1 Norval Morris & Gordon Hawkins, The Honest Politician's Guide to Crime Control 176 (Chicago: University of Chicago Press, 1970). This review of course contributes to the depletion of these resources.Google Scholar

2 Terence P. Thornberry & Joseph E. Jacoby, The Criminally Insane: A Community Follow-up of Mentally Ill Offenders (Chicago: University of Chicago Press, 1979); Walter Bromberg, The Uses of Psychiatry in the Law: A Clinical View of Forensic Psychiatry (Westport, Conn.: Quorum Books, 1979); Herbert Fingarette & Ann Fingarette Hasse, Mental Disabilities and Criminal Responsibility (Berkeley: University of California Press, 1979).Google Scholar

3 325 F. Supp. 966 (M.D. Pa. 1971).Google Scholar

4 383 U.S. 107 (1966). For the basic details, see note 7, infra.Google Scholar

5 Henry J. Steadman & Joseph J. Cocozza, Careers of the Criminally Insane (Lexington, Mass.: D. C. Heath & Co., 1974).Google Scholar

6 Thornberry & Jacoby, supra note 2, at 1.Google Scholar

7 Id. at 19–20. Among the main constitutional defects of the procedure, the court held, were the lack of proper notice to the patients, their lack of legal representation, and the lack of independence on the part of the applicants for the patients' commitment and of the evaluators of the patients' mental conditions.Google Scholar

8 One of the basic questions is whether this dichotomy truly depicts the considerations at stake, whether this is really “the issue” in this “experiment.” See paragraphs ahead.Google Scholar

9 Yet another in a long line of such condemnations, that is. The trouble with this, among other things, is that the more academicians condemn without full justification, the more they will be ignored, even when they do have a case and workable reforms.Google Scholar

10 The accuracy of the charge that the medical judgment is influenced by political considerations is dramatically illustrated by the fact that in the civil transfer hospitals the medical verdict—as evidenced by 65 percent of the Dixon transfers being released into the community—ran in precisely the opposite direction. The predisposition there seemed to be to discharge as quickly as possible—the politics were diametrically opposed. Indeed, if there was any pattern at all in the civil hospitals' policies (as revealed by the data presented in the book), it was to retain the older, less aggressive patients and to release the younger and more dangerous ones. Small wonder that there is sentiment today that many civil mental hospitals—whether due to economic pressures, legal ones (psychiatry as the “belegaled” profession), or both—have abdicated their social and political responsibilities and even a good measure of their medical ones in the quest to keep the resident population down, to limit management problems, and to serve as at best a revolving-door institution for those still admitted or committed. A refreshing and frank acknowledgement of the political (social-control) aspects of psychiatric decision making can be found in Seymour Halleck, The Politics of Therapy (New York: Science House, 1971).Google Scholar

11 “Politics” is, of course, a term of many meanings. The authors appear to use it in the following variety of senses: politics as (1) the consideration in professional decision making of general community feelings or pressures; (2) the consideration given by a particular decision-making group to the pressures exerted by other agencies or functionaries who, simultaneous with this group, have power over or responsibility for the population that is the target of the decisions; (3) capitulation to pressure coming from people who are actually politicians by profession; and, most broadly, (4) consideration in professional decision making of any facts or factors other than those customarily viewed as relevant to the profession or discipline of which one is a part. The use of the word in this review includes all these meanings.Google Scholar

12 It is worth restating the two major ways in which the book's condemnation is unfounded: (1) The authors accuse as political only the Farview hospital's judgments, while failing to see the politics in all other, including their own, judgments. (2) They condemn the Farview politics without proper backing, by simply citing data that in and of themselves neither support nor undercut these politics, but which they think have the latter effect.Google Scholar

13 Recognition that those are the critical questions—Whose politics are to be preferred? What is a tolerable level of social risk? What is an acceptable measure of overprediction?—is missing from the book. Before presenting their statistical data on the Dixon patients, the authors offer what to their thinking is a telling descriptive example of the political corruption of decision making at Farview State Hospital, of how “the release of the criminally insane can be affected by the likelihood of negative reactions from political figures”:. [memo to hospital administrator, February 12, 1970].Google Scholar

Patient presented to staff on January 30, 1970. Referred for your decision. [administrator's response].Google Scholar

He should have a trial at a civil mental hospital. [memo to hospital administrator, February 20, 1970].Google Scholar

