Defendants in the criminal process are divided into rigidly exclusive categories of mental health. The competent to stand trial are first separated from the incompetent. Then the competent are divided on the basis of their mental state at the time of their acts between the "sane" and the "insane." As long as these rigid categories are administered in an adversary trial system, some misdirection of victims of serious mental illness into the penal system is almost inevitable. Even where mental illness might otherwise prevent conviction, those accused of non-capital felonies are not likely to raise the question, and few courts are likely to do so for them. Once such misdirection has taken place at trial, the possible inappropriateness of imprisoning the mentally ill remains largely beyond the reach of legal examination. After conviction there are few occasions which one might call "justiciable events" when the balanced considerations of criminality and mental illness stand precisely defined for flexible, dispassionate examination. The questions which might be asked are obscured in the vague penumbra of post-conviction due process, and the issues are further blurred by the fact that present prisons and mental hospitals both tend to be thought of as primarily custodial. Hence, mentally ill convicts generally percolate through the penal system and eventually become eligible for parole. At that stage, their mental illnesses may not be recognized or, if recognized, not thought to present an unreasonable risk under a liberal parole policy. Many such convicts are therefore granted parole. Thus the criminal process thrusts upon parole administrators the problem of handling these victims of serious mental illness. This study by a psychiatrist and a law student is based upon the case histories of twelve such parolees with whose mental illness the Michigan parole administration was forced to deal. These case histories are contained in the appendix.
David G. Davies S.Ed. & John H. Hess M.D.,
Criminal Law - Insane Persons - Influence of Mental Illness on the Parole Return Process,
Mich. L. Rev.
Available at: https://repository.law.umich.edu/mlr/vol59/iss7/7