capitalism

emmacaterine

Why Is Arkham So Full?: The Truth About Insanity Defense in Criminal Law

I’ve been watching a show called Gotham recently. I’m a comic book nerd, like seeing strong women of color characters, and have a soft spot for any Law & Order type shows. One thing that makes the show quite unbearable at times is their portrayal of mental illness. They trick you by having protagonist Jim Gordon question the mass incarceration of the mentally ill at Arkham, but once he’s there as a security guard he’s more than happy to demean and manipulate the mentally ill as much as all the other neuro-normative, as in those without mental illnesses, characters. The mentally ill people incarcerated there are a collection of stereotypes, from the manchild to the flamboyant gay man. And of course one strange thing about the show, and about the Batman universe in general, is just how full Arkham is. Arkham pretty much has served as the de facto prison for most of Batman’s villains, even for those are supposedly “sane” like the Penguin or Black Mask.

In the real world, insanity defense are fairly rare, as demonstrated by the high rate of mentally ill persons in US prisons. Only 1 in 100 defendants even raise an insanity defense and the chance of the defense being successful is less than one percent. The misconception that it is more prominent stems from both the general fear and stigma around mentally ill people and the use of insanity defenses in highly publicized serial killer cases like Jeffrey Dahmer (thinking I might do a whole post about serial killers at some point if there’s any interest). Of course the state, and the capitalists it represents, have a very vested interest in incarcerating people with mental illness rather than having them treated at an in-patient facility (though in-patient facilities have their own problems, often associated with a general lack of funding by the state and a focus on diagnostic treatment rather than working with patients cooperatively). People with mental illnesses range from being disruptive to completely incompatible with a capitalist economy. 80% of mentally ill people are unemployed. The alienation and need for sublimination with in a capitalist economy is something that many of the mentally ill people simply cannot do or tolerate. But unlike their neuro-normative fellows, they are poor candidates to make up what Engels refers to as “an unemployed reserve army of workers.” Most of this “reserve army” is sustained by what Engels refers to as huckstering but what we now call hustling. Such hustling, whether in drug, piracy, or sex work, is incredibly mentally strenuous work. Which is not to say that mentally ill people do not engage in such work, but rather that it is not nearly as feasible for them to sustain themselves on it, and as Engels wrote, it reduces their options to begging.

Getting back to the insanity defense. Fun fact: most insanity defenses (decided by the states and one federal form) are based on a test from the 1500’s called the M’Naghten Test. This test is pretty simple: did the offender, with a defect of reason or disease of the mind, understand the difference between right and wrong? It would be laughable if it weren’t so blithely out of touch with both modern science and organizing done by mentally ill people for their rights. But wait, it gets much worse. Because this test could have gone the way of other 16th century institutions like serfdom.

The Chief Justice of the Supreme Court of New Hampshire, Charles Cogswell Doe, had a problem. Defendant was being charged with murder in the commission of a robbery (note that this was before felony murder rules had been established in many places like NH). Defendant had what at the time was called dipsomania, what we would now call alcoholism. The judge established a new test: that insanity defenses could be applied in cases where the crime was a product of mental defect or disease. Whether or not that was the case would be left up to the jury in their role as the triers of fact. Despite the problematic language, this was a huge step forward from the ludicrously high standard of the M’Naghten Test. And it was in 1870. It is generally referred to as the Durham/Product Test.

Having an insanity defense that could actually work was troublesome to capitalist lawmakers for another reason than the desire of warehousing an untenable population of unemployment. Guilt is a crucial aspect of the criminal legal system. Insanity defenses are “excuse defenses,” defenses that find a person normally guilty of the crime not guilty. Their existence has a basis in the representation-reinforcement school of thought: if you do not excuse certain defendants who are extremely sympathetic to the working class, it could both cause dissent to the government and reveal that the purpose of the criminal law is not as moral or socially responsible as it purports. Writes Evgeny Pashukanis:
Guilt… is the basis for the gradation of punishment – a new, if you wish, ideal or psychological element, which is combined with the material element (the injury) and the objective element (the act) – in order to provide a joint basis for determining the ratio of punishment…bourgeois jurisprudence ensures that the transaction with the criminal is in accordance with all rules of the art, i.e. that each may be convinced, and may verify that the payment is justly set (public judicial proceedings), that the criminal may bargain freely (adversary process), and that in so doing he may use the services of an experienced judicial expert (admission of the defence) etc. Briefly, the state conducts its relationship to the criminal within the framework of a bona fide commercial transaction in which there are, ostensibly, guarantees of criminal procedure.

So critiques were put forth against the Durham/Product Test that it puts too much emphasis on mental health experts. We have in this critique an interesting contradiction: on the one hand, it is legitimate to wish to avoid too much emphasis on the ambiguity that is witness experts (a topic for a later date I’m sure), but on the other hand, who else has the credentials to inform a juror’s choice on an issue explicitly about mental illness? With the publishing of the Model Penal Code in 1962, the American Law Institute sought to reinforce the certainty necessary for capitalist law, and insanity defenses were no exception. Model Penal Code section 4.01(1) adopts a version of the Irresistible Impulse test: that the defendant lacks substantial capacity to know criminality or conform their conduct to requirements of the law. Other criminal codes go further, such as the New York Penal Law which essentially revives the M’Naghten Test.

An actionable insanity defense that is not fatal in fact could be a means of questioning the purported morality and purpose of the criminal law. Remember that not all defenses are created by statute: the use of the “battered woman syndrome” defense, which faced major opposition when first used by defense lawyers who had gone outside of the defenses outlined by statute, is now practiced across the country. Similarly we need new defenses for people with mental illnesses that are not restricted by the prejudiced and exploitative definitions of capitalist law.

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emmacaterine

Against “Fairness”

122188155_2700750283_z Contracts are the life blood of capitalism. As Pashukanis wrote, and as my contracts professor said the first day of class, everything in a capitalist legal system can be framed as a contract. The Constitution is the state’s contract with private interests and within itself between the various branches and departments of government. The criminal law is a contract where the accused bargains with the state to work out a deal to “pay their debt to society,” though of course the “debt” is actually accrued by their disruption of the flow of capital. And then of course, there are what we think of on a day-to-day basis as contracts. We sign contracts with our banks, credit card companies, and other financial service providers so that they can have the legitimacy, and thus the ability to use the power, of the state. We sign contracts when we marry, originally because women were viewed as property, and now because it is a risky economic relationship that the state demands some control over in order to alleviate a divorce’s disruption of the flow of capital. And as pictured above, US unions across the board generally hold the provision of a “good contract” by employers as their major, or even their only, platform.

I give that brief introduction because it is important for us to view the material dialectic reality of what a contract is as opposed to the deterministic framework propounded by capitalists and their states. One particular concept that I