85: The Role of Psychiatrists in the Criminal Justice System

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CHAPTER 85 The Role of Psychiatrists in the Criminal Justice System


Most psychiatrists are familiar with the medicolegal issues that arise in the area of civil law, some of which are described in Chapters 84 and 86. This chapter focuses on less familiar interactions between law and psychiatry, as well as the roles psychiatrists and other mental health professionals play in the criminal justice system. Psychiatry, more so than any other medical specialty, is involved with criminal law because of (1) the relationship between mental illness and violent behavior discussed in Chapter 65; (2) ethical and legal prohibitions against mentally incompetent people standing trial, representing themselves, or being executed; and (3) societal standards that prohibit imposition of criminal responsibility on those who lack moral blameworthiness due to mental illness or developmental disabilities. The United States Supreme Court has recognized the important role of psychiatrists and other mental health professionals in criminal matters, holding that criminal defendants have a right to the assistance of a mental health professional when the mental state of the defendant is at issue, and that this assistance be paid for by the state for indigent defendants.1

Mental health issues can arise at any point in the criminal justice process, from arrest through incarceration, often leading to an individual being moved between the criminal justice and civil mental health systems at various points in the criminal process. For example, psychiatric concerns may be raised immediately after an individual has been taken into custody, resulting in the police taking the individual directly to a psychiatric emergency department for evaluation, without arresting the individual or charging him or her with a crime. This often occurs when the police have reason to be concerned about the well-being of the individual in question; as a result, the police take the individual into protective custody. If clinicians in the emergency department decide to hospitalize the individual, thus diverting him or her into the mental health system, the criminal process may end at that point with no charges filed.

On the other hand, the police may arrest the individual on criminal charges, but bring him or her to the emergency department for a psychiatric evaluation before booking to determine if he or she can be safely taken to jail to await formal charging or arraignment. On psychiatric clearance, the criminal process would continue with the individual going to the police station for booking and then to jail until he or she is arraigned at the next available court date, often the next morning. An arraignment is a formal process at which a judge reads the charges and the defendant, represented by an attorney, enters a plea of guilty or not guilty.

If, before arraignment, the police observe additional behaviors that raise concerns about the individual’s safety or ability to participate in the criminal process, a clinician attached to the court may be asked to conduct an evaluation, or the individual may be returned to the emergency department. Except for providing emergency medical or psychiatric care, a psychiatrist should not conduct any evaluation of a criminal defendant relevant to the courts or criminal charges until the defendant has had access to an attorney or an attorney has been made available.2

At the arraignment, the prosecutor, the defense counsel, or the judge may ask that the defendant be evaluated for competency to stand trial (CST) or criminal responsibility (CR). In fact, judges have a constitutional obligation to address the issue of a defendant’s CST, at any point in the proceedings, where the evidence raises “a bona fide doubt” as to competency.3

If a CST evaluation is in order, or if there is concern about the defendant’s safety due to mental illness, he or she may be transferred to a public mental hospital for further evaluation. In many states, the referral is to a designated forensic hospital, although in other states, the defendant may be referred to a psychiatric facility that does not specialize in forensic evaluations.

The presence of significant symptoms of mental illness, before or after conviction, is no guarantee that a mentally ill individual will end up receiving treatment in a psychiatric facility rather than residing in a correctional facility, with or without adequate treatment. Indeed, correctional institutions now house more mentally ill individuals than are hospitalized in psychiatric facilities.46


The modern era of criminal law began when English common law began to distinguish between civil and criminal matters.7,8 (Common law, also referred to as case law or judge-made law, is that body of law created by courtroom decisions that then have controlling value as precedents for subsequent cases involving similar legal issues. Only cases that are decided on appeal have value as precedents; trial court decisions do not.) Then, as now, specific procedures were required to preserve the integrity, accuracy, and fairness of the criminal process. Entering of a plea by the accused was essential to start the proceedings. As of 1275, measures were in place to manage the problem of how to proceed when the defendant refused or was unable to enter a plea. According to the famed legal commentator William Blackstone, where the defendant refused to plead, it was left to the court to

