The lynchpin of law in Western society is the assumption of innocence unless proven guilty. Given that crimes and people are not purely objective in a social sense but rather dynamic in nature, it is essential that a justice system evaluates every aspect of an action, including one’s mental state. Under these circumstances, courts have been flooded with cases of offenders who have attributed their crimes on the basis of mental illness rather than rational decision. In response, the legislation has been ever-changing in order to cater to those with psychological impairment but has generally neglected those who commit offences due to social issues and illness – social psychiatry. From whence raises the question: If courts grant mitigation to sufferers of mental illness on the basis that it alters rational decision, why has it neglected the severity of social issues which could also potentially nullify rational decision? In this paper, it will be demonstrated that in order for the North American legal system to be logically consistent, it must not only consider those who suffer from psychological illness of the mind, but seek to expand their scope to encompass those who suffer from an altered state of mind due to social psychiatric diseases and issues. Therefore, it would be wise to devise a separate system of law which targets solely those who do not fit the rational actor model of criminological explanation but rather acted purely due to mind-altering illness. The three most focal reasons which should demand for a reform in the judicial system are: 1) It is pointless, particularly from a utilitarian perspective, to punish irrational offenders who suffer from diseases of the mind which renders their judgment nil; 2) In terms of human rights and fairness, punishing those incapable of rational and conscious decision making is unjust and a contradiction to retributivist principle; 3) By considering social causes of crimes we can locate the root causes of criminality, rather than masking crime through incapacitation and other forms of punishments.
The idea of not criminally responsible (NCR) as a result of a disease of the mind had appeared in a plethora number of cases throughout the history of Western judicial system. The Wild Beast Test, developed in the early 18th century, was used to determine whether the accused was so frenzied in a way that they are as responsible for their actions as a wild beast. This test was challenged in the Hadfield case where the lawyer stated that although someone acted purposefully, the court should not neglect the insanity and that partial insanity should also be valid as a factor in determining insanity. Over a century later, in 1843, the M’Naghten rule was created in the UK outlining conditions that must be met in order for an offender to be granted the status of NCR. These conditions would live on and form the basis of North American judicial system in respect to insanity. Despite certain minor alterations, the M’Naghten Test remains largely unaltered in Canada. In the US, however, the Irresistible Impulse test is created to excuse those who fail the third condition of the M’Naghten rule, particularly those who perceive themselves as omnipotent and similar delusions (Watson, 2013). The question then arises, why stop at defects of the brain? What about those who live in deteriorated neighbourhoods characterized by unconventional culture and behaviour, should they be exonerated too? At this point, a perspective of eminent importance relating to these problems should be introduced, social psychiatry. Social psychiatry can be defined simply as the “study of the relationships between health phenomena and social factors and contexts” (Watt, 1981, p.88). In his essay, “Health as a Social Concept”, Sir Aubrey Lewis argues that the notion of wellbeing and function is sociological in nature. A plethora of social factors may impact a person’s mental health, including employment, ecological location, and social class. Certain social attributes may hinder or nullify people’s abilities to align their own perception of social role with the society’s perception (Watt, 1981, p.89). In a sense, certain individuals are not committing crime for the sole purpose of intentionally hurting others but rather as a way of fitting into society. Individuals may be very well suffering from strain, where a combination of unfavourable social circumstances prevents individuals from achieving goals through conventional means. Those who commit these categories of crimes may seem rational in a psychological or social sense, but not in a traditional legal sense.
Certain groups of individuals commit crime as a way of rebellion against a system of government who had overlooked them. These individuals are more likely to commit economical crimes, e.g. prostitution, drug dealing, as a way of making a living in a social environment absent of conventional means of job availability. The main focus of utilitarian forms of punishment is to weigh the utility of punishing and disutility of non-punishing (McCloskey, 1967, p. 100). Furthermore, the utility function of punishment is further divided into deterrent and reformatory (Moser, 1957, p. 16). From this perspective, punishing individuals who are insane or compelled to act due to social circumstances would not serve any real purposes and there are no beneficiaries of imposed punishment. Timothy Sprigge, a utilitarian of UK origin, stated that general deterrence would have zero effect by punishing those who are deemed insane (McCloskey, 1967, p. 97). Individuals growing up in a neighbourhood characterized by physical, educational, and social deterioration may perceive illegal activities as their only means of survival. These people would be categorized by Cohen as innovationists who lack means of achieving conventional goals in life (Kruttschnitt, 2013). After a prison sentence, for instance, the offender is highly likely to return to their previous illegal means of activities as they see no alternatives. Consequently, both the general and specific deterrent effect would be nullified. In order to shed light on a different aspect of the same issue, attempts have been made to categorize crimes into Mala Prohibita and Mala in Se. As defined by Black’s Law Dictionary, Mala Prohibita is simply offences that are labelled wrong because it is prohibited by law and not due to any inherent immoralities (Davis, 2006, p. 271). Prostitution and drug dealing are not universally recognized as immoral as they have been legalized in certain Western regions, e.g. prostitution in Nebraska and marijuana in Amsterdam. There had been a long history of battling with drugs including alcohol and marijuana, the former is now completely legal while the latter is becoming more and more accepted as a social drug. A similar campaign against prostitution is also taking place this very moment in Canada, and the fact that this issue is not blatantly right or wrong is stirring up arguments from both sides. On the contrary, Mala in Se crimes have never been the subject of controversy as there exists a fairly standard consensus that these acts qualify as bona fide criminality (Davis, 2006, p.271). These inherently immoral and evil crimes are typically extremely heinous and violent, including murder and rape. Incapacitation, deterrence, rehabilitation, and restoration are all methods of utilitarian penal sanctions which mainly target Mala in Se crimes, and rarely focus on Mala Prohibita offences (Davis, 2006, 284-285). From a utilitarian perspective, crimes including prostitution are not detrimental to the greater society and one may even argue that they are beneficial to the society in terms of economic gains as well as becoming a source of revenue for disadvantaged to make a living. Instead, the penal system should focus on those whose acts are pernicious in nature and not trivial crimes. However, the line is drawn at those who require necessities and those who wish for luxuries. It would be understandable for people to acquire currency for the purposes of housing, food, water, and clothing through illegal means, but those who commit crimes beyond necessities and thrive for a posh lifestyle are no longer qualified as acting on an irrational instinct for survival and would be treated in a regular criminal system. Lack of necessity is a sociological illness in the sense that it will cause physical and psychological harm as well as compelling a person to act.
