2.7 The Best and Worst of Times

Book Two / 7

Throughout the twentieth century, the courts’ decisions on the insanity defense would conflict and resolve both within and between jurisdictions as each decade passed.  With hindsight one can track in the trajectory of the conflict the country’s political, economic, and demographic developments of each era.

Though fairly stable in the first half of the twentieth century, debate on the insanity defense would gain traction in the post-war decades of the 1940s and ‘50s.  The country’s economy grew rapidly in those years, and the government began to distribute more broadly the vast wealth being created.  With this new economic stability the developing middle class could afford to perceive itself as more socially generous, more willing to examine injustices that had excluded many individuals and communities from the full benefits of civil and human rights.

The legal debate on the insanity defense continued into the socially expansive decades of the ‘60s and ‘70s; some of the most far-reaching philosophical discussions on related humanitarian concerns appear in the judicial opinions of those years.  With the onset of the 1980s, however, the courts’ steady improvements on the rules governing the defense slowed pace.  Industrial profits had begun to recede in the ‘70s as the easy wealth of the post-war years was challenged by emerging economies abroad.  In response to those developments, new international trade agreements were drafted and ratified, and their implementation began a steady loss of domestic jobs to cheaper labor markets overseas.  The middle class was to be shaken apart by these changes, and the first shudders were felt in these early years.

As the 1970s were drawing to a close, President Carter signed into law the Mental Health Systems Act, federal legislation that increased federal funding and support for community mental health services.  But then, in 1980, Ronald Reagan was elected president.  In keeping with the new federalism, he rescinded that Act and revoked the federal government’s support for state mental health programs.  Financial responsibility for community-based mental health services was shifted to the states.

At the same time a new federal tax code began to reduce other forms of revenue available to the states.  Making matters worse, states came under pressure to lower their own corporate taxes in order to compete against one another for the business of corporations threatening to outsource production to other countries.  With each passing year their revenue streams were running more shallow.

As states’ revenues decreased, so decreased their funding of state mental hospitals as well as the community mental health clinics established to assist individuals released from the hospitals.  And as the community clinics closed, their clients — those individuals abruptly deinstitutionalized from state hospitals, the homeless, chemically addicted, mentally ill and abused — were dropped from meaningful government assistance.  Inevitably they would be picked up, so to speak, by the police.

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Throughout the ‘80s and ‘90s the nation’s economy continued its painful integration into the global economy.  Much as the states had been forced to compete for the presence of corporations by lowering corporate taxes, now whole countries were competing by stifling unions and depressing the wages of their workers.  Entire categories of jobs were exported from the United States to other countries and continents.  New categories had emerged in the information economy, but the wealth created by that sector was less broadly — and more unequally — distributed, and it benefited fewer workers than it did in the vanishing manufacturing sector.

As the modern global economy developed and domestic corporations moved their manufacturing abroad, employment stability and the concept of broadly shared wealth began to recede.  With the increase in income and resource inequality came an increase in crime.  News programs and television dramas about crime became profitable and more prolific, and the perception of personal and financial security in the largely white middle class began to erode.

Many felt less generous, less willing to consider broader social concerns.  In place of generosity came an acceptance of solutions to crime that were easy to understand and made us feel safer, including increased arrests and lengthy terms of incarceration.  As the years passed, the targets of the efforts of police and prosecutors were increasingly the poor and unemployed, young black men, and the mentally ill homeless.

The states’ courts of general jurisdiction — where the majority of felony criminal offenses are charged and prosecuted — were experiencing the new reality of shrinking budgets, along with an ever-expanding demand upon their resources.  The demand had picked up in the 1980s as a result of President Reagan’s “war on drugs.”  It then refueled and picked up speed with President Clinton’s 1994 crime control act and the so-called war on crime.  Both wars were waged in an era that could be described by the earlier, mid-century observation of Supreme Court Justice Felix Frankfurter as one of “those emotional storms which on occasion sweep over our people.”

By the late 1980s public and commercial discourse had finished its shift in support of the policies of the ‘Reagan Revolution.’  Demand for the government’s fiscal austerity had replaced demand for its social responsibility.  And with this popular shift in discourse toward the ethic of personal rather than social responsibility, the deliberative, searching tone disappeared from the judicial discussion of mentally ill defendants in court.

Finally, by the end of the twentieth century, very few communities in the United States were in the mood or the money to experiment with new methods of preventing and treating either mental illness or drug addiction, despite the proliferation of both on our cities’ streets and sidewalks.

The new century would be inaugurated by two momentous events that would in no way alter our mood or increase our governments’ revenue:  the 2001 tax cuts of President Bush, and the attacks on the World Trade Center that same year.  The attacks on the Trade Center justified an expensive foreign war — diverting even more money away from domestic needs — and renewed our fear for national and personal security.  At the same time, tax cuts created a powerful new mechanism for increasing the flow of income distribution to those at the top, reducing the resources with which governments could assist with the treatment of mentally ill individuals.

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The work of trial courts through those years reflected the country’s broader approach to crimes caused by economic instability and the growing numbers of mentally ill and addicted offenders.  As the number of mentally ill defendants grew, so grew the sub-category of those whose illness instilled in them a paranoia toward everyone associated with law enforcement and the courts.  Predictably, the paranoia was often accompanied by a related sense of the defendants’ own grandiosity.  Feeling persecuted yet powerful, these defendants could refuse assistance of counsel, and forcefully assert their right to represent themselves in court.

In the position of trying cases in which defendants were both mentally ill and without an attorney, the trial courts — with their own staff diminished by cuts to government budgets —  were forced to step into each of the other support roles that no longer existed.

  • The courts became the defendant’s community mental health program.
  • They became the defendant’s family that had been alienated by the same manipulation from the defendant that the court now had constantly to control.
  • They became the defendant’s home, a resource otherwise unavailable to these individuals outside of the judicial system and its detention facilities.
  • The courts became the defendant’s psychologist, and the jails became his pharmacy.
  • The courts even became, by absolute necessity, the pro se defendant’s backup counsel, despite the inappropriate and dangerous conflicts associated with the role.

In response to these challenges, jurisdictions across the country began to experiment with specialty programs like mental health courts, drug courts, and veterans’ courts.  A creature of statutes, these specialty courts managed what is termed the “diversion” from standard channels of criminal prosecution of those who are most susceptible to early accountability and changed behavior.

Everyone else — all those not captured within the parameters of the narrow statutes that authorized the new programs, including the violent offenders — everyone else appeared for prosecution through the regular criminal trial court.  Into these courts the vast number of mentally ill and chemically addicted defendants arrived each year to face the charges against them, and to do their best on a personal level to comprehend the situation they faced.

2.8 “A Rumor in My Own Mind”