Fitness to Proceed: A Brief Look at Some Aspects of the Medico-Legal Problem under the New York Criminal Procedure Law
H. H. A. Cooper, Fitness to Proceed: A Brief Look at Some Aspects of the Medico-Legal Problem under the New York Criminal Procedure
Fitness to Proceed: A Brief Look at Some Aspects of the Medico-Legal Problem under the New York Criminal Procedure Law
H. H. A. Cooper 0 1
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1 Criminal Law Education & Research Center
A BRIEF LOOK AT SOME ASPECTS OF THE
MEDICO-LEGAL PROBLEM UNDER THE
NEW YORK CRIMINAL PROCEDURE LAW
"Would you tell me, please which way I ought to go from
"That depends a good deal on where you want to get to," said
"I don't much care where-" said Alice.
"Then it doesn't matter which way you go," said the Cat.'
The issue to be addressed in the present article is a very limited
one. Nevertheless, while it seems to have considerable importance
of its own, it is in danger of being overlooked or disregarded by
reason of its connection with a much larger and, in many ways,
more perplexing problem. The New York Criminal Procedure Law,
which came into force on September 1, 1971, introduced two
concepts which it proceeded to define successively: the "incapacitated
person '2 and the "dangerous incapacitated person."'3 The
medicolegal problems, of which some aspects are to be considered here,
reside in the identification of those persons and the application to
them of the procedural steps, which the legislation prescribes in
their case. It is proposed here to examine some of the problems
facing the lawyer and the psychiatric examiner in relation to the
"incapacitated person" as defined by the Criminal Procedure Law. It
is necessary to state at the outset, that it is not proposed to deal
* M.A. (Liverpool); LL.B. (London); LL.M. (New
Deputy Director, Criminal Law Education & Research Center and
Adjunct Associate Professor of Law, New York University. Formerly
Professor of Law, San Marcos University, Lima, Peru. Member of
Executive Board, American Society of Criminology.
1. C. DODGSON, "ALICE IN WONDERLAND," THE ANNOTATED ALICE 88
(1971). No apology need be tendered for citing the works of Lewis
Carroll, so often quoted in modern legal literature. It is worth
observing, however, that they seem to be quoted with uncommon
frequency in recent writings on the present subject; see, e.g., Dershowitz,
The Law of Dangerousness: Some Fictions About Predictions, 23 J.
LEGAL ED. 24, 25 (1971); Morris, Psychiatry and the
DangerousCriminal, 41 S. CAL. L. REV. 514 (1968).
2. N.Y. CODE Camn. PRO. § 730.10 (1) (McKinney 1971).
3. Id. § 730.10(2) (McKinney 1971).
with the extremely complex and near-inexhaustible subject of
"dangerousness." 4 It must, however, be adverted that the pressing
problem of the medico-legal standard of dangerousness, 5 the
legislative association of the adjective "dangerous" with the term
"incapacitated person" so as to mean something quite different, 6 and
the legislative proximity of these quite distinct topics7 are what
tend to divert attention from some of the more interesting problems
inherent in the basic, statutory definition. The intention here is to
focus attention upon these problems, to explain what they seem to
be and to show their relation to the practical application of these
standards. In order to do this, something of an "unravelling" must
be attempted, for some issues, relatively simple in themselves, have
become complicated by reason of their entanglement with others.
To essay even this modest undertaking within the limits set for
this article involves a number of presumptions. It would be
tempting to commence such an exercise with a jus-philosophical
discussion of interpretative criteria generally. It might be attractive to
set the consideration of the problems to be posed in their
appropriate historical setting, both to increase understanding and for
reasons of polish, as fine platinum enhances the qualities of a rare
jewel. It might be thought even more urgently pressing to examine
these questions by reference to the implications of the underlying
criminal policy. All these delights must be firmly eschewed. The
possibilities of usefully discussing the same problems at length from
each of these different perspectives is not discounted; it is simply
a luxury which cannot be afforded in the present context. Some
things must be taken for granted and the reasoned basis for their
assertion looked for elsewhere. While this limitation might be
thought to reduce the appeal and authority of the present endeavor,
it does at least have the merit of permitting concentration upon the
real problem herein isolated for examination, rather than dispersing
the energies of the discussant over a field too wide for comfort.
Attention thus will be focused upon a very small segment of this
legislation, a few words at most, in the knowledge that they are but
a part of a wider scheme of regulatory material whose associations
and effects must be presumed and accepted rather than ignored;
likewise, a surgeon, concentrating his skills upon the extirpation of
some small organ, is professionally cognizant of anatomy in general,
ethical standards and responsibilities, and a host of other associated
matters on different planes, without these interfering with his
primary activity. He who sets out to specialize is naturally in
selfimposed blinkers, but he is not blind.
The recognition of an individual in a criminal proceeding as an
incapacitated person carries with it consequences of considerable
moment to that individual and to society as a whole.8 The task of
making the appropriate identification so as to set off the train of
events posited by the law is divided rather unevenly between the
lawyer and the psychiatric examiner, with the court playing a
somewhat detached, supervisory role. Each of the professionals
involved in this decision-making process is faced with a difficult
set of choices as a result of the possibilities open to him in such a
situation. It is important to emphasize at this point that the choice
made is not necessarily a scientific one based simply upon the
selection of the proper principles deriving from the respective
disciplines, but rather, a question of policy reflecting certain ethical
predispositions. The entry into a profession means the broad
acceptance of that profession's major postulates and goals. Thus, the
psychiatrist is concerned primarily with the mental health and
in8. See Id. § 730.10 (McKinney 1971).
FITNESS TO. PROCEED
tegrity of the individual who is seen as a patient ° to whom the
medical profession is ministering in this hour of need. This
perspective determines the medical approach to the question of the
subject's capacity in this legal situation as decidedly as does that of
the lawyer. Perhaps it should be admitted that the lawyer is
somewhat less certain of the bases of his ministry1" than is the physician,
but he is no less sure of his primary purpose, which is to assist the
subject, his client, by the proper use of his professional skills in the
predicament which the individual faces at law. Both the lawyer
and the psychiatrist are thus endowed with the skills to assist the
individual, be he patient or client, but their respective disciplines
provide no reliable guide in the situation to be considered here as
to how that assistance should be rendered. In short, the
psychiatrist, by reference to his professional goals, has the urge to treat;
the defense lawyer, by reference to his objectives, is motivated by
the desire to recover his client's freedom at the earliest possible
moment that the law allows. While these aims may not necessarily
be incompatible, neither in general nor in any particular case, the
pursuit of either is potentially capable of warping the law to accord
with one or other of these professional predispositions.
The main danger in all this is that the policy of the statute
tends to be formed or reformed in action, as it were, by those
entrusted with its administration. The provisions relating to the
determination of capacity are devoid of an essential element until it is
supplied by the psychiatrist and the lawyer. Where the court is
fully cognizant of this possibility, it can act positively to adjudicate
the issue, taking into account the effect of these predispositions.
