Category: Mental State

Compulsory Drug Treatment

by · Aug 21, 2025 1:15 pm

As I have noted before on this blog (see, e.g., this post) a major part of the homelessness problem is addiction. Charles Lehman has an article at City Journal titled Compulsory Drug Treatment Works: Activists who say otherwise hide their views behind a cloak of scientific objectivity.

The actual state of the research is not as definitive as that title implies. A big part of the difficulty in evaluating efficacy is the lack of a good comparison group, and there is disagreement as to what comparison is appropriate. Do people compelled to accept treatment do as well as those who seek it out? A “no” answer to that question would prove nothing, as the seekers had a better attitude out of the gate. The actual evidence is mixed.

Is compulsory treatment better than no treatment at all? Lehman cites a couple of studies that find an improvement while conceding that there is a selection bias problem in these studies as well. Random and quasi-random assignment studies are better, and they provide some evidence of a benefit. Continue reading . . .

Combining IQ Scores in Atkins Cases

by · Aug 8, 2025 3:24 pm

When the U.S. Supreme Court decided in Atkins v. Virginia in 2002 that people who are mentally retarded (now called intellectually disabled) can’t be executed no matter how heinous the crime, it opened a can or worms regarding deciding who actually qualifies for that category. The line between that condition and the next level up (borderline intellectual functioning) is a matter of convention, not really science, so there is a range of disagreement.

A case now being briefed before the court, Hamm v. Smith, deals with the question of how to assess the IQ of someone who has been tested multiple times. The court briefly touched on that issue in 2014 in Hall v. Florida. The year before, Joel Schneider of Temple University proposed a method in a chapter of an edited book. The opinion of the court cited that chapter but brushed it off with the comment that his method is “a complicated endeavor.” Really? It’s not all that complicated. I ran the numbers myself on the data in the Smith case. It wasn’t simple, but it was simpler than computing my 2024 income tax return.

As a preliminary matter, the makers of IQ tests regularly publish a “standard error of measurement” (SEM). That number represents, in a statistical way, the scatter one could expect in giving a test multiple times to the same person or to multiple people with identical true IQs. It doesn’t account for a host of other possible errors such as incorrect administration of the test, poor testing conditions, transient mental or physical problems of an examinee having a bad day, or–the big one in criminal cases–malingering.

So, putting those aside, here is how we do the math on the Smith case with the Schneider method. Continue reading . . .

Intellectual Disability and the Death Penalty, Again

by · Jun 9, 2025 8:33 am

Should people with intellectual disability be exempt from capital punishment? If so, who decides where and how to draw the line? The U.S. Supreme Court opened a can of worms with its 2002 decision in Atkins v. Virginia that a categorical exemption is constitutionally required. Last Friday* the court decided to look into this can once again, taking up the case of Alabama murderer Joseph Smith. The case is Hamm v. Smith, No. 24-872.

When the Supreme Court announced its decision 23 years ago, it seemed to be constitutionalizing only the yes-or-no decision, leaving the line-drawing to the states. Even while making a dubious finding of consensus on the categorical exemption, the court acknowledged disagreement on how to draw the line. Quoting an earlier decision forbidding execution of insane persons, the opinion said, “we leave to the State[s] the task of developing appropriate ways to enforce the constitutional restriction upon [their] execution of sentences.”

This holding of Atkins was effectively overruled by later decisions. In the Smith case, the U.S. Court of Appeals for the Eleventh Circuit has told Alabama it is drawing the line wrong. There are two problems. First, how do you determine the possible range of someone’s “true IQ” when he has multiple test scores? Second, can we declare a person intellectually disabled even though the probability that his true IQ is below 70 is vanishingly small?

Looming over these two questions is a larger question. Do the questions above have right and wrong answers as a matter of federal constitutional law, or should the Supreme Court return to honoring its long-ago, much-violated promise in Atkins that the states would have leeway in these matters? Continue reading . . .

