Forensic Psychology Reconsidered

A Critique of Mental Illness and the Courts

David Polizzi, Matthew Draper

• Publisher: Routledge
• Year: 2015
• ISBN:
  9781317234265
• Edition: 1
• Topic: Psychology
• Subtopic: Forensic Psychology
• Index: Psychology

Forensic psychology is where psychology meets the criminal justice system. An understanding of the intersection of criminal law and psychological issues relating to criminal responsibility is critical for criminal justice students. This accessible text focuses on the criminal law implications of forensic psychology as it relates to topics such as competency to stand trial, state of mind at the time of the crime, suicide by cop, and involuntary psychiatric medication administered in custody. Unlike more traditional texts on this topic, which are primarily concerned with the clinical practice of forensic psychology, this book focuses on critical thinking as it relates to these topics. Each chapter presents a critical analysis of the topic under study, going beyond merely identifying the legal parameters of criminal responsibility to explore the ethical, philosophical, and theoretical foundations of that concept.

1

Introduction to Forensic Psychology

On August 7, 2012, the state of Texas scheduled Marvin Wilson to be executed by lethal injection at 6:00 pm for the 1992 killing of Jerry Williams. On the day Mr. Wilson’s sentence was to be carried out, his defense team sought to petition the United States Supreme Court for a stay of execution based on the contention that Mr. Wilson was mentally retarded. The defense team’s legal strategy was motivated by the 2002 opinion delivered by the Court in Atkins v. Virginia, which ruled that the sentencing of a mentally retarded defendant represented a violation of Eighth Amendment protections against cruel and unusual punishment, therefore rendering the sentencing and execution of such an individual unconstitutional (Campos, 2012). Based on the legal parameters of this ruling, Mr. Wilson’s legal team felt that his execution should be stopped given that Mr. Wilson was mentally retarded. However, the Supreme Court disagreed and allowed the execution of Mr. Wilson to go forward without comment (Graczyk, 2012; Grissom, 2012; Orovic, 2012; Rudolf, 2012). At 6:27 pm, Marvin Williams was pronounced dead.

The New York Times reported that on July 20, 2012 during a midnight screening of the new Batman film, The Dark Knight Rises, James Holmes, a former graduate student studying neuroscience at the University of Colorado, entered the Century 16 Theater in Aurora, Colorado dressed in a ballistic helmet and gas mask and armed with a variety of military-grade weapons, munitions, and smoke grenades, began his assault on the audience of that film. He entered the theater by a side entrance and then deployed smoke grenades followed by a random volley of semi-automatic pistol- and shotgun fire that left 12 persons dead and 52 persons injured. He was captured without incident by police in the parking lot adjacent to the exit of the theater used to make his escape. Holmes was subsequently convicted on all counts and was sentenced to life without the possibility of parole.

On the morning of January 8, 2011, Congresswoman Gabrielle Giffords (D-Ariz) was shot along with 17 other individuals by a lone gunman outside a Tucson, Arizona supermarket where the Congresswoman was holding an outdoor town hall meeting with the constituents of her district (Memmott, 2011; Murray & Horwitz, 2011). As a result of this attack, six individuals died, including a federal judge, a member of Congresswoman Giffords’ congressional office staff, and a 9-year-old child who was born on September 11th, 2001 and was attending the event with someone from her neighborhood. It was later confirmed that Jared Loughner, a 22-year-old man from Tucson with a history of drug use and mental health issues, was in police custody and would be charged for his involvement in these shootings. He withdrew from Pima Community College in October 2010 after being suspended for disruptive behavior and refusing to undergo a mental health evaluation. On August 7, 2012, Loughner pled guilty to 19 of 49 charges filed against him in federal court. His plea agreement came after Loughner had been confined in a Missouri psychiatric facility for approximately 19 months where psychiatrists attempted to establish his competency to stand trial. Loughner has been diagnosed with schizophrenia, paranoid type and will be sentenced in November to Life without the Possibility for Parole (Keifer, 2012).

