It is interesting to note that in 1907 Grasset99 brought forth under the term “physiological responsibility” a concept very similar to that embodied in the Durham Rule. Grasset advocated that the judgment of responsibility be made merely on whether or not the capability of the organism is impaired. In this old concept he avoids decisions about free will versus determinism. He also refuses to confine his inquiry to disparate conceptual abstractions such as “knowing,” feeling,” or “will.” Instead he keeps his attention on the integrated reality of human functioning.
It has been customary over the decades for lunacy commissions to pronounce psychopaths competent and for juries to pronounce them sane and responsible. It is in the concept of competency that we meet our primary problems when we attempt to provide any improvement in methods of dealing with the psychopath. It is difficult to examine the most important aspects of competency, however, without becoming entangled with essential implications of legal responsibility. If we attempt to make pronouncements about responsibility, we are likely, unless we take particular care to signify what we are talking about, to find ourselves submerged in metaphysics and attempting solutions of ultimate philosophic and religious problems. However important or transcendent these problems may be and however we may solve them for ourselves, we are not, as psychiatrists, qualified to solve them as experts. We are, let us say, not competent to serve in such a role nor are we responsible.
In approaching questions of competency in the psychopath, it is plain that he shows no defect in theoretical reasoning and that he lacks all the outer or peripheral manifestations of psychosis and usually even of minor psychiatric disorder. If, however, we consider the record of his actual performance, we nearly always find ample evidence to say that he is socially incompetent in the sense that he cannot carry out a sane plan of life or avoid repeated antisocial acts and other acts seriously damaging to himself.
McDougall long ago expressed a succinct and practical opinion on the essential question of competency:192
In practice the criterion adopted is: Can the patient be trusted to look after his affairs without undue risk to himself and others? And there is no other criterion.
As the reader must, I believe, agree, this sensible criterion, although regularly applied to any patient who has ever shown a delusion or a hallucination, is not in practice applied to those who lack these and some other traditionally accepted signs of “a lesion of the intelligence.” If this criterion should be applied to psychopaths, it would be much less difficult to commit them and keep them under satisfactory control.
Karl Menninger, also, in referring primarily to questions of liability for punishment, has made a point that should be helpful if we apply it to the commitment of patients who are not charged with crime. “The psychiatrist,” he says, “asks not ‘Is that man responsible?’ but ‘Of what is he capable or incapable?’ ”210
Despite the cogency of this position, it is not the common practice of psychiatrists, if the patient is diagnosed as psychopathic personality, to ask themselves such a question. Or, if they ask it, they arrive at a strange answer, and by extraordinary methods.
In estimating competency in most matters, intelligence as manifested in verbal reasoning carries a good deal of weight, but few who survive as adults continue to make the estimate entirely on this basis. Judgment is often spoken of as a matter somewhat different from and far more complicated than intelligence and is in general regarded as better demonstrated in behavior than in talk. In the old Stanford-Binet psychometric test we find the question, “Is it better to judge a man by his actions or by his words?” The normal 10-year-old child is supposed to answer this correctly. What disturbing thoughts may arise from this apply, I believe, as accurately to us in our role as psychiatrists as to legal authorities.
Despite the widespread and sometimes bitter disagreement among psychiatrists and at times among legal scholars, most patients with psychosis who need treatment and who need restraint can be legally committed and controlled. Although many psychopaths are, in my opinion, far more disabled than a large proportion of committed psychotic patients and in far greater need of control, it is very difficult to have such a patient committed. Before any important step toward solving the problems created by psychopaths can be taken, some legal means of controlling their antisocial, heedless, self-damaging, and irresponsible behavior must be devised.
If the Durham Rule devised by Judge Bazelon is followed, the question of competency in the psychopath would depend chiefly on whether his abnormality is correctly defined as a “mental disease or mental defect.” It has long been customary in psychiatry and law to distinguish sharply between this abnormality and all the conditions to which the terms “mental disease” or “mental defect” are applied. Few psychiatrists could doubt that crimes committed by a psychopath are the product of his aberration. The psychiatrist-witness’s opinion would, inevitably it seems, depend on whether or not he classified this aberration as “mental.” This decision, it seems to me, would in turn substantially depend on whether or not this term is limited in its meaning to an assumed disparate faculty of cognition. Thus, as far as the psychopath is concerned, it would appear that the psychiatrist in court is faced with essentially the same decision, whether he testifies under the M’Naghten Rules or the Durham Rule. Either may be interpreted narrowly and confined to mere cognition or more broadly, as Jerome Hall108 suggests that the M’Naghten Rules be interpreted. Decisions based on the M’Naghten Rules depend on the interpretation of the word “know,” and with the Durham Rules on the interpretation of “mental disease or defect.” It is hardly conceivable to me that a psychiatrist would arrive at anything but the same conclusion by either test in his opinion about a psychopath.