Not all courts are, however, so conscientious nor apprised of the
perils of somnolence in the face of medico-legal activism. It is all
too easy for courts to rule upon motions of this sort in a routine
fashion so that a pattern of facile acceptance of the expert's
viewpoint becomes established. 1 2 The expert all too easily becomes
mesmerized by the symmetry of his own diagnosis and prognosis,
unaware that these are based to a large extent upon rules of
convenience dictated by his own professional attitudes. It behooves
the court, which has most ample powers and the gravest of
responsibilities under New York law, to be ever alert against such
possibilities, and it is salutary to recall the words of a harsh critic
of psychiatry in the courts:
It is astounding that judges and correctional officials continue to
view psychiatrists as experts on human behavior when there is
considerable experimental and other research which shows laymen
to be superior to psychiatrists and associated personnel in the
judgment of people's motives, emotions, abilities, personality traits, and
It is easy to overlook the fact that the determination of incapacity
under New York law is neither exclusively a medical nor a legal
question; it is, in large measure, one relating to the proper exercise
of the Art of Judgment. 14 The courts ought to have a very clear idea
where the lawyers and psychiatrists are capable of leading them. As
the Cheshire Cat told Alice, you are sure to get somewhere if you
only go on long enough. But the court, unlike Alice, is duty bound
to care where it is going, and to that end, it must pay careful
attention to the words of the law as well as those duly appointed to guide
WHAT THE LAW SAYS ABOUT
THE INCAPACITATED PERSON
"It's too late to correct it," said the Red Queen: "when you've
once said a thing that fixes it, and you must take the
The New York Criminal Procedure Law provides that:
"'Incapacitated person' means a defendant who as a result of mental
disease or defect lacks capacity to understand the proceedings against
him or to assist in his own defense."'16 The issue of capacity is, in
the first instance, one for the competent court. The law provides
At any time after a defendant is arraigned upon an accusatory
instrument other than a felony complaint and before the imposition
of sentence, or at any time after a defendant is arraigned upon a
felony complaint and before he is held for the action of the grand
13. Hakeem, A Critique of the Psychiatric Approach to Crime and
Correction, 23 LAW & CONTEMP. PROB. 650, 682 (1958).
14. See H. Slesser, The Act of Judgment (1962). In the foreword, Lord
Denning gives as the cardinal virtues: "Patience to hear what each
side has to say; ability to understand the real worth of the argument;
wisdom to discern where truth and justice lie; decision to pronounce
15. C. DODGSON, supranote 1, at 323.
16. N.Y. CODE CnMW.Pao. § 730.10(1) (McKinney 1971).
jury, the court wherein the criminal action is pending must issue
an order of examination when it is of the opinion that the
defendant may be an incapacitated person.17
The result of such a determination by the court is the referral
of the defendant for examination in accordance with the terms and
conditions of the preceding sub-section of the enactment.1 8 The
prime product of such a court order is the "examination report"
defined by the statute as:
a report made by a psychiatric examiner wherein he sets forth his
opinion as to whether the defendant is or is not an incapacitated
person, the nature and extent of his examination and, if he finds
that the defendant is an incapacitated person, his diagnosis and
prognosis and a detailed statement of the reasons for his opinion
by making particular reference to those aspects of the proceedings
wherein the defendant lacks capacity to understand or to assist in
his own defense. 19
The receipt by the court of the examination reports it has
required gives rise to a number of possibilities. Where these reports:
show that each psychiatric examiner is of the opinion that the
defendant is not an incapacitated person, the court may on its own
motion, conduct a hearing to determine the issue of capacity, and
it must conduct a hearing upon motion therefor by the defendant
or by the district attorney. If no motion for a hearing is made, the
criminal action against the defendant must proceed. If, following a
hearing, the court is satisfied that the defendant is not an
incapacitated person, the criminal action against him must proceed; if the
court is not so satisfied, it must issue a further order of
examination directing that the defendant be examined by different
psychiatric examiners designated by the director.20
When, on the other hand, the reports show:
that each psychiatric examiner is of the opinion that the defendant
is an incapacitated person, or when the examination reports
submitted to the superior court show that each psychiatric examiner
is of the opinion that the defendant is a dangerous incapacitated
person, the court may, on its own motion, conduct a hearing to
determine the issue of capacity or dangerousness and it must
conthe district attorney.u2p1on motion therefor by the defendant or by
duct such hearing
When the examination reports submitted to the court show that
the psychiatric examiners are not unanimous in their opinion as
to whether the defendant is or is not an incapacitated person, or
There remains the possibility that:
17. Id. § 730.30(1) (McKinney 1971).
18. Id. § 730.20 passim (McKinney 1971).
19. Id. § 730.10(9) (McKinney 1971).
20. Id. § 730.30(2) (McKinney 1971). The term "director" as used in
this section is defined by § 730.10(5) (McKinney 1971).
21. Id. § 730.30(3) (McKinney 1971).
when the examination reports submitted to the superior court
show that the psychiatric examiners are not unanimous in their
opinion as to whether the defendant is or is not a dangerous
inthe issue of cpaeprsaocnit,y tohre dcaonugretromuusnstescso.2n2duct a hearing to determine
Enough has been cited to be able to comment usefully upon the
respective roles assigned by the law to each of those entrusted with
the administration of these provisions. It should be noted that
there is no presumption of capacity favoring the defendant; 23 it is
precisely because the court considers he may be an incapacitated
person that the machinery for deciding the matter is set in motion.
The law is silent as to how this opinion of the court might be
engendered. It is possible to conceive of the matter arising
spontaneously as a consequence of the defendant's appearance upon
arraignment. It is more logical to presume that the matter will be
drawn to the court's attention by the district attorney or the
defense attorney, although the law makes no express provision for
this to be done. It must, therefore, be noted that while neither the
district attorney nor the defense can prevent the court from making
an order for examination-indeed, if the conditions required for the
operation of the law are present, the court cannot prevent itself
from ordering such a referral-either one can be instrumental in
causing the court to make such an order where it might otherwise
have proceeded differently. Thus, the lawyer is not confined to
debating the question of the defendant's capacity; he can raise it as
Some observations must be made with reference to the definition
of "incapacitated person." It contains, patently, two exclusively
medical questions, namely whether the defendant is suffering from
a mental disease or a (mental) defect. These purely medical
findings are not debatable as such; the hearing is on the question of
capacity, not on whether the defendant has or has not a mental
disease or defect, and this latter is relevant only to the wider
context. It is here that the psychiatrist is seen to step boldly-or be
made, legislatively, so to act-out of the realms of psychiatric
medicine into the unfamiliar province of law. He is not allowed to
confine himself to the simple determination of the patient's
condi22. Id. § 730.30(
4) (McKinney 1971
23. There seems always to have been a distinction at common law
between the issue of capacity and the general issue of responsibility in
that there existed a presumption of sanity which formerly placed the
onus of raising the issue of insanity upon the defendant. See, e.g.,
Bratty v. Atty. Gen. No. Ireland,  A.C. 386 (N. Ire. 1961). On
the other hand, capacity or fitness to plead could have been raised by
any party or by the court itself.
tion, leaving the lawyers to argue about what that means; instead,
he must state in detail "wherein the defendant lacks capacity to
understand or to assist in his own defense. ' 24 This latter is
manifestly not an exclusively psychiatric question. Yet the psychiatrist
may be the determining authority in this matter under certain
circumstances. If both examining psychiatrists agree that the
defendant is not incapacitated and the court, following a hearing, is not so
satisfied, it must return the defendant for further psychiatric
examination-notwithstanding that the point upon which it is
dissatisfied is not an exclusively medical one, but rather, the question
of whether the defendant understands the proceeding. This is a
sobering thought for any lawyer. It should be an equally sobering
thought for the psychiatrist.
