In its Report of  the
Surgeon General, the Center for Mental Health Services of the National
Institutes of Health observed that mental illness is the second
leading cause of disability and  premature mortality.  Meanwhile,
the U.S. Department of Justice Bureau of Justice Statistics reports in its mental health survey
that about 280,000 prison and jail inmates are mentally ill; convicted
criminals with histories of mental health treatment comprise 16% of the prison
population, about double the rate of mental illness in the general
population.  As our lifespan increases, and as research continue to
develop cures for physical ailments, mental health becomes a larger component
of the nation’s health care project.

Among a number of
related problems is the confusion that surrounds the merger of law and mental
health care in the context of such social issues as sexual predatory
behavior.  The authority of states to incarcerate citizens derives
primarily from two sources: the police power and the parens patriae power.
The police power authorizes states to imprison criminals who threaten public
safety.  The parens patriae power provides the states with the
authority to protect individuals who lack the ability to care for
themselves.  But legal definitions of mental illness for purposes of criminal,
and, separately, civil, incarceration are inconsistent and often
incoherent.  The respective roles played by roles played by law, on the
one hand, and by medicine and science on the other, are not clear.  And
rarely do statutes or court opinions, including sexual predator laws and court
cases, clearly articulate propositions for differential treatment that are
derived from a clear and unified conception of mental illness.

Robert F. Schopp
is trained in law, philosophy, and psychology, and has become a prominent
critic of the sexual predator statutes.  He has argued in a series of
articles in Psychology, Public Policy and Law and Behavior, Science
and the Law that there is a need for a fully satisfactory account of
commitment standards under those statutes. Competence, Condemnation, and
Commitment: An Integrated Theory of Mental Health Law, provides a
well-argued proposal for such an account.

Schopp provides a
clear distinction between the principles underlying parens patriae
power, and the separate and distinct principles underlying the state’s police
power.  He suggests that for purposes of developing a coherent and unified
civil and criminal system, the police power emphasis on criminal responsibility
are more workable than the patient-centered principles underlying parens
patriae.  He ultimately recommends the elimination of parens
patriae civil commitment as an independent institution.

To support this
proposition, Schopp first separates the diagnostic function, whereby clinically
recognizable and significant patterns of impaired processes are identified,
from legally significant patterns of dysfunctions.  He then argues that
the legal and medical categories are different, and suggests that the medical
diagnoses do not necessarily provide the technical content required by the
legal categories.  Instead, he would abolish parens patriae
interventions and allow for involuntary hospitalization and treatment as
dispositional decisions following a judicial determination of
incompetence.  Judicial determinations of incompetence, in turn, would be
based on incompetence (defined in terms of dysfunctions, rather than in terms
of diagnosis).

Finally, Schopp
relies on this dysfunctional-behavior concept as he develops a normative
structure for sexual predator civil commitments and other police power
interventions.  The criminal justice system is acknowledged as the
primarily legal institution through which the state must exercise the police
power.  And police power civil commitment is held out only as an alternative
to the criminal justice system in circumstances that justify policy power
intervention but preclude criminal conviction because of the offender’s
psychological impairment.  But Schopp would require a finding of mental
illness–to the extent that retributive competence is undermined–as a
criterion of police power civil commitment.

Both lawyer and
psychologist should read this work, and should retain it for future
reference.  Lawyers and jurists will discover that Schopp articulates the
differences between medical dysfunction (which has descriptive legal
significance) and diagnosis (which does not necessarily map to legal standards)
without talking past or over the top of non-scientists.  And psychologists
will discover that Schopp’s presentation of the legal standards laid down by
sexual predator statutes, and in court opinions such as Kansas
v. Hendricks, is both helpful and relevant to an understanding of the
newly evolving standards impacting mental health adjudication.

©
2002 Albert D. Spalding

Albert D. Spalding, JD, is an associate professor at Wayne State University School of Business Administration. 
He teaches legal studies topics, including a course in Health Care Law and
Ethics.
 

Categories: Philosophical, Ethics