August 2012

Our legal system grants remarkable powers to psychiatrists. They can testify authoritatively that a defendant is insane and thus not responsible for his actions. They can administer drugs or commit individuals to psychiatric hospitals with or without consent. They don’t have unlimited discretion, of course, but they do have a very significant state-granted and state-recognized authority, especially over criminal justice.

We have lately witnessed several high-profile criminal events for which insanity may or may not be a tempting explanation — the spree killings in Aurora, Colorado and Oak Creek, Wisconsin; Anders Breivik’s rampage in Norway; and the shooting of Representative Gabrielle Giffords.

Our lead essayist this month, American University’s Dr. Jeffrey A. Schaler, is skeptical that “insanity” is a good explanation for criminal — or any — behavior. Indeed, Schaler denies that “mental illness” is a valid category of disease. For that reason he is also one of the world’s foremost exponents of consensual psychiatry, a branch of the discipline first comprehensively defended by Dr. Thomas Szasz: If a patient wishes to be treated, he should be allowed to seek treatment; if not, his behavior remains his own responsibility. Insanity is neither a defense nor a reason for involuntary commitment.

Schaler’s is a minority viewpoint within psychiatry, and it sits at odds with current legal doctrine as well. To discuss with him this month, we have invited Dr. Allen Frances, a Professor Emeritus of Psychiatry at Duke University; Jacob Sullum, a journalist and author who has often written on mental health, therapy, and the law; and Amanda Pustilnik, an Associate Professor of Law at the University of Maryland whose work focuses on the intersection between neuroscience and the law.


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Lead Essay

  • Professor Schaler notes that mental illness differs in several important ways from physical illness, and these ways make a mockery of conventional diagnosis. Nonetheless mental illness plays an important role in our legal system; it permits psychiatrists to exercise a significant degree of coercion. Schaler challenges this arrangement and argues that those whom we may classify as mentally ill are still deserving of their liberties, including the liberty to refuse treatment. Schaler also questions whether “insanity” is an appropriate legal fiction at all.

Response Essays

  • Professor Frances agrees that mental disorders are not diseases properly speaking, but he maintains that they are nonetheless useful analytic constructs. As to coercive psychiatric treatment, he argues it can indeed be a horrific abuse. Still, in some especially desperate cases it will be necessary to save lives and to prevent even greater harms. He recommends several practices designed to minimize the frequency and risks of coercive treatments.

  • Jacob Sullum asks the mental health establishment for consistency: If mental disorders are not diseases, what justifies involuntary treatment? Evidence of criminal conduct is a matter for law enforcement, not mental health. And how is it that we punish sexual predators (on the theory that they are responsible) — then treat them afterward (on the theory that they aren’t)? Psychiatric diagnoses are ultimately arbitrary, Sullum argues, and they lead to the arbitrary exercise of power.

  • Amanda Pustilnik argues that the most profound violations of liberty in this area don’t come from coercive psychiatry, but from the warehousing of the mentally ill in our criminal justice system. Such people aren’t more likely to commit crimes, but they fare badly in the criminal justice system, where unusual behavior leads to convictions, longer sentences, parole violations, and reincarceration.

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