A complete opposing sociology of punishment would also find faults in punishing those who did not commit crimes rationally in a legal sense. Retributivist ideologies are founded on an essential principle, the idea that only those who rationally committed crimes should be punished. Although it could be argued that those who suffer deprivation of necessity did not commit crime as a result of direct psychological impairment, their actions could be perceived as unavoidable. Common sense would dictate that there is no point in punishing someone whose action is being perceived as unavoidable (Moser, 1957, pg. 18). Retributivism is the perspective where people are being punished purely on that idea that they deserve to be punished. In this sense, punishment is justified based on the perception that the people who are being punished deserved it (McCloskey, 1967, p. 102; Moore, 1993, p.15). An important question then emanates – “Do people who suffer from disadvantages of socio-economic and educational opportunities deserving of punishment when they innovate alternative means of survival. The answer is no. People cannot logically believe that those who live in disadvantaged conditions and opportunities would simply accept their fate at the bottom of the social hierarchy. Moore would emphasis this idea in his distinction of culpability and wrongdoing. He states that a person who killed an innocent may be wrong in the sense of the action, but might not be necessarily culpable due to mental illness or extreme duress. Culpability, as defined by Moore, “… arises from the mental state with which an action may be done, and the (lack of) excuse for the otherwise culpable of a wrongful action” (Moore, 1993, p.30). In application, those who commit crimes for economical means may be wrong in the sense that a wrongful act is being committed, but these individuals are not culpable in the sense that there exists a legitimate excuse of acquiring necessities for survival. All forms of punishments could potentially be devastating, and by targeting individuals who are not responsible for their actions it is extremely harmful and detrimental. If the criminal system is truly as advocated, one which promotes fairness, justice, and equality, then those who suffer from a deprived availability of conventional means of succession should be allowed to profit from more deviant, though not necessarily criminal, channels of revenue.
In the traditional legal system, there had always been a general yet unspoken consensus that criminals should be punished for their actions, and it is this idea that crippled our capacity to locate the origin of criminality. By considering social causes of crimes, we can locate the roots of criminality, rather than masking it through incapacitation and other forms of punishment. By placing a large number of prisoners behind bars, the judicial system displays a façade of false security to persuade the general public that they are safer than they truly are. This disguise of security is, in essence, the same as a chronic disease patient consuming pain killers, the pain killers themselves do not treat the ailment but simply hide the symptoms of the disease, and therefore it would be unwise for medical experts to simply douse a patient with pain killers instead of treating the actual disease. The disease, in this scenario, is criminality and the focus of judicial system should be shifted towards locating, understanding, and tackling social issues which have constantly generated the assumption that individuals of lower socio-economic status have a stronger disposition towards committing crime. Although police activity is crucial, its importance as a crime prevention agency is dwarfed by that of community organizations (Bennett, 1995, p. 73). Crime statistics had shown that one of the most law abiding groups, black middle-aged working class females, have strong distrust of the law enforcement as a result of disproportionate police prosecution of young black males. This lack of communication and transferring of information would cause the police to continuously and arbitrarily detain, search, and arrest young black males which would further fuel the confrontation between certain minorities and the system (Jenkins, 1991, p. 18-19). The most appropriate and beneficial method of breaking this cycle while solving the deep rooted issue of criminality is by deploying community organizations. Community organizations are powerful in that they tackle the social causes of crimes, including renovating physical environment, improving the economic structure, and creating social programs for community participation. As a result of a multitude of different social structures, communities are much better equipped in dealing with delinquency and crime than a single law enforcement agency (Bennett, 1995, p. 76). In a more abstract context, it is not the criminalities that cause tears in the social fabric, but rather the tears in social fabric, including discrimination and lack of opportunity, which cause criminalities. Therefore, if people truly desire a society of absolute conformity, then the social causes of crimes must be uncovered and dealt with.
The issue of NCR as a result of insanity had reached a fairly general consensus that those who suffer from the disease of the mind should not be prosecuted for crimes they committed. However, those who suffer from sociological disease of the mind are often neglected. Low socio-economic groups who often commit crimes as means of survival should also be considered as sufferers of sociological disease of the mind, as they are being compelled to commit crime due to social circumstances and not rational in a traditional legal sense. These issues should be the focus of the criminal justice system for several reasons: It is useless to punish offenders who are perceived as irrational from a utilitarian perspective; punishing those who do not necessarily deserve punishment contradicts retributivist principle; considering social causes of crime is more beneficial in tackling root causes of crime rather than simply locking up prisoners which only solve problems on a face value.
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