Psychiatric Annals

COMMENTARY

Howard P Rome, MD

Abstract

The Editors of Psychiatric Annals feel privileged to devote the next two issues to Professor L. E. Becker's monograph, Durham Revisited: Psychiatry and tlic Problem of Crime. Professor Becker's scholarly dissection of the varied perceptions and interpretations of the insanity defense is a discussion of global dimensions. Its historicophilosophical origins are reflected in his critique of the M'Nagliten Test and highlighted in M'Nagliten's modern derivatives as rendered by the D. C. Circuit Court of Appeals, from Durham in 1954 to Brawncr in 1972.

From its beginning, society has struggled with the many and complex problems of deviance: the entire gamut of non-conforming behaviors. They not only have cried out for definition and logical explanation but also hopefully for an equitable solution which would satisfy the canons of justice. As the Book of Common Prayer has it in its prayer for social justice: ". . . that we may reverently use our freedom, help us to employ it in the maintenance of justice among men and nations." Our times, no less than times past, have conjured particularly with the pivotal question of responsibility for the predatory consequences of criminal behavior as formulated by a variety of judicial tests which have been accepted in their time as the legal litmus by which "justice" is rendered.

The climate of the times always has been a powerful social force in shaping the prevailing attitudes and beliefs concerning right and wrong. When issues of wrong-doing were no longer adjudicated as being sinful, and hence the proper concern of ecclesiastical decisions, it fell to the lot of psychiatry to assume the then-vacated role. Until the 16th century, theological propositions were assumed to be self-evident. Subsequent to that time, they needed authority and witnesses as guarantees against a burgeoning lack of immediate self-evidence.

Chief Judge David Bazelon of the U.S. Court of Appeals for the District of Columbia Circuit has diligently addressed himself to the charge of monitoring the decisional process. He visualized this responsibility "as offering one small window into the complex world of human behavior- a unique chance for society to be exposed to what makes us work- or 'tick'- and to begin to understand, perhaps, the criminal behavior which has become so threatening to all of us, or even something about our own behavior."

In abandoning Durham, the Court of Appeals for the District of Columbia in Brawner adopted a minor variant of the American Law Institute Test. Judge Bazelon is the recognized primus inter pares in the Court's many decisions attempting to explicate its historic Durham rule. On April 19, 1973, Judge Bazelon presented a critique of psychiatry's courtroom performance in his Helen Ross Lecture sponsored by the Chicago Institute for Psychoanalysis. Inasmuch as his subject "Psychiatry and Conflict" is itself an extended gloss on the anomaly of psychiatry's preachments vis-a-vis its practices in the courtroom, it serves as yet another retrospective analysis of Durham- à timely exegetical addendum to Professor Becker's essay.

It was Judge Bazelon's high hope that "the decision-makers in psychiatry would willingly open up the reservoirs of their knowledge in the courtroom, and this knowledge would have a significant impact on the factfinding and value-judging tasks of the law." However, the ". . . psychiatrists in court quickly adopted a protective and defensive stance. They refused to submit their opinions to the scrutiny which the adversary process demands." Professor Becker sees an instance of this as an example of semantic confounding; he writes of the ambiguity of psychiatric diagnoses: ". . . the psychiatrists believed that they were using a legal term, with a well-understood legal meaning; and the…

The Editors of Psychiatric Annals feel privileged to devote the next two issues to Professor L. E. Becker's monograph, Durham Revisited: Psychiatry and tlic Problem of Crime. Professor Becker's scholarly dissection of the varied perceptions and interpretations of the insanity defense is a discussion of global dimensions. Its historicophilosophical origins are reflected in his critique of the M'Nagliten Test and highlighted in M'Nagliten's modern derivatives as rendered by the D. C. Circuit Court of Appeals, from Durham in 1954 to Brawncr in 1972.

From its beginning, society has struggled with the many and complex problems of deviance: the entire gamut of non-conforming behaviors. They not only have cried out for definition and logical explanation but also hopefully for an equitable solution which would satisfy the canons of justice. As the Book of Common Prayer has it in its prayer for social justice: ". . . that we may reverently use our freedom, help us to employ it in the maintenance of justice among men and nations." Our times, no less than times past, have conjured particularly with the pivotal question of responsibility for the predatory consequences of criminal behavior as formulated by a variety of judicial tests which have been accepted in their time as the legal litmus by which "justice" is rendered.

The climate of the times always has been a powerful social force in shaping the prevailing attitudes and beliefs concerning right and wrong. When issues of wrong-doing were no longer adjudicated as being sinful, and hence the proper concern of ecclesiastical decisions, it fell to the lot of psychiatry to assume the then-vacated role. Until the 16th century, theological propositions were assumed to be self-evident. Subsequent to that time, they needed authority and witnesses as guarantees against a burgeoning lack of immediate self-evidence.

Chief Judge David Bazelon of the U.S. Court of Appeals for the District of Columbia Circuit has diligently addressed himself to the charge of monitoring the decisional process. He visualized this responsibility "as offering one small window into the complex world of human behavior- a unique chance for society to be exposed to what makes us work- or 'tick'- and to begin to understand, perhaps, the criminal behavior which has become so threatening to all of us, or even something about our own behavior."

