The Key to Any Successful Relationship is Communication: Doctors and Lawyers, Take Note

Black sweet blood mouthfuls,
Shadows.
Something else
Hauls me through air—
Thighs, hair;
Flakes from my heels.
White
Godiva, I unpeel—
Dead hands, dead stringencies.
And now I
Foam to wheat, a glitter of seas.
The child’s cry
Melts in the wall.
And I
Am the arrow,
The dew that flies
Suicidal, at one with the drive
Into the red
Eye, the cauldron of morning.^[1]

I. Introduction

The criminal justice system in the United States is systematically failing an exorbitant amount of mentally ill inmates.^[2] A recent study by the Bureau of Justice Statistics revealed that 14% of state and federal prisoners and 26% of jail inmates suffer from serious psychological distress.^[3] In comparison, 5% of the United States general population suffers from serious psychological distress.^[4] Today, the mentally ill are overrepresented in prisons and jails in the United States.^[5] Often, prisoners and inmates with mental illnesses end up incarcerated because they have nowhere else to go and are left with no other option.^[6]

There is a disconnect between the policies of the United States criminal justice system and modern psychology.^[7] Law enforcement and legal professionals, such as judges and prosecutors—rather than psychologists and psychiatrists—are determining the futures of mentally ill inmates.^[8] It is unjust to have people who are unqualified in modern psychology and psychiatry making decisions about what to do with the mentally ill.^[9] In addition, certain groups in our society are at an enormous disadvantage for being more at risk of incarceration—namely, minority groups, the poor and homeless, and those who have already faced legal trouble.^[10]

In general, when one experiences a mental health crisis, one is more likely to come in contact with police rather than a medical professional.^[11] Police officers are now burdened with the task of dealing with the mentally ill, and subsequently, are forced to make decisions that will severely impact their futures.^[12] Police officers are not adequately trained in psychology and psychiatry to take care of the mentally ill, yet it is their job to arrest people; thus, it seems logical that their response would be to arrest people with mental illnesses, regardless of whether they are engaging in criminal conduct or not.^[13] For those arrested upon engaging in criminal conduct, the criminal justice system creates a vicious cycle.^[14] Once incarcerated, mentally ill inmates do not receive the mental health treatment they severely need, and they stay incarcerated longer than those without mental illness.^[15] If and when the mentally ill are released from prison, they have usually lost access to healthcare and other vital resources, and are often left homeless.^[16]

This Comment criticizes the criminal justice system in the United States for not being aligned with modern psychology. Part II of this Comment will discuss the intersection between mental health and the United States criminal justice system in a broad manner. This Comment will further discuss the history of mental illness in the United States. Part III will introduce the legal definition of insanity and the various insanity defenses, including a summary and analysis of the Andrea Yates case.

In Part IV of this Comment, there will be case studies of McWilliams v. Dunn^[17] and the William Charles Morva^[18] case. Part IV will also explore the role that experts play concerning indigent defendants in the criminal justice system. Next, in Part V, there will be a discussion of suggested solutions to remedy the failing criminal justice system. Finally, Part VI concludes this Comment by suggesting that the United States criminal justice system change the way it functions and deals with its mentally ill population.

II. Intersection Between Mental Health and the United States Criminal Justice System

A. The Approach to Criminal Justice in the United States

The idea of punishment is the driving force behind the criminal justice system in the United States.^[19] “The United States spent about $80 billion on its system of jails and prisons in 2010—about $260 for every resident of the nation. By contrast, its budget for food stamps was $227 a person.”^[20] In general, a society constructs a system of punishment in order to reduce the amount of criminal activity.^[21] The United States incarcerates more people than any other country in the world.^[22] In order to understand why the rate of incarceration is so high in the United States, it is helpful to look at a brief history of how punishment became the overarching goal of the criminal justice system.

