Why it is Essential to Learn about Mental Health Issues in Criminal Law

Excerpts from Richard E. Redding, Why It Is Essential to Teach About Mental Health Issues in Criminal Law (And a Primer on How To Do It), 14 WASH. U. J. L. & POL’Y 407 (2004)

Studies consistently show a high prevalence of mental disorders among criminal defendants. Yet law school curriculums rarely teach students about this crucial aspect in criminal law. Understanding mental illness, how to represent mentally ill clients, their mental health needs and how these unmet needs may contribute to criminal behaviour, the use of mental health mitigation evidence at sentencing, are integral to practising criminal law.

Forensic mental health issues convey important concepts about the increasing use of science and social science in criminal law, attorney-client relationships, professional ethics, the adjudicatory process, principles of criminal responsibility, and sentencing, all of which arise with far greater frequency in the real world. For instance, emerging research on the neurobiological basis of violence and criminality has implications for sentencing, and with most cases settled through plea bargains or tried with a resulting guilty verdict, sentencing (rather than adjudication) is where most of the action takes place in modern criminal law practice.

An appreciation of forensic mental health issues requires at least a rudimentary understanding of the broad categories of mental disorders and the most common specific disorders. This understanding needs to be integrated with the discussion of the substantive legal issues. For example, while discussing fitness to stand trial, it is important to point out that psychotic disorders and mental retardation are the most common reasons in unfitness cases. Additionally, the implications of raising the claim on the case and the accused must also be highlighted. This understanding must be supplemented by taking the expertise of a mental health professional who can assist in the recognition of the indicia of incompetence and aid the competency restoration process.

There is an increasing “criminalization” of the mentally ill which is not rooted in advancements in the field of psychiatry. It is therefore important that forensic mental health issues (e.g., concerns about representing mentally ill clients, competence to stand trial, and the use of mental health evidence in sentencing) are dealt with in the appropriate manner and not ignored in criminal practice. If these issues are dealt with properly, then mentally disordered offenders can be provided proper mental health treatment.

A criminal justice system sensitive and better equipped to cater to the needs of accused persons with mental health concerns will ensure effective and fair trial processes. Defense lawyers, judges as well as forensic mental health experts need to work together at different levels to deal with forensic mental health issues. For instance, even before the adjudicatory stage, in negotiating with prosecutors for reduced charges, alternative sentences, or perhaps even diversion to the mental health system. A proactive approach on the part of all the key stakeholders within the criminal justice system can help to avoid the “criminalization” of the mentally ill.