Mental Disorder and Criminal Law

from mistakes and learn from experience, to engage in logical reasoning, to control impulses, and to understand the reactions of others . . . . Their deficiencies do not warrant an exemption from criminal sanctions, but they do diminish their personal culpability . . . . With respect to retribution—the interest in seeing that the offender gets his “just deserts”—the severity of the appropriate punishment necessarily depends on the culpability of the offender. The Federal Sentencing Guidelines also explicitly adopt this principle by providing for a reduced sentence if a “significantly reduced mental capacity . . . contributed substantially to the commission of the offense.” Although this provision applies only to non-violent offenders, the limitation is based on considerations of public safety, rather than on the belief that violent offenders never suffer from reduced mental capacity or that such incapacity does not affect the culpability of violent offenders. Even the current legislative trend in many jurisdictions towards determinate sentencing does not undermine the general acceptance of this view because the trend is motivated primarily by concerns with disparate sentencing, rather than by the belief that impaired rationality is unrelated to diminished responsibility. I have long argued that the capacity for rationality is the fundamental criterion for responsibility. Young children and some severely disordered defendants are excused not because they are young or ill, but because youth 173 MODEL PENAL CODE § 210.3(1)(b) (Proposed Official Draft 1962). The English doctrine of “diminished responsibility,” which is quite expansive, is likewise limited to reducing murder to manslaughter. See Coroners and Justice Act, 2009, c. 25, § 52 (Eng.). See generally GEORGE MOUSOURAKIS, CRIMINAL RESPONSIBILITY AND PARTIAL EXCUSES (1998); PARTIAL EXCUSES TO MURDER (Stanley Meng Heong Yeo ed., 1991). 174 536 U.S. 304 (2002). 175 Id. at 318–19. Note that these are largely rationality considerations 176 U.S. SENTENCING GUIDELINES MANUAL § 5K2.13 (2004). 2011] MENTAL DISORDER AND CRIMINAL LAW 937 and disorder, respectively, are inconsistent with or impair the capacity for full rationality. Sentencing reduction based on mental abnormality is premised upon the same basis. Provocation/passion and extreme mental or emotional disturbance as partially excusing mitigating doctrines are best explained by the theory that these conditions non-culpably reduce the capacity for rationality. Finally, the claims for excuses based on newly discovered, alleged syndromes are best justified as irrationality claims. How much rational capacity must be impaired under what conditions to warrant excuse or mitigation is, of course, a moral, political, and legal question. Present law is unfair because it does not sufficiently permit mitigating claims. Criminal defendants display an enormously wide range of rational and control capacities. Further, there is a substantial range of coercive threats that do not amount to the full excuse of duress in cases in which the defendant is legally responsible. In some cases, there may be quite substantial impairments or very hard choices, but such defendants simply have no doctrinal purchase to argue for mitigation. If criminal punishment should be proportionate to desert, blanket exclusion of doctrinal mitigating claims and treatment of mitigation solely as a matter of sentencing discretion are not fair. To understand the unjustifiable limitations of current doctrine, consider the impaired rationality doctrines that reduce a murder to manslaughter: heat of passion upon legally adequate provocation, and extreme mental or emotional disturbance for which there is reasonable explanation of excuse. Why should these doctrines be limited to homicide? For example, suppose a defendant acting in the heat of passion intentionally burns the provoker’s property on the spur of the moment, rather than killing the provoker. Or suppose that an agent suffering from a non-culpable state of substantially diminished rationality commits arson. Some arsonists and some criminals generally might act with non-culpable, substantially impaired rationality that does not meet the standards for a full 177 The Supreme Court confirms this in the case of juveniles. See Roper v. Simmons, 543 U.S. 551 (2005) (declaring unconstitutional application of capital punishment to juveniles who committed capital murder at the age of sixteen or seventeen). The Court listed those characteristics of adolescents, such as impulsivity, ill-considered action, and susceptibility to peer pressure, as diminishing juveniles’ culpability and cited Atkins for the proposition that lesser culpability should lead to lesser punishment, at least in the capital punishment context. Id. at 569–71. The factors used in both Atkins and Roper to justify diminished responsibility are best understood, I believe, as rationality considerations. In the case of juveniles, lesser rationality results from developmental immaturity rather than from an abnormality. 178 Once again, the English “diminished responsibility” doctrine operates similarly and is similarly limited. See supra note 171. 