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Vanderbilt University Law School Public Law and Legal Theory Working Paper Number 15-6

Eliminating Mental Disability as a Legal Criterion in Deprivation of Liberty Cases: The Impact of the Convention on the Rights of Persons with Disability on the Insanity Defense, Civil Commitment, and Competency Law

Christopher Slobogin

Vanderbilt University Law School

This paper can be downloaded without charge from the Social Science Research Network Electronic Paper Collection: http://ssrn.com

Electronic copy available at: http://ssrn.com/abstract=2461279

ELIMINATING MENTAL DISABILITY AS A LEGAL CRITERION IN DEPRIVATION OF LIBERTY CASES: THE IMPACT OF THE CONVENTION ON THE RIGHTS OF PERSONS WITH DISABILITY ON THE INSANITY DEFENSE, CIVIL COMMITMENT, AND COMPETENCY LAW Christopher Slobogin * A number of laws that are associated with deprivations of liberty, including the insanity defense, civil commitment, guardianship of the person and numerous competency doctrines in the criminal context, require proof of mental disability as a predicate. The Convention on the Rights of Persons with Disability commands signatory states to eliminate that predicate. Summarizing principles set out in my book Minding Justice: Laws that Deprive People with Mental Disability of Life and Liberty, I explain how this seemingly radical stance can be implemented. Specifically, this article proposes adoption of an “integrationist defense” in the criminal context, an “undeterrability requirement” when the state seeks preventive detention outside of the criminal process, and a “basic rationality and self-regard test” for incompetency determinations. None of these proposals requires proof of a mental disorder as a predicate condition. I.

INTRODUCTION: THE CONVENTION ON THE RIGHTS OF PERSONS WITH DISABILITY ...............................................................................................1 II. THREE MODELS OF LIBERTY DEPRIVATION .............................................5 III. THE PUNISHMENT MODEL: INTEGRATIONISM ..........................................7 IV. THE PREVENTION MODEL: UNDETERRABILITY .....................................12 V. THE PROTECTION MODEL: BASIC RATIONALITY AND SELF-REGARD ....16 VI. CONCLUSION ..........................................................................................21

I. INTRODUCTION: THE CONVENTION ON THE RIGHTS OF PERSONS WITH DISABILITY Mental disability has long been a predicate for laws that deprive people of liberty. Most obviously, civil commitment laws premise *

Milton Underwood Professor of Law, Vanderbilt University Law School, 131 21st Avenue. South, Nashville, Tn. 37203. The author would like to thank Michael Perlin and Robert Dinerstein for his comments on this article.


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ELIMINATING MENTAL DISABILITY

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involuntary hospitalization and treatment on a finding of mental disability that causes either dangerousness to others or to self. Statutes that permit involuntary hospitalization and treatment of persons found unfit to undergo a criminal adjudication due to mental disability are another example. Although mental state defenses such as insanity are meant to avoid imprisonment, they too count as doctrines that rely on mental disability as a basis for determining whom will be deprived of liberty. The Convention on the Rights of Persons with Disability (CRPD) directs signatory States to undo all of this.1 Article 14 of the Convention states that “the existence of a disability shall in no case justify a deprivation of liberty” and article 12 provides that States “shall recognize that persons with disabilities enjoy legal capacity on an equal basis with others in all aspects of life.” 2 These are radical provisions. As the official commentary to Article 14 states, under the CRPD, detention is “unlawful” when it “is grounded in the combination between mental or intellectual disability and other elements such as dangerousness or care and treatment.” 3 The commentary explains, “[s]ince such measures are partly justified by the person’s disability, they are to be considered discriminatory and in violation of the prohibition of deprivation of liberty on the grounds of disability . . . prescribed by article 14.” 4 The commentary to article 12 makes equally dramatic pronouncements. It states that any law that “allows the interdiction or declaration of incapacity of persons on the basis of their mental, intellectual or sensory impairment and the attribution to a guardian of the legal capacity to act on their behalf . . . conflicts with the recognition of legal capacity of persons with disabilities enshrined in article 12.” 5 The commentary to this article also references criminal defenses, stating that “recognition of the legal capacity of persons with disabilities requires abolishing a defence based on the negation of criminal responsibility because of the existence of a mental or intellectual disability.” 6 The CRPD is not necessarily meant to prohibit all involuntary care of people with mental disability, nor is it aimed at preventing legal recognition that some people have difficulty making decisions or adhering to criminal 1

UNITED NATIONS, CONVENTION ON THE RIGHTS OF PEOPLE WITH DISABILITY, Resolution A/RES/61/106 (2006), available at www.un.org/disabilities/convention/conventionfull. shtml (hereafter, CRPD). 2 Id., arts. 14 & 12. 3 United Nations Human Rights Council, Thematic Study by the United Nation High Commission for Human Rights on Enhancing Awareness and Understanding on the Convention on the Rights of Persons with Disabilities para. 48 (2009), available at www.undg.org/docs/10541/A.HRC.10.48.english.pdf (hereafter, UN Council). 4 Id. 5 Id., at para. 45. 6 Id., at para. 47.


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prohibitions. Rather, it commands that any such laws remove mental disability as a determining factor. Thus, the commentary to article 14 states that if preventive detention is to occur, “the legal grounds upon which restriction of liberty is determined must be de-linked from the disability and neutrally defined so as to apply to all persons on an equal basis.” 7 Similarly, while the commentary to article 12 calls for the abolition of laws that violate “the human right to legal capacity of persons with disabilities,” it also endorses “legal recognition of . . . supported decision-making, as the process whereby a person with a disability is enabled to make and communicate decisions with respect to personal or legal matters.” 8 In the criminal law domain, while the CRPD directs that the insanity defense and other defenses that are specially focused on disability be eliminated, “disability-neutral doctrines on the subjective element of the crime should be applied, which take into consideration the situation of the individual defendant.” 9 In sum, under the CRPD, mental disability per se should play no role in laws that deprive people of liberty (or of property or any other significant interest). Civil commitment laws, incompetency statutes and mental disability defenses must all be abolished, or at least very substantially revised. Preventive detention and involuntary treatment rules must be drafted so as to apply to everyone. People with impaired decision-making abilities are to be assisted in, not prevented from, making decisions, and if the decisions they make violate a criminal law, they are to pay the consequences to the extent everyone else does. At first glance, these prescriptions might seem antithetical to widelyheld principles, impossible to implement, or both. May a civilized society let people commit suicide, live deteriorating lives on the street, or participate in a criminal trial when their grasp of their situation is seriously impaired? If the answer is that these situations are to be handled through facilitation of “supported decision-making,” how do supportive personnel deal with the person who continues to make obviously self-defeating decisions or makes no decisions at all? May government, which has a duty to protect its citizens, be required to delay intervention in the life of a threatening mentally impaired person until the person commits crime, and if such a person does commit an offense, may the criminal courts ignore the fact that the person is mentally disabled without violating the near-universal assumption that blameworthiness is the linchpin of criminal liability? If the answer to these questions is yes, is there a feasible method of implementing “disabilityneutral” systems of preventive detention and criminal justice?

