Guilty But Mentally Ill – A bizarre and unnecessary verdict

GBMI is a product of misunderstanding of serious mental illness, a rejection of insanity, and the unquenched thirst for vengeance.  The lesser charge against this verdict is that it is a mockery of the convicted person.  The most serious charge is that it is a grotesque violation of the moral and ethical principles of justice.  It is the verdict that most often operates like a de facto ban on insanity in the courtroom.  A handful of states decided that they weren’t going to mess around with de facto and full on banned the insanity defense altogether.  A law school professor said of one of these states ‘…you can have the unusual circumstance that someone who couldn’t even be convicted in another state could be executed’ in the no-insanity- defense state.  DueJusticeProject does not believe this to be an unusual circumstance at all.  Insanity has been politically banned in the courtroom, for all intents and purposes, despite the unfounded fears of the populace that it is too often used as an “excuse”.  There are hundreds of people who are insane by any legitimate definition who are on death row – in states where the insanity defense is still theoretically alive.

Why do we need the GBMI verdict?

Why don’t we have Guilty but Heart Diseased or Guilty but Thyroid Disordered?  If the mental illness had little to nothing to do with the crime…and in most cases, judges incorrectly decide that it does not, then why does the illness need to be incorporated into a verdict such that it might permit the convicted person to receive treatment before or while the sentence is served?

Does the convict afflicted with diabetes require a special verdict in order to receive treatment while incarcerated?  If a convicted person required an emergency treatment at the time of sentencing, would a special verdict be needed in order to get that treatment prior to admission to a prison facility?  Of course not.

It has been said that hard (or extreme) cases make bad law.  Prosecutorial forces and legislators, the thought leaders and ombudsmen of pitchfork mobs electorates, never miss an opportunity to exploit extreme cases or outcomes that anger them – this is how grave medical conditions that deprive people of capacity to conform behaviors to the law came to be politicized.

M’Naghten’s Rule itself came about in this way.  The first part of the rule, which requires juries and judges to look for evidence of knowing right from wrong should only be applied to people who are not deprived of critical mental faculties to the degree of impairment of a disease like Schizophrenia.  M’Naghten’s leads people to incorrectly extrapolate guilt from behaviors that they are not qualified to understand.  The ‘knowing right from wrong’ aspect of M’Naghten’s has led to the unjust conviction of many thousands of human beings.  Acute states of psychosis (of the order that causes incompetency to stand trial) have been likened to being wide awake with a sleeping brain, or an impaired consciousness where a person is stuck between sleep and wakefulness.   Forensic psychiatrists who are on the spectrum are no more qualified to give expert testimony than jurors are to judge psychotic behavioral symptoms, yet their fingerprints are on the unjust convictions of many thousands of people sentenced under GBMI.

In the case of the abominable GBMI verdict, a decision handed down by the Michigan supreme court in 1974 (People v. McQuillan) is commonly cited as the case that kicked off activism for an alternative to NG and NGRI.  The court held that it was unconstitutional to detain people who have been found NGRI indefinitely after they are no longer dangerous.  Two people who were released pursuant to this ruling went on to commit other crimes.

Pause:  Here is where the issue of the Olmstead Ruling transverses with criminal justice.  Federal and state governments shut down mental institutions (which were just as much housing as they were “beds”) en mass claiming dictates of Olmstead.  To this day they are escaping their responsibilities to fund supported residency (favoring supportive housing) under the banner of the ‘recovery model’ and purported dictates of Olmstead).  There is no difference in risk of engagement with criminal justice between people who are not appropriately housed, monitored, regulated, and supported with medication management in the community who have not been charged with crimes and those who have been adjudicated NGRI – all risk factors of this type being equal and genetic-based pathology being equal.  Both groups of people need the same type of supported, sometimes 24/7 monitoring and assistance with medication adherence.

So what is asserted here is that a person who has a known risk for dangerousness due to SMI should not have just been released without placement in appropriate supported residency and intensive case management in the first place.  The same place that they should have been before the precipitating crime is where they should have been after release from the state hospital, post NGRI.  Prosecutorial forces and legislators chose to assign blame where they wanted it to be or where their anger informed them that it was instead of where it should have been.

Prosecutors in the state were probably never comfortable with NGRI in the first place (because operators in the criminal justice system and legislators do not understand serious mental illness…they think they do, but they don’t), but at least prior to this ruling, they could put away the NGRI “patient” for as long a “sentence” in a state hospital, or even longer than they would have been in prison.  So now that they were deprived of this “sentencing” outcome, rebellion ensued as usual and GBMI propagated across the nation.

Excerpts from a letter responding to an op-ed in the decade following the Michigan case provides insight into the mindset that supports GBMI:

…So that there may be both condemnation of the accused and his commitment to the prison system…With two guilty verdicts thus available, the likelihood is increased that a jury will return a verdict of guilty rather than one of NGRI.  It improves the odds of a conviction, and of keeping the individual in the prison system….Juries, thinking that GBMI is a compromise or middle ground, are hoodwinked.  The verdict…could just as well be “guilty but cirrhosis”

“Guilty but cirrhosis”,  “Guilty but diabetic”,  “Guilty but heart diseased”.  Why on God’s green earth do we not have these other qualified guilty verdicts?  The reason that we do not is why the GBMI verdict is a mockery of the convicted person, among other violations of justice.  The person tagged with this verdict leaves the courtroom with a shoe print on his or her backside.

