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(p. 94) Mental Disability, Criminal Responsibility, and Civil Commitment 

(p. 94) Mental Disability, Criminal Responsibility, and Civil Commitment
(p. 94) Mental Disability, Criminal Responsibility, and Civil Commitment

Stephen J. Morse

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Subscriber: null; date: 27 June 2019

The early, formative years of American Psychology–Law Society (AP–LS) were generative for legally relevant psychological and psychiatric science and transformative politically. This chapter begins with an autobiographical sketch that explains my early interest in law and psychology and in issues of criminal responsibility and civil commitment in particular. It then turns to the history of the legal landscape in these contexts in the formative years, followed by a section that diagnoses the problems that beset these fields. Then I describe my attempts to remedy some of the problems. The conclusion assesses where we are now.

A Portrait of the Lawyer-Psychologist as a Young Man

I entered Harvard Law School in 1966. The mid-1960s were heady for those of us eager to use the law as a tool for social reform, especially the (p. 95) expansion of civil liberties. The Civil Rights Act was two years old and it did not require a crystal ball to understand that the thinking undergirding this historic legislation would apply to other groups that had been treated shabbily by the law, including women and people with mental disabilities. I loved law school’s intellectual challenges and learned three essential things. First, I was mostly interested in crime, people with mental disorders, and kids, interests I dubbed the “human law package.” Second, the law was a blunt instrument that generally responded only after people’s problems had surfaced and then typically reacted counterproductively. Third, I concluded that the law lacked the internal resources to accomplish just reforms and needed input from the social sciences to achieve this goal.

A particularly formative experience was a year-long sequence called Prediction and Prevention of Harmful Behavior co-taught by Alan Dershowitz and Alan Stone, who became mentors. I became interested in the issues of responsibility, involuntary civil commitment, and preventive detention generally. This course also led me to believe that psychology could contribute to making the law more just and effective. I therefore applied to graduate school.

I chose the program in personality and developmental studies in Harvard’s Department of Psychology and Social Relations. It was a rigorous empirical and experimental program that appealed to my methodological individualism and that would turn me into a scientist. I also pursued clinical training, first at the Massachusetts General Hospital and then at McLean. I was fortunate to have Robert (Bob) Rosenthal as my thesis advisor. Bob is a consummate scientist and gentleman. Working with him shaped the way I understood studies and data.

During my graduate training, I had two other influential experiences. The first was exposure to the type of unscientific and narrow-minded thinking that too often dominated American psychiatry at the time and that became a focus of my work. For example, clinicians then were quite certain that they could accurately predict human behavior despite the already substantial literature, pioneered by Paul Meehl’s epochal monograph, Clinical v. Statistical Prediction (Meehl, 1954), that clinical prediction was poor. Second, I discovered that I was more interested in (p. 96) investigating normative rather than empirical issues and wanted to use my scientific and clinical training to inform normative legal analysis and reform proposals. Equally important, I realized that neither psychology nor psychiatry had the good, legally relevant data base that would be necessary to support reform efforts.

In 1974, I was offered a position at the University of Southern California, then and now one of the most intellectual and interdisciplinary law schools in the nation. My job talk was on the seminal case of Lessard v. Schmidt, the 1973 decision by the federal district court in Wisconsin holding that the Wisconsin civil commitment statute violated substantive and procedural due process. This talk prefigured work I would do for the rest of my career. I was on my way to LaLa Land to teach criminal law and mental health law. I threw away my overcoats and did not look back.

Not long after arriving in Los Angeles, I started receiving calls to consult on civil and criminal cases that involved mental health issues. The calls mostly resulted from things I had written or talks that I had given to professional groups. I had not planned to become a forensic psychologist, and there were few real training programs then, but I had a good deal of clinical experience and thought that I understood the relation between the law and mental health sufficiently to be of use. Thus, I became a practicing forensic psychologist by default.

The Legal Landscape in the Formative Years of AP–LS

In criminal responsibility law, the U.S. Supreme Court had taken two modest early steps in substantive doctrine. In Robinson v. California (1962), the Court held that it violated the Eighth and Fourteenth Amendments to blame and punish a person for being an addict. It was unclear what the basis of the holding was, however. In Powell v. Texas (1968), the Court was asked to hold that a “compulsion” excuse was constitutionally required. The Court ruled that no such constitutional defense was required and clarified that Robinson only prohibited punishment of a status.