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Id., at para. 49. Id., at para. 45. 9 Id., at para. 47. 8

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These are tough normative and practical questions. But over 150 countries have ratified the CRPD, including 24 countries in the European Union. 10 President Obama signed the Convention on behalf of the United States on July 30, 2009, 11 and although ratification of the Convention fell five votes short in the U.S. Senate, attempts to reintroduce it are pending. 12 Even if ratification does not occur, the Americans with Disabilities Act, 13 which prohibits discrimination on the basis of mental disability, is a kindred legal document. So answers to these queries presumably must be forthcoming. In a book entitled Minding Justice: Laws that Deprive People with Mental Disability of Life and Liberty, 14 I attempted to provide these answers. Although the book was published before the CRPD was adopted by the United Nations, its thesis is in large part consistent with the agenda that the CRPD subsequently laid out. In Minding Justice, I described three modes of liberty deprivation—focused on punishment, prevention and protection—and the types of impairments that are relevant to each. In doing so, I tried to avoid reliance on mental disability as a basis for legal doctrine. Instead, as I stated in the last chapter of the book, “the law should consider dispensing with [mental disability] as an independent criterion for intervention and instead simply identify as precisely as possible the types of mental dysfunction it wants to treat specially.” 15 In this article I reprise the arguments in the book and relate them to the principles set out in the CRPD. The ultimate goal of this article is to suggest how the CRPD’s broadly phrased provisions relating to deprivations of liberty ought to be implemented as a matter of law. Thus, this article offers specific recommendations— including statutory language—as to how the CRPD should apply in the punishment, prevention and protection contexts (although, in the latter setting, the recommendations reject the CRPD’s apparent position that even 10

See European Union Agency for Fundamental Human Rights, Has Your Country Ratified the CRPD? (2014), available at http://fra.europa.eu/en/node/4424 (last visited January 15, 2015). 11 Remarks by the President on the Signing of U.N. Convention on Rights of People with Disabilities Proclamation (July 24, 2009), available at http://www.whitehouse.gov/the-pressoffice/remarks-president-rights-persons-with-disabilities-proclamation-signing (last visited January 15, 2015). 12 UNITED STATES INTERNATIONAL COUNCIL ON DISABILITIES, THE CONVENTION THE RIGHTS OF PERSONS WITH DISABILITIES (2014), available at http://www.usicd. org/index.cfm/crpd. One American judge has also held that the Convention is entitled to “persuasive weight.” Matter of Guardianship of Dameris L., 956 N.Y.S.2d 848, 855 (Surrogate’s Court, 2012). 13 42 U.S.C. § 12101 et. seq. (2008) (prohibiting, inter alia, discrimination based on mental disability and requiring “reasonable accommodation” of people with mental disabilities). 14 CHRISTOPHER SLOBOGIN, MINDING JUSTICE: LAWS THAT DEPRIVE PEOPLE WITH DISABILITY OF LIFE AND LIBERTY (2006). 15 Id. at 251.

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people with very severe impairment should be entitled to make their own decisions). In making these recommendations, I recognize that the CRPD is subject to several interpretations, that some countries signed the CRPD with explicit reservations, and that the international community lacks strong mechanisms for enforcing the CRPD. 16 But this uncertainty is all the more reason to provide specific language that focuses the debate about what the CRPD means. II. THREE MODELS OF LIBERTY DEPRIVATION Minding Justice advanced three models of liberty deprivation: the punishment model, the prevention model, and the protection model. The goals, justifications and methods of implementing the three models will only be briefly outlined here. More detailed discussion can be found in Minding Justice. 17 The goal of the punishment model is to punish people for harm they have caused. The justification for this model, which is most clearly exemplified by the adult criminal justice system, is society’s entitlement to exact retribution from harm-doers, an entitlement that can be defended either deontologically or consequentially. 18 Generally, depriving an individual of liberty is permitted under this model if the individual causes or attempts to cause harm to another person or another person’s property in a culpable manner. Culpability can be defined along a spectrum ranging from complete objectivity to complete subjectivity. As discussed in more detail below, 19 the general trend in the United States and many other countries has been toward a more subjective approach to culpability, meaning that blameworthiness (sometimes called “desert”) is assessed based on the defendant’s actual desires and beliefs rather than according to what a reasonable person would have desired or believed.

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See UNITED NATIONS TREATY COLLECTION, CONVENTION OF RIGHTS OF PEOPLE WITH DISABILITY, available at https://treaties.un.org/Pages/ViewDetails.aspx?src=TREATY& mtdsgno=iv-15&chapter=4&lang=en (last visited January 15, 2014) (describing reservations, country-by-country). 17 SLOBOGIN, supra note 14, at 6-14. 18 See generally, IMMANUEL KANT, THE METAPHYSICAL ELEMENTS OF JUSTICE 120 (1797) (trans. John Ladd (1965) (“punishment is a categorical imperative”); MICHEL FOUCAULT, DISCIPLINE AND PUNISHMENT: THE BIRTH OF THE PRISON 3016 (1977) (stating that punishment is a means of expunging the evil represented by crime); Paul Robinson, The Criminal-Civil Distinction and the Utility of Desert, 76 B.U. L. REV. 201, 211-12 (1996) (arguing that following desert increases the law’s “moral credibility” and its ability to ensure compliance). 19 See infra text accompanying notes 30-35.

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The prevention model of liberty deprivation is aimed at preventing harm to others. The justification for this model is strictly utilitarian, and permits deprivation of liberty only when the benefits of doing so outweigh the harm caused. 20 The criminal justice system is often aimed at achieving this goal (at the same it implements desert), and the police power component of civil commitment is devoted entirely to this objective. The preventive mechanisms most relevant to the focus of this article are incapacitation, specific deterrence, and rehabilitation, which in practice reduce to management of dangerousness or risk. 21 Thus, in contrast to the punishment model, which is backward-looking, a prevention model of liberty-deprivation is forward-looking. The protection model is neither backward-looking nor forwardlooking, but rather is focused on assuring autonomous decision-making in the present. The justification for this model is the notion that autonomy is a good that must be promoted, because self-determination is an inalienable right, protects human dignity, and implements the assumption that individuals know their abilities and preferences better than anyone else. 22 The converse proposition is that allowing a person who is non-autonomous to make important decisions is insulting to the individual and makes a mockery of the concept of autonomy, because it suggests that society sanctions random decision-making. Examples of this model of liberty deprivation include the parens patriae component of civil commitment, guardianships of the person, and the practice of hospitalizing criminal defendants in an effort to improve their ability to participate in the adjudication process. All of these legal regimes are implemented through the competency construct, although the precise competency required varies depending upon the context. For instance, competency to stand trial obviously requires understanding different facts than competency to make treatment decisions. In sum, the punishment model punishes harmful acts and is focused on culpability. The prevention model aims to avoid harmful acts toward others and is focused on dangerousness. The protection model promotes autonomous acts and is focused on competency. Traditionally, mental 20

