Mentally Disordered Offenders

Managing People Nobody Owns

Robert Harris, David Webb

• Publisher: Routledge
• Year: 2002
• ISBN:
  9781134679874
• Edition: 1
• Topic: Medicina
• Subtopic: Psichiatria e salute mentale

Topical theme of mentally disordered offenders. Reputation of Herschel Prins, Editors and Contributors.

Chapter 1
Mental disorder and social order

Underlying themes in crime management

Robert Harris¹

Thus psychiatric knowledge, then in full spate of development, was introduced in this indirect fashion into the enforcement of the law . . . The criminal lunatic, as harmful, if not more harmful to the social order than any other criminal, had to be condemned, but his status as madman took precedence over his status as criminal. Any and all experts on the facts concerned were as qualified as the judges to determine responsibility by the primacy conferred on the facts of a case and the context of the offender’s behavior over the offense itself . . . The result, therefore, is to diminish the specific character of law enforcement and to reduce the power of the judges, since their specific jurisdiction is invaded by experts of various kinds.

(Moulin 1975: 215)

The subject matter of this book is not, as our contributors make plain, and as the work of Herschel Prins, whose work we look to honour in this Festschrift, amply demonstrates, straightforward. To the present author, steeped for many years in criminology, social and political theory and policy-oriented criminal justice, but addressing the problems posed by mentally disordered offenders for the first time, not only do a number of logical and conceptual conundrums surface and invite consideration, but the act of considering them teaches us much about mainstream concerns in criminology. Looking at how we comprehend the seemingly irrational few tells us how we comprehend, without even thinking about them, the taken-forgranted seemingly rational many. This chapter, then, is written by an outsider to the sub-discipline of mentally disordered offenders who, in the outsider’s timehonoured role, seeks to expose some of these conundrums to a scrutiny only minimally infected by the normal assumptions of the experts.

For all the vagaries of politics and economics which drive particular micropolicies (such as the application by health, local authorities, police and others of the minutiae of legislation – see, for example, Bean’s chapter in the present volume) or mezzopolicies (such as the replacement of mental hospitals with a set of aspirations euphemistically termed ‘community care’ but more accurately designated ‘pass the parcel’), the ways in which we manage mentally disordered offenders are expressions of culturally located perceptions of madness and crime. Accordingly, this chapter raises issues, in particular those surrounding the place of ‘reason’ in the management of crime, which daily confront those who deal with, and struggle to comprehend, the management of mentally disordered offenders.

Herschel Prins falls into both these camps, and his achievements, as scholar, teacher, consultant and long-serving member of a mental health review tribunal, are widely recognised. Prins has never fought shy of engaging with the most insoluble of social problems, drawing frequently on artistic insights into human personality and behaviour (see, for example, Prins 1995: Chapter 10). For Prins, to understand the totality of these phenomena we must examine not only the objects of therapeutic attention but those who administer the therapy. They, far from being clinical automata, have, like everybody else, feelings, beliefs and attitudes which, while they may help or hinder their work, can scarcely avoid affecting it. Prins therefore challenges professionals to address and interpret those parts of their personality and behaviour which others might consider off court; to Herschel Prins, professionals who would manage mentally disordered offenders should first show they can manage themselves.

This, then, is not a chapter which offers many solutions, but by addressing some of the more interesting issues to surface about mental disorder and crime, it exposes for consideration solutions which already exist – or which are purported to exist. They may or may not be good solutions; certainly, they are not invariably articulated by professionals or politicians, but because they feature in the explanations discussed by other contributors, they are worth consideration at this early point in our book.

Mental disorder and criminality: some boundary issues

we are all brought up to believe that we may inflict injuries on anyone against whom we can make out a case of moral inferiority.

(George Bernard Shaw 1941: 13)

Mentally disordered offenders bear two characteristics which sit in uneasy relation to each other. Clearly it is possible to be classified mentally disordered but not be an offender. Equally, in both workaday politics and professional beliefs, calculative and behavioural theories have largely superseded those psycho-pathological explanations which once led some to conclude that the commission of a deviant act was itself sufficient evidence of mental difficulty for some clinical remedy to be worthy of consideration. Accordingly, one can now be an offender without too much risk of one’s criminal behaviour being exposed to psychological or psychiatric scrutiny.

