If you have issues viewing or accessing this file, please contact us at NCJRS.gov. ,-".-~. -;--~----- ~,... ( National Institute of Mental Health / YoANGEROUS BEHAVIOR: A Problem in Law and Mental Health / ., i l /, I , , " CRIME AND DEliNQUENC'( iSSUES: A Monograph Series DANGEROUS BEHAVIOR: A Problem in Law and Mental Health edited by Calvin J. Frederick, Ph.D. Djvision of Special Mental Health Programs National Institute of Mental Health NCJRS fEB 5 '919 ACQUISITIQNS U. S. DEPARTMENT OF HEALTH. EDUCATION. AND WELFARE Public Health Service Alcohol. Drug Abuse. and Mental Health Administration National Institute of Mental Health , Center for Studies of Crime and Delinquency t 5600 Fishers Lane I Rockville, Maryland, 20857 This monograph is one of a series on current issues and directions in the area of crime and delinquency. The series is being sponsored by the Center for Studies of Crime and Delinquency, National Institute of Mental Health, to en­ courage the exchange of views arId to promote indepth analyses and recom­ mendations, Contributions to this monograph have been made by recognized authorities on the subject. The opinions expressed herein are the views of the authors and do riOt necessarily reflect the official position of the National Institute of Mental Health; Alcohol, Drug Abuse, and Mental Health Administration; Public Health Service; or the U.S. Department of Health, Education, and Welfare. DHEW Publication No. (ADM) 78-563 Printed 1978 I ,( j For salo by tho Superintendent oC Documents, U.S. Government Prir.tlng Office Washington, D.C. 20.[02 I Stock NumbH O~7-o24-OOSO!J-5 CQNTENTS Preface. ... .. ........................ v Contributors ..................................... " vii 1. GENERAL ORIENTATION TO THE PROBLEMS OF VIOLENT BEHA VIO'R 1. An Overview of Dangerousness: Its Complexities and Consequences Calvin J. Frederick . 3 ""~ 'L' Dangerousness of the MentallYtill - A Methodological j Reconsideration Joseph E. Jacoby ........................... ,. 205'fJ7/ I II. [,EGAL AND LEGISLATIVE ASPECTS "'it'3'.- 'Notes on Defining th~'Dangerousness ~f the .J " Mentally III Alexander D. Brooks ......................... 4. Legal Standards and Their Implications Regarding Civil Commitment Procedures Jonas Robitscher ............................ 61 5. Legal and Social Aspacts of the Concept of Dangerousness Ralph Kirkland Schwitzgebel .................. 83 6. Dangerousness and the Discipline of Psychology­ The Stream of Thought of a Patient's Lawyer Herbert M. Silverberg ........................ 96 7. The Lanterman-Petris-Short Act With a Focus Upon Dangerousness Nicholas C. Petris ............................ 102 iii III. POLICY, TREATMENT, AND SOCIAL IMPLICATIONS 8. Community Followup and Dangerous Mental Patients Terence B. Thornberry ....................... 111 \t. Empl~ying Ps~chiatric Predictions of Dangerous' "'" BehavIOr: Pohcy vs. Fact .~tfJ. ~ Henry J. Steadman .................... -I..... 123 10. An Assessment of California's Mental Health Program: Implications for Mental Health Delivery Systems Albert H. Urmer . .. 137 l. Dangerousness and Mental Illness: Some I Conceptual, Prediction, and Policy Dilemmas /4J1t.. CSaleem A. Shah ....................... ? .... 153 1 iv 1 I PREt=ACE OVer the years, there has been a great deal of confusion regarding "dangerous" behavior, bot~l in legal arenas and in mental health systems. One of the purposes of this monograph is to clear up the existing confusion and chaos. The persistence of the problem of dangerousness, as well as the intense interest in it froul the public and the professionals, empha­ sized the need for an extensbl'e look by knowledgeable professionals in the field. As a result, in May of 1974, the Center for Studies of Crime and Delinquency, N atiohal Institute of Mental Health, held a symposium on dangerousness and mentally disturbed persons. Members of this symposium were the core contributors to this monograph. They were: Dr. Jonas Robitscher, from the Emory University Law School; Dr. Henry Steadman! from the New York State Department of Mental Hygienej Dr. Terence Thornberry, University ofPennsylvaniaj and the Honorable Nicholas PetTis, State Senator from California. The monograph editor served as moderator. Discussants were: Dr. Saleem Shah, Chief, Center for Studies of Crime and Delinquency, National Institute of Mental Health, and Mr. Richard Millstl:!in, Chief, Legislative Services Unit, Alcohol, Drug Abuse, and Menti~]' Health Administration, It became readily apparent; that the information originally presented was of such a nature I,hat it should be enlarged upon and published in monograph form: for dissemination to interested mental health professionals and to policymakers and program administrators throughout the Gountry. Othet