To be able to detail his reasons why the defendant lacks the
capacity to understand the proceeding against him or to assist in his
own defense involves the psychiatrist in a process fraught with
professional peril. He must himself "understand" the proceeding to be
able to gauge the lack of understanding of the defendant. The fact
that many psychotics are manifestly incapable of understanding
matters of far less complexity does not logically qualify the
psychiatrist to undertake the task. Many who are referred for his
examination will not be psychotics; it is equally true that many may
fail to understand the proceedings on grounds quite irrelevant to
the state of their mental health. What is involved in the notion of
"assisting in his own defense"? A defendant may have suffered
from a temporary amnesia, destroying his recollection of the matter
with which he is charged, as a result of which he may be literally
quite unable to assist in his own defense. 25 Yet, with perfect truth,
the psychiatric examiners might report in such a case that the
defendant did not lack capacity, which is the issue to be tried, to assist
in his own defense as a result of a mental disease or defect.26 The
24. N.Y. CODE Camn. PRO. § 730.10 (9) (McKinney 1971).
25. See, the interesting English case of Regina v. Podola,  1 Q.B. 325
(C.C.A. 1959). See, also Dean, Fitness to Plead, Cnm . L. REv. 79
(1960); Power, Memory Disorder and Crime, 7 MED. Sci. & L. 73
26. The defect might be a defect of speech or hearing. See, e.g., Regina
v. Roberts,  2 Q.'B. 329, 331-32 (1953) (Devlin J.). "It is clear
from the authorities that it is not merely defects of the mind which
may bring about the result. Defects of the senses, whether or not
combined with some defect of the mind, may bring about that
result, and the authorities are clear that, if there be no certain means of
communication with the accused so that there is no means of making
sure that he will follow as much of the proceedings at his trial as it is
necessary that he should follow, then he should be found unfit to
court might well be of a contrary view; yet it cannot settle the
question of capacity on its own motion, but must refer the issue
back for further examination. And what of the case where the
next two examiners render the same answer? And the succeeding
examiners? Who shall bow before the storm of professional
Then again, there are some mental diseases and defects which
do not impair understanding of the legal proceedings, for they do
not affect that area of the defendant's functioning nor do they
prevent him from effectively assisting in his own defense. Perhaps
the most controversial among such conditions is psychopathy.
There is much disagreement among psychiatrists as to what this
condition is27 and about what can be done concerning it; but there
are few psychiatrists who would not claim to recognize the
condition when they see it,28 or be able, with a fair degree of confidence,
to interpret it for the benefit of the courts. Yet much of such
interpretation depends upon what the psychiatrist himself believes
about psychopaths. 29 And it is undoubtedly true that some
psychopaths at any rate are capable of arousing very strong emotions in
some psychiatrists. 30 The psychiatrist may well consider the
psychopath to be grossly abnormal and to be suffering from a defect
of the mind, if not a mental illness, such as to bring him within the
scope of these provisions of the Criminal Procedure Law on that
account; whether, as a result, he is lacking in understanding of
the proceedings against him or unable to assist in his own defense
is quite another matter. It may be briefly remarked that
psychopaths can be notoriously uncooperative when they so choose,3 1 and
this lack of empathy often finds a distorted echo in the
psychiatrist's report. Does, then, the psychopath lack the understanding
envisaged by the legislator, or does he just set himself against
understanding the psychiatrist? It is clearly wrong to equate an
impairment in judgment, such as might be characteristic of
psychopathy and some other conditions, with an inability or lack of
capacity for understanding.
Finally, a legislative peculiarity should be noted. While
seemingly the court cannot override the medical opinions where both
examiners are in agreement that the defendant is not an
incapacitated person as defined by the law, the case is different where they
are in agreement that the defendant is an incapacitated person.
There, the court is directed to hold a hearing upon the issue of
capacity where this is moved for by the district attorney or the
defense, or it may do so of its own motion. As a consequence, it
may be satisfied that the defendant is not an incapacitated person,
notwithstanding the medical evidence to the contrary, and without
further referral to other examiners, it must order the criminal
action to proceed. Thus, while the psychiatric profession does have
the last word where it insists that the defendant is not an
incapacitated person, this is not the case where it argues, however,
vehemently and uniformly, that he is. It is difficult to see why this
should be so, for if the profession cannot be trusted absolutely in
its pronouncements about one category, it ought not to be trusted
absolutely with respect to its logical opposite. This odd distinction
can only be explained in terms of legal deference, in this one
respect, to medical knowledge upon the question, in itself a curiosity
reminiscent of compurgation at early common law. It quite
overlooks the fact that the question of capacity, as it is posed by the
Criminal Procedure Law, is not an exclusively medical one, neither
in the one case nor in the other, but one upon which the court
ought, in every case, to be free to make the appropriate finding
after giving proper weight to the expert and other evidence. 32
32. It has been well said that: "If there is an absence of detail in the
statutory law regarding competency and a confusion in the common
law on that same issue, one might well anticipate a confusion and
lack of understanding of the issue by psychiatrists whose
responsibility it is to render an opinion on the matter. Such a lack of
understanding and confusion about the legal criteria and other medical
findings is, indeed, the reality in this area." Rosenberg, Competency
for Trial--Who Knows Best, 6 Cani. L. BuLL. 577, 581-82 (1970).
In the wrangle between psychiatrists and lawyers for the distinction
of pronouncing definitively upon this question, it is sometimes lost
sight of that important considerations of penal policy are involved
even in its being posed. John Magnus has said: "While the
determination of competency to stand trial represents an important legal
THE DOCTORS' DILEMMA
"How do you know I'm mad?" said Alice.
must be", said the Cat, "or you wouldn't have come
No legal decision is made in a social vacuum. Every
determination is made upon the unspoken premise that it is part of a
multiphased, social continuum and that it will give rise to the next
appointed step in a sequence of juridically predestined events leading
to the theoretical reestablishment of the societal equilibrium.3 4
Each participant who is invested with decision-making capacity
must be aware, if he is to act responsibly, that his own
determination is likely to give rise to a number of consequences directly
related to the person affected by his decision, and moreover, that
most of those consequences, so far as the execution of that
particular decision is concerned, will be mainly out of his control. It
behooves him, therefore, to choose wisely and well, for it is very
often his only chance to play an influential role in the situation in
which he is appointed to act. This is as true for the lawyer as it is
for the psychiatrist, but the former, because he is acting in a more
familiar milieu, is perhaps less susceptible to the pressures and
more able to maintain the momentum of his impact through
successive professional interventions. All this must be set against the
dramatic backdrop of the adversary character of our procedures and
the grave responsibilities of making a determination vitally
affecting the liberty of the subject. It is clear how professional attitudes
come to play an important part in the discharge of these weighty
In the judging of attitudes it is important to remember that law
question, it also symbolizes a vital social principle. It represents
mankind's painstaking efforts to deal with the problem of
simultaneously safeguarding the rights of both the individual and society."
