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
Download Presentation The PPT/PDF document "Considering Insanity Defense" is the property of its rightful owner. Permission is granted to download and print the materials on this web site for personal, non-commercial use only, and to display it on your personal computer provided you do not modify the materials and that you retain all copyright notices contained in the materials. By downloading content from our website, you accept the terms of this agreement.
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)