Are Psychological Services Better at Achieving Defendants’ Responsibility than is Prison?


A psychological explanation for a defendant’s conduct and that is offered to lessen or avoid legal responsibility is likely often wrong or irrelevant. The legal responsibility should fully attach. If the person could not be responsible, that should have been noticed before the misconduct that rose to a level that would be noticed by the legal system. Applying the full legal responsibility at least offers deterrence value to other people.

But while we want to notice problems before they become overly consequential and we want to do so without impeding society’s general thrival (for example, by not requiring everyone to be monitored around the clock as that would drain too many national resources), preconsequential discovery of problems often fails and then the discovery allegedly occurs when the legal system applies criminal justice. Retrospectivity is not of much use. By then, regardless of anyone else’s intention, the person so diagnosed is likelier to use the psychology as an excuse and then, I think, upon completion of treatment, probably resume doing what they wanted to do before the discovery.

Overuse

Overuse of the excuse by the public is evident in some tabloid newspaper headline treatment of mass murderers. One then-alleged killer, already identified, was described on a front page as troubled. A wealthy business owner who fails to make a sale is troubled, too, but headline writers don’t often use that adjective for business failures that might lead to nothing worse than bankruptcy. The adjective applied to murder invokes a claim of a mental problem which in turn invokes an excuse. The newspaper also supported the death penalty for the murderer, but why offer the headline for being troubled? The only evidence for a psychological problem is the criminal act itself and the originality of some characteristics of the killer (e.g., clothing) compared to those of other mass murderers, but that’s not enough for a diagnosis, even a lay diagnosis, if reliability is expected.

For decades and maybe longer, the use of the excuse has been common enough that much of the public has objected, and quite reasonably. The proponents of treatment have usually failed to make a good case other than that it’s in the interests of the patient, and if the patient essentially disagrees, even just internally or privately, then the argument carries little weight.

Highly successful people can be described as mentally ill for characteristics that helped them be successful, and their success often helps society. Scholars discover and interpret and we incorporate their findings into our knowledge of the world. Inventors invent things and a small percentage of the inventions make a fabulous difference in our society (you could ask yourself when you last used an abacus). Business owners, investors, and lenders pour capital into ideas that employ millions of people and deliver goods and services people usually want. Artists are often people you don’t want to spend much private time with. Most of these people could be described as narcissistic, obsessive, doing harm to self by working to exhaustion, thinking they’re right but the rest of the world is wrong, or not taking regular jobs with steady paychecks like normal people do. Most of them don’t get sent for psychiatric care once their success becomes visible to enough others, but most of them qualify, especially earlier in life. While some proponents of psychological services argue that the Diagnostic and Statistical Manual published by the American Psychiatric Association strictly limits diagnoses and that might be true for insurance reimbursement, the licenses to practice the profession generally do not require adherence to that Manual.

I don’t object to treatment in principle. If the person agrees to it of their own volition without a threat by anyone in authority, the treatment is more likely to be helpful.

Cheaper If it’s a Mental Issue?

One exception has come up. The exception is that the cost to the public is lower than for use of the criminal justice system, for some cases. I only heard this argument within the last year or so. A court sent some defendants, where the crimes alleged were minor enough and if the defendants appeared to be military veterans with post-traumatic stress disorder (PTSD), to a clinical setting that included some military veterans who barked as they might bark orders, presumably creating a setting in which veterans might feel familiarly comfortable en route to controlling their PTSD better and perhaps curing it.

While that is legitimate, two conflicts arise. One is that the offer of treatment still looks like an excuse and may well be taken that way by the defendant/patient, especially one who ultimately rejects the treatment after completion. In the case of that particular court, perhaps statistical research found overall financial savings relative to public tax-paid costs, but that research has to be repeated for most jurisdictions and subpopulations of eligible defendants.

The other is overextension of the offer. The clinical psychological services industry tends to overclaim that people need to be patients because they cannot help their psychological asppects on their own, that being because of faults in their brains that only trained diagnosticians and treatment specialists can manage.

How Physical in the Brain?

Lesion Present or Region Size

While brain faults are in some physical conditions damaging the brain, such as where nerve cell connections are lost in a quantity beyond what can be coped with through redundancy and plasticity and where important life-management decision-making fails in the same person, such as due to Alzheimer’s during the nonlucid state or because of a malignant tumor, it is not true because of brain region size differences alone or because of brain chemistry reinforcing pleasure beyond what the person feels they can refuse.

Brain region size differences can explain differences in people, but that such a difference is not necessarily an illness. In one type of case, fear of heights correlates with a brain region being of an unusual size; but the same brain region being of an unusuall size in the other direction correlates with a welcoming of heights, often found among ballet dancers lifted skyward by partners on rather little support, and often the public applauds and pays and travels to see more of the ballet dancers.

Addictions Questioned

The brain chemistry change associated with drug abuse (using treaters’ terminology) is also associated with falling in love with a potential marriage partner and we are not sending those people to hospitals. It may also be associated with major success in life, such as a success in business, school, or chance (e.g., winning a large lottery prize (and many winners buy more lottery tickets)). Indeed, people who fall in love often report that they can’t help it, and the public applauds that and goes to the weddings (with many divorces followed by more weddings). Society has endorsed permanent coupling of adults with a view to creation of the next generation of people and familial responsibility for child-raising,this being considered both beneficial and necessary for society’s long-term survival and thrival.

Yet a belief that drug use is an addiction, a state that, it is argued, cannot be controlled by the patient alone, fits with some people’s desires, likely felt by them as needs, and therefore is sometimes helpful toward treatment and cure. One person told me that he admired my not smoking cigarets and that he wished he could stop. I replied that while I disagreed with the addiction model if he felt that the model would work for him then he should use it and I wish him success. I don’t know what he did afterwards.) It is likely that many people are raised with a sense of relatively little choice about what they may do with their lives and careers and that many of them seek to escape those constraints, some escapism being by the use of substances even against law, the methods of escapism then generally being explained as being beyond their control, presumably as a counterweight to the prior life decisions that are about as much beyond their control. With those givens, a description of the cause of the problem as one of brain chemistry change or brain region size difference is a description of a cause beyond an individual’s control. Maybe that’s a good idea for the treatment toward a cure for a given individual.

Facing Consequences, or, Better, Making Better Decisions Earlier

But if the individual has already exceeded what the law allows while incorrectly denying personal responsibility (the denial would be correct for, e.g., a child), the individual has to accept responsibility in a way that criminal justice is intended to enforce.

I don’t know how one-year recidivism rates compare for a given jurisdiction among defendants who went through criminal justice for the same charges and who were judicially offered psychological services in lieu of incarceration between those who accepted the offer and those who refused it (jurisdictions that do not offer psychological services in lieu might be suitable for a different study). If psychological services in categories of cases reduce recidivism, that should be publicized, but I don’t think I’ve come across that claim.

People stop at different barriers. Some, the most extreme, push the envelope until they are shot to death; sometimes the shooter is a competitor or is an unexpected defender but sometimes these cases are called “suicide by cop”. Some go through prison and then decline to recidivate even if they kind of might like to. Some look for a way not to go to prison and then, if they succeed at that, don’t recidivate. Some avoid certain associations and friendships because they look like bad news even before there’s been any trouble. Some are obedient nearly everywhere to try to avoid any criticism.

If psychological services in lieu succeed, even if it looks irresponsible for the individual, I wouldn’t mind and maybe more of the public wouldn’t either. If the psychological services profession or industry is disinclined to make the case with numbers, someone else should, but I don't know if it can be.