Write a two page paper on Law and Ethics in Abnormal Psychology.

Write a two page paper on Law and Ethics in Abnormal Psychology. Be sure to include at least one paragraph about the role technology plays in counseling and ethics surrounding its use. (issues with Telehealth, use of internet resources, etc.). Cite at least four references.

Textbook :

Sue, D., Sue, D. W., Sue, D., & Sue, S. (2014). Essentials of understanding abnormal behavior (2nd ed.). Belmont, CA: Wadsworth Cengage Learning.

Chapter 16

16-1Criminal Commitment
A basic premise of criminal law is that all of us are responsible beings who exercise free will and are capable of choices. If we do something wrong, we are responsible for our actions and should suffer the consequences. Criminal commitment is the incarceration of an individual for having committed a crime. Although the field of psychology accepts different perspectives on free will, criminal law does not. Criminal law does recognize, however, that some people lack the ability to assist in their own defense or to discern the ramifications of their actions because they are mentally disturbed.

Although they may be technically guilty of a crime, their mental state at the time of the offense might exempt them from legal responsibility. Additionally, they might be mentally incapable of participating in criminal proceedings against them. Let us explore the landmark cases that have influenced how criminal law is applied to individuals who are seriously mentally ill. Standards arising from these cases and some other important guidelines are summarized in Figure 16.1.

Figure 16.1Legal Standards That Address the Mental State of the Defendant

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16-1aCompetency to Stand Trial
Case Study

On June 5, 2002, Brian David Mitchell kidnapped 14-year-old Elizabeth Smart at knifepoint from her Salt Lake City, Utah, home. The incident set off a massive search effort and evoked intense media coverage. Smart was rescued 9 months later after enduring a horrendous experience that included a forced polygamous “marriage,” frequent rapes, and constant threats to her life. Mitchell, a former street preacher, was arrested for the crime, but claimed that God had commanded him to abduct Smart, to enter into a celestial marriage, and to form a religious society of younger females.

Despite his capture and arrest, Mitchell’s trial did not begin until November 2010—almost 9 years later. The delays occurred because in three separate court hearings, Mitchell was judged “mentally incapable of assisting in his own defense.” In the courtroom he sang hymns and screamed at the judge to “forsake those robes and kneel in the dust.” His behavior was so bizarre that he was banished from the courtroom several times.

As a result, the judge ordered that Mitchell be hospitalized until he was capable of understanding the proceedings. Mitchell refused to participate in psychiatric treatment or to take antipsychotic medication. Finally, following a series of hearings and review of conflicting opinions from various experts who evaluated Mitchell, a federal judge ruled that Mitchell was competent to stand trial. At the trial, the jury rejected his insanity defense and found him guilty. On May 25, 2011, Mitchell was sentenced to life imprisonment without the possibility of parole.

Most court-appointed psychiatrists and psychologists who examined Mitchell declared him not competent to stand trial, although a few believed he was manipulating the system and feigning psychosis. The term competency to stand trial refers to a defendant’s mental state at the time of psychiatric examination after arrest and before trial. It has nothing to do with the issue of criminal responsibility, which refers to an individual’s mental state at the time of the offense. Federal law states that an accused person cannot stand trial unless three criteria are satisfied (Fitch, 2007):

· The defendant must have a factual understanding of the proceedings.

· The defendant must have a rational understanding of the proceedings.

· The defendant must be able to rationally consult with counsel in presenting his or her own defense.

These criteria suggest that a defendant who is severely psychotic, for example, could not stand trial because a serious impairment exists. Determination of competency to stand trial is meant to ensure that a person understands the nature of the legal proceedings and is able to help in his or her own defense. The goal is to protect and preserve the civil rights of people who are mentally disturbed. But being judged incompetent to stand trial may have unfair negative consequences as well. A person may be held in custody for an extended period of time, denied the chance to post bail, and isolated from friends and family, all without having been found guilty of a crime.

Such a miscarriage of justice was the focus of a U.S. Supreme Court ruling in the 1972 case of Jackson v. Indiana. In that case, a man with mental retardation and brain damage, deaf and unable to speak, was charged with robbery. However, he was found incompetent to stand trial and was incarcerated indefinitely—which in his case probably meant for life, because of the severity and unchanging nature of his disabilities. In other words, it was unlikely that he would ever be judged competent to stand trial on the robbery charges, and thus faced the prospect of being incarcerated for life. His lawyers filed a petition to have him released on the basis of deprivation of due process —the legal checks and balances that are guaranteed to everyone, such as the right to receive a fair trial, the right to face one’s accusers, the right to present evidence, and the right to have counsel.

