The Role of Psychiatrists in the Criminal Justice System

Overview

Most psychiatrists are familiar with the medicolegal issues that arise in the area of civil law, some of which are described in Chapters 85 and 87 . This chapter focuses on interactions between law and psychiatry that are less familiar to most psychiatrists, as well as on the roles that psychiatrists and other mental health professionals play in the criminal justice system. Psychiatry, more so than any other medical specialty, is involved with criminal law because of (1) the relationship between mental illness and violent behavior discussed in Chapter 65 ; (2) ethical and legal prohibitions against mentally incompetent people standing trial, representing themselves, or being executed; and (3) societal standards that prohibit imposition of criminal responsibility on those who are not morally blameworthy due to mental illness or developmental disabilities. The United States Supreme Court has recognized the important role of psychiatrists and other mental health professionals in criminal matters, holding that criminal defendants have a right to the assistance of a mental health professional when the mental state of the defendant is at issue, and that this assistance be paid for by the state for indigent defendants.

Mental health issues can arise at any point in the criminal justice process, from arrest through incarceration, often leading to an individual being moved between the criminal justice and forensic and civil mental health systems at various points in the criminal process. For example, psychiatric concerns may be raised immediately after an individual has been taken into custody, resulting in the police taking the individual directly to a psychiatric emergency department (ED) for evaluation, without arresting the individual or charging him or her with a crime. This scenario may occur, for example, when the police have reason to be concerned about the well-being of the individual in question, leading the police to take the individual into protective custody. If clinicians in the ED decide to hospitalize the individual, thus diverting him or her into the civil mental health system, the criminal process may end at that point with no charges being filed.

On the other hand, the police may arrest the individual on criminal charges, but bring him or her to the ED for a psychiatric evaluation before booking to determine if he or she can be safely taken to jail to await formal charging or arraignment. On psychiatric clearance, the criminal process would continue with the individual going to the police station for booking and then to jail until he or she is arraigned at the next available court date, often the next morning. An arraignment is a formal process at which a judge reads the charges and the defendant, represented by an attorney, enters a plea of guilty or not guilty.

If, before arraignment, the police observe additional behaviors that raise concerns about the individual's safety or ability to participate in the criminal process, a clinician attached to the court may be asked to conduct an evaluation, or the individual may be returned to the ED. Except for providing emergency medical or psychiatric care, a psychiatrist should not conduct any evaluation of a criminal defendant relevant to the courts or criminal charges until the defendant has had access to an attorney or an attorney has been made available.

At the arraignment, the prosecutor, the defense counsel, or the judge may ask that the defendant be evaluated for competency to stand trial (CST) or criminal responsibility (CR). In fact, judges have a constitutional obligation to address the issue of a defendant's CST, at any point in the proceedings, where the evidence raises “a bona fide doubt” as to competency.

If a CST evaluation is in order, or if there is concern about the defendant's safety due to mental illness, he or she may be transferred to a public mental hospital for further evaluation. In many states, the referral is to a designated forensic hospital, although in other states, the defendant may be referred to a psychiatric facility that does not specialize in forensic evaluations.

The presence of significant symptoms of mental illness, before or after conviction, is no guarantee that a mentally ill individual will end up receiving treatment in a psychiatric facility rather than residing in a correctional facility, with or without adequate treatment. Indeed, correctional institutions now house more mentally ill individuals than are hospitalized in psychiatric facilities.

Criminal Competencies

The modern era of criminal law began when English common law began to distinguish between civil and criminal matters. ( Common law, also referred to as case law or judge-made law, is that body of law created by courtroom decisions that then have controlling value as precedents for subsequent cases involving similar legal issues. Only cases that are decided on appeal have value as precedents; trial court decisions do not.) Then, as now, specific procedures were required to preserve the integrity, accuracy, and fairness of the criminal process. Entering of a plea by the accused was essential to start the proceedings. As of 1275, measures were in place to manage the problem of how to proceed when the defendant refused or was unable to enter a plea. According to the famed legal commentator William Blackstone, when the defendant refused to plead, it was left to the court to:

“… impanel a jury, to enquire whether he stands obstinately mute, or whether he be dumb. If the latter appears to be the case, the judges of the court (who are to be of counsel for the prisoner, and to see that he hath law and justice) shall proceed to the trial, and examine all points as if he had pleaded not guilty.”