Were you aware that the D.A. suspects (patient) of murdering a girl at a local carnival and they are anxious to get to see him? See Social Work Note[s] for running account of this. Do you still want him transferred? [administrator's response].Google Scholar

After reconsideration he should remain here until stanbilized.Google Scholar

Is this so outrageous? Perhaps we should object to the use of the psychiatric jargon “stabilized” to hide a political decision, just as we might object to lawyers and judges using legal jargon (“due process,” equal protection”) for equally political ends. But do we disagree with the substance of the decision? Is it even blatantly political? The social worker's notes together with the D.A.'s stated eagerness to question the patient about the murder may well have convinced the administrator of the patient's complicity in it. If so, this would have a bearing on his assessment of the patient's mental state. Surely, the fact that the patient had not been convicted in a court of law does not mean that the information was to be totally ignored. It made sense to retain the patient in the present institution at least until the criminal justice officials had had an opportunity to complete their case against him, or alternatively, to clear him. To have gone ahead with the decision to transfer or release the patient while he was under criminal suspicion, with attendant implications for his mental state (especially his “dangerousness”), would have been irresponsible. Indeed, it is the mental health administrator who, as the authors appear to advocate, makes his medical decisions in blissful disregard of nonmedical factors who is a dangerous person and whose actions lead to the kinds of “horror stories” we read about in the general press and even the more popular legal journals. (See 66 A.B.A.J. 829 (1980) for one instance of the terrible costs of “underprediction.”).Google Scholar

14 Because even the authors consider the final “recidivism” figures to be the really compelling evidence, a footnote suffices for some of the other data that they adduce as proof of the Dixon patients' nondangerousness. This other evidence includes: (1) Data showing the patients to have had relatively few “incident reports” at Farview State Hospital and at the civil transfer hospitals, though significantly more at the latter. But what is the opportunity for heavily medicated patients to misbehave in a secure institution? Might the low rate of incidents say something about the effectiveness of the treatment/custody regime or at least the environment? And if the rate of incidents increases at the civil hospitals—still controlled environments in which medication is routinely dispensed—how well does this argue for relinquishing more, let alone all, control by discharging patients into the community? (2) Data to the effect that the patients were on the whole more negative than positive about their stay at Farview, more negative than they were about being at the civil hospitals, and in turn more negative about both institutions than about life in the free community. But even the more disturbed of mental patients are likely to have negative feelings about being involuntarily confined for 14 years in a security-conscious institution. (3) The fact that 65 percent of the transferred patients were released by the civil hospitals into the community. But this says more about the “politics” of these institutions than about the condition or prospects of the patients. (4) Data on objectively tested mental condition and criminal recidivism showing the released Dixon patients to be doing not all that much worse in these respects, though somewhat worse, than populations of released prisoners and civil mental patients. But the picture for these latter two groups is anything but “acceptable.” Recidivism rates among prisoners today are high enough to have resulted in the virtual demise of the rehabilitation ideal. Civil mental patients, because of a general tightening of the commitment standards and Dixon-type changes in some jurisdictions, are increasingly coming into the hospitals as a result of crime or contact with the criminal justice system, their mental difficulties are on the average more serious than before, and by consequence of these factors as well as the institutions' quick-discharge policies, their hospital re-admission and criminal recidivism rates have skyrocketed. See, e.g., Paul D. Lipsitt & Bruce Dennis Sales, eds., New Directions in Psycholegal Research 262–64, (New York: Van Nostrand Reinhold Co., 1980), particularly the references to studies by Zitrin and Sosowsky (Zitrin, A., Hardesty, A. S., Burdock, E. L., et al., Crime and Violence Among Mental Patients 133 Am. J. Psych. 142 (1976); Sosowsky, L., Crime and Violence Among Mental Patients Reconsidered in View of the New Legal Relationship Between the State and the Mentally Ill, 135 Am. J. Psych. 33 (1978)).Google Scholar

15 The strong correlation between youth and crime has been noted in many studies. An early, authoritative source establishing the fact is The Challenge of Crime in a Free Society: A Report by the President's Commission on Law Enforcement and Administration of Justice 44 (Washington, D.C.: Government Printing Office, 1967). The book under review contains corroborative evidence at various points that the younger Dixon patients were more disruptive and dangerous than the older ones.Google Scholar

