Irrational Behavior

In 2004, Pat Forciea went on a check-forging spree that devastated his personal and professional relationships, and he wound up with an eight-year jail sentence. He has bipolar illness. A previously law-abiding citizen and a well-known and highly respected political and business figure, Forciea committed a crime that was a classic example of uncontrolled bipolar disorder resulting in a major manic episode. Forciea was placed in the Federal Medical Center in Rochester after having another manic episode, this one behind bars; he was there for 21 months and it was, he says, “a life-changing and life-saving experience.” He is still in prison.

When someone as well-known as Forciea suddenly goes on a bipolar spree, it’s hard for the criminal law establishment not to notice and have some sympathy. But most bipolar victims can expect no such treatment: neither they nor the people who arrest them really understand what’s happening.

Take, for example, Pete, a tall, lanky kid with long, dirty blond hair whom I see loping in circles around the psych ward floor. “What is this?” he demands, gesturing with the file folder he holds in his hand. “What the fuck is this shit?” He slings himself into a plastic chair and hunches over the folder, flipping through pages. His eyes are circled with purple from lack of sleep—he has been up for days. “Listen to this. Listen to the lies they’re telling about me. ‘Jumped in front of a car.’ What? ‘Accosted the driver.’ What the hell are they talking about? ‘Claimed the driver’s cell phone was creating bad waves that were hitting the defendant. Attempted to take cell phone from driver. Driver and defendant in an altercation’—What in the hell is this? Why are they making these things up?” He looks up at me, terrified. “I have court in an hour. What am I supposed to say?”

Pete’s a good kid. Went off his medication, got into a little snafu with, it appears, a driver and some cell phone waves. Doesn’t remember a thing. I ask him what his lawyer says. “My lawyer,” he snorts. “He thinks I’m crazy.”

Well. That’ll happen.

And then what’ll happen—after his lawyer tells the judge that Pete is crazy, and asks for a durational departure to lessen Pete’s sentence—is that the judge will turn to Pete. Pete, he’ll say. Are you crazy? And Pete, who today is clear as a bell, will pipe up, “No, sir.”

And the lawyer will slump in defeat.

Pete has bipolar disorder, often known as manic depression. So does about 2.6 percent of the adult U.S. population, and around a million U.S. kids as well. It’s a diagnosis that’s gotten a lot of press lately in part because the past 20 years of brain research have made possible some significant advances in treating it, and in part because it’s a diagnosis being made more frequently.

It’s a tough disorder—hard to treat even with the best medications available, hard to diagnose, and really hard to understand. Bipolar is a brain disease marked by radical mood swings, from severe depression to extreme mania, and it’s in that manic state, especially if it veers into manic psychosis, that people can get into trouble with the law. The exact number of bipolar individuals in the criminal justice system is unknown, but by all accounts it’s probably high. The single most important reason for this, clinically speaking, is a symptom that characterizes mania: loss of impulse control.

When we think of “insanity,” we generally think “raving lunatic.” But people with bipolar are often extremely high-functioning much of the time—and then their disease kicks in. A complicated state of neurotransmitter mayhem ensues, and they find themselves saying and doing things they wouldn’t have dreamed of doing in their right minds. When they return to their stable state, they are often horrified by things they’ve said or done. It’s not always as severe as Pete’s case, where he flat-out doesn’t have any memory of them—it’s sometimes like waking up the morning after a really great party and thinking: Oh, my God. And pulling the covers over your head.

But sometimes it is serious, and sometimes it’s illegal. The question of how, and to what extent, to hold mentally ill people responsible for their crimes is one that has confounded jurists for centuries. And the particular question bipolar disorder raises in a legal sense is this: What is the specific role of volition in determining culpability? How responsible must one be for one’s actions in order to be held responsible for one’s crimes?

The M’Naghten Rule is the standard used in Minnesota and in the federal courts to determine criminal responsibility, and reads in part: “[T]he person shall not be excused from criminal liability except upon proof that at the time of committing the alleged criminal act the person was laboring under such a defect of reason … as not to know the nature of the act, or that it was wrong.”

But what do we do in the case of bipolar, where one might very well know the nature of the act, and know that it is wrong, but be unable to keep from doing it? “Loss of impulse control” is a clinical symptom of that medical disease. But how can it be mounted as a defense, in a judicial system that doesn’t recognize that form of mental illness—which M’Naghten effectively does not?

M’Naghten has had its critics since it was established as the rule of law in Great Britain in 1843. There are two other standards used in the United States, the American Law Institute Standard and the Durham test, and five states have abolished the mental illness defense and replaced it with the Mens Rea test. The ALI standard, used in 18 states, is not so black and white, which is both what its proponents like and what its detractors dislike about it. It reads, in part, “the person lacks substantial capacity to appreciate the criminality of the person’s conduct or to conform the person’s conduct to the requirements of the law.”

