal justice system. The collection covers research on how important mental illness is as a cause of violent crime, on the theories of how the mentally ill should be dealt with as opposed to criminals lacking such illness, the role of the psychiatrist in the process of diagnosing and treating those in the prison system, and on the morality of "treating" the intractably mentally ill. While the collection focuses largely on these issues in the UK, readers will find much of help in understanding the US scene, particularly in the area of prevalence of mental illness in jails, how mental illness should be understood in terms of sentencing, and the general paucity of information in the end in the whole field.
Michel Foucault’s essay leads the way by discussing the social construction of the notion of the criminal as opposed to the crime, and the institutionalization of social power by psychiatrists as the need to understand "why" a criminal acted in such a way. While there is much to debate in Foucault’s work, his ability to establish the social foundations of institutions, particularly in the way social groups structure their power within particular frameworks, is here very helpful.
The social construction of criminal justice is suggested by the fact that the essays in the collection deal with crimes of interpersonal violence – murder, assault, rape, and the like. They do not address distinctions between violent crime, which tends to be committed by and on the poor, and "white collar" crime, which is visited by the wealthier on just about anybody. As a matter of law, white collar crime, which can exact a very high toll in deaths, injuries and theft, is generally (except in truly egregious cases) treated in civil courts where mental illness is not an issue.
The overlaps between crime and mental illness are also ambiguous and shifting. Many states still criminalize homosexuality as well as a broad range of sexual paraphilias including pederasty. Up until 1973 this view of homosexuality as socially dangerous was supported by the psychiatric profession which defined homosexuality as a mental illness. After 1973 however, the DIAGNOSTIC AND STATISTICAL MANUAL OF MENTAL DISORDERS (DSM - American Psychiatric Association 1994), the standard diagnostic manual used by psychiatrists, psychologists and social workers, removed homosexuality as a pathology per se, but continued to treat many sexual paraphilias as mental illnesses. The changes in social attitudes changes both what is a crime and what is a disease. And at least in the case of sexuality, they should make psychiatrists rather cautious in their labeling of patients.
It is clear that the growing sophistication of the DSM as well the explosion of diagnostic tests now permit us to get more precise diagnoses than were possible in the past. And, not surprisingly, most of the authors believe that the mentally disordered make up a higher incidence of criminal offenders (at least those in prison) than is true of the general population.
However, John Monahan’s critical essay "Mental Disorder and Violent Behavior: Perceptions and Evidence" lays out the case that research does not support a presumption that mental illness leads to crime. He notes that mental illness may be a factor in crime, but far less so than gender, social class, and other social variables. That the mentally ill are over-represented in prison may result from a number of factors including the greater likelihood that their illness makes them easier to be caught and that the negative approbation they receive in the criminal justice system due to their appearance or conduct may lead to a higher conviction rate.
The fact that violence is so concentrated among the poor is not explained by the poor having a monopoly on schizophrenia, depression, bipolar, and other disorders. All classes in society suffer from these disorders, particularly those which appear to be genetic (schizophrenia, possibly depression). The difference of course is that the middle and upper classes have more resources at their disposal for treating mental difficulties and, more importantly, are taught more ways of sublimating their problems through socially acceptable means. Indeed, a serious narcissistic personality disorder may lead to savage behavior by one person, or valuable behavior in the head of a corporation. Where one stands affects one's understanding of the problem.
However, one may take issue with Monahan’s views about the importance of mental illness as a causative factor in crime in that he separates mental illness from chemical addictions. This is a fairly controversial view. The DSM-IV clearly includes chemical dependencies as diagnosable illnesses. Indeed, chemical dependencies are often used to mask more serious mental illnesses through self-medication. In my experiences working with addicts I often found that they harbored serious mental difficulties beneath the addictions.
Once we get past definition and causal issues, we are left with the disturbing question of what to do about the mentally ill who enter the courts. In terms of punishment, there is a variety of moral issues about whether the mentally ill should be treated differently from other prisoners, taking into account their diminished ability to control their behavior. Peay presents two quite opposing views on the role mental illness should play in the criminal justice system. Aubrey Lewis makes a strong case that mental illness should not be a consideration in pursuing justice. To do so, he argues, is to put the prisoner outside of a justice with a punishment of no clear end. David Wexler differs and argues for a system of "therapeutic jurisprudence" where mental illness could be considered as a factor in pursuing criminal justice.
