Philosophical Tensions
�Free will vs. determinism
�Libertarianism vs. paternalism
�How do we determine truth?
�State, parents, or children
Free will vs. determinism
- Determinism essential for science
- Free will essential for law (responsibility)
free will
�Capacity to make choices and act on them
�Assumed in the law
�Basic to notion of criminal responsibility
�Makes people legally accountable for their actions
determinism
�Behavior is caused by potentially knowable forces (biological, psychological, social)
�Basic to science
�If behavior is not determined, how can we predict it?
exception of criminal responsibility
insanity defense
insanity
�The legal system's exception to free will
�Not the same as mentally ill
tests for insanity
�Right from wrong
�Irresistible impulse
�Product test
�Guilty but mentally ill
mental illness in prison populations
�Mental illness rampant in prison populations
�America's 3 largest mental health facilities are jails
Insanity Defense- John Hinckley
�1981
�Shot Ronald Regan, wounded James Brady
�Psychotic; Jodie Foster
�Found NGRI (case study)
�Burden of proof on prosecution; now defense
�St. Elizabeth's Hospital
�Had been given release up to 17 days/month
�September 10, 2016 fully released
Burden of proof for Insanity in State, Federal Laws
�Criminal: innocent until proven guilty
- After Hinkley, generally on defense to prove insanity
standard of proof for Insanity in State, Federal Laws
�"Preponderance of evidence" (states)
�"Clear and convincing evidence" (federal)
�"Beyond a reasonable doubt" (crimes, not insanity)
Preponderance of evidence
the greater weight of the evidence required in a civil (non-criminal) lawsuit for the trier of fact (jury or judge without a jury) to decide in favor of one side or the other. This preponderance is based on the more convincing evidence and its probable tr
Insanity: State, Federal Laws
�Grounds differ between states
�All right from wrong; some irresistible impluse; none product
accuracy of tests for insanity
�Tests not objective
�Experts often disagree - sometimes "hired guns"
�Judge, jury imperfect; influenced by many factors
use of Insanity
�Use: 1% of cases; 25% success
�(= successful in .25% cases)
Insanity Defense- Lorena Bobbitt
�Severed husband's penis
�No mental disorder
�Abusive relationship
�Found NGRI
�45 day evaluation
�Mental state at the time of the act
�"Temporary insanity
Insanity Defense- Andrea Yates
�2001
�Drowned her 5 children in tub
�Depressed, psychotic
�NGRI failed
�Retrial NGRI worked
�In hospital; said to grieve her children
Insanity Defense- Jeffrey Dahmer
�Murdered, raped, and dismembered 17 men and boys
�Borderline personality disorder
�Insanity defense failed
�Murdered by inmate
Insanity Defense- �James Holmes
�Smoke bombs, multiple guns
�82 people shot, 12 killed
�Acted like the "joker"
�Schizophrenia diagnosis
NGRI failed (2015)
factors of mental illness that affect criminal responsibility
1. competence
2. mitigating factors
3. insanity
competence
�Ability to understand legal proceedings and participate in own defense
�Competence to stand trial, to understand Miranda warnings, to be sentenced to death...
�Legal action cannot proceed until competent
�Typically confine while awaiting competence...
-
mitigating factors
�Sentencing
�Intellectual disability and death penalty
�Virginia v. Atkins
use of mitigating factors for defense- ethan crouch
�Killed 4 people DUI, alcohol, drugs
�"Affluenza" defense (hired expert)
�Sentenced to treatment; violated probation; fled
�In jail for 2 years
�NOT advocating "affluenza."
�Shocking example of application of
�issue of mental illness and responsibility.
