Rehabilitating Criminal Sexual Psychopaths

Legislative Mandates, Clinical Quandaries

Nathaniel J. Pallone

• Publisher: Routledge
• Year: 2018
• Topic: Social Sciences
• eBook ISBN:
  9781351316866
• Subtopic: Archaeology
• Index: Social Sciences

More than half the states in this country have legislation on sex offenders that distinguishes between those whose offense is incidental to other offenses ("felony" sexual offenders), and those who engage in "repetitive, habitual, or compulsive" sex offenses ("criminal sexual psychopaths"). This second category is the subject of this book.

The legislation specifies that criminal sexual psychopaths must be treated, not punished. But treatment is problematic; the literature on various approaches finds uncertainty about the effectiveness of treatment. Pallone asks the difficult question of whether there is a prospective right to effective treatment, and notes the political and ethical questions involved in potentially more effective Clockwork Orange approaches. The ethical burden on mental health clinicians is heavy; despite the fact that the category "sexual psychopath" is essentially a legal, not a psychiatric category, judges tend to follow professional recommendations as to categorization.

Pallone emerges with some surprising but convincing conclusions. If the distinction between felony and psychopathic sexual offender is essentially empty, as the profession feels it is, it should be abandoned. All criminal sexual offenders should be punished, except those who opt for treatment and who are certified by mental health professionals as likely to benefit. And for those few so identified, society should be prepared to commit significant resources to their treatment.

This speculation on the past, present, and future of criminal sexual deviation comes from a psychologists with a broad command of the literature and deep professional experience in the area. Combining a broad-ranging overview of the legal, criminological, and psychiatric literature on these questions, Rehabilitating Criminal Sexual Psychopaths raises important questions. Legal experts, criminologists, mental health professionals, and all those concerned with public policy will find it significant.

1 Both Guilty and Mentally Ill
Topography of a Twilight Zone

In the usual case, the issue of the mental health or illness of a defendant to charges of felony crime arises if and only if the defendant elects on his or her own initiative to plead not guilty by reason of insanity. Should the status of the defendant’s mental illness rise to a level that meets the legislatively-defined criteria for an insanity defense in the relevant jurisdiction [Note 1], a judicial finding reflecting that plea is entered, so that the defendant is formally declared not guilty of the felonious act, with the customary result that he or she is confined to a public mental hospital (often, a hospital “for the criminally insane”) until he or she has been declared no longer psychologically disordered, usually both by the mental health authorities responsible for treatment and by the court which declared the defendant “not guilty by reason of insanity” [Note 2]. The usual case, therefore, involves a neatly compartmentalized disjunction between mental illness (or, at the least, between mental illness serious enough to rise to the level of an insanity defense) and criminal guilt.

But, in more than half the states of the union, these neat compartments collapse under the weight of legislation governing sex offenders that implicitly creates a third, and conjunctive, category—that is, both guilty and mentally ill [Note 3].

Sexual Psychopaths as Both Guilty and Mentally Ill

In these states, the criminal codes distinguish between two categories of sex offenders: (1) those who commit sex offenses incidentally to other felony offenses (e.g., the burglar who rapes) or who are first-time sex offenders and (2) those who are identified as “repetitive, habitual, or compulsive” sex offenders. The relevant legislation typically refers to the former as felony sex offenders and the latter as criminal sexual psychopaths [Note 4].

As legal scholar Josephine Bulkley (1981, p. 92) put it in an American Bar Association review on the issue:

Sexual psychopath statutes generally define such offenders as possessing a mental condition or defect which falls short of insanity. Such persons are considered socially maladjusted or mentally disabled, but not legally insane or mentally ill so as to render them irresponsible for the criminal acts. Underlying these laws is the premise that the offender is unable to control his sexual acts because of this particular mental defect … A typical definition of a sexual psychopath [extracted from the laws of the District of Columbia] is “a person, not insane, who by a course of repeated misconduct in sexual matters has evidenced such lack of power to control his sexual impulses as to be dangerous to other persons.”

The distinction between sexual psychopathy and insanity is capital in the legal definition in several dimensions, for it creates a sort of Twilight Zone at the intersection of the law and the mental health sciences.

In the first instance, the legislation raises a priori—and not on the motion of the defendant—the issue of his or her mental health. The relevant laws customarily require examination of the accused by mental health clinicians responsible to the court prior to trial or prior to sentencing, while the laws governing the insanity defense render submission to such examination entirely volitional. Usually, there is no provision for waiver of examination, with the implication that the offender thereby voluntarily opts for what is virtually uniformly presumed to be the “harsher” penalty of sentencing as a felony sex offender.

A variety of issues related to Constitutional guarantees to privacy and against self-incrimination might seem thereby to be engaged. Nonetheless, the U.S. Supreme Court has upheld, in its Allen v. Illinois decision of 1986, the right of the state to require defendants to submit to such examination, ruling that legislatively-mandated (or, at minimum, legislatively-approbated) procedures for determining whether a particular offender should be classified as a “sexually dangerous person” in need of treatment were essentially civil rather than criminal in nature, holding therefore that plaintiff in the case “was not entitled to self-incrimination warnings prior to a court ordered psychiatric examination pursuant to the Illinois statute” (Wettstein, 1986, p. 330). Since such proceedings for determining classification as a sexual psychopath arise only within the context of adjudication of criminal charges, however, as distinguished forensic psychiatrist Paul Appelbaum (1987) has argued, one is hard pressed to understand the reasoning of the Court.