If the defendant was found to be mute ex visitatione Dei (by act of God), the court would hear the case but take measures to protect the defendant. For defendants found to be “obstinately mute,” the consequences depended on the charge. If charged with high treason, the worst of crimes, muteness was considered the equivalent of confession, and the consequences were the same: judgment and execution, with forfeiture of all property to the Crown. Muteness in the face of charges of minor crimes was also held to be the equivalent of confession, and judgment was entered accordingly. As Blackstone reported, “But upon appeals or indictments for other felonies, or petit treason, he shall not be looked upon as convicted, so as to receive judgment for the felony; but shall, for his obstinacy, receive the terrible sentence of penance, or peine forte et dure.9

The penance, or peine forte et dure, in 1275 involved the following:

This procedure did not consistently result in prisoners entering pleas, so by the early fourteenth century the process was modified to yield the desired end: the prisoner’s diet was reduced to “a little rotten bread” and “cloudy and stinking water” on alternate days and the defendant was “pressed with as great a weight of iron as his wretched body can bear.”10 The procedure evolved further, and in 1406, Lord Chief Justice Gascoigne sentenced two accused robbers found to be “mute of malice, to delay their death…. to have put upon them as great a weight of iron as they can bear and more…. so to lie until death.” Eventually, the procedure was handled as follows:

The motivation for refusing to enter a plea and suffering this horrendous fate can be understood as follows: those defendants who died without confessing their crime or being found guilty were not subject to forfeiture of their property, thus preserving assets for their families. Peine forte et dure was banned by case law in England in 1772, and by statute in 1827.10

Similar approaches to extracting pleadings (and confessions) were used in the English colonies of North America, most notoriously during the Salem Witch Trials. In the United States, as well as the United Kingdom and the Commonwealth countries, this brutal approach gave way to more humane procedures and recognition that justice was not served by putting on trial a person who was unable to participate in a meaningful way in his or her own defense.12

It is now well established in the United States that the trial of an incompetent individual is incompatible with justice and violates the constitutional guarantee of due process under law.12 In addition to avoiding the brutality of the ancient methods, requiring that the defendant be competent to stand trial serves several purposes. These include the following: (1) the fact-finding portion of the proceedings can only be accurate if the defendant can work with his or her attorney with an understanding of the proceedings; (2) only a competent defendant can exercise the constitutional rights to a fair trial and to confront his or her accuser in a meaningful way; (3) the integrity and dignity of the legal process are preserved by ensuring that the defendant is competent to stand trial; and (4) the purposes of retribution and individual deterrence are served only if the convicted defendant was competent to stand trial.13

In the United States, the standard for competency to stand trial was established in Dusky v. U.S.14 Under the Dusky standard, the relevant inquiry is whether the defendant “has sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding, and whether he has a rational as well as a factual understanding of the proceedings against him.”14 When the issue of competency to stand trial is raised, the trial judge must conclude that the defendant is competent by a preponderance of the evidence, that is, that it is more likely than not that he or she meets the Dusky criteria.15

The defense of criminal charges requires numerous complex decisions. As the Supreme Court noted in Godinez v. Moran:

Interestingly, although the Godinez court delineated the important rights and decisions that defendants going to trial and pleading guilty must contemplate, the court ruled against a heightened standard for competency to plead guilty (see discussion later in this chapter).

There have been numerous efforts to define the characteristics that distinguish defendants who are competent to stand trial from those who are not. A federal district court specified the following components of CST as meeting the Dusky criteria and indicating that a defendant is competent to stand trial:

There have been attempts to quantify these criteria, so that the evaluation becomes a more objective, structured clinical assessment rather than an impressionistic evaluation.1820 Regardless of the assessment technique used, the threshold for finding a defendant competent to stand trial is very low, and defendants with serious symptoms of mental illness or cognitive impairment have been held competent to stand trial.15 The Supreme Court has made clear that the standard is minimal and straightforward:

Individuals with disorders such as paranoid schizophrenia, dementia, and amnesia21 may be found competent to stand trial, so long as they meet the minimum threshold of knowledge and awareness required in Dusky and progeny cases.14,16