The 1960s and 1970s saw an increase in crime.^[23] This increase in crime affected the political landscape in the United States, as politicians did not want to appear to be “soft” on crime.^[24] Politicians began responding to the public’s demand for stricter crime regulation.^[25] President Richard Nixon was infamous for his “tough on crime” views.^[26] Since Nixon’s presidency, the prison population has increased.^[27] “The criminal justice system became the only effective institution that could bring order and manage urban communities.”^[28]

The tough-on-crime theory that infiltrated domestic politics during Nixon’s presidency continued on throughout Ronald Reagan’s presidency.^[29] President Reagan used the War on Drugs to instill fear in the American public—leading the public to believe that drug abuse was the most severe problem plaguing the country, and that crime and drug abuse were inherently intertwined.^[30] Thus, the tough-on-crime rhetoric was driven by fear. In order to alleviate that fear in the American public, conservative politicians from the 1960s to the 1980s lobbied for a criminal justice system that would punish to the greatest extent possible.^[31] Tough-on-crime rhetoric is not extinct.^[32] It has existed throughout each succeeding presidency,^[33] and it is alive and well in American politics today, with President Donald Trump as a champion of tough-on-crime policies.^[34]

B. History of Mental Illness in the United States

In the 1950s, with the introduction of antipsychotic medication like Thorazine, governments at the federal, state, and local levels began to follow a policy of deinstitutionalization.^[35] Deinstitutionalization favors “moving severely mentally ill people out of large state institutions and then closing part or all of those institutions.”^[36] Deinstitutionalization continued into the 1960s with the passage of federal social welfare programs.^[37] In 1963, President John F. Kennedy signed the Community Mental Health Act into law, providing federal funding to create mental health facilities with community-based treatment.^[38] These community-based treatment facilities replaced state mental hospitals.^[39]

The passage of Medicaid in 1965 reinforced the deinstitutionalization movement.^[40] After the passage of Medicaid, a large number of state mental hospital patients were moved to general hospitals and nursing homes; Medicaid does not provide coverage to people in mental health institutions.^[41] State-funded mental hospitals were shut down throughout the United States in the 1970s.^[42] The closing of state-funded mental hospitals continued into the 1980s.^[43] The large-scale shut down of state-funded mental hospitals in the 1980s was largely due to President Reagan’s Omnibus Budget Reconciliation Act, which terminated the federal government’s role in providing mental health facilities and services^[44] by shifting funding to the states through block grants.^[45]

In 1990, the Food and Drug Administration approved the drug Clozapine to treat the various symptoms of schizophrenia,^[46] strengthening the bias against hospitalizing the mentally ill.^[47] Public and private mental health facilities continued to dwindle, and in 2004, there were about 100,000 psychiatric beds in the then-remaining mental health facilities.^[48] In 2009, states cut $4.35 billion in mental health spending—largely due to the Great Recession.^[49] Today, the effect of deinstitutionalization is that there are not enough mental health facilities to treat the mentally ill.^[50]

III. Legal Definition of “Insanity” and the Insanity Defense

A. The History of Legal Insanity in the United States

The insanity defense is a pillar of criminal law.^[51] It was not until the thirteenth century that insanity arose as a component in certain criminal trials, but by the sixteenth century, English courts were using various analyses to determine insanity by comparing good and evil.^[52] In the 1700s, the idea of sanity versus insanity in the law took a new form.^[53]

In the wake of the American Revolution, jurists built a republic of laws upon the Enlightenment science of the mind, presuming all men were endowed with reason and moral sense. Thus, they recast legal personhood in terms of sanity rather than status: Possessing a rational mind, not a noble lineage, was the key to citizenship. In so doing, these jurists posited a certain relationship between mental competency and legal responsibility: A person’s ability to exercise a “rational liberty” established his liability for the consequences of his acts.^[54]

Doctors and clinicians began advocating for a change in the way the mentally insane should be viewed under the law.^[55] They argued that insanity was the result of physical diseases—better treated in mental health institutions than in prisons and jails.^[56]

Judges were ill-equipped to handle these new advances in the clinical jurisprudence of insanity.^[57] “In case after case, members of the bench were tasked with the maddening enterprise of distinguishing true madness from mere eccentricity or perversity.”^[58] Judges were being forced to make ambiguous decisions concerning mental health that could not be supported by a singular rule of law.^[59] Thus, it is not surprising that in order to mitigate the discord in decisions involving the mentally ill, judges created a law of insanity independent from psychology and medicine.^[60]

The traditional insanity defense was created in England in 1843 and was formalized as the M’Naghten test.^[61] The M’Naghten test requires that an individual must clearly prove that “at the time of the committing of the act,” she was “labouring under such a defect of reason, from disease of the mind, as not to know the nature and quality of the act” she was committing, or, if she was aware, she “did not know” that the act was wrong.^[62]