What Is Forensic Psychology?

Forensic psychology is the study of the integration of psychology and the law. It is a new blend of two old professions—psychology, which is the study of human behavior, and law, which is the study of how people rule themselves in social situations. (Walker & Shapiro, 2004, p. 3)

Taken at its most general meaning, forensic psychology reflects that point of reference from which the criminal justice system and psychology meet. Most fundamental to this relationship is the role played by psychology and psychiatry in answering a specific question before the court that exceeds the normal body of knowledge of legal practice (Adler & Gray, 2010; Shipley & Arrigo, 2012; Goldstein, 2003; Wrightsman & Fulero, 2005). However, it is important to note that the relationship between psychology and the law is not defined by the expectation of a balance of power between these two disciplines. Though psychological expertise is applied to a specific issue or question before the court, it is psychology that works for the benefit of the law and not the other way around.

For example, the practice of forensic psychology is generally applied to the areas of criminal law, civil liabilities, and the best interest of the child in domestic litigation. In each of these areas, forensic psychology is required to answer a specific legal question, which arises within a specific jurisdiction that will facilitate the adjudication process. Complicating forensic psychological practice, however, is the fact that the specific rules governing the adjudication of a mentally ill defendant may vary across federal and state jurisdictions, requiring “different” answers to the same legal question. Such an example was witnessed in the capital murder trial of Marvin Wilson who was convicted and subsequently executed by the state of Texas in 2012.

Central to Wilson’s appeal of his capital murder conviction, which was ultimately unsuccessful, was the claim that he was mentally retarded and therefore ineligible for execution. The Supreme Court, in their landmark 2002 decision, Atkins v. Virginia, ruled that the sentencing of a mentally retarded defendant to death constituted cruel and unusual punishment, which was prohibited by the U.S. Constitution. However, the question in the Texas case was not simply concerned with the fact of Wilson’s intellectually disability or mental retardation; rather, the more important consideration was whether or not Wilson’s condition satisfied the legal definition of mental retardation as described in the Texas Criminal Code. A forensic psychologist could be called upon to determine if the legislatively derived criteria for mental retardation as established by the Texas Legislature had been met, but would not be asked to determine if the definitional criteria illustrated in the statute was accurate or reflected the clinical conceptualization of that construct. Though one may raise any number of legitimate clinical objections to such a process, it is the legislature of a given state and not the mental health community that ultimately determines the legal specificity for these otherwise psychological or psychiatric constructs.

More specifically, then, forensic psychology attempts to provide expert opinion and explanation based upon generally established knowledge within the discipline of psychology as this relates to the topics of criminal law, family law, and civil liability law. As such, forensic psychology seeks to assist the legal process in resolving a variety of important issues or concerns related to the various ways in which one’s level of psychological functioning may be compromised to the point that the person could not rationally participate in the criminal legal process. For example, there is a long-standing belief within Western European jurisprudence generally and the American legal tradition specifically that it is unjust to try an individual who clearly exhibits some type of mental deficit that would preclude the possibility for a fair trial. Too often, common public opinion perceives such a circumstance as merely an excuse that shields offenders from their just desserts. However, what this perspective fails to recognize is the way in which one unjust conviction potentially challenges the whole legitimacy of the justice system. From this perspective, we can see how the role of forensic psychology becomes not merely the provider of expert opinion concerning a relevant psychological factor in a specific case, but a type of legal safeguard that protects those individuals who are so psychologically impaired that to require them to participate in a criminal trial would not reflect the notion of justice served, but justice denied.

When we read the newspaper accounts of senseless acts of violence, and the shattered lives that are left behind in their wake, or when we are forced to endure another video clip from the Internet or the nightly televised news of terrified bystanders frantically searching for a child or friend who cannot be located in the aftermath of an unfathomable episode of random violence, we become angered and disgusted. When we also are informed that the perpetrator of these crimes may not go to the penitentiary because, even though they are clearly guilty of the acts they are accused of committing, they are also in some way mentally ill and therefore may not be held accountable for their actions, we feel that this is unjust. But we must not lose sight of the fact that no matter how emotionally upending these events may be, they cannot be the foundation upon which justice is pursued. The cases of Jared Loughner and James Holmes certainly reflect the tragic human capacity to inflict random violence on other human beings, but this observation still leaves unanswered the question of how these tragic events could have occurred.

