POLITICS, DIMINISHED CULPABILITY, AND MENS REA
By John Weston Parry, J.D.
Over thirty years ago the federal government launched a politically-inspired vendetta against John Hinckley after a District of Columbia jury properly found him to be not guilty by reason of insanity in the attempted assassination of President Ronald Reagan. At the same time, the federal and state governments instituted a highly politicized effort to marginalize and restrict the insanity defense, along with any other type of reduced sentencing disposition that involved diminished culpability based on a defendant’s mental status. The American Bar Association, the American Psychiatric Association, and the American Psychological Association were unsuccessful in trying to oppose these efforts.
Today, our legal system largely ignores mental status when it will benefit a defendant with a mental disorder. Yet, that same status is embraced and its importance enhanced if it is linked to a perception or presumption of future dangerousness in order to substantially lengthen the amount of time that defendants or quasi-civil respondents with mental disorders will spend in the criminal justice system, incarcerated, deprived of their fundamental constitutional rights, and/or placed under poorly managed governmental control and supervision.
That toxic mixture of politics with the fear and loathing our society still harbors towards persons with severe mental disorders, has resulted in defendants with those conditions being denied fundamental fairness and due process in the criminal justice system. Both the Constitution and the rule of law seem to have very little sway when this type of value-laden politics intrudes. Hinckley is the most publicized example of how that dynamic has been carried out in the criminal justice system, aided by a number of judicially-inspired legal fictions that have further distorted reality at the expense of justice.
With the exception of John Hinckley, no defendant with a mental disorder, alleged to have committed a federal crime, has been subjected to a more politicized prosecution than alleged Army deserter, Sergeant Bowe Bergdahl. Like Hinckley, Bergdahl is being persecuted because of what he symbolizes and represents to politicians and their constituents. If he is convicted of the most serious charges against him—misbehavior before the enemy, which allegedly endangered, but did not actually injure, any American troops that were sent to find him—Bergdahl will become a political prisoner, indefinitely, and quite possibly for the rest of his life.
Furthermore, in large part because of Hinckley’s legal legacy, Bergdahl appears destined to become an unusually high profile example of what typically happens to defendants with mental disorders in our criminal justice system. After the evidence of Bergdahl’s reduced culpability is ignored or marginalized, the length of his criminal custodial detention is likely to be enhanced instead.
The Politics of Diminished Culpability and Mens Rea
It is widely known that after Hinckley’s acquittal the insanity defense was revised to make it practically impossible for defendants with severe mental disorders to use their cognitive deficits and lack of capacity as a legal excuse when serious felonies are alleged. In addition, diminished culpability, either as a partial defense to a crime (diminished capacity) or reduced punishment at sentencing, largely disappeared, not only for adults with mental disabilities, but also juveniles. What has been less apparent until recently, however, is that the fundamentally important Anglo-American, criminal law concept of mens rea--having the awareness to know something is a crime (“guilty mind”) before a guilty verdict may be rendered—has been undermined as well. Mens rea is no longer a requirement for establishing guilt with respect to a growing number of criminal offenses.
That evolution should not have been unexpected, given the importance of the doctrine of mens rea to mental status defenses and the whole notion of diminished culpability. Until the Reagan-Hinckley-inspired criminal justice revolution, it was generally understood and accepted that “[s]ince… mens rea… assumed rational choice, persons deprived of this capacity [because of a mental disorder] do not come within the concept,’ and should not be criminally responsible for their actions.” (Mental Disability, Violence, Future Dangerousness (John Weston Parry, Rowman and Littlefield, 2013) quoting from The Mentally Disabled and the Law (1st ed 1961) Once the legal pillars supporting insanity and diminished responsibility were largely removed from the criminal law, it became much easier to directly tamper with mens rea.
According to Yale Law Professor Gideon Yaffee in a New York Times opinion piece, felony murder, drug trafficking, and various corporate crimes are prominent examples of offenses in which mens rea is no longer a requirement for obtaining a guilty verdict. As Yaffee points out, “mens rea means that causing harm should not be enough to constitute a crime; knowingly causing harm should be [required]….” Yet, once the Anglo-American legal principles governing diminished culpability for people with severe mental disabilities were tossed aside in an overreaction to a very unpopular, but just, Hinckley verdict, it did not take long for mens rea to be sacrificed as well. All of this was done in order to allow our justice system to arrest and incarcerate more people than any other nation in the world, by far.