Prisons are full of people who receive treatment for all sorts of serious diseases.  What is different about SMI?  Exactly what do people think serious mental illness is?  It is clear that people believe that SMI is some kind of emotional or psychological disturbance for which a judge is qualified to decision on the need for treatment.

Serious mental illness is not psychological or a character flaw, or evil, it is neurological.  Consider the symptom complex for which a jury, prosecutor, and judge may be the arbiter of the need for treatment as sanctioned by this mockery of a verdict:

Psychosis – Neurological, not psychological separation from reality involving a complex of distressing and sometimes life-threatening consequences.  Psychosis can encompass the symptoms that follow.

Acute dysphoric states – Such as mania and “depression” (cross reference the About Psychosis page for commentary about the inappropriateness of the terms mood disorder and depression).  Acute dysphoric states of being, where being conscious is excruciating beyond imagination is what results in many suicides in jails and prisons (not the rationalized emotions of despair that people intuitively attach to suicide)

Disturbances of ipseity – Disturbance of I-Me-Myself, where the core self is unstable…causing frightening and disorienting anomalous sense of being…a diminished or intensified sense of embodiment of self.  This symptom is neurological, not psychological and it may explain why arrested persons engage in incriminating behaviors arising from disturbance of agency.  These behaviors are used as evidence of ‘knowing right from wrong’ – such as calling the police on ‘themselves’.  This symptom may also explain the subjective experience of thought insertion commonly reported by people with psychosis.  This description should not be confused with the sham “dissociative disorders” claimed by objectively anosognosic forensic psychiatrists selling their services to the prosecutorial apparatus. 

Anosognosia –  https://mentalillnesspolicy.org/medical/anosognosia-studies.html   – A symptom that some neuroscientists believe to be a failure of metacognition arising from dorsomedial frontal cortex deficits.  This condition prevents a person from knowing they are ill.  This symptom can present transiently or persistently as an absolute neurological blockade to awareness of illness, which means in the case of SMI, that the person does not recognize that their thoughts and behaviors are abnormal. (Which should be an indictment of the knowing right from wrong of the backlash M’Naghten’s Rule)

Command Hallucinations – Auditory hallucinations instructing a person to act in specific ways that can be harmless or life-threatening.  The commands can be directed at self or others.  Lay persons and operators in the criminal justice system show little to no understanding of this symptom that is connected with some of the most horrific acts of violence.  Many people try to make sense of this phenomenon intuitively.  For example, they imagine that a person hears what they believe to be the voice of God and they choose to obey the command because they fear God over man’s laws.  This is not what is happening.  A well person does not, first of all, hear what is normally the silent inner voice that acts as a device driver of the human mind and motor activities, and secondly, does not obey someone who orders them to jump off a bridge or kill someone else.  Researchers do not fully understand what causes compliance (at rates ranging from 40 -90 percent according to one resource).  It could be that there is not enough research being done from the perspective of the overlap with the paroxymal type violence associated with parasomnias or other disorders.   One research report found that the clinical staff of an inpatient forensic assessment unit overlooked the presence of command hallucinations in 47.8 per- cent of their research sample’ – which is appalling when considering the life and death consequences of criminal proceedings involving mentally ill defendants.

Autism – There is a complex overlapping relationship with this disorder and Schizophrenia.  There can also be comorbidity.

The outward manifestations of serious mental illness belie the severity of the disorders.  How can a jury, judge, and prosecutor be the arbiter of whether a medical disorder of this gravity and severity receives treatment as part of a sentence.  The barbarity of this construct cannot be stated strongly enough.

Guilty, full stop, would be good enough to achieve what prosecutors and judges really want, without the mocking and cynical tag of mentally ill.  Go ahead, let a person just be guilty and be theoretically ineligible for treatment of a serious neurological/neuropsychiatric medical condition.

And since bad law has not gone far enough…

Not Guilty By Reason Of Insanity – The verdict that exculpates the accused in mind and body.  A just and righteous human being would not seek to inflict punishment on another who was incapable of conforming his behavior to the law due to serious mental illness or mental disability.

Yet, this verdict afflicts the legal sensibilities of some prosecutors.  Some believe that the law needs to wrap around to cure the semantic offense of NGRI to the victim – even if exemption from culpability is not disputed.  Some have called for Guilty But Insane.   Said by a prosecutor, ‘The verdict does not sit well with victims’ families.  It seems to add insult to injury.  The family members and everyone else knows that this person committed the act.’

Interesting…what kind of mind thinks like this, unable to reconcile with the philosophical meaning of guilt,  yet feels him or herself to be fit to practice criminal law?

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