(p. 97) Most of the substantive doctrinal action in the state legislatures and courts and lower federal courts was concerned with the insanity defense and so-called diminished capacity, a doctrine most clearly promulgated by the influential California Supreme Court. The Durham (1954) “experiment” in legal insanity ended when the federal Court of Appeals for the District of Columbia overruled it in United States v. Brawner (1972) and adopted the Model Penal Code test (§4.01,1962). The Model Penal Code’s insanity provision appeared to be the wave of the future as the majority of legislatures and courts addressing the issue of insanity defense reform adopted it.1

The court-created diminished capacity doctrine was in disarray because courts failed to distinguish two different variants of using mental abnormality evidence. In one, the defendant was claiming that he lacked the mens rea required by the definition of the offense. In the other, even if the mens rea was present, the defendant was arguably less responsible. This confusion led many courts to reject the former because they incorrectly believed that the defendant was claiming the latter, which was a type of mitigation defense claim the courts thought was the province of the legislatures.

The confusion was potentiated by the California Supreme Court. Its doctrine applied only in murder cases and it created the “defense” by judicial reinterpretation of the mens rea elements of murder so that they resembled mini-insanity defenses. With respect, the California court was torturing traditional meanings of murder. The California legislature took action in 1980 after the homophobic ex-police officer and city supervisor, Dan White, assassinated Mayor George Moscone and Supervisor Harvey Milk. Although the homicides were clearly intentional and premeditated and would otherwise have resulted in a capital murder conviction, White was convicted only of voluntary manslaughter based on the court’s diminished capacity doctrine. The legislature abolished the court’s doctrine, but (p. 98) permitted defendants to introduce mental abnormality evidence to negate mens rea in a limited number of cases.

In the early days of AP–LS, the civil rights revolution extended to people with mental disabilities. New York’s Mental Hygiene Law and California’s Lanterman–Petris–Short Act were new attempts to inject due process into the civil commitment process. During the 1970s and early 1980s, federal and state courts were holding civil commitment laws unconstitutional. The U.S. Supreme Court decided O’Connor v. Donaldson (1975; requiring dangerous to self or others for civil commitment if the person could live safely in the community) and Addington v. Texas (1978; requiring that the criteria for commitment had to be proven by clear and convincing evidence). In Youngberg v. Romeo (1983), the Court did not hold that there was a right to treatment, but held that a severely intellectually disabled institutionalized patient was entitled to safety and freedom from restraint and to the habilitation necessary to preserve those rights. The question was whether the judicial and legislative changes in that era would also change actual practice.

Annals of Errancy in the Formative Years

At the time, psychiatry ruled the roost in the forensic world. Psychologists were just starting to become licensed and the whole field of forensic work was dominated by medical thinking and power. There were pioneering psychologists who were primarily forensic practitioners, but they were few and had limited influence. Mental health law was a set of unsystemized rules that treated mentally disordered people differently in many civil and criminal law contexts.

Bad thinking was both attitudinal and conceptual, and it was fueled by bad data. The attitudinal part was the arrogance among many mental health professionals about how much they knew about human behavior and what was in people’s best interests. The belief that they were accurate predictors of human behavior, a practice crucial to both postinsanity-acquittal commitments and involuntary civil commitment, is a good (p. 99) example. There simply was no adequate data base, and clinicians still trusted their judgment despite Meehl (1954). Most of the legally relevant research was then in psychiatric journals, but psychiatry was in the lamentable grip of the Diagnostic and Statistical Manual of Mental Disorders (2nd edition; American Psychological Association, 1968) until 1980, which had utterly poor reliability and no validity, and the journals were full of scientifically poor-quality research (White, 1979; for an egregious example, see Lagos, Perlmutter, & Saexinger, 1977). Mental health research has gotten much better and some was excellent even then, but during the formative years, the general quality of research was poor by methodologically rigorous standards. Not understanding the limits of their knowledge promoted paternalism among mental health professionals. They thought they knew best because they thought they knew more than they did and because they conflated empirical and normative claims. They did not realize that maximizing health and safety at the expense of autonomy and liberty is a normative choice, and they systematically underestimated the capacity of people with mental disorders to make rational decisions concerning their own welfare.