JEREMY BENTHAM, AN INTRODUCTION TO THE PRINCIPLES OF MORALS AND LEGISLATION 17-71 (J.H. Burns & H.L.A. Hart, eds., 1988). 21 Although general deterrence is another means of implementing prevention, it is irrelevant in the contexts at issue here. See SLOBOGIN, supra note 14, at 11. 22 IMMANUEL KANT, FOUNDATIONS ON THE METAPHYSICS OF MORALS 59-67 (1785) (Trans. Lewis White Beck, 1959) (arguing that every person possesses an inalienable right to be treated as a rational actor and to avoid being treated as a means to achieve the ends of others); JOHN STUART MILL, ON LIBERTY 9 (C. Shields, ed. 1956) (arguing that decision-making rights should be maintained as a means of assuring development of decision-making capacities and that competent adults know their own abilities and preferences better than anyone else).

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disability has played a significant role under all three models. Mental disability is usually seen as a mitigating factor in a punishment regime, a risk factor in a preventive regime, and the primary or only cause of incompetency. The CRPD does not categorically reject these notions, but it urges signatory States to eschew gross generalizations about the impact of mental disability and to ensure that people with mental disability are not singled out for differential treatment in any of these areas. The rest of this article fleshes out how those goals might be accomplished in connection with each model. III. THE PUNISHMENT MODEL: INTEGRATIONISM Mental disability might mitigate punishment in a number of ways. Most obviously, proof of “insanity” can result in complete exculpation. 23 Mental disability might also lead to an inability to form the intent necessary to commit the crime, “automatic” behavior that is not controlled by the conscious mind, and more subtle types of diminished responsibility. 24 Even if the impairment from mental disability does not merit acquittal on particular charges it may warrant mitigation at sentencing, especially in death penalty proceedings. 25 As noted earlier, the CRPD calls on signatory states to abolish the special defense of insanity and other doctrines based solely on mental disability. According to the CRPD, the mental disability predicate to these doctrines must be eliminated. If a person with mental disability is to have any type of excuse for criminal acts, it must be one that focuses on the “subjective element” of the offense. That is precisely what I proposed in Minding Justice, under the rubric of what I called the “integrationist” approach to criminal law. 26 Integrationism provides people with mental disability all of the defenses, but only those defenses, that are available to criminal defendants without mental disability. My argument for this position rested on three propositions. First, now that modern statutes have moved toward “subjectification” of mens rea and traditional affirmative defenses such as self-defense, duress and provocation, the insanity defense “has lost much of its raison d’etre.” 27 Second, “the integrationist approach captures the universe of mentally 23

For a description of the law of insanity, see CHRISTOPHER SLOBOGIN, THOMAS HAFEMEISTER, DOUGLAS MOSSMAN & RALPH REISNER, LAW AND THE MENTAL HEALTH SYStem 629-634 (6th ed. 2014) (hereafter SLOBOGIN ET AL.). 24 See id., at 670-675 (describing automatism and mens rea defenses). 25 See id., at 735-740 (describing capital sentencing) & 767-774 (non-capital sentencing). 26 SLOBOGIN, supra note 14, at 23-61. I first introduced the integrationist concept in Christopher Slobogin, An End to Insanity: Recasting the Role of Mental Disability in Criminal Cases, 86 VA. L. REV. 1199 (2000). 27 SLOBOGIN, supra note 14, at 28.

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disordered individuals who should be excused;” current, more expansive versions of the insanity defense do not adequately distinguish those we excuse from those we do not. 28 Third, integrationism enhances respect for people with mental illness, facilitates treatment, and promotes the legitimacy of the criminal justice system. 29 A key premise of this argument is that the subjectification of traditional criminal defenses is normatively required. One model for this position is the Model Penal Code (MPC), a statute promulgated by the American Law Institute in the 1960s and adopted at least in part in a number of states. 30 Under the MPC, virtually all crimes require proof that the defendant purposefully or knowingly caused harmful conduct or at least was reckless with respect to the conduct, the latter a mens rea that requires proof the defendant was aware that his or her actions at the time of the crime created a substantial risk of harm. 31 Although a few crimes under the MPC (for instance, the lowest level of homicide) retain negligence as a ground for conviction, even in these situations the Code adopts a subjective component, because the reasonableness of the actor’s conduct is to be judged “considering the nature and purpose of his conduct and the circumstances known to him.” 32 Under this definition, a person who delusionally thinks he is shooting a tree rather than a person would not be liable even for negligent homicide. The affirmative defenses such as self-defense, provocation and duress are similarly subjectified under the MPC. The Code permits the use of deadly force whenever “the actor believes such force is necessary to protect himself against death, serious bodily harm, kidnapping or sexual intercourse compelled by force or threat.” 33 Provocation sufficient to reduce murder to manslaughter is proved when the defendant committed the homicide “under the influence of extreme mental or emotional disturbance for which there is reasonable explanation or excuse . . . the reasonableness of such explanation or excuse to be determined from the viewpoint of a person in the actor’s situation under the circumstances as he believes them to be.” 34 Similarly, a duress defense lies when “a person of reasonable firmness in [the actor’s] situation would have been unable to resist” unlawful force. 35 If these subjectified defenses are required, as I believe they must be in a retributively just system, then—like non-impaired people who make honest mistakes about the nature and consequences of their conduct—people 28

Id. Id. at 58-60. 30 AMERICAN LAW INSTITUTE, MODEL PENAL CODE (1962) (hereafter ALI). 31 Id., at § 2.02(3). 32 Id., at § 2.02(2)(d)). 33 Id., at § 3.04(2)(b) (emphasis added). 34 Id., at § 210.3(1)(b) (emphasis added). 35 Id., at § 2.09(1) (emphasis added). 29

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with mental disability should have a defense under the following circumstances: A person shall be excused for an offense if, at the time of the offense, he or she (a) lacked the subjective mental state for the conduct, circumstance, or result element of the crime; (b) believed circumstances existed that, if true, would have justified the offense; or (c) believed circumstances existed that, if true, would have amounted to duress; provided that he or she did not cause any of these mental states [by, inter alia, purposely avoiding treatment, aware that such states would occur without such treatment]. 36

