Microkhan by Brendan I. Koerner

The Demise of “Criminal Insanity”

November 30th, 2009 · 7 Comments

BedlamIn reading about the murder of four police officers near Tacoma, we were most struck by the prime suspect’s obvious paranoid schizophrenia—a disease that seems to have been wholly untreated, in part because his family members were afraid of staging any sort of medical intervention:

As part of the child-rape investigation, the sheriff’s office interviewed Clemmons’ sister in May. She told them that “Maurice is not in his right mind and did not know how he could react when contacted by Law Enforcement,” a sheriff’s report says.

“She stated that he was saying that the secret service was coming to get him because he had written a letter to the President. She stated his behavior has become unpredictable and erratic. She suspects he is having a mental breakdown,” the report says.

Deputies also interviewed other family members. They reported that Clemmons had been saying he could fly and that he expected President Obama to visit to “confirm that he is Messiah in the flesh.”

This got us thinking about how a man like Clemmons would have been handled by the law in an earlier age—specifically the days when “criminal insanity” was considered a legitimate psychiatric diagnosis, and one that was used to shift people out of the legal system and into the medical establishment. This was not done in order to offer treatment, but rather to shunt ostensibly incorrigible “lunatics” into a system from which there was no formal release procedure. It was essentially an extralegal workaround, creating a parallel prison system exempt from standard oversight.

At times like these, it’s easy to see the downside of abandoning this system—the criminal justice system isn’t necessarily equipped to deal with felons of Mr. Clemmons’ mentally disturbed ilk. But in briefly thumbing through the history of criminal insanity this morning, we quickly came to realize why this “solution” was abandoned long ago: it’s because communities decided to take advantage of the asylums-cum-prisons as dumping grounds for those who truly needed help, not permanent incarceration. This account from Canada’s brief experiment with criminal insanity is instructive:

According to Lichtfield, the original intent of the law for admission to the lunatic criminal asylum was undermined by the public through the criminalization of ordinary cases of insanity. This criminalization was achieved by “tacking” onto an ordinary lunatic an official charge of assault, or being dangerous to the public. In this way, the ordinary lunatic was labeled an insane offender and “committed to gaol as the preliminary step to a transfer to the Criminal Lunatic Asylum.” Lichtfield argued that this legal manipulation helped to relieve problems of accomodation for the insane of the province, and enabled municipalities close to Rockwood to avoid spending large sums of money transporting insane persons to the more distant Toronto Provincial Asylum. Finally, this rediagnosis of the ordinary insane allowed their families in the near vicinity of Rockwood to keep “their relatives as near to them, and in an asylum as covenient of access for them” as possible.

And so the concept of “criminal insanity” was abandoned because it opened the door for so many horrendous abuses by ordinary citizens intent on (for lack of a better phrase) “mental cleansing” of their communities. The cost, alas, has been that offender such as Mr. Clemmons are not so easily taken off the streets when they show signs of psychiatric distress. And thus lies the great challenge for lawmakers in coming up with a better way of balancing the rights of mentally ill individuals with the right of society to live without fear—or, at the very least, with as least fear as possible.

(Image via Philip V. Allingham)


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7 Comments so far ↓

  • Jordan

    I have a feeling that this is going to be Huckabee’s Willie Horton moment. Ready the press release his office sent out was one of the most bald-faced attempts to pass the buck I’ve ever seen.

    On the broader subject of mental health and the crimnal justice system, I feel like this is a similar dilemma to the one we face in the “War on Drugs”. The focus has shifted so far in the direction of punishment and away from rehabilitation that we’re doing more harm than good. How much would it cost to provide treatment vs. the cost of jail? How many productive man hours and associated taxes do we lose by letting mentally ill individuals slip through the cracks and into the criminal justice system? It won’t be an easy debate by any stretch of the imagination, but it’s one that we need to have.

  • Brendan I. Koerner

    @Jordan: Thanks for pointing me toward the Huckabee statement. Sounds like his defense is gonna be, “I just followed the parole board’s recommendation.” We’ll see if that holds up in the coming days, as the facts come to light. (I’d be curious, BTW, to know how many commutations a typical governor makes during their time in office. Also, how often do governors refuse to pay heed to parole-board recs?)

    The big question I see with a man like Clemmons is whether any sort of treatment can be effective long-term. Given the apparent severity of his mental illness, it would seem that he would require a pretty heavy pharmaceutical regimen. And that means investing in the sort of monitoring apparatus (e.g. more parole-officer hours) that would keep him taking those drugs despite the often horrible side effects.

  • scottstev

    I remember reading somewhere (never let a dearth of sources keep you from arguing on the internet) that if you account for asylum populations of the 1950’s and ’60’s, you’d get an “incarceration rate” about what our current prison population rate is.

    I’d hate to think we’d go down the same path with mental illness as we do with child molesters where they pay the price in prison and then are promptly released to a mental hospital for indefinite treatment. That is ripe for abuse even if it might be arguably effective.

  • Brendan I. Koerner

    @scottstev: Thanks for the tip–I’ll try to track down that source.

    Agreed on the extralegal incarceration of sex offenders who’ve served their time. While we’re all certainly sympathetic to the need to protect communities, the circumvention of law is really is really troubling. In fact, I’d argue that such measures are strictly unconstitutional, since they would seem to qualify as bills of attainder (proscribed against in Article One, Section Nine).

  • Brendan I. Koerner

    Ah, found the graph re: connection between asylum populations and incarceration rates:


  • Jordan

    @ Brendan

    I guess that’s what I’m wondering. What are the costs, in terms of treatment and monitoring, when compared to prison. Given that prison is in the ballpark of $30k per year, that’s a pretty decent chunk if cash that could potentially be redirected. In addition, you at least have the potential to defray some of that cost if the person under treatment can actually hold down a job and otherwise contribute to the community. I’m not sure which is economically more favorable, but my guess is that in the long run treatment, even in an ongoing fashion, would probably come out ahead. Unfortunately the prison lobby, both in terms of the private contractors and the corrections officers unions, makes that kind of reform rather difficult. However, we may get to see some of this play out in California after the supreme court ruling mandating that the prison population be reduced.

  • Brendan I. Koerner

    @Jordan: A silver lining to the fact that California is fiscally FUBAR–a chance to conduct all sorts of novel policy experiments in the name of saving cash. I like it.

    I’m pretty sure that treatment would win out, in terms of net expenditure required. But such programs would invariably lose track of at least a few violent offenders such as Mr. Clemmons. How many such incidents would society be willing to tolerate for the sake of long-term economic benefits?