The U.S. Supreme Court ruled that a defendant cannot be confined indefinitely solely on the grounds of incompetency. After a reasonable time, a determination must be made as to whether the person is likely or unlikely to regain competency in the foreseeable future. If experts conclude that competency is unlikely, the institution must either release the individual or initiate civil commitment procedures. This is a significant ruling because many people are committed to prison hospitals because of incompetency determinations. It is estimated, for example, that approximately 40,000 people in the United States are evaluated each year for competency to stand trial, and as many as 75 percent are determined to be incompetent (Zapf & Roesch, 2006). The Jackson v. Indiana decision prompted federal competency hearings in the case of Brian David Mitchell because he could not be held indefinitely without a trial; additionally, prosecutors pushed for another hearing because they did not want the statute of limitations on the charges to expire.

Legal Precedents Regarding the Insanity Defense
The insanity defense is a legal argument used by defendants who admit they have committed a crime but plead not guilty because they were mentally disturbed at the time of the crime. The insanity plea recognizes that under specific circumstances, people may not be held accountable for their behavior. As we saw in the case of James Holmes and Brian David Mitchell, defense strategies sometimes involve such a contention—that the defendants are not guilty because they were insane (not of sound mind) at the time of the crime.

In the United States, a number of different standards have been used as legal tests of insanity. One of the earliest is the M’Naghten rule. In 1843, Daniel M’Naghten, a mentally disturbed woodcutter from Glasgow, Scotland, claimed that he was commanded by God to kill the British Prime Minister, Sir Robert Peel. He killed a lesser minister by mistake and was placed on trial, where it became obvious that M’Naghten was quite delusional. Out of this incident emerged the M’Naghten rule, popularly known as the “right–wrong” test, which holds that people can be acquitted of a crime if, at the time of the act, they (a) had such defective reasoning that they did not know what they were doing, or (b) were unable to comprehend that the act was wrong. The M’Naghten rule has been criticized for being a cognitive test (knowledge of right or wrong) that does not consider motivation or other factors. Further, it is often difficult to evaluate or determine a defendant’s awareness or comprehension at the time of the crime.

Did You Know?

Hawaii requires several independent forensic evaluations when the insanity defense is used. Clinicians who evaluate the same defendant for insanity often reach different conclusions. It is not surprising that juries reached a unanimous decision regarding insanity in only 55 percent of cases, according to a review of 165 defendants and 483 evaluations in Hawaii.

Source: Gowensmith, Murrie, & Boccaccini, 2013

The second major precedent associated with the insanity defense is the irresistible impulse test . In essence, this doctrine says that defendants are not criminally responsible if they lacked the willpower to control their behaviors. Combined with the M’Naghten rule, this test broadened the criteria for using the insanity defense. In other words, a not guilty by reason of insanity verdict could be obtained if a jury determined that the defendant did not understand that his or her actions were wrong or if the actions resulted from an irresistible impulse to commit the acts (Finnane, 2012).

Criticisms of the irresistible impulse defense revolve around what constitutes an irresistible impulse. When, for example, is a person unable to exert control (irresistible impulse) rather than choosing not to exert control (unresisted impulse)? Is a man who rapes a woman unable to resist his impulses, or is he choosing not to exert control? Neither the mental health profession nor the legal profession has answered this question satisfactorily.

Legal understandings of the insanity plea were further expanded in the case of Durham v. United States (1954), when a U.S. Court of Appeals for the District of Columbia Circuit broadened the M’Naghten rule with the so-called “product test,” or Durham standard . This standard maintains that an accused person should not be considered criminally responsible if his or her unlawful act was the product of a mental disease or defect. The intent of the ruling was to (a) give the greatest possible weight to expert evaluation and testimony and (b) allow mental health professionals to define mental illness.

The Durham standard also has its drawbacks. The term product is vague and difficult to define. Additionally, if the task of defining mental illness is left to mental health professionals, it becomes necessary to consider definitions of mental illness on a case-by-case basis. In many situations, relying on psychiatric testimony serves only to confuse the issues, because both the prosecution and defense bring in psychiatric experts, who often present conflicting opinions (Koocher & Keith-Spiegel, 2008). What we know from cases such as those of James Holmes and Brian David Mitchell is that expert testimony can vary significantly.

In 1962, the American Law Institute Model Penal Code provided guidelines to help jurors determine the validity of the insanity defense. The guidelines combine features from the previous standards (Sec. 401, p. 66):

1. A person is not responsible for criminal conduct if at the time of such conduct as a result of mental disease or defect he lacks substantial capacity either to appreciate the criminality of his conduct or to conform his conduct to the requirements of the law.

