Noncompliant Insanity: Does It Fit with Insanity?

George Maliha, Note, Noncompliant Insanity: Does It Fit Within Insanity?, 41 J.L. & Pub. Pol’y 647 (2018).

Abstract: In 1973, Herb Mullin was convicted of murdering thirteen people in Santa Cruz County, California. Before that fateful moment, Mullin had drifted between involuntary commitment, clinical improvement, noncompliance with medications, and release. His vacillation between treatment compliance and noncompliance is sadly typical. Mullin–as far as we can tell-never realized that he was ill and often refused treatment. One author described Mullin as “refus[ing] to take medication because prophets of God did not need it. Even today he continues to refuse [medication], convinced nothing is wrong with him. He even wonders whether it was the [medication] he took during his initial hospitalization that caused his homicidal behavior.” Indeed, around half of people suffering from schizophrenia do not realize that they are suffering from an illness and accordingly resist treatment.

The question is what to do about that other half if they commit a crime–that is, those who realize that they have an illness yet still refuse treatment. A classic problem in nearly every introductory criminal law course is what to do with an epileptic defendant who fails to take his medication or a defendant who consumes a substance that predisposes him to commit a crime. The case of a schizophrenic defendant is slightly different. On the one hand, when defendants have insight into their disease and “voluntarily” choose not to take medication, allowing them to plead the insanity defense seems counterintuitive. Indeed, “there is no explicit fault category in the law that we could call something like ‘self-induced insanity’ or ‘voluntary insanity.”’ On the other hand, that same defendant is suffering from a psychosis at the time of the crime. In essence, the question is how far back judicial inquiry should extend. Complicating this analysis is a growing body of research that suggests that psychiatric disease can affect many cognitive functions–even those not associated with delusions or psychoses.

This Note seeks to explore the question of insanity caused by an omission, namely failure to take medication. Part I will briefly describe the problem of noncompliance and lack of insight in psychiatric illness, focusing on schizophrenia. Part II will look at the limited judicial interaction with this problem, starting with the recent case of Commonwealth v. Shin. Although there are few cases that attempt to grapple with the problem head-on, the rising awareness of mental illness and its potential effects on blameworthiness may soon change that. In any event, the issue lies under the surface in many cases. Part III will consider how far back the inquiry into insanity should extend. This Part will conclude that the mental processes surrounding noncompliance require further elucidation. Part IV, however, will try to solve–or at least re-channel–this empirical question by exploring potential analogies from other areas of criminal law. A conclusion will follow that argues that courts should maintain the status quo for now–and confine the insanity inquiry to the events directly surrounding the  crime. But, as the neuroscience around treatment compliance develops, courts may need to reexamine their approach.

“Free Will, Neuroscience, and Choice: Towards a Decisional Capacity Model for Insanity Defense Evaluations” by Giovana Parmigiani, Gabrielle Mandarelli, Gerben Meynen, Lorenzo Tarsitani, Massimo Biondi, and Stefano Ferracuti, Rivista di Psichiatria (2017)

Abstract: Free will has often been considered central to criminal responsibility. Yet, the concept of free will is also difficult to define and operationalize, and, moreover, it is intensely debated. In particular, the very existence of free will has been denied based on recent neuroscience findings. This debate has significant implications on those fields in which the link between free will and behaviour is the main focus of interest, such as forensic psychiatry. In fact, a tension is often experienced between the centrality of the notion of free will on the one hand, and its controversial status on the other. This tension needs to be addressed, especially in forensic psychiatry, since it is relevant for actual assessments of legal insanity. In the present paper we will try to operationalize “free will” using a four partite decision-making capacity model, which can be used in forensic assessment of insanity. We will describe its advantages and application to guide mental insanity assessments. Whereas free will is often considered problematic from a neuroscience perspective, this model, we argue, is compatible with neuroscience; moreover, evaluations using this model can also be informed and strengthened by neuroscientific findings, for example regarding inhibitory control. Read the full article.

Mental Insanity Assessment of Pedophilia: The Importance of the Trans-Disciplinary Approach. Reflections on Two Cases

Cristina Scarpazza, Ambrogio Pennati, & Giuseppe Sartori, Mental Insanity Assessment of Pedophilia: The Importance of the Trans-Disciplinary Approach. Reflections on Two Cases, 12 Neurosci. 1 (2018).

Abstract: A 60 plus-year-old male was charged with pedophilia for forcing a child to touch him inappropriately near a primary school fence. In another case, a 70 plus-year-old male was charged with pedophilia for intimately touching a boy in a cinema. What led them to manifest this socially-inappropriate and legally-relevant behavior? Is there an explanation for the sexually-related behavioral changes emerging late in life of these two men? Indeed, a common point exists between the two men: both were found to suffer from highly-disabling neurological conditions, known to have a potential effect on social behavior. Specifically, a large right frontoparietal meningioma was found to have important influence on the first man’s cognition and control inhibition, whereas frontotemporal dementia prevented the second man from understanding the moral disvalue of his sexually-inappropriate behavior and controlling his sexual impulses. In the current presentation, particular emphasis is placed on the logical reasoning supporting the conclusions that both the pedophiles should be considered not guilty by reason of insanity. Furthermore, experimental methods have been used to explore both cases, which rely on the existence of cognitive models for the phenomena under study, the integration of insights offered by different disciplines and the application of a variety of tools and approaches that follow the “convergence of evidence” principle, which could be safely used in court to support a mental insanity claim. Here, we describe how the use of the experimental method could become useful to reduce the uncertainty in mental insanity assessments. The use of a transdisciplinary, scientifically-grounded approach can help to change the way legal phenomena are interpreted. For instance, when assessing mental insanity, consultants should not only investigate the eventual existence of a diagnosis, but should assess the cognitive/affective abilities that are necessary to understand our own behavior and emotions as well as those of others. The criteria for responsibility should be symptoms-based and not diagnosis-based. Since pedophilia is among the most hideous behaviors condemned by society, a more comprehensive and transdisciplinary approach is recommended in court.