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Considering Insanity Defense Considering Insanity Defense

Considering Insanity Defense - PowerPoint Presentation

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Considering Insanity Defense - PPT Presentation

from Equality Perspective Tina Minkowitz JD Issues with Insanity Defense Underpinning of forced psychiatry and legal inferiority Tensioncontradiction with premise of full and equal legal capacity ID: 160104

insanity defense psychiatry crpd defense insanity crpd psychiatry forensic capacity equality legal equal subjective criminal www defenses org moral

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Slide1

Considering Insanity Defensefrom Equality Perspective

Tina Minkowitz, JDSlide2

Issues with Insanity Defense

Underpinning of forced psychiatry and legal inferiority

Tension/contradiction with premise of full and equal legal capacity

Forensic psychiatric system contradicts abolition of

medicalized

commitment/forced treatment

Social stigma as moral non-personsSlide3

What is Insanity Defense?

In US and common law jurisdictions affirmative defense

Excuse from culpability

Results not in simple acquittal but in adjudication as mentally incompetent and disposition to forensic psychiatry

Incompetency to stand trial is related issue also challenged under equal legal capacitySlide4

Relatives of Insanity Defense

In civil law jurisdictions there is “

unimputability

” –

inimputabilidad

Criminal culpability cannot be imputed to the person

Decision by judge and precludes trial

Also results in disposition to forensic psychiatry

Other categories of individuals can be

unimputable

, such as foreigners or indigenous personsSlide5

US debate and criticisms

Small percentage of cases – 1%

Emotional and philosophical attachment

“Moral intuition”

Hinckley, felt to be too lenient

“Abolition” in 4 states – Idaho, Kansas, Montana, UtahSlide6

US “abolition”

Mental disorder can negate

mens

rea

but is not separate defense

Kansas this negation of

mens

rea

results in forensic psychiatry

Montana and Idaho,

conviction can result in

forensic

psychiatry

Utah appears to do away with forensic psychiatry except for ISTSlide7

Context

Civil commitment remains available

Cognitive dissonance with pushing people into forced treatment – IOC, rhetoric about mad not bad

Equality framework of CRPD offers new way of thinking that upholds dignity, moral agency, accommodation for diversitySlide8

Slobogin – Integrationist Approach

Christopher

Slobogin

pre-figures CRPD analyzing insanity defense as over- and under-

inclusive

Model Penal Code incorporates subjective component to defenses of justification and excuse

E.g. duress, self-defense

This opens door to considering subjective reality of PWPSD on equal basisSlide9

CRPD Analysis

Equal legal capacity – mental capacity no basis for denying legal capacity (Art 12)

Support in exercise of legal capacity – what is equivalent for criminal responsibility? Need for such?

Prohibits all mental health detention including as disposition in criminal proceedings (Arts 13 and 14)

IST dealt with by providing accommodations and supportSlide10

Insanity Defense rehabilitated? Or not?

Without forensic psychiatry, insanity defense should result in complete acquittal (

Beaupert

and Steele – equality argument)

Integrationist approach – consider lived reality of PWPSD as subjective component of defenses – simple equality

Obligation to incorporate subjective component and substantive

mens

rea

to ensure de facto equalitySlide11

De facto equality

Inclusive design

No adjudication as lacking capacity

Mitigation or complete justification or excuse

Not mental incapacity but contextual circumstances from defendant’s viewpoint

Judged as moral agent given contextual circumstancesSlide12

Issues with subjectivized defenses

Could open door wide to prejudice and stereotype – e.g. Stand Your Ground

Import substantive doctrine to counter prejudice and stereotype?

Stuntz

– local (neighborhood) juries utilizing vague defenses can render better and more equal justice – Correct?

Holistic consideration to address all forms of inequality in CJ reformSlide13

Discussion

Criminal responsibility being addressed internationally because of CRPD

Existing situation cannot continue

Formal plus substantive equality

Accommodations/ support/ mainstreaming-inclusive design

Opinions?Slide14

For information

www.chrusp.org/home/Resources

tminkowitz@

earthlink.net

http

://www.ohchr.org/en/hrbodies/crpd/pages/

crpdindex.aspx

(CRPD

Cmte

)

www.un.org/disabilities

(CRPD history)

http://www.unodc.org/unodc/en/justice-and-prison-reform/expert-group-meetings6.

html

(SMR revision)

http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id

=

1348856

(SSRN TM)