The Mental Illness Excuse

When Raymond Alves left prison at the end of his seven-year sentence last
March he triggered a nationwide hunt. Because Alves is a convicted sex
offender, New Jersey’s recently enacted Sexually Violent Predator statute
required prison officials to notify prosecutors 30 days prior to his release.
The statute provides for the indefinite civil commitment of convicted sex
offenders following the completion of their criminal sentences and the
30-day notice enables prosecutors to complete commitment proceedings while
the offender is incarcerated.

As a result of what the New York Times called a “bureaucratic blunder,”
New Jersey prison officials failed to notify local authorities until the
day after they had released Alves. The “bureaucratic blunder” was, in fact,
the professional judgment of two psychiatrists appointed by Governor Whitman
and responsible for evaluating Alves, who believed that Alves did not pose
a danger to the community. Federal and state law enforcement disagreed
with their assessment and issued warrants for his arrest. Nineteen states
have passed Sexually Violent Predator (SVP) statutes, which permit the
state to indefinitely confine offenders who suffer from a “mental abnormality”
even after they have served their full criminal sentence. The law’s depiction
of sex offenders as mentally ill has gained political popularity as lawmakers
have learned that they can appear to effectively manage the threat of violence
by treating it as a medical one.

Predator laws are also popular with politicians because, by defining persons
with sexually deviant predilections as mentally ill, they enable lawmakers
and courts to deflect responsibility for repeat sex offenders onto medical
experts. Thus, responsibility for Alves ultimately came to rest with the
doctors who evaluated him. New Jersey Commissioner of Corrections, Jack
Terhune, fired the psychiatrists within two days of Alves’s release. These
statutes effectively make doctors agents of the state, and as such, they
make decisions dictated by political necessity, even when medically indefensible.

While the medical approach to violent crime is politically successful,
it is an ominous development from the perspective of civil rights and mental
health advocates. The stated intent behind these statutes is to treat,
not punish, a small group of sex offenders, particularly child predators,
who suffer from an illness that makes it almost certain that they will
re-offend. There is nothing in the statute, however, that can serve to
differentiate sex offenders whose offense was a result of mental illness
from those who were simply, and culpably, bad.

Most states have adopted statutes like New Jersey’s that defined “mental
abnormality” as a condition predisposing one to commit acts of sexual violence.
The American Psychiatric Association (APA), which opposes these laws, has
found that there is no way for medical professionals to apply this term
in a fair and consistent way. The APA explains that if deviant acts alone
establish evidence that a person has an impaired ability to conform her
conduct in order to avoid violating the law, then all criminals are mentally
ill. With nothing in the statute to differentiate those offenders for whom
commitment is or is not appropriate, the ultimate decision made by prosecutors,
doctors, judges, and juries is arbitrary. The only requirements, abnormality
and dangerousness, serve as invitations for bias and not as calls for medical

Although initially intended to enable the state to commit recidivist child
predators whose mental disease did not render them incompetent and therefore
precluded them from commitment under ordinary civil commitment laws, the
vague wording of these statutes has enabled prosecutors in practice to
indefinitely commit new offenders without even going to trial. Many states
segregate “predators” from persons committed through the ordinary process
by precluding placement of “predators” in state mental facilities and instead
placing sexual offender wards in the same maximum security prisons that
housed them during their term of criminal incarceration. As “predators,”
however, they are required to wear distinctive dress and lose many of the
privileges and opportunities, such as employment and classes that they
had while serving their criminal sentence.

The ostensible therapeutic, non- punitive purpose of these statutes enables
the state to bypass the Constitution’s double jeopardy bar and the stricter
procedural standards of criminal law. The Supreme Court has recognized
that civil commitment is a profound deprivation of liberty comparative
to criminal incarceration, but the Court has upheld the constitutionality
of affording diminished procedural rights to mentally ill persons because
of the state’s interest in treating mentally ill persons and the presumed
independence of the professionals who provide that treatment.

The state’s benevolent purpose, however, does not give it unlimited power.
The Court has interpreted the constitutional prohibition against arbitrary
detention as requiring the state to prove that the person is not only dangerous
but also mentally ill. The mental illness requirement has traditionally
functioned to narrow the class of persons subject to this type of civil
confinement to those persons who are incompetent and lack the capacity
to rationally direct their behavior. In effect, the requirement functions
to ensure that the state primarily exercises social control through the
criminal justice institution. Absent mental illness, the Constitution requires
that the state exercise control over dangerous persons through the institution
of criminal justice and subject to that institution’s stricter requirements
of due process.

In its 1997 decision in Kansas v. Hendricks to uphold the Kansas SVP law
against constitutional challenges, the Court signaled that the primacy
of the criminal justice system as the principal institution of social control
is yielding. While the Court recognized that mental illness is a predicate
to involuntary commitment, it accepted the Act’s sweeping definition of
mental illness. The freedom of states to define mental illness means that
the mental illness requirement no longer functions to preserve individual
liberty as a limit on the state’s pursuit of collective welfare. So-called
“chemical castration” statutes demonstrate the kind of abuse of medicine
this freedom allows. Chemical castration statutes, now the law in several
states, make castration, in the form of taking drugs that eliminate the
sex drive, a condition of parole, without any finding of medical appropriateness.

Legislators are using the mental illness excuse to obtain what is ultimately
an unjustifiable extension of power. They are building on a long tradition
in our society of using mental illness to excuse gross violations of liberty.
Though the popular media typically depicts criminal defendants asserting
the mental illness excuse to avoid responsibility for their crimes, it
is less often that a defendant uses the excuse of mental illness than the
state. For example, in Buck v. Bell, a 1927 Supreme Court case which upheld
the constitutionality of a Kentucky law requiring sterilization of third
generation mentally retarded persons, Justice Holmes wrote: “It is better
for all the world if, instead of waiting to execute degenerate offspring
for crime, or let them starve for their imbecility, society can prevent
those who are manifestly unfit from continuing their kind.” He concluded
that, “Three generations of imbeciles are enough.” As a result of this
judgment, Kentucky was able to sterilize Carrie Buck, who along with her
mother and her daughter were found to be mentally retarded. It turned out,
however, that Carrie Buck’s daughter was not retarded. She was an unusually
quiet infant. We should recognize with shame our tradition of using the
excuse of mental illness to compromise our ideals of ordered liberty for
persons we fear, like Raymond Alves, or do not want to understand, like
Carrie Buck.           Z