In abandoning Durham, the Court of Appeals for the District of Columbia in Brawner adopted a minor variant of the American Law Institute Test. Judge Bazelon is the recognized primus inter pares in the Court's many decisions attempting to explicate its historic Durham rule. On April 19, 1973, Judge Bazelon presented a critique of psychiatry's courtroom performance in his Helen Ross Lecture sponsored by the Chicago Institute for Psychoanalysis. Inasmuch as his subject "Psychiatry and Conflict" is itself an extended gloss on the anomaly of psychiatry's preachments vis-a-vis its practices in the courtroom, it serves as yet another retrospective analysis of Durham- à timely exegetical addendum to Professor Becker's essay.

It was Judge Bazelon's high hope that "the decision-makers in psychiatry would willingly open up the reservoirs of their knowledge in the courtroom, and this knowledge would have a significant impact on the factfinding and value-judging tasks of the law." However, the ". . . psychiatrists in court quickly adopted a protective and defensive stance. They refused to submit their opinions to the scrutiny which the adversary process demands." Professor Becker sees an instance of this as an example of semantic confounding; he writes of the ambiguity of psychiatric diagnoses: ". . . the psychiatrists believed that they were using a legal term, with a well-understood legal meaning; and the lawyers believed that they were using a medical term, with a well-understood medical content."

The Judge contends that, however well-intentioned, it is not within psychiatry's scope of professional competence in the courtroom to arrogate to itself the role of social moralist: ". . . the issue of moral responsibility . . . should be left to the jury . . . psychiatrists should be allowed to address the issue of responsibility in terms relevant to their medical discipline." The Judge continues, in a discussion of the adversary process, it "is only part of the complex system of legal institutions which have been chosen by our society to resolve the private and public controversies which rage between opposing forces, values and ideologies. The adversary process does not create adversity, by which I mean opposition and conflict. It is merely the decisional mechanism for resolving it. A court MiZiSf make decisions, with or without sufficient information or wisdom. Thus we have an awesome awareness of the great risk of rendering imperfect decisions. The law resolves both factual and value conflicts. To find facts, we rely on an exhaustive inquiry in which adversary roles are assigned to reflect the reality of the underlying dispute. Parties and counsels must make the best possible case for themselves; and must check and correct their adversaries' material. Specific rules have been developed to make this system both skeptical and objective. These rules presuppose that men are biased; that their testimony and opinions are inevitably shaped by their backgrounds, personalities, interests and values. Cross-examination challenges witnesses for their veracity, accuracy and bias. Steps are taken to select fact-finders, the jury members, who are impartial. The legal profession is expected to be sensitive to its own conflicts of interest and to make sure that counsel does not serve more than one master. . . . The adversary process is the mechanism we have carefully chosen, and now rely upon, to uncover as many of the relevant facts as possible. ... In this task, the common law does not seek final solutions. It recognizes the ongoing nature of deeprooted conflicts. A judge reviews and develops criteria for resolving each case as it comes. The criteria are made known to the public in written opinions; the competing values are ventilated. Consequently, the solutions are never fixed or frozen because they can be altered in response to new information, new understanding, or new public demands. Law does not provide a wisdom unto itself. It suggests a method for seeking wisdom. The adversary process is thus a metaphor for what I take to be the hallmark of my world; the recognition that adversity and the conflicts which flow from it exist, and must be treated as such."

After briefly reviewing the standstill on the issue of criminal responsibility in the early 1950s and the objection to the traditional legal test which limited psychiatric testimony to the cognitive capacities of the individual as being the sole determinant of his conduct, psychiatrists, according to the Judge's thesis, "publicly claim that, if the law would let them, they could give a more adequate account of psychic realities and present a vast array of scientific knowledge.... The law recognizes that the question of guilt or innocence is essentially a moral one. I believe that morality cannot be determined solely by abstract philosophic principles, without the facts which generate human behavior in the real world. To obtain these facts, in 1954, I [Judge Bazelon continues] formulated a new test of criminal responsibility in the Duriiam case. That case held that an accused is not criminally responsible if his unlawful act was the product of a mental disease or defect. Durham was not based on the belief that psychiatrists knew everything there was to know about behavior. Its announced purpose was to unfreeze what knowledge they did have, to irrigate a field parched by lack of information, and to restore to the jury's traditional function of applying Our inherited ideas of moral responsibility' to those accused of crime.

"Psychiatrists continue to use conelusory labels without explaining the origin, development, or manifestations of a disease in terms meaningful to the jury. So perhaps they were not entitled to the deference Gregory ZiIboorg thought was due them. A war of words began to be waged in the courtroom. Psychiatrists argued about whether a defendant had a 'personality defect,' a 'personality problem,' a 'personality disorder/ a 'disease,' an 'illness,' or simply a 'type of personality.' How could a jury make any sense out of this?