This formulation is consistent with the CRPD’s mandate that special defenses for people with mental disability be abolished. But does it unjustly deprive people with mental disability of a defense? Note first that the bracketed language would not afford a person with mental disability an excuse if the impairments that led to a lack of mens rea or a belief that force was necessary were caused by the person’s failure to sustain mental health treatment. While, in a retributively just regime, this failure to seek treatment must be intentional and in the control of the defendant, who must be aware of its possible consequences, some might object that holding a person criminally responsible for failing to undergo treatment is inappropriate under any circumstances. However, if, as the CRPD contemplates, criminal defenses are to be defined “neutrally,” this objection to the integrationist proposal runs counter to the well-accepted doctrine that causing the condition of one’s excuse, as in cases in which offenders have abused psychoactive substances or knowingly placed themselves in harm’s way, precludes complete exculpation. 37 More importantly, one might object that some people who intend to commit a harmful act and do not think they are either defending themselves or others or are under duress nonetheless should be excused because of their 36

SLOBOGIN, supra note 14, at 56. In recognition of the “ignorance of the law” excuse, the original formulation included “or (d) was unaware of the general prohibition of the criminal law.” (cf. ALI, supra note 30, at § 2.04(3)(a)). It is not included here for reasons explained in Christopher Slobogin, A Defense of the Integrationist Test as a Replacement for the Special Defense of Insanity, 42 TEXAS TECH L. REV. 523, 530 n.51 (2009) (noting that the MPC does not endorse this defense and that other components of the integrationist test adequately define the exculpatory effect of mental disability for all but the youngest offenders, who should be handled through a separate system in any event). Note also that, to the extent it is not covered by (a), “automatism,” or the involuntary act doctrine, would still be available to people with mental disability, just as it is to people without such disability. Id. 37 ALI, supra note 30, at § 3.02(2); see generally, Paul H. Robinson, Causing the Conditions of One’s Own Defense: A Study in the Limits of Theory in Criminal Law Doctrine, 71 VA. L. REV. 1 (1985).

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irrational thought process or their inability to control their actions. To take a famous example, John Hinckley, who tried to assassinate President Ronald Reagan because, according to the defense, he believed doing so would unite him with the actress Jodie Foster, would not have a defense in an integrationist regime; he intended to shoot Reagan, even though he did not feel threatened by Reagan or anyone else. But he was found not guilty by reason of insanity under the federal insanity test, either because jury members thought he did not “appreciate the wrongfulness” of his act (to him, the defense argued, Reagan was just a bit player in the drama involving Foster) or because they believed he truly acted on an “irresistible impulse” (after all, the defense pointed out, Hinckley shot Reagan in full view of scores of law enforcement officials). 38 Nonetheless, the integrationist approach—which is consistent with what I take to be the CRPD’s position—comes closer to capturing the universe of people who should be excused. The lack-of-appreciation and inability-to-conform tests applied in Hinckley’s case are overbroad. For instance, many people with psychopathy do not appreciate why we view their behavior to be wrongful, 39 and many people with pedophilia have serious trouble controlling their behavior. 40 Some have instead proposed an excuse that focuses on whether the person manifested grossly psychotic symptoms or serious irrationality at the time of the offense. 41 But this formulation also is overbroad. People with delusions and hallucinations often act out of “normal” motives such as anger, jealousy or hate, 42 and the perception that they are “compelled” to act in an 38

SLOBOGIN ET AL., supra note 23, at 648-50 (describing Hinckley case). ROBERT D. HARE, WITHOUT CONSCIENCE: THE DISTURBING WORLD OF THE PSYCHOPATHS AMONG Us 34, 44 (1993) (stating that psychopaths are incapable of empathy and remorse). 40 AMERICAN PSYCHIATRIC ASSOCIATION, DIAGNOSTIC AND STATISTICAL MANUAL 697 (5th ed., 2014) (stating as one criterion of pedophilic disorder “recurrent, intense . . . sexual urges”). . 41 Richard J. Bonnie, The Moral Basis of the Insanity Defense, 69 AM. BAR J. 194, 197 (1983) (proposing that the insanity defense be based on “those severely abnormal mental conditions that grossly and demonstrably impair a person’s perception or understanding of reality”); Stephen J. Morse, Rationality and Responsibility, 74 S.CAL. L. REV. 251, 254-55 (2000) (“rationality is the defining criterion of legal (and moral) responsibility,” and can be defined as “the ability to act for good reasons”). 42 Jillian K. Peterson et al., How Often and How Consistently Do Symptoms Directly Proceed Criminal Behavior Among Offenders with Mental Illness, 38 L. & HUM. BEH. 439 446 (2014) (study of offenders with schizophrenia, bipolar disorder and depression finding that only 4% of crimes they committed were the direct result of serious symptoms); Jeffrey W. Swanson et al., Alternative Pathways to Violence in Persons with Schizophrenia: The Role of Childhood Antisocial Behavior Problems, 32 L. & HUM. BEH. 228 (2007) (finding that violence among people with schizophrenia is often more closely related to conduct disorders and substance abuse than psychotic symptomatology); DREW ROSS, LOOKING INTO THE EYES 39

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antisocial manner is belied by the fact that most people with such impairments do not engage in violence. 43 Most importantly, even those with serious mental disability know, as a general matter, that people should not engage in crime; 44 their confusion, if there is any, is over when they are committing one. 45 Given these realities about mental disability, the focus of excuse should be on the actor’s desires and beliefs at the time of the crime, not their provenance. Furthermore, as with people who do not have a mental disorder, only those desires and beliefs that indicate an absence of intent to cause harm or a belief in justificatory facts should excuse. That is the thrust of the integrationist test (and the CRPD). A person like Daniel M’Naghten (the man whose name graces the most famous formulation of the insanity defense), should have had a viable excuse because he believed that if he did not assassinate Prime Minister Peel he would himself be killed. 46 But Hinckley, who tried to kill Reagan to impress an actress, should not. Hinckley was just as blameworthy as any other individual, “rational” or not, who kills to impress another. A second reason the integrationist approach is preferable to modern, more expansive insanity formulations is also consistent with the CRPD: Granting people with mental disability a special defense stigmatizes and marginalizes them. The category of “criminal insanity” perpetuates the extremely damaging myth that people with mental disability are especially dangerous or especially lacking in self-control. 47 Compared to an acquittal KILLER: A PSYCHIATRIST’S JOURNEY THROUGH THE MURDERER’S WORLD 87 (1998)(“psychosis may enhance and enact the drama already present, and the drama is not necessarily an innocent one”). 43 Dale E. McNiel, Jane P. Eisner & Renee L. Binder, The Relationship between Command Hallucinations and Violence, 51 PSYCHIAT. SERV. 1288, 1290 (2000) (concluding that “command hallucinations [do not make] a significant contribution in determining violence risk over and above . . . other predictors”). 44 Stephen J. Morse & Morris B. Hoffman, The Uneasy Entente between Legal Insanity and Mens Rea: Beyond Clark v. Arizona, 97 J. CRIM. L. & CRIMINOL. 1071, 1117 (2007) (“mental disorder seldom disables a person’s moral compass. The person may be making a ‘moral mistake’ because his or her perceptions and beliefs are distorted by disorder, but the moral sense generally remains intact.”). 45 Dale E. McNiel, Jane P. Eisner & Renee L. Binder, The Relationship between Aggressive Attributional Style and Violence by Psychiatric Patients, 71 J. CONSULTING & CLIN. PSYCHOL. 399, 402 (2003) (concluding, based on a review of the literature, that persons with mental disability are most likely to behave violently when they perceive, usually erroneously, that someone intends to do them imminent harm). 46 M’Naghten’s Case, 8 Eng. Rep. 718 (H.L. 1843). 47 Michael L. Perlin, On “Sanism,” 46 SMU L. REV. 373, 393-96 (1992) (discussing myths about the extent to which insanity acquittees need to be incarcerated or engage in violent behavior); Deborah C. Scott, Howard V. Zonana & Michael A. Getz, Monitoring Insanity Acquittees: Connecticut’s Psychiatric Security Review Board, 41 HOSP. & COMM. OF A