There were two major conceptual failures in thinking about criminal responsibility in the formative years: misunderstanding determinism and free will and the erroneous belief that a cause of behavior, especially an abnormal cause, was per se an excusing or mitigating condition (which I later termed the fundamental psycholegal error; Morse, 1994). Together and separately, they led to “Creeping Krupke-ism (from the marvelous West Side Story number, “Gee, Officer Krupke”).2 Many mental health professionals and lawyers, including judges and legal academics, had an unsophisticated view of the meanings of determinism, free will, responsibility, and the relation among them. They failed to recognize, as philosophers had known for centuries, that determinism is a working hypothesis that cannot be confirmed or disconfirmed by (p. 100) science and that, even if determinism is true, there is a regnant philosophical position—compatibilism—that holds that ordinary people have sufficient freedom to be held responsible. Some even made the error of claiming that determinism could be partial or apply selectively to different groups. They were using determinism to support a normative agenda it could not possibly support. If determinism is true and inconsistent with responsibility, then no one is responsible. This could not possibly explain our responsibility practices, which hold most people responsible and excuse some.

The related error of thinking that causation per se mitigates or excuses suffers from the same defects as the determinism argument. If this is a causally closed universe and there is universal causation, as most scientists think, then all behavior is caused and causation excuses everyone. Every time a “new syndrome” was tentatively identified and linked to antisocial behavior, proponents of the causal theory of excuse would claim that the offender was not responsible. But one cannot pick and choose favored causes under this theory because causation excuses everyone. This theory was founded on a basic conceptual error, and it was then used again to support a normative agenda that it could not support.

There is a genuine metaphysical debate about whether determinism is inconsistent with responsibility, but this debate has no legal purchase within our doctrines and practices. Free will is not a legal criterion and is not even foundational for responsibility. Nonetheless, people writing about criminal responsibility and applying its doctrines in the formative years consistently misused determinism and causation to support positions that were adopted on other, normative grounds. They had no idea that they were special pleading. They argued for expansion of excusing conditions because an offender had been deprived, had bad parents, had underlying conflicts, lived in a bad neighborhood, had the wrong genes, had a broken brain, and so on ad infinitum. These variables may be causally related to antisocial behavior, but they are not per se excusing. They may cause a genuine excusing condition, such as lack of rational capacity, but then it is this deficit and not causation per se that is doing the excusing work.

(p. 101) The bad practice stemmed from the belief that mental health professionals knew more than they did, the attempt to impose a particular politic position, and the failure to understand the legal doctrines of responsibility that psychology and psychiatry were supposedly helping to elucidate. Researchers and practitioners infused legal concepts with meanings that facilitated their moral agenda but that did not exist in law. In this, they were aided and abetted by like-minded lawyers or by unwitting judges. Transcripts of expert testimony and appellate decisions during the formative years provide striking evidence of this phenomenon.

For example, in one case I handled, the defense experts testified that the mentally disordered murder defendant lacked the capacity to form the intent to kill when he killed the victims to obey God’s will. What could the experts have possibly meant? The defendant clearly formed the intent to kill. His psychotic perceptions and ideation were precisely the reason he did form the intent to kill. Of course, he had the capacity to form the intent as law defines it, which is simply to do something on purpose. Either the experts were cynically trying to get the defendant off by any means, or they erroneously believed that lack of rational understanding negates intent. Irrationally motivated intentions are still intentions. In summary, criminal responsibility and civil commitment doctrine and practice during the 1970s and 1980s were subject to many serious problems.

A Portrait of the Lawyer-Psychologist as a (Somewhat) Older Man

My own contributions at that time were responses to the mess as I saw it. My first major mental health law article (Morse, 1978) tried to systematize the various civil and criminal laws that treated people with mental disorder differently. I claimed that all mental health laws had the same structure and underlying theoretical foundation. They all asked two questions: Is the person mentally disordered? and Is the person responsible in the context in question? And some asked a third question: What will the person do in the future?

(p. 102) I pointed out that the foundation for all these laws was the responsibility question because, in a liberal political and legal order, people should not be subject to special treatment that typically denied both liberty and autonomy unless the basis for liberty and autonomy, being responsible, was severely compromised. The article next addressed the role of experts, claiming that thick description of behavior was the best evidence rather than tests of any kind and that experts had less expertise than they were credited with. I suggested numerous reforms, including the exclusion of diagnoses and ultimate legal opinions because the former were legally irrelevant and confusing and the latter were not matters of psychological expertise. I also recommended recording all forensic evaluations to permit assessment of the underlying data of the expert’s opinion and to expose potential confirmation bias. The final part examined many specific mental health laws through the lens of the preceding analyses. In retrospect, I believe this was the least successful part, because my strongly liberal position concerning the capacities and rights of people with mental disorder led me to some incorrect and unjust views that I later (but not much later) recanted, such as proposing the abolition of the defense of legal insanity. This article engendered fruitful debates.