In other words, if the defendant was found to be mute ex visitatione Dei (by act of God), the court would hear the case but take measures to protect the defendant. For defendants found to be “obstinately mute,” the consequences depended on the charge. If charged with high treason, the worst of crimes, muteness was considered the equivalent of confession, and the consequences were the same: judgment and execution, with forfeiture of all property to the Crown. Muteness in the face of charges of minor crimes was also held to be the equivalent of confession, and judgment was entered accordingly. As Blackstone reported, “But upon appeals or indictments for other felonies, or petit treason, he shall not be looked upon as convicted, so as to receive judgment for the felony; but shall, for his obstinacy, receive the terrible sentence of penance, or peine forte et dure. ”

The penance, or peine forte et dure, in 1275 involved the following:

“[The prisoner] shall be clad in a single garment and be unshod and, laying upon the bare earth, he shall have for food but a quatern loaf of barley bread every second day, not so that he shall eat daily but only every other day, nor shall he drink daily, but on the day when he does not eat, he shall drink only water.”

This procedure did not consistently result in prisoners entering pleas, so by the early fourteenth century the process was modified to yield the desired end: the prisoner's diet was reduced to “a little rotten bread” and “cloudy and stinking water” on alternate days and the defendant was “pressed with as great a weight of iron as his wretched body can bear.” The procedure evolved further, and in 1406, Lord Chief Justice Gascoigne sentenced two accused robbers found to be “mute of malice, to delay their death. … to have put upon them as great a weight of iron as they can bear and more. … so to lie until death.” Eventually, the prescribed process became even more detailed, going so far as to specify the amount and type of water and food to be provided, the extent of any covering, and the manner of restraint, but all with the same ultimate outcome: eliciting a plea, or death. In rare instances, prisoners who survived for extraordinary periods of time were pardoned.

The motivation for refusing to enter a plea and suffering this horrendous fate can be understood as follows: those defendants who died without confessing their crime or being found guilty were not subject to forfeiture of their property, thus preserving assets for their families. Peine forte et dure was banned by case law in England in 1772, and by statute in 1827.

Similar approaches to extracting pleadings (and confessions) were used in the English colonies of North America, most notoriously during the Salem Witch Trials. In the US, as well as the United Kingdom and the Commonwealth countries, this brutal approach gave way to more humane procedures and recognition that justice was not served by putting on trial a person who was unable to participate in a meaningful way in his or her own defense.

It is now well established in the US that the trial of an incompetent individual is incompatible with justice and violates the constitutional guarantee of due process under law. In addition to avoiding the brutality of the ancient methods, requiring that the defendant be competent to stand trial serves several purposes. These include the following: (1) the fact-finding portion of the proceedings can only be accurate if the defendant can work with his or her attorney with an understanding of the proceedings; (2) only a competent defendant can exercise the constitutional rights to a fair trial and to confront his or her accuser in a meaningful way; (3) the integrity and dignity of the legal process are preserved by ensuring that the defendant is competent to stand trial; and (4) the purposes of retribution and individual deterrence are served only if the convicted defendant was competent to stand trial.

In the US, the standard for competency to stand trial was established in Dusky v. U.S. Under the Dusky standard, the relevant inquiry is whether the defendant “has sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding, and whether he has a rational as well as a factual understanding of the proceedings against him.” When the issue of competency to stand trial is raised, the trial judge must conclude that the defendant is competent by a preponderance of the evidence: that is, that it is more likely than not that he or she meets the Dusky criteria.