contributions were added to broaden the spectrum t;:overed in the monograph. In order to cover the issue as fully as pOlii\;ible, we made certain that knowl­ edgeable individuals from a variety of professions and academic disciplines were represented in the diversity of monog'l'aph articles. The authors, therefore, have come from the fields of law, psychol­ ogy, medicine, psychiatry, and sociology) and include a State legislator who is especially knowledgeable about mental health and legal issues. Since 1974, when the symposium was held, there have been several important developments, including the decision in the case of 0 'Connor vs. Donaldson by the United States Supreme Court. v Therefore, each author was given the opportunity to update his remarks. Some authors availed themselves of this opportunity, while others felt their contributions were already complete. In any case, this monograph represents the current thinking of some of the most outstanding professional and academic persons in the Nation today. The editor has attempted to present an overview of violent behavior, with a general orientation toward some of the prominent aspects which require consideratir)fi. Dr. Saleem Shah has endeav­ ored to bridge some of the gaps, in tho updating process, which have appeared since the original symposium was held. It is hoped that this monograph will be of interest to profes­ sionals. policymakers, and program administrators, and will stimu­ late them to pursue needed solutions to the perplexing problems pertaining to the issue of dangerousness as it relates to the handling " of persons considered as mentally ill. The editor would like to thank all of the contributors to the monograph for their helpful participation and refreshing insights. vi l J CONTRIBUTORS Alexander D. Brooks, LL.B., Professor of Law, School of Law, Rutgers University, Newark, New Jersey. Calvin J. Frederick, Ph.D" Division of Special Mental Health Pro­ grams, National Institute of Mental Health. Joseph E. Jacoby, Ph.D., Assistant Professor, Department of Human Sciences, University of Houston, Houston, Texas. Nicholas C. Petris, LL.B., State Senator, Sacramento, California. Jonas Robitscher, J.D., M.D., Henry R. Luce Professor of Law and Behavioral Sciences, Emory University School of Law, Atlanta, Georgia. Ralph Kirkland Schwitzgebel, Ed.D., J.D., Assistant Professor, Department of Psychology, California Lutheran College, Thousand Oaks, California. Saleem Shah, Ph.D" Chief, Center for Studies of Crime and Delin­ quency, National Institute of Mental Health. Herbert M. Silverberg, LL,B., School of Law, University of New Mexico, Albuquerque, New Mexico. Henry J. Steadman, Ph.D., Director, Special Projects Research Unit, New York State Department of Mental Hygiene, Albany, New York. Terence P. Thornberry, Ph.D., Research Associate, Assistant Direc­ tor, Center for Studies in Criminology and Criminal Law, University of Pennsylvania, Philadelphia, Pennsylvania. Albert H. Urmer, Ph.D., President, ENKI Research Institute, Chatsworth, California. vii ~ ! I. General Orientation to the Problems of Violent Behavior f t I 1 I I I 1 CHAPTER 1 An Overview of Dangerousness: Its Complexities and Consequences Calvin J. Frederic.k Introduction Although the concept of dal1gerousness may initially appear spe­ cific enough to provide a focal point for much agl'eement in the areas of law and mental health, in point of fact, it has led to a num­ ber of cor.llplex issues evoking differing pr.actices and points of view. The components which are most often either confused or falsely equated are these: (1) mental illness and dangerousness; (2) pre­ dictability and unpredictability of dangerous behavior; (3) defini­ tions and criteria of the concept of dangerousness; (4) standard of proof required for deprivation of liberty; (5) parens patriae and police power functions; (6) competency to stand trial and criminal responsibility; (7) civil and criminal commitmlmtj (8) voluntary admission and involuntary commitment; ar:rl (9) right to receive and to refuse treatment. Mental illness has hktorically been associ­ ated with dangerous, violent behavior. Unforh"nately, this concept has carried over into our present day legal s~stem, as Robitscher observes at some length in a later chapter. It is difficult, even under the best of circum<,liances, to predict behavior of any kind, espe~ially behaviors (like violence) that are relatively infrequent. For example, one might suppose that, by knowing the behavioral patterns of one monozygotic twin, the other might be expected to behave in the same manner under sim­ ilar circumstances. Such is not the case, nor do persons with eqlliv­ alent types of jnherited mental deficiency or the same organic brain disorders behave in a predictably