Why certain criminal acts occur, why Jared Loughner, for example, acted the way he did on that Saturday morning, is only important to the degree to which the explanation reflects the legal standards outlined in a state’s Criminal Code—in Loughner’s case, the state of Arizona’s. The psychological reasons, which contribute to why an individual acts as he does, evoke a matrix of complex relational dynamics that are simply not the focus of the legal system. Questions such as, “Did this individual know his actions were wrong when committing this act?” “Does this individual understand the consequences of pleading guilty?” or “Does this person have the ability to comprehend the various aspects of the legal proceedings and can he actively assist his attorney in his own defense?” though deceptively complex, are really intended to find rather basic answers. When certain cases rise to a level of greater complexity, the experts involved are still required to formulate their opinion in such a way so as to render this complexity more understandable and useful to the court.

Given that the practice of forensic psychology—the study of human behavior and the law—may intersect at a variety of points of demarcation, it is important from the outset to identify how our exploration of and reflection on forensic psychology will proceed. As perhaps is evident in the vignettes offered in the beginning of this chapter, the focus of this text will be on the applications of forensic psychology as it applies to the process of the legal system and various aspects of criminal justice practice. Such a focus is not to downplay the other areas where forensic psychology may be used to help resolve a specific issue before the court, but simply to better focus our attention on the criminal justice practitioner.

It is therefore important to remind the reader that the discussion offered in this text is not intended to address specific clinical concerns such as which set of clinical instruments are most appropriate in the determination of malingering or psychopathy, or how one determines the relationship between rates of recidivism occurring within certain diagnostic categories or populations. Though such knowledge is certainly essential for any competent clinical practitioner, it simply does not have the same relevance for non-clinical staff or field professionals. The officer on the street has little immediate need for validity scales on the MMPI-2 (The Minnesota Multiphasic Personality Inventory-2, which is a clinical instrument used to determine the immediate presence of some type of mental illness) or the diagnostic distinctions between psychopathy and antisocial personality disorder provided in the psychological literature or in the Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition or DSM-5 (the DSM-5 is used by clinicians to diagnose and treat various types of mental illness). Rather, our main focus for this text will be to explore how psychology helps to inform different varieties of interactions within criminal justice practice when the issue of chronic mental illness is present. This will include the relationship between mental illness and various types of legal competency occurring during the pre-trial, trial, or post-trial process. We will also explore the legal standards for the insanity defense, the administration of involuntary medication in correctional and adjudicative settings, and the phenomenon known as “suicide by cop.” Though this list does not exhaust the areas of interest to be explored, it should certainly provide the reader with a clear sense as to how we will proceed. Perhaps a few examples involving the interface between the law and psychology will better help to situate our question: What is forensic psychology?

What each of the opening vignettes reveals is the way in which a specific aspect of the accused’s level of psychological functioning was implicated in the actions for which they were formally charged and/or adjudicated. In the Wilson case, the issues were twofold: first, was Wilson mentally retarded, and if so, was it legal to sentence him to death in light of the Supreme Court’s ruling in Atkins v. Virginia, 536 U.S. 304 (2002), which prohibited such sentences? The decision to introduce the issue of Wilson’s alleged mental retardation was rejected by defense counsel at the time of his initial 1992 trial on the grounds that such a revelation would likely increase the probability of a guilty verdict and would result in a capital sentence (Perlin, 2003). The rationale for this decision was certainly sound given that the Supreme Court just three years earlier argued in their five-to-four majority decision in Penry v. Lynaugh, 492 U.S. 302 (1989) that the Eighth Amendment did not prohibit the sentencing and execution of a defendant diagnosed with mental retardation (Scott & Gerbasi, 2003).

