When Sharp Legal Minds Miss the Point

I talked yesterday about some of society’s failings when it comes to mental illness, particularly in the realm of criminal justice reform. The thought process didn’t come out of thin air, but rather developed as I started reading through some major court opinions and law review articles about how mental illness intersects with the law.

And before I dive into this more, I want to be clear that the judges and lawyers and law professors who wrote these opinions and these law articles are all sharp legal minds. Yet they still miss the point.

They miss the point because the law is focused on burdens of proof and on what can be proved. Yet when the harm is caused by demons only you can see, how do you prove that? And the unfortunate fact is that rather than turning to psychologists and other mental health experts, courts too often try to deal with these thorny issues themselves. Indeed, the courts are too often worried about the slippery slope that would be created if they were to open that door too wide.

Yet like I said, these are sharp legal minds. They can handle complex issues. And indeed, every major progression and evolution of the law has been met with concern about a slippery slope that almost never comes. And the evidence suggests that it wouldn’t be any different if courts were to consider mental health more closely. For example, if we look at the insanity defense, one of the few areas where mental health is considered, we see that defense attorneys rarely pursue it, partly because even when they do they are rarely successful. This suggests that rather than being a slippery slope it is instead a flat surface that is anything but slippery.

Some places have indeed started to open this door by developing mental health courts, specialty courts that consider whether a person needs mental health treatment instead of diving into the traditional criminal justice system, a system where they are likely to be lost in the cracks.

However, mental health courts are just the start of what is needed within the criminal justice system. We need mental health support at every step of the system, including in correctional facilities that often exacerbate mental health conditions for those residing within.

And I do believe this change will come. Unfortunately, it won’t be getting here too fast for fear of that darn slippery slope.

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