What is the Appropriate “Disposal” for Mad Murderers

Further to posting some of my academic writing, this is a piece about madness and murder…

What is the Appropriate “Disposal” for Mad Murderers

In the 1930’s, Penrose conducted a sociological investigation comparing statistics relating to crime and mental disorder in various European countries. Penrose discussed a number of possible conclusions that could be drawn form his data, but two that showed noticeable statistical significance were as follows: in countries with better provision of hospital beds for the mentally disordered the prison population tended to be lower and in these countries the number of deaths attributable to homicide also tended to be lower. Penrose also presented examples indicating that as provision for the mentally disordered improved over the first half of the twentieth century the prison population in the countries concerned decreased (Penrose 1939). This inverse correlation between prison population and availability of psychiatric hospital beds has in general continued during the overall downward trend in psychiatric provision of recent years; as an example, in England and Wales between 1982 and 1997 there was a steady decline in the number of mental hospital beds whilst the number of prisoners indeed rose (Gunn 2000).

These findings will be used as a springboard to discuss the dilemma of whether the most appropriate method of addressing the social problem of mentally disordered people who unlawfully kill others is penal or therapeutic disposal- that is whether the emphasis of the sentence should be on punishment or treatment. Much of the discussion will therefore be centred on two themes. Firstly an attempt will be made to deconstruct the concept of “mad murderers” by examining what can be construed from the idea of “madness”, and looking at the relationship between mental disorder and violent crime. Secondly the concepts and realities of the institutions of “prison” and “hospital” will be addressed, examining the purpose served by each of these institutions and identifying similarities and differences. The condition of psychopathic disorder will be used as an example to discuss these ideas, along with the related issue of treatability, before an attempt is made to draw a conclusion in light of the themes that have been discussed.

From the results of his survey Penrose suggested that “attention the mental health may help to prevent the occurrence of serious crimes, particularly deliberate homicide” (Penrose 1939:12). From the statistical data he presented this appears to be reasonable assumption, though it is questionable whether one can infer from this that a significant proportion of murders are committed by mentally disordered offenders. In fact the majority of evidence form research suggests that mentally disordered offenders commit only a small proportion of recorded homicides and there is little evidence suggesting that mental disorder is a higher risk factor for homicide than many other factors (Broookman 2005); indeed, convictions for violent offences amongst “disordered” offenders are slightly lower proportionally than amongst those of “normal” populations (Peay 2002). Furthermore even smaller proportion of murder cases result in a verdict of “unfit to plead” or “not guilty by reason of insanity”, though this is not necessarily a accurate reflection of the number of murderers who could be deemed to be “mad” (Morrall 2000).

However, murders by those who could be defined as “mad” clearly occur and as Morrall (2000: 61) suggests we should not conclude that the part played in the social problem of homicide by the mentally disordered is “inconsequential”. Part of the problem in deconstructing the concept of the “mad murderer” lies in the idea that, to some extent, madness can be considered to be a social construct, or at least that definitions of madness are fluid and influenced, if not set, by various authorities according to their own interests interests. There are two sides to this argument. From one perspective, the fact that diagnostic criteria for mental disorder are essentially defined and reviewed by those working in the psychiatric field suggests that the decision as to what the condition of madness is lies ultimately in the hands of the psychiatric profession- those who work with mental disorder define it as they wish (Bartol 1999 in: Brookman 2005:86). Conversely, there are those such as Szasz and Laing who almost deny the existence of mental illness as such, and concern themselves with the concept of psychiatry as a form of social control over what is but one of many forms of deviant behaviour (Busfield 1986).

The former of these viewpoints, which both oppose and overlap is possibly of most use at this point. Using narrow definitions of mental illness often used by psychiatrists (that is forms of psychoses such as schizophrenia) to assess the contribution of “mad murderers” to the total number of murder cases provides the relatively small proportion referred to above. However the definition of mental illness is widened then the contribution increases (Brookman 2005, Morrall 2000). Examples are alcohol or drug dependency (which is included in the DSM-iv¹ as a form of mental disorder), depression or personality disorders Furthermore inclusion of those who have lifetime experience of mental illness raises the proportion even higher (Morrall 2000).