Not surprisingly to anyone who has regularly read, watched, or listened to the national news, the targets of that mass incarceration have been people of color, those with mental disabilities, and juveniles at risk. When one arbitrarily removes the mental requirements and defenses from the criminal law, convictions mushroom. Without having to establish mens rea, people with diminished cognitive capacities, including juveniles and persons with mental disorders, are unable to “offer evidence of their distorted perceptions….” And no defendant can claim lack of knowledge that a crime was being committed as a defense. A crime without mens rea is analogous to strict liability in civil matters involving harm to persons or property, regardless of actual intent. Yet, instead of civil damages being awarded, lengthy imprisonment may be imposed.
These types of criminal laws have become so unfair and unjust to defendants that even prosecution-happy governments are beginning to recoil. “Ohio and Michigan have passed mens rea reform laws,” and the federal government is considering doing the same, but, of course, not where a person’s mental status might be used as a defense. The proposed reforms deliberately exclude “statutes that make it clear that no mental state need be shown for guilt….” Ironically, this incremental push to reestablish mens rea as a requirement for any crime to be proven comes not from liberal Democrats, but “the likes of the Koch brothers and the conservative Heritage Foundation.” The conservative selling point is not trying to correct injustices perpetrated against the poor, people with mental disorders, juveniles at risk, and racial minorities per se. This effort appears to be focused on making it more difficult to convict companies and their leaders of corporate crimes, as well as to save money in a grossly inflated and poorly managed American prison system that is wasting billions of taxpayer dollars each year.
The Bergdahl Case
As detailed in the New York Times, in 2006 two years before he joined the Army, Bowe Bergdahl had a “psychological breakdown that caused [him] to wash out after just a few weeks of Coast Guard basic training. He was diagnosed as having an `adjustment disorder with depression.’” This breakdown apparently occurred because he had a “panic attack” at the thought of having to rescue people at sea, and then failing to do so when put to the test. Normally such psychological issues, which might endanger other soldiers, would have made him automatically ineligible to enlist in the Army. Due to the Army’s “desperate [need] to find recruits,” however, he received a special waiver and was sent to Afghanistan anyway. At this point, the Army was not overly concerned about how Bergdahl’s behavior might compromise the safety of other soldiers.
Moreover, initially, Sergeant Bergdahl appeared to be a model soldier. The first military officer—a general—to investigate Bergdahl’s alleged desertion described him as one of, if not, the best soldiers in his platoon. The sergeant’s service record was deemed “exemplary.” Then Bergdahl began obsessing about conditions in his unit, which appears to have been a reaction reminiscent to his Coast Guard breakdown. It was diagnosed later as being a manifestation of his “schizotypal personality disorder.” In June 2009, Bergdahl left his post without his firearm in an unrealistic—arguably delusional—attempt to raise awareness about his concerns that the war effort in Afghanistan was being mismanaged. Bergdahl had hoped to cause a major disruption, which would get his commanding general’s attention. He did manage to get the general’s attention, but that was because Bergdahl disappeared after being captured by insurgents and turned over to the Taliban.
According to a defense department official in a Washington Post article, for 3½ years Bergdahl “was beaten with hoses and copper wire, starved and left without medical treatment despite severe diarrhea….” He “will require a lifetime of medical care as a result of the injuries he sustained during captivity….” To his credit, “Bergdahl tried to escape multiple times, at one point making it nearly nine days before he… was taken captive again.” After nearly five years as a hostage, he was freed as part of a politically “controversial swap approved by the White House in which five Taliban detainees were released from Guantanamo Bay, Cuba.” Both the Army general, who had conducted the initial investigation about the circumstances behind Bergdahl’s capture, and the military officer who had presided at the alleged deserter’s preliminary hearing, recommended, given the overall circumstances of his capture and years of captivity, that the soldier receive no jail time.