Initially, the test was not widely accepted and it faced serious criticism because of its focus on one’s ability to distinguish right from wrong.^[63] As a result, some states adopted the Irresistible Impulse test as an outgrowth of the M’Naghten test.^[64] Under the Irresistible Impulse test, a defendant may not be held criminally liable for his actions—even if he was able to tell right from wrong—if the defendant was unable to stop himself from committing the actions he knew to be wrong due to some mental disease or defect.^[65] In the United States, the federal government and seventeen states have adopted the original M’Naghten test, and thirteen states have adopted some version of the M’Naghten test.^[66] Along with the M’Naghten test, two other standards for an insanity defense are used in the United States.^[67]

The American Law Institute (ALI) Model Penal Code test broadens the M’Naghten test by introducing the concept of substantial impairment rather than complete impairment.^[68] The ALI test has both a cognitive prong and a volitional prong.^[69] It states that individuals are not criminally liable for any wrongdoing they caused “if they lacked ‘substantial capacity either to appreciate the criminality of [their] conduct or to conform [their] conduct to the requirements of law.’”^[70] In the United States, fourteen states have adopted the ALI test.^[71] The third insanity defense test is the Durham Product test, which is only recognized in New Hampshire.^[72] “Under the [Durham] [P]roduct test, individuals cannot be liable for their criminal actions if these actions were the product of a mental disease or defect.”^[73]

B. Problems with the Insanity Defenses

There is no uniformity amongst the insanity defenses in the United States^[74] because states are free to choose which insanity defense they wish to employ.^[75] “Not only are the states free to develop disparate law in the field of legal insanity, but under the Constitution, they are encouraged to do so.”^[76] This disparity ultimately leads to different legal outcomes depending on which jurisdiction an individual is tried in.^[77] To further complicate the matter, some states have completely abolished the insanity defense.^[78]

The M’Naghten test is problematic because it relies on outdated scientific knowledge, and it sets the standard too high.^[79] A mentally ill person may commit a crime, understand the nature of his actions, and know that what he did was wrong.^[80] However, that does not mean that the mentally ill person is necessarily criminally capable—he could have committed the crime as a result of his mental illness.^[81]

Although the ALI Model Penal Code test is more favorable to a mentally ill defendant,^[82] the test was largely abandoned after John Hinckley’s failed attempt to assassinate President Reagan.^[83] In 1982, Hinckley was found not guilty by reason of insanity (NGRI), allowing him to escape a prison sentence and be admitted to a government psychiatric hospital.^[84] Hinckley’s NGRI verdict led various states to modify or abolish the ALI test.^[85] Furthermore, the Durham Product test is also flawed because it gives experts too much discretion to define mental illness in whatever terms they wish to use.^[86]

There are many other problems associated with the insanity defense.^[87] First, the general public mistakenly believes that the insanity defense is used often.^[88] Second, the insanity defense is dependent upon the expert opinions of mental health professionals.^[89] Often, mental health professionals have contrasting beliefs about a specific diagnosis.^[90] Third, expert witnesses may not always be entirely reliable.^[91] Because each party gets to choose its own experts, there may be a tendency to select an expert who is biased toward one side or the other.^[92] “Studies have shown that lawyers ‘shop’ for expert witnesses and ‘frequently coach their experts to present their opinions in the most favorable light.’”^[93] Fourth, jurors commonly base their decisions in legal insanity cases on their own impressions of the defendant and their own attitudes toward the defense in general.^[94]

C. Definition of Insanity in Texas

The insanity defense in Texas is defined in Section 8.01 of the Texas Penal Code. Section 8.01 provides:

(a) It is an affirmative defense to prosecution that, at the time of the conduct charged, the actor, as a result of severe mental disease or defect, did not know that his conduct was wrong.