When, however, we encounter someone who is by common consent both mentally disordered and a criminal it is difficult though necessary to determine the relation between the two conditions (see, for example, Feldman 1977: 162–165; Moir and Jessel 1995: Chapter 13). This problem exists in part because of the requirement of the M’Naghten Test that the onus be placed on the defence to demonstrate a causal link between a disease of the mind and the crime committed (Feldman 1977: 162). It is also implicitly acknowledged in the softening of the then extant insanity defence, by the introduction of the notion of ‘diminished responsibility’ (for practical purposes by the Homicide Act 1957, though for an indication of earlier legislation, see Gunn 1991: 21). The more hesitant ethos of this phrase creates a calibrated notion of responsibility which transforms insanity from an absolute into a relative concept. Though translating these calibrations into law and policy has proved difficult in the extreme, the concept had its practical manifestation in the reforms heralded by the Mental Health Acts 1959 and, in the light of the recommendations of the Butler Committee (Home Office and Department of Health and Social Security 1975), 1983.²

How we measure these relativities is in good part a forensic problem. We might in practice take the view that, irrespective of law, the crimes of the mentally disordered are, except in a very few cases, satisfactorily explained by the mental disorder from which the criminal is suffering. This clinical judgement is, however, in the hands of forensic psychiatrists and other professionals whose diagnostic and predictive expertise has not emerged unscathed from critical scrutiny (for contrasting perspectives, see Glueck 1963; Gerber 1984) and whose clinical judgements appear heavily influenced by subjective preference. So, in the view of an academic psychologist, discussing the trial of the mass murderer Sutcliffe, whom a jury declared sane but who was transferred to a special hospital three years after conviction:

It is rather hard to resist the view that, in the cold light of day, it is faintly ludicrous to have to debate at great length the normality of an individual who behaves toward other people in the way which Sutcliffe did.

(Hollin 1989: 125)

On the other hand, according to a senior judge: ‘Only infrequently will the factors that make a man mad also operate directly to make him offend’ (Mustill 1991: 225– 226). That there are profound tactical consequences of either of these views is selfevident. If virtually any crime committed by the mentally disordered involved exoneration through insanity or alleviation of guilt through diminished responsibility, the socio-political choice would be between giving the offender a blank cheque to offend and making a response geared not to the traditional purposes of justice or punishment (which can scarcely be appropriate if volition is denied) but to public protection, with a consequential elevation of security over rights. If forensic psychiatry and related professional discourses are indeed as subjective as this (Floud and Young 1981: passim, but in particular Appendix C; Craft and Craft 1984: passim), the idea that fine distinctions can be reliably drawn between the rational and the irrational, with precise degrees of responsibility ascribed to some configuration of person, incident, time and place, appears a little optimistic.

If the diagnostic problems which arise with those who occupy the disputed territory between the clinical and the penal confront professionals and intellectuals with the empirical as well as conceptual inadequacy of their own dichotomies, then the question of disposal presents a similar problem. There is no clear concept in Western culture of anything ‘between’ a hospital and a prison (Harris and Timms 1993).³ Accordingly, the problem, in a curative environment such as a hospital, of conceptualising the management of someone for whom cure is unlikely but who should not, through lack of volition in his or her criminality, go to prison either, is acute. The fact that both nomenclature and funding arrangements differ between ‘hospitals’ for mentally disordered serious offenders and ‘prisons’ for their mentally ordered counterparts may be a source of greater satisfaction to intellectuals and policy-makers than to the criminals themselves, for whom the experience of incarceration is presumably much the same whichever Department of State provides the facility. Indeed, the claim that the hospitals in which they are being held are doing anything other than the job of a prison might even appear to them a little casuistic. At the same time though, few informed people wish prisons to be overtly punitive, and even if they do, the existence of international standards (for example, United Nations 1988) and the activities of the Council of Europe make such an approach inconceivable in the United Kingdom.