938 STEPHEN J. MORSE [Vol. 101 legal excuse. Compromised rationality and its effect on culpability are not limited to homicide. Moreover, such a generic mitigating doctrine would be a more just and practical response than either legal insanity or subjectivizing justification for claims of reduced responsibility based on allegedly newly discovered psychological syndromes. Fairness and proportionality require that doctrinal mitigation should be available in all cases in which culpability is substantially reduced. I therefore propose the adoption of a new verdict, “guilty but partially responsible” (GPR), that would apply to all crimes and that would be adjudicated at trial (or would be a new variable in plea bargaining). This would be a true mitigating affirmative defense. I am not wedded to any particular set of criteria for this doctrine. Any formula, such as the Model Penal Code’s “extreme mental or emotional disturbance,” that captures the essence would be acceptable. I would require that the impairment would have to be substantial, as does the MPC. The consequence of this verdict would be a legislatively mandated reduction in punishment for the crime. I am not committed to any particular reduction scheme, but considerations of public safety would have to play a large role in determining how much reduction would be possible for various crimes. This proposal has been called a “punishment discount,” and so it is. But substantially impaired or coerced defendants deserve to pay a lesser price. There are various practical problems that adopting this verdict might create, but I argued in the original paper and still believe that these can be solved. It is certainly worth trying the experiment in the interest of justice. V. POST-TRIAL ISSUES This Part of the Article surveys a host of post-trial issues, including competence to be sentenced, the right of the government to involuntarily medicate prisoners with psychotropic medications or to transfer them to a hospital, sentencing, and competence to be executed, including forcible medication for the purpose of restoring competence to be executed. I suggest, inter alia, that convicted offenders who are incompetent to be sentenced may be forcibly medicated to restore competence, that the potential for mitigation of sentence based on diminished responsibility should be enhanced and the potential for aggravation based on dangerousness should be limited, and that prisoners who are incompetent to be executed may be forcibly medicated to restore competence under strictly limited conditions. 179 MODEL PENAL CODE § 210.3(1)(b) (Proposed Official Draft1962). 2011] MENTAL DISORDER AND CRIMINAL LAW 939 A. COMPETENCE TO BE SENTENCED This issue does not arise with great frequency because any offender about to be sentenced was competent to plead guilty or to stand trial, but an offender’s mental condition may have deteriorated between plea or trial and sentencing or there may be a specific problem about sentencing that is not inconsistent with plea or trial competence. Criteria vary, but the essential question is whether the defendant is capable of understanding what is happening to him and why, and is able to speak for himself and to assist counsel. The Supreme Court has not decided this issue nor established constitutional criteria, but I believe it is fair to say that the necessity of sentencing competence is assumed for some of the same reasons that support the bar on trying an incompetent defendant. It is inconsistent with both the offender’s dignity and autonomy and the dignity of the law to impose a punishment on an offender who does not understand what is happening. Perhaps more important, an incompetent offender cannot adequately participate in the sentencing process, which may make it more difficult for the defense to argue for mitigation, thus reducing the fairness of the sentencing process. The difficult question is whether the state may involuntarily medicate an offender incompetent to be sentenced for the purpose of restoring sentencing competence. Unlike the defendant incompetent to stand trial who is presumed innocent, the defendant incompetent to be sentenced has been convicted and is lawfully in custody (or is perhaps out on bail, but still under criminal justice restraint). The offender has a clear interest in being free of unwanted mind-altering medication, but the government’s interest in sentencing a convicted defendant is also strong. If the offender is a danger to himself or others in custody—whether in a jail or a hospital— Washington v. Harper permits his involuntary medication, and he may thereby also be restored to competence to be sentenced. Suppose, however, that there is no Harper justification? I would permit the state to medicate the offender as long as it was medically appropriate and less restrictive alternatives, such as psychosocial therapies, were unavailing. Retaining a psychotic, unsentenced convict in a hospital, which is more expensive than a prison, is an unjustified use of resources. If the defendant is on bail and is not dangerous, treatment could be 180 Lower courts have essentially employed the test for competence to be executed adopted by the Supreme Court in Ford v. Wainwright, 477 U.S. 399 (1986), which requires that the prisoner is able to understand what sentence is being imposed and why. Some lower courts and commentators have also imposed or suggested further requirements. PARRY, supra note 46, at 103–04. 