(b) The term “mental disease or defect” does not include an abnormality manifested only by repeated criminal or otherwise antisocial conduct.^[95]

The Texas insanity defense is almost identical to the M’Naghten test.^[96] Under Texas law, just as under the M’Naghten test, the focus is on whether the mentally ill defendant knew that his conduct was wrong and knew the difference between right and wrong.^[97] In addition, Section 8.01 interprets the word “wrong” to mean legally wrong.^[98] Thus, the test for determining whether the defendant knew that his conduct was wrong is to decide whether the defendant knew that he partook in illegal conduct.^[99]

In the Texas legal system, everyone is considered sane until proven otherwise.^[100] The defendant has the burden to prove that he did not know the difference between right and wrong when he committed the illegal act.^[101] A court can find that a defendant is not legally insane even if the defendant successfully proves that he was mentally ill when he engaged in the illegal conduct.^[102]

For example, one can imagine a scenario in which a defendant, who has a mental illness, becomes addicted to illegal substances and begins to abuse illegal substances regularly.^[103] The constant abuse incapacitates the defendant, and he can no longer function in a normal and healthy way. Although the defendant’s addiction exacerbates his mental illness or even produces a new mental illness, the defendant cannot claim legal insanity unless he can prove that he did not know that his actions were illegal.^[104]

D. If Andrea Yates Did Not Pass the Standard for Not Guilty by Reason of Insanity, Who Does?

On June 20, 2001, Andrea Yates murdered her five children by drowning them in the bathtub at their family home, constituting one of the most infamous murder stories in Texas history.^[105] After murdering her children while her husband was at work, Yates called the police, exclaiming, “I just killed my kids.”^[106] Police arrived, and Yates led them to a bedroom in the back of her house, where police found four of Yates’s children lying still on the bed.^[107] Yates had left her eldest child, who was seven-years-old at the time, lying face-down in the bathtub full of water.^[108] Yates remained calm as she explained to the police that she was a bad mother and that her “children were disabled and not developing normally. And so, she decided to send them to God.”^[109]

It is almost impossible to doubt that Andrea Yates was severely mentally ill. She had psychosis and postpartum depression.^[110] She attempted suicide two times—the first time only four months after she gave birth to her fourth child.^[111] She was hospitalized four times.^[112] Yates routinely took antidepressants and a drug called Haldol.^[113] For Andrea Yates, it was a continuous downward spiral into a dark and dangerous place. Yates became incapable of caring for her children by herself due to her mental illness, and so Yates’s mother-in-law started coming to Yates’s home every day to help watch the children.^[114] Yet, even though Yates’s mental condition did not improve, Yates’s psychiatrist decided to take Yates off her medication, just before the murders.^[115]

Today, Andrea Yates resides at Kerrville State Hospital, where she is treated for her mental illness daily, and where she will remain for the rest of her life.^[116] However, it was due to a trial mishap that Yates was eventually found NGRI and ended up in a state mental hospital.^[117] In 2002, Yates’s first trial ended in a capital murder conviction, and Yates was sentenced to life in prison.^[118] “[I]n 2005, a Texas appeals court overturned her conviction and prison sentence because a prosecution witness had falsely testified about an episode of a television show.”^[119] Thus, Yates had a new trial in 2006 in which the jury found her NGRI.^[120]

Andrea Yates should never have been sent to prison in the first place.^[121] However, her case illustrates the precise issues with the M’Naghten test and the insanity defense in Texas. The central question in the Andrea Yates case is whether she knew that drowning her children was wrong. Although not explicitly defined in the Texas Penal Code, Texas courts have interpreted “wrong” to mean a legal wrong.^[122]

The disconnect between Yates’s first trial and her second trial is confusing and frustrating—how did the first jury find that Yates knew that her actions were wrong while the second jury found that Yates actually did not know that her actions were wrong? Jurors from the first trial noted that because Yates could describe the murders exactly as they had occurred, she must have known what she was doing.^[123] In addition, they reasoned that Yates would not have called the police if she did not believe that what she had done was wrong.^[124] On the other hand, jurors from the second trial stated that Yates knew her actions were illegal at the time she murdered her children. However, the jurors clarified that in Yates’ delusional mental state, Yates truly believed that drowning her children was right.^[125]

The problem with the M’Naghten test (and thus the Texas insanity defense) is that it can be near impossible to judge whether someone knew right from wrong in a certain moment. The M’Naghten test is unclear on whether a fact-finder should analyze the “right from wrong test” from an objective standard versus a subjective standard.^[126] “M’Naghten is known as a purely cognitive test because it only focuses on the defendant’s knowledge and not on her will or volition.”^[127] The test ignores the volitional aspect of one’s lack of control over one’s actions.^[128] Furthermore, not only did the M’Naghten test not apply to Yates, but no current insanity test applied to Yates.^[129] It is time to draft a new insanity test—one that is certain to encompass people like Andrea Yates.