2. As used in the Article, the terms “mental disease or defect” do not include an abnormality manifested by repeated criminal or otherwise antisocial conduct.

This second point was included to eliminate the insanity defense option for the many criminals diagnosed with an antisocial personality disorder who make a clear decision to violate the law.

In some jurisdictions, the concept of diminished capacity has also been incorporated into the American Law Institute standard. Diminished capacity is the absence of a specific intent to commit the offense as a result of mental impairment. For example, a person under the influence of drugs or alcohol may commit a crime without premeditation or intent; a person who is grieving over the death of a loved one may harm the person responsible for the death. Although diminished capacity is primarily used to guide the sentencing and disposition of defendants, it is sometimes introduced in the trial phase with the hope that the defendant will be convicted of a lesser charge.

Public Outrage over Acquittal Based on Insanity

John Hinckley, Jr. (center), was charged with the attempted murder of President Ronald Reagan. His acquittal by reason of insanity created a furor among the U.S. public over use of the insanity defense. The outrage led Congress to pass the Insanity Defense Reform Act.

Bettmann/Corbis

Insanity Defense Reform
Perhaps no trial has challenged the use of the insanity plea more than the case of John W. Hinckley, Jr., who attempted to assassinate President Ronald Reagan. The jury’s verdict that he was not guilty by reason of insanity outraged the public, as well as some legal and mental health professionals. Many were concerned that the criteria for the insanity defense were too broadly interpreted and calls for reforms were rampant. Hinckley’s recent request to move in full-time with his mother outside of the mental hospital has reignited this controversy (Milfeld, 2015).

As a result of the public outcry, Congress passed the Insanity Defense Reform Act of 1984, which based the definition of insanity totally on the individual’s ability to understand what he or she did. In the wake of the Hinckley verdict, some states adopted alternative pleas, such as “culpable and mentally disabled,” “mentally disabled, but neither culpable nor innocent,” and “guilty, but mentally ill.” These pleas are attempts to separate mental illness from insanity and to hold people responsible for their acts. Such pleas allow jurors to hold defendants responsible for their crimes while also ensuring that they receive treatment for their mental illnesses.

Did You Know?

A frequent misconception is that people with a mental illness are dangerous. The majority of people with mental disorders, including those with psychosis, are neither violent nor dangerous. Substance abuse and a history of violence increase the risk, however.

Source: Elbogen & Johnson, 2009

Despite attempts at reform, however, states and municipalities continue to use different tests of insanity, with varying outcomes. Under Colorado law, for example, prosecutors in the Aurora theater shooting were required to prove beyond a reasonable doubt not only that Holmes had “a culpable state of mind,” but also that he was “not insane” at the time of the shooting. In other words, the prosecution needed to convince jurors that Holmes understood right from wrong and that he acted with intent, deliberately taking actions that he knew would kill people. Only then could jurors find him guilty of murder and subject to life imprisonment or execution (Gurman, 2015).

16-1cContemporary Views on the Insanity Defense
The concept of “not guilty by reason of insanity” continues to provoke controversy among legal scholars, mental health practitioners, and the general public. Most defendants who use this defense have a long history of severe mental illness. James Holmes is an exception to this pattern. Another well-known exception is Andrea Yates, who, on June 30, 2001, waited for her husband to leave for work, filled the bathtub to the very top, and proceeded to drown her five children (ages 7 months to 7 years).

After killing her children, she carried them to a bedroom, laid them out next to one another, and covered them with a sheet. She then contacted 911. Afterward, she called her husband and stated, “You need to come home. . . . It’s time. I did it.” When asked what she meant, Yates responded, “It’s the children . . . all of them.” When the police arrived, Yates calmly explained how she had killed her five young children.

The case of Andrea Yates shocked the nation. How could a mother possibly commit such an unthinkable act? Her actions were especially heinous because she murdered her five children in such a methodical manner. During Yates’s trial, the prosecution asked for the death penalty, but the defense contended that because Yates committed the murders while experiencing severe postpartum depression and postpartum psychosis, she was legally insane and should not be held accountable for her actions. The jury, however, found her guilty. An appeals court subsequently overturned the verdict. During the second trial, another Texas jury found her not guilty by reason of insanity; she has since been confined to a mental hospital. In Yates’s case, she had experienced only one previous psychotic breakdown, following the birth of her fourth child.

Determination of guilt when someone who has an ongoing mental illness commits a serious crime can be especially complicated, as you will see in the following case.