So mentally disordered offenders present problems of organisational responsibility, falling as they do within the interlocking areas of health, social services, probation and prison. They are seldom viewed by exponents of any of these disciplines as especially promising material; their clinical conditions characteristically lack precise diagnosis (Blackburn 1993) and where such a diagnosis exists, it is liable to be couched in terms which leave only minimal room for curative optimism. Seemingly through combined limitations of resource and imagination, they make demands on the system and those who work in it of a kind which cannot easily be met (Mace 1991; Pinder and Laming 1991). To professions which operate in a political and cultural context in which solution finding is critical for professional status, they are, as the most hopeless of cases, doomed to marginalisation unless they become such a nuisance as to render themselves eligible for therapeutic or penal coercion.

While some mentally disordered offenders may lead professionals to believe that they will in the future fall into this ‘nuisance’ category, relatively few actually do – many fewer than psychiatrists often predict (Craft 1984; Prins 1986: 87–89). Accordingly, given the closures of mental hospitals and the refusal of successive governments to replace them with an effective community care system, individuals of minor disorder and minor criminality who are not sent to prison (as they should not be, according to activists: see Staite et al. 1994; Cavadino, this volume) are expected to live in what can only in the loosest sense be described as the community – ‘community’ usually meaning, in this context, ‘not in an institution’.

Order, disorder and all stations in between

the recognition of biological and sociocultural causality in human behavior does not exclude altogether a realistic concept of capacity for choice which different persons possess in varying degree.

(Glueck 1963: 15)

The mentally disordered offender is a borderline figure – between mental disorder and criminality, criminality and social problem, petty nuisance and social casualty – and thus presents a serious categorical problem for both judicial and social policy. Neo-classical justice systems can only operate with popular consent if procedures exist for the recategorisation of those outliers for whom the imposition of a tariff sentence would be widely perceived as inappropriate or unjust. It follows that outliers have to be dealt with differently from routine cases, if only to sustain confidence that the system as a whole is just and reasonable to the ‘common man’. This stricture applies to other groups, including children and, sometimes, women (for a useful review, see Heidensohn 1994), who are processed within a criminal justice system geared mainly to the efficient disposal of the able-bodied, ableminded adult male offenders who constitute the bulk of its objects.

Mentally disordered offenders are a further example of such an outlier,⁴ but for judicial disposal, even assuming we can agree who is in and not in this category, many of them are not so much taxonomically distinct (and distinctive) as hard cases who make bad law. Accordingly, a perceived absence of reason on the part of an offender provokes equivocation among judicial administrators, policy-makers and practitioners, to the last of whom it falls to choose between the paradigms of ‘madness’ and ‘badness’ in the process of selecting an appropriate disposal. Even today, pure reason, though doubtless never encountered, is vaunted in popular culture as the proper basis for social, economic and political relations almost as much as it was in the Enlightenment. It follows that if a category of people exists who cannot be expected to respond rationally to punishment, persuading them to conform to legally and socially sanctioned expectations becomes awkward. This awkwardness stems from the precise logical problem that our predominant means of persuasion, being reason-based, is dependent for its success on the similar existence of reason in the objects of our persuasive endeavours. How can reason persuade the unreasoned in the absence of a common language, a convincing rhetoric, by which to engage with them? Yet because the objects of this persuasion, though deficient in reason, lack nothing in nuisance value, action of some kind must assuredly be taken.

Considerations such as this have led some scholars to dispute the wisdom of any kind of insanity defence, including its contemporary descendant diminished responsibility (for relevant discussions, see Radzinowicz and Turner 1944; Feldman 1977; Grounds 1991; Blackburn 1993). Others have reached a somewhat similar conclusion by a different route. Gostin, for example, takes the view that therapeutic care is but a thinly veiled and inadequately accountable mode of coercion:

If one examines the insanity defence carefully, it becomes clear that its purpose is not to absolve mentally ill people from penal consequences but rather to authorise confinement in cases where the law would not ordinarily allow such confinement.