In two articles (Morse, 1979, 1984) I tried to clarify the diminished capacity doctrine, demonstrating that it dealt with two distinct issues: the mens rea variant (whether mental disorder negated mens rea) and the partial responsibility variant (whether it diminished culpability even if it did not negate mens rea). I argued that relevant mental abnormality evidence should be introduced without restriction to negate mens rea and that adopting a partial responsibility variant was the province of the legislature because this variant was a form of partial affirmative defense. This work was influential in state and federal cases, especially in federal cases asked to interpret the mens rea provisions of the Insanity Defense Reform Act of 1984. I was also critical of California’s expansion of the diminished capacity concept previously described and debunked the notion that Dan White received a lesser conviction for his homicides as a result of the “Twinkies” defense. I showed that his ingestion of junk food was simply used by White’s defense experts to bolster his then-standard diminished capacity claim in California. I will say more about that shortly.

(p. 103) In two more articles—fun interchanges with Norman Poythress (Morse, 1982c) and Richard Bonnie and Christopher Slobogin (Morse, 1982a)—I tried to defend my views on the role of expertise. In the first, I attempted to show how a forensic expert could realistically behave as I had suggested, and in the second I produced an extended critique of psychodynamic psychology as the basis for expert testimony.

Finally, I wrote a detailed critique of the practice of involuntary civil commitment on largely consequential grounds (Morse, 1982b). By then, I had softened my stance on the capacities of people with severe mental disorder and believed some could properly be treated differently in theory. Nevertheless, I concluded that involuntary civil commitment created injustice and scarcely helped needy sufferers and that factually there were not enough mental health professionals in the United States to treat all of the severely disordered who might voluntarily accept treatment offered with respect. I recommended complete abolition.

In those early years, my concerns about mental health law involved me directly in two noteworthy public policy interventions. After the Dan White conviction for manslaughter rather than murder, California had had enough of the California Supreme Court’s diminished capacity doctrine. There were hearings before the Joint Committee on Revision of the Penal Code. I was one of many experts to testify. After hearing my testimony, the chair, Senator David Roberti (D., West Hollywood), enlisted me to draft with one of his aides, Ned Cohen, an innovative legislative approach. It proposed that the partial responsibility variant effectively adopted by the California Supreme Court should be abolished but that mental abnormality could be introduced to negate any mens rea. To avoid spurious testimony about capacity, the bill also prohibited experts from testifying about a defendant’s capacity to form mens rea. Experts were limited to testifying about whether the defendant in fact formed the mens rea. I was the lead witness for the bill, which became law. In a sad coda, the law-and-order people thought it had gone too far by permitting negation of all mens rea, which virtually never happens as a practical matter. As a result, the year after the bill became law there was emergency legislation to restrict testimony to negation of the mens rea only for so-called specific intent crimes and to prohibit such testimony for general (p. 104) intent crimes. This was unnecessary for public safety, and it propagated a confusing distinction.

The second event occurred in the wake of the unpopular Hinckley verdict, when many jurisdictions and Congress considered abolishing the insanity defense. By then, I had publicly recanted my 1978 argument that the defense should be abolished and was a strong proponent of it. The American Psychological Association asked me to be its witness before the House Subcommittee on Criminal Justice, chaired by John Conyers (D., Michigan). I argued for retaining the cognitive form of the defense and demonstrated that the major justice ground for abolishing the defense—that poverty was a much stronger cause of crime than mental disorder, and we don’t excuse the poor—rested on the confusion that causation is per se an excusing condition. I opposed including a control test because it was insufficiently conceptualized and could not be operationalized, a position also adopted by both the American Psychiatric Association and the American Bar Association. I claimed in addition that diagnoses and ultimate opinion testimony should be banned.

Rep. Conyers put all three recommendations in the next mark-up of the bill and invited me to testify again. In the interim, the psychiatrists had howled about the exclusion of diagnoses. Just before my second appearance, Rep. Conyers told me privately that he agreed with me about diagnoses, but that there were 35,000 psychiatrists and only one of me, so the psychiatrists won. Congress passed the Insanity Defense Reform Act in 1984, which retains a limited cognitive insanity defense, shifts the burden of persuasion on legal insanity to the defendant, and prohibits expert testimony on the ultimate legal conclusions about mens rea and legally insanity. In the House Committee report, Rep. Conyers was gracious enough to specially thank me for my assistance to the Committee.

A Portrait of the Lawyer-Psychologist as a (Much) Older Man

Research on law and psychology has become a broader field than in the formative years. Work on mental health law and forensic psychological (p. 105) topics is now joined by the investigation and application of scientific psychology to a broad range of criminal and civil justice topics. This is the mark of a mature discipline.