In the second and conceptually more salient instance, the legislation implicitly sorts those who commit sex offenses into three groups:

1. Those who are unable to control their behavior only in the sexual sphere and thus are “properly” classified as sexual psychopaths—that is, as both guilty and mentally ill.

2. Those who are unable to control their behavior in any sphere and thus meet the relevant legal criteria for insanity, with the result that they are exculpated from any penalty for criminal behavior—that is, those who are adjudicated as mentally ill but not guilty [Note 5].

3. Those who are neither so mentally disordered as to be classified as legally insane nor as sexually psychopathic but are “merely” guilty of felony crimes which are sexual in nature and thus are adjudicated as guilty but not mentally ill.

Differential Penalties

For those adjudicated as “felony sex offenders,” the criminal codes prescribe typical felony-style sentences, to be served in prison facilities operated by state correctional authorities, and, in the main, through minimum-maximum sentencing procedures (e.g., between 12 and 15 years, etc.). Along with other felony offenders, these offenders become eligible for parole only after serving a portion of their terms (usually, between 25% and 33% of their minimum sentences), and the criteria under which the parole decision is made are the same as apply to all punitively incarcerated inmates (e.g., “institutional adjustment”). When judicial discretion is exercised in such a way that a custodial sentence is suspended and the convicted offender is instead placed on probation, there is no particular presumption that he or she should participate in mental health treatment as a condition of such probation.

For the “criminal sexual psychopath,” however, the legislation usually prescribes confinement for mental health “treatment” in a specialized facility, operated in some states by the correctional authority but in other states by the mental health authority. Sentences are typically keyed only to maxima (e.g., not to exceed 15 years), but, peculiarly in light of what appears to be the common thread in legislative intent, in some states with judicial discretion to stipulate a “mandatory minimum.”

Differential Pathways to Release

Release from such “confinement for treatment” tends to follow legislatively and judicially established pathways for release from those institutions which are governed by the responsible authority (i.e., either the state’s psychiatric hospital authority, typically responsible to a division or department of health, or the correctional authority). When judicial discretion is exercised in these cases in such a way that a custodial sentence is suspended and the convicted offender instead placed on probation, it is customary that he or she is required to participate in mental health treatment as a condition of probation and, as a condition of release from probation, to present evidence of significant therapeutic change.

In the case of the criminal sexual psychopath confined under jurisdiction of the mental health authority, release from confinement will follow the pathways legislatively and judicially established to govern release from criminal commitments for psychiatric hospitalization. In states in which the treatment facility is controlled by the correctional authority, release will follow the pathway established for the granting of parole, typically with some unusual inflections. In such cases, parole is customarily granted only upon satisfaction of clinical criteria that the offender is “cured” or “no longer presents a danger to society,” and the parole process may be a three-stage affair, involving review by institutional staff, by a panel of extra-institutional mental health experts who constitute a clinical “dangerousness review” or “pre-parole” board, and by the state parole authority. For these offenders, there is no presumptive right to parole, with all the Fourteenth Amendment guarantees associated therewith. Similarly, release from probation for those offenders for whom mental health treatment has been imposed as a condition will pivot upon demonstration that such treatment has been so effective as to yield “cure” or to render the offender no longer a threat to society.

Clinically Esoteric Inclusionary Criteria

Inclusionary criteria, particularly as applied to offenders who are categorized as “compulsive” rather than as habitual or repetitive (that is, those for whom such categorization is predicated on mental health assessment rather than on a review of prior criminal record alone), often tend to be clinically esoteric, indeed perhaps sufficiently so as to give rise to questions about “due process.”

Yet, while the relevant legislation has been repeatedly questioned in various jurisdictions, from Miller v. Overholser in 1953 onward, a variety of judicial decisions have constrained but maintained the rectitude of legislatively-prescribed and judicially-imposed mental health treatment for one class of sex offender.

Notes

1. The M’Naghten Rule has long been precedental in determining criminal culpability in nations which follow British common law. Promulgated in the decision of an English court in 1843 (and doubtless influenced by the views of Joseph Pritchard, an English physician who had earlier invented a mental illness he termed “moral insanity” to explain criminal behavior), in a case in which the secretary to a cabinet officer was murdered by a disappointed office seeker who declared that he had been commanded by God to kill the Prime Minister, the M’Naghten Rule holds that legal culpability attaches to an otherwise criminal act only when the behaver knows in advance that the contemplated behavior counters moral principle and/or positive law and when he or she is free to choose to behave or not to behave. As the editors of an important monograph commissioned by the Royal College of Psychiatrists (West & Walk, 1977, p.1) put it: “If an offender knew that what he was doing was wrong, he was legally sane and subject to punishment.” Thus, under M’Naghten, a person who is incapable of distinguishing “wrong” from “right” is not to be held legally culpable. On this side of the Atlantic, two cases in the last quarter of the last century (Parsons v. the State of Alabama, adjudicated in 1887, and Davis v. United States, adjudicated a decade later) added the “irresistible impulse” test, which exculpates a person who is incapable of resisting an impulse propelling him or her to a wrong or legally criminal act (Stone, 1976, p. 229). In 1954, the U.S. District Court for the District of Columbia specifically included prior mental illness in the catalog of acceptable justifications for a claim of nonculpability under M’Naghten by holding that “an accused is not criminally responsible if his unlawful act was the product of mental disease.” Following the name of the defendant (Durham) and the presiding justice (Bazelon) in the case, the resultant principle is called the Durham Test or the Bazelon Rule.

