Reshaping Insanity in Pakistani Law: The Case of Safia Bano

This Article analyzes the 2021 judgment of the Supreme Court of Pakistan in the case of Mst. Safia Bano v. Home Department, Government of Punjab. The case has garnered significant local and international attention due to the Court's ruling that a death sentence may not be carried out on a defendant who has a mental illness. Setting the case against the backdrop of Pakistan's Islamic and colonial contexts, this article argues that the Supreme Court has reshaped the insanity defense in Pakistani law by placing the determination of a defendant's mental state mainly in the hands of medical professionals. However, the Court's reliance on medical professionals and the subsequent downplaying of the "moral capacity" element of the insanity defense-a determination of law made by courts-has created an obstacle for courts to punish offenders more stringently in future cases due to the popular belief that mental health professionals are ill-equipped to answer broader questions of justice for victims and society. The article recommends that this issue can be remedied by establishing an objective legal test for insanity that considers Islamic law, Pakistani precedent, and advances in medical science.

Culpability for offenses in frontotemporal dementia and other brain disorders

The responsibility of persons with brain disorders who commit offenses may depend on how their disorders alter brain mechanisms for culpability. Criminal behavior can result from brain disorders that alter social cognition including a neuromoral system of intuitive moral emotions that are absolute (deontological) normative codes and that includes an emotion-mediated evaluation of intentionality. This neuromoral system has its hub in the ventromedial prefrontal cortex (VMPFC) with other frontal, anterior temporal-amygdalar, insular, and right temporoparietal connections. Among brain disorders, investigators report offenses in persons with brain tumors, epilepsy, and traumatic brain injury, but it is those with a form of dementia with VMPFC pathology, behavioral variant frontotemporal dementia (bvFTD), who are most prone to criminal behavior. This review presents four new patients with bvFTD who were interviewed after committing offenses. These patients knew the nature of their acts and the wrongness of the type of action but lacked substantial capacity to experience the criminality of their conduct at the intuitive, deontological, moral emotional level. Disease in VMPFC and its amygdalar connections may impair moral emotions in these patients. These findings recommend evaluation for the experience of moral emotions and VMPFC-amygdala dysfunction among persons with antisocial behavior, with or without brain disease.

Rational capacity and criminal responsibility in the USA

The United States Supreme Court recently found that an insanity defense based upon moral incapacity was not constitutionally required. This decision allows states with a moral incapacity insanity defense, i.e., most states, to abolish their insanity defense. Unfortunately, the Court's opinion was based upon conflated concepts without considering irrationality, traditionally and universally the indispensable core element of insanity standards. This present perspective review attempts to clarify and disambiguate the critical concepts of instrumental and rational capacities as applied to insanity standards. With a proper understanding and application of these distinctly different capacities, insanity standards that at least incorporate rationality should in the future meet the Court's touchstone for determining constitutionally required due process.

Criminal responsibility evaluations: Benchmarking in different countries

Forensic mental health experts play a crucial role in criminal responsibility evaluations. However, the quality of these assessments has at time come under scrutiny and has been heavily criticized. A literature review revealed significant differences between countries concerning legal frameworks and procedures for conducting these assessments. The findings suggest that although some countries can be seen as a "role model", there still is room for improvement.

Identifying factors associated with criminal responsibility by analyzing court trial verdicts

The criminal responsibility of offenders with mental disorders is a key issue in forensic psychiatry. Japan's implementation of the Medical Treatment and Supervision Act and Lay Judge Act in the early 2000s raised public awareness of this issue. To determine how criminal court judges in Japan assess the criminal responsibility of offenders, we examined 453 district court verdicts that mention psychiatric evidence. We extracted elements from each verdict that may be associated with courts' decision-making regarding criminal responsibility and analyzed the relationship between each element and the adjudication of criminal responsibility. We investigated the changes in each element's prevalence over time. A logistic regression analysis revealed that the following were independently associated with the court decisions that offenders' criminal responsibility was intact: understandable motivation for committing the offense, homogeneity of the offense from the defendant's usual behavioral pattern, a coherent process used to commit the offense, alertness while offending, and absence of psychotic symptoms. We observed that recent verdicts are more focused on the offender's perception of illegality and the coherence of the offending process while disregarding the defendant's consciousness and memory while offending. Thus, the courts focus on some specific elements for evaluating the criminal responsibility of each offender.

