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Abnormal Behavior and the Law

Raymond W. NovacoUniversity of California, Irvine

Abnormal Behavior

P102, summer 2015

What is abnormal behavior?

General criteria: (Nevid, Rathus, & Greene)

9 unusualness

9 social deviance

9 faulty perceptions or interpretations of reality

9 significant personal distress

9 maladaptive or self-defeating behavior

9 dangerousness

dangerousness

Î violence and self-harm

• determination of “dangerousness” to self or others involves clinical or expert judgment

• non-clinical factors come into play

9 social, institutional, legal, economic

Dangerousness: A Dilemma

What should we do?

• Larry Hogue, the Wild Man of West 96th Streetviolent behaviorcrack cocaine abuserepeated hospitalizations

• Joyce Brown, homeless on NY Streetsgravely disabledaccepted social help but refused treatmentsued for release from hospital

What course of action: Clinically? Social Policy?

Nathaniel Ayers – “The Soloist” LA Times – Steve LopezJames Holmes – Aurora CO Theater massacre

July 20, 2012

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Adam Lanza & motherNewtown, CN

12-14-12

Seal Beach Salon Shooting, 10-12-11 mental disorder defense?Scott Dekraai kills 7 in salon & 1 outside; + 1 seriously wounded

custody dispute with his ex-wife Michelle,who worked in the salon

Itzcoatl Ocampo homeless killing series 2011-12

∙ his father, Refugio, was homeless∙ Iraq War vet; honorable discharge from Marines in 2010 ∙ was never in combat -- did transport; wanted to be a killer∙ confessed to murders shortly after arrest∙ also killed mother & brother of high school friend, prior to hml series

John Berry

Kipland Kinkel May 21, 1998 Springfield, Oregon

z 15-year-old went into his high school, opened fire with a .22 rifle & several handguns

z killed 2 and wounded 20 more

z like Luke Woodham (Pearl, Miss., 10-1-97) killed his parents the night before, and was very angry.

He told his friend Dusty Saul, “If I ever get really mad, I’m going to hit the cafeteria with my .22”

9 history of mental illness in family; made statements of being tormented by “voices inside my head”; told him to hurt people

Jon Venables, age 10, who with Robert Thompson abducted, tortured, and killed James Bulger, age 2

(12 February 1993, Liverpool)

Insanity Defense - Evolution

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Some Landmarks of the Insanity Defense

The first major legal test of the insanity defense is referred to as the M’Naghten rule, based on a case in England in 1843 of a Scotsman, Daniel M’Naghten, who had intended to assassinate the Prime Minister of England, Sir Robert Peel.

In the US in 1844, a Massachusetts Chief Justice concluded that the mind of a prisoner, Abner Rodgers, was in a diseased and unsound state when he murdered a prison warden, due to an “irresistible and in controllable impulse”, thus not the act of a voluntary agent.

The another major case that helped lay the foundation for the modern insanity defense was Durham v. United States of 1954. The criminal act was a “product” of the mental disease or defect.

Insanity Defense cont.By 1972, the Durham rule was replaced in many jurisdictions by legal

guidelines formulated by the American Law Institute (ALI, 1962) to define the legal basis of insanity. These guidelines, which essentially combine the M’Naghten principle with the irresistible impulse principle, include the following provisions:

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 (wrongfulness) of his conduct or to conform his conduct to the requirements of law.

2 . . . . the terms “mental disease or defect” do not include an abnormality manifested only by repeated criminal or otherwise antisocial conduct. (American Law Institute,

1962, p. 66)

9 Insanity Defense Reform Act (1984) modified the criteria to place emphasis on “understanding”, removing volition (capacity to conform), and placing burden of proof on the defense.

Competency to Stand Trial

Competency to stand trial - The ability of criminal defendants to understand the charges and proceedings brought against them and to participate in their own defense.

Far more people are confined to mental institutions on the basis of a determination that they lack the mental competence to stand trial than on the basis of the insanity verdict.

Many more people are committed under the mental competency to stand trial criteria for every one committed following a verdict of not guilty by reason of insanity.

California Penal Code for Incompetent to Stand Trial is PC 1370

Predicting Dangerousnessactual

no yespredicted

no true negative false negative

yes false positive true positive

9 base rate problem

Predicting Dangerousness: Base Rate Problem• Very few people are violent, and those who are violent are not

that way very often. In comparison to kindness, gratitude, inquisitiveness, problem-solving, rule-following, etc., the occurrence of violence is low in probability. It is thus hard to predict accurately; but violence is a very consequential phenomenon – its end product has lasting effects.