16 The authors themselves recognize this well enough, but they fail to draw the logical conclusion. At times they seem to concede that the predictions cannot be anything other than “nonscientific,”” political,”” overpredictions.” E.g., Thornberry & Jacoby, supra note 2, at 33–34. They then say that the purpose of their study is to show “exactly how poor the predictions are.”Id. at 34. But much of the book belies this objective. Also, in order to say “how poor,” one needs a frame of reference, a full appreciation of the competing values involved and difficulties inherent in the predicting process, and good data on actual dangerousness (not deductions based on “reported” incidents alone)—each of which is absent.Google Scholar

17 See Nancy J. Beran & Beverly G. Toomey, eds., Mentally Ill Offenders and the Criminal Justice System: Issues in Forensic Services (New York: Praeger Publishers, 1979), question from audience at Nicholas N. Kittrie discussion, at 50.Google Scholar

18 There are facts on how many traffic accidents involve drivers who have been drinking. But there are no facts on the number of accident-free instances of driving by individuals who have been drinking. Despite the lack of this latter information, few of us are likely to be very troubled by the legislative decree that the presence of a certain level of alchohol in the blood of an individual driver—itself already an assumption about the level of impairment (or dangerousness)—warrants treatment of that individual as a criminal, to be punished and (at least temporarily) incapacitated from doing the “predicted” harm. But there is a real tension, particularly as the level of predicted harm and the punishment and incapacitation increase. The more serious the potential harm, the more we will want to incapacitate and the looser we will tend to be about the supporting facts. On the other hand, the greater the incapacitation we impose upon the potential harm doer, the clearer the need becomes to provide factual justification.Google Scholar

19 The authors write that,” The results of [our] empirical investigation are quite discrepant with what would be expected based on the political prediction of the Farview staff. If these political predictions had been accurate, the majority of the Dixon patients would have been dangerous after their release to the community.” Thornberry & Jacoby, supra note 2, at 192 (italics added).Google Scholar

20 See President's Commission report, supra note 15, at 21.Google Scholar

21 At some point, academics and policy makers must abandon their prized detachment and isolation and at least take notice of the kinds of questions liable to be asked by the general public: “Would I want such a person in my home, living next door, or close by in the community?” It may not be proper to have policy wholly determined by such concerns, but as an antidote to elitist unconcern they must not be ignored. After all, these are not idle questions; in some cases they are the reality.Google Scholar

22 Bromberg was formerly the director of the Psychiatric Clinic of the Criminal Court of New York County and Senior Psychiatrist at the Bellevue Psychiatric Hospital in New York City.Google Scholar

23 E.g., in chapter 12, “Commitment Problems and Practice,” Bromberg begins a summing-up paragraph with this sentence: “The fundamental question lays in a dichotomy: the state's duty to protect the community by confining mental patients and the individual's right to freedom.” Bromberg, supra note 2, at 288. Apart from the fact that this sentence adds nothing of substance to what is discussed in the foregoing paragraphs, it also cries out for editorial help. What is the question? How can it lie (lay??) in a dichotomy? In what sense is it “fundamental”? If this were only an isolated malstatement of the overobvious, it would not be so bad. But it is a recurring flaw and indicates generally loose writing, loose editing, and sometimes loose thinking.Google Scholar

24 For an amusing, yet recognizable, view of the legal profession—the view from the psychiatrist on the witness stand—see chapter 2,” The Psychiatrist Before the Law,” in which Bromberg identifies five lawyer types according to the way they deal with psychiatrists and psychiatric testimony: the “country lawyer” type, the “plodding” type, the “unctuous” type, the “blustery” type, and the “know-nothing” type. Id. at 13–14. The experienced trial lawyer can, one suspects, draw up a similar list in which to fit forensic psychiatrists.Google Scholar

25 See previous review for meanings of the term “political.”.Google Scholar

26 Fingarette & Hasse, supra note 2, at 3. The original footnote at this place has been omitted. It informed us that the main themes of the book and the DOM doctrine had been presented by the authors in early writings, but that the present exposition is the result of “intensive rethinking,”” revision” and “refinement,” leading to a “much deepened,”” simplified,”” systematic,” and “significantly improved” version. The same note also uses the word “adumbrate(d)” twice, which may give us an “adumbration” of what we are in for.Google Scholar

27 The following passage, from chapter 3,” Insanity and Ignorantia” (without the more than two pages of footnotes), is representative of the content and flavor of much of the work: If an ultimate exculpatory element in insanity were ignorance or mistake about a fact material to the criminality of an act, that ignorance or mistake would, in itself, normally establish absence of mens rea; recourse to the legal complexities of the ”insanity” defense would then be superfluous. Any attempt to show the utility of the defense in spite of this initial superfluity leads into a tangle of conceptual underbrush in which only thorny paradox grows. A very brief excursus will reveal this.Google Scholar