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“by reason of insanity,” an acquittal on lack-of-intent, self-defense or duress grounds is far less tarnishing. Moreover, limiting exculpation or mitigation to situations in which the defendant thought, albeit mistakenly, that he or she was not harming anyone or was justified in acting is likely to make much more sense to the public, and thus be less denigrating to people with mental disability. 48 IV. THE PREVENTION MODEL: UNDETERRABILITY As just noted, mental disability is closely linked to dangerousness in the popular imagination. That is one explanation for why people with mental disability are among the few categories of individuals—among many that might be considered more dangerous—that have been subject to indeterminate preventive confinement. Historically, people with mental disability have been involuntarily hospitalized on dangerousness grounds not only when they have been acquitted by reason of insanity but also in the absence of criminal charges, upon sufficient proof of mental disability and risk. More recently, many jurisdictions have authorized preventive detention of offenders who have completed their sentence if they are found to have a “mental abnormality” that predisposes them to violent behavior. In the United States this post-sentence confinement has been focused on sex offenders, 49 whereas in Europe and Canada the target has been “dangerous offenders” more generally. 50 The CRPD takes aim at all of these laws, admonishing that they are “discriminatory and in violation of the prohibition of deprivation of liberty on the grounds of disability” unless the legal basis for commitment is “delinked from the disability and neutrally defined so as to apply to all persons on an equal basis.” 51 One way of de-linking preventive statutes from PSYCHIAT. 980, 982 (1990) (insanity acquitteees are the “most despised” and “morally repugnant” group of individuals in society). 48 Of course, even if conviction occurs, necessary treatment should be provided. For an argument that the integrationist approach would facilitate treatment for people with mental disability. See SLOBOGIN, supra note 14, at 59-60. 49 Allison Morgan, Civil Confinement of Sex Offenders: New York’s Attempt to Push the Envelope in the Name of Public Safety, 86 B.U. L. REV. 1001, 1004 (2006) (stating that at least 18 American jurisdictions have enacted post-sentence commitment laws for sex offenders). 50 Michele Caianiello, Introduction: Detention as Punishment and Detention as Regulation, in PREVENTING DANGER: NEW PARADIGMS IN CRIMINAL JUSTICE xxv, xxvi-xxviii (Michele Caianiello & Michael Louis Corrado eds., 2013) (hereafter Caianiello & Corrado) (detailing developments in the United States and Europe); Michael Jackson, The Sentencing of Dangerous and Habitual Offenders in Canada, 9 FED. SENT. REP. 256, 257-258 (1997) (describing Canada’s Dangerous Offender legislation). 51 U.N. Council, supra note 3, at para. 49.

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disability, of course, is simply to permit preventive detention of anyone considered dangerous. In that way, people with mental disability would not be singled out for special preventive treatment. However, that move would be a clear violation of international and national law. 52 A second approach is to focus on whether the state should ever be permitted to detain, other than through criminal punishment, someone who is thought to be dangerous, and, if so, why. In Minding Justice and in subsequent work, I argued that respect for autonomy and dignity, as well as the need to cabin state power, requires adoption of a “criminal justice primacy” principle that outlaws preventive detention or any other intervention designed to protect others unless the criminal justice system lacks jurisdiction over the individual and that system cannot function as a preventive mechanism because the person in question is truly “undeterrable.” 53 Under this principle, few people with mental disability would be eligible for non-criminal preventive detention, but two types of individuals could be: Those who tend to cause harm in the delusional belief that they are not violating the criminal law (as would be the case for those who meet the integrationist test), and those who have urges so strong that they tend to commit crime despite a high risk of apprehension and punishment (a phenomenon captured by the police-at-the-elbow insanity formulation). Both types of individuals are, in essence, oblivious to the prospect of punishment. In Minding Justice, I argued that these are the people meant to be encompassed by the United States Supreme Court’s holding in Kansas v. Hendricks (1997) that only those people with mental disability who are “dangerous beyond their control” may be subject to post-sentence commitment. 54 Under the criminal justice primacy principle, preventive detention of these undeterrable individuals would be permissible, if criminal punishment of them is not possible (because, for instance, they have been acquitted of crime or they have served their sentence). Demonstrating that the undeterrability formulation is “disabilityneutral,” Minding Justice also identified two other categories of people that 52

M. v. Germany, European Court of Human Rights, Application No. 19349/04, paras. 127135 (2010) (holding, under the European Convention of Human Rights, that post-sentence preventive detention is impermissible unless genuine efforts at treatment are made, and strongly suggesting that mental disorder is a necessary predicate for such detention); BVerfG, Docket No. 2BvR 2365/09 (May 4, 2011) (decision of German Supreme Court limiting postsentence confinement to those with serious mental disorder); Kansas v. Hendricks, 521 U.S. 346, 358 (1997) (limiting post-sentence detention to those who are “dangerous beyond their control”). 53 SLOBOGIN, supra note 14, at 133-141; Christopher Slobogin, Preventive Detention in the United States and Europe, in Caianiello & Corrada, supra note 50, at 137, 149-152 (hereafter Preventive Detention). 54 Kansas v. Hendricks, 521 U.S. 346, 358 (1997).