IV. Access to Mental Health Experts in the United States Criminal Justice System

A. McWilliams v. Dunn Case Study

James McWilliams, an indigent^[130] defendant, was convicted of the 1986 rape and murder of Patricia Reynolds in Tuscaloosa, Alabama.^[131] The trial court appointed counsel for McWilliams, and McWilliams’s counsel requested that McWilliams undergo a psychiatric examination.^[132] The trial court granted McWilliams’s request, and three psychiatrists concluded that McWilliams was competent and had not been suffering from mental illness at the time he raped and murdered Reynolds.^[133] The jury in McWilliams’s trial heard testimony from McWilliams’s mother, who explained that McWilliams had suffered a traumatic brain injury as a child, and that this brain injury later caused behavioral problems and a psychotic disorder.^[134] The jury found McWilliams guilty.^[135]

Defense counsel requested additional psychiatric testing and mental health records in anticipation of the sentencing phase of the trial.^[136] Dr. Goff, a neuropsychologist, examined McWilliams and found that McWilliams had “organic brain dysfunction” resulting from the head injuries McWilliams suffered as a child.^[137] However, defense counsel received Dr. Goff’s examination only a few days before the start of the sentencing hearing, leaving counsel with a minimal amount of time to review and analyze the report.^[138] Defense counsel repeatedly requested a continuance,^[139] but the court denied every request.^[140] The judge sentenced McWilliams to death.^[141]

McWilliams appealed and argued that according to Ake v. Oklahoma,^[142] he was entitled to meaningful expert assistance, which he had been denied.^[143] In a 5-4 decision, the Supreme Court of the United States ruled very narrowly in favor of McWilliams, concluding that McWilliams had, in fact, been denied meaningful expert assistance.^[144] Justice Breyer, writing for the majority, “found that an independent expert dumping a report on a defense counsel’s desk prior to a sentencing hearing without any assistance in understanding it was not enough.”^[145] However, the majority did not answer the broader constitutional question of whether an indigent defendant who has a mental illness is entitled to an expert who is chosen by the defense, rather than simply a neutral expert.^[146]

B. “There Can Be No Equal Justice Where the Kind of Trial a Man Gets Depends on the Amount of Money He Has”^[147]

An underlying issue in McWilliams v. Dunn is the disparity between the resources available to indigent defendants versus wealthy defendants and prosecutors.^[148] Experts are vital in criminal cases, especially those cases involving mentally ill defendants.^[149] Experts aid defendants in establishing claims and defenses and in presenting defendants’ cases in their entirety.^[150] In addition, experts are needed to rebut an adversary expert’s testimony.^[151]

Experts come with a cost, however. Indigent defendants are disproportionally disadvantaged by the high fees associated with hiring experts.^[152] In an underfunded criminal justice system, defense counsel cannot “conduct legal research, vigorously pursue constitutional issues, interview witnesses, conduct factual investigation, hire experts, file briefs, or perform the other activities that are required if counsel is to provide a competent defense.”^[153] On the other hand, wealthy defendants and prosecutors can build strong cases through experts of their choosing.^[154]

The Court in McWilliams v. Dunn left open the question of whether indigent defendants are entitled to a partisan expert of their choosing versus simply a neutral expert.^[155] Partisan experts serve important functions to indigent defendants, and having a partisan expert is almost always more desirable than having a neutral expert.^[156] Unlike a neutral expert, a partisan expert assists in preparation of the case—this includes collecting, assembling, producing, and explaining information, as well as cross-examining the opposing party’s witnesses.^[157] Furthermore, neutral experts are required to provide both sides with their findings.^[158] Thus, if a neutral expert were to create an adverse report about an indigent defendant, that neutral expert would have to provide both sides with the report, and the prosecution could use that information against the indigent defendant.^[159] The scales of the justice system are unfairly tipped toward those defendants who can afford counsel and experts.

