The Mentally Ill in Criminal Cases: the Constitutional Issue

Abstract

ILE the Anglo-American legal system has consistently provided special protections to the mentally ill in criminal cases, the Supreme Court has never maintained that they should receive this special treatment as a constitutional right. This observation is clear from even the most cursory examination of the law affecting the insane in criminal proceedings. The important three areas in which mental illness and criminal law intersect, i.e., insanity as a defense, insanity as a barrier to trial, and insanity as a barrier to execution, are treated as grants of privilege by state and federal legislatures and courts, and not as fundamental rights. The mentally ill do not have a constitutional right to plead insanity as an excuse from criminal responsibility. Nor do they have a constitutional right not to be tried while they are mentally deranged. Finally they are not constitutionally protected from execution while they are mentally disordered. In this light, it is clear that to date the Constitution has not recognized the mentally ill as a special class. The mentally ill do, however, represent, in point of fact, a special class of individuals. They are special in the sense that ordinary participation in the ordinary affairs of ordinary men is for them impossible. While equal treatment and protection can, in most cases, be achieved by uniformity and consistency, if this uniformity extends so as to make no allowances for peculiarities of responsibility and behavior in the mentally ill, then the sought-after equal protection and treatment is not achieved. The mentally ill comprise at least one class of persons to whom lack of special consideration must constitute unfair treatment. In this paper I will attempt to substantiate three general statements. The first is that to date there has been no recognition by the Supreme Court of any peculiar constitutional status for the mentally ill in criminal cases. The law, in this connection, in the many particular jurisdictions which deal with criminal cases, has developed a myraid of protections and variations of protections which affect the mentally ill accused of crimes. Second, recent developments both on the Court and elsewhere suggest that in the future there is a greater likelihood that the Court will show a willingness to extend special constitutional protections to the mentally ill. The development of psychological knowledge in combination with more and more sensitive interpretations of substantive due process are cases in point. Third, there are a number of arguments which point to the need for greater recognition of the special nature of mentally ill defendants and to the moral considerations, both individual and social, which make such recognition incumbent upon a civilized, twentieth-century society.