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would come under its umbrella, neither of which are associated with mental disability: People with contagious diseases and enemy combatants. 55 The threat posed by infectious individuals who are not confined is literally undeterrable, because their microbes will spread regardless of anything the criminal law says. Enemies of the state, a group that could include “illegal” combatants such as suicide bombers, might be undeterrable because of their orders or ideology. Neither group is normally sanctionable criminally, the first group on the ground they are not culpable for their disease, 56 the second because of international law norms or jurisdictional limitations. 57 Under the criminal justice primacy principle, then, members of these groups could be subject to preventive detention if, in fact, the criminal sanction is not available and the threat they pose is undeterrable by serious criminal sanctions or equivalent harm to themselves. Consistent with the CRPD, the undeterrability justification for preventive detention is “de-linked” from disability. Instead it focuses on the individual’s attitude toward or beliefs about the consequences of engaging in serious antisocial behavior. 58 Undeterrability may be the result of mental disability, but it might also be the result of one’s physical health, nation-state, religion or culture. A statute authorizing preventive detention might read as follows: Preventive intervention against an individual who poses a significant risk of unjustifiable serious bodily harm to another but who is not presently subject to criminal jurisdiction is permitted upon proof that the individual is likely (a) to believe such harm is not criminal [as is true with some people with serious mental illness and all enemy combatants]; (b) to be powerless to prevent the harm [as is true with some people with “automatisms” and people with contagious diseases] or (c) to be willing to cause such harm even if apprehension and punishment, death or serious bodily injury is a highly likely result [as is true with some sex offenders and some terrorists].

55

SLOBOGIN, supra note 14, at 120 (quarantine); 138-139 (enemy combatants). The categories are more clearly described in Slobogin, Preventive Detention, supra note 53, at 150-152. 56 Carrie Lacey, Abuse of Quarantine Authority, 24 J. LEGAL MEDICINE 199, 200 (2003) (recounting cases holding that people may not be quarantined in jail). 57 Jordan J. Paust, War and Enemy Status After 9/11: Attacks on the Laws of War, 28 YALE J. INT’L L. 326, 330 (2003) (“lawful acts of war are covered by the rule of combat immunity and cannot properly be criminal under domestic law, nor can they be judged elements of domestic crime or acts of an alleged conspiracy to violate domestic law.”). 58 Note that because the predicted antisocial behavior must be serious, individuals thought to be at high risk for carrying out illegal protests and other acts that would normally warrant only minor or intermediate penalties would not be subject to preventive detention under this formulation. See SLOBOGIN, supra note 14, at 137.

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Note that each of these categories includes people who do not have mental disability as well as those who do. Note further that, if taken seriously, this language would prohibit involuntary police power commitment of many people currently labeled “mentally disabled,” including most of those exoffenders subject to the post-sentence commitment laws described above. For instance, the sex offenders typically targeted by these laws would not be committable under (a) or (b) because they would not have a mental state defense (indeed, if they had raised such a defense at trial, the government would have vehemently argued against it) and would only be committable under (c) if they are likely to commit crime even in the presence of the police or under analogous circumstances. The disposition of those subject to preventive detention would depend, of course, on the reason for the detention—prisoner-of-war camps for enemy combatants, quarantine for those with infectious diseases, and some type of treatment regime for the rest. But in Minding Justice I also argued that, regardless of the category of preventive detention, dispositions are subject to a number of limitations, including the “risk proportionality principle” and the “least drastic means principle.” 59 Analogous to proportionality requirements in a punishment regime, the first principle requires proof of a high risk of serious harm before confinement may occur in the first instance, and increasingly greater proof of risk and harm as confinement becomes prolonged. Under the second principle, the government is obligated to rely on the least restrictive method of achieving its preventive aim, which might require community-based treatment programs for many people with mental disability. 60 This latter principle, which is an extremely important limit on state power, is consistent with the CRPD’s view that people with mental disability are to be treated “on an equal basis” with those without disability, who normally receive care in the community. 61 59 Id., at 143-45 (discussing the proportionality principle); Christopher Slobogin, Legal Limitations on the Scope of Preventive Detention, in DANGEROUS PEOPLE: POLICY, PREDICTION AND PRACTICE 37, 38-41 (Bernadette McSherry & Patrick Keyser, eds., 2011) (hereafter DANGEROUS PEOPLE) (discussing the proportionality principle and the least drastic risk-reducing intervention principle). 60 Cf. Seling v. Young, 531 U.S. 250, 265 (2001) (after noting that state statute authorizing post-sentence commitment of sex offenders provided that detention was for the purpose of incapacitation and treatment, stating that “due process requires that the conditions and duration of confinement under the Act bear some reasonable relation to the purpose for which persons are committed”). 61 The principle is also recognized in international law. See Patrick Keyzer, The Internatinoal HumanRights Parameters for the Preventive Detention of Serious Sex Offenders, in DANGEROUS PEOPLE, supra note 59, at 25, 29-30 (noting holdings by international tribunals prohibiting as “arbitrary,” in violation of international covenants, detention that is more invasive than necessary to achieve the state’s ends).

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V. THE PROTECTION MODEL: BASIC RATIONALITY AND SELF-REGARD The protection model of liberty deprivation is by far the most commonly invoked. It is most obviously implicated by parens patriae commitments of those who are considered dangerous to self or unable to care for themselves because, purportedly, they are “incompetent” to make treatment decisions, a group that constitutes the vast majority of people subject to civil commitment. It is similarly implicated when a guardian of a person who has been found incompetent to make personal decisions hospitalizes that person (an individual traditionally called the “ward” but here called the “principal,” in line with the CRPD). The protection model also frequently comes into play in the criminal justice system, when a defendant is hospitalized for restoration of competency to proceed with the prosecution. The CRPD takes its most radical stand in this context. The Convention prohibits laws that permit a “declaration of incapacity” to disable a person from making decisions about “personal or legal matters,” and instead endorses “supported decisionmaking” that affords people with mental disability professional facilitators who assist, but do not direct, the decisionmaking endeavor. 62 As described by Professor Salzman, supported, or supportive, decisionmaking “seeks to maximize the on-going and active involvement of the principal in the decisionmaking process” and can be established even if the individual “would not be deemed to have the generally accepted level of legal capacity to enter into a general or health care power of attorney.” 63 The goal is “to assess the nature and amount of support needed by the individual to exercise his or her legal capacity as autonomously as possible.” 64 Furthermore, even this level of intervention is not permitted unless the principal freely enters into it. 65 On this view, traditional guardianship would be abolished. Parens patriae commitment would be impermissible unless the individual consented to it. Even criminal defendants would be able to avoid competencyrestoration treatment if they insisted on proceeding with trial. 66 Supportive 62

CPRD, supra note 1, art. 12. Leslie Salzman, Guardianship for Persons with Mental Illness—A Legal and Appropriate Alternative?, 4 ST. LOUIS UNIV. J. HEALTH L. & POL’Y, 279, 308 (2011). 64 Id. at 313. 65 Id. 66 While this conclusion can be derived from Article 12, the U.N. Committee has also stated that Article 14 requires the same result. See Statement on Article 14 of the Convention of the Rights of People with Disability (Sept. 2014), available at http://www.ohchr.org/EN/ NewsEvents/Pages/DisplayNews.aspx?NewsID=15183&LangID=E (“The committee has established that declarations of unfitness to stand trial and the detention of persons based on that declaration is contrary to article 14 of the convention since it deprives the person of his or her right to due process and safeguards that are applicable to every defendant.”). 63