Factors related to bias in forensic psychiatric assessments in criminal matters: A systematic review

OBJECTIVE

Identify factors related to bias in forensic psychiatric assessments in criminal matters.

METHOD

Based on the PRISMA guidelines, we searched the following keywords with Boolean operators: (criminal responsibility OR legal responsibility OR neurolaw OR insanity defense) AND (forensic psychiatry OR assessment OR evaluation OR bias OR decision-making OR capacity OR psychometric). The search included publications from January 1998 to December 2019 in the English language, published in PubMed, Web of Science, Taylor & Francis, and Scopus databases.

RESULTS

The final sample consisted of 30 articles separated into three groups: (1) legal elements and the wording of expert reports, (2) psychometric tools applied to criminal inquiries, and (3) expert forensic technique and inter-examiner agreement.

DISCUSSION

Multiple factors for biases were identified: difficulties in equivalence between legal and psychiatric terminologies, elements of countertransference between the expert and the examinee, absence of standardization of expert evaluations, low quality of expert reports, differences in the training of professionals involved in the evaluations, use of psychometric tools, number of professionals working on the same case, and the methodology adopted. Psychometric tools developed specifically for forensic psychiatric evaluations allowed the introduction of objective parameters in expert evaluations. Special attention was found in psychometric tools structured as vignettes that allowed the detailed evaluation of legal capacities, present in the legal texts. Psychometric tools in checklist format appeared to be more susceptible to interviewer biases.

CONCLUSION

The control of inherent biases in forensic psychiatry assessments on criminal matters remains a current challenge, difficult to control in forensic practice. The identification, control and avoidance of them may improve the quality the forensic psychiatric expertise in criminal matters.

Kansas: The Constitutionality of Abolishing the Insanity Defense

The U.S. Supreme Court has not previously ruled on whether the insanity defense, a long-established component of criminal law, is constitutionally required. Five states have abolished the insanity defense, and a challenge to one of those laws reached the court last year. In sharply contrasting opinions, the justices differed on whether the insanity defense is so rooted in Anglo-American jurisprudence as to be deemed fundamental, with the majority finding it not required by the Constitution. Although the decision is unlikely to lead to immediate changes in state laws, it illuminates the Supreme Court's views on the moral basis for criminal punishment.

Supreme Court 2019-2020: Insanity, Discrimination, and DACA-And a Pandemic

The 2019–2020 Supreme Court session was an extraordinary session. One major ruling involved insanity defense and whether the two prongs of cognitive capacity and moral capacity were required. Sexual identity was ruled to be covered by the Civil Rights Act in relation to employment. Unanimous criminal jury decisions were ruled a required condition for conviction. The rescindment of DACA was overturned on procedural grounds. Other decisions related to conditions of abortion, habitual residence in international custody cases, police immunity from civil liability, guns, HIV, and capital punishment. Thirty-five percent of cases were unanimous (down from the recent average), and 22% were decided by a 5–4 vote (slightly above the recent average).

Mentally disordered offenders and the law: Research update on the insanity defense, 2004-2019

The insanity defense is among the most controversial legal constructs that has attracted the attention of scholars, practitioners and policy makers. Here, we conducted a systematic review of the literature spanning 2004 to 2019 that produced 58 studies of insanity defense research. Findings are organized according to: (1) assessments and assessment-related issues, (2) juror decision-making in defense trials, (3) characteristics of insanity acquittees, (4) release recommendations for insanity acquittees, (5) revocation of conditional release status of insanity acquittees, and (6) additional areas of insanity defense research. Implications of the research for the insanity defense and cognate legal issues are proffered.