Looking at the transient emotional state of a murderer at the time of the murder creates further debate. Morrall (2000) notes that whatever the usual mental state of a murderer he or she will almost certainly be experiencing a state of dysphoria at the moment when the act takes place and Brookman presents statistics showing that 76% of murders in Scotland in 2000 (where known) were committed when the accused was under the influence of drugs (Scottish Executive 2000: in Brookman 2005: 44). It is also argued that the perpetrators of what is termed as “instrumental violence” may obtain satisfaction or pleasure from the act, an example being gangsters who claim to simply regard killing as a necessary part of their business but may revel in the violence (Levi and Maguire 2002: in Brookman 2005:83). All these could be seen to be an, albeit temporary, disordered state of mind.

The second issue pertinent to the concept of “mad murderers” is the matter of causality. Many mentally disordered offenders have needs in addition to those of mental health and factors such gender, class and age have a stronger correlation with violent crime (Peay 2002). It is difficult to establish definite causal factors of violence (Prins 1990 in: Peay 2002: 72) and though mental disorder may be associated with certain offences it is rarely the cause (Peay 2002). However the Anglo-American legal systems do provide that those who kill unlawfully do have access to the defence of “not guilty by reason of insanity”, which loosely means that due to mental disorder they could not see the error or nature of the act, or to the defence of “diminished responsibility”, meaning that their state of mind was such that their judgement was affected (ibid.). This does appear to indicate an acceptance in law that some murders by mad people may, be attributable to their madness, or at least that these murders may not have occurred had the perpetrator not been mad.

Whatever the difficulties in to defining madness or murder, or in establishing a relationship between them, it may however be necessary to adopt a realist approach in order to progress with this discussion. As Morral (2000) points out, murder (however it can be defined or constructed) does occur, madness is (certainly for those who experience it and those around them) a reality and some murders are committed by those who can be called “mad”. Furthermore, it is accepted that there is some link between mental disorder (albeit small) (Mulvey 1994 in: Conacher 1996: 708) and in any case, a belief that the two are linked is widely held (Peay 2002). Accepting the possibility that madness may cause people to kill leads to a need to examine the two options of prison and hospital as a disposal for those for whom the process of law decides this to be the case.

Prison has been, from around the mid eighteenth century, the primary method of punishment in many societies and this trend can be seen to go hand in hand with industrialisation (Hudson 2002). Hudson discusses a number of sociological theories relating to this, such as those of Rushe and Krichheimer (1968 in: Hudson 2002: 237) relating to the use of prisoners as forced labourers and those of Melossi and Pavarini (1981 in: Hudson 2002: 237-8) who use take a Marxist stance and argue that as wage labour became the dominant factor in the economy, the time spent in prison paying for crime can be compared the the time spent working for payment.

Perhaps more pertinent are theories such as those of Foucault (1977) that prison demonstrates authority and produces the conformist citizens which modern economies require, though Bauman (2000) sees this from a different viewpoint: that prisons exist to exclude the unwanted and those for whom there may be no work, who hence do not fulfil the requirements of modern economies. Morgan (2002: 1151) sees prison as “represent[ing] the power of the state ultimately to coerce”, and also identifies three functions of prison. The first of these is custody- to detain people to ensure the smooth flow of judiciary procedures and also to protect others from harm. Secondly prisons are coercive in function as well as principle, for example in the situation where someone is held until they pay an imposed fine. Lastly prisons are punitive- the loss of liberty is a punishment. Though prisons can be seen to be progressive in the sense that there is an element of rehabilitation intended (Durkheim 1984, 1902 in: Hudson 2002: 236), punishment, along with deterrence, remains a major intent,- “prisons are intended to be sinister and punitive” (Gunn 2000: 335).

Conversely, hospitals are non-punitive and “are intended to be entirely benign” and in practice are better resources in terms of provision of treatment (Gunn 2000: 335); and indeed the root of the word “asylum” is a Greek term for “without the right of seizure”^2. Prisons are places of safety. This appears to be the opposite of the function of prison, however in practice there are similarities.

