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Due Process is an exalted principle, but for people with severe mental illness, it most often fails to deliver moral justice.  The entire apparatus of due process is engineered to punish clinical insanity.  Insanity, as in NGRI, has become a radical notion…because the law has inauthentically defined it into obscurity.

Conventional wisdom asserts that the broken mental health system and mass reductions in hospital beds are reasons why our jails and prisons are filled by hundreds of thousands of people with serious mental illness – that correctional facilities have become de facto mental hospitals.  Duejusticeproject challenges these assertions.

The criminal justice system operates under the law and nothing forces its hand.  Even though a critical shortage in supported housing and a dysfunctional system of healthcare delivery is a tragically serious problem – and the states are fully accountable for their failures that deliver people into the hands of the criminal justice system, the criminal justice system is accountable for its own actions.  The pressing of charges, prosecution, conviction, and sentencing are the exclusive cause for the mass incarceration of people with severe mental illness and consciousness disorders.

Juries do their best to carefully consider evidence in cases involving defendants with SMI – they want to do the right thing.  Most judges take their responsibilities very seriously, carefully and judiciously considering the facts at hand, exercising prudence as they apply the law.  Judges and practitioners of the law do their best to be just,  operating on the basis of what they understand about SMI.   However, there is nothing in life that prepares human beings to understand these brain disorders intuitively – as we understand psychological disturbances (SMI is not psychological).  A medical doctor described psychosis as a ‘quantum leap’ apart from the mental disorders that most people can conceptualize.  Without direct exposure (in an immediate family member) and without cognitive depth perception, SMI can be beyond the grasp of most people.

It has become a commonplace among advocates and the media to call prisons and jails de facto mental institutions.  Jails and prisons are places where citizens go to be punished; they are not de facto hospitals.  Advocates who truly understand SMI should not even speak figuratively of penal institutions being “warehouses for the mentally ill” or de facto hospitals.

Profound incomprehension of consciousness disorders, of the medical condition of psychosis is the foundation of criminalization and the acute antagonism toward the insanity defense.  This antagonism, manifested by insidious encroachments by legislatures on the mentally ill defendant’s right to a fair trial.  These incremental impairments to due process are reflective of the spirit of bill of attainder:  The presumption of guilt toward this class of defendant presumed to be seeking refuge from punishment behind a spurious defense.

The moral quandary so often stated… ‘treatment or punishment’ is an exposition of the incomprehension of psychosis, of the lack of distinction between “mental health issues”, emotional disturbance, and severe mental illness.  This is a question of compassion and mercy over retribution.  This question is not conscious of the insanity defense at all.  The insanity defense is not about mercy, compassion, or absolution – all of which are concerned with guilt and how it should be dealt with by a civilized society.

The mantra of the mainstream advocacy community, with their rapt attention on stigma as the alpha and omega of all that is wrong in society where mental illness is concerned,  is “The mentally ill are more likely to be victims than perpetrators.”  This stock phrase is being articulated by everyone these days…in just about every article, media report, or commentary about the societal problems facing people with mental illness.  This assertion, the pernicious dissociation of SMI from its most grave symptomatic consequences, undergirds a complex web of systemic transgressions by federal and state government, the criminal justice system, and policy makers at large.

Aside from unjust conviction and punishment, victimization of people with a SMI diagnosis who are living in the “community”, homeless, alone, or with family who are ill-equipped to manage and protect them,  takes the form of being killed by law enforcement in extraordinary, shocking numbers.  That said, it is unfortunate that police officers in our communities are placed in the terrible position of having to act as the conduit between the failed “mental health system” and penal institutions.  Society should not place officers of the law in this position, where far too often their own lives are put at risk in these encounters in the community.  Advocates cry foul when the police shoot and kill people who are behaving dangerously but do everything in their power, with their misguided “advocacy” to promote the destructive policies that create these crises.