Over the course of nearly a century and a half, a variety of other justifications have been accepted by the courts under M’Naghten to explain either the incapacity to distinguish right from wrong or the incapacity to resist the impulse to behave criminally, including intellectual deficiency and even habitual criminal behavior itself (Rogers, 1986, pp. 39–90). Hence, in its model penal code, the American Law Institute proposed a more comprehensive statement such that “A person is not responsible for criminal conduct if, at the time of such conduct, as a result of mental disease or defect he lacks substantial capacity either to appreciate the criminality of his conduct or to conform his conduct to the requirement of law. [But] the terms ‘mental disease or defect’ do not include an abnormality manifested only by repeated criminal or otherwise antisocial conduct” (Stone, 1976, p. 230). That formulation, or a close variant, has by now been legislatively adopted in most states, both as the legal definition of insanity and as part of a catalog of “mitigating factors,” the presence of which may not exculpate an alleged offender but influences the severity of the sanction imposed upon conviction. Other mitigating factors may include such variables as the influence of mood-altering drugs or alcohol, the prior relationship between the victim and the alleged offender, whether the victim in some way invited or colluded in his or her own victimization, etc. A litany of mitigating factors may be offset by “aggravating factors,” such as the degree of demonstrable premeditation, whether the allegedly criminal act was performed during the commission of another criminal act, etc. Predictably, expert witnesses for the defense tend to find evidence of insanity or of mitigating factors, while expert witnesses for the prosecution typically fail to find such evidence, so that closely contested trials sometimes resemble three-ring circuses abounding with conflicting testimony. Such was the case in the trial of John Hinckley after his attempt to assassinate Ronald Reagan, and the press coverage of this aspect of the Hinckley trial served to underscore emphatically deep divisions in the mental health community (Stone, 1984). Virtually as a direct result of the Hinckley trial, or at least of the press reports thereof, the American Psychiatric Association (1984) issued a statement on the insanity defense that in essence endorsed the American Law Institute definition but added the important contingencies that “the terms mental disease or mental retardation include only those severely abnormal mental conditions that grossly and demonstrably impair a person’s perception or understanding of reality and that are not attributable primarily to the voluntary ingestion of alcohol or other psychoactive substances.”

Whatever the terms of the conceptual debate, it is the M’Naghten Rule and the Durham Test or their close variants that are reflected in positive law, and these defenses may be invoked only in cases in which an accused pleads “not guilty by reason of insanity” in accordance with the legal definition of insanity promulgated in specific jurisdictions (i.e., the several states and the Federal court system). Like criminality, however, insanity is fundamentally a legal rather than a psychological or psychiatric construct; its meaning, even in the world of criminal law and adjudication, is essentially vague but generally held to imply the incapacity to distinguish right from wrong, whether under terms of positive law or those of a pristine moral code.

The closest analogue one finds to insanity as a legal construct in the lexicon of psychology and psychiatry is the term psychopathic deviation, included in the first edition (1952) of the American Psychiatric Association’s Diagnostic and Statistical Manual of Mental Disorders as a mental illness clearly reminiscent of Pritchard’s formulation, but excluded from the roster of mental illnesses in the second (1968), third (1980), and “third-revised” (1987) editions. But the analogue largely begged the question by providing essentially only a circular definition, in which insanity was defined by psychopathic deviation and psychopathic deviation by insanity. The Third Edition’s successor term, anti-social personality disorder, appropriately avoids notions like the incapacity to form moral judgments in favor of a focus on patterns of socially responsible and irresponsible behavior. Yet the only readily discernible empirical referent in these varying terms is likely a generalized tendency to underestimate the costs and risks, both for the behaver and for others aff...

Table of contents

• Cover
• Half Title
• Title Page
• Copyright Page
• Table of Contents
• Preface
• 1 Both Guilty and Mentally Ill: Topography of a Twilight Zone
• 2 The Legislative Basis: Genesis of a Twilight Zone
• 3 Criminally Deviant Sexual Behavior: Incidence and Sequelae
• 4 Clinical Inclusionary Criteria and Their Uncertain Application
• 5 Standard and Aggressive Methods of Treatment and Their Legal Constraints
• 6 Exits: Differential Criteria and Pathways for Release
• 7 Reprise: The Clinical Quandaries Revisited
• References
• Index