Infanticide and American criminal justice (1980-2018)

Maternal infanticide, or the murder of a child in the first year of life by its mother, is a subject both compelling and repulsive. The victim is innocent, but the perpetrator may be a victim too. In the USA, mentally ill women who commit infanticide may receive long prison sentences or even the death penalty. England, Canada, Australia, and more than 20 European countries have "infanticide laws," which provide more humane treatment and psychiatric care for mentally ill mothers who kill. One of the reasons for the sentences in the USA lies in our archaic insanity defense. In addition, the psychiatric community does not recognize perinatal illness as a formal diagnosis. Furthermore, general forensic psychiatrists who testify in the courtroom have little knowledge of perinatal illness. I suggest that it is time to invite psychiatrists and psychologists as clinicians and scientists to partner with our legal representatives in the courtroom in order to determine laws based on psychiatric facts and not conjecture. The voices of perinatal mental health advocates must continue to be heard in all courtrooms of the USA.

A new legal treatment for psychopaths? Perplexities for legal thinkers

Public perception, fueled not only by popular and news media but also by expert claims that psychopaths are archetypes of evil: incorrigible, remorseless, cold-blooded criminals, whose crimes manifest in the most extreme levels of violence. But is there empirical evidence that psychopaths truly are what they are portrayed to be? If so, should the law respond, and adjust its treatment of psychopaths in court - permitting psychopathy to be admitted under an insanity defense and/or resulting in mitigation? In this paper, we demonstrate that fundamental questions from the law to science remain unanswered and must be addressed before any alternative treatment of psychopathy can be considered. As it stands, psychopaths cannot be reliably defined or diagnosed and, as we will demonstrate, even the presumed link with criminal dangerousness is problematic. We conclude that the current legal approach should not be modified, however, if preliminary findings regarding impairments in impulsivity/self-control are confirmed, some, but not all individuals who fall under one definition of psychopathy may merit different treatment in future.

The insanity defense: Related issues

For the past 150 years, there is no change in the understanding and knowledge other than autonomy and capacity to choose the right and wrong for criminal liability. The alternative concept that human behavior is the result of an interaction between biological and environmental factors other than free choice failed to impress the criminal justice system because of a direct threat to a society's deep seated need to blame someone than themselves for criminal harms that occur. The insanity defense has a long history, and is evolved after many tests that have been tried and tested. McNaughton's rules stressed on "understandability of right and wrong" and "intellectual" rather than a moral or affective definition dominated in its formulation. Lack of control and irresistible drives or impulses were neglected Going by the current understanding of neurological evidences of compulsion and lack of impulse control, rationality tests without the inclusion of lack of control, seem to be outdated. Separate "Control determination" than the "Rationality determination" by the jurors may improve the accuracy of Juror's categorizations. There is a suggestion that Relevance ratio is ideal for 'Evidentiary relevance" and there should be a quality control on expert testimonies. With progress in neuroscience, the law may need to abandon or alter some of its current assumptions about the nature of voluntary conduct, which underlies various defenses.

Juror decision making in not criminally responsible on account of mental disorder trials: Effects of defendant gender and mental illness type

This study sought to examine the potential impact of defendant gender and mental illness type on Canadian juror decision making by manipulating the gender (man, woman) and mental illness (substance abuse disorder, schizophrenia, bipolar, depression) of the defendant in a second-degree murder case involving an insanity plea. Participants read a trial transcript that included definitions of second-degree murder and the not criminally on account of mental disorder (NCRMD) defense. Participants then provided a verdict (guilty or NCRMD) and completed various scales measuring attributional judgments, perceptions of the defendant, and perceived dangerousness. Contrary to expectations, NCRMD was chosen over a guilty verdict in the majority of cases. Findings also indicated that participant decisions and perceptions regarding defendants diagnosed with substance abuse disorder differed from the other mental illness groups. The gender of the defendant had an influence on participants' perceptions of internal attributions, and the perceived stability of criminal behaviors. Results suggest that perceptions of mental illness influence verdicts in NCRMD cases, and that defendant gender plays a role in participants' perceptions of defendants. These findings contribute to the scarce literature on mental illness in the Canadian court system. Future research should examine the interaction between juror gender, defendant gender, and mental illness in insanity cases.