181 Washington v. Harper, 494. U.S. 210, 225–27 (1990). 940 STEPHEN J. MORSE [Vol. 101 accomplished in the community on an outpatient basis. There is systemic value in reaching final resolution of questions a case presents. If the offender simply cannot be restored or there is otherwise reason to avoid involuntary medication, the court could impose a conditional sentence and retain the person in a hospital or perhaps in prison if the latter can manage the person. I assume that, as a practical matter, the sentence would be the maximum for the crime of conviction. If there had been a plea bargain and sentence was not imposed at the time the plea was made, then the sentence would be for the agreed term. If at any point the convict is restored to competence, either by agreeing to take medicine or by spontaneous recovery, the court can then impose a final sentence. If the defendant is never restored to sentencing competence, then he would be released at the end of the conditional sentence. I assume that in some cases ordinary civil commitment would not be available after the defendant was released because he did not present a danger to himself or others. If he did, then he probably would have been medicated according to Harper. If the jurisdiction has a parens patriae commitment standard, such as the need for care and treatment or the inability to care for basic needs, then civil commitment might apply. B. FORCIBLE MEDICATION AND TRANSFER TO HOSPITAL In Harper, the Supreme Court held that prisoners have a liberty interest in avoiding unwanted psychotropic medication, but the state’s interest in the safety of the prisoner and others would justify forcible psychotropic medication if it were medically appropriate and the prisoner would otherwise be a danger to himself or others as a result of mental disorder. I believe that the case is properly decided. Prisons are a particularly difficult environment and interests of institutional and personal safety are paramount. There are a few difficulties, however. Psychotropic medications can be used as instruments of pure social control, which is not justified. This could occur if the prisoner were dangerous and mentally disordered, but there was no relation between the two. Harper criteria should explicitly include a connection between the mental disorder and the potential for danger. The second problem is the nature of Harper hearings. 182 See JOHN PARRY, CIVIL MENTAL DISABILITY LAW, EVIDENCE AND TESTIMONY: A COMPREHENSIVE REFERENCE FOR LAWYERS, JUDGES, AND MENTAL DISABILITY PROFESSIONALS 478–79 (2010) (describing parens patriae criteria); see also CAL. WELF. & INST. CODE, § 5150 (authorizing commitment for people who are “gravely disabled” as a result of mental disorder) and § 5008(h)(1)(A) (defining grave disability as a “condition in which a person, as a result of a mental disorder, is unable to provide for his or her basic personal needs for food, clothing, or shelter”). 183 Harper, 494 U.S. at 225–29. 2011] MENTAL DISORDER AND CRIMINAL LAW 941 The Supreme Court approved Washington’s process, which permitted all the personnel involved, including the prisoner’s adviser, to be employed by the institution. This creates an inevitable conflict of interest. It is understandable that these hearings need not be fully adversarial with the full panoply of criminal justice procedural protections because this would be unduly burdensome for the state. The prisoner is facing the loss of an important liberty right, however, and some independent check on the institution should be provided. There are many ways this might be reasonably accomplished without undermining the efficiency of the process, such as providing counsel from a public defender’s office or a panel of community attorneys, or an independent advisor or mental health professional from another institution. If a prisoner’s mental disorder renders him unmanageable in the prison, Vitek v. Jones held that the prisoner can be transferred to a hospital after a hearing at which the prisoner has a right to be heard and the right to an advisor (although not a lawyer). The Court recognized that the prisoner has an interest in avoiding the stigmatization associated with mental hospitalization and the possibility of forcible treatment. This is a sensible decision that reasonably balances individual and governmental interests as long as the hearings provide the defendant with a genuine chance to contest transferal. It would be better if the prisoner were represented by adversarial counsel rather than by an appointed adviser who will typically be a prison employee and therefore subject to conflict of interest. Providing counsel would not be unduly burdensome in this context and it would provide greater fairness. Although Vitek does not compel the government to provide adversary counsel, it should do so in the interest of justice.