SCOTUS’s Unclear Reversal of Capital Case It Deems “Unclear”

by · Nov 4, 2024 10:31 am

The U.S. Supreme Court has finally acted on Alabama’s petition in the case of murderer Joseph Clifton Smith. The high court’s repeated relisting of this case for consideration in an unprecedented number of conferences has drawn considerable speculation as to what was going on.

The high court did not take the case up for full briefing and argument but instead sent it back to the Eleventh Circuit for a do-over. That is most unfortunate, because they failed to clean up a mess of their own creation.

In the 1989 case of Penry v. Lynaugh, the Supreme Court ruled correctly that its precedent in Lockett v. Ohio requires capital sentencing juries to consider mental retardation (as it was then known) as a mitigating circumstance. (Whether Lockett itself was correctly decided is another question. See this article.) In 2002, the high court decided that wasn’t good enough, and it made mental retardation (as it was still known then) a categorical exclusion. Along with the constitutional problems, there is a huge practical problem. The Court tried to draw a bright-line rule with a paint roller.

Intelligence is a continuous spectrum, and the breakdown into categories is entirely a human construction. There are no natural dividing lines set by objective science. The lines are therefore subject to manipulation, as discussed in this post. Continue reading . . .

U.S. Supreme Court Takes Up Supervised Release Revocation Case

by · Oct 21, 2024 9:27 am

The United States Supreme Court issued an orders list this morning, taking up one criminal case. In Esteras v. United States, No. 23-7483, the high court will ponder what factors a federal district court may consider when deciding whether to revoke the supervised release of a federal convict. It is, once again, a question of interpretation of federal criminal statutes which will have little, if any, impact on the state courts that handle most criminal cases in this country. Continue reading . . .

Major Win on Homeless Encampments

by · Jun 28, 2024 10:48 am

Homelessness is a major problem, and it is a complex one. People become homeless for different reasons, and they have different obstacles to returning to the ability of obtaining their own shelter. Two of the most common are mental illness and addiction. These two problems are particularly difficult, as the conditions themselves may block the person’s willingness to accept and participate in the treatment needed to fix the problem. Sometimes an arrest is exactly what a person needs to provide the needed motivation. Fifty-six years ago, Justice Thurgood Marshall recognized similar considerations when he wrote the plurality opinion in Powell v. Texas. That opinion rejected the notion that the Eighth Amendment prohibited punishing an alcoholic for being drunk in public because the conduct was an involuntary result of his status. Such a constitutional mandate was too simplistic a way of dealing with a complex and difficult social problem.

Even so, the Ninth Circuit took the step that the Powell plurality rejected with regard to laws penalizing camping on public property as applied to the homeless. Today, the Supreme Court reversed that decision in City of Grants Pass v. Johnson. Justice Gorsuch wrote the opinion of the Court. Three Justices dissented. CJLF filed an amicus curiae brief in support of the city.

A key legal issue in the case involved the status and reach of an even earlier case, Robinson v. California. In that case, the Court declared a California statute unconstitutional because it made criminal the status of being addicted to drugs as opposed to the act of possessing or using an illegal drug. Oddly, the Court invoked the Eighth Amendment for this proposition, an argument only briefly mentioned by Robinson, rather than the Due Process Clause, which was Robinson’s main argument. Continue reading . . .

The “True Threats” Doctrine

by · Apr 21, 2023 2:15 pm

On Wednesday the United States Supreme Court heard oral argument in Counterman v. Colorado, No. 22-138 (transcript here, audio here).

The issue in this case involves how courts should determine what constitutes a “true threat.”  True threats are not protected by the First Amendment.  The question before the Court is whether a state may define speech to be a “true threat” if it would be regarded by a reasonable person as a true threat, or whether the First Amendment requires a state to prove beyond a reasonable doubt that the speaker subjectively intended the communication to be a threat.

In this case, Billy Raymond Counterman, was convicted of stalking and was sentenced to 4.5 years in prison for sending thousands of private Facebook messages to a local singer/songwriter named C.W. C.W. found the private messages to be “weird” and “creepy” and did not respond to any of them. She blocked Counterman from her Facebook accounts, but he created new accounts and continued to message her. As time went on without response from C.W., Counterman’s messages became more angry and alarming, causing C.W. to become extremely fearful and scared. Counterman also alluded to making physical sightings of C.W. in public. Continue reading . . .