Those last few words are key: lacks substantial capacity … to conform the person’s conduct. For example, say I have bipolar disorder and am having a manic episode. Because of the chaos currently running rampant in my brain, everything I do feels slow. Everyone else seems slow. Drivers seem slow. My thoughts are racing so fast I can’t keep up. I find myself driving 90 miles an hour in a 60 mph zone. Do I know the nature of the act? Certainly: I’m speeding. Do I know that it is wrong? Yes, I do. Can I slow down? Not if my life depended on it. I cannot conform my conduct to the requirements of the law. That’s the nature of mania: I don’t control it. It controls me. Just as much as a paranoid schizophrenic’s delusions tell her to do something, my manic impulses force my hand.

Forciea is hardly the first respectable citizen to be brought down by bipolar illness. In 2005, former state senator Win Borden was convicted of failing to file his tax returns for six years. During his trial, when his lawyer saw Borden introduce himself to his son, the lawyer ordered a psychiatric evaluation: Borden is bipolar. This did not affect his sentencing, though his psychiatrist clearly stated that his offense was partially due to his disease. He wasn’t a M’Naghten case; though his illness was a factor in his crime, it was not a factor in his punishment.

In 2002, former judge Roland Amundson was convicted of emptying the trust account of a vulnerable adult, an account for which he was the guardian, spending the money instead on marble floors and sets of china. He is bipolar. This was introduced at sentencing in the form of a request for a downward departure based on this mitigating factor; it was denied on the basis that Amundson himself had denied such requests in his time on the bench.

The question is not if these men did criminal things—they did. They are the first to say so, and to take responsibility for that which is theirs. The question, rather, is if their cases should have been tried differently, taking into consideration a medical disease they have that affects the processes of their brains and directly influences their actions. And if they should have been tried differently, the question, then, is where and how they should have done their time.

Defense attorney Kyle White notes that prior to the John Hinckley shooting of former President Ronald Reagan, “jurisdictions and legislatures all over the country were saying, ‘We need to modify M’Naghten.’ It was created 13 years before Freud was born, it doesn’t take into consideration degrees of incapacity. M’Naghten has always been and always will be an all-or-nothing cognitive test. If you’re schizophrenic, and you don’t know the nature of the act, you don’t know it’s wrong, and you’re psychotic at the time, you’ve got a chance at meeting M’Naghten. But the bipolar individual, who maybe steals a car, and can’t control this impulse, can’t control his volition, even though he substantially lacks capacity to know right and wrong, or to control his right and wrong, they’re going to find him not meeting the M’Naghten standard.”

Despite the fact that there are four major mental illnesses outlined in the sentencing guidelines—schizophrenia, bipolar, depression and borderline personality disorder—White adds, “I would argue that generally when it comes to pretrial M’Naghten—did the person know the nature of the act—only with schizophrenia, unless the person is bipolar in a psychotic state, or so severely depressed in a psychotic state, do they have a chance of meeting M’Naghten criteria.”

If that’s true, then there effectively is no mental illness defense for persons with a mental disorder other than schizophrenia, no matter how powerfully their illness held sway over their actions—no matter how much it controlled their volition. And because Minnesota has no diminished-capacity defense, there is no way for a person with bipolar to realistically get a defense that will take into account his or her mental illness, despite the fact that it may have actually caused the offense.

John Stuart, the state public defender, says, “M’Naghten is way outmoded. I’m a believer in diminished capacity, always have been. But it’s a tremendous political struggle to do anything that gives the impression of being ‘soft on crime.’”

Scott Swanson, former executive director of the Sentencing Guidelines Commission and now a professor of law at the University of St. Thomas, agrees. “This is a dead issue. M’Naghten is too high. It excludes so many people who are really mentally ill but who are partially culpable. It sets this very high barrier. For those people, none of our reasons for sentencing make any sense, other than just warehousing.”

Swanson says, “One of my frustrations both as a public defender and on the sentencing guidelines commission was that we have a lot of actors in the system who don’t understand mental illness. I mean, I would ask lawyers what percentage of your clients are mentally ill, what percentage have drug and alcohol problems, and lawyers didn’t know that. What does it mean if your client’s a manic depressive in terms of his behavior? Part of what I thought the attorney’s job was was to educate the court. If you don’t have any background in this, it’s hard to understand. And part of that is a lack of funding, part of it is lack of understanding, part of it is doing too many cases. Sometimes it’s having a blind spot yourself.

“It’s so critically important for everybody to understand what it means to be mentally ill. If you’re a good lawyer, you should educate the judge on what it means to be mentally ill, this particular kind of mentally ill.”

There is a serious attempt at educating the public defenders about mental illness, but that doesn’t touch the rest of the judicial system. Stuart says, “All the trial court public defenders have had small-group training on client communications that includes dealing with mentally ill clients. We’ve had psychologists and psychiatrists present to our whole staff of 700 people four or five times how to recognize and accommodate common mental illness situations that you see in connection with criminal cases.

“So first of all, I’d say we have a lot of training. Secondly, I’d say that we’re one of the few state systems of public defense that have got full-time social workers working for us in every one of the 10 judicial districts. So we have people to not only look for solutions and look for alternatives in particular cases, but people with a social work background that will train and consult with the individual lawyers around the state.