Magnus, Mental Incompetency, 18 BAYLOR L. REv. 22, 23 (1966). It
is sometimes overlooked that the most important evidence of the
mental capacity of the defendant may be obtained from that person
himself in open court. "The determination concerning an accused's
fitness to stand trial must be based on the aggregate of all the
relevant evidence presented and not on any one isolated factor." Id. at
73. David Bennett comes to the heart of the matter with the
observation: "The defendant should be found unfit to proceed not simply
because he has some type of mental illness, but because he cannot
properly perform his role at the trial." Bennett, Competency to Stand
Trial: A Call for Reform, 59 J. Cnm~. L.C. & P.S. 569, 574 (1968).
33. C. DoDrsoN, supra note 1 at 89 (1971).
34. In the present connection, the court on making its determination
under either N.Y. CODE Canvr. PRo. § 730.40 or § 730.50 (McKinney
1971) must have in mind what is provided by the next two sections.
and medicine do not always speak the same language.3 5
chiatrists of each other's professional roles, procedures and
predispositions.3" The essential differences, however, remain and their
importance should not be minimized. In this connection, it is worth
citing in extenso a distinguished forensic psychiatrist, Benjamin
It must be first clearly understood that insanity is entirely a legal
term comprising behavior that is grossly and obviously abnormal;
hence, a mental defective without any evidence of psychotic
manifestations is legally insane, since he cannot choose, because he does
not understand the difference between right and wrong; while a
very intelligent and clever paranoiac, obviously psychotic from a
psychiatric point of view, is often freed by the judge and jury as
not insane. In contradistinction, most psychiatrists emphasize the
term psychosis and view that every individual suffering from a
psychosis cannot be held accountable for any crime committed, it
being presumed that such a crime is the result of an existing
mental disorder. They will, however, wash their hands of the
psychopathic individual and thus accord with the legal profession
that he is legally responsible though they will, unlike the lawyer,
concede that he is mentally abnormal even if not suffering from
a psychosis.3 7
While it is not here asserted that Dr. Karpman's views are shared
unreservedly by all psychiatrists, they are sufficiently
representative of those held by the profession to warrant a consideration of
their effects. The question arises as to what these attitudes mean
in practical terms in relation to the type of determination the
psychiatrist is called upon to make under the New York Criminal
First and foremost, the psychiatrist knows that his decision
means, quite simply, the difference between treatment and
punishment. Incapacity on mental health grounds means that the
criminal proceeding is truncated and the defendant ceases to be
regarded as a potential criminal, but rather as a sick person. The
psychiatrist has, quite properly, the strongest urge to treat such
persons. As another psychiatrist has said,
Indeed, it is only humane not to subject these people to the expe
rience of an open trial and to let them hear themselves being
dis35. "Part of the problem lies in the vagueness of terms such as ability to
understand charges, ability to understand legal proceedings, or ability
to assist counsel. Obviously, these terms can only be defined
quantitatively." Halleck, A Critique of Current Psychiatric Roles in the
Legal Process,1966 Wis. L. REv. 379, 400.
36. Polier, supranote 9, at 12.
37. Karpman, Criminality,Insanity and the Law, 39 J. Cam. L. & C. 584,
cussed as of unsound mind and be confronted with the proposition
that their ideas are all bosh. Such an experience is definitely the
reverse of therapeutic. If we are to expect these people to get
well after they have been sent to a mental hospital
should do something to prevent their having this experienpceerh.3a8ps we
This last sentence shows very clearly how a professional perspective
might color an examiner's actions under the statute and it is most
important to bear in mind its effect in "tipping the scales" in
borderline cases. The structure of the law and its operative procedures
raise a presumption of mental illness in the mind of the psychiatric
examiner. The metaphorical ball has been placed firmly in his
court by this referral. He reacts to this presumption as a being
conditioned by professional thinking on this subject and by reason
of his own conception of his role in this decision-making process.
This is obviously a very subjective matter in many instances.
Were the psychiatrist confined to the question of whether the
defendant is or is not suffering from a mental illness or defect and
to an explanation of the probable effects of that condition upon
the defendant's behavior, some of the suggested difficulties might
disappear. The psychiatrist is, however, specifically charged under
New York law with another function, involving the use of other
judgment criteria, to interpret his findings in a non-medical way
so as to produce a non-medical value-judgment upon the
defendant's condition. Let us consider, practically, the implications of
this. Dr. Gaylord Coon tells us that, "The brilliance and alertness
of the manic is such that he is quick to see the many relationships
and associations in conjunction with words and objects." 39 A manic,
who qualified for such a description of his capabilities while passing
through this phase of his psychosis, could hardly be said to "lack
the capacity to understand the proceedings against him." Indeed,
the heightened perceptions of his diseased condition might even
startlingly elucidate for him the elements of his legal situation so
that he is able to appreciate them much more realistically than a
person whose senses and affect are unimpaired by mental illness.
Yet, as the same writer goes on to show us, the manic is,
nevertheless, abnormally imprudent and his judgment is impaired by his
psychosis. 40 Even so, it is doubtful if this can be said to affect his
understanding; he will know that he is in a court of law, and that
he is facing a criminal proceeding, and he may well know the
sections of the law under which he is charged and the alternatives
open to the court in his case. It might be argued that this
FITINESS TO PROCEED
dence, this lack of judgment, might hinder the defendant from
assisting in his own defense. Certainly, he might make a bad
impression upon the court and his attitude towards his lawyer might be
distinctly unhelpful. Yet it is difficult to see that this is what the
legislators had in mind. It is not hard to imagine how a psychiatrist
might report in such a case, harmonizing his professional criteria
with the words of the law so as to find the defendant an
incapacitated person. It is questionable, however, that the words of the
law have the elasticity to meet such a case. Certainly Dr. Coon
entertained no doubts concerning what ought to be the disposal of
such a person. He said, "The manic patient must be kept in a
mental hospital in order to protect him from his own folly and
Then again, in making his value judgment, the psychiatrist is
acutely conscious of his own lack of facilities to treat or even
contain some types of mentally ill offenders. Dr. Abraham Goldstein
has said, "The mental hospitals do not want to receive 'criminal'
types, principally because psychiatry is usually unable to treat
them; the few successful methods of treatment are so expensive as
to make them a practical impossibility."42 As many studies have
shown, 43 the psychiatrist tends to err on the side of caution in
relation to the assessment of dangerousness. In a statute like the one
presently under consideration, where the issues of capacity and
dangerousness lie side by side,44 often to be determined by the same
participants using the same procedures in the same proceedings, it
is inevitable that the one should become tainted by the other. The
medical profession is very conscious of its responsibilities in these
matters, and particularly of the public rather than the private
consequences of an error of judgment.45 As a practical matter, this
translates into caution and overprediction: 46 it is better to
hospitalize than to turn a potentially dangerous defendant back to the
criminal justice administration, whence he might, all too rapidly,
find himself out on the streets once more. Thus the issue of
capacity is not dealt with by reference to the narrow limits prescribed
for it by the statute, but according to considerations which, strictly
speaking, have nothing whatsoever to do with it. This point is
strikingly made in the Michigan study on the competency of insane
persons to stand trial, where it is stated:
The records also indicate that some of the examining physicians
assumed the role of moral experts. In one case the doctor