• The low base rate is thereby a double-edged sword with regard to need for intervention: on the one hand, it does not take very many more new people being violent to have a serious social problem; on the other hand, violence prevention might be applied to a large number of people who would not be violent and might thus have their freedom constrained.

Base Rate Problem and False Positives

100,000 people in community

100 are truly violent

dangerousness test is 95% accurate

9 95 violent people correctly identified

Î however, the test is 5% inaccurate

Î 100,000 – 100 = 99,900 x .05 =

9 4995 false positives (and 5 false negatives)

Î differential consequences associated with false positives versus false negatives

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False Positives, Why?

What are the differential consequences associated with false positives versus false negatives?

x for the person receiving the designation?

x for the person making the designation?

x for the community or society?

Public Perceptions of the Insanity Defense

Abnormal Behavior and the Legal System

9 critical junctures of public protection and mental health care

• civil commitment

• incompetence to stand trial; “unfit to plead”

• insanity defense; “not guilt by reason of insanity”

• guilty but mentally disordered; mitigated sentence severity

• prison transfers to the mental hospitals- mentally disordered prisoner- hospital commitment as condition of parole- civil commitment of sexually violent predator

• community placement parole revocation

Incarceration and Mental IllnessIn USA, over 2 million people confined in prisons and jails

Î Within 3 years of release, 2/3 are re-arrested

Severe Mental Illness (NA, Europe, Aust/NZ)

• 5-15% in jails have severe MI • 10-15% in prisons have severe MI• 3-5% schizophrenia (conservative estimate across studies)• female rate higher for SMI, including schizophrenia

Why high MI in CJ population?

• deinstitutionaliztion• more strict criteria for civil commitment• lack of adequate community resources for MI• offenders w/ MI have difficulty getting MH services

Severe Mental Illness in LA County Jail (TT)Lamb, Weinberger, Marsh, and Gross (2007) Psychiatric Services.

• random sample of 106 inmates March 2002 – August 2002(after mental health screening)

Psychiatric Diagnoses -- 75% severe MI

biploar disorder 23%MDD with psychotic features 5%schizophrenia 32%schizoaffective disorders 15%MDD w/o psychotic features 6%

• 95 % had prior arrests (72% of these were for violent crimes)• 92% had history of non-compliance with psych medications• 28% homeless • 76% history of SA• 95% had presence of overt psychotic symptoms in the jail

Baillargeon et al. (American J. Psychiatry, 2009) Psychiatric Disorders & Repeat Incarcerations: Revolving Prison Door

Texas Department of Criminal Justicex 79,211 inmates (2006-2007); 116 facilitiesx standard medical and psychiatric exams during intake

3 7,878 with psychiatric disorder; 2,324 with psychosis

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solitary confinement & therapy in cagesCivil Commitment - involuntary hospitalization

Lanterman-Petris-Short Act (LPS) signed 1967 by RRx occurred during period of deinstitutionalization x goal: to end inappropriate lifetime commitment for MI

California Welfare and Institutions Code 5000 covering treatment, patients rights, confidentiality, & conservatorship

3 Section 5150 allows for involuntary hospitalization for a 72-hour period for evaluation and treatment

Conditions for Civil Commitment - 5150

9 the person has a mental disorder

9 as a result of that disorder, the person is:

• a danger to himself or herself

• a danger to others

• gravely disabled (unable to care for basic needs)

t neither “mental disorder” nor “danger” defined by law

t allows 72 hrs of hospitalization in a designated facility

“danger to others”

3 due to a mental disorder, person intends to cause harm to someone or to engage in dangerous acts with gross disregard for safety of others

• threats of physical harm against particular people

• attempts to harm certain individuals

• means available to carry out threats or attempts(e,g, firearms or other weapons)

Continuation of Civil Commitment - 52509 if person is still dangerous or gravely disabled after

the initial 72-hour period• allows certification for an additional 14-day

period of involuntary hospitalization

3 prior to 5250 certification, person must first be given the opportunity to accept treatment on a voluntary basis

