Sunday, February 05, 2012

More Forensic Stuff

I'm going to apologize to regular readers for missing your usual Shrink Rap fare. This blog isn't usually this heavy into forensic topics but since Dinah is on hiatus, I'm commandeering the blog to talk about my own interests.

I wanted to address some ideas Sunny brought up in my last post. Her comment was: "...I can't figure out why it is that when a psychotic person commits a crime, that "they" send the person to jail to take psych drugs so that they can become "normal" to stand trial. Weren't they mentally impaired at the time of the incident? Why would we, as a society, not consider the state that person was in at the time of the crime? I wonder how those people feel, when they "wake up" from a psychosis to find that they killed people. It must be awful."

There's a lot to talk about here. The first issue is why people have to become 'normal' to stand trial. This is something that is required by the American constitution. The Sixth Amendment gives every defendant the right to call and confront accusers. While defendants can voluntarily give up their right to be present at trial, they can't otherwise be tried in absentia. If someone is too mentally ill to understand what's going on in the courtroom, that's considered an absence (physically present, but mentally 'in absentia'.) This is the origin of the requirement for competency to stand trial.

The state---or more properly, the defense---does consider the mental state of the person at the time of the offense. This is done through a category of defenses known as 'mens rea' defenses---criminal defenses based upon some aberration of mental functioning. There are a lot of them: extreme emotional disturbance, heat of passion, intoxication and insanity. Mens rea defenses don't generally lead to an acquittal---the person doesn't 'walk'---it just reduces the level of guilt. So, for example, instead of being guilty of first degree murder a defendant may only be guilty of involuntary manslaughter. Exactly what you have to prove to make your case about the mental state will be determined by the law. Each state will have statutory or case law that defines insanity or other various mens rea situations.

The states takes mental state into account at sentencing, too. The defense can introduce all kinds of mitigating information for the judge (or jury, in a death penalty case) to consider.

Regarding how insanity acquittees feel when they 'wake up' and realize what they've done: oh yeah, awful---really awful. Particularly since many insanity acquittees commit offenses against their own families. (See the New York Times article I linked to in my last comment on yesterday's post.) Sometimes you wonder which is worse for them: the symptoms of active psychosis or an awful reality.


Liz said...

i was at a state hospital, and many of the other people there were those who had plead "ngi" or who were waiting to be declared competent to stand trial.

it was really sad. while life there wasn't as "hard" as prison, it wasn't free or easy, either. and many of them ended up spending more time institutionalized than if they had served their sentences without that designation.

i will say that this place, while it had many, many issues, did seem to respect the rights of each resident. even if i did hate having to request "ketchup" cups of shampoo and soap every night...

Sunny CA said...

Thanks for your reply.

Because I was psychotic once, it has given me insight into what it is like to experience being psychotic. My psychiatrist told me that he does not think that I "could" kill anyone when psychotic because I am too nice a person and my morals are so deeply ingrained. It is nice of him to say that, but though coming from a psychiatrist who has worked with psychotic people, he has not been psychotic himself.

Being psychotic is a lot like being in a nightmare except in a nightmare the entire "scene" is created in your own head. While in psychosis, real people and the real environment become part of the nightmare. I found that my psychotic brain did not interpret things in the environment to be what they are in reality. Instead there was a different, often much more complicated and sinister explanation for what I saw. It was mind-blowing to experience at times because something would happen that added "new data" about reality (that was true and real) and that would "blow" the intricate nightmare storyline and I would have to regroup, coming up with another, unreal nightmare storyline that fit the new information. Gosh, I hope you can follow that. Think of it like it is the year 1400 and you think the world is flat, and you set sail to the West thinking you will fall off the world. When you don't, you have to radically change your world model. Well this happened to me numerous times while in psychosis. My "nightmare view" would have to radically change to accommodate new information. The nightmare, though, continued, even though certain facts about reality were integrated.

Given the means (like a gun) and if in the midst of psychosis I thought a certain person or group of people were trying to kill me, I think it is possible I would have the capability of killing, but in the psychosis be certain it was absolutely necessary self-defense. Hence, these cases make me very uncomfortable and I wonder what, exactly was going through their mind at the time.