recommended commitment because of the patient's "hostile and
aggressive tendencies." . .. In another instance the examining
physicians said: "We actually feel the patient could co-operate with
counsel but that it would be better if he were to be hospitalized
in Ionia [state hospital]." This departure from the physician's
proper role as expert medical witness seems to be based on two
factors. [One of which is that] the physician does not
understand that the legal objective is the narrow one of determining
whether the defendant is competent to proceed with trial but
rather tends to think of his function as a broader one of protecting
society, the defendant, or both. Implicit in many of the physician's
recommendations is the feeling that the individual defendant is
tshuacht hae psahtohueltdicnofitgbuerecoannsdignsoedctloeaprlryisonno.t47responsible for his crime
The authors conclude: "It is our judgment that as a result of this
loose application of the competency tests, persons are being
committed to Ionia who are not in fact legally incompetent.14
However well-meaning this officious policy-making, it results
distressingly often in the sacrifice of the private interest to the supposed
The real issue here is the injection by the psychiatrist of his
own ethical standards into this value-judgment so as to usurp a
function which is not a medical but a legal one. As Melvin Belli
neatly poses the question, "Does the medical expert have the right
(or the duty) to infuse his ethics into the factual court
investigation. . .. ,,49 The point has been well made that: "It should be
noted that the concept of incompetency as it exists in the law does
not exist in medicine. No physician within the framework of his
science or his experience alone can sensibly state that a given
individual is incompetent. Incompetency is a legal definition, not
amenable to precise medical standards of mental health." 50 The
psychiatrist might properly respond that under New York law he
has been invited to perform this evaluative function. The
replication, then, would be that the legislature can certainly impose the
duty, but it cannot thereby endow the psychiatrist with the
professional capacity to undertake it. The psychiatrist would be less
than human had he no opinions upon some of the evaluations made
by lawyers and judges resulting from the materials that his own
professional competence allows him to present. 51 What is here
suggested is that those opinions have no more legal relevance in the
present context than those of any other non-qualified person in
treating a legal question. It has been correctly observed that:
The greatest danger of permitting a psychiatrist to testify in
conclusory fashion about legal criteria is that the doctor may have
his own notion of the substantive legal standards required for
commitment. And that notion may differ markedly from that of the
court, but the difference may easily go unnoticed and unexplored
at the hearing-particularly if neither the court nor the patient's
lawyer vigorously questions the doctor.52
Psychiatric evidence as to the state of the defendant's mind at the
time when fitness to proceed is in issue is indispensable. It should,
however, be limited to the medical as distinct from the legal
question. This is a matter where, "The medical profession must give
proper deference to the ultimate responsibility of the judiciary for
the determination of legal questions." 53
It has been most elegantly suggested 54 that this latest flirtation
of law with medicine is but one in a long line of similar,
promiscuous indiscretions stretching back to a less mature age. The same
writer has remarked that: "On the one hand, law has permitted
medicine to go too far too early, and on the other, law has not
responded soon enough."5 5 The present case seems to be one in which
"fickle law" has responded over-generously and perhaps a little
unwisely to a not over-enthusiastic suitor. At common law the issue
of fitness to stand trial was a matter for non-medical men, a judge
and jury, who would receive, not always enthusiastically even in
medical evidence upon the question which they
would then determine after their own fashion. This, in the State
of New York, became transformed into determinations by the
Lunacy Commission, a body peculiarly prone to improper extraneous
influences, and one which cannot be said to have decided these
matters satisfactorily. 57 Very properly, medicine was then invited,
subject to certain safeguards, to resolve the question pertaining to
its own discipline and a notable improvement resulted. It cannot
properly be argued 58 that the entire question of competence was
thereby handed over to the psychiatrists as a medical question, for
that most certainly it is not. At the bottom of this lies a significant
policy question which perturbs lawyers deeply. As Henry
Weihofen has said,
If the legal criteria for commitment are not made clear in the
question, the doctor may be asked to apply his own political
philosophy, determine the fundamental policy issue by his own lights
and give us his policy decision. None of us truly believe that this
is purely a medical question to be decided by medical experts.59
LIKEWISE THE LAWYERS'
"There's the King's Messenger. He's in prison now, being
punished: and the trial doesn't even begin till next Wednesday: and
of course the crime comes last of all."60
Were the psychiatrist asked to make a quick response as to what
he conceived to be his main professional responsibility, it would be
reasonable to suppose that he might aver: the mental health of the
patient. The lawyer to whom a similar question were addressed
would have no hesitation in replying: the rights of the subject.
Guilt and innocence are not mental health concepts,(" and can be
largely disregarded by the psychiatrist, but they are basic and
indispensable to the life of the Law. The criminal lawyer, whatever
his assigned role in the legal drama, is constantly aware that the
exercise of his profession involves the liberty of the subject, and
often his life, property and reputation as well. The lawyer's
thinking is molded by these realities; he necessarily thinks in terms of
capacity or competence, 62 pleading and trial, guilt or innocence,
sentence and sanction. And these concepts follow each other in
logical sequence, so that the Rule of Law be established and
observed. When these concepts become disordered, or if the
individual processed is somehow diverted or recycled, the lawyer tends
to become indignant on the subject's behalf. There are no areas
where his susceptibilities are so sensitive as those touching upon
the relinquishment of these grave responsibilities to those
professing other disciplines, however well-qualified or well-intentioned
59. Weihofen, The Definition of Mental Illness, 21 OHio ST. L.J. 1, 10
60. C. DODGSON, supra,note 1 at 248 (1971). Lawrence, The
PsychiatricoLegal Communicative Gap, 27 Omo ST. L.J. 219, 231 (1966): "A
psychiatrist of long and fruitful experience once remarked that the
difference between the normal man and the one who is mentally sick,
was that the latter was inside the wall of a hospital and the former
61. Polier, supranote 9, at 16.
62. There appears to be no forensic difference between these terms and
they are used quite frequently in an interchangeable fashion in the
same literature indicating that they have the same sense to the
writer. Funk & Wagnalls New Standard Dictionary of the English
Language treats the terms as synonymous. In HALE, 1 PLEAs OF THE
CROWN 34, it is stated that: "If a man in his sound memory
commits a capital offense and before his arraignment he becomes
absolutely mad, he ought not by law to be arraigned during such his
phrensy, but be remitted to prison until that incapacity be removed.
The reason is that he cannot advisedly plead to the indictment."
such persons might be.63 Such thinking dominates the lawyer's
consideration of questions such as those which arise under the
statutory provisions which are presently being examined. These
attitudes tend to be sharpened or exaggerated according to the
circumstances of the case, the precise matters in issue and whether the
lawyer's role is that of judge, prosecutor or defense attorney-it
will not be overlooked that the judges of the criminal courts, upon
whom falls the burden of deciding these questions, are cut from
the same professional cloth and receive the same, distinctive
intellectual impress. If there is one overriding belief that all good
lawyers share, whatever other components of their respective creeds
might differ, it is that rule of objective justice which decrees that
the innocent ought not to be punished. Whoever might or might
not fall within that elastic category of "innocent" depends largely
upon the lawyer's standpoint, but it is a cardinal rule of the
common law that a man is innocent until he shall be proven guilty
before a competent court by due process of law.