3 Certification Review Hearing (at facility) by 4 days

“post-certification holds”• if person remains dangerous or gravely disabld

additional extensions can occur, but requires stronger showing of dangerousness

Certification Review Hearing – “Probable Cause”

9 occurs at the hospital facility

• hearing officer (appointed by Superior Court)

• hospital representative

• patient advocate (prv. attorney or appt rights advocate)

t hearing officer decides on whether criteria for continued involuntary hospitalization are met

3 if patient disagrees, can file writ of habeas corpus(available from hospital staff; filed by social worker)

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Habeas Corpus Writ

9 “habeas corpus” is Latin for “produce the body”

9 legal request for release from a facility/institution

• writ entitles person to Superior Court hearing

• court date set within 2 working days from filing

• own attorney or Public Defender assigned

• patient chart review by investigator (Pub Def)

t judge makes decision for patient’s release or continued involuntary hospitalization

Conservatorship -- LPS

x someone gravely disabled, after the 5250 is upheld by probable cause hearing, may be placed on a temporary conservatorship (deputy public guardian is assigned and must approve discharge plan)

• 30 day investigative process (public defender)

• conservator appointed by a judge• patient may nominate the conservator• public guardian may be appointed

3 patient has the right to placement in the least restrictive setting appropriate

3 pt. may request hearing to oppose conservatorship

Medical Refusal and Riese Hearing Section 5250 provides for detention and treatment, but

x medication may not be given to involuntarily hospitalized person who refuses it, except in an “emergency” situation

3 necessary for the preservation of life or prevention of serious bodily harm to the patient or others

3 it is impractical to obtain consent

t the treating physician must petition the court to have the patient declared unable to consent psychotropic medication

3after petition is filed, a “Riese” or capacity hearing is held, at which psychiatrist presents evidence for patient’s incapacity

3patient is represented by an advocate (public defender) who argues for patient’s capacity to consent

3 court-appointed hearing officer determines patient’s capacity

Tarasoff Case: UC Berkeley, 1968-69 • grad student, Prosenjit Poddar, became enamored with Tatiana Tarasoff; he interpreted new year’s eve kiss as an act of engagement (consistent with traditions of his India caste)

• when she rebuffed him, he became depressed and went for treatment at student health center; when TT returned from summer vacation in Brazil, he discontinued therapy

• psychologist notified campus police, because PP had stated his intention to purchase a gun; he stated that PP was dangerous and required psychiatric commitment; police interviewed PP but did not detain him; supervising psychiatrist decided that cc not needed and that letter to police and therapy records be destroyed

• PP went to TT’s home with pellet gun and knife; when she refused to speak to him, she shot her; she ran from house but he caught her, stabbed her repeatedly, and killed her

Tarasoff: Duty to Warn

Tarasoff v. Regents of the University of California

1976 California Supreme Court ruling:

“Once a therapist does in fact determine, or under

reasonable professional standards should have

determined, that a patient poses a serious danger of

violence to others, he bears the duty to exercise

reasonable care to protect the foreseeable victims of

that danger.”

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Right to TreatmentWyatt v. Stickney (1971-2) Federal Court, Montgomery ALLawsuit filed against Bryce State Hospital (had over 5,000 patients)

(lawsuit enlarged to include two other hospitals)

Established certain patient rights, including not to be required to perform work that is performed for the sake of maintaining the facility. [employee layoffs prompted lawsuit; case dismissed 2003]

The court-ordered agreements held that mental hospitals must, at a minimum, provide the following:

1. A humane psychological and physical environment,

2. Qualified staff in numbers sufficient to provide adequate treatmt

3. Individualized treatment plans

Bryce State Hospital (founded 1852)

Kenneth Donaldson.

Donaldson points to the U.S. Supreme Court decision that ruled that people who are considered mentally ill but not dangerous cannot be confined against their will if they can be maintained safely in the community.

O’Connor v. Donaldson (1975)

A former patient at a Florida state hospital (Chattahoochee), Kenneth Donaldson sued two hospital doctors on the grounds of being involuntarily confined without receiving treatment for 14 years, despite the fact that he posed no serious threat to himself or others.

Donaldson was originally committed on the basis of a petition filed by his father, concerned about his paranoid delusional.

Donaldson received no treatment during his confinement (he refused it) and was denied grounds privileges and occupational training, yet his repeated requests for discharge were denied.

Won case in US District Court; upheld by US Supreme Court.