The defense of criminal charges requires numerous complex decisions. As the Supreme Court noted in Godinez v. Moran:

“A defendant who stands trial is likely to be presented with choices that entail relinquishment of the same rights that are relinquished by a defendant who pleads guilty: He will ordinarily have to decide whether to waive his “privilege against compulsory self-incrimination,” by taking the witness stand; if the option is available, he may have to decide whether to waive his “right to trial by jury,” and, in consultation with counsel, he may have to decide whether to waive his “right to confront [his] accusers,” by declining to cross-examine witnesses for the prosecution. … In sum, all criminal defendants—not merely those who plead guilty—may be required to make important decisions once criminal proceedings have been initiated.”

Interestingly, although the Godinez court delineated the important rights and decisions that defendants going to trial and pleading guilty must contemplate, the court ruled against a heightened standard for competency to plead guilty (see discussion later in this chapter).

There have been numerous efforts to define the characteristics that distinguish defendants who are competent to stand trial from those who are not. A federal district court specified the following components of CST as meeting the Dusky criteria and indicating that a defendant is competent to stand trial:

“(1) That he has mental capacity to appreciate his presence in relation to time, place and things; (2) that his elementary mental processes are such that he apprehends (i.e. seizes and grasps with what mind he has) that he is in a Court of Justice, charged with a criminal offense; (3) that there is a Judge on the Bench; (4) a Prosecutor present who will try to convict him of a criminal charge; (5) that he has a lawyer (self-employed or Court-appointed) who will undertake to defend him against that charge; (6) that he will be expected to tell his lawyer the circumstances, to the best of his mental ability, (whether colored or not by mental aberration) the facts surrounding him at the time and place where the law violation is alleged to have been committed; (7) that there is, or will be, a jury present to pass upon evidence adduced as to his guilt or innocence of such charge; and (8) he has memory sufficient to relate those things in his own personal manner.”

There have been attempts to quantify these criteria, so that the evaluation becomes a more objective, structured clinical assessment rather than an impressionistic evaluation. Regardless of the assessment technique used, the threshold for finding a defendant competent to stand trial is very low, and defendants with serious symptoms of mental illness or cognitive impairment have been held competent to stand trial. The Supreme Court has made clear that the standard is minimal and straightforward:

“Requiring that a criminal defendant be competent has a modest aim: It seeks to ensure that he has the capacity to understand the proceedings and to assist counsel. While psychiatrists and scholars may find it useful to classify the various kinds and degrees of competence, and while States are free to adopt competency standards that are more elaborate than the Dusky formulation, the Due Process Clause does not impose these additional requirements. Individuals with disorders such as paranoid schizophrenia, dementia, and amnesia may be found competent to stand trial, so long as they meet the minimum threshold of knowledge and awareness required in Dusky and progeny cases.”

As noted earlier, judges have a constitutional obligation to address the issue of competency to stand trial, at any point in the proceedings, where the evidence raises “a bona fide doubt” as to competency. As a necessary condition for the criminal process to proceed, that evaluation can be carried out without the defendant's consent.

In the event that a defendant is found incompetent to stand trial (IST), the proceedings are suspended in order for the defendant to be “restored to competency” as determined on subsequent assessment. The restoration process may involve both treatment of the incapacitating illness and educational efforts aimed specifically at participation in the trial process. Programs aimed at “restoring” the competency of mentally ill and mentally retarded defendants have been instituted. Depending on the severity of the crime and the nature of the underlying illness, the charges may be dropped at this point. For example, in practice, charges of misdemeanor or non-violent offenses may be dropped when the individual has a mental illness and is committed for further treatment.