Unfortunately, according to the New York Times, several high profile Republicans “in Congress and on the presidential campaign” turned the case into a political manifesto by “declare[ing] the sergeant guilty and demand[ing] stiff punishment.” Most influentially former POW and “Senator John McCain, the chairman of the Senate Armed Services Committee, threatened to hold a congressional hearing… “`if it comes out that he has no punishment.’” The House Armed Service then upped the ante by publicly announcing that it too was “tracking how the Army was handling the Bergdahl case as part of its ‘oversight responsibilities.’” Furthermore, the Republican presidential front-runner, Donald Trump, “called Sergeant Bergdahl a `traitor’… and falsely claimed five soldiers were killed searching for him.” Trump opined that Bergdahl should be executed.
Following those Republican political tirades and threats, the army general in charge of making the decision, without further explanation, ordered a general court martial, ignoring the recommendations from the general who had investigated the case initially and the preliminary hearing officer. Even though no American soldiers had died as a result of Bergdahl’s actions as Trump charged, the defendant still faces life in prison if he is found guilty of endangering U.S. soldiers. This is the harshest possible sentence that could be inflicted, and disproportionate to his offense, even if he had not been mentally ill, had not been in brutal captivity for nearly five years, and was not facing lifelong physical and mental impairments as a result.
Hinckley and Bergdahl: Political Prisoners with Mental Disorders
The United States is not a forgiving or enlightened nation when it comes to imprisoning men who are charged with crimes, especially if they have mental disorders or are devalued due to their race or ethnicity. Women often fare better in our criminal justice system, but even with those sexist, gender allowances, our approach to criminal justice falls well-short of respecting and valuing human dignity, especially when compared to what has been achieved by industrialized nations in Europe. The European’s respect for human dignity in jails and prisons, their rational gun policies, and their more treatment-oriented approaches to substance abuse have produced far better and cheaper results in fighting crime, other than terrorism. European criminal justice systems imprison a much smaller percentage of their populations, impose much shorter and humane prison sentences, do not resort to the death penalty, and, most importantly, have much better recidivism rates than in the U.S.
Until Ronald Reagan became President and was shot by John Hinckley thirty-five years ago (March 31, 1981), there was substantial support in the United States for fully implementing a rehabilitative approach to criminal justice. If implemented that approach would have: (1) continued to recognize and account for diminished culpability and developmental immaturity in sentencing; (2) provided humane prison and jail conditions, with specialized care and treatment where needed; (3) continued to separate juveniles from adults based on developmental immaturity, rather than the nature of their crimes; and (4) allowed former prisoners to have the same rights and entitlements as any American citizen or legal resident.
Instead, President Johnson’s war on poverty became President Reagan’s war on the poor and the disadvantaged. New wars on crime were waged as well against juveniles at risk, people of color, people with mental disorders, drug users, and the notion of rehabilitation as a critical consideration and expected outcome in the criminal justice system. Fear-mongering politics took our Constitution and compassion hostage in hysterical efforts to “get tough on crime” and on criminals, especially alleged offenders we feared and loathed the most, who lacked the financial resources to fight back. No person fomented and symbolized that change in criminal justice politics more so than John Hinckley, even though he was a white man with millions of dollars at his disposal as the son of wealthy parents. Politics and mental illness overwhelmed his privilege.
The rule of law and U.S. Constitution clearly indicated what should have been done after a jury, under the federally controlled laws of the District of Columbia, found Hinckley not guilty by reason of insanity. He should have been treated and cared for in the least restrictive appropriate setting until his mental disorder, which was the alleged source of his dangerous behavior, improved enough that he would be released from federal custody. The federal government, however, through its prosecutors and other officials, made a mostly secret promise to subvert the Constitution and the rule of law where Hinckley was concerned. Federal government officials did everything within their power—and more—to prevent Hinckley from ever being released, even if it meant distorting, manipulating, and fabricating psychiatric evidence and testimony.