One of the problems in having the criminal justice system acting as a psychiatric services provider is discussed by Bohdan Solomka . Solomka quotes from a British lawsuit in this area (R V CLARKE (1975)) where the justice wrote that
"Her Majesty’s Courts are not dustbins into which the social services can sweep difficult members of the public. Still less should Her Majesty’s judges use their sentencing power to dispose of those who are socially inconvenient." (p 413)
This of course points to a critical problem in coordinating criminal justice with social services -- violent or antisocial behavior may be largely prevented through adequate community mental health centers. Such centers provide patient oversight and counseling to assure that clients take their medications and pursue addictions treatment where necessary. They can also see to appropriate housing and employment for the mentally ill. The importance of community mental health facilities to criminal justice is unfortunately not discussed in any detail in the book.
The dramatic growth of potent psychotropic drugs, particularly for treating schizophrenia, paranoia, and bipolar disorders, poses serious issues for criminal justice. Their importance can be seen in the book’s last section, which deals specifically with determining whether prisoners with mental illness are dangerous. The answer can have important possibilities for their release.
For many people, taking psychotropic drugs may alter the most pathological aspects of their behavior – hallucinations diminish or disappear, mania stabilizes at a lower level, and so on. I think here of a married couple I know who have been married for many years, with periods of instability whenever the husband would stop taking lithium. He would then become manic with symptoms manifesting as physical and emotional abuse of his wife. The result would be her leaving him and his subsequent tearful acquiescence to the drug regime. Another period of peace would ensue. The problem is that many clients stop taking their medications once they "feel good." This is particularly true for schizophrenics where the drugs have very uncomfortable side effects.
This has unsettling implications for criminal justice. Should the criminal justice system be used to protect society from future crimes? Should it do this by requiring prisoners with particular pathologies to undergo drug regimens, community reporting, or quarantine to prevent future crimes? This issue is potent in the US where states stampeded earlier in the decade to pass sexual offender bills requiring that, even after serving one’s term, one still had to meet obligations and social stigma other criminals do not. Some states have started to offer "chemical castration" to repeat pederasts as a condition of their parole.
David Wood believes that this is not a problem: quarantine, for example, is not a punishment any more than quarantine for TB is a punishment. However, the use of physical disease is not compelling here – we know that people with certain types of TB will spread it if they are not treated. These people are then quarantined if they fail to complete the necessary medical protocol. Mental illness is still a rather vague field. We generally cannot predict a person’s future behavior based on a diagnosis (there are some exceptions here, but they are extreme cases).
The problem many of us in the field face is that prisons are increasingly seen as the solution to problems best dealt with in other environments. The desire to punish and shield society for fixed periods of time does not resolve the issue of what happens to prisoners when they are released.
Finally, the collection includes an interesting set of essays about the role of the forensic psychiatrist in criminal justice practice. This is an extremely awkward area. It is easy for a diagnostic interview to move over into therapy. in where there are mutual obligations of trust. The forensic psychiatrist in this situation is not there to treat but to diagnose. What happens when there is a positive transference leading to the prisoner providing confidence which would ordinarily be treated as confidential?
More disturbing for me however, is my own experience with institutional psychiatrists (not in the prison system). Given the demands on their time, they can rarely undertake the kind of intensive interviewing necessary to make a diagnosis. All of the social factors which would affect behavior simply take too long to ferret out. For example, I had a client who appeared to have an antisocial personality disorder. However, after a number of sessions it became clear that her problem was not a personality disorder, but the cumulative effect of multiple traumas including child abuse, being raped in front of her child, shooting her husband in self-defense, and so on. The antisocial aspects of her behavior related to a profound depression which was far more treatable than a personality disorder. Would an overburdened prison psychiatrist have caught this? And, with misdiagnosis, what happens to the client?
In all, this is a very interesting and disturbing book dealing with a part of our social institutions which we would rather know little about.
Reference
American Psychiatric Association. 1994. The DIAGNOSTIC AND STATISTICAL MANUAL OF MENTAL DISORDERS. 4th revised edition.