Hopes at first were high that the Durham Rule would free psychiatrists from archaic legal restrictions and allow them to bring truly scientific knowledge to bear in court on questions of competency and responsibility.57,83 With the passage of time this enthusiasm has waned. The scientific knowledge to deal so well with these problems claimed so confidently by some psychiatrists seems not to have proved effective. In a 1974 issue of The American Journal of Psychiatry, Judge Bazelon, himself, expresses, in an article with the interesting title “The Perils of Wizardry,”20 what I believe is a disappointment similar to my own in the prospects of his widely acclaimed rule enabling psychiatrists to bring a new and scientific solution to the old problems. I fear that many psychiatrists overestimated what we have to offer. Let us quote:20
The experiment undertaken by my court in its 1954 decision in Durham v. United States* is a real lesson in regard to the role of psychiatrists in insanity defense. That case involved the formulation of a new test of criminal responsibility. It held that an accused person is not criminally responsible if his unlawful act was the product of a mental disease or defect. The purpose of this decision was to grant the psychiatrist his 100-year-old request to be allowed to tell what he knows and, just as importantly, what he does not know about the phenomenon of human behavior rather than face demands for conclusion resting on ethical, moral, and legal considerations beyond his expertise.
The purpose of the Durham decision was not fulfilled. Psychiatrists continued adamantly to cling to conclusory labels without explaining the origin, development, or manifestations of a disease in terms meaningful to a jury. The jury was confronted with a welter of confusing terms such as personality defect, sociopathy, and personality disorder. What became more and more apparent was that these terms did not rest on disciplined investigation based on facts and reasoning, as was required for the fulfillment of the Durham decision. I regret to say that they were largely used to cover up a lack of relevance, knowledge, and certainty in the practice of institutional psychiatry.
I am frequently asked, “Why don’t you talk about what’s wrong with courts and lawyers?” I have written countless opinions and articles and have delivered several “Bazelon jeremiads” about the problems in the practice of law before lawyers an
d judges. But here I am concerned with the culpability of psychiatrists in the failure to achieve the purpose of the Durham decision.
First of all, psychiatrists did not acknowledge the limits of their expertise. Secondly, they failed to confront honestly and openly the conflicts that impaired their competence even when their expertise was sufficient and relevant … I warned behavioral scientists not to fall into the same trap as described in The Wizard of Oz. In that Frank Baum classic, Dorothy and her companions followed the yellow brick road to find the Wizard of Oz, who lived in the Emerald City. They believed the wizard could give the tinman a heart, the lion some courage, and the scarecrow a brain. When they finally arrived, they discovered that the wizard was without expertise, a fake. In 1970 I commended the behavioral scientists for caring about people in distress but warned them of the dangers in playing wizard to the problems of society for which they had no expertise. The issue was not whether the behavioral scientists were good, but what they were good at.
Despite some very important achievements in the last half-century, psychiatry does not today, in my opinion, possess newly discovered and well-established facts which afford a scientific answer to the ultimate questions that for so long have arisen and caused confusion in determining responsibility.57 Whatever rule is followed, when efforts to control the antisocial and self-destructive activities of a psychopath are being made, the verdict will probably depend on whether the estimation of his legal competency is based on outer appearance and the peripheral mechanisms of function or on his amply demonstrated incapacity to lead an adequate or socially acceptable life because of the serious inner pathology that only emerges in his actual performance as a member of the social group.
Many believe that the New Penal Code which seems to have supplanted the Durham Rule in most jurisdictions is a better rule than that of Durham or of M’Naghten. Even with this New Penal Code the interpretation of the terms mental disease and mental defect is likely to vary among psychiatrists and continue to cause difficulty in judgments about the psychopath.
68. Treatment or Control
Several decades ago, while preparing the first edition of this book, I was profoundly impressed by two difficulties that stood in the way of dealing effectively with the psychopath. One of these was his apparent immunity, or relative immunity, from control by law. The other was his lack of response to psychiatric treatment of any kind.
Today both of these difficulties exist and, it seems to me, with little alteration. Let us consider first the question of legal control, of the problems that arise when steps are taken to protect the community and the patient from his misconduct. It is only on very unusual occasions that a psychopath can be committed as legally incompetent, and even when this occurs it is not likely that he can be kept long under medical supervision. Let us consider an example:
After years of expensive, fruitless, heartbreaking, and faithful efforts to keep him out of disaster, the family of a young (and in most respects typical) psychopath succeeded in having him pronounced incompetent and sent to a state hospital. Unlike most psychopaths, this patient had shown strong indications that he might murder one or more members of his family. This and the prodigious obviousness of his disability and his danger to the community strangely enough overbalanced the customary psychiatric concepts in this isolated instance, and he was admitted to be socially incompetent. There is no denying that this procedure was incorrect according to clearly defined medical rules.
After a few weeks of study he was found not to show any of the technical signs of irrationality (none of which had ever been suspected), diagnosed as a “psychopathic personality,” and sent home as “sane and competent.”