Unfortunately, the federal courts largely complied with the federal government’s pressure and demands. While Hinckley eventually was able to secure increased opportunities to leave St. Elizabeth’s, where he has stayed all these years, as of today he still has not been granted his unconditional release. Yet, for nearly twenty-five years there has been little or no substantial evidence that he posed a danger to anyone, and overwhelming evidence that he did not. Moreover, after Jim Brady, who was shot in Hinckley’s assassination attempt, died in August 2014, the federal government seriously contemplated retrying Hinckley for allegedly murdering Brady, even though Hinckley already had been found to be legally insane for that act.
In addition, a former St. Elizabeth’s psychiatrist and head administrator, who had been a lead figure in conspiring to keep Hinckley confined, wrote a letter to the court expressing his continuing doubts about unconditionally releasing Hinckley. The psychiatrist did this even though the current hospital’s staff and new administration had recommended Hinckley be released. According to them, Hinckley had “sufficiently recovered his sanity and will not be a danger to himself or others in the reasonable or foreseeable future,” which has been true for many, many years now.
Assuming Hinckley is finally released—which is not a certainty nearly a year and a half after St. Elizabeth’s made its current recommendation to a federal judge—and Bergdahl is found guilty in his court martial of the most serious charges against him, then Bergdahl will assume the mantle as the most highly visible American political prisoner in federal custody. Unlike Hinckley, the threat to Bergdahl’s freedom was not internally motivated, at least not initially. The Army and the military justice system were on track to do the right thing by recommending that Bergdahl receive no further punishment and not be subjected to a general court martial.
It was only after the outside pressures were applied by high profile Republican politicians, who have a large say in determining what funding the Army receives, that minds at the top of the Army chain of command were changed. Once the Republicans made such a big political stink, the general in charge of the military command where Bergdahl had been assigned after his release, ordered a general court martial. This military prosecution apparently will include charges that could result in a sentence of life in prison.
Like the Hinckley case, the emerging Bergdahl travesty of justice seems to be a crass political exercise. The credibility of the military justice system is in danger of being compromised, especially in light of the political travesties of justice at Guantanamo Bay, which were even too much for Justice Scalia to stomach. There are at least two political reasons that certain high profile Republican politicians are pursuing the persecution of Bergdahl. Both are petty and mean-spirited, but appeal to their constituents.
First, and the reason Bergdahl originally became a soldier of extreme political interest, had to do with the fact that his release was initiated and directed by President Obama and the democratically-run White House. If President Obama could not be tarred by false, right wing Republican- and Trump-inspired fabrications that he was never born in the U.S. and is a practicing Muslim—in other words not only is he black, but he is not even an American; nor does he share American values—then perhaps another misleading image of perceived disloyalty would stick: President Obama releasing presumably dangerous terrorists in order to bring home an Army deserter, who should have been executed on the spot.
Second, and more fundamentally, though, Bergdahl’s emerging persecution is justified by all the myths that our war efforts have spawned, especially the notion that we will do everything to protect and honor our loyal troops, who, unlike Bergdahl. would never think of doing anything other than to fight bravely. Apparently there can be no higher calling than giving one’s life to a bad war of which there have been so many, beginning with what was originally called the Viet Nam conflict and continuing through the Afghanistan fight for freedom.
As John F. Kennedy explained in getting the United States more deeply involved in Viet Nam, “in the final analysis, it is their war. They are the ones who have to win it or lose it. We can help them, we can give them equipment, we can send our men out there as advisers, but they have to win it, the people of Vietnam, against the Communists.” This line of reasoning established a precedent and rationale for getting us entangled in wars that have been repeated by Democratic and Republican presidents alike, many times. Unfortunately, in the name of war, our Constitution and the rule of law continue to be collateral damage.
In Bergdahl’s case, his mental illness and diminished culpability were inconvenient details that have been ignored without much protest. Even the Washington Post in calling for mercy and recognizing Bergdahl’s “human frailty,” allowed that “despite his psychological issues, he should be accountable,” as if his mental illness should not be used in coming to a just resolution of his case. This is different from Hinckley, whose alleged continuing mental illness—wanting and trying to have relationships with women—became the prime justification for depriving him of his constitutional rights. What Hinckley and Bergdahl share, however, in addition to becoming victims of federal politics, is our society’s lack of compassion for, and understanding about, two individuals whose criminal-like behaviors were instigated and largely defined by treatable mental disorders.