Adjudicating mentally disordered offenders in Ghana: The criminal and mental health legislations

The involvement of mentally disordered offenders (MDOs) in the criminal justice system (CJS) is currently a major public health concern. This has culminated in several empirical researches over the years, with a particular focus on addressing the problem. The present study examines the criminal and the mental health legislations available to offenders raising fitness to stand trial issues, as well as those pleading insanity at the time of the offense (insanity defense) in Ghana. The legislations are examined within a framework of reducing the overrepresentation of MDOs in the CJS. In doing so, comparisons are made to similar legislations in other commonwealth jurisdictions, when necessary. Regarding fitness to stand trial, it is evident that the Ghanaian legislation does not contain discrete fitness indicators, relative to, for instance, Canada. Yet, it is interesting that the terminologies 'unsound mind' and 'incapable of making a defence' used in the proviso convey similar meaning and requirements to those used in other jurisdictions. The insanity defense standard, on the other hand, is also heavily influenced by the M'Naughton Rules in England. The defense consists of two separate cognitive tests, each of which can result in an acquittal. One of the tests strictly emphasizes knowledge of the nature and consequences of the act while knowledge of the wrongness of the criminal act is implied in the other. However, none of the tests takes into consideration uncontrollable impulse arising from mental disorder. The study proposes some revisions and amendments to the insanity legislation in its current formulation. Recommendations are also offered for critical areas that warrant research attention in relation to MDOs in Ghana, and in Africa as a whole.

Determining criminal responsibility: How relevant are insight and personal attitudes to mock jurors?

High levels of insight are interpreted as indications of a treatment compliance and good outcome by clinical professionals. However, it is unclear whether a defendant's insight plays a role in the decision-making of jurors when determining criminal responsibility. It may be the case that personal biases and attitudes toward the mentally ill and the insanity defense are more relevant in such decisions. This study examines the influence of two core dimensions of insight and personal attitudes on juror decision-making. Participants read trial scenarios describing a defendant who is accused of a violent crime and is diagnosed with schizophrenia. Assigning a verdict of not criminally responsible to the defendant was not influenced by insight, but instead, by supportive attitudes of the insanity defense and higher attributions of blame to external factors and to psychological factors. These findings highlight the need for continued investigation in the area of extra-legal factors that guide legal decision-making when defendants have a mental disorder.

Mental disorder and legal responsibility: the relevance of stages of decision making

The paper discusses the relevance of decision-making models for evaluating the impact of mental disorder on legal responsibility. A three-stage model is presented that analyzes decision making in terms of behavioral control. We argue that understanding dysfunctions in each of the three stages of decision making could provide important insights in the relation between mental disorder and legal responsibility. In particular, it is argued that generating options for action constitutes an important but largely ignored stage of the decision-making process, and that dysfunctions in this early stage might undermine the whole process of making decisions (and thus behavioral control) more strongly than dysfunctions in later stages. Lastly, we show how the presented framework could be relevant to the actual psychiatric assessment of a defendant's decision making within the context of an insanity defense.

Listening to voices: the use of phenomenology to differentiate malingered from genuine auditory verbal hallucinations

The experience of hearing a voice in the absence of an appropriate external stimulus, formally termed an auditory verbal hallucination (AVH), may be malingered for reasons such as personal financial gain, or, in criminal cases, to attempt a plea of not guilty by reason of insanity. An accurate knowledge of the phenomenology of AVHs is central to assessing the veracity of claims to such experiences. We begin by demonstrating that some contemporary criminal cases still employ inaccurate conceptions of the phenomenology of AVHs to assess defendants' claims. The phenomenology of genuine, malingered, and atypical AVHs is then examined. We argue that, due to the heterogeneity of AVHs, the use of typical properties of AVHs as a yardstick against which to evaluate the veracity of a defendant's claims is likely to be less effective than the accumulation of instances of defendants endorsing statements of atypical features of AVHs. We identify steps towards the development of a formal tool for this purpose, and examine other conceptual issues pertinent to criminal cases arising from the phenomenology of AVHs.