The Twinkie Defense Lives!

Assemblywoman Mary Hayashi, D-Hayward was sentenced to probation after pleading guilty to shoplifting in the Stockton Street San Francisco Neiman Marcus department store. She "pleaded no contest Friday to a misdemeanor charge and her attorney said a benign brain tumor might have led to the incident" (link above).

Defense attorneys never cease to amaze me by creatively finding ways to avoid culpibility. A brain tumor that destroyed part of the frontal cortex (as in the famous and partially mythical case of Phineas Gage) might increase impulsivity. However, if Hayashi had a tumor anywhere else her tendency for kleptomania would be unlikely. Counsel stated that the tumor had been successfully treated. It's size has been diminished, and so, according to Hayashi's counsel, her propensity to take things without paying for them has also shrunk--a happy ending.

Less happy was Dan White's murder of San Francisco mayor George Moscone and gay activist Harvey Milk in 1978. White was convicted of the lesser charge of involuntary manslaughter rather than first degree murder. Wikipedia recounts:

White's defense team claimed that he was depressed, evidenced by, among other things, his eating of unhealthy foods (inaccurate media reports that White's defense had presented junk food consumption as the cause of his mental state, rather than a symptom of it, would give rise to the legal term "Twinkie defense"). The defense argued that White's depression led to a state of mental diminished capacity, leaving him unable to have formed the premeditation necessary to commit first-degree murder. The jury accepted these arguments, and White was found guilty of the lesser crime of voluntary manslaughter.

The Hayashi and White cases have much in common. Neither suspect is "all there," either due to a brain tumor or depression. Thus it was not a premeditated crime.  Do not misunderstand me. An insanity defense is a necessary component in a just society . Daniel N. Robinson writes in The Great Ideas of Psychology (The Teaching Company) that  there "is no time in the recorded history of Western jurisprudence when there has not been an insanity defense. You will find it as early as the homicide laws of Draco in the ancient Greek world." More importantly in the development of English and American law, the Romans regarded a defendant as insane if he acted like a wild beast, "beyond the reach of reason." What "criteria have to be satisfied to qualify one as insane"? These "criteria have had a quite shifting history" (Robinson).

The shift has gone too far against the idea of personal responsibility. Today, depression, schizophrenia and other psychiatric ailments, brain tumors, child and spousal abuse, and systemic racism are used by defense attorneys in the courtroom, all with the expressed purpose of demonstrating either diminished capacity or justifiable reason for committing the crime. It is time to shift closer to the Roman ideal. We have seen some shift after the 1982 Hinkley case (trying the would-be assassin of President Reagan).

Two-thirds of the states that recognize the insanity defense now place upon the defendant the burden of persuading the jury that he or she was insane at the time of the offense, usually requiring proof by a preponderance of the evidence. A federal statute holds the defendant to an even higher standard, requiring proof of insanity by clear and convincing evidence (link here).

Bad Behavior and the Medical Model

The American public has shown interest in a recent scandal involving a married male politician getting into trouble by texting inappropriate messages and pictures. The politician found it impossible to remain in office and resigned and entered “rehab,” leaving open the possibility of running for political office again when “cured.”

This case interests me because it illustrates a societal shift in attitudes about deviant behavior. Bad behavior is no longer “wrong.” It is “sick.” Sickness can be cured and this politician’s career may be rehabilitated. On the other hand, when a mature individual is not ill but merely makes poor choices, the public considers the perpetrator to be morally flawed, and this flaw will last in perpetuity.

A quick examination of the history of the treatment of severe mental illness shows a similar, and I argue, laudable shift in attitudes. What used to be considered bizarre behavior has now been reframed as mental illness in many cases. In biblical times, behavior was viewed through the lens of morality. Deuteronomy reads: “Choose life (good behavior) so that you and your descendants will live…”Similarly, the Bible is fairly agnostic (pun intended) about the causes of King Saul’s depression and self-esteem and anger-management issues, but the moral lesson is clear—the king’s character defects bring his dynasty to an end. A few thousand years later, we can use the character of Sabbatai Tzvi as another example. This 17th-century false messiah had moments of rapture and times when “G-d hid his face from him.” (See the wonderful biography by Gershom Scholem, Sabbatai Sevi: The Mystical Messiah.) With 21st-century eyes, we would say that Sabbetai Tzvi was bi-polar. In the 17th-century, however, this man was viewed as a messianic figure by much of world Jewry because of his alleged closeness (and distance) with G-d and exemplary character traits. He was not evaluated as a man with a medical condition.

Similarly, Europeans suffering from schizophrenia during the middles ages were treated as victims of demonic possession and later as creatures to be put on display at a madhouse such as Bethlam hospital. The United States finally saw a change of social attitudes after the pioneering work of Dorothea Dix, a woman who worked for better treatment of the mentally ill—releasing them (literally) from their chains and insisting on humane treatment. Still, those we describe today as insane were characterized as capable of only limited (animal-like) capacity for human reason. Ms. Dix worked for their compassionate treatment. The insane were characterized as mentally ill more recently.

Today little controversy remains in calling many types of mental illness an illness. Most who have worked with schizophrenics or depressives will attest that a medical model fits—certain parts of the brain, down to the cellular level, function abnormally in these patients. We can measure differences in brain structure and levels of neurotransmitters between healthy and ill patients, and these patients benefit from psychotropic drugs. Like any other medical malady, professionals can give schizophrenics and depressives a diagnosis, a prognosis, and prescribe a cure. Treating schizophrenia or depression as a moral failing sounds barbaric.

Why stop there? Why not view all deviants as victims of an illness, best treated by treatment and the language of medicine instead of moral suasion and the language of morality?

Though it may appear that looking at behavior this way is a radical paradigm shift, looking at bad behavior as a medical problem can be traced back to Hippocrates’ four humours or the determinism and atheism of 18th-century Enlightenment thinkers or to the developmental theories of Sigmund Freud. Modern psychiatric research on anti-personality disorder (ASPD) supports the medical view. These psychopaths, unable to feel any empathy for another’s suffering, may have a biological problem, a brain malfunction.

Yet we are a long way from confidently naming what parts of the brain are altered by ASPD and even farther away from a prospective cure. Additionally, perhaps these severe maladies mentioned here—psychiatric (Axis I) cases such as schizophrenia and depression and a personality disorders (Axis II) such as ASPD—remain the only examples where the medical model fits. In most human behavior most of us want to believe that people have free will and are responsible for their behavior. Perhaps people simply make bad choices at times.