Psychiatric Justice (1965)
In this book Szasz examines a special – in the Netherlands in principle not impossible but in practice never used – procedure of psychiatrists testifying in trials. This refers to the question of whether a person is fit to stand trial, whereby both the person’s ability to understand what it is about as his ability to assist in his own defense are important. Szasz writes about this procedure in a way that indicates that it has become quite customary in the United States in the fifties and sixties [of the twentieth century]. He does not quote any numerical statistics, but rather mentions that they are not available (yet?).
Szasz vehemently attacks this custom. Although ostensibly serving suspects’ interests, in fact this measure turns against them, because the consequence is that they are removed to psychiatric institutions to be treated. If the treatment succeeds, the trial proceeds, so that the suspect is in fact locked up (punished) twice. If treatment fails, which is common, then the suspect remains detained in the Mental Hospital. Szasz quotes Hess and Thomas who studied the effect of this legal procedure in Michigan. They found that more than half of the suspects who were transferred to psychiatric institutions this way spent the rest of their lives in them. Their study indicated a nearly complete role reversal between psychiatrists and judges, as well as confusion around the entire procedure. Often criminal responsibility for the crime and fitness to stand trial were confused. The point of the hospitalization was often not understood in the psychiatric hospital. Repeatedly the paradox arose that such people were released on a trial basis for which the criteria were much higher than the criteria for being considered fit to stand trial. Hess and Thomas’s conclusion is that suspects have been victimized by a measure ostensibly instated to protect their rights. Szasz opposes this procedure because in his opinion suspects have the right to a fair and public trial. When they are incarcerated in psychiatric institutions no judge has ruled on whether they actually committed the crime of which they stand accused. Szasz considers this a violation of the sixth amendment to the United States Constitution which grants everyone suspected of a crime a “speedy and public trial.” Besides, the question of what qualifies people to be fit to stand trial remains unanswered. There is a huge difference between the minimal criterion that people should at least understand the charge against them, and the maximal criterion that they should be able to participate in the trial using all the skill and ingenuity that it takes to optimally play the trial game. In the latter case practically nobody besides attorneys can be considered competent. Accordingly, Hess and Thomas found that different courts use the measure in very different degrees, introducing a questionable inequality of legal procedures.
Several examples of such procedures are thoroughly discussed in Psychiatric Justice, with verbatim reports of the trials. A comparison of these cases leads Szasz to comment that wealthy, famous, and intelligent suspects are much more likely to successfully resist being ruled incompetent than poor, unknown ones. This way psychiatry contributes to privileging the higher classes and helps the state to oppress the poor and humble.
As there is no other appropriate place in this book, I wish here to make a few more comments about the fate of this procedure. In the ensuing years attempts were made to improve the situation. A ruling by the Supreme Court put a limit on the length of hospitalization for people who are ruled “incompetent.” Uniform questionnaires were instated for examining suspects. Seminars and conferences were dedicated to the subject. In 1978 Geller and Lister, after studying the situation in Massachusetts, reported bafflingly little improvement. They noted that the crimes involved were usually petty, and that 72% of the suspects whose trials were resumed after treatment were acquitted. Apparently, Hess and Thomas pointed out, the question of competence was raised with these suspects not so much because of their mental condition, but because no other sensible measure could be thought of. Stone underlines this by commenting that abuse should be blamed not so much on the law but on the chaos in the system of penal justice, and that reforms in the justice and penal systems are necessary.
In conclusion, I quote Pendleton who reports on a treatment program for this category of people in a Mental Hospital. It consists – in addition to routine psychiatric treatment and occupational therapy – of a training program in which the participants learn the ins and outs of a trial and how a defense can be effectively conducted. The course even includes an examination and participation in a mock trial. With this program 90% of the patients ruled incompetent can be released as competent. My comment on this is that it would be desirable that every suspect who so wishes can take such a training program. A different question all together is whether involuntary commitment to a State Mental Hospital is really necessary for such a program, particularly considering that the average length of “treatment” was 104 days. One can also wonder what the point is of such a program, if more than 70% of these people are acquitted anyway, as Geller and Lister state.
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