One of the psychiatrists at the hospital who had participated in this procedure explained his attitude as follows. He believed that this particular patient, no matter what his proper diagnosis might be, was more seriously disabled than a great many of the patients who would spend the rest of their lives in the institution. He also believed that the discharged patient was more dangerous to the community and more difficult to care for at home than, perhaps, half of those in the state hospital. The members of the staff, he felt, were motivated in their action by several impulses, directed by several judgments.
First of all, it was not in accordance with official psychiatric concepts to call such a patient psychotic. It was also against the rules of the hospital to keep a nonpsychotic patient against his will. There was, in addition, in some members of the staff a tendency to resist efforts to slip in or palm off on the hospital these psychopaths who are considered technically not eligible for care. There was opinion expressed about how crowded the place was already and about the dangers of being overrun with psychopaths if an exception was made and this one kept. Some felt it would not serve the cause of justice if this man were admitted by the staff of the state hospital to have mental disability, because this appraisal might be utilized in the future dozens or hundreds of times to help him evade legal penalties for the antisocial acts these doctors, like everyone else, realized he would continue.
There are not a few among those in charge of our state hospitals who feel that, with conditions as they stand, it would be more fitting for persons of this sort, when segregation or supervision of some type is urgently necessary, to be placed not in our present psychiatric institutions but in reformatories or prisons. There are others who feel that psychiatric care and many of the services and facilities now available in our mental hospitals could and should be made available to severely maladjusted psychopaths.
As our evidence has shown, I hope, the psychopath notoriously avoids the petty and temporary restraints that might be legally imposed. Those imprisoned for serious crimes return at length no less prone to continue these crimes. Even when under life sentence, the psychopath tends more readily than others to obtain parole and become again a social menace. Not only can he (perhaps involuntarily) mimic sanity in superlative fashion but also moral rebirth, salvation, and absolute reform, or perhaps transformation into a supercitizen. Among many examples one patient stands out:
This brilliant and charming young man, when in his early twenties, murdered another without provocation. Despite a typical record of psychopathic behavior, he so impressed the authorities that parole was granted after a few years. That which, if properly understood, would have warned the parole board against the extreme danger of releasing this man was interpreted as a mitigating factor, as grounds for giving him another chance. It was argued that emotional handicaps and variations from the normal personality patterns had played a part in his unfortunate deed. This, they reasoned, made him less culpable and more deserving of leniency. Like nearly all of his kind, he now showed no superficial signs of nervous or mental disorder (as this is generally understood) but indications of great promise. He inspired trust and confidence and gave a convincingly (theoretical) demonstration of reform, self-control, trustworthiness, sound ethics, and high ideals. Shortly after his release he again committed murder, this time of a woman and again with no discernible motivation of any consequence.
In institutions where psychiatric treatment is given, the psychopath, I believe, is much more likely than others who have committed serious crimes to convince his psychotherapist that treatment has been effective, that it has brought true insight and profound changes that now make him no longer a danger to society. This may lead to his being presented as one who richly deserves parole or pardon. The daily papers report many cases of armed robbery, rape, and murder resulting from such confidently optimistic estimates of therapeutic success. It is my impression that many of the attitudes underlying permissiveness have also contributed to this. And I think a gross overestimation of the influence of psychiatric treatment on criminals, whether or not they are psychopaths, has played a major role in these tragic events.57,165
Although some protection to society is afforded by dealing out sentences of varying length to psychopathic offenders on the assumption that they are normal and to be punished in ac
cordance with the degree of blame their crimes are judged to deserve, such protection is not reliable. The assumption that they will thereby learn their lesson and become safe inhabitants of the community is an assumption at sharp variance with simple facts. Poorly adapted as our present methods are to prevent the repetition of crime, we find them rapidly approaching travesty and farce when we look for what security they offer against initial crimes of tragic magnitude. An example will make the point clear:
In big letters on the front page of newspapers all over the United States the “Bestial Sex Slaying” of an 11-year-old girl by a boy 17 years of age is proclaimed. Details of torture and dismemberment follow. The horrible impact of impulses perverted from the aims of Eros and fused with those of hate and brutality arouses disgust and vengefulness in millions upon millions. Additional articles point out that the murderer, now remarkably callous and undisturbed by his act, had, over a period of many years, shown gross maladjustment and indifference to social values, to ordinary aims, and to the rights of others. He had on several occasions been placed in a reform school and kept for various periods determined in accordance with the legally estimated seriousness of his antisocial acts and with the amount of punishment these were officially regarded as deserving.
Had this boy expressed a few delusions or reported even once that he heard an imaginary voice (like many people who are quite harmless), he could have been hospitalized as long as hospitalization was regarded by experts as advisable. Lacking these and the other accepted technicalities which are presumed to determine competency and sanity, he could not be held in any institution beyond the arbitrary term to which he had been sentenced. His conduct had so strongly indicated that he could not without danger to others be left unrestricted in the community that his parents protested to the authorities against his release from custody. They urged that he be kept in the institution and gave adequate reasons for their plea. The authorities had no means of heeding this warning—no legal grounds for an alternative to the technically correct procedure of dismissing the patient. The regrettable results reflected in newspaper headlines soon followed.
The Mask of Sanity Page 61