California Legislature Ramming Through Another Pro-Murderer Bill

by · Aug 3, 2022 11:46 am

Today, there was a hearing scheduled on California Senate Bill 300, a bill to change the state’s “special circumstance” law in favor of the murderers, with an implication that it applies retroactively to overturn cases already properly tried. However, the “hearing” has been limited to people stating if they support or oppose, with no opportunity to give the reasons, making it pointless. So here is what I would have said.

In California, first-degree murder with “special circumstances” is punishable by death or life in prison without possibility of parole. The law is subject to the criticism that the special circumstances are not special enough, and I have proposed some pruning myself in the past. SB 300 would limit special-circumstance murder for accomplices to those who can be proved to have intended to kill. In 1990, Proposition 115 added a “reckless disregard of human life” alternative for accomplices convicted of first-degree murder under the felony murder rule, implementing an option allowed by the U.S. Supreme Court in Tison v. Arizona (1987).

Applied to future cases, that would not necessarily be a bad change. It would have virtually no effect on capital punishment, as today’s juries seldom-to-never impose the death penalty on accomplices without an intent to kill. The huge problem is imposing such a fact-finding requirement retroactively. This is not speculation. We have been there and done that. It was the key issue in the first capital case I ever briefed. Continue reading . . .

Kentucky’s Misguided Approach on the Death Penalty

by · Mar 30, 2022 11:55 am

The Kentucky legislature has passed HB 269 and sent it to the Governor for approval.  The Bill precludes the death penalty for individuals who had “active symptoms” and a “documented history” of certain enumerated mental disorders at the time of the offense conduct.  The list includes schizophrenia, schizoaffective disorder, bipolar disorder and delusional disorder.  The proposed legislation does not require proof that the “active symptoms” had impaired the defendant’s rationality in any manner during the commission of the crime.

This approach has many problems, but I will briefly discuss two.

First, the term “active symptoms” is not defined and is thus a legislative construction. However, many of these disorder are notable for their negative symptoms.  These include reduced motivation and a diminished experience of pleasure in life.  These are real symptoms and their effects can profoundly adversely affect a person’s quality of life, particularly since they tend to endure even when other symptoms of the disorder have abated.   However, given their nature, it is likely that anyone who has a documented history of one of the enumerated mental disorders will qualify as having “active symptoms” despite their level of lucidity.

Second, there is no logical or just reason why people only with a “documented history” should be treated differently.  Obviously, the legislation envisions fraud as a reason for this requirement.  But it is relatively common for people with these disorders to have no treatment history during the early course of their illness —not to mention that there is no moral reason to treat those who have not had the opportunity for treatment to be subject to a different punishment.

This is a bad Bill whatever your stance is on the death penalty.

Risky Drug Dealing

by · Dec 8, 2021 5:34 am

Mental states are imperative for ascribing blame for most crimes.  We care whether someone does something purposefully, knowingly or recklessly.  Selling heroin is risky and unlawful behavior.  It is, of course, risky because you may get caught and go to prison.  But it is fraught with risk to those who buy the drugs.   People sometime die from the poison being sold to them.

But what if you are told by others that the heroin you are selling is unusually strong? Suppose further, those drugs eventually cause the death of another person?   Is that sufficient evidence of recklessness for a manslaughter conviction?

Apparently not in New York, according to the Court of Appeals in People v. Gaworecki.   New York uses the familiar Model Penal Code definition of recklessness, which requires evidence that a person consciously disregards a substantial and unjustified risk.  Even though the defendant in Gaworecki was told by another that the heroin he sold was exceptionally potent, the Court finds the fact that “[t]he People presented no evidence that defendant had been told that other people had overdosed or died after using the heroin he had sold them” (slip op. p. 8) as persuasive that that the evidence was insufficient for conviction.