I hate to broach the topic again because I am not trying to stir things up, but in truth, the above stated uncertainty about what I could do while in psychosis is the only reason that I sometimes do think it may have been for the best that I was hospitalized while psychotic. At least I did not kill anyone "by accident" while psychotic.

ClinkShrink said...

Sunny: Wow. Thank you for that vivid and articulate description. I have nothing further to add, just wow.

Liz: It's good to hear about humane care in a state hospital. This should be the rule rather than the exception.

rob lindeman said...

Reduced level of guilt? Defendant doesn't get to walk?

If I were tried in a criminal court (God forbid), I would beg my lawyers to argue that I did, in fact, have a mens rea at the time of the crime. To be judged insane is tantamount to a life-sentence without possibility of parole. See Hinckley, Jr, John W. Or if you prefer, see Loughner, Jared L

wv = immoseg; what imo do in about an hour when the Pats game, um I mean, the Super Bowl begins. Go Pats!

rob lindeman said...

just read Liz's comment. It doesn't square with what Clink has been pleading with us about the rarity of NGBRI. If it's as rare as Clink says, where did all of Liz's fellow inmates come from? I would underscore her observation that many of these unfortunates ended up serving longer sentences than if the law had been applied as it was supposed to be!

wv = motammud; cross between Alaskan Malamud and Manny Mota

rob lindeman said...

Sorry, one last comment, this one on You're a Whore, where I did not comment previously.

I believe this particular attack on Forensic Psychiatry is a red herring. The real problem with it lies elsewhere, in my view.

The first problem is that none of your 'patients' is 'treated' by you voluntarily. This you share in common with Pathologists. But unlike Pathologists, Forensic Psychiatry has no pathology to work with (in the sense that everyone understands the word)

wv = holer. What by now y'all probably think I am.

ClinkShrink said...

Rob! I give you 10 brownie points for self-restraint. I expected you here long ago. I even defined a verification word on my 'whore' post in your honor.

jesse said...

OK, a person is not held criminally responsible for an act unless he meets certain criteria (McNaughton Rule, Durham Rule, etc). But in order to apply the various rules we need to know that the accused actually did the act. So how is that determined? A trial first determines that a person actually did the act, but if the accused cannot help in his defence how is the determination made that he did, in fact, do as he is charged?

If this question seems convoluted, consider this: We all suffer because Adam and Eve were ejected from Eden. But before they ate of the apple how did they know - truly know and understand - what would be the consequence of eating thereof? Yes, they knew they were told not to, but is that sufficient cause? Would they have met modern tests for such an extreme punishment visited upon all future generations? Should their confession have been admitted, and were they given the benefit of counsel that they had the right to remain silent?

Liz said...

jesse-- i like your comment.

i've always wondered: if adam and eve were totally "innocent" meaning, without knowledge of good and evil, how would they have known that it was "evil" to disobey god and follow the wishes of the serpent...

about "more forensic stuff"

i wish that parents and schools were able to enhance the emotional emotional health and resiliency of children from birth onward, so fewer people would become mentally ill in the first place. if more people were able to tolerate distress, regulate their emotions, and interact appropriately with others, our world would be a safer and more pleasant place. my brother says i think DBT is a cure for everything. this is an exageration, but still-- those skills are so important, and far less time is spent on them by parents and teachers than on other topics.

i also wish our mental health system functioned better- with any person who struggles able to access effective treatment, preferably treatment that is research based and empirically supported.

seriously-- there has to be a better way.

Sarebear said...

I had a week where I was believing stuff that wasn't real, was real, but it wasn't near as enveloping if you will as Sunny's experience. Then again, the fact that I thought these fictional things were real, as real as say the chair I was sitting in, is enveloping enough, I suppose.

I don't think I would have done anything bad but then if I had felt these fictional (but real to me) characters were attacking me, would things have been different?