Case Study

On February 12, 2008, 39-year-old David Tarloff used a meat cleaver to savagely attack and murder Kathryn Faughey, Ph.D., during an attempted robbery. The intended target of the theft was her colleague, Kent Shinbach, M.D., a 70-year-old psychiatrist. Seventeen years earlier, Dr. Shinbach had evaluated and recommended involuntary hospitalization for Tarloff—the first of Tarloff’s many hospitalizations. Tarloff had not seen Shinbach for years, but he tracked down Shinbach’s office address after concluding that he “must be rich.” Tarloff’s plan was to demand $40,000 from Dr. Shinbach so that he could “rescue” his mother from a nursing home and move her to Hawaii where he could take care of her in a villa that he would rent with the stolen money.

When Tarloff entered the office suite, he unexpectedly encountered Dr. Faughey and brutally attacked and killed her. When Dr. Shinbach heard Faughey’s screams and attempted to come to her aid, he was also viciously assaulted. Ignoring Dr. Shinbach’s serious injuries, Tarloff demanded money. Dr. Shinbach testified in court that Tarloff abruptly left when the doctor asked him, “Haven’t you done enough harm this evening? Why don’t you just leave?” After the attack, Tarloff reportedly threw his bloody clothes away and bought a change of clothing. A few days later, after his arrest, he said he was sorry for killing “that woman” but did not express concern about the serious injuries sustained by Dr. Shinbach; instead, he told detectives that the doctor was “a liar.”

During various court appearances, Mr. Tarloff rocked back and forth and appeared to be disoriented. According to his attorneys, Tarloff claimed that he had seen God’s eye in tables and floors and that God had approved of his plan to demand money from the psychiatrist. The lawyers explained that Tarloff had been a “normal,” well-liked high school student but that he had changed drastically after his first semester of college at Syracuse University. Soon afterward, he was diagnosed with schizophrenia. On numerous occasions over the next 20 years, he was involuntarily hospitalized due to the severity of his mental illness (McKinley, 2014).

Tarloff’s attorneys argued that the jury should find him “not guilty by reason of mental disease or defect.” His defense attorney called the case “an insane plan by an insane man who was legally insane when it happened.” Jury members needed to decide if Tarloff knew right from wrong during his attack. Did his delusions diminish his capacity to understand that his behavior was unlawful?

Not Guilty by Reason of Mental Disease or Defect?

David Tarloff, who has a long-standing history of schizophrenia, savagely murdered a psychologist and brutally attacked a 70-year-old psychiatrist. Although his defense attorney argued that he was insane at the time of the murders, on March 28, 2014, a jury found Tarloff guilty on all charges, including murder.

James Keivom/New York Daily News Archive/Getty Images

It took three separate trials before a jury was able to reach a verdict. The first trial, which began in the fall of 2008, was delayed when Tarloff adamantly refused to leave his cell during jury selection. This behavior raised questions about Tarloff’s competency to stand trial and led the judge to request that Tarloff receive a mental health evaluation. Based on assessment by two psychiatrists, the judge concluded that Tarloff was not competent to stand trial and ordered him to remain in a secure psychiatric facility until competency was established. Almost 2 years later, it was determined that Tarloff’s mental condition had sufficiently stabilized to allow him to understand the proceedings and to assist in his own defense. During the second trial, after 10 days of heated deliberation, the judge conceded that the jury was hopelessly deadlocked; some of the jurors were unable to agree to a guilty verdict, explaining that Tarloff’s mental illness clouded his ability to determine right from wrong.

A verdict was finally reached during the third trial. On March 28, 2014, after deliberating for 7 hours, the jurors found Tarloff guilty on all counts, including murder. Some jurors explained that although they recognize that Tarloff has a severe mental illness, they believe that he knew that what he did was wrong. One juror explained: “I believe he’s sick to a certain degree but not sick enough to not know right from wrong.” Another stated that she had no choice but to find him guilty because of the narrow criteria associated with the insanity defense and voiced her opinion that another choice should have been available to allow him to receive the mental health treatment he needs, “a box for an obviously mentally ill person who knows right from wrong” (McKinley, 2014).

Myth vs Reality

Myth
The insanity defense is often used because defendants who are found not guilty by reason of insanity spend less time in custody (jail, mental health institution, or prison) than those who are convicted.

Reality
As a rule, defendants found not guilty by reason of insanity spend as much if not more time in custody than those who are convicted. They often face a lifetime of judicial oversight even after their release. Further, the plea is infrequently used and seldom successful.

