Not by a long shot. Although we are on the cusp of a potentially transforming understanding of the relationship between minds and bodies, we’re hardly better off than we were in Plato’s day when it comes to understanding what makes the human psyche tick.
It all starts with the mysterious relationship between minds and bodies. We’ve decoded the genome, the sum of our genetic parts. Today, scientists are busily decoding the genetic structure of Adam Lanza. Will a quirky mutation, or an unusual sequence in genes, explain why he snapped and killed 27 people, including 20 children, in Newtown? Is there a mass murderer gene?
I doubt it, and, even if there were, finding it would prove a useless tool.
Put in its simplest turns, we don’t know how to cross the great chasm between biological structure and function, and human volition. Study my brain all you like. Map its contours, watch each neuron fire its seemingly infinite set of impulses across the billions of synapses that make me who I am. Do all that and you will still not capture my mind, my sense of self, and the desires, habits, indeed, the very will that define me. Philosophy, and its weaker cousin, the law, are still trapped in a crippling sense of dualism: even if you believe that matter is all there is, you still cannot give a complete account of mind.
Historians of science speak of paradigm shifts, great changes in the very manner in which we conceive the nature of reality. The next great paradigm shift will go the Galileo, the Newtown, the Einstein, who will better conceive, better explain, how brains create minds. We’re not there yet. We’re not even close. Consider the chemistry of a mood: what equation defines the comfort I experience when I hear my wife’s familiar footfall on the stairs in the morning? Try as we might, we can only understand the moment that has passed; the future always looks as though it is something we can choose. We’re still debating free-will versus determinism, although science suggests things aren’t really that simple.
This is especially true where law and mental health intersect.
The truth is the law is a dismal failure when it comes to mental health. It gets most extreme cases right, but fails at almost everything else. Consider the following: You can be competent to face criminal prosecution but legally insane. It’s all a matter of what standards you apply.
A person is competent to stand trial so long as they understand the nature of the charges against them and can assist, however ineptly, in their own defense. My office recently made a competency motion in the case of a client whose behavior was patently self-destructive. The client’s examination rated him competent: He knew our names. He knew what the role of the various players were in the criminal proceeding. He knew what the accusations against him alleged. He was more than a potted plant.
But is he sane? The law distinguishes between cognitive and behavioral insanity. You are cognitively insane if you don’t have any idea what you are doing. The object you stab with a knife is not, as you suspect, a bag of potatoes -- it is your next door neighbor. Hallucinations typify cognitive insanity.
The behavioral variant of insanity is more nuanced. You are insane if you simply cannot control your conduct to conform to the requirements of law. It’s more than a mere lack of self-control, although just how much more is hard to say. Judges and juries almost never find folks not guilty by reason of insanity on this ground. After all, don’t we all lose control from time to time? Who hasn’t said: “The devil made me do it”?
A person can be competent to stand trial but helpless to control his conduct to the requirements of the law -- you can be competent but insane, as crazy as that sounds.
But insanity and competency are the easy cases, I say. The courts are filled each day with defendants. Few are incompetent, and almost no one is deemed insane. But many of the folks facing charges have committed acts of violence against themselves, in the form of narcotics addiction; violence against others in the form of murder, assault and rape; or transgressions against property. Not many of these folks engage in the cool cost-benefit analysis of rational actors bargaining in the law’s shadows. Most, I suspect, labor under character disorders of one sort or another, some are merely depressed, others are warped by narcissism, sociopathy, or borderline disorders. The American Psychiatric Association periodically publishes a manual of all the ways a person can be mentally ill. It’s a daunting array.
The law fails utterly to account for personality disorders. They almost never amount to a defense; they are at best mitigating factors at sentencing, unless the crime is shocking enough, in which case revulsion and anger eliminate the psychiatrist’s subtle distinctions.
Expecting the law to identify those about to snap is a pipe dream. There is no such thing as prophylactic criminal justice. In most cases, most of the time, the law refuses to address the mental health needs of those charged with crimes, preferring the comfortable, if quaint, assumption that we’re all rational actors making intelligent decisions about our life’s course.
The chilling truth about the criminal law is that any one of us is capable of crime. Freud knew this. In his Civilization and Its Discontents, written a century ago, he wrote of the dark, aggressive instincts that fuel us all in ways we scarcely care to admit. The hard and unforgiving work of civilization channels, or sublimates, these instincts to public use. But anyone can fail; indeed, most of us do in small, forgivable ways all the time.
We are fascinated with evil not because it is foreign, but because it defines us, each and everyone. All the mental health services in the world will not eliminate crime, and it will not drive evil from the world. We have seen the devil, and he us, each of us.
Reprinted courtesy of the Journal Register Company
I spent the other day reading a book my wife gave me for Christmas, Dave Eggers’ Zeitoun. It’s the report of one family’s ordeal in the wake of Katrina, the hurricane that devastated New Orleans in 2005. Although the book was written in 2009, and won awards, it escaped my radar.
There is so much to love about this book. The protagonist, Abdulrhman Zeitoun, a Syrian immigrant, is my kind of guy. He’s stubborn. He doesn’t listen. He works perhaps too hard. When his wife catches wind of a major storm’s approach, he largely ignores her and goes about his business. Yet he loves her, and he loves their children. He is a hero.
When the storm finally strikes, and New Orleans is flooded, he remains in the city to help others. His wife and children are elsewhere, living in safety with relatives. When he is arrested, imprisoned, and, at one point accused of being a terrorist, one senses all at once how thin is the thread that binds a people. The rule of law disappeared in New Orleans for some brief period. It was replaced with brute, unreasoning force, and that force crippled, for a time, the law.
I read Zeitoun in a sitting, unable to put the book down, even as the holiday festivities in my household swirled around me. When the protagonist was picked up by a collection of armed lawmen and whisked off to detention, his wife, unaware of whether he was dead or alive, struggled with despair and a loss of hope. She was prepared to face the future without him when word that he was still alive was leaked to her by a prison chaplain. She struggled to find the location of a makeshift court at which her husband’s bond would be argued, after weeks of incarceration. A prosecutor told her the location of the courthouse was private.
Zeitoun spent 23 days in captivity, most of them held incommunicado by federal authorities. It remains an outrage.
When Zeitoun was finally released, Eggers wrote of the great strain his absence had placed not just on his family, but on the fabric of his beliefs. Was this a nation committed to fairness, to due process of law? Had Zeitoun been treated as a terrorist simply because he was a native of Syria? The book ends on a dark, but hopeful note. Our ideals are always at risk, but small acts of individual courage remain -- perhaps that is all that truly remains.
I told friends about the book immediately after reading it. It inspired me, I said. Reading it reminded me of the importance of lawful process, or why the law mattered. I was raring to return to court, to fight another day. Zeitoun seemed almost heroic to me. I was even tempted to contribute money to a nonprofit foundation he set up dedicated to the support of human rights around the world.
“You know he was arrested this year for trying to put a contract out on his wife,” a friend observed.
I thought it was a joke. Zeitoun? A modern Odysseus, trapped between the Scylla of our fears and the Charybdis of our hopes? But a quick search of back issues of The New York Times confirmed the sorry truth: Zeitoun’s marriage foundered in the years since his release. He had become abusive toward his wife, now his ex-wife. The Times reported his arrest for trying to hire someone to kill his wife, her son, and another man.
The news hit me like a hurricane, devastating that part of me that still wants to believe in a good wholly apart from evil.
I don’t know what happened to Zeitoun the man. He lost his way. He succumbed to dreams of violence. He fouled his own nest.
Yet for all that the story of what he endured in Katrina’s wake still inspires, even if it reminds that, in the law, at least, there are no heroes -- there is simple adherence to respect for lawful process, and the never-ending fight to get things right.
Reprinted courtesy of the Connecticut Law Tribune.