"Even more disturbing was the fact that psychiatrists began to speak conclusively to the question of whether the criminal act was the product of mental disorder. The term 'product' had no more clinical significance for psychiatrists than the 'right or wrong' test. As a result, we were back where we had started. What the psychiatrist had apparently never been able to understand is that conclusory labels and opinions are no substitute for facts derived from disciplined investigation. Although the law seeks an 'educated guess' that guess is only as good as the investigation, the facts, and the reasoning that underlies it. It seems quite apparent to me now that the overall sterility of psychiatry's response to the Durham Rule was due to the fact that it had made the doctor's courtroom role much tougher than ever before .... Psychiatrists refused, for example, to talk in public about the very real factors which impeded the kind of psychiatric investigation Durham had contemplated .... I favored the abandonment of Durham in order to expand the range of information pertinent to an accused's behavior to include physiological, emotional, social, and cultural factors .... [However] the profession assumed such a protective stance that the purpose of Durham was thwarted .... Organized psychiatry was apparently panicked by the idea that standards might be applied by a court to define or appraise treatment. The party line became that no one except a medical expert had any business assessing the quality of psychiatric care. The A. P.A. ignored the overt message in Rouse that a reviewing Court's job is not to assess the quality of anyone's performance, unless it is patently arbitrary and capricious. As in all of administrative law, the Court's task is to ensure that the administrative process itself controls the abuse of discretion; that a factual record be established; that alternatives be considered; and that reasons for decisions be set forth .... [Hence] it would appear that psychiatry was covering up more than the gaps in its knowledge. It was trying to conceal the conflicts between the imposition of treatment and the human and civil rights of patients. For the most part, professionals follow the line that there is no conflict, because medical decisions are by definition made in the best interests of the patient. If a doctor says a man is sick, he must be sick. If a doctor says he should be treated, or confined, or punished, it must be in his best interests because he is sick.

"First of all, when I speak of 'psychiatrists/ I am well aware that the profession is not a tightly-run business. It is rather a conglomerate- with interests sprawling all over the map. Most of my judicial experiences have not involved the psychiatrist in his research lab or in his private practicewhere a happy mutuality of interests between the doctor and the voluntary patient is assumed. It is not my intention to challenge that assumption about private practice. But in the public sector, the adversity of interests which confronts psychiatrists must be recognized as a crucial problem for your profession .... I learn that psychiatric opinions are influenced by the public outcry for 'Law and Order' and by personal fears for safety. In some hospitals, shortages of bed space and manpower override medical considerations; in V. A. hospitals, the need to fill empty beds produces the opposite results among voluntary patients. I have even been told psychiatrists believe they are justified in fudging their testimony on 'dangerousness' if they are convinced that an individual is too sick to know that he needs help. What is most disturbing about these situations is not that psychiatric motives are venal, or that conflicting societal interests may dictate different results -we are used to that in the law. But it is frightening that psychiatrists don't bring these conflicts out into the open. Failure to do so fatally infects the decisional process. It takes serious legal and public challenges to bring to light the 'hidden agendas' on which psychiatrists operate. For example, recent efforts to test the experts' ability to predict dangerous behavior have met with extreme resistance. Make no mistake- society was glad to throw this particular problem, like a hot potato, into the collective psychiatric lap. But it is also distressing to think that many psychiatrists so readily accepted the delegation of such power without first determining whether their knowledge and skills were up to it- and now are trapped into pretending the potato isn't very hot.

"The more I thought about the hidden agendas behind psychiatric decision-making, the more I felt that the conflicts faced by the psychiatrist in the public sector must be acknowledged. Otherwise, they would gnaw away at the roots of the profession's dignity and the public's trust .... indeed, whenever psychiatrists enter the public sector to apply their knowledge at the request of public and social institutions-the military, state hospitals, penal institutions to name only a few -they inevitably face conflicts between the therapeutic interests of their patients and the 'institutional' interests of their employers. I also suspect that these conflicts are not resolved by their medical training or the Hippocratic Oath.

"Challenging an expert, and questioning his expertise, is the life blood of our legal system, whether it is a psychiatrist discussing mental disturbance; a physicist testifying on the environmental impact of a nuclear power plant; or a General Motors executive insisting on the impossibility of meeting Federal auto pollution standards by 1975. It is the only way a judge or jury can decide who to trust.

"I have always believed that the process of testing expert opinion must start from within. The law even has a standard stack of tools to recommend. First- open up your decisions and make them public, if only to your colleagues. Record your staff conferences, keep your files. Initiate communication between yourselves by calling a second or a third decisionmaker to advise you on crucial issues. When institutional issues come into play, take note of them- talk about them. Only then can you establish tentative criteria- if only for yourself -for resolving them. Like judicial precedence, these criteria will be flexible if they are out in the open. They will be useful if they are tested. They will approach wisdom if they are incorporated into the learning process.

"The longer psychiatry keeps its doors closed the greater will be the intensity of the public's suspicions and distrust. Outsider critics will not leave the profession much breathing space, and may seek to impose controls which go beyond what is necessary. This cannot be blamed on public hostility. It will be the inevitable product of a lack of complete information and communication. It is about time we all understood that the Age of Mystique is almost over."

We have quoted liberally from Judge Bazelon's paper, with his permission, because we feel that his own words are a most fitting envoi to Durham.

10.3928/0048-5713-19730801-03

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