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Forensic Mental Health and Criminal Justice System

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In contemporary society, we see two emerging trends affecting people with mental illness. The first movement is to use the criminal justice system to give the community more security from mentally ill ‘dangerous’ criminals. The second shift is to more supportive legal systems. These trends are in complete conflict and cannot co-exist.


In researching the literature around this quote, it became more relevant to suggest that these two can indeed co-exist. Still, it is also apparent that to do so; there needs to be a change in the mindset of the criminal justice system. In contemporary society, we do have a moral obligation to treat everyone who enters the criminal justice system honestly. There are, however, two aspects of that argument that appear to be developing. On the one hand, the law has been created in a certain way with rules and statutes that govern what can and cannot be done when an individual commits a crime. On the other hand, someone who has no self-control due to mental illness may need to be seen differently from what has been set for “normal” criminals. The literature points in both directions and when people enter the system this can be a tough call.

Forensic Mental Health and Criminal Justice System


The Current Criminal Justice System

The current criminal justice system has clear guidelines in the latest literature on what can be done when an person commits a crime. Carvan (1999) as an example poses a problem in a case study that is applicable to the study of garbage. In the case of murder, he asks, “should there be different degrees of murder? Will one form of murder be handled differently than another?” (p. 3). When dealing with mental illness, the answer to this question should be “yes” because they are not the same type of criminal as the general population. One challenge with this issue though, is that there are many different perceptions of any law. Caravan suggests that there are two types of rules, which include natural law and positivism. Natural law is what most people want to do, and it is based on moral codes and is more geared toward “human” law. The positivism believes more directly in the specifics of the law and the statutes. In one respect, the question of how to treat mentally ill offenders could be looked at through the eyes of human law in that the mentally ill have rights under the rules and should be treated accordingly. On the other hand, legal positivism would suggest that the mentally ill would not be “protected” under the law any differently than anyone else because they are criminals.


Hughes and Leane (1990) suggest that “the law appears to be, and claims to be, neutral, but it appeals more to those who have wealth and power, and there is an ‘underlying social order’ that is “fundamentally unjust” (p. 23). In other words, although the law pretends to be “neutral,” it is often unjust because it does not treat everyone in every situation the same. This could also mean that there is some prejudice about the mentally ill and what they need. Society determines the laws in some respects, and some will feel that a person who is mentally ill is not to be treated any differently than others. For those lawyers who believe more in positivism, the argument would be that the mentally ill should be treated like every other criminal, and their illness should not be taken into consideration.

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Findlay (2005) reports on criminal responsibility and states that “criminal law identifies certain wonderful behavior that society regards as deserving of punishment” (p. 1). This is important to note when looking at whether the mentally ill should be prosecuted in the same way as other criminals. Two principles that Findlay suggests that must be taken into consideration are: 1) that the individual is autonomous and should be able to conduct their lives the way they want, and 2) the community welfare of the society must be presented. These two principles, when applied to mentally ill criminals, make it more challenging to decide as to whether they should be treated differently. Mental illness should be taken into consideration, but the law must distinguish between whether the individual is dangerous (a danger to themselves, someone else, or property) or whether what they did requires a need to protect society from them.


Findlay continues to write about the degree of “seriousness” of conduct by criminals and that people must decide whether an individual is involved with social mischief or other criminal behavior and how it connects with the individual. Perhaps this means that in the case of the mentally ill criminal, it is essential to understand the seriousness of the crime; maybe this should determine whether this individual should be tried like anyone else.


Finnis argues that there needs to rule that people go by in terms of the law because it helps create a way for human beings to cooperate and coordinate their actions so that they do not harm each other (as quoted in Hunter, Ingleby, and Johnstone, (1995, p. 53).


Defining Mental Illness in the Literature

When understanding how mentally ill criminals should be treated, the specific literature regarding mental illness and the criminal justice system creates different definitions. Bartlett and Sandland (2000) present the aspects of the mental health law that are important to this discussion. There are several distinctions that the Mental Health Association (MHA) 1983 decided for those mentally ill who would enter the criminal justice system. Some of these distinctions include:

  1. People can be confined against their will, and they can lose control of their property and affairs.
  2. They can be treated against their will with harsh chemicals.
  3. They can be perceived as being vulnerable and therefore needing protection. (p. 25).

These distinctions meant that if a person was termed mentally ill, any of these three distinctions could be enacted depending on the crime that the individual committed.


Another challenge for the criminal justice system is that there are many definitions of mental illness. The statues will have to decide whether an individual has a mental disorder, has a severe cognitive impairment, a mental impairment, or a psychopathic disorder. Many laws specifically define each one of these, but they are open to the interpretation of lawyers and judges (Barlett and Sandland, p. 25-26).


Parkinson (2005) suggests that there are more modern approaches to interpreting the statutes, but he did not address mental illness specifically. He did make the point that “statutes take on new meaning as circumstances change” (p. 226). In the case of mental illness, the statutes seem clear, but they are also left op to the interpretation of lawyers and judges. Each time this situation happens, the lawyer and judge will need to determine where the individual falls in terms of their mental illness so they can put them into the right category.