There is a suspect but nevertheless real tendency in U.S. and English courts to hold as a matter of law that mistake of fact must in general be reasonable. In this view, insane” mistake” or “ignorance” presumably would not exculpate, and the theory of insanity we are examining would thus fail.Google Scholar

However, it has very plausibly been held that an absolute requirement of reasonableness is unjustified, and that the ignorance or mistake need only be “honest.” The criterion of reasonableness is then viewed merely as a rebuttable test of the bona fides of the belief. In this view, the reason for introducing insanity would be precisely to rebut the presumption implicit in the test and to show that the “mistake” or “ignorance” was inded bona fide in spite of its unreasonableness.Google Scholar

Merely to show that a mistaken belief about a material fact is bona fide, however, will not always suffice to exculpate, for there are surely ways in which unreasonable but bona fide beliefs may develop other than from insanity, and some of these, e.g., such a belief arrived at through gross negligence, could establish culpability. We must therefore ask, why is an unreasonable but bona fide “mistake of fact” nonculpable if insane? Perhaps the answer is that insanity establishes the unreasonable mistake as non-negligent? But it is hornbook law that the standard of negligence is objective. What care would the reasonable and prudent man take in the circumstance to avoid mistake? The insane person is by definition unreasonable in just the respects that involve his “mistakes”—these are the very manifestations of his insanity. It might seem then, paradoxically, that by the objective standard he is necessarily negligent! The equally absurd alternative is to speak of the care that would be exercised by “a reasonable and prudent man with the defendant's capacities,” i.e., in this case an irrational reasonable man. Id. at 26–28.Google Scholar

28 E.g., the authors speak of the “ubiquitous pattern of fallacious reasoning in this area.” Fingarette & Hasse, supra note 2, at 17. We have already heard about the “obscure issues,” the “tangle of conceptual underbrush,” and the “thorny paradox.”.Google Scholar

29 Often the authors appear to argue the case for their new doctrine by way of absurd reductions of existing doctrine. Take this paragraph on voluntariness: One might, as a last resort, speak in terms of familiar but vague notions like the “will,” and say that if at least it is the will that is “diseased,” and not merely the mind generally, then the mere fact that the will is “diseased” renders the behavior not voluntary. But the question remains—why should behavior that is willed even though the will be “diseased” be called involuntary? This seems to be a corruption of language in order to achieve a desired conclusion, since it is natural and usual to hold that behavior, if willed, is voluntary. Indeed, it is not to be denied that it may be relevant to exculpation that the “will” is “diseased.” But we shall quickly lose from sight whatever it is about such a will that negates responsibility for the conduct if at the outset we describe the conduct as unwilled! This way lies total confusion. If, on the other hand, we acknowledge that the conduct is willed, but willed by a diseased will, we have to ask why this (rather than involuntariness) should make the conduct in that respect nonculpable. Id. at 59–60 (footnotes omitted).Google Scholar

30 In id. at 207–8 the authors put it this way: “In the relevant sense of ‘rational,’ all criminality is rational. As the D.O.M. doctrine states, insofar as there is irrationality there is not criminality, though of course irrationality can be dangerous and lead to harmdoing.” Circular and exceedingly broad, this definition is not much help. All the real problems arise in trying to specify what kind or level of irrationality—e.g., beyond the fact that the crime was “irrationally” (incomprehensibly) bizarre or vicious—there should be to justify legal exculpation.Google Scholar

31 Arenella, Peter, Book Review, 80 Colum. L. Rev. 420, 433 (1980). This review generally comes down hard on the book, arguing (as this one) that the DOM doctrine solves few of the theoretical or practical problems and indeed raises new ones. Another generally unfavorable review (that has appeared between the writing and editing of this one) is Stanley Ingber's Ideological Boundaries of Criminal Responsibility in 27 UCLA L. Rev. 816 (1980). Ingber expresses general disappointment with the book for failing to address the “fundamental” philosophical questions (such as ”Why should mental disability affect criminal responsibility?”). There are also a couple of complimentary reviews, however: one by LeRoy L. Lamborn in 66 A.B.A.J. 614 (1980) and one by Erica Weinstein in 8 J. Psych. & L. 109 (1980).Google Scholar

32 See, e.g., the previous review.Google Scholar

33 Fingarette & Hasse, supra note 2, at 247–48.Google Scholar

34 Id. at 244.Google Scholar