Some 10 years later, the Supreme Court issued its landmark decision in Atkins v. Virginia prohibiting the sentencing of mentally retarded defendants to death based on Eighth Amendment protections against cruel and unusual punishment. As such, the constitutionality of Wilson’s pending execution was now in question based on the opinion provided in Atkins. As a result of this decision, an “eleventh-hour” attempt was made to save Wilson from his execution. Wilson’s defense team moved forward with some confidence that its petition to the Supreme Court would at the very least stay Wilson’s execution temporarily, given the clear language provided by Justice Stevens in his majority opinion, which now prohibited such executions. However, the team’s confidence was quickly shattered when Justice Antoine Scalia, rather than upholding the Court’s decision prohibiting the execution of a mentally retarded individual, refused the stay request and allowed the execution of Wilson to move forward (Williams, 2012; Wilson v. State of Texas, 1999)

What has remained a heated point of contention in this case, even after Wilson’s execution, is whether or not the defendant was actually mentally retarded, which in turn would determine whether his execution was constitutional. If Wilson was truly mentally retarded, didn’t the Atkins ruling prohibit such executions, and isn’t the state of Texas required to follow rulings provided by the Court? It is certainly true that Supreme Court rulings are indeed the law of the land, but this was not really the point of contention. What was at issue was how a legitimate claim of mental retardation is established in the Court.

As stated previously, though Wilson’s defense team believed that they could establish the fact of their client’s mental retardation, the prosecution never accepted this contention and the lower courts supported this position. However, a very important disagreement in interpretation still remained between the ruling offered by the Court in Atkins and the intent of the state of Texas to follow through with Wilson’s execution. The disagreement was focused on a very obvious question: was Wilson mentally retarded, and if so, what procedure should be used to establish that diagnostic fact? Justice Stevens in his majority decision observed the following: “To the extent there is serious disagreement about the execution of mentally retarded offenders, it is in determining which offenders are in fact mentally retarded,” and herein lies the problem (Atkins v. Virginia, 2002).

Though the Court now prohibits the sentencing to death of individuals diagnosed with an intellectual disability or mental retardation, it offered no general standard or definition for mental retardation that all of the states would be required to follow. Rather, the Court left it to the states to determine what procedures would be used to establish that legally constructed clinical fact. It therefore became the responsibility of the states to construct statutory provisions that would allow for the implementation of the Atkins decision—that is, a clear statutory definition of what constituted mental retardation as it related to the death penalty (re Briseno, 135 S.W.3d 1 Tex. Crim. App., 2004). As late as 2004, the state of Texas had no provision in place to accommodate the stipulations of the Court outlined in the Atkins decision, but was now forced to do so when Jose Garcia Briseno petitioned the Court of Criminal Appeals of Texas for a stay of execution with the hope of overturning his death sentence on the grounds that he was mentally retarded and therefore ineligible for this punishment based on the decision offered in Atkins.

The Court of Criminal Appeals in Texas awarded Mr. Briseno a stay of execution and returned the case to the lower court. Per the order of the Court of Criminal Appeals, a 5-day hearing was to be conducted to determine if sufficient evidence existed to support Briseno’s Atkins claim. At the conclusion of that evaluation process the presiding judge issued the following decision:

The applicant, Jose Garci...

Table of contents

• Cover
• Half Title
• Title Page
• Copyright Page
• Table of Contents
• Preface
• 1. Introduction to Forensic Psychology
• 2. The Social Construction of Mental Illness and the Law
• 3. From the Asylum to the Penitentiary: A Historical Perspective
• 4. Competency to Stand Trial
• 5. Other Types of Legal Competencies
• 6. Criminal Responsibility: State of Mind at the Time of the Crime and the Insanity Defense
• 7. Coerced Treatment, Medication, and Mental Health Courts
• 8. Drug Courts
• 9. Eyewitness Memory
• 10. Closing Reflections
• Index