(Gostin 1984: 228)

This being so, says Gostin, let the mentally disordered have their disorder looked after, but keep this separate from their criminality, which should be dealt with no more coercively than would have occurred had the offender not been deemed disordered. In other words, forget metaphysical concepts such as ‘insanity’ or ‘motive’, and sentence at the level warranted by the crime, independently of questions about responsibility.

It is hard not to feel that the attractiveness of such an approach to Gostin and civil libertarians like him is dependent in good part on the empirical accuracy of the claim that the law works to the disadvantage of mentally disordered offenders. But even setting aside the fact that in some cases mental disorder mitigates the harshness of sentence (Gostin’s proposal accordingly condemning those mentally disordered offenders who excite judicial sympathy to additional harshness), the idea that mentally disordered offenders should be sentenced as though they were sane, but treated as though they were not, would seem hard to defend.

Studying a marginal case like mentally disordered offenders confronts us with the reality that the boundaries between sanity and insanity, rationality and irrationality, crime and disease, social nuisance and social casualty, prison and hospital, even offender and therapist, become increasingly blurred the more one questions the robustness of the categorisations themselves. Herschel Prins, as we have seen, is interested in the richness and complexity of human personality and behaviour, and in the aesthetic sensibility of professionals as well as offenders. To Prins, in the world of human relations, rationality and dispassion are seldom achieved and not always achievable, and a more intuitive empathy is required, albeit an empathy to be harnessed in the service of the traditional characteristics of professionalism, such as consistency of treatment and quality of service.

In adhering to this approach, Prins gets close to one of the paradoxes of his field. For if trained experts cannot be relied upon to act like experimental scientists, but share some of the irrationality, impulsiveness, fears and fantasies of their charges, how can we posit the existence of a binary divide between sanity and madness, mental order and mental disorder? If in the faces of their clients or patients the professionals see, as it were, their own brother or sister if not themselves, how can they talk calmly of objectivity or detachment? To make a point which characterises many human service professions working with many client groups, how can they unyoke the therapy from the therapist? Or, in Yeats’s words, ‘tell the dancer from the dance’?

This question has been debated from a number of perspectives. Philosophically, once we move away from the notion that pure reason exists, decontextualised from time and place, (see, for example, Norrie 1986), or that any choice can be wholly free (see, for example, Blackburn 1993), the idea of a dichotomy between mental disorder and mental order begins to fragment. But if none of us is an exemplification of pure reason, the understanding of disorder itself becomes as central to our concerns as the relation between such disorder and criminality. As we have seen, the concept ‘diminishment’ has gone some way towards deconstructing this dualism, but at the point of application, the courts are still faced with a binary opposition between diminishment and non-diminishment; and it is at least as much at the point of application as at that of conceptualisation that problems of managing the mentally disordered offender occur.

So from the literature surveyed one concludes that the classification of mental disorder is itself unsound (the word ‘subjective’ appears repeatedly). It is seen by some as a moral categorisation and by others as a justification for a form and degree of social control not justifiable under laws framed for the disposal of ‘sane’ criminals; while others, on the contrary, see the question of individual mental disorder as largely irrelevant, since the fundamental purpose of the legal system is the removal of social disorder and the crea...

Table of contents

• Cover Page
• Title Page
• Copyright Page
• Contributors
• Preface
• Introduction
• Chapter 1: Mental disorder and social order
• Chapter 2: Public Inquiries in mental health
• Chapter 3: The police and the mentally disordered in the community
• Chapter 4: Diverting mentally disordered offenders from custody
• Chapter 5: Recreating mayhem?
• Chapter 6: Multi-agency risk management of mentally disordered sex offenders
• Chapter 7: The Parole Board and the mentally disordered offender
• Chapter 8: Control and compassion
• Chapter 9: Thinking horses, not zebras
• Chapter 10: A balance of possibilities