Now, unquestionably, the loss of liberty for however short a
time constitutes a punishment. The thought of an innocent man
being so punished is revolting to all right-thinking lawyers, but
it is recognized that, on occasion, the wider interest of the public
at large must prevail. The lawyer bows, albeit ungraciously,
before what has been called "administrative convenience." 64 Hence,
the "good" lawyer resigns himself to there being a modicum of
pretrial detention in the interests of society, though the militant
libertarian might shy even at that. It is realistically, if reluctantly,
admitted that, "No legal system could function without often
disregarding individual distinctions ... ."6 The notion of committing
the client to an indefinite deprivation of his liberty, without the
issue for which he has been inducted into the criminal justice system
ever having been resolved, is one at which most lawyers would
balk 6 6-unless there were some corresponding advantage to be
gained from accepting such a disagreeable imposition. This latter
is very close to the heart of the matter for the lawyer and
conditions all his thinking about competency and responsibility.
As a practical matter, the issue of fitness to proceed raises
serious ethical problems for the lawyer. He is primarily aware that
the determination that his client is an incapacitated person means
that the substantive issue at law is subordinated to considerations
which have nothing to do with the disposal of the criminal charge,
but instead, address themselves to the state of the mental health of
the defendant and the procedural issue of his ability to meet and
answer the accusations against him. One aspect of the lawyer's
dilemma is well illustrated by the English case of Regina v.
Roberts, 7 where the defendant, charged with murder, stood mute on
arraignment. The defense called evidence (which was not
contradicted) to show that the accused was deaf and dumb from birth,
but the court was not invited to draw any conclusions from that
fact with regard to fitness to proceed. Counsel for the Crown,
on the other hand, submitted that these facts raised a presumption
of idiotism and a presumption that the accused was unfit to plead.
The defense argued strenuously that this would put the accused to
an unfortunate election, prejudicial to his position, and moreover,
one unsupported by authority. Mr. Justice Devlin upheld that
[T]o insist on the issue of fitness to plead being tried might result
in the grave injustice of detaining as a criminal lunatic a man who
was quite innocent; indeed, it might result in the public mischief
that a person so detained would be assumed, in the eyes of the
police and the authorities, to have been the person responsible for
the crime-whether he was or was not-and investigations which
might have led to the apprehension of the true criminal would
not take place.08
Three years later, Mr. Justice Byrne, in another case similar on
the facts, felt constrained to differ from this determination, taking
the view, strongly supported by authority "that the law has
always been that an insane person cannot be tried .... (19
This is substantially the position as it has been legislated in
New York, but this learned difference of opinion points up the fact
that it is based firmly upon a policy consideration of "convenience,"
which might not be acceptable to all legal thinkers.
It has been well said that, "To be charged with both crime and
67.  2 Q.B. 329 (1953). This case is not, incidentally, authority for
the proposition for which Bruce Ennis has cited it. Ennis, supra note
63, at 120 n.58.
68. Regina v. Roberts,  2 Q.B. 329, 333 (1953).
69. Regina v. Beyon,  2 Q.B. 111, 116.
incompetence is to be twice-cursed. ' 70 This gives rise to a
"doublestigmatization" 71 that can follow the unfortunate defendant for the
rest of his days. It is clearly "acceptable" to the lawyer only where
it is inevitable, where, in other words, something worse might be
the defendant's lot were the effects of this double-stigmatization
successfully resisted. Too often the lot of the defendant can be
little more than one of hopeless resignation. In assessing the merit of
the available alternatives, the lawyer must alter, most
unfortunately and often unconsciously, the theoretical bases of the exercise
of his profession. The lawyer must make, in effect, a judgment
upon the guilt or innocence of his client in relation to the matter
with which he stands charged. This is a distortion of his function
and it matters little that some lawyers habitually form such
opinions in relation to their clients' guilt or innocence. It may usefully
be observed here that if the psychiatrist is confused and
confounded by the legislative association of the strictly unrelated issues
of capacity and dangerousness, the lawyer is likewise bemused by
the issues of mental health in relation to competency and in
relation to criminal responsibility. As a result, both the issue of
competency and that of responsibility generally become defense
bargaining counters, with the fate of the defendant decided not by
reference to what he is accused of having done in breach of the
criminal law, but rather with one eye upon what would be likely
to happen to him were the case allowed to proceed and the other
upon the duration of the possible deprivation of liberty were the
defendant committed as unfit. Committal becomes infected with
deterrence thinking,7 2 and the defense lawyer is turned into the
accomplice of the court in making a determination which might be
far from beneficial to the interests of the client. Thomas Szasz has
pointed out that: "There is evidence that, from the subject's point
of view, confinement in a mental hospital is more unpleasant than
imprisonment in jail."73 The lawyer is ever conscious that it is
much easier to enter a medical hospital than to secure one's
It was earlier observed that the New York Criminal Procedure
Law does not specify how and by whom the issue of the defendant's
incapacity might be brought to the attention of the court. In this
connection, an English case, Rex v. Dashwood,75 may usefully be
70. Ennis, supranote 63, at 117.
71. Morris, supranote 1, at 524.
72. 79 HARv. L. REV. 1288, 1290 (1966).
73. Szasz, The Insanity Plea and the Insanity Verdict, 40 TEVU'. L.Q. 271,
74. Ennis, supranote 63, at 113.
75.  1 K.B. 1 (C.C.A. 1942).
cited, for the Court of Criminal Appeal was there at pains to state,
"[I] t should be known, if there is any person who is not aware of it,
that the court acts in such a case on information conveyed to it
from any quarter.176 It is thus open to the defense attorney to
raise with the court, on the arraignment of his client, the question
of fitness to proceed, so as to cause the court to issue the
appropriate order of examination. The defense attorney has, therefore, to
give most careful thought to what is at stake for his client.
Crowded dockets, "slim" evidence, the plea-bargaining syndrome
from which the American criminal justice administration so
acutely suffers, 77 all make for the strong possibility of a light
sentence after a finding of guilt, against which the uncertainties of
hospitalization, on a finding of incapacity, must be weighed.
The lawyer might suspect, or even be professionally advised,
that his client would benefit from treatment. Is he, nevertheless,
entitled to press this view upon the client in the knowledge that
there is the possibility of acquittal on the criminal charge? Many
lawyers would unhesitatingly thrust aside all other considerations
and take the view that they owed a paramount duty to the client to
restore him to freedom as swiftly and expeditiously as possible on
the basis that, "[T] here are strong arguments for permitting
individuals to make 'wrong' decisions that are, on some objective scale,
against their best interests. 78s Some might well take a more
paternalistie view. On the other extreme, there are lawyers who
conceive that they owe a more comprehensive duty79 embracing
the wider interests of society to which the client must subordinate
his own, more immediate, selfish desires. It is important to see that
in taking such a view, the lawyer is acting upon the assumption
that the early release of the defendant, as opposed to his
hospitalization on the grounds of his unfitness to proceed, is likely to harm
the wider interests of society in general.
There is no practical difference between such a position and
that of the psychiatrist who acts upon his opinion as to the
defendant's dangerousness in determining his findings on the matter
of capacity. The psychiatrist justifies, to himself, his finding on
the grounds that the defendant needs treatment and that it is in
76. Id. at 4.
77. An article which vividly establishes the present point is Alschuler,
The Prosecutor'sRole in PleaBargaining,36 U. Cnr. L. REv. 50 (1968).
