THE "MAD" VS. THE "BAD" REVISITED:MANAGING PREDATORY BEHAVIOR

William Tucker, M.D.

Ever since the Enlightenment, western democracies have maintained separateinstitutions for the "mad" and for the "bad." For the mad they provided protec-tion and treatment, and for the bad, deterrence and punishment. During thepast decade, however, increasing social conservatism and the apparent failureof the criminal justice system have resulted in a series of changes in social pol-icy. In order to protect the public adequately from repeatedly violent predators,legislation has been introduced in several states that remands those predatorsto mental institutions on completion of their prison terms. Challenges to thislegislation, based on ex post facto, double jeopardy, and civil rights considera-tions were effectively dismissed by the U.S. Supreme Court in Kansas v Hen-dricks in June, 1997. An effect, however unintended, of upholding these lawsand of policy changes leading up to them, is that they have effectively blurredthe separation between mad and bad. This paper details the following: 1) theevents that have led to these changes in policy and law; 2) the preparationsbeing made in New York State's mental health system to prepare for managingsuch predators when and if such laws are enacted; 3) the dangers and drawbacksthese changes have brought in states where they have already been legislativelymandated; and 4) suggestions for alternatives that would reaffirm the separa-tion between mad and bad.

William Tucker, M.D., is Director, Bureau of Psychiatric Services, New YorkState Office of Mental Health, and Associate Clinical Professor of Psychiatry,Columbia College of Physicians & Surgeons.

Address correspondence to William Tucker, M.D., NYS-OMH, 44 Holland Ave-nue, 8th floor, Albany, NY 12229.

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Liberal societies, such as many modern democratic nations, haveconsiderable difficulty acknowledging and dealing with the prob-lem of evil—that is, the phenomenon of motivated, predatory, de-structive behavior. They prefer to characterize such behavior as"sick," believing that sufficient opportunities for socially sanc-tioned gratification of basic human desires are available, and thatonly an unreasonable person would resort repeatedly to such be-havior. In an extreme example, two self-proclaimed experts, Drs.Dorothy Lewis and Jonathan Pincus, have characterized serialrapist-killers, such as Richard Speck and Ted Bundy, as innocent,since their behaviors, they claim, result from a combination ofadverse childhood experience and subtle neurological impairment(1). Refusing to characterize even serial rapist-killers as evil hasbeen combined, ironically, with more conservative notions of per-sonal responsibility. Together they have produced a series ofevents and policy changes in the past decade which blur the dis-tinction between mad and bad. Such changes represent an at-tempt to redress the repeated failure of the legal system to protectsociety adequately from such predators. However, these samechanges threaten to shift the burden of responsibility for sexuallyand aggressively violent predators, formerly characterized as bad,from the penal to the mental health system.

This paper briefly reviews the historical origins of western soci-eties' efforts to distinguish "mad" from "bad," describes the eventsthat have taken place in New York State that blur the distinctionand how New York plans to deal with such predators in the nearfuture, and concludes with recommendations on how to preserveit.

ORIGINS OF THE DISTINCTION BETWEENMAD AND BAD

According to Michel Foucault (2), during the period from the endof the Middle Ages until the beginning of the Enlightenment, theprisons, some of which were emptied-out and converted lepro-saria, housed a mixed population of social undesirables. These in-cluded serious criminals, the "debauched [i.e., irresponsible trou-ble-makers who drank or spent too much and fathered or bore toomany children, and who today would be classified as personality-

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disordered or substance-abusing]," political prisoners, the develop-mentally disabled, the demented, the poor, and the truly insane.The first group to be set free were the poor. By mid-eighteenth cen-tury it was recognized that they were victims of economic change,brought about by the onset of the industrial revolution, and misfor-tune rather than of laziness; furthermore, it was recognized thatthey kept wages down and were good for the burgeoning economicdevelopment of the times, insofar as they produced much and con-sumed little. Alternative and more humane settings, such as hospi-tals, were subsequently provided for the developmentally disabledand demented. At the end of the eighteenth century the FrenchRevolution freed political prisoners.

Initially, observers who distinguished "mad" from "bad" had de-cried the fact that criminals were forced to endure the screams ofthe insane, which added to their punishment. Eventually, how-ever, the view shifted and "the age of positivism . . . constantlyclaimed to have been the first to free the mad from a lamentableconfusion with the felonious, to separate the innocence of unrea-son from the guilt of crime (3)." Esquirol and Pinel in France, theTukes in England, and Dorothea Dix in the United States alljoined the movement aimed at treating, rather than punishing,the mentally ill.

This distinction managed to endure for the next two centuries,in spite of some significant challenges. For example, in the 1860'sM'Naughton Rule in England established the principle of inno-cence by reason of insanity in certain defined situations. This rulewas an extension of the legal notion that there had to be inten-tion, as well as deed, to establish criminality. In the followingdecade, Isaac Ray (4) argued with John Gray (5) about whetherinsanity could be adduced as an excuse for homicide, and whetherit might be malingered. The process of deinstitutionalization thatbegan in the 1960's resulted in the incarceration of many of thementally ill in prisons for what were essentially the ravages ofillness and inability to cope rather than violations of the law (6).

Policies based on the distinction between mad and bad recog-nize three distinct populations: criminals without mental illness,criminals who incidentally suffer mental illness that is unrelatedto their criminality, and the mentally ill whose criminal acts arisefrom the illness itself. Psychiatrists in the public sector are longfamiliar with managing, and with some degree of success, treat-

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ing, only the last of these populations. Recently, extensive re-search efforts funded by the MacArthur Foundation have con-cluded that those currently defined as mentally ill are no moreviolent, in terms of posing a threat to public safety, than theirfellow citizens (7). This conclusion would clearly not have beenreached if those with violent predatory behavior had been in-cluded in the study population.

DEFINITIONS OF MAD AND BAD

The definition of madness has been made more explicit in the lasttwo decades, in response to the need for administrative guidelinesfor disability determinations and for a clearer demarcation of theboundary of illness. It is equivalent to "severe and persistent men-tal illness (a term of the '90's)," and usually includes the schizo-phrenias, major affective disorders, disabling anxiety disorderssuch as OCD and PTSD, and certain severe personality disorderssuch as schizoid, schizotypal, and borderline. Significantly, itthereby excludes many categories which are included in DSM-IV.

There is less agreement about badness, which is not, strictlyspeaking, included in the nomenclature of illness at all, but hasoften been subsumed under the category of antisocial personalitydisorder (ASPD). Recently, however, it has become possible toequate badness specifically with the construct of psychopathy,rather than with ASPD, thanks to the contributions of RobertHare (see this issue). Following Cleckley's pioneering work (8),Hare developed a widely accepted scale for identifying the syn-drome of psychopathy. Though isolated acts of instrumental vio-lence are not predictable, the likelihood of such behavior on a re-petitive basis—precisely the pattern which the new policiesdetailed below are intended to prevent—is more accurately pre-dicted by the single measure, Hare's Psychopathy Checklist-Re-vised (PCL-R)—than by any other single measure, including pre-vious history of violence (9).

EVENTS AND POLICY CHANGES THAT CONFOUNDTHE MAD AND BAD

One assumption that leads to a confounding of irrational andcriminal behavior is that a pattern of criminal behavior itself indi-

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cates some sort of "mental condition," even in the absence of diag-nosable mental illness. This assumption led to the introduction inNew York, in the summer of 1994, to a policy of charging themental health system with responsibility for helping the parolesystem to oversee criminals convicted of repeated offenses, by as-signing them intensive case managers upon completion of theirprison terms.

A second such assumption, the converse of the first, is that allthe mentally ill should be assumed to be dangerous to the public.This assumption was, unfortunately, given credence when a pa-tient not designated as dangerous eloped from the grounds of astate hospital in New York and, intoxicated on cocaine, pushed amiddle-aged woman to her death in front of a subway train.

The two significant policy changes that followed this event sub-stantially altered the setting of care for the mentally ill into onemore resembling a prison. First, in the spring of 1995, securitywas increased substantially through the use of "sally-ports" athospital exits to restrict the movement of patients, the construc-tion of chainmail perimeter fences, the deployment of TV camerasto monitor patient movement, and the use of badges to distinguishvisitors from patients. Community access for all patients, not onlyfor those designated as dangerous, was severely restricted. Sec-ond, legislation was enacted that summer to override confidenti-ality restrictions on access by the mental health system to thecriminal records of all patients. The presence of such a record,even when lacking sufficient detail to determine the potentialdangerousness of the offense, was at times the basis of a patient'sbeing designated as dangerous.

During this transitional year it was still understood by clini-cians that irrational behavior was to be distinguished from crimi-nal, and treated accordingly. The "subway pusher" noted abovehad never been diagnosed other than "psychosis secondary to sub-stance abuse," and thus would be considered by most clinicians asa responsible criminal rather than an innocent madman. Anothernotorious case, that of the "Staten Island slasher," involved a manwith no prior history of violence who was examined at the time ofhis violent action and found to be suffering, as he had for someyears, from paranoid delusions; psychiatrists considered him madrather than bad. A third notorious case, that of the "wild man of96th street," was labeled both mad and bad by the press, but in

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fact he had never been shown to have hurt anyone, though hecaused considerable public nuisance, and on repeated psychiatricexamination was never found to be suffering from mental illnessother than cocaine abuse.

The U. S. Supreme Court's Kansas v Hendricks decision, by a5-4 vote, on 6/23/97 (10), marked the end of the transitional periodand the official beginning of the new one. Public policy once again,as before the Enlightenment, sanctioned the mixing in the sameinstitutions of those with "unreason" and those whose behaviorwas "felonious." The Court compared sexually violent persons—rapists and pedophiles—with persons suffering from a "highlycontagious disease," whom society had long felt justified in quara-ntining, if they threatened to contaminate the public at large (11).In effect, this ruling ratified the policy adopted in Kansas,whereby a known, repeatedly pedophilic offender was involun-tarily committed to a state mental hospital following the comple-tion of his prison sentence. According to Hendricks, it was notnecessary to find that the sexual offender had a mental illness, asdefined above; a finding of a "mental condition" or "abnormality"was sufficient. Since this finding could be based on a pattern ofsexually predatory behavior alone, no psychiatrist was actuallyrequired in the determination. California, Washington, Arizona,and Minnesota, in addition to Kansas, had such laws in placeprior to Hendricks; Illinois has since enacted them, and mostother states are expected to follow suit. To date, no one committedunder these statutes—some already for as long as 6 years—hasbeen released.

PREPARATIONS FOR MANAGING SEXUAL PREDATORS

Though the state Assembly in New York has thus far held out, itis expected to pass the necessary bill in the near future. In antici-pation of this event, the state office of mental helath has begunto prepare for the management of sexually violent persons. Thesepreparations so far include the details of the screening process,the construction of suitable units for containing such persons dur-ing screening and after commitment, and the training of staff.

The purpose of the screening process is twofold: 1) to ensurethat those committed to such units are indeed "sexually violent

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persons" who, based on the pattern of prior behavior, are likely toreoffend; and 2) to reduce substantially the number so committed.Three steps are required, according to the formula adopted in Cal-ifornia and Minnesota: first, a 3-member panel of experts ap-pointed by the Commissioner of Mental Health must agree withthe designation; second, a judge must concur, on the basis of acourt hearing where the prisoner is represented; finally, a jurymust reach the same conclusion. Based on the experience of theseother states, an estimate of a 90% reduction is anticipated; thatis, of the 700 persons completing prison terms for sexual crimeswho are released from New York State prisons each year, only 70-100 would ultimately be committed to these special units. Howlong this screening process might take is difficult to anticipate,but if it is not completed by the prisoner's release date, then hemust be released to facilities of the Office of Mental Health. SinceOMH's single prison hospital, and its local courts, would quicklybe overwhelmed by the admission of 700 for processing, it seemslikely that they will be distributed to their districts of originalresidence; thus, potentially all OMH hospitals will become in-volved, at least during the screening phase.

Training has been initiated for both general and specializedprofessional staff. During the '97-'98 academic year a conferenceon violent and predatory behavior was held for psychiatrists, fo-rensic psychologists, and administrators, to alert them to the di-mensions of the task of preparing to manage this population. Thiswas followed by a workshop on the use of the Psychopathy Check-list-Revised for a substantial group of psychologists familiar withthe use of structured diagnostic interview formats, who will, fol-lowing certification in the use of the PCL-R, prepare to performthis evaluation on those undergoing screening. It is intended thatthose who score low on this scale will be slated for such treatmentmodalities as become available, while those who score high willbe held indefinitely because of their high likelihood of reoffending.Laws in effect in states that have enacted Hendricks legislationcall for annual renewal of commitment. Finally, a "high-risk" taskforce was formed to coordinate training and screening efforts.

Treatment efforts have tended to follow one of two models: apharmacological one that uses SSRI's for the presumed compul-sive nature of this behavior or anti-androgens to eliminate its sex-ual component (see Bradford in this issue), or a cognitive-behav-

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ioral model that uses aversive conditioning to stimuli of forced sexand reinforcement of those non-deviant sexual fantasies to whichthe committed person is capable of responding. The choice ofmodel appears to depend on the training and experience of theparticular sexual-disorder expert who is responsible for the pro-gram. Such experts are in short supply. Logic and fairness call forthe availability of such programs for those who elect to undergotreatment out of a desire to change their deviant behavior (12).However, fear of public outcry, should reoffense follow at any laterdate, may have a chilling effect on clinicians who would apply tothe courts for the release of such persons.

Capital reconstruction to prepare a specialized unit for the an-ticipated first cohort of those committed for screening at OMH'sprison hospital has begun. So far, $0.3M has been spent on theunit itself, and another $6M on a new perimeter fence. The expe-rience from other states, in this as in other aspects of these pro-grams, is instructive: California spent $22M to house its first 200detainees, and new units are under construction. The costs re-ported from Minnesota are similar, where the annual costs of de-tention and the rehabilitative programs offered come to $120Kper year per detainee, even though no effort is being made to sat-isfy the standards required for certification by JCAHO. Securityhas proven the major consideration. Initially many incidents ofstaff injury and exploitation were reported—not surprisingly, asthis population, generally free of Axis I illness, is able to planretaliatory action in ways that traditional mental patients arenot. The level of security that will be required once the detaineesrealize their commitment is indeterminate and will not be short-ened by maintaining good behavior, as would have been the casein prison, can only be cause for speculation.

DANGERS OF REGRESSING BACK TO THE PRE-ENLIGHTENMENT CONFOUNDING OF MAD AND BAD

In addition to the issues of cost, resource allocation, and threat tostaff, there exists a significant threat to the hospitalized mentallyill themselves, who are more vulnerable to predation by rapistsand other violent predators than the public at large. Furthermore,when they report victimization, they are less likely to be consid-

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ered credible witnesses for civil or criminal proceedings, and thustheir co-institutionalized victimizers are less likely to be prose-cuted than if their victims were not mental patients. This dangerwould be significantly reduced, in the case of sexual predators, ifonly pedophiles and not rapists were detained in these units (seeBradford in this issue), but it is unclear whether the Office ofMental Health itself will have input into the selection criteria.Furthermore, there is the question of potential for diversion ofalready scarce resources. Advocates of the seriously mentally illhave understandably become concerned about both the danger totheir friends and relatives and this resource-diversion issue.

Finally, when patients are discharged from mental hospitals,the public cannot know whether the discharged person is merelyafflicted with 'unreason' or whether he is actually 'felonious,' andthe stigmatization of the mentally ill will be given a justification.

STEPS NECESSARY TO PRESERVE THE DISTINCTION

The simplest and most direct way to maintain the current policyof detaining violent predators within the corrections system is toimpose longer sentences on those convicted of serious sex offenses.A variant of this policy is in use in Canada. All offenders sen-tenced to a term of two years or more are relegated to a federalcorrectional institution, where the PCL-R and other forms of eval-uation are carried out during the reception phases of imprison-ment. Because the parole board typically pays close attention toan offender's PCL-R assessment, the instrument helps to deter-mine how long he or she remains in prison. In addition, the Crownmay apply to have an individual with a history of violence de-clared a "dangerous offender," following which an indeterminatesentence can be imposed. The PCL-R plays an important role inmaking this determination.

Even under the current sentencing policy in the U.S., it wouldbe both more reasonable and more humane to begin treatment atthe beginning rather than at the end of prison terms—at least,for those choosing this option. The Office of Mental Health, withinits forensic mandate, has the authority and could develop the ca-pacity to provide such treatment.

Groups such as the Alliance for the Mentally I11 have already

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mobilized to advocate against the mixing of mad and bad. Statehospital psychiatrists in Illinois, concerned about the potential forabuse in labelling as mentally ill those who, by professional stan-dards, are not so, have refused to become involved in the screen-ing process for transfer to the mental health system in that state.Such efforts and such an example may be inadequate to preventthe rush to adoption of such policies in New York and in otherstates which do not yet have them. If such resistance fails to per-suade the public, and its elected leaders, of the harmful effects ofsuch policies, we will effectively be reverting back to the situationof two centuries earlier, when prisons housed both mad and bad.

REFERENCES

1. Gladwell M: "Damaged." The New Yorker, 2/24/97.2. Foucault M: Madness and Civilization: a History of Insanity in the Age of

Reason. New York, Random House, 1988 (originally: Histoire de la Folie,Paris, Plon, 1961).

3. op. cit, p. 221.4. Ray I: Homicide—suspected simulation of insanity. American Journal of In-

sanity 31:241-53, 1874.5. Gray JP: Responsibility of the insane—homicide in insanity. American Jour-

nal of Insanity 32:1-57, 1875.6. Oldham J: The criminalization of the mentally ill in the public sector. Pro-

ceedings of the 49th Institute on Psychiatric Services, Washington, DC, Oc-tober, 1997.

7. Steadman HJ, Mulvey EP, Monahan J, et. al.: Violence by people dischargedfrom acute psychiatric inpatient facilities and by others in the same neigh-borhoods. Archives of General Psychiatry 55:393-401, 1998.

8. Cleckley HM: The Mask of Sanity: an Attempt to Reinterpret the So-CalledPsychopathic Personality. St. Louis, Mosby, 1941.

9. Monahan J: The MacArthur study. Presentation to National Association ofState Mental Health Program Directors (medical directors' fall meeting),Los Angeles, 10/1/98.

10. Kansas v Hendricks (US, 1997).11. Hendricks, 117 S.Ct at 2079.12. Becker JV: Understanding and treating child and adolescent sexual offend-

ers. Advances in Clinical Child Psychology 19:177-97, 1997.

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