C. William Charles Morva Case Study

In 2006, while in custody for attempted robbery charges, William Charles Morva escaped and killed a hospital security guard and deputy sheriff.^[160] In June 2008, he was sentenced to death by a Virginia court.^[161] Morva appealed with a petition for clemency from Governor Terry McAuliffe, a Democrat and an opponent of the death penalty.^[162] The clemency petition explained that the jury at Morva’s trial did not have the opportunity to hear expert testimony describing the effects of Morva’s crippling mental illness.^[163]

The problem for Morva was that he never got to argue the affirmative defense of insanity because he was denied access to a partisan expert.^[164] After being charged with capital murder and various other crimes, Morva asked to have Dr. Mark Cunningham appointed as a defense expert.^[165] Dr. Cunningham would have evaluated the likelihood of Morva committing violence in prison if Morva would have been sentenced to life in prison.^[166] The trial court denied Morva’s request, and Morva was sentenced to death.^[167] Morva’s case went up to the Supreme Court, and the Supreme Court affirmed.^[168]

However, a dissent argued that Dr. Cunningham’s suggested testimony was relevant.^[169] The testimony would have shown that, because of Morva’s background and characteristics, Morva would most likely not have been a further danger to anyone if he had been an inmate in a maximum security prison.^[170] Thus, there was a reasonable probability that if the jury had heard Dr. Cunningham’s testimony, it might not have chosen the death penalty.^[171] Dr. Cunningham’s testimony would have aided the jury in determining whether a sentence of life imprisonment without the possibility of parole would have been a fairer sentence for Morva.^[172]

Morva should have had the opportunity to prove that he was not competent to be executed and to assert an affirmative insanity defense through a partisan expert, knowledgeable as to Morva’s mental illness.^[173] Morva was severely mentally ill; he could not differentiate between reality and delusion.^[174] In addition, he was diagnosed with delusional disorder, a disorder that is similar to schizophrenia.^[175] Just like it did with Andrea Yates, the justice system failed William Charles Morva. Although there was no question as to the severity of Morva’s mental illness, Morva was executed on July 6, 2017.^[176]

V. Solutions

A. The United States Needs Better Public Mental Health

Since the deinstitutionalization movement in the 1960s, there has been a continuous mental health crisis in the United States.^[177] Because of the nationwide decrease in public mental health facilities, a large majority of the mentally ill population that would have been placed in mental health facilities has largely been re-routed to prisons, jails, and nursing homes.^[178] Funding issues have prevented many people who need organized inpatient care from obtaining the necessary assistance.^[179] The mentally ill population is left with the option of private mental health hospitals, which are often extremely costly, and which often do not accept health insurance.^[180]

The United States needs to spend more on public mental health. Change must occur at the federal level as well as the state and city level. The 2008 recession saw a $4 billion cut in spending for public mental health.^[181] Although it has been more than ten years since the recession, little has been done at the federal level to mitigate the mental health crisis.^[182] States also play an important role in providing funding and services for public mental health.^[183] States have wide discretion in determining how to deal with public health, making it so that public health services look radically different from state to state.^[184]

However, the most significant changes could be implemented citywide and countywide, as exemplified in places such as Denver, Colorado, New York City, and King County, Washington.^[185] The city of Denver implemented “Caring 4 Denver,” an initiative to support mental health and addiction rehabilitation.^[186] Under Caring 4 Denver, the city passed a 0.25% sales tax, which will be used to fund mental health services, programs, and facilities.^[187] Initiatives like Caring 4 Denver have the potential to drastically improve the mental health crisis and the overcrowding of prisons. Although citywide and countywide programs are of a smaller scale, they can more effectively address a community’s needs. Cities across the United States must use Denver as an example and implement initiatives and tax policies that will support public mental health.

B. The United States Must Shift Its Focus from Punishment to Rehabilitation

The primary goals of the United States criminal justice system are deterrence and punishment.^[188] In theory, the ideas of deterrence and punishment make sense—when we punish people for the crimes they commit, we are sending the message to all other potential offenders that they too will be punished for their crimes.^[189] However, deterrence cannot be accomplished unless three circumstances are met.^[190] The offender must know that his conduct was illegal; the offender must have the ability to weigh the pros and cons of committing the crime; and finally, the offender must conclude that the consequence of punishment outweighs the profit from committing the crime.^[191] The problem is that the people who are most likely to be criminal offenders are also the people who are most likely to have faulty judgment and the inability to appreciate the future ramifications of their actions.^[192] In addition, there is evidence tending to show that punishment is not effective in deterring those offenders that have previously been incarcerated.^[193]