78. Ennis, supranote 63, at 106.
79. This is borne out by the facts. Foster, supra note 55, at 287: "I am
informed that within recent memory there has not been a successful
'not guilty by reason of insanity' plea resulting in an acquittal in
Manhattan. Dozens if not hundreds of cases have been disposed of on
the competency issue."
his own and society's interests that he receive it; the lawyer's
self-justification for his "recommendation" rests on the ground
that he owes it to society and his client to prevent further possible
harm to both. Yet is the responsible lawyer properly entitled to
ignore the probable consequences of his professional activity in
cases where such intervention can only result in the early release
of a person likely to cause substantial harm? 80 This is the true
nature of the lawyer's dilemma and it is identical with that of the
psychiatrist: both are endowed with special skills, the use of which
gives meaning and direction to the dry words of the statute. The
lawyer has no more right to read his personal or professional
ethic into the words of the law than has the psychiatrist. If one
accepts that this unaccustomed excursion, whatever its direction, is
predicated upon some apprehension of future harm, it must be
remembered that, "[I]n order to understand the concept of danger
one must determine what acts are dangerous and how likely it is
that they will occur."''s It must be admitted that a criminal trial
lawyer is generally far less qualified than is the forensic
psychiatrist to make such a prediction and that any which he might make
is even more likely to be colored by professional self-interest than
the corresponding prognostication of his psychiatric counterpart.
But in arguing about capacity as it is defined in the New York
Criminal Procedure Law, the lawyer stands firmly upon his own
ground, for this is a legal concept, whoever might be the authority
prescribed for its determination.8 2
HEAH COME DE JUDGE
"Consider your verdict," the King said to the jury.
"Not yet, not yet!" the Rabbit hastily interrupted. "There's a
great deal to come before that!"8 8
No study devoted to this subject can properly be concluded
without a few words dedicated to the judge. The judge is in
many ways but an extension of the lawyer into another realm.
Although he carries over into this new role the thought patterns and
assimilations of his early, partisan formation, elevation to the
Bench carries with it new and wholly different responsibilities,
which in turn contribute to the formation of attitudes and
projections. Upon the judge is placed, first and foremost, the
responsi80. See, e.g., the case cited by Karpman, supra note 37, at 596-97.
81. Livermore, supranote 43, at 84.
82. It should be noted that at common law, this question was always
regarded as one of fact for the jury. See, Rex v. Governor of His
Majesty's Prison at Stafford,  2 K.B. 81, and the review of the
authorities therein; Slovenko, supra note 59, at 410 n.36.
83. C. DODGSON, supranote 1 at 14
bility of decision. The psychiatrists may advise, the lawyers may
urge and argue, the defendant may disguise his feelings, act out his
emotions or stand mute, but it is the word of the judge that must
ultimately prevail in deciding whether the defendant is fit to
proceed in the matter before him. A "wrong decision" as to whether
a defendant is an incapacitated person may be based upon a grossly
distorted examination report, it may be induced by the policy of a
forceful district attorney, 4 or it may be the result of an
unscrupulous argument by a clever, dedicated, narrowly-blinkered
defense lawyer. Yet the responsibility is that of the court, to
which the statute entrusts the matter of deciding. It is, therefore,
well for the court to take note of the perils and to decide according
to the evidence, rather than by reference to any built-in theories
of routine disposal. The court should be above bias and beyond
prejudice. Only thus can the issue of capacity be given a fair trial.
The twin enemies of the judge in this, as in other fields, are
haste and professional pressure. He must be constantly on guard
against the insidious influences of both. Above all, he must
understand the influences which are at work upon both the lawyer and
the psychiatrist, for it is only in this way that he can understand
the working of these self-same influences upon his own thought
processes and determinations. Justice is not done when the court
pays scant attention to these policy-making aspects and, instead,
leaves the decision as to capacity to the psychiatrist or to the
lawyer. The court under New York law is assigned an activist role,
and accordingly it must develop a thorough-going and wholesome
policy towards this question of capacity so that these provisions are
neither converted into an escape hatch for those who merit
punishment nor into a disposal bin for those assumed to be socially
dangerous but whose imagined proclivities cannot be proved in a
criminal proceeding 5 nor even directly associated with the criminality
with which they are charged.8 6 The issue of capacity is a narrow
one and the words of the law are abundantly clear. It is the prime
84. Ennis, supranote 63, at 120-21.
85. Slovenko, supra note 58, at 412.
86. See Slough & Wilson, Mental Capacity to Stand Trial, 21 U. PIT. L.
Ruv. 593, 598 (1960): "We are compelled to recognize here, as
elsewhere in the law, that the standard established by the law is not
inevitably the standard employed in practice. The fact of mental
illness and the need for hospitalization is, in practice, often the
paramount criterion of unfitness to proceed, notwithstanding the statutes
or precedents suggesting other standards. Psychiatrists, whose aid
is usually sought in determining capacity to stand trial, may be
unsympathetic to subtle legal distinctions. And while the determination
may ultimately be one for the court, the probability of the court's
disregarding the psychiatrists finding is not great."
duty of the court to see that neither the psychiatrist nor the lawyer
stray as policy-makers into other fields.
The statute has all the poise and delicacy of a surgeon's knife
in the right hands. It has equally the potentiality of becoming as
oppressive and unselective as a bludgeon if it is wielded incorrectly.
The judge must strive to keep the issues apart, for if capacity and
dangerousness become inextricably linked in the judicial
consciousness, the liberty of the subject is gravely in peril. It may be salutary
to end on a note of warning. It has been said that: "Throughout
history, governments have been tempted to establish order by
identifying and imprisoning in advance all likely troublemakers. 8 7
The judge is often the last bulwark against the tide of tyranny. 88
Any judge who feels that declaring a defendant to be an
incapacitated person is the "soft-option" is doing himself, his office and
society as grave an injustice as he is doing to the subject of his
4. The legal literature on this is extremely abundant and widely dispersed. The concept has a place in the Italian Penal Code as "pericolisit" and in most Latin American Codes as "peligrosidad." It has attracted recent academic attention in Italy: Arata, Departments of Psychiatric Assistance and Dangerousness , ABSTRACTS 11 : 5 (Sept ./ Oct. 1971 No. 1877 ) ; Ferrari, Re-examination of the Judicial, Criminological and Psychiatric Aspects of an Offender's "Dangerousness" , RASS. STUDI, PENITENZ ( 1970 ); The Evaluation of Social Dangerousness , RASS. C. ( 1970 ); in Poland: Kozarska & Dworski, ABsTRAcTS 11 : 5 (Sept ./Oct. 1971 No. 1878 ) ; and in Rumania: Fodor, Endangering in Rumanian CriminalLaw, Abstracts 11 : 2 (No. 691 ). For American articles on this subject, see e .g., Goldstein & Katz, Dangerousnessand Mental Illness: Some Observations on the Decision to Release Persons Acquitted by Reason of Insanity, 70 YALE L .J. 225 ( 1960 ) ; Katz, Dangerousness: A Theoretical Reconstruction of the Criminal Law, 19 BuFFALO L . REv. 1 ( 1969 ) ; Schreiber, Indeterminate Therapeutic Incarcerationof Dangerous Criminals, Perspectives and Problems, 56 VA. L. Rav. 602 ( 1970 ) ; Scoville & Wexler, The Administration of PsychiatricJustice: Theory and Practice in Arizona, 13 Anxz. L. Rav. . 1 ( 1971 ). See also, Sarbin, The Dangerous Individual: An Outcome of Social Identity Transformations,7 BRIT . J. C. 285 ( 1967 ).
