Volitional Incapacity due to mental disease as an independent basis of exculpation

1
Volitional Incapacity due to mental disease as an
independent basis of exculpation
2
Rejection of the volitional prong of the ALI Test

• 1. Appreciation of wrongfulness formula is
  sufficiently broad to take into account the
  morally significant effects of severe mental
  disorder.
• 2. Any independent volitional inquiry involves a
  significant risk of moral mistakes.

3
Limits of scientific understanding

• Science has not yielded clinical tools for
  calibrating impairments of behavior controls.
• No objective basis for distinguishing between
  offenders who were undeterrable and those who
  were merely undeterred, between the impulse that
  was irresistible and the impulse not resisted or
  between substantial impairment or capacity and
  some lesser impairment.

4
Tests for conforming behavior to the requirements
of law

• Irresistible impulse test
• Test is combined with vague or broad
  interpretations of the term mental disease.
• It is the mixing of two imprecise notions that
  can often result in unstructured expert
  speculation regarding the psychological causes of
  criminal behavior

5
Volitional Disorders

• Internal motivations involving arousal and
  reduction of tension are required for these
  diagnoses.
• Coexistence of cognitive intactness with
  irrational conduct that characterized criminal
  behavior.
• An involuntary quality to the behavior
• Crime forms the principle evidence of the disease

6
Types of criminal behavior

• Lack of apparent motive
• Lack of accomplices and escape plan
• Relief by the defendant directly after the
  criminal behavior, such as exhibitionism,
  killing, etc.
• Alleged victims are randomly chosen, anyone at
  hand

7
Policeman at the elbow test

• To assess an ability to refrain
• Test is not dispositive
• Time distortion, I.e. use current vantage point
• If defendant believed the police were evil, test
  invalid
• Abortive homicidal suicide plan (if to kill self
  then no sense to have police test)

8
Assessment of ability to refrain

• Test ability to defer vs. refrainwaited an hour
  until police car left the scene
• Ability to refrain due to mental illness vs.
  intoxication. (schizophrenic drunk kills spouse
  and paramour in bed was it intoxication, rage,
  schizophrenia)

9
Types of Suspect Disorders

• Impulse control disorders, such as, pyromania,
  kleptomania and pathological gambling.
• Personality disorders
• Psycho-active substance addiction

10
Impulse Control Disorders

• The failure to resist an impulse, drive, or
  temptation to perform an act that his harmful to
  the person or to others
• Rule out common or rational motives for the
  problem behavior,
• fire setting not done for monetary gain or to
  conceal other criminality, to express anger or
  vengeance, or to improve ones living
  circumstances.
• Kleptomania only if the stolen objects are not
  needed for personal use or their monetary value
  and the stealing is not committed to express
  anger or vengeance.
• Behaviors cannot be better explained by conduct
  disorder, a manic episode or antisocial
  personality disorder

11
Pathological Gambling Disorder

• Person must gamble in order to achieve the
  desired excitement and must be restless or
  irritable when attempting to cut down or stop
  gambling or gamble as a way of relieving a
  dysphonic mood such as feelings of helplessness
  guilt, anxiety, or depression
• The subject experience of the gambler is that of
  being obsessive compulsive tendencies, I.e. being
  preoccupied with gambling, and repeated
  unsuccessful attempts to control, cut back or
  stop gambling.
• Rule out manic behavior

12
Addictive Personality

• Given the co-morbidity of volitional disorders
  with alcohol abuse or dependence, is there a
  general addictive personality construct?

13
Special exclusion of substance addiction some
volition

• Fingarete and Hasse concluded that a person who
  chronically abuses alcohol is one who for any of
  a variety of other reasons, often rooted in his
  past or current patterns of life, has
  increasingly used drinking as a way of adapting
  to his life problems. Even though the impulse to
  drink is intense, the addicts life is so very
  distressing and so very difficult, both
  physically and mentally, that he or she is likely
  to seek help entirely on his own initiative or
  with the aide of special encouragement.
  Therefore, addiction should not support a defense
  of volitional impairment. The threat of criminal
  sanction may be a factor in controlling such
  drinking as is likely to lead to criminal
  offenses.

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How about sexual disorders should they be
excluded as volitional disorders

• Exhibitionism
• Pedophilia
• Erotomania
• Paraphilia disorders
• How about eating disorders should they be
  excluded as volitional disorders.