In cases involving more serious crimes, the defendant might be committed to an inpatient psychiatric facility for treatment and restoration of competency if the defendant has a treatable mental illness that impairs his or her CST. The defendant will be reassessed for CST periodically, as required according to the statute in that jurisdiction. In Jackson v. Indiana, the Supreme Court held that defendants who have no hope of restoration of competency cannot be committed indefinitely to state psychiatric facilities unless they meet the usual civil commitment criteria and standard procedures are followed.

As noted in Chapter 85 , all competent adults have a right to make their own decisions regarding medical treatment, and specific processes are used to protect the autonomy and legal rights of individuals even after they become incapacitated. Individual states may choose to provide a higher level of protection than the federal standards (see Chapter 85 ). The United States Supreme Court has handed down a number of decisions that set the minimum protections for individual autonomy under the United States Constitution for individuals found to be IST or to lack criminal responsibility.

In United States v. Charters, a United States Court of Appeals in 1988 addressed the issue of what procedures were necessary to protect the rights of a defendant who had been found IST and was refusing treatment with antipsychotic medication. The court held that even though involuntary treatment would constitute a deprivation of certain liberty interests, the defendant's rights could be adequately protected through a process that left the decision about whether medication should be administered involuntarily “to appropriate professionals exercising their specialized professional judgments rather than to traditional judicial or administrative-type adjudicative processes.”

Four years later, in 1992, the Supreme Court addressed the circumstances under which an IST defendant could be involuntarily medicated to restore his competency to stand trial in Riggins v. Nevada. The Court held that in order for a state to impose antipsychotic medication on an objecting defendant for the purpose of rendering the defendant competent to stand trial, the state must show that the treatment is both medically necessary and appropriate. In deciding the case, the Court looked to its earlier opinion in Washington v. Harper, in which it held that a state may treat an inmate with antipsychotic medication against his will if the inmate has a serious mental illness, “is dangerous to himself or others and the treatment is in his medical interest.”

The Supreme Court in 2003 refined its holding regarding involuntary medication of IST defendants in Sell v. United States. Dr. Sell, a dentist accused of insurance fraud and attempting to have witnesses murdered, was found to be IST. The government sought to treat him with antipsychotic medication, which he refused, claiming that he had an absolute right to refuse treatment. The Court held that where a defendant is charged with non-violent crimes, the Constitution permits the government to administer antipsychotic drugs against the defendant's will in order to render the defendant competent to stand trial only under limited circumstances. The Court made clear that involuntary administration of psychotropic medication to a non-violent IST defendant can occur only when a court determines that: (1) important governmental interests are at stake; (2) the forced medication will significantly further those interests, that is, the medication is “substantially likely to render the defendant competent to stand trial and substantially unlikely to have side effects that will interfere significantly with the defendant's ability to assist counsel in conducting a defense”; (3) the involuntary treatment with medication is “necessary to further those interests and find that alternative, less intrusive treatments are unlikely to achieve substantially the same results”; and (4) administering the drugs is medically appropriate.

It should be noted that in none of these cases did the Supreme Court hold that the United States Constitution requires more than administrative proceedings before a patient can be involuntarily medicated, although appeal to the courts from the administrative decisions is not barred. This issue was recently revisited by the U.S. Court of Appeals for the 9th Circuit in U.S. v. Loughner. Mr. Loughner, who had shot and wounded Congresswoman Gabriel Giffords and 11 others, and killed 6, including Federal District Court Judge John Roll, was found to be a danger to himself and others and incompetent to stand trial. The Court upheld a lower court's order that he be medicated involuntarily and his commitment extended to allow him to be restored to competency.

The federal approach differs from that taken by a number of states, which require full adversarial proceedings before involuntary medication of IST defendants and insanity acquittees. Overall, states differ in how they address the issue of involuntary medication of both civilly-committed and IST individuals.