5. See, e.g., Morris, The Confusion of Confinement Syndrome: An Analysis of the Confinement of Mentally Ill Criminals and Ex-Criminals by the Department of Corrections of the State of New York, 17 BuFFALO L. Ray . 651 , 661 ( 1968 ).
6. N.Y. CODE Cani . PRO. § 730 . 10 ( 2 ) (McKinney 1971 ) provides that: "'Dangerous incapacitated person' means an incapacitated person who is so mentally ill or mentally defective that his presence in an institution operated by the department of mental hygiene is dangerous to the safety of other patients therein, the staff of the institution or the community."
7. E.g. , Id. § 730.10 ( 9 ) (McKinney 1971 ) which provides: "Where an order of examination has been issued by a superior court, the psychiatric examiner must also set forth his opinion as to whether the defendant is or is not a dangerous incapacitated person .. .. " 9 . See , e.g., J. PoLlE, THE RuLE or LAW AND THE RoLE or PsYcHIATRY 7 ( 1964 ).
10. See , e.g., Lawton, Psychiatry, Criminology and the Law, 5 MTED . SCL & L. 132 , 132 ( 1965 ): "Psychiatrists see patients; criminologists see tabulated results of social inquiries; judges see murderers, ravishers, burglars, swindlers and cheats-and between the Bench and the dock stand the victims of crime."
11. On some of the philosophical problems besetting the lawyer, see , Freedman, ProfessionalResponsibility of the Criminal Defense Lawyer: The Three Hardest Questions , 64 MicE. L. REv. 1457 ( 1966 ).
12. See , e.g., Scoville & Wexler, The Administration of Psychiatric Justice: Theory and Practice in Arizona , 13 ARIz. L. REv. 1 , 60 ( 1971 ).
27. The literature upon psychopathy is very extensive . Hakeem, supra note 13 , at 672, observes that , "Psychiatrists do not disagree only with each other. Some disagree with themselves."
28. Fox , Sin, Crime and the Psychopath , 27 MoDERN L. REv . 190 , 195 ( 1964 ).
29. "The difficulty is that assessment of, say, impulsiveness, remorse, insight or capacity to form a relationship depends very much upon how well the psychiatrist knows the patient and what he feels about psychopaths . " Fox, supra note 28 , at 194- 95 . See, also, Meyers, PsychiatricExaminationof the Sexual Psychopath ,56 J. Cam . L.C. & P.S. 27 , 28 ( 1965 ).
30. See , Rouse v. Cameron , 373 F. 2d 451 (D.C. Cir . 1967 ) and the very full discussion thereon in Beaver, The "Mentally Ill" and the Law: Sisyphus and Zeus , 1968 UTAH L. REV. 1 , 23 - 24 . This patient certainly seems to have aroused very strong feelings in Dr. Economon of St. Elizabeth's Hospital.
31. See e.g., Sharkey, Four Stages in the Treatment of the Psychopathic Delinquent, 5 J . OF OFFENDER TERAPY 7 , 8 (Sept. 1961 ): "Motivating a psychopath is an extremely difficult job, since he invariably feels there is nothing wrong with him."
38. Selling , Forensic Psychiatry,39 J. Cnm .L. & C. 603 , 613 ( 1949 ).
39. Coon , Psychiatry for the Lawyer: The PrincipalPsychoses , 31 CoRNErL L. Q. 327 , 331 ( 1946 ).
40. Id .
41. Id . at 334.
42. A. GOLDSTEm, THE INsANIETY DEFENSE 215 ( 1967 ).
43. See, in particular,Livermore, Malmquist & Meehl, On the Justifications for Civil Commitment , 117 U. PA. L. REV . 75 ( 1968 ).
44. N.Y. CODE CuMv. PRO. §§ 730 . 30 - 730 .50 (McKinney 1971 ).
45. See , Livermore, supranote 43 , at 84.
46. See , Schreiber, Indeterminate Therapeutic Incarceration of Dangerous Criminals , 56 VA. L. R1v . 602 , 619 ( 1970 ): "Institutional psychiatrists tend to protect themselves against censure for the release of inmates who later commit crimes by overestimating the dangerousness of their patients and retaining them until there appears to be virtually no risk of recidivism."
47. Comment , Criminal Law-Insane Persons-Competency to Stand Trial, 59 icH. L. REV. 1078 , 1082 ( 1961 ).
48. Id . at 1083.
49. Belli , Forensic Medical Experts, Obligations and Responsibilities , 8 MED . Sci. & L. 15 , 16 ( 1968 ).
50. Comment , supranote 47 , at 1100 n.65.
51. See , e.g., Gibbens, The Task of ForensicPsychiatry, 8 MuED . Sci. & L. 3, 4 ( 1968 ): "In murder trials especially, it is very doubtful if diminished responsibility is really a defence in the sense of counsel doing his best for his client. I have often suggested to them that a mandatory life sentence for murder is a more charitable decision and provides better chances for rehabilitation than a sentence for example of twenty years for manslaughter which might otherwise be the prisoner's lot. But the defence has to do its rather routine job of differing from the prosecution . "
52. Scoville , supranote 12 , at 64.
53. Leopold & Rogers, The Current Influence of PsychiatricConcepts in Determining Criminal Responsibility in Pennsylvania, 31 TEMP . L.Q. 254 , 280 ( 1958 ).
54. Foster , The Law is a Jealous Mistress , 66 N. Y.S.J. MU . 282 , 285 ( 1966 ).
55. Id . at 286.
56. See , e.g., R. v. Rivett, 34 Crim. App. 87 ( 1950 ). In this case, three medical men testified that the defendant was suffering from mental illness . Goddard, L.C.J. remarked: "The first observation that this court would make is that three juries have refused to find the prisoner insane . " Id. at 91.
57. Desmond , New York Smashes the Lunacy Commission "Racket" , 30 J. CRim . L. & C. 653 ( 1940 ).
63. See , Ennis, Civil Liberties and Mental Illness , 7 Cimv. L. BULL. 101 , 102 ( 1971 ).
64. Prevezer , Fitness to Plead and the Criminal Lunatics Act, 1800 , 1958 CRnvim. L. REv. 144 , 153 .
65. Tribe , An Ounce of Detention: Preventive Justice in the World of John Mitchell, 56 VA. L. REv. 371 , 391 ( 1970 ).
66. "Pre-trial commitment has never been and should not be permitted to become a devious means of assuring criminal custody over persons on the alternative ground that, although they can demonstrate that they are not guilty, psychiatric opinion finds them dangerous to the interests of the United States." Foote, A comment on Pre-TrialCommitment of Criminal Defendants , 108 U. PA. L. REV . 832 , 844 - 45 ( 1960 ).
87. Tribe , supranote 65 , at 376.
88. Liversidge v. Anderson, [ 1941 ] 3 All E .R. 338 , 361 : "In England amidst the clash of arms the laws are not silent. They may be changed but they speak the same language in war as in peace. It has always been one of the pillars of freedom, one of the principles of liberty for which, on recent authority, we are now fighting, that the judges are no respecters of persons, and stand between the subject and any attempted encroachment on his liberty by the executive, alert to see that any coercive action is justified in law. In this case, I have listened to arguments which might have been addressed acceptably to the Court of King's Bench in the time of Charles I."