�
�Libertarianism vs. paternalism
�Protecting individual rights vs. caring for ill
Libertarianism
�State's duty to protect civil liberties
�Example: habeas corpus
habeas corpus
�A court order that an imprisoned individual be brought before a court to determine if imprisonment is lawful
�Magna Carta - 1215, limiting English king's power
Paternalism
�State's duty to protect it's citizens
�Example: Shouting "fire" in crowd theater
preventative detention
�Civil liberties prohibit preventative detention - imprisonment before a crime is committed
�One exception: Civil commitment
civil committment
Involuntary civil commitment in the United States is a legal intervention by which a judge, or someone acting in a judicial capacity, may order that a person with symptoms of a serious mental disorder, and meeting other specified criteria, be confined in
Civil Commitment: Two Broad Justifications
�1. Parens patriae
�2. Police power
parens patriae
parent of nation," means "state as parent" --> duty to protect
�Juvenile courts too
�Danger to self (imminent suicide risk)
�Inability to care for self (less common)
police power
public safety
�Danger to others (imminent violence risk)
Civil Commitment procedures
�Emergency commitment - 2-3 days; Deeds case
�Formal commitment
"clear and convincing evidence of imminent danger to oneself or others
new trends of Civil Commitment
1. Advance psychiatric directives
2. "Megan's Law"
3. Sexual predator laws
Advance psychiatric directives
�Balances libertarian and paternalist concerns
Megan's Law
community notification laws
- Megan Kanka (N.J.) murdered by sex offender living across the street
Sexual predator laws
civil commitment following criminal sentence
�General rather than imminent risk
�"a volitional impairment rendering them dangerous beyond their control
patient rights in Civil Commitment
�Involuntary hospitalization does NOT mean the loss of all rights
�Right to treatment
�Right to treatment in least restrictive environment
�Right to refuse treatment (limited)
�Informed consent
�Substituted judgment
informed consent
(1) tell risks/benefits
(2) understand/freely consent
(3) competent
Substituted judgment
a decision made by a person on behalf of a person who is incompetent and unable to decide for himself or herself
Attempts to Balance Libertarianism and Paternalism
�Outpatient commitment
�Advance psychiatric directives
Is our legal system too libertarian about mental illness?
Rotting with their rights on"
�J case
�Homelessness
�Coercive treatments like PACT and ACT
�ACT = assertive community treatment
�Is our legal system too coercive about mental illness?
�Failure to protect patients' civil rights
prevalence of serious mental illness among prison populations
�64% in local jails
�56% state prisons
�45% federal prisons
�How do we determine truth?
�Adversary system vs. objective replication
adversary system
two sides
�Rhetoric (convincing judge, jury)
�Cannot lie, but can "spin" facts
�Lawyers' duty: Zealous advocacy
�Example: "Shop" for judges, expert witnesses
objection replication
�Scientific methods
�Dispassionate discourse
expert witness
�Can testify about opinion, not just fact
�Often hired guns (sometimes appointed)
�Custody cases
�Often based on weak/nonexistent science
�Asked philosophically impossible questions (What is "best" for children?
What are limits of free will?)
�Debate abou
accuracy of expert prediction
between risk for violence and no risk for violence
�Experts can predict beyond chance levels
�Expert prediction still is imperfect
�Cost of false positives and false negatives
�Some errors more acceptable
- Errors high with low base rate problems
base rates and prediction: Justice Blackmun's error
predicting rare events is flawed for mathematical reasons
- base rates, population frequencies, strongly contribute to errors
- assume that (1) future, serious violence has a base rate of 3%; (2) clinicians predict that violence will occur in 6% of the po
�Negligence
Substandard care
Malpractice
Negligence that leads to harm
confidentiality
�Disappears in custody disputes in VA
Tarasoff
1. Duty to warn (directly warn victim)
2. Duty to protect (e.g., hospitalizing if potentially violent)
�State, parents, or children
�Whose holds rights and responsibilities in families (and in family law)?
legal standard in Child Custody Disputes
Children's Best Interests
�But "best" is poorly defined
� ambiguous rules invite conflict between parents
�Which is not "best" for children
how Virginia code defines 'best'
1. The age and physical and mental condition of the child, giving due consideration to the child's changing developmental needs;
2. The age and physical and mental condition of each parent;
3. The relationship existing between each parent and each child,
dispute between married parents
courts still wont hear
- "Dispute between parents when it does not involve anything immoral or harmful to the welfare of the child is beyond the reach of the law. The vast majority of matters concerning the upbringing of children must be left to the consc
Why Deny "Rights" to Married couples?
�Even if adjudication might help an individual case, it would hurt broad policy goals
�Not unlike parents refusing to intervene in disputes between siblings
�"I am not going to referee this!
Are unmarried, separated, divorced so different than married parents?
�Over 40% of children born outside marriage
�Over 40% first marriages end in divorce
past vs. current custody disputes
�Past: Fault, one parent wins custody; the second parent becomes a visitor
�Present: No fault, joint custody, renegotiating relationships, coparenting, parenting plan
- All focus on importance of continuing relationship between parents who part