Competency to Plead, Decline Counsel, and Represent Oneself

The reality of the criminal process is that many defendants do not reach trial. Instead, they plead guilty, usually in exchange for a reduced sentence through the plea-bargaining process. When a criminal defendant pleads guilty, he or she waives many important constitutionally-protected rights, including the protection against self-incrimination, the right to a trial by jury, the right to confront witnesses against him or her, and the right to appeal the conviction. Against this backdrop, several landmark cases have addressed the issue of whether a separate standard for competency to plead guilty should be established. In addition, acknowledging that the decision to waive counsel also entails the relinquishment of a constitutionally-protected right, the question of whether a standard other than the CST standard applies in determining competency to waive counsel has been addressed. Notwithstanding these inquiries, in Godinez v. Moran , the Supreme Court made clear that it recognizes a unitary competency standard, the Dusky CST standard ; however, the Court also commented that the states were free to adopt higher standards. In a subsequent case, Edwards v. Indiana , the U.S. Supreme Court explicitly recognized that representing oneself (known as proceeding pro se ) requires greater ability than entering a plea or even waiving the right to counsel and definitively held that states may deny the right to self-representation unless the defendant meets a higher competency standard.

Competency to be Executed

Competency is also required before a person convicted of a capital crime and sentenced to death can be executed. The standard for competency to be executed is whether the condemned person has an understanding of the nature of the proceedings and can participate in the process. Requiring competency to be executed serves several purposes: (1) it preserves the integrity of the sentencing and punishment process; (2) it ensures that the convicted individual will have the ability to contest the decision through all stages of appeal before imposition of punishment; and (3) it ensures that the deterrent function of punishment is served by punishing only those who have the requisite mental capacity.

The importance of the mental status of death row inmates and competency to be executed is reflected in a number of key United States Supreme Court cases. In the 1986 case of Ford v. Wainwright, the court held that execution of the insane is a violation of the Eighth Amendment prohibition against cruel and unusual punishment, and that death row inmates are entitled to a full and fair hearing on the issue of competency to be executed.

The Supreme Court did not find a blanket bar to capital punishment for the mentally retarded until nearly two decades later. In 2002, the court reversed its prior rulings on this issue and held that execution of the intellectually-disabled violates the Eighth Amendment. Two years later, in Roper v. Simmons, the court further narrowed the parameters for constitutionally-permissible executions when it held that imposition of the death penalty for crimes committed when offenders were under age 18 also violated the Eighth Amendment.

The involvement of psychiatrists and other physicians in executions is controversial. The American Medical Association has taken the position that physicians should not participate in legally-authorized executions. Similarly, the American Psychiatric Association took the position in a 1990 Ethics Committee Opinion that it is unethical for a psychiatrist to participate in executions. Debate remains regarding the morality of psychiatrists conducting competency evaluations for execution. At a bare minimum, the prisoner must be informed of the purpose of the evaluation and the limitations on confidentiality. Similarly, if psychiatrists become involved in the treatment of death row inmates, they must inform prisoners of their professional roles and the limits on confidentiality.

One of the more controversial roles played by psychiatrists in this area has been testimony on the issue of future dangerousness, a key element used in determining whether a convicted murderer will be sentenced to death. That issue has been the subject of a series of landmark Supreme Court cases. In Estelle v. Smith, the court held that a condemned inmate's Fifth Amendment right to freedom from self-incrimination and his Sixth Amendment right to assistance of counsel had been denied when a psychiatrist who had examined him for competency to stand trial was allowed to testify to his dangerousness at the penalty phase and the defendant had not been informed of the purpose of the evaluation or his right to have an attorney present.

In Barefoot v. Estelle, the Supreme Court held that while a state cannot compel a defendant to submit to a psychiatric evaluation, there is no constitutional barrier to a psychiatric expert using hypothetical questions as a basis for testimony about a defendant's dangerousness. The court specifically rejected the American Psychiatric Association's position that dangerousness predictions are inherently unreliable and that such testimony should be excluded entirely.

