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From Abraham L. Halpern, M.D. -

I recently came across the following quotation and thought of Tom immediately: "I often wonder whether we do not rest our hopes too much on Constitutions, upon laws and upon courts. These are false hopes; believe me, these are false hopes. Liberty lies in the hearts of men and women; when it dies there, no constitution, no law, no court can save it; no constitution, no law, no court can even do much to help it. While it lies there it needs no constitution, no law, no court to save it." [Judge Learned Hand in Spirit of Liberty (1960).]

In recognition of his life-long struggle to hold all persons, including allegedly mentally disordered offenders, responsible for their conduct, I dedicated to Tom Szasz my commentary on the "Guilty But Mentally Ill" verdict that has been adopted in a number of American jurisdictions and is being proposed in many others:

Should GBMI replace the insanity defense? A resounding YES, but a qualified one. It is astonishing that legal scholars and forensic experts, almost without exception, respond to the question as if it read "Should the 'Guilty But Mentally Ill' (GBMI) verdict be added to the three verdicts currently available in almost all American jurisdictions--Guilty, Not Guilty, and Non Guilty by Reason of Insanity?" The question clearly asks whether NGRI should be abolished and replaced by GBMI. The opponents of GBMI fail to address this question and proceed to list with anger, vitriol and condemnation all the evils that accompany the GBMI verdict.

Of course, GBMI should replace NGRI! The insanity defense, rather than uplifting the law's moral character, makes a mockery of the criminal justice system. Its use is frequently harmful to the population it is intended to benefit; it undermines the processes of the law and tarnishes the public sense of justice; and when "successful," it results in many instances, in the hospitalization of the acquittees in overcrowded and chronically understaffed insititutions.

Why a qualified yes? For GBMI to be meaningfully different from "Guilty," the following provisions must, at a minimum, be included: 1) When the affirmative defense of "mental illness" is proferred, psychiatric and/or psychological experts must be permitted at trial to testify as to the mental condition of the defendant as it affected the issue of intent at the time the crime was committed (thus assisting the judge or jury to decide the degree of crime; for example, whether, in the case of homicide, "extreme emotional disturbance" was present, which would justify a verdict of manslaughter rather than murder); and also to testify whether the defendant (who intended to commit the crime charged against him) was mentally ill at the time of the unlawful conduct. 2) Prior to sentencing, psychiatric/psychological data should be made available to assist the judge in deciding whether the defendant is still mentally ill, and whether or not the illness is treatable. 3) The GBMI verdict should exempt the sentencing judge from adhering to mandatory minimum statutory sentences or sentencing guidelines. That is to say, the judge should have the discretionary authority to choose from a range of available options such as enabling a non-dangerous GBMI defendant to be placed on probation and to be required to receive in-hospital treatment if found suitable for such treatment by hospital personnel, or to direct prison hospitalization for the dangerous mentally ill defendant, or to direct the confinement in a correctional facility of a dangerous personality-disordered GBMI individual who may not appreciate wrongfulness as a result of his severe mental disorder yet whose condition is not suitable for hospital treatment, or who might indeed not be treatable. 4) Mental health professionals should be available in prisons to provide "outpatient" treatment, when indicated, for GBMI inmates who, on conviction, do not require hospitalization and for GBMI inmates who are returned to prison from prison hospitals. 5) There should be provision for special parole board hearings when the treatment staff has determined that the mental illness has been treated and release of the inmate would not be inconsistent with the public safety and welfare of the community.

Adoption of the GBMI verdict as a replacement of, not a supplement to, the Not Guilty by Reason of Insanity ("Not responsible by reason of mental disease or defect") verdict, finally, after 200 years of jurisprudential disarray, opens the door for rationality in the handling of mentally disordered offenders.

Abraham L. Halpern, M.D. ahalpern@MEM.PO.COM Thomas S. Szasz Cybercenter for Liberty and Responsibility:
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