The law of legal insanity is not much different from the middle 1980s. Few jurisdictions have readopted a control test despite claims that justice demands one. It appears that shifting the burden of persuasion is more outcome determinative than narrowing the insanity defense test (e.g., Steadman et al., 1993). The Supreme Court has never decided whether the insanity defense is constitutionally required, and it still does not exist in four states that abolished it. The U.S. Supreme Court was squarely presented with the issue in a 2013 case (Delling v. Idaho), but declined to grant certiorari. I was the primary author of an amicus brief in Delling (with Richard Bonnie), signed by 50 other law professors of every political persuasion, arguing that the petition should be granted and that the Court should hold that some insanity defense was required, a brief cited in Justice Breyer’s dissent from the denial of certiorari (see Morse & Bonnie, 2013, which expanded the brief into a scholarly article).

Specialty courts for mentally disordered and addicted defendants that divert and treat nonviolent offenders have become common. They have dedicated proponents, but the research indicating their value is as sparse as they are popular. And they have many critics who object to their lack of due process and paternalism.

In 2006, the Supreme Court held in Clark v. Arizona that Arizona’s narrowest possible insanity defense did not violate the Constitution but also held that a state could exclude all evidence of mental abnormality to negate mens rea except direct behavioral observation evidence. The former was not surprising, because the Court gives jurisdictions great leeway in setting their substantive doctrines. But Judge Morris Hoffman and I believed the latter procedural due process holding was simply wrong (Morse & Hoffman, 2007). The majority of states still permit defendants to use mental abnormality evidence to negate mens rea but only in limited circumstances.

In most jurisdictions, experts still testify about ultimate legal issues, although the prohibition in federal criminal cases seems to have caused no mischief. Diagnoses are permitted everywhere and are indeed required (p. 106) in cases involving the potential application of the death penalty to defendants with intellectual disability (Atkins v. Virginia, 2002). Recording evaluations anecdotally appears to be increasingly common. The quality of expert testimony seems much improved, largely because of specialized professional training and credentialing.

Civil commitment continues everywhere, but at least long-term hospitalization is rare. Despite the development of good actuarial risk prediction tools and the superiority of structured professional judgment, too often weak clinical prediction continues to be used. The newer, so-called sexual predator civil commitments that can be imposed after a sexual offender has completed his prison term for the same behavior have been adopted in a substantial minority of states and were approved by the U.S. Supreme Court (Kansas v. Hendricks, 1997; Kansas v. Crane, 2002). In my opinion, these commitments are abusive of civil liberties and rest on an incoherent definition of mental abnormality (Morse, 2002). They are simply imposing punishment by other means, and the conditions of confinement are dreadful (Karsjens v. Jesson, 2015).

Many people think that the new neuroscience fueled by noninvasive functional imaging will transform criminal law, mental health law, and law more generally. With respect, proponents of the extensive relevance of neuroscience suffer from Brain Overclaim Syndrome BOS), a disorder I have provisionally identified (Morse, 2006; Morse, 2013; also recommending Cognitive Jurotherapy (CJ) as the safe, effective, and inexpensive treatment of choice). Imaging is insufficiently sensitive to diagnose even major mental disorder, and it is a fantasy to believe that it can identify whether someone is delusional, hallucinating, knows right from wrong, or can control himself. For now and for the foreseeable future, the level of analysis most useful for addressing questions in criminal and mental health law is psychological. Forensic psychology is indispensable.

A Personal Note

It has been my great good fortune to be part of the AP–LS since its inception and to work with many of the wonderful people who are contributing (p. 107) to this volume. I was honored to be elected president of the Society twice, once when it was free-standing and again after it was incorporated into the American Psychological Association. I am very grateful to the organization and the field. Although the MacArthur Foundation Research Network on Mental Health and Law, brilliantly led by John Monahan, was created just after the formative years, it made and is still making immense contributions to the issues discussed in this chapter. I was fortunate to be a member.


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                                              1. There was no uniform federal insanity defense until Congress passed the Insanity Defense Reform Act in 1984 in the wake of John W. Hinckley’s acquittal by reason of insanity for attempting to assassinate President Reagan.

                                              2. “Gee, Officer Krupke, you’re really a square; this boy don’t need a judge, he needs an analyst’s care! It’s just his neurosis that oughta be curbed. He’s psychologic’ly disturbed!” (Bernstein & Sondheim, 1996).