“We recognize that this is a huge issue, and we’re doing what we can with it.”

Knowing more about mental illness is essential, but it needs to move beyond the state’s public defenders to the entire judicial system—and that’s going to mean reconsidering M’Naghten. There is a state statute on the books, which “allows for alternative placement for offenders who suffer from serious mental illness,” i.e., the offender could be civilly committed or placed in some kind of secure treatment facility, but it is not well understood and rarely used. And while there are grounds for a durational departure at sentencing, mental illness rarely has much of an impact on the argument for such a departure.

“Peggy Barsnas leaves her kid in the crib and the kid dehydrates,” Swanson says, giving an example. “She’s severely postpartum, has alcohol problems. It wasn’t a M’Naghten. Did she know the nature of her offense? Yeah, she left the kid in the crib. Did she know that it was wrong? Sure, she called her dad and they went down to the police station and she confessed. The judge gave her a departure—he cut the sentence by three years. He didn’t cut her a lot of slack. It made it totally unassailable on appeal.”

But is prison the right place for a woman with severe postpartum depression? Or would that have been an instance where a treatment facility would have been more beneficial—not only to her, but to the public to which she will return?

The word “warehousing” echoes through the comments people make when discussing mental illness in the judicial and correctional systems. “During the Kennedy years, we went through this deinstitutionalization process, and the mentally ill came out of these horrible institutions and the asylums,” White says. “But there were not enough appropriations to really help them. And now, what do we do? We put them in jail.”

“The dirty little secret is that that’s cheaper than having them in a regional treatment center,” says Rep. Mindy Greiling (D-Roseville). “So there’s not a great incentive financially, even when we’re not in deficit, to do the right thing.” Greiling has worked on a number of bills involving more equitable treatment of the mentally ill, including the failed 2005 attempt to change the language of the mental illness defense. But it’s an uphill battle. “Minnesota had a better statute before the Reagan shooting, just like a lot of states did, and then we reverted back to the dark ages. Never mind that a person is very, very ill—whatever they did, we need to punish them for it. It’s the only illness where we lock people up because they are sick.”

This places an enormous burden on the prison system: not only are they charged with maintaining their facility and inmates in a correctional capacity, they are also asked to act as a treatment center for mentally ill inmates. And that’s what people mean when they talk about warehousing—the prisons are becoming the cheaper alternative to treatment for staggering numbers of even nonviolent offenders who might do better at their point of societal re-entry by spending their sentence in a treatment facility.

One of the reasons the Minnesota prisons cost as much as they do is because they do provide extensive psychiatric and behavioral services to inmates. But Minnesota is just one state. The federal prisons are a very different story. Win Borden has this to say: “There were absolutely no therapy groups whatsoever. The mental health staff is so very limited. But the prison psychiatrist was exceptionally talented. There just was absolutely no backup except for the pill dispensers, and that’s it. And they didn’t want you to learn about your disease. It was like an educated inmate is a dangerous prisoner. And there were no resources at the library that would give you any real information either.

“It says something about how the prison system is in shambles, and does not focus on rehabilitation,” Borden says. “Human Rights Watch has said that prisons are becoming the modern-day asylums. They’re right. It’s because we have just shoved people into prisons, out of view. Statistically we know that they’re going to get released, and if they’re released at an early age, they’re going to repeat again and go back again.

“If someone does not pose a serious threat either to themselves or others, they should be in treatment rather than incarcerated, because they’re going to get out. Are they going to get out better, or are they going to get out worse? Right now the uniform answer is they get out worse. That doesn’t serve the inmate and that doesn’t serve the taxpayer. And it’s just plain wrong.”

It’s an interesting domino effect at work: M’Naghten is too stringent—and too simplistic—and prevents both accurate sentencing and the right of a fair trial for the mentally ill defendant. The statute that is available for placing mentally ill offenders in treatment rather than in prison is rarely brought to bear and is seen as a costly alternative to prison. Prison becomes a place to warehouse the mentally ill, many of whom desperately need treatment. The Department of Justice estimates the rate of mental illness in the federal prison population at between 50 and 60 percent. The burden on the prisons, then, to provide treatment for an increasingly mentally ill population grows heavier and heavier. What does this serve? The taxpayers? Not really; they will likely pay the cost for recidivism of offenders who have received insufficient treatment and go out and offend again. Is it justice, then, that’s being served? Not when the offender is unable to so much as mount a full defense that takes into account the mental illness that may have driven his or her crime.

“I think we’re getting to a really inhumane standard,” says White. “[There are] going to be problems in the future where the prisons are facing more and more difficulty with individuals who are mentally ill. I think it’s going to get overwhelming. Just like the infrastructure—one of these bridges is going to go down.” 

—Marya Hornbacher is an award-winning journalist and the author of three books. Her latest, Madness: A Bipolar Life, has just been released in paperback and is available online and at bookstores everywhere.