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personnel could, of course, attempt to persuade the individual to change his or her mind in any of these settings, but if their persuasive powers fail the principal’s decision controls. In Minding Justice, I did not go this far. I agree that the concept of “legal capacity” should be abandoned, because the legally relevant focus in competency cases is whether the individual’s decision deserves to be given credence when it is made; that time-sensitive focus renders the capacity question, which is an assessment of a person’s general aptitude for making the decision, irrelevant as a practical matter. 67 But rejection of the legal capacity concept does not mean that every decision is competent and should be given dispositive effect. As noted earlier, the premise of the protection model of liberty deprivation, a premise that the drafters of the CRPD endorse, is that respect for individual autonomy is a fundamental good. Abandoning the concept of incompetency, as the CRPD seems to do, would permit decision-making that would denigrate both individual dignity and the autonomy principle itself. To take an extreme example, a person who understood nothing about his or her situation (as might be the case with people who have a serious intellectual disability) should not be permitted to make decisions about that situation, with or without supportive personnel. Perhaps the CRPD is not meant to endorse the contrary, to my mind, extreme view. 68 In any event, if one is to take the autonomy principle seriously something more concrete that a ban on declarations of legal incapacity is needed. In Minding Justice, I proposed a narrow definition of incompetency that I called the “basic rationality and basic self-regard” test. 69 As do all competency tests, this test would require some understanding of the risks and benefits of the choice to be made. Additionally, the test would require the individual to give reasons for the choice that (1) are not based on demonstrably erroneous facts (basic rationality) and (2) evidence an effort to consider reasons for self-preservation (basic self-regard). These stipulations recognize that autonomy requires a grasp of the relevant reality and a willingness to exercise one’s will. Although I thus concluded that some people can be too impaired to allow them to make a decision, I also rejected competency tests that require the absence of significant pathology, the ability to “rationally manipulate” 67

See Eric Vogelstein, Competence and Ability, 28 BIOETHICS 234, 234 (2014) (abstract) (arguing that “being competent does not essentially involve abilities,” and that “decisionmaking competence” exists “only if one possesses a certain kind of rationality in making treatment decisions”). 68 On one view, the real goal of Article 12 is to ensure that people with mental disability have legal capacity or standing to make claims in court, a right that has been denied in many countries. Conversation with Robert Dinerstein, March 26, 2015. 69 SLOBOGIN, supra note 14, at 195-200.

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facts, or the ability to reach a “reasonable” decision. 70 In effect, these more demanding tests substitute a third party’s decision for the individual’s. This is particularly evident under those proposals that would vary the required competency depending upon the “importance” of the context (as determined by a third party), 71 or the extent to which the individual agrees with expert psychiatric or legal advice. 72 As with the integrationist and undeterrability formulations, the basic rationality and basic self-regard test is not linked to a finding of mental disability. However, unlike those formulations, it is likely to be met only by people who have a serious mental disability. The people most likely to lack basic rationality are those with delusional beliefs about the world, and the people most likely to lack basic self-regard are those who are clinically depressed. Nonetheless, the test itself would be described functionally rather than in terms of diagnoses or incapacity: A person’s decision about a matter that will have a significant effect on the person’s liberty should not be given dispositive effect if he or she (a) does not have a minimal understanding of the risks and benefits of decisions that can be made about the matter; (b) fails to give a reason for his or her decision or gives a reason that is based on a demonstrably false belief about a fact that is crucial to the matter; or (c) is unwilling to consider reasons for selfpreservation that are relevant to the matter.

Of course, a finding of incompetency alone is insufficient ground for taking the significant step of depriving the person of liberty. There must also be proof, akin to the finding under the prevention model, that serious harm to the individual will occur if the deprivation of liberty does not occur. Such harm might include death or serious bodily injury that can only be prevented through a deprivation of liberty. 73 Criminal punishment could also constitute a harm sufficient to justify deprivation of liberty under the 70

See SLOBOGIN ET AL., supra note 23, at 1046-1047 for a description of these tests. Loren Roth, Alan Meisel & Charles W. Lidz, Tests of Competency to Consent to Treatment, 134 AM. J. PSYCHIAT. 279, 283 (1977) (arguing that competency to make treatment decisions should vary depending upon the treatment’s “risk/benefit ratio”); Seiling v. Eyman, 478 F.2d 211, 214-215 (9th Cir., 1973) (holding that competency to plead guilty should be more demanding than competency to stand trial, because pleading guilty waives constitutional rights). 72 Richard J. Bonnie, The Competence of Criminal Defendants: Beyond Dusky and Drope, 47 U. MIAMI L. REV. 539, 577-580 (1993) (arguing that a more “demanding” competency threshold should be required when the defendant’s decision is against the lawyer’s advice). 73 State Ex Rel. Hawks v. Lazaro, 202 S.E.2d 109, 123-124 (W. Va. 1974) (holding that the state is only permitted to commit a person under the parens patriae power if he or she is suicidal or is likely to suffer “some form of injury other than direct physical injury” that is “definitely ascertainable” and is likely to be treatable). 71

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protection model. A criminal defendant who is incompetent under the foregoing test is not likely to be able to assist his or her attorney during the pre-trial, trial, or post-conviction process and, as a result, could be wrongfully convicted, sentenced or executed. Accordingly, incompetence to proceed with adjudication and to make decisions that a defendant or offender is entitled to make should also be grounds for deprivation of liberty, at least when the charge is a serious felony. 74 The usual outcome of a conclusion that a person is incompetent to make a decision and that a deprivation of liberty is necessary to prevent serious harm is hospitalization and some type of treatment. For people with mental illness the most common type of treatment is psychoactive medication, a treatment that, because of its serious side effects, has been particularly controversial, especially when administered involuntarily.75 Nonetheless, if a person refuses such medication the same indicia of incompetence and proof of significant harm that authorize hospitalization should also authorize treatment, with the important caveats, recognized in the United States Supreme Court decision of Riggins v. Nevada, 76 that treatment proceed only if it is medically beneficial (meaning no serious side effects), is likely to achieve the state’s aim (here restoring or maintaining competency), and is the least restrictive method of doing so. 77 Medically appropriate treatment of an unconscious person is permitted under limited exigent circumstances; 78 the same should be true when the person is incompetent under the above definition. 74