This Comment does not attempt to argue that prisons should be abolished because prisons do serve a purpose.^[194] However, the United States must make several changes to the criminal justice system and the current prison system to change from a punitive system to a more rehabilitative system. First, there needs to be a decrease in the amount of money and resources spent on prisons. Prisons should house only the most violent and dangerous criminals. Second, the United States needs to divert funding toward creating, staffing, and managing rehabilitation facilities.^[195] We should not be incarcerating people who commit petty drug offenses or those petty offenders suffering from addiction and severe mental illness. Furthermore, we should not be incarcerating those severely mentally ill offenders who cannot understand the illegality of their crimes or those who committed crimes in delusional, psychotic states.^[196]

The rehabilitative model has been demonstrated in states and cities across the United States. James Gilligan, a clinical professor of psychology, and his colleague Bandy Lee, a psychiatrist, created a re-educational program with offenders in jails in San Francisco.^[197] Another example of the rehabilitative model is the North Dakota prison system.^[198] After visiting Halden, a maximum-security facility in Norway, North Dakota’s Prisons Chief, Leann Bertsch, made progressive changes to the North Dakota prison system.^[199]

Bertsch got rid of the standard, outdated solitary confinement model and replaced it with a new model.^[200] In addition, Bertsch leased a piece of land on the outskirts of Bismarck, North Dakota, which is now called “the Farm.”^[201] On the Farm, inmates have the opportunity to earn certain privileges, such as visits home for the day, shopping trips, staying in a private room on the Farm, and the authorization to wear regular clothing.^[202] The Farm also has a work-release plan, allowing inmates to leave the Farm to go to work.^[203] Rehabilitative programs like the ones in San Francisco and North Dakota have proven to be effective.^[204] Texas must follow suit.^[205]

C. The Supreme Court Must Go Further Than the McWilliams v. Dunn Holding

Although the Supreme Court came to the right conclusion in McWilliams v. Dunn,^[206] it should have gone one step further. The Supreme Court should have also held that an indigent defendant who has a mental illness is entitled to have his defense counsel choose an expert witness to examine the defendant and testify on the defendant’s behalf,^[207] rather than having a neutral expert assigned. The judicial system in the United States is based on an adversarial model.^[208] In an adversarial justice system, both parties utilize evidence to further their self-interested arguments.^[209] Furthermore, an adversarial system can be effective only when both parties have equal resources to present their cases through expert testimony, cross-examination, and strong legal arguments.^[210]

The majority of defendants in the criminal justice system are indigent,^[211] and often indigent defendants receive court-appointed attorneys.^[212] The problem for the indigent defendant with a court-appointed attorney arises in the case of the defendant attempting to argue an insanity defense during the guilt and innocence phase of trial.^[213] The adversarial nature of trial is undermined when a neutral expert, or a prosecution’s expert, analyzes and evaluates the indigent defendant.^[214] A partisan expert will be more successful than a neutral expert at providing mitigating evidence, psychiatric testimony, and future-dangerousness analysis regarding the indigent defendant.^[215] However, partisan experts come at a cost. Thus, the criminal justice system needs more resources to support a plan that introduces more partisan experts representing indigent defendants.

Today, indigent defendants’ use of partisan experts is of critical importance, especially when there is a possibility that the defendant receives capital punishment.^[216] Parties in criminal cases are increasingly using experts “who may determine whether a defendant loses his or her liberty or life, . . . thus putting in sharper focus the consequences to a defendant of unequal access to [partisan experts].”^[217] Indigent defendants need partisan experts on their side to have a fighting chance in front of a judge or a jury.^[218] Evidence shows that judges and juries regularly accept an expert’s testimony as true.^[219] If an indigent defendant cannot obtain his own partisan expert to rebut the prosecution’s expert or to present favorable testimony on his behalf, will the defendant ever have a fair chance of prevailing?^[220]

D. Necessary Changes to the Insanity Defenses

There are several possible solutions to improving the insanity defenses. First, legal scholars could draft a completely new defense. Second, they could revise the existing insanity defenses to be more aligned with the medical field and modern psychiatry and psychology. The medical field continues to progress in the understanding of mental illnesses, while the legal field remains static and underdeveloped.^[221] Regardless of the solution adopted, the legal field must select an insanity defense that is more closely aligned with the medical field’s modern and sophisticated approach.^[222]

