Due Process is an exalted principle, but for people with severe brain disorders that involve neurological detachment from reality, it fails to deliver justice.  The entire apparatus of due process is engineered to punish clinical insanity.  Insanity, as in NGRI, has become a radical notion..

Insanity, as defined and conceptualized under M’Naghten’s Rule or the jist of it in other definitions of “insanity” were man’s best attempts to define something that they could only conceptualize from intuition and imagination.  Today, operators in the criminal adjudication system apply M’Naghten’s with such a literalist interpretation as to veer beyond the absurd.

There is no jury of peers for the person afflicted with a severe cerebral illness, because the vast majority of people do not comprehend “psychosis”, which is neurological detachment from reality – not the psychological detachment that people speak of in common parlance.  The accused person who was “psychotic’ ( a neurological status that can have catastrophic behavioral consequences) when they committed a crime is set before a jury and a judge that cannot fathom what “psychosis” does to a human being.  The best outcome that a person with a severe cerebral illness can get from a jury trial is potluck justice, where jurors decision based on their gut instincts about what “insanity” is…and only in the extremely rare cases in which the “insanity” defense is raised – due to extreme hostility to the defense.

Severe brain function disorders that cause neurogenic dysmentation and disordered states of consciousness have something to tell us about ourselves but ancient and intuitive beliefs cause us to spurn this notion.  Pathologies of the human body can be nature’s way of teaching us something about ourselves as human beings that we can never understand in absence of the presentation of illness…they can open up a portal to insight and understanding.  A scientific and moral definition of insanity is not a matter of “knowing right from wrong” in the sense that human beings have defined it within the context of a special defense.  The practitioners of law and justice do not know that they are committing grievous injustices in the prosecution, conviction, and punishment of this class of persons because legal defenders, prosecutors, judges and justices profoundly misunderstand this class of illnesses and their neurobehavioral consequences.  Criminal justice and the law should defer to competent medical science, but instead, it leans to its own understanding.

Conventional wisdom asserts that the broken mental health system and mass reductions in hospital beds are reasons why our jails and prisons are filled by hundreds of thousands of people with serious neurobehavioral illness – that correctional facilities have become de facto mental hospitals.

The criminal adjudication system operates under the law and nothing forces its hand.  Even though a critical shortage in supported housing and a dysfunctional system of healthcare delivery is a tragically serious problem (for which the states are fully responsible, in that their failures deliver people into the hands of the criminal adjudication system), the criminal adjudication system is accountable for its own actions.  The pressing of charges, prosecution, conviction, and sentencing are the exclusive cause for the mass incarceration of people with severe neurobehavioral illness.  Jails and prisons are not de facto mental hospitals, advocates should not use this expression even in a figurative sense.  These are institutions where human beings are sent to be punished.  Legislators and Justices of even the highest court do not understand neurobehavioral illness in general and “psychosis” in particular…yet they do not respect the authority of competent medical doctors.

From The Journal of the American Academy of Psychiatry and the Law, “Forensic Psychiatry and Political Controversy:

“As clinicians we should articulate a collective view about what treating the mentally disordered justly and appropriately in the legal system would mean, and we should challenge the law when it fails to achieve this.”

…And this passage from the same article:

“We might remind ourselves of how forthright our 19 century forebears were in criticizing the law when they thought it failed to achieve justice for the insane.”

*It is Due Justice Project’s position that no doctor of medicine should be credentialled as a “forensic psychiatrist”.  The fingerprints of “forensic psychiatrists” (with their proclivities toward “diagnosing” so-called personality disorders, psychosocial depression (distinguished from neurogenic so-called depression), and “dissociative disorders”) may be on the unjust convictions of possibly hundreds of thousands of people with severe cerebral illnesses.  Criminologist should be their appropriate title.

A passage in an article about the mid-nineteenth century diagnosis known as “railway spine” characterizes the dynamics in “modern-day” courts where, in the rare cases that the insanity defense is raised, State “forensic psychiatrists” square off against “psychiatrists” for the defense, and ultimately, because comprehension of these illness is out of bounds of what most people can conceive, gut instinct and what they believe to be common sense, rather than medical science, determines the fate of the accused.

The strongly held but often divergent opinions of expert medical witnesses called by either side to give evidence in these cases became a source of embarrassment to the whole medical profession. When the courts found “expert” medical opinions irreconcilable, they preferred the “sensible view of them, rather than the highly scientific one which commends itself most to reason and justice”.

Sadly, today, this clash of forensic pseudoscience vs medical science is hardly a source of embarrassment, although it should be – to general medicine especially rather than the oddball medical specialty known as “psychiatry”..

The least blameworthy of all accused persons are being convicted and punished unjustly because their brain function disorders are beyond the comprehension of the vast majority of the populace – and because the predominant definition of insanity, M’Naghten’s Rule is dissonant with neuroscience.  M’Naghten’s Rule is a dangerous legal instrument in the hands of jurors, prosecutors, and judges who profoundly misunderstand neurobehavioral illness.

  “Knowledge is essential to understanding and understanding should precede judging”    …Justice Louis Brandeis