In the appropriate circumstances,
mental illness constitutes an excuse. People who commit crimes while in the
grip of delusions, for instance, are often excused blame for their actions. But
what if the mentally ill offender is responsible for their illness?
Should we continue to excuse them? It is this question that Mitchell aims to
explore.

He describes his theme as
meta-responsibility: responsibility for responsibility (or its lack).
Meta-responsibility is already taken into account in some areas of the criminal
law. For instance, someone can be found guilty in circumstances in which they "create
the conditions of their own defence". Someone involved in a criminal gang
which regularly coerces people, for instance, may not be able to plead not
guilty on the grounds that they were later coerced by gang members. Similarly,
if someone acts in a drunken rage, the fact that they chose to get drunk will
be taken into consideration in assessing their responsibility. If
meta-responsibility is relevant in these other areas of the law, then why not
with regard to mental illness? Yet the law apparently ignores questions
concerning meta-responsibility in insanity pleas.

In fact, Mitchell argues, the law
does take account of meta-responsibility for mental illness. Since it is
forbidden from doing so explicitly, it does so covertly, not at the verdict
stage but in the disposal of the offender. Despite the myths which surround
insanity acquittals, being found not guilty by reason of insanity does not
allow the acquittee to walk free. On the contrary, insanity acquitees typically
spend longer times in detention than those found guilty of similar crimes,
moreover often in conditions worse than those in prisons. Mitchell cites
instances of defendants pleading guilty, rather than risk the finding of
insanity. He suggests that the harsh treatment of insanity acquitees is an
expression of a thwarted punitive urge, and that if we allowed this urge to be
expressed in the courts, we might find that the insane are actually treated better
than they are at present.

Unfortunately, Mitchell presents no
evidence for this claim. It is true, as he shows, that the insane are
frequently treated worse than other offenders, and that many people regard the
insanity defense as a loophole which allows criminals literally to get away
with murder. But these attitudes and practices are more likely to reflect a
widespread belief that mental illness can be faked, or that mental illness does
not preclude (first-order) criminal responsibility, than the belief that the
mentally ill are commonly meta-responsible. Mitchell’s own data, gathered in a
mock juror study in which subjects were invited to consider
meta-responsibility, seems to undermine his claim that taking it into
consideration will allow the criminal justice system to vent its punitive urges
toward the meta-responsible. In fact, contrary to Mitchell’s expectation, subjects
were more likely to find those who were meta-responsible for their mental
illness not guilty by reason of insanity, when they were asked explicitly to
consider the issue.

There is little reason, therefore,
to think that adoption of a meta-responsibility test would lead to the
improvement in the situation of the mentally ill that Mitchell hopes for.
Moreover, the test he proposes seems flawed. He argues that when an offender is
meta-responsible, he or she ought not be allowed to plead not guilty to the
offense. Thus, non-compliance with prescribed anti-psychotics, for instance,
would establish meta-responsibility for the mental illness and therefore
for any criminal acts committed in its grip. Mitchell argues that building
mea-responsibility into the law regarding mental illness would make it more
consistent, since it already treats meta-responsibility in similar ways in
other areas. This may be true, but so much the worse for the criminal law.
Refusing to take one’s medication — even if one is sane when one makes that
decision — does not make one fully morally responsible for criminal acts that
are a consequence of the refusal. We are only morally responsible for the foreseeable
consequences of our negligence or recklessness. This suggests that the
meta-responsibility test needs to be more complex than Mitchell suggests,
especially in the light of the fact that (as he points out) there are often
good reasons to refuse medication, ranging from unpleasant physical side-effects
to depression and anxiety.

Consider the person who commits a
violent offense that is traceable back to a mental disorder caused, not by
medication non-compliance, but by compliance — taking an anti-depressant, for
instance. On Mitchell’s view, the offender is fully responsible for the offense.
But that’s implausible as it stands (even though the side-effects of
antidepressants have received quite a lot of publicity). If an agent acts to
relieve significant suffering, and has little reason to expect that crime will
be a consequence, then we ought to excuse her. If she acts recklessly, because
she knows that crime is a (non-negligible) possible consequence, then we ought
to blame her to some extent, but it is implausible to think that she ought to
bear the same amount of blame as the sane offender.

Mitchell deserves credit for
bringing a neglected topic to our consideration. Unfortunately his treatment of
it leaves a lot to be desired. He ignores too many distinctions and leaves too
many objections unanswered. I don’t mean to be too harsh, however. Self-Made
Madness began life as a PhD thesis, and its limitations may be traceable to
this fact. Mitchell may yet go on to give meta-responsibility the treatment it
deserves.

© 2004 Neil Levy

Dr Neil Levy
is a fellow of the Centre
for Applied Philosophy and Public Ethics at Charles
Sturt University, Australia. He is the author of two mongraphs and over a dozen articles and
book chapters on Continental philosophy, ethics and political philosophy. He is
currently writing a book on moral relativism.

Categories: Ethics, Philosophical