Courts and psychiatry

Criminal courts which occasionally find people who have committed horrible violent crimes "not guilty by reason of insanity" ("NGRI") absolutely must look at things from a view near the top of my scale of psychiatric faith. They would not otherwise prevent two of the most important purposes of criminal law: retribution and deterence. And they could not otherwise condemn a person to the dehumanizing torture of psychiatric treatment.

Judges know that it is their job to actually punish criminals, not merely to rehabilitate them. Society has always demanded this. Part of the theory is very simple -- people don't like being punished, so if they have good certainty that they are likely to be punished for certain acts (murder, robbery), they will try to refrain from committing those acts and there will be less trouble in the world. The other part of it is just the old "eye-for-an-eye" deal. In any event, punishment for crime has a long and solid foundation in the experience of humanity.

At some point we started thinking punishment shouldn't be cruel and unusual, and that thought apparently merged over into an idea that we shouldn't punish anyone at all if we can avoid it. This probably isn't unnatural for people experiencing little or no crime over an extended period. They wonder if, after all, there aren't any real bad guys. Judges know better of course. But they often need to get elected or appear human and gentle at cocktail parties. When we're not starving or being shot, we all shy away from punishing others.

Psychiatrists offer this spectacular mirage: insanity is brain disease. Every crime appears to be an insane act to the society defining it as a crime. So perhaps punishment won't stop crime, but curing brain disease will. Once again, judges know better, deep down, but they get talked into this, by certain oh-so-nice people around them.

Well, if it were true and it worked, we'd all be less worried about crime and insanity these days. Witness the whole Loughner affair, it seems to me the opposite is the case.

Courts feel moral pressure from opposite directions. A motive to be civilized, medical-scientific and social wherever possible tends toward confidence in psychiatric expertise. Fear of punishing wrongfully makes it very difficult to admit what psychiatric treatments really do to people.

Most of my clients would have preferred sentences to prison over commitments to psych institutions. Their "hospitalizations" were honestly experienced as nightmares of torture, not least because everyone pretended to be helping them. In prison at least the deal is honest.

Ironically, judges punish most wrongly by trying not to punish.

Convincing a murderer to lie (they all know it's a lie) ... that the reason for the crime was not actually his or hers, or in fact any reason at all, but merely a concatenation of neurotransmitters and receptors that can only ever be understood or managed by The Doctor ... is true dehumanization, the worst kind of torture. (And the drugs are no picnic either.)

This is why courts finding defendants NGRI remain ever after touchy about definitions of mental treatment. It has to be medical. The defendant had to be insane, and his or her insanity had to be a real brain disease.

Otherwise, the judge obstructed human justice and handed out perverted, cruel punishment from mere cowardice and error.

Criminal judges simply cannot afford to understand psychiatry from any point of view other than the top levels of utmost faith.