As noted earlier, judges have a constitutional obligation to address the issue of competency to stand trial, at any point in the proceedings, where the evidence raises “a bona fide doubt” as to competency.3 As a necessary condition for the criminal process to proceed, that evaluation can be carried out without the defendant’s consent.22

In the event that a defendant is found incompetent to stand trial (IST), the proceedings are suspended in order for the defendant to be “restored to competency” as determined on subsequent assessment. The restoration process may involve both treatment of the incapacitating illness and educational efforts aimed specifically at participation in the trial process. Programs aimed at “restoring” the competency of mentally ill and mentally retarded defendants have been instituted.23,24 Depending on the severity of the crime and the nature of the underlying illness, the charges may be dropped at this point. For example, in practice, charges of misdemeanor or nonviolent offenses may be dropped when the individual has a mental illness and is committed for further treatment.

In cases involving more serious crimes, the defendant might be committed to an inpatient psychiatric facility for treatment and restoration of competency if the defendant has a treatable mental illness that impairs his or her CST. The defendant will be reassessed for CST periodically, as required according to the statute in that jurisdiction. In Jackson v. Indiana, the Supreme Court held that defendants who have no hope of restoration of competency cannot be committed indefinitely to state psychiatric facilities unless they meet the usual civil commitment criteria and standard procedures are followed.25

As noted in Chapter 84, all competent adults have a right to make their own decisions regarding medical treatment, and specific processes are used to protect the autonomy and legal rights of individuals even after they become incapacitated. Individual states may choose to provide a higher level of protection than the federal standards (see Chapter 84). The United States Supreme Court has handed down a number of decisions that set the minimum protections for individual autonomy under the United States Constitution for individuals found to be IST or to lack criminal responsibility.

In United States v. Charters, a United States Court of Appeals in 1988 addressed the issue of what procedures were necessary to protect the rights of a defendant who had been found IST and was refusing treatment with antipsychotic medication.26 The court held that even though the involuntary treatment would constitute a deprivation of certain liberty interests, the defendant’s rights could be adequately protected through a process that left the decision about whether involuntary medication should be administered “to appropriate professionals exercising their specialized professional judgments rather than to traditional judicial or administrative-type adjudicative processes.”26

Four years later, in 1992, the Supreme Court addressed the circumstances under which an IST defendant could be involuntarily medicated to restore his competency to stand trial in Riggins v. Nevada.27 The Supreme Court held that in order for a state to impose antipsychotic medication on an objecting defendant for the purpose of rendering the defendant competent to stand trial, the state must show that the treatment is both medically necessary and appropriate.27 In deciding the case, the court looked to its earlier opinion in Washington v. Harper, in which it held that a state may treat an inmate with antipsychotic medication against his will if the inmate has a serious mental illness, “is dangerous to himself or others and the treatment is in his medical interest.”28

The Supreme Court in 2003 refined its holding regarding involuntary medication of IST defendants in Sell v. United States.29 Dr. Sell, a dentist accused of insurance fraud and attempting to have witnesses murdered, was found to be IST. The government sought to treat him with antipsychotic medication, which he refused, claiming that he had an absolute right to refuse treatment. The court held that where a defendant is charged with nonviolent crimes, the Constitution permits the government to administer antipsychotic drugs against the defendant’s will in order to render the defendant competent to stand trial only under limited circumstances.29 The court held that involuntary administration of psychotropic medication to a nonviolent IST defendant can occur only when a court determines that (1) important governmental interests are at stake; (2) the forced medication will significantly further those interests, that is, the medication is “substantially likely to render the defendant competent to stand trial and substantially unlikely to have side effects that will interfere significantly with the defendant’s ability to assist counsel in conducting a defense”; (3) the involuntary treatment with medication is “necessary to further those interests and find that alternative, less intrusive treatments are unlikely to achieve substantially the same results”; and (4) administering the drugs is medically appropriate.29

It should be noted that in none of these cases did the Supreme Court hold that the United States Constitution requires more than administrative proceedings before a patient can be involuntarily medicated, although appeal to the courts from the administrative decisions is not barred. This is in contrast to some state court decisions that require full adversarial proceedings before involuntary medication of IST defendants and insanity acquittees.30,31 Overall, states differ in how they address the issue of involuntary medication of both civilly committed and IST individuals.


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