Daly, Israel, and Goldsmith (2003) wrote about models of the criminal process and how punishment is handed out. They state that it is essential for the law to be just and to follow certain values:

  • Dispositive decisions are driven by proportionality principles, and avoidance or reduction of crime. Ever since the beginning of modern criminal law, legal scholars and philosophers have discussed the relative importance of the cost of proportionality and crime prevention in punishment. The two values are often in conflict. (p. 234).
  • These values are a part of the justice system, but it does not speak directly to the situation for mentally ill criminals.

Cockerham (2006) speaks about the mentally ill as an advocate. He makes the point that in criminal procedures, “the mentally disturbed individual may not be able to understand or comprehend the consequences of his or her behavior and therefore may not be responsible for it: (p. 397). This concept is crucial because it relies on the trend to make legal processes more therapeutic, and shows that it can coexist with the criminal justice system.


Within this concept, it is essential also to study the concept of “dangerousness” with mentally ill criminals. In any regular year, many mentally ill people are put into mental institutions without their consent because the courts said they were a danger to themselves and others. Cockerham says, “their commitment is based upon a psychiatric prediction that they are likely to engage in harmful conduct, a prediction that is made before they have acted as predicted” (p. 348). The idea of “dangerousness” then, is difficult to determine because the definition is subjective and left up to the interpretation of the judge. The purpose is also tricky because it needs, in part, to be based on what society sees as dangerous. Cockerham stated that there are no specific statutes that define dangerousness, and this is one of the challenges, which means there are any discrepancies in the laws. Some of those discrepancies include:

  1. Danger to self can mean an individual’s “inability, neglect, or refusal to care for [they’re] everyday needs (Cockerham, p. 310).
  2. Danger to others is specific to whether direct physical violence has been done. To use this cause, two questions have to be answered: Is the threat substantial to others to warrant civil commitment? and is a physical injury only the consideration, or can psychological damage qualify? (Cockerham, p. 311).

These definitions are still tricky to use with mentally ill criminals because there are too many variables to sift through, and a lawyer must be able to work this out in their client’s best interest.


 Another issue is whether an overt act that harms someone is necessary for there to be a justification for commitment or whether the individual must be committed to make sure the defendant is safe. This again, is a difficult situation because the mentally ill person may not have the opportunity to defend themselves.


Therapeutic Jurisprudence and the Law

Therapeutic jurisprudence is the other side of the question, and several researchers have written about the idea of using a therapeutic approach for mentally ill criminals instead of putting them away in prison or an institution. Brigden and Perlin (2008) argue that many people with mental illness have their rights taken from them or have their human rights violated. In their study, they quote that 16% of all adults in prisons or jails already have a mental illness, and there are three times as many people incarcerated in mental hospitals than those from the general population (P. 231-232). With this information in mind, therapeutic jurisprudence was found to assist in these situations.


Brigden and Perlin stated that the framework for therapeutic jurisprudence was developed by two professions who were concerned about the psychological well-being of people who came into contact with the law (p. 234). Their concept is more concerned with maximizing the “overarching aim of the law,” and it assumes that therapeutic effects are desirable and anti-therapeutic effects are undesirable and should be avoided or minimized by the law (p. 234). This concept means that therapeutic jurisprudence would support the personal and psychological well-being of prisoners as being the most crucial consideration.


Wexler (1997) calls therapeutic jurisprudence “the study of the role of the law as a therapeutic agent” (p. 233). Perlin points out that this issue applies to every aspect of the law, where others say it only should be in place when mentally ill criminals are taken into consideration. According to Wexler, there are two types of therapeutic jurisprudence: the Law Based Approach (LBA) and the Psychology Based Approach (PBA). Wexler gives the example of the “don’t act, don’t tell” policy that was enacted by the military. I show that although it was a law-based approach, it had psychological ramifications for gays and lesbians because it led to “isolation, anomie, and superficial social relationships for gay and lesbian service members” (p. 235) and it made people reluctant to interact with people of the same sex for fear that it would be misinterpreted.


Mental health professionals used the PBA, and its responsibility to therapeutic jurisprudence is to suggest that it can “incorporate the psychological/clinical insight” (p. 235). Again this is saying that the two trends can work together given time. Wexler also stated that there should be “comparative therapeutic jurisprudence” so that people on a national level could compare notes about what they had done in this area.


Carne (2003) points out that New South Wales’ therapeutic jurisprudence is based on the M’Naghten rules. The challenge with these rules is that they date back to the mid 19th Century. These rules said that an individual could be declared mentally ill under specific circumstances:


At the time of committing the offense, the offender must have been laboring. Under such a defect of reason, from a mental illness, as not knowing the nature and quality of the act he did or, if he did not think he was doing the wrong thing (p. 92).


