Bioethics, healthcare policy, and related issues.
Patti Davis – daughter of Ronald Reagan – has an opinion article in Time Magazine today, arguing against the release of John Hinckley from the psychiatric hospital where he was confined after attempting to assassinate Reagan 30 years ago this week, in the throes of a psychiatric obsession that led him to seek fame through violence. The piece is calm and rationally written, and sympathetically conveys the suffering of the several victims of the shooting and their families. But it’s a perfect example of the dangers of confusing punitive and rehabilitative detention, and of treating medicine and psychiatry as tools for governmental control of citizens’ beliefs, values, or behavior.
Davis’s article turns almost exclusively on the apparent resentment she feels at the prospect of Hinckley’s life getting better while his victims still suffer. She dwells on the seriousness of Hinckley’s actions, spending the first third of the text on the injuries sustained by the victims and the toll that took on their family members. She details their wounds, their lasting disabilities, how their children cried, how their wives felt then and now, even the noises they make in their sleep. She lards the piece with a slightly resentful description of Hinckley’s life in the locked facility: after many years, he was allowed gradually increasing off-site visitation with his family, and now has the privilege to spend up to a third of each year on what amounts to house arrest under direct supervision at his mother’s home; she seems particularly peeved that he has reportedly had several girlfriends among the female population of the hospital (Davis goes to lengths to detail the violent incident that committed one of his girlfriends to the place, as if Hinckley himself should remain incarcerated because of what she did). Davis almost entirely avoids the question why Hinckley is in a hospital, rather than a prison, or why he has been granted increasing freedom while there, or why he might someday be released back into the community. (I.e., he really was sick; he really has gotten better.) She acknowledges that he was found to be mentally incompetent at the time of trial, but at the end of the piece lapses into the lazy trope that he “beat the legal system” because of his “wealthy parents who bought him a tenacious lawyer” – as if stalking a teenage girl for years, attempting to assassinate two presidents (he was arrested while stalking Carter with a gun), and then writing to the woman that “I’m going ahead with this attempt now . . . I cannot wait any longer to impress you”, just before shooting four people including the President of the United States, is the sort of thing an ordinary, non-mentally-ill criminal usually does (and as if somehow he was only entitled to a cheap lawyer who was easily discouraged – yes, Davis actually says that it was unfair of him to have a good lawyer). She ends with further vengeful complaints about the fabulous life she somehow imagines him leading after more than 30 years in a locked psychiatric facility (“Hinckley might in time reside as a free man in Williamsburg, stopping at the local coffee shop, browsing bookstores, maybe venturing onto the local tennis courts and golf courses”), compared to the ongoing pathos of the lives of the victims of his crime (“Jim Brady will live the rest of his life in a wheelchair and a bed. . . . Tom Delahanty will stay out of reach, forever scarred. My mother will hear the echoes of that day”).
This is entirely understandable, and terribly dangerous. It’s also an excellent illustration why victims’ family members are not allowed to serve on juries or parole boards for the people who hurt them: we can sympathize with their anger, but we can’t imagine they could be reliable judges. Davis does an end-run around that, in this case, by trying Hinckley’s case for release in a two-page spread in a national magazine, based virtually entirely on her own emotional reactions to his attack on her family and their supporters. Hinckley gets to make no statement on his own behalf, let alone in Time Magazine. And that is a particular concern in this case, because Davis is trying not just Hinckley but every patient in the forensic psychiatry system. The Hinckley case has already all but destroyed mental healthcare for accused criminals, and eviscerated the basic concept of moral responsibility as instantiated in our legal system. (The case prompted a nation-wide gutting of diminished-capacity laws, thereby diverting people who, by definition, are not deterred by the criminal law into prisons where they cannot be treated for the conditions that caused them to harm others, while assigning legal punishment for acts for which they cannot be held morally responsible.) I don’t know if Davis is trying to close the circle by shutting down Hinckley’s own treatment pathway, or is just angry, but she is attacking not just the man who attacked her father, but whatever little may remain of an entire nation’s willingness to make basic moral distinctions and to deal with the relationship between responsibility and justice in an informed way. You can understand and sympathize with her reaction to her father’s shooting, but we can’t let her personal interests and emotions further damage the moral and scientific basis of what, already, can only ironically be called our justice system.
Diminished capacity defenses (“not guilty by reason of insanity”) exist for two reasons: the basic medical fact of a lack of rational or moral evaluative capacity in some people who are otherwise behaviorally functional, and the basic moral facts that the ability to control one’s behavior is pre-requisite to bearing responsibility for it, and that moral responsibility for bad behavior is pre-requisite to punishment. Hinckley is as good a case as you will ever find of the need for this category in the criminal law: he distorted his entire life for years to pursue a fantastical relationship with someone he had no real connection with, and he truly believed that shooting the President would convince her to love him; he would never have acted as he did without these clearly insane beliefs, and he acted without any recognition that his actions were wrong. He was clearly mentally ill, and that was clearly the reason for his violent act (facts that were amply confirmed upon examination before his trial). Punishing people who cannot control themselves for psychological reasons is as inhumane as punishing epileptics for being possessed by the devil – and rests on an equally indefensible obliviousness to the link between punishment and guilt. Furthermore, it’s pointless, and undoubtedly counterproductive: it drives the sickest malefactors away from the mental-health system that might do them some good, and sentences them to incarceration for specified periods with virtually no real psychiatric care, followed by release of the untreated, prison-damaged inmate back into the community. The whole point of a psychiatric plea is to shift cases involving mentally ill defendants out of the prison system and into a treatment system, which is what they need, what will benefit society most, and what makes most sense in light of their actual fact of diminished moral capacity and thus diminished moral liability for irrational behavior.