For further development of these points, see Christopher Slobogin, Mental Illness and SelfRepresentation: Faretta, Godinez and Edwards, 7 OHIO ST. J. CRIM. L. 391 (2009) (also arguing against a separate requirement of competency to represent oneself). 75 After noting the side effects of psychoactive medication, the Supreme Court appeared to put significant restrictions on its non-consensual use. See Sell v. United States, 539 U.S. 166, 180 (2003) (stating that forcible administration of psychoactive drugs “may be rare,” at least for the purpose of restoring competency to stand trial). But see infra note 77. 76 Riggins v. Nevada, 504 U.S. 127, 135 (1992) (holding that the state can satisfy due process if it can demonstrate that “treatment with antipsychotic medication was medically appropriate and, considering less intrusive alternatives, essential for the sake of [the defendant’s] own safety or the safety of others [or necessary to] obtain adjudication of [the defendant’s] guilt or innocence . . . .”]. 77 I develop this argument further in Christopher Slobogin, Sell’s Conundrums: The Right of Incompetent Defendants to Refuse Anti-Psychotic Medication, 89 WASH. U. L. REV. 1523, 1542-1543 (2012) (arguing that, to the extent Sell suggests otherwise, it is wrongly decided). While there may be a small group of people who are incompetent to stand trial but competent to make treatment decisions, there are good reasons for permitting forcible treatment of this group, as well as of those who are undeterrable in the sense described earlier, assuming the caveats noted in the text. See id. at 1532-1535. 78 Peter Fenwick & Roy G. Beran, Informed Consent—Should Bolam be Rejected?, 16 MEDICINE & LAW 215, 217 (1997) (stating that “the only exception to the tort of battery [when treatment is nonconsensual] is in the case of emergency treatment given to an

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In the criminal context, the Court has also held, in Jackson v. Indiana, 79 that if a person is not restorable to competence within a reasonable period of time, criminal jurisdiction should usually end (although commitment of those who are dangerous to self or others would still be possible). In Minding Justice, I argued that Jackson should be followed if a person is incompetent under provision (a) (which in this context would require focusing on the person’s grasp of the criminal process and the ability to respond to the charges against him or her), because the risk of unreliable adjudications would be too great if such an individual proceeded with adjudication. However, if treatment is successful at restoring the individual’s ability to understand the risks and benefits of going to trial and fails only at restoring basic rationality and self-regard (provisions (b) and (c)), reliability is no longer a concern, because the individual can communicate relevant facts to the attorney. In that situation I argued, consistent with the CRPD, that instead of forcing continued treatment, adjudication should proceed with the assistance of a lawyer, as the attempt at treatment has given autonomy its due. 80 Although my proposals regarding the protection model may not be entirely consonant with the CRPD, none of them is meant to diminish the CRPD’s endorsement of supportive decision-making. In many if not most cases, good supportive personnel, who can include properly trained lawyers, 81 can nudge individuals of questionable or fluctuating competency toward the threshold described above, thus avoiding a deprivation of liberty or substitute decision-making. The least drastic means principle operates here as well. If supportive decision-making can render a person competent on the issue in question, treatment and guardianship-like arrangements are impermissible. It may well be that, carried out properly, supportive decisionmaking will make involuntary hospitalization and treatment an infrequent event.

unconscious patient in the absence of next of kin,” and noting that people with mental illness and severe learning disability may be treated similarly if the doctor follows “the mental health regulations relevant to these conditions”). 79 406 U.S. 715, 738-741 (1972) (holding that if a defendant is not restored to competency within a reasonable period of time the state must either civilly commit or release the individual, although noting that dismissal of criminal charges is not always required if issues of criminal responsibility can be resolved adequately). 80 SLOBOGIN, supra note 14, at 217-219. 81 Cf. Michael L. Perlin, “I Might Need a Lawyer: Could Be Your Funeral, My Trial:” Global Clinical Legal Education and the Right to Counsel in Civil Commitment Cases, 28 WASH. J. L. & SOC. POL’Y 241, 243 (2008) (asserting that “[t]he quality of counsel assigned to represent individuals who face involuntary civil commitment to psychiatric hospitals is, in most United States jurisdictions, mediocre or worse” and suggesting means of improving representation).

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VI. CONCLUSION The Convention on the Rights of People with Disability is a groundbreaking document. Taken seriously, it should revolutionize the law governing people with mental disability. Special criminal defenses based on mental disability would be eliminated, involuntary hospitalization and treatment of people with mental disability would be rare, and incompetency findings would either disappear or no longer mean automatic loss of control over personal and legal matters. In this article, I summarized arguments from my book Minding Justice that anticipated the CRPD’s stance on mental disability as it relates to deprivations of liberty and how it might be implemented in concrete terms. In the punishment context, the CRPD might require integration of mental disability defenses with traditional mens rea and affirmative defenses, assuming they are subjectively defined. In the preventive context, it might limit non-criminal preventive confinement of people with mental disability to those who are truly undeterrable because their motivations for causing harm to others make them oblivious to the dictates of the criminal law. In the protective setting, involuntary treatment and substitute decisionmaking would be permissible only for those who, despite the best efforts of supportive personnel, do not understand the risks and benefits of the decision or lack basic rationality or self-regard. Two general points about these proposals should be noted. First, they focus on thought content—one’s reasons for offending in the past or future, and one’s understanding about and reasons for a given decision—rather than on thought process—the extent to which one integrates relevant information and can engage in transitive and probabilistic thinking—or on capacity or predisposition—the extent to which one is hard-wired to act or think a certain way. Thought content is more reliably ascertained than the coherence of one’s thought process or the extent to which one is “compelled” to behave in a particular fashion. 82 A related point is that, by focusing on the extent to which the person with mental disability accurately perceives objective reality—was an offender mistaken about the identity or motivations of the victim? is he or she likely to make such mistakes in the future?, does the person understand the risks and benefits of a decision and give non-delusional, self-regarding reasons for choosing it?—these proposals minimize the extent to which legally relevant mental disability is reliant on manipulable social constructs such as appreciation of wrongfulness, volitionality, or capacity. Put another way, assessments of thought content are less susceptible than either 82

SLOBOGIN, supra note 14, at 268-270 (providing empirical evidence supporting this view).

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evaluations of thought process or predisposition to biased, discriminatory or stigmatizing interpretations that undercut self-determination. The commentary to the CRPD states that “it is essential . . . that definitions of disability in national legislation reflect an understanding of disability as a social phenomenon,” and calls for “repeal of medically-based definitions construed along types of impairments . . . .”. 83 The proposals advanced in this article are based on a close analysis of the societal rationales for punishment, prevention and protection, and implement those rationales in a way that avoids dependence on the socially-imbued vagaries of vague legal concepts or diagnoses. With the possible exception of the proposal implementing the protection model of liberty deprivation, these recommendations are very closely aligned with the intent of the CRPD. Their specificity is meant to accelerate consideration of how the CRPD might influence governments’ treatment of people with disability. In the meantime, the CRPD should be heralded as a long overdue springboard for enacting laws that do a better job protecting the dignity of people with mental disability and ensuring their equal treatment before the law.

83

U.N. Council, supra note 3, para. 36.