If legal scholars choose to draft a new insanity defense test, it should include both volitional and cognitive prongs. A volitional prong allows courts to assess mentally ill defendants like Andrea Yates—she probably knew that her actions were illegal and wrong, but she was incapable of controlling her actions because of her severe mental disease.^[223] A cognitive prong forces one to ask whether the criminal defendant knew what he was doing when he committed the criminal act.^[224] “A defendant [should] not [be] culpable for an act that, because of a psychological infirmity, he or she did not know he or she was committing.”^[225]

In addition, the new insanity defense should include a causation prong, requiring the defendant’s mental illness to have caused his erroneous beliefs that his actions were appropriate.^[226] The new causation prong would be necessary to stop those defendants who are not necessarily mentally ill but hold radical, extremist philosophies from succeeding with insanity defenses.^[227] The causation prong would also embrace the idea that to be culpable of a crime, one must have consciously decided to commit the crime. If one’s mental illness caused one to commit the crime, one cannot be legally culpable.^[228]

The causation prong would require a two-part test to determine that a defendant’s mental illness caused him to commit the crime.^[229] The two-part test would be most effective if applied by a qualified psychiatrist or psychologist. Part one requires the defendant to “[be] in an active state of psychosis at the time of the crime.”^[230] Part two requires the psychosis to cause the crime committed.^[231] If a defendant satisfies the two-part test, then it can be determined that his mental illness caused him to commit the crime.^[232]

There are also several changes that legal scholars and judges can make if they choose instead to revise the existing insanity defenses.^[233] First, legal scholars could modernize M’Naghten-like tests by replacing the words “mental disease or defect” with “mental illness.”^[234] Second, they could replace the word “know” with “appreciate” in tests that still use the word “know.”^[235] Third, judges could clarify to the jury, through jury instructions, that a defendant’s insanity defense should not be rejected solely because the defendant had the slightest understanding that his actions were illegal.^[236] Finally, legal scholars could change “Not Guilty by Reason of Insanity” to Oregon’s model of “Guilty Except for Insanity,” which focuses on long-term psychiatric treatment rather than punishment via incarceration.^[237]

VI. Conclusion

The majority of the policies in practice within the criminal justice system today are not aligned with modern psychology. Because of the disconnect, mentally ill defendants are unfairly prejudiced.^[238] Mentally ill inmates are flooding prisons and jails but should instead be in rehabilitation and mental health facilities.^[239] Since the closing of state-funded mental hospitals started in the 1950s and 1960s, numerous people suffering from mental illnesses have been moved from psychiatric facilities to prisons, jails, and nursing homes.^[240]

For many mentally ill defendants, the only hope for being released from prison comes from claiming an insanity defense.^[241] However, the three general insanity defenses used in the United States—the M’Naghten test, the American Law Institute Model Penal Code test, and the Durham Product test—are flawed.^[242] Mentally ill defendants are rarely successful in arguing insanity defenses,^[243] and Texas, in particular, has a strict insanity defense.^[244] The Andrea Yates case illustrates just how difficult it is to use the insanity defense in Texas.^[245]

Mentally ill defendants face too many obstacles in the criminal justice system, and circumstances are not better for those mentally ill defendants who are also indigent.^[246] The Supreme Court, in McWilliams v. Dunn, failed to answer an important question affecting indigent defendants and their ability to hire partisan experts to aid in their defenses.^[247] Thus, indigent defendants are left questioning whether they can expect equal treatment under the law.^[248]

There are many solutions to ameliorating the discrepancy between modern psychiatry and the criminal justice system’s treatment of mentally ill defendants.^[249] First, the United States must increase funding for public mental health.^[250] Second, the purpose of the criminal justice system must change from punishing people for the sake of an-eye-for-an-eye ideals to rehabilitating people.^[251] Third, the Supreme Court must go further than its holding in McWilliam v. Dunn and conclude that an indigent defendant who has a mental illness is entitled to have his defense counsel choose a partisan expert.^[252] Finally, jurisdictions in the United States can either modernize their insanity defenses to be more aligned with modern psychiatry or create new insanity defenses altogether.^[253] Regardless, the United States criminal justice system is largely overdue in changing the way it functions and deals with its mentally ill population.

Louise Root