Less than 1 percent of defendants use an insanity defense and, even then, in only a small percentage of cases is the defense successful (Kois, Pearson, Chauhan, Goni, & Saraydarian, 2013). For example, on February 24, 2015, a Texas jury rejected the insanity defense and convicted Eddie Ray Routh of murder in the shooting deaths of former Marine Chad Littlefield and Chris Kyle, former Navy SEAL and author of “American Sniper.” The jurors concluded that, despite his severe mental illness, Routh failed to meet the legal threshold for insanity: inability to distinguish right from wrong because of a mental disease or defect (Keneally, 2015). Routh will serve life in prison without the possibility of parole.

Many of the cases discussed in this chapter are the exceptions to the rule; however, they are presented to help illustrate the ways in which psychopathology and the law intersect. These cases also received significant media attention and helped construct popular opinion about the insanity defense. In the limited cases where the insanity defense is successfully employed, the defendants usually have past hospitalizations; delusions or paranoia; a previous diagnosis of a serious mental illness such as bipolar disorder or schizophrenia; and few victims were involved (Conner, 2006).

Checkpoint Review
1. What is the difference between insanity and a mental disorder?

2. Compare and contrast the criteria used for the insanity defense.

3. What does being incompetent to stand trial mean? Does it differ from insanity?

Civil Commitment
Case Study

She was known only as BL (“Bag Lady”) in the area of downtown Oakland, California. By night, she slept on any number of park benches and in storefronts. By day, she could be seen pushing a shopping cart full of boxes, extra clothing, and garbage, which she collected from numerous trash containers. According to her sister, the woman had lived this way for nearly 10 years, without complaint from local merchants.

Over the previous 6 months, however, BL’s behavior had become progressively more intolerable. She had always talked to herself, but recently she had begun shouting and screaming at anyone who approached her. Her use of profanity was graphic, and it was rumored that she urinated in front of local stores. Although she never physically assaulted anyone, her menacing behavior frightened many pedestrians, customers, and shopkeepers. Local law enforcement officials occasionally detained her for short periods, but she always returned to her familiar haunts. Finally, her sister and several merchants requested that the city take action to commit her to a mental institution.

Action is required when people who are severely disturbed behave in a manner that poses a threat to themselves or others. The government has parens patriae (“father of the country” or “power of the state”) authority, which is the power to commit disturbed individuals for their own best interest. Civil commitment is the name of this action; it is the involuntary confinement of individuals judged to be a danger to themselves or others, even though they have not committed a crime. Thus, the commitment of a person in acute distress is purportedly a form of protective confinement and demonstration of concern for the psychological and physical well-being of that person or others. Civil commitment often involves situations such as potential suicide, threatened violence, destruction of property, or a loss of impulse control. Factors relevant to civil commitment are outlined in Figure 16.2.

Figure 16.2Factors in the Civil Commitment of a Nonconsenting Person

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Did You Know?

Each state has its own statute that defines civil incompetency or incapacity. Thus, practicing mental health professionals must know how the states in which they practice define these concepts.

Source: Demakis, 2013

It is best when civil commitment can be avoided because it has many potentially negative consequences. It may cause major interruption in the person’s life, loss of self-esteem, and dependency on others. A possible loss or restriction of civil liberties is another consequence—a point that becomes even more glaring if the person has actually committed no crime. In the case study, for example, BL had committed no criminal offense, although she had violated many social norms. But under what circumstances should someone be confined to a mental hospital?

16-2aCriteria for Commitment
States vary in the criteria used to commit a person, but there are certain general standards. It is not enough that a person is mentally ill; one or more of these additional conditions must exist before involuntary hospitalization is considered (Corey, Callanan, & Corey, 2010).

· Individuals present a clear and imminent danger to themselves or others. An example is someone who is displaying suicidal or unsafe behavior (such as walking out on a busy freeway) that places the individual in immediate danger. Threats to harm someone else or behavior viewed as assaultive or destructive are also grounds for commitment.

· Individuals are unable to care for themselves or do not have the social network to provide for such care. Most civil commitments are based primarily on this criterion. The details vary, but states generally specify an inability to provide sufficient food (the person is malnourished, food is unavailable, and the person has no feasible plan to obtain it), clothing (attire is not appropriate for the climate, and the person has no plans for obtaining other attire), or shelter (the person has no permanent residence, insufficient protection from climatic conditions, and no logical plans for obtaining adequate housing).

· Individuals are unable to make responsible decisions about appropriate treatments and hospitalization. This involves an inability to follow through with needed treatment. As a result, the person’s well-being is jeopardized and there is a strong chance of further deterioration in functioning.

· Individuals are in an unmanageable state of fright or panic. Such people may behave impulsively or feel that they are on the brink of losing control of their behavior.