This definition gives a somewhat clearer sense of mental illness, but it can encompass a variety of individuals, which may have meant that more people were judged mentally ill at that time. The Crime Act of 1993 added to this idea that the person could not control themselves, that they had a mental illness that came from “an underlying condition” that made the individual commit murder. In this case, the sentence could be changed to manslaughter instead of murder because of this condition. Carne makes the point that many lawyers would suggest to their clients to plead guilty so they could avoid staying incarcerated for longer times would be the case for most mentally ill adults (p. 92). The fact that lawyers are attempting to get a lighter sentence in many cases suggests that they are practicing therapeutic jurisprudence where they can.


Cummins (2006) student the UK Government’s policy to divert the mentally ill offenders from the court system to other services that could more effectively assist them. He found that the system was not working, and he suggested several things that could help make it work. Brigden (2004) indicates that there are ways that rehabilitation can happen with offenders. They indicate that there exists an “ethic of care,” which indicates that people working within the criminal justice system should act with “care, trust, and sensitivity” (p. 287). Brigden also states that an individual must have a will to change to involve themselves in rehabilitative services. The challenge can be that mentally ill offenders may not understand how to take advantage of these types of services.


Banks, Pandiani, and Boyd (2009) furthered the research of Cummins and focused on how the criminal justify system either criminalized or diverted adults who had a mental health disorder. What they found was that within the mentally ill population, in the age group of 18-24, there were more incarcerations than in the general population. They suggest that there should be more study of diversion programs for these adults instead of keeping them incarcerated for significant years.


In the beginning, it was suggested that the trends could not exist together. However, it seems that they are already co-existing and that it will depend on the lawyers and the judge as to how this information is carried out. Within the realm of mental health, it seems to this writer that there should be another way to work with mentally ill individuals. Still, it will take more education in this area and a change in the mindset of people who are working within the system to make them work well together.


  • Banks, S., Pandiani, J. and Boyd, M. (2009). Measuring criminalization/diversion of         adults with serious mental illness. Best Practices in Mental Health: An International Journal. 5 (2) p. 62-70. Retrieved August 28, 2009 from EBSCOhost Academic Search Premier database [AN: 42857540].
  • Bartlett, P. and Sandland, R. (2000). Problems of definition. In Mental health law: policy and practice, p. 24-46. London: Blackstone.
  • Birgden, A. (2004). Therapeutic jurisprudence and responsivity: Finding the will and the way in offender rehabilitation. Psychology & Criminal Law. 10 (3), p. 283-295.       Retrieved August 31, 2009 from EBSCOhost Academic Search Premier database [AN: 13309851].
  • Birgden, A. and Perlin, M.L. (2008). “Tolling for the luckless, the abandoned and forsaked”: Therapeutic jurisprudence international human rights law as applied to prisoners and detainees by forensic psychologists. Legal & Criminological Psychology, 13 (2), p. 231-243. Retrieved August 28, 2009 from EBSCOhost Academic Search Premier database [AN: 34260321].
  • Carne, J. (2003). The unimportance of M’Naghten’s: What happened to therapeutic jurisprudence? Judicial Commission of New South Wales. 15 (110.
  • Carvan, J. (1999). Studying Law. In Understanding the Australian legal system. 3rd Edition. North Ryde, N.S.W.: p. 1-18.
  • Cockerham, W. (2006). Mental disorder and law. In Sociology of mental disorders, p.       307-334.. Upper Baddle River: Pearson Prentice Hall.
  • Cummins, I. (2006). A path not taken? Mentally disordered offenders and the criminal justice system. Journal of Social Welfare and Family Law. 28 (3/4). p. 267-281. Retrieved August 27, 2009 from EBSCOhost Academic Search Premier database [AN: 24904144].
  • Daly, K., Israel, M. and Goldsmith, A.J. (2003). Aims of the criminal justice system. In    Crime and justice: An Australian textbook in criminology, p. 221-242. Sydney:            Lawbook Co.
  • Findlay, M. (2005). Criminal Responsibility. In Australian criminal justice. 3rd Edition, p.1-32.. Melbourne: Oxford University Press.
  • Hughes, R.A., and Leane, G. (1990). The nature of law in Australian legal institutions:     Principles, structure and organization. pp. 1-25. South Melbourne: Ft. Law and Tax.
  • Hunter, R., Ingleby, R. and Johnstone, R. (1995). Themes in liberal and constitutional theory. p. 41-53.  In Thinking about law: Perspectives on the history, philosophy, and sociology of law. St. Leonards, N.S.W.: Allen and Unwin.
  • Parkinson, P. (2005). Interpreting Statutes. In Tradition and change in Australian law.     3rd Edition, p. 211-226.. Pymont, N.S.W.: Lawbook Co.
  • Wexler, D.B. (1997). Therapeutic jurisprudence in a comparative law context. Behavioral Sciences and the Law. 15 (3) p. 233-246. Retrieved August 28, 2009 from EBSCOhost Academic Search Premier database [AN: 11818684].

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1 comment

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