Recognizing the fact of moral guiltlessness in the severely mentally ill does not give them free rein to harm people at will; in fact, it often consigns them to far more extensive restrictions on liberty than an ordinary jail sentence would do. Violent criminal defendants who are acquitted by reason of insanity are diverted to involuntary detention facilities in which, in every state, there is no legal limit to how long they can be held, no matter how minor their original offense was. (Most states grant some sort of right of periodic petition for re-evaluations of the patient’s mental state, and possible release, but that in no way guarantees that patients will be freed without their doctor’s recommendation. In another time in my life, I personally attended hundreds of these hearings and never once saw a patient released over a doctor’s objection.) This makes sense, since, again, the whole point is that they are ill, and are held because they are ill, and thus should be held as long as they are ill, even if the sentence they would have gotten for a criminal conviction would have been shorter. But for exactly the same reason, such patients must be released when they are no longer ill. And similarly, it is important that the situation in which they held be the least restrictive one possible – both because the restriction is not intended to be punitive, and the patients should be held free of unnecessarily burdensome impositions, but also because less-restrictive settings, including passes into the community when appropriate, are likely to be more beneficial in most cases.
Mentally ill people do get better, and when they do get better, they should be freed from confinement. Understandably this rankles some, like Davis, who may have been harmed by their behavior while ill (and the many more who simply hate people they don’t understand, and like to hurt the downtrodden); but personal resentment, even actual victimization, are grounds for sympathy, not grounds for vacating the most basic moral distinction – between being morally responsible for one’s actions and thus liable to punishment, and not being responsible and thus subject to paternalistic treatment – still less for making our heartless legal system less humane and less devoted to moral right.
Davis is right that Hinckley’s actions did terrible harm, to his immediate victims and many others who care for them. She is justified in resenting its toll on her family. And it is worthwhile to acknowledge those people’s sufferings, and to sympathize with them for the terrible and undeserved thing done to them, and for what they still suffer as a consequence. But she is completely wrong in offering these woes – almost exclusively – as a justification for using Hinckley’s medical incarceration as a form of overt punishment. No one must be punished for acts over which they could not exert effective control – the very definition of “diminished capacity” – and we must not turn our medical system – especially its government-controlled functions – into a tool of coercion or retribution. But there is virtually no discussion in Davis’s article of the basic question whether Hinckley is fit to return to the community; in fact, Davis seems to agree that he has shown good behavior and general improvement during his time in the hospital and does or eventually will qualify for release. She details the discomfort some of his victims feel at that prospect, but that also is not evidence about Hinckley, but about them; as before, Davis’s entire understanding of the case is focused on the victims, but the question at hand – not a question of loyalties or sympathies, but of straightforward clinical fact – is whether Hinckley himself now has the psychological capacity to assume his place as a free citizen, that is, whether his treatment has been so successful that it can now be ended (or at least shifted to an outpatient basis).
Davis substitutes her concerns for Hinckley’s acts, seen as a crime, for the answer to the clinical question about his current mental health status. But Hinckley’s act – however terrible – was not a crime. It was the product of mental illness he could not control. That is why he was not convicted of a crime, but was consigned to treatment for his illness. The whole point to that treatment was that it was supposed to make him better. It apparently has – and that fact has to mean something; specifically, it means he doesn’t need (the same) treatment any more, and thus there’s no justification to impose it on him. It is even more egregious to use a locked psychiatric facility as a prison just because we may resent the fact that he didn’t go to prison the first time, and nothing less than barbaric to subject him not only to incarceration but harsh medical treatments (he apparently was subject to mandatory drug therapy) for no reason other than we approve of the fact that he doesn’t like them.
Thanks to the outrage of short-sighted people, Hinckley’s act was seized on in the early 1980s as an excuse to eliminate mental illness as a consideration in assigning criminal guilt under federal law and in many states; the law in most cases in the US now declares, implicitly, that there is no such thing as diminished capacity – that all persons are morally responsible for what they do whether or not they understood it, intended its consequences, or could control it. Those who demonized Hinckely the first time brought US law back to the level of the Puritans who hanged animals for “crimes” they had committed, such as kicking a farmer – holding all bad acts to be liable to punishment whether or not the actor was morally responsible for them. Davis now invites us to do the same to Hinckley himself, 30 years after the event, by consigning him to endless incarceration and involuntary medical treatment when she herself acknowledges that he no longer needs it.
If we are to have a forensic clinical treatment system that is anything at all but another fancy way to torture people, we have got to acknowledge and cleave to basic principles of morality and justice – principles that were once the pride of US law and society, and are now often treated as mere inconveniences. If we’re not going to close Gitmo, we can at least refrain from turning hospitals into mini-Gitmos for anyone a prominent person happens not to like.
[Cross-posted to the general-issues blog Lean Left.]
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