Firstly, there are functions that are shared by both hospitals and prisons. Treatment for mental disorder can and does occur in prisons through, for example, anger management programs and cognitive behavioural therapy, though treatment in prison is often focussed more on the offence rather than underlying causes; furthermore “treatment” could simply involve manage through medication (Peay 2002).

For many, prison may indeed be the location of “treatment”, and certainly the number of prison inmates with mental health needs is high; Peay (2002: 761) reports that: “studies of the prevalence of mental disorder in prison populations have consistently found substantial levels of disorder”. Campaigning bodies such as the Prison Reform Trust (2001) argue that “People who should be cared for by the mental health system wrongly end up in prison” and the fact that the correlation between prison and hospital populations noted by Penrose remains robust does seem to support this, at least on the basis of raw numbers. Based on numbers of mentally disordered inmates, Torrey (1995 in: Gunn 2000: 333) notes that in the USA jails have effectively replaced hospitals as the main providers of mental health care.

The issue of compulsory hospitalisation points to further similarities. As well as protection for the disordered person themselves, there is the element of protection of the interests of others: a function of prison (as noted by Morgan 2002) and also a stated function of compulsory admission to hospital under the Mental Health Act 1983 (Pilgrim and Rogers 1999). Whatever the purpose, both prison and hospital can serve to remove (or exclude – c.f. Bauman 2000) a person from society and hospitals can become places of detention (Gunn 2000). Certainly it can be argued that both institutions are able exert control over an individual: Szasz’s (1971, 1997: xxix) comment that “Institutional Psychiatry is, as it were, designed to protect and uplift the group (the family, the state)…” bears a certain similarity to Foucault’s (1977) idea of producing conformist citizens and, even without venturing into the territory of madness as a social construct, illness of any form does provoke social control by placing the sufferer in a social role that has a number of obligations (Parsons 1951).

Nonetheless, the fact remains that hospitals are designed to be non-punitve and prisons are designed to punish (Gunn 2000), furthermore the psychiatric profession is intended to support the interests of the patient (Busfield 1986). However there is the issue of treatability. The Mental Health Act 1983 contains a treatability clause, allowing practitioners to reject patients unlikely to respond to treatment in certain cases, often those diagnosed as suffering from psychopathic disorder (Pilgrim and Rogers 1999).

Psychopathic disorder³, defined in the Mental Health Act 1983 s1(2), as:

“a persistent disorder or disability of mind (whether or not including significant impairment of intelligence) which results in abnormally aggressive or seriously irresponsible behaviour” (cited in Jones 2001: 361)

poses a number of problems for mainstream and forensic psychiatry alike (Pilgrim and Rogers 1999).

Many suggestions have been put forward for the causes of psychopathic disorder, such as an underdeveloped superego, differences in autonomic nervous system functioning, or poor socialisation (Jones 2001: 362-4, citing various studies) all of which are similar to the causal theories of most mental disorders, however what differs in the case of psychopathy, is that psychopaths are seen make poor candidates for therapy, as well as being seen as disruptive in a hospital setting (Jones 2001). Hare (1993) outlines how psychopaths do not feel that they suffer a disorder, that they do not see the error in their actions and that their often manipulative personalities enable them to fake positive effects of therapy. Hare also notes how psychopaths can dominate group therapies and hence have detrimental effect on others, and that therapy may actually make their behaviour worse as it enables them to learn excuses and practice manipulation.

Psychopathy lies at the heart of the mad versus bad debate partly due to the manner in which mental disorder is often defined in terms of treatability (Pilgrim and Rogers 1999). Hare (1993: 143, original italics), however also believes that “psychopaths do meet current legal and medical standards for sanity” arguing that their behaviour is calculated and they hold enough awareness of the effects of their actions to be held responsible for them. However the description in the Mental Health Act refers to a “persistent disorder […] of the mind” resulting in these deviant behaviours; if the suggested causal factors of psychopathy, or any other mental disorder are to be accepted, can this be seen to be the fault of person suffering from that disorder?