I cannot say, and that is . . . bothersome. P robably the worst that would have happened is I would have crutched out of the house and away somewhere, in my nightgown, in the spring cold, less than a week after a second knee replacement.

Wait, that could have been really bad, too. But lack of a support system meant I had to be left alone sometimes (and did any of these people know I was having . . . "delusions"? No, I was so frightened everyone would think I was crazy . . . I wasn't in a fit mental state to responsibly deal with the situation.)

ANYWAY, sorry sort of side trip. I was impressed with what Sunny said that prompted this post, and meant to say so before, and that I agreed.

ClinkShrink said...

Jesse: Being able to assist in your defense refers to competence to stand trial, and the determination of guilt only happens after competence is restored. Yes, even with an insanity plea the state still has to prove the defendant committed the crime. In our state there is the option of splitting the trial into two phases: a guilt/innocence phase and an insanity phase. This is usually done only if there is substantial likelihood of gaining an acquittal just on the act itself. If that is successful, the question of sanity is moot and the trial ends.

Liz: Hmmm...interesting thought about Adam and Eve. Sounds like a classic entrapment defense to me!

Sarebear: I'm glad you didn't hobble outside in your nightgown after your knee replacement. Unlike your knee, your puns are irreplaceable.


"wadite" == one with a religious opposition to folding

rob lindeman said...

wv = kawas; the pain in the neck you get when you wake up after four hours of sleep and remember the Pats got ripped off by the Giants in the Super Bowl, AGAIN!

Anonymous said...

I have issues with some of the high profile cases where the insanity defense has been successful, because there seemed to be some awareness by the defendants that what they were doing was wrong according to society's rules or they wouldn't have acted in secrecy. The secrecy part for me is problematic, because if people truly believe they are doing the right thing then why the need to hide it?


ClinkShrink said...

AbbeyNormal (love the screen name):

I agree, an attempt to hide evidence or avoid capture would suggest awareness of criminality. When doing a pretrial evaluation the evaluator then has to draw up a mental list of all the pertinent facts of the case and divide them into one of three categories: facts that suggest sanity, facts in favor in insanity, and facts that are ambiguous and could be interpreted either way. A final opinion is derived by weighing out the number and relevance of data points in each category. There are often cases where reasonable clinicians could disagree, based upon the same information, due to differing interpretations of the ambiguous data points. Assuming, of course, that both clinicians have an identical set of information (which they don't always have).

Sarebear said...

Well, I hid my abnormal mental state (aspects of it, the fact that my cognitive processe3s were about 10 times slower than normal, or worse, was hard to hide lol) because of fear, and the fact that I didn't understand what was happening to me (eventually, after believing something unreal, I'd eventually startle and realize it wasn't, but the amount of time where I thought it was perfectly normal freaked me out), and how could I expect anyone else to understand?

NOT in any way trying to say I understand what criminals are thinking, just saying I was hiding what was going on with me and I wasn't doing anything criminal.

Anonymous said...

ClinkShrink, thanks. Yeah my screen name probably says a lot about me, ha!

I was thinking about what you wrote, "When doing a pretrial evaluation the evaluator then has to draw up a mental list of all the pertinent facts of the case and divide them into one of three categories: facts that suggest sanity, facts in favor in insanity, and facts that are ambiguous and could be interpreted either way."

THis is an interesting topic. Can a person be both insane and sane? I've learned from past experience that even in the midst of having some completely irrational thinking, or what some might even call psychotic thinking, there was still some very rational thinking going on too. For example, several years ago I went without sleep for a really long time and during that time I became kind of paranoid - believing everyone walking behind me was talking about me or laughing at me, my therapist was taping our conversations, etc. Yet, even though I believed it to be true and would stop walking and let people pass, and I cancelled my appointments with my therapist, and so on, I still knew my thinking was completely irrational. In fact, I was so aware that my thinking was abnormal that I didn't tell my therapist because I assumed she would refer me to a psychiatrist, I might be admitted to a psych hospital and might be given antipsychotics - and I didn't want that to happen. I didn't tell her until after the paranoia resolved. What I thought would happen if I told her, was actually pretty rational, reasoned thinking. So is someone insane if they realize their thinking is insane, and are aware enough to hide it?

