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by Robert F. Schopp
American Psychological Association, 2001
Review by Albert D. Spalding, J.D. on Sep 23rd 2002

Competence, Condemnation, and Commitment

In its Report of  the Surgeon General, the Center for Mental Health Services of the National Institutes of Health observed that mental illness is the second leading cause of disability and  premature mortality.  Meanwhile, the U.S. Department of Justice Bureau of Justice Statistics reports in its mental health survey that about 280,000 prison and jail inmates are mentally ill; convicted criminals with histories of mental health treatment comprise 16% of the prison population, about double the rate of mental illness in the general population.  As our lifespan increases, and as research continue to develop cures for physical ailments, mental health becomes a larger component of the nation's health care project.

Among a number of related problems is the confusion that surrounds the merger of law and mental health care in the context of such social issues as sexual predatory behavior.  The authority of states to incarcerate citizens derives primarily from two sources: the police power and the parens patriae power. The police power authorizes states to imprison criminals who threaten public safety.  The parens patriae power provides the states with the authority to protect individuals who lack the ability to care for themselves.  But legal definitions of mental illness for purposes of criminal, and, separately, civil, incarceration are inconsistent and often incoherent.  The respective roles played by roles played by law, on the one hand, and by medicine and science on the other, are not clear.  And rarely do statutes or court opinions, including sexual predator laws and court cases, clearly articulate propositions for differential treatment that are derived from a clear and unified conception of mental illness.

Robert F. Schopp is trained in law, philosophy, and psychology, and has become a prominent critic of the sexual predator statutes.  He has argued in a series of articles in Psychology, Public Policy and Law and Behavior, Science and the Law that there is a need for a fully satisfactory account of commitment standards under those statutes. Competence, Condemnation, and Commitment: An Integrated Theory of Mental Health Law, provides a well-argued proposal for such an account.

Schopp provides a clear distinction between the principles underlying parens patriae power, and the separate and distinct principles underlying the state's police power.  He suggests that for purposes of developing a coherent and unified civil and criminal system, the police power emphasis on criminal responsibility are more workable than the patient-centered principles underlying parens patriae.  He ultimately recommends the elimination of parens patriae civil commitment as an independent institution.

To support this proposition, Schopp first separates the diagnostic function, whereby clinically recognizable and significant patterns of impaired processes are identified, from legally significant patterns of dysfunctions.  He then argues that the legal and medical categories are different, and suggests that the medical diagnoses do not necessarily provide the technical content required by the legal categories.  Instead, he would abolish parens patriae interventions and allow for involuntary hospitalization and treatment as dispositional decisions following a judicial determination of incompetence.  Judicial determinations of incompetence, in turn, would be based on incompetence (defined in terms of dysfunctions, rather than in terms of diagnosis).

Finally, Schopp relies on this dysfunctional-behavior concept as he develops a normative structure for sexual predator civil commitments and other police power interventions.  The criminal justice system is acknowledged as the primarily legal institution through which the state must exercise the police power.  And police power civil commitment is held out only as an alternative to the criminal justice system in circumstances that justify policy power intervention but preclude criminal conviction because of the offender's psychological impairment.  But Schopp would require a finding of mental illness--to the extent that retributive competence is undermined--as a criterion of police power civil commitment.

Both lawyer and psychologist should read this work, and should retain it for future reference.  Lawyers and jurists will discover that Schopp articulates the differences between medical dysfunction (which has descriptive legal significance) and diagnosis (which does not necessarily map to legal standards) without talking past or over the top of non-scientists.  And psychologists will discover that Schopp's presentation of the legal standards laid down by sexual predator statutes, and in court opinions such as Kansas v. Hendricks, is both helpful and relevant to an understanding of the newly evolving standards impacting mental health adjudication.


© 2002 Albert D. Spalding

Albert D. Spalding, JD, is an associate professor at Wayne State University School of Business Administration.  He teaches legal studies topics, including a course in Health Care Law and Ethics.