This problem of defining madness and establishing connection appears to be ever present. For example, the defence of “diminished responsibility” (which results in the reduced sentence of manslaughter) indicates the belief that in the absence of the disorder the offender would have been able to prevent the crime occurring, or that the condition produced an irresistible urge (Brookman 2005). It could be argued that this clearly places the blame on the condition.

Foucault (1977: 17) raises the question of the punishment of “passions, instincts, anomalies, infirmities, maladjustments, effects of environment or heredity, […] drives and desires” and notes that underlying causes of deviance are in fact punished when punishment is levied. If murder can be seen to be caused or influenced by madness created by one or other of these factors (which do seem to sum up most of the sociological, biological or psychological “causes” of madness or deviance) , then if a penal disposal is instigated, these influences over which the offender may well have no control are being punished.

Returning to the example of manslaughter, Homicide Act 1957, s 2(1) provides that the defendant must establish that:

“he was suffering from such abnormality of the mind […] as substantially impaired his mental responsibility for his acts or omissions…” (cited in Peay 2002: 771)

The test for abnormality: “a state of mind so different from that of ordinary human beings that the reasonable man would find it abnormal”⁴ could encompass many,possibly transient states of mind (Peay 2002). What is “abnormal” to “the reasonable man”? Would not “the reasonable man” find “abnormal” a state of mind that could allow murder?

It would be a bold statement to say that all murderers are mad, or have no control over their actions, or that murder should not be punished, but perhaps a clear distinction needs to be drawn between punishing the offence and treating the causative factors, even if these factors are considered untreatable. In practice, in the sense that prisons and hospitals may, certainly for those forcibly detained, be very similar it may be of less importance where treatment occurs. Gunn (2000: 335), however, firmly believes that hospitals and prisons should remain separate to avoid any punitive association and notes that this is a “dilemma that has to be confronted by those who would argue that prisons are an suitable place to focus psychiatric treatment”, yet as Morrall (2000) notes, hospital may in reality be more stigmatising.

It may well be the case that it is simply not possible to provide an answer that is appropriate in all cases and it seems likely that there will always be a number or murderers in prison who may not be in the most suitable place, and that there will be a number of murderers in hospital for whom treatment may have little or no effect. Whether mental disorder being the cause of the offending is possible to discern in a specific case will likely remain a persistent problem, and as Peay (2002: 778) notes: “successful treatment for a disorder may have no bearing on future offending”. But then neither may forms of rehabilitation that are more associated with prison, as reconviction rates are high (Morgan 2002). In light of the fact that whether they be imprisoned or hospitalised, any mentally disordered offenders are likely to be incarcerated for a longer period than non-disordered offenders (Peay 2002) there must be an argument that, from a humanitarian point of view if none other, mad murderers still have a right to treatment, even if their actions have sacrificed their right to liberty and the evidence suggests that hospital is the best place for that to occur.

What is clear, however, is that the issue is open to influences aside from any debate centred on the offender and their mental state. It seems unrealistic to assume that the issue of how mentally disordered offenders are dealt with is not related to the wider move away from penal-welfarism evident in recent times (see for example Garland 2001); Gunn (2000: 335) suggests that “courts may reflect the mood of the times and offer punitive responses to medical problems” and suggests that even within the medical profession sympathy may be waning. Gunn also mentions matters of economics, suggesting that prison may quite simply be a cheaper option, and the matter of public fear and media influence. It is obvious that whatever medical, moral or ideological answer can be suggested to this question, the appropriate disposal for mad murderers will be, to some extent, politically or economically defined.

Notes

1. Diagnostic and Statistical Manual of Mental Disorders ↩︎
2. The Oxford English Dictionary, accessed online at: http://www.oed.com/ ↩︎
3. It must be noted that despite media portrayal psychopathy does not necessarily equate to criminality or particularly to murder (Hare 1993) though psychopaths who do commit murder obviously present a particularly complex issue in terms of this discussion. ↩︎
4. Lord Parker CJ in R v Byrne [1960] 2 QB 396, at 493 (cited in Peay 2002: 771) ↩︎

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