Another area of controversy has been refusal of treatment by condemned prisoners who have been found incompetent to be executed. The logical outcome of successful treatment, of course, would be death. These cases present the ethical issues for treating physicians, highlighted earlier, and the legal issue of whether a condemned prisoner may be treated against his will for the purpose of restoring him to competency, thus allowing the death sentence to be carried out. In Perry v. Louisiana, the United States Supreme Court overturned the decision of the Louisiana Supreme Court, which had held that the state's interest in rendering a death row inmate competent to be executed by involuntary administration of antipsychotic medication outweighed the inmate's right to refuse medical treatment. Noting that in Washington v. Harper it had included “best interests of the prisoner” among the criteria for involuntary treatment of prisoners with antipsychotic medication, the Court vacated the sentence and remanded the case back to the state court for reconsideration in light of Harper. On remand, the Supreme Court of Louisiana held that forced administration of antipsychotic drugs to restore a prisoner's competency to be executed violates the state constitutional right to privacy and constitutes cruel, excessive, and unusual punishment.

At this point in time, with the approval of the United States Supreme Court, those jurisdictions that use the death penalty look to psychiatrists and other mental health professionals to assess the competency of prisoners to be executed, to treat their illnesses to restore them to competency, and to assess dangerousness.

Criminal Responsibility

A fundamental principle of criminal justice is that individuals with severe mental illness or developmental disabilities are not to be held responsible for their otherwise criminal acts. The concept itself, and the derivative question of what to do with individuals who are found not guilty by reason of insanity (NGRI), have been the subject of much debate and have generated fluctuating standards. Few activities of mental health professionals get as much media and public attention and spark as much controversy as testimony on these matters.

A detailed history of the evolution of the insanity defense is beyond the scope of this chapter, but interested readers may wish to consult the classic texts on the subject, as well as some of the more modern and readily available treatises on the insanity defense.

The history of the insanity defense is a chronicle of society's struggles over moral responsibility, ecclesiastical influences, historical events, the nature and level of scientific understanding of mental illness, and public attitudes about the mentally ill. For example, the episodic mental illness of King George III is believed to have had a major influence on the attitudes of the public, and therefore the jurors of the time, and may have benefited some criminal defendants of the period. There are numerous examples of the criminal responsibility standard being tightened after the perpetrator of a notorious crime is found NGRI: for example, James Hadfield, Daniel M'Naghten, and John Hinckley. The modifications tend to be such that the infamous defendant would have been found criminally responsible under the newly modified standard.

Before turning to the insanity defense itself, an overview of the basics of criminal law and related defenses is useful. In order for an individual to be convicted of a crime, there must be a guilty act (actus reus) and guilty intent (mens rea). Mens rea is considered in both a general and specific form. In its general form, it refers to the overall capacity of an individual to form the intent to commit the crime in question and thus his or her blameworthiness or legal liability. For example, an individual who takes someone else's automobile for his own use when directed to do so by auditory hallucinations, or who is not even aware that he is stealing a vehicle, is unlikely to be found to have had the necessary intent to be found blameworthy. In its specific or narrow form, mens rea is an element of a group of crimes referred to as specific intent crimes: for example, larceny of a motor vehicle (knowingly taking possession of property that is not your own, for your own use, and with the intent to deprive the true owner of its use) or murder. (Under Massachusetts law, murder is defined as follows: “Murder committed with deliberately premeditated malice aforethought, or with extreme atrocity or cruelty, or in the commission or attempted commission of a crime punishable with death or imprisonment for life, is murder in the first degree. Murder which does not appear to be in the first degree is murder in the second degree. Petit treason shall be prosecuted and punished as murder. The degree of murder shall be found by the jury.” From MGL Ch. 265 §1.)

Beyond the obvious defenses of denying that he or she committed the act, or that no crime occurred, a criminal defendant has two broad categories of defenses available: justification and excuse. The distinction between the two categories is not always clear: for example, the difference between self-defense (justification) and duress (excuse) is often more apparent than real.