I hesitated bringing up my own experience because it has nothing whatsoever to do with forensics. I just wondered, though, if the same thing could be true with people who have done something illegal. I would think a person could still be responsible for their actions if they acted because of a psychotic belief yet still had an awareness that what they were doing was illegal. I guess it depends on the laws. I am curious what other people think.


Dinah said...

Can I play forensic shrink??? Oh, Clink will come in with the real answer.

People can be quite delusional, but still function in certain pockets of life. So yes, one can be psychotic and sane...if say they have a delusion that the FBI is following them, but they go to work and manage okay.

AbbyNormal, in your story, if you'd broken the law, say by killing someone, your paranoia and delusions wouldn't be relevant. If you know it's wrong or illegal, and you still do it, then the insanity plea doesn't work, and presumably you knew it would be wrong to kill someone because you believed they were talking about you or laughing at you or taking notes.

If you believed that they were about to kill you and believed self defense was a reasonable option, then maybe....

Usually people who are successful with insanity pleas are extremely disorganized and the delusions and confusion take over everything and it's not ideas of reference about people laughing at you, but more profound preoccupation with God and Satan....
Okay, someone untie Clink so she can correct everything I said before she has a stroke.
Must be blog withdrawal.

ClinkShrink said...

Abbey, what you said has a lot to do with forensics. What you and Sarebear both said is that while you were ill you still retained some level of awareness that others would think you were 'crazy' or that something bad would happen if you revealed your symptoms. People who really would meet a legal test of insanity may appear sane after the fact, simply because they are afraid of describing their symptoms or don't want somebody to think they're crazy. Or maybe they were so sick at the time that they have only fragmented memories of the episode after they recover---like waking up and remembering pieces of a horrible dream. Yes, people can be both 'sane and insane', psychotic but still have some degree of awareness. This is why legislators and judges have struggled over the years to come up with a legal test of insanity that actually matches up with clinical reality.

Dinah's summary was essentially right (yes, Dinah, you were right---how often do you hear that?)---legal sanity depends on how strongly the delusions affect the person's ability to know right from wrong, or the criminality of their actions.

Anonymous said...

Legal sanity is judged differently than legal blindness.To be legally blind and receive adaptive services, a person does not need to be totally without sight. To be insane, for legal purposes, one needs to be pretty darned insane. I can think of many times that I was sane but insane. I had some degree of psychosis but as the mania progressed, I can honestly say that I was insane and did insane, though not criminal things.
I think that there is a possibility that it could have led to a criminal act, but one that I would have been convinced was sane, right and the only reasonable action in light of my state at the time. I was sane enough to know that you do not go out shooting up a supermarket but I was not sane enough to deal with anyone who, in my mind, was a danger to my family. So I wonder how a jury would have seen it.

Anonymous said...

Dinah & Clink, thanks for your responses to my rambling post. Dinah, you mentioned delusions involving a preoccupation with God or Satan. This is where I get really mixed up. I grew up in the Bible Belt and there are lots of folks who are very preoccupied with God and Satan. This is probably a dumb question but how do psychiatrists determine if the belief is a religious delusion or simply a religious conviction?

For example, I remember reading about a couple that did not seek medical attention for their daughter who had diabetic ketoacidosis because they believed if they prayed enough or had enough faith she would be healed. They truly believed this, their daughter died, and they were charged and found guilty. Contrast this with a person who has some kind of religious delusion where she believes she has to kill her children because she thinks she needs to be punished or she is saving her children from hell or whatever - she's ngi. It seems like in both scenarios the defendants were aware of the laws of society but believed they were doing the right thing by answering to their higher authority. One is ngi due to mental illness and one isn't. It's very confusing to me when it involves religious beliefs because people so many different things.

As crazy as I was in the past, I'm very relieved it never involved thoughts of harming anyone. I can't imagine that. When fight or flight kicked in, I fled.


ClinkShrink said...

Abbey: That's not a dumb question at all. That will be my next blog post, I think.

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