The mainstream advocacy community believes that it must dispel widespread beliefs about violence in the mentally.  This is a misguided approach. The mission of advocates should be to educate the populace about the nature of these very serious and confounding brain disorders, and to defend the smaller and vulnerable subgroup of the much larger population of people who are afflicted with severe mental illness. People who share a generic diagnosis of Schizophrenia, or Bipolar, for example, may have very different genetic, symptom-based risks for violence or self-harm.  There are neurological/neurocognitive reasons for these symptomatic behaviors.  A just and caring society would commit to protecting this vulnerable sub group from the risks associated with their illnesses.  Instead, activists have fought for them to “die with their rights on” (…psychiatrist Darold Treffert).

The vast majority of lay persons and legal practitioners are unable to conceptualize why acute states of psychosis can cause acts of harm and many fail to demonstrate any intellectual curiosity about it, leaning instead to their own intuitive understanding – where a disease like schizophrenia might be evaluated as nothing more than a criminogenic factor that has no exculpatory properties. This is the state of abstraction and dissociation that has rendered the insanity defense inoperative – as hundreds of thousands are condemned to incarceration while being maintained on antipsychotic medication….just criminals, with some mental illness on the side (Guilty But Mentally Ill).

It is without a doubt that the vast majority of inmates afflicted with schizophrenia and other severe neurocognitive disease states are being punished under an operating principle of guilty brain, a proposition that is not extant in our legal system. Vast numbers of individuals who are being punished while being maintained on antipsychotic medication had no capacity to conform their behaviors to the law due to neurocognitive dysregulation that is beyond the imagination and comprehension of those who arrested them, prepared them for prosecution, convicted them, and punished them. –and some of the unjustly convicted have been put to death.

The psychiatric field, particularly ‘forensic’ psychiatrists, bears some responsibility for vigorous advocacy against injustice:

These statements from The Journal of the American Academy of Psychiatry and the Law, “Forensic Psychiatry and Political Controversy”, may present as a dignified appeal to honor and decency among professionals in the practice of forensic psychiatry, but from DueJusticeProject and its advocacy partners – as a stern rebuke:

“As clinicians we should articulate a collective view about what treating the mentally disordered justly and appropriately in the legal system would mean, and we should challenge the law when it fails to achieve this.”

…And this passage from the same article (DueJusticeProject has commented on how the physicians in the Daniel M’Naghten case of 1843 were so surprisingly bold in their testimony on behalf of the defense):

“We might remind ourselves of how forthright our 19 century forebears were in criticizing the law when they thought it failed to achieve justice for the insane.”

The harsh reality is that in cases of violent acts, the NGRI verdict may leave horrific carnage unavenged – physical injury, death, and heart-rending emotional pain for the survivors of the victims.  This is a difficult reality for most human beings to process and accept.  “We can’t let them all go”…it has been retorted.   Well, yes we can “let them go”, all who are philosophically innocent.  “Letting them go” means rendering a morally just verdict, treatment, and placement in an appropriate non-punitive setting.  Such institutional settings do exist, but they are typically only transitional to inappropriate community settings – and government is to blame for this.

There is no retributive value in punishing someone who was psychotic when a crime was committed or who suffers from chronic severe mental illness.  It is shameful that our society does not currently have the institutional infrastructure required to support the moral adjudication of all who are philosophically innocent under the law.  -Said by a judge at the sentencing of a man afflicted with severe mental illness ‘I have to sentence you to prison because I have no other place to send you’.  We must come to terms with the potentially horrific consequences of untreated psychosis and establish a stipulation on the basis of what is known by medical science.  The turning of a blind eye toward the grave consequences of acute psychosis permits society to react to tragedies with rage instead of reconciling to the stipulation.  This gives license to prosecute and punish.

In the application of Due Justice, the law would not fail to protect society from future harm. It is wrong to punish and hold a human being captive in a penal institution, subject to perpetual punishment and extended sentences for neurocognitive incapacity to adhere to institutional rules, commands, and regimens. We must snap out of this state of affairs and cease offending the moral underpinnings of our own legal philosophies.

The insanity defense exists as perhaps one of the most noble and intellectually pristine principles under the law, yet ignorance and fallacies about severe mental illness and the powerful retributionist instincts of mankind have vilified it and caused it to be rarely used.

  “Knowledge is essential to understanding and understanding should precede judging”    …Justice Louis Brandeis