Madness, Badness, and Evil 135

Madness, Badness, and Evil 135 Chapter 7 Madness, Badness, and Evil Deidre N. Greig BACKGROUND The “mad” vs “bad” debate raises fundamental difficulties for the inter- action of psychiatry and the law. In one sense the separation of these two states is quite clear. Those who are mad are not responsible for their actions commit- ted as a consequence of their mental state and should be located within treatment parameters on the grounds that their behavior is unlikely to have been conscious, intentional, and voluntary. On the other hand, those who are bad are handled within the confines of the criminal justice system with the prime object being punishment for their transgressions. These boundaries are not as discrete as they might at first appear. Should behavior be excessively depraved and grossly cruel then there is a temptation to add “evil” to the mix, as if this is the unifying link between the two. Although this term is readily invoked in the public domain, both lawyers and psychiatrists cannot escape the influence of ordinary fears and perceptions, especially when behavior is intransigent and resistant to management strategies. It is this mad/bad/evil trajectory that is reviewed in this chapter. * * * Just over a decade ago the case of a man with a severe personality disorder posed acute difficulties for the criminal justice and mental health systems in Victoria, Australia, leading one psychiatrist to inform the Supreme Court that it was Garry David’s perception of his own evilness that contributed to From: Forensic Psychiatry: Influences of Evil Edited by: T. Mason © Humana Press Inc., Totowa, NJ 135 136 Greig his isolation by fostering an exclusionary response from those prepared to assist him.1 This therapeutic barrier added yet another facet to an already complex professional and community discourse about whether this man was bad, mad, dangerous, or possibly evil. (For a detailed analysis of the case, see ref. 1.) In this chapter, it is proposed to develop these themes as they pertained to David and consider the dilemmas that this important case posed for psychiatrists, lawyers, politicians, the public, and the treating staff who were charged with providing answers. This one man had an extraordinary ability to test the stability of the boundary between the criminal justice and mental health systems, which operate as separate arms of government with quite distinct aims and obligations. I argue that this boundary is not as discrete as it would at first appear, because extreme cases are usually ambiguous and their resolu- tion depends on the contingency of circumstances and may initiate a highly contentious discourse between competing professional and public understandings. Rather than being viewed as an authoritative separation of two quite distinct states, the mad/bad divide has a tenuous and negotiable quality. As will be demonstrated, David himself was masterful in his own ability to expose the dilemmas arising when the boundary is breached, in his case often at a whim, and he created confusion for those prison and mental health staff involved in his management. The resultant border dispute was played out on many levels and it sorely tested political obligations to protect the community, just as it tested legal and psychiatric obligations to those with a severe personality disorder. “Bad” and “mad” are deceptively simple words with quite different administrative and legal consequences. Those designated as bad are considered to have the capacity to freely choose their actions and, consequently, society may invoke the retributive powers of conviction and incarceration under the aegis of the criminal justice system. On the other hand, those deemed to be mad have a reduced capacity for free will and are more liable to attract a therapeutic response. This fundamental distinction is grounded in the legal concept of criminal responsibility, which requires that culpability is premised on those acts held to be voluntary, intentional, and carried out with a con- 1 Garry (David) retains such an appalling self-image that he is indeed evil beyond comprehension, that when people respond positively to him he finds this very threat- ening, becomes so destructive in the relationship that eventually he frightens people, who have become revolted by him, and let him know this. (Dr. John Grigor, Sec- ond Hearing of the Community Protection Act 1990, Judgment, 15 November 1991, p. 19.) Madness, Badness, and Evil 137 scious awareness of their actual nature. Without these attributes the perpetra- tor cannot be considered to be morally blameworthy for criminal behavior that would otherwise be punishable by society. It is obvious that there are few problems in translating the notion of badness into criminality, which has a legislative clarity and authority mirror- ing the community’s sense of outrage about moral wrongdoing. However, the situation is rather different in relation to madness, for it is here that the law struggles to define aberrant mental states for legal purposes. In seeking to apply categorical forms of reasoning it can never allow for the diagnostic prevarication that is so much an integral part of the psychiatric process, nor does its template match the working knowledge of psychiatrists. Phrases such as “defect of reason” and “disease of the mind”—the core elements of the M’Naghten Rules2—are little more than legal artifices to bound otherwise incomprehensible behavior, yet they have remained resistant to reformula- tion for more than 150 years until the recent acceptance of “mental impairment” in many jurisdictions. This provides a more comfortable forum for psychiatric evidence, although it is situated within a legal, rather than a medi- cal, framework. Although the legal use of “insanity” is becoming anachronis- tic, the law still retains “mental illness” as the core element of the civil commitment process, despite psychiatry itself relying on the broader concept of “mental disorder” as used in the clinical manuals (2,3; see refs. 4 and 5). Nevertheless, the process of reshaping mental health law that commenced in the 1980s has seen a greater accommodation between psychiatry and the law, and the legal parameters of mental illness are now far more workable for the treatment focus of the psychiatrist. This brief overview of legal terminology surrounding the concept of madness suggests pragmatism rather than certitude. Because mental states are difficult to grasp with the clarity that the law ordinarily requires, it has little recourse but to define madness according to the purpose of the proceed- ings, whether this be for a defense of mental impairment, the test of testamen- tary capacity, fitness to plead, or civil commitment. If there is an underlying tension between the law and psychiatry in relation to legal designations of madness, then further irresolution is evident in the decisions about when, and in what circumstances, this label should be invoked. As a means of separating two different types of behavior, the mad/bad dichotomy is at best crude. Human behavior is complex and not all criminals have the capacity to exercise free choice, just as free will is not necessarily negated by the presence of mental disorder. On occasions, the two states appear to overlap, and the decision 2 (1843) 10 Cl and Fin 200, 210, 8 ER 718. 138 Greig about drawing on the procedures of the criminal justice system or those of the mental health system is indeed a difficult one, made even more so by the specter of future dangerousness that must always be paramount for the public and politicians. Cases with the dual elements of madness and badness are fraught with contention, and it is apparent that various professional groups draw on different understandings in seeking to resolve the quandary. Such a territorial struggle came to public attention in Victoria, Austra- lia, in early 1990 with media releases by the Premier and Cabinet members referring to the prisoner, Garry David, as being the most dangerous person in the state. The determination of the state government to intercede in the fate of one person due to be released was unprecedented, as were the lengths to which it was prepared to go in the ensuing years to ensure his continued incarceration.3 In many respects this was surprising because Garry David was indistin- guishable from other long-term prisoners except for the extreme nature of his disruptive behavior, and his penchant for self-publicity even when in the harsh- est areas of the prison. The characteristics of lengthy imprisonment were all too apparent in this case: he was severely institutionalized, suffered from a personality disorder, self-mutilated in custody, and issued innumerable threats to a broad range of people. But it was the tenor of the political declaration about his dangerousness that was unusual and triggered a lengthy saga involv- ing lawyers, psychiatrists, and politicians in a bid to decide whether he could be deemed to be mentally ill, and thus involuntarily detained via the mental health route following his release from prison custody. The debates occasioned by this one offender were often acrimonious and conducted at the highest levels of government and the courts. The timing was unusually sensitive because in the late 1980s Victoria, along with other jurisdictions, had expended much effort on separating criminality from mental illness in both a service-oriented and a conceptual sense, and these far- reaching changes were based on social justice principles. Psychiatrists, long stung by their critics’ allegations of being “gatekeepers of social control,” were eager to collaborate with lawyers increasingly attuned to the ramifica- tions of involuntary commitment and the necessity of ensuring the protection of the mentally ill. In this, political support was forthcoming because the government had demonstrated its seriousness about providing for the rights of both prisoners and patients through legislation and funding.

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