The Failed Rhetoric of Accountability

One of the abiding convictions of criminal defense lawyers is that no one is the sum of their worst moments. The man or woman on whose side I stand may be accused of having committed a horrific act, and the act is all the world will know them by. But people are more than their mistakes. We all know this, although we pretend to forget such things when a neighbor is accused of murder, or rape, or robbing a bank.

So much of the criminal law revolves around a cheap and easy brand of moralism. Prosecutors strut the well of the court demanding “accountability” of the accused, as though defendants engage in the sort of cost/benefit analysis that makes the decision to commit a crime look like a choice casually made while considering a menu of life plans.

Although lawyers are trained to treat their clients as rational actors bargaining in the law’s shadows, experienced lawyers know a darker truth: The world is a crazy place. The light of reason does not illumine our way; more often than not, we follow impulses, drives, dark passions that we can scarcely name, much less control.

We only pretend to understand why people make the choices they do, and then we punish those whose behavior we don’t like. Our reaction has less to do with morals than with the brute and largely inchoate force of cattle prods forcing unthinking beasts through life’s cattle chutes.

Prosecutors know this. They only pretend to believe that we are such stuff as choices make us.

Just the other day, the American Psychiatric Association published its latest edition of the Diagnostic and Statistical Manual, a compendium of the signs and symptoms that can bend a person beyond the norm. No sooner was this manual, called the DSM 5 published, than the director of the National Institute of Mental Health issued a statement saying we really don’t understand mental illness. The DSM 5, he noted, does not reflect any systematic understanding of what makes mental illness happen; it is at best an impressionistic tool. We don’t understand why people become mentally ill.

Scientists haven’t any real comprehension about how brains yield minds. We’ve banished such things as souls and spirits to the metaphysical side, treating the human stuff that defines as mere figures of speech. But the mechanisms explaining how a bad gene, a disordered brain, or funky neurochemistry makes a man crazy just isn’t there. We take it on faith that matter determines mind. That faith is not science.

Even so, the courts rely upon experts all the time to help determine what’s going on with litigants. This is especially so in family court, where warring psychiatric experts toss competing diagnoses around as though they were talking about something real. I’ve seen otherwise intelligent lawyers spouting off about earlier editions of the DSM as though they were talking about something real: “He’s a narcissist,” one side chortles. “Yeah, well she’s a borderline personality,” the other side responds.

Blah, blah, blah.

In the criminal courts, there is almost never any serious discussion of character disorders. It’s inconsistent with the moral mania of the criminal law. If we can’t pretend that people are rational actors, then we can’t punish them. What kind of criminal justice system punishes the ill? (Answer: Ours. Consider the ravages of the war on drugs. It’s filled the prisons with addicts. Not persuaded? Then consider statistics generated by the Justice Department: Roughly half of the nation’s inmates suffer serious mental health issues. We do punish the sick.)


Years ago, a man I will call Gregor murdered his wife. He was persuaded that she was cheating on him. He came home one night, and strangled her to death with his belt. Then he walked out the door of his home, and drove to his parents’. When police arrived, he walked out the door to submit to his arrest.

A local hospital released him from its psychiatric ward despite his delusions when he ran out of insurance money. He was charged with murder. His lawyer had him evaluated by one of the top forensic psychiatrists in the state. In the expert’s opinion, Gregor lacked the capacity to conform his conduct to the requirements of the law. Gregor was insane.

In order to be found not guilty by reason of insanity, a defendant must be either cognitively insane, or volitionally insane. Cognitive craziness involved being so far removed from the realm of ordinary experience that you can’t distinguish the sack of potatoes you are stabbing with a French knife from your next door neighbor. Such cases are exceedingly rare.

So-called volitional insanity is more common. You perceive the world around you in terms more or less similar to those we call sane, but you can’t help but respond in ways the law prohibits. In Gregor’s case, he saw old pictures of his wife with a man. The pictures were obviously decades old. But Gregor knew she was betraying him now. He killed.

A person found not guilty by reason of insanity is confined at the Whiting Forensic Division of the Connecticut Valley Hospital. They remain confined there until, if ever, they are restored to sanity. They don’t go home. They are confined because they present a risk of harm to the public.

In Gregor’s case, the state refused to have an examination of its own done of Gregor. Instead, a prosecutor cross-examined the defense psychiatrist. Gregor killed his wife? He then closed the door to his home? Got in his car? Went to his parents’ home? Submitted to arrest? Why he could control his conduct according to law, doctor! He’s guilty of the crime of murder! He intended to kill his wife, and he did so! A jury convicted Gregor of murder.

It was a shameful confession of cynicism by the state. It refused to have Gregor evaluated by a psychiatrist of its own choosing because had it done so, the state would then have to concede the obvious: The man was insane. Instead, it opted to attack the psychiatrist offered by the defense.

Gregor’s case troubles me. Our office is trying to get him a new trial. He doesn’t belong in prison. He needs psychiatric care. He’s more than the homicide he committed.

I will never respect the decision of a state that confronts evidence of insanity and then chooses to ignore it. The state seems, in the end, to agree with those who claim we know nothing of how the mind works. But is it really just to lock someone up for life simply because we refuse even to try to understand the worst moment in his life?

Punishing the ill in the name of accountability is just plain sick.




Also listed under: Journal Register Columns


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© Norm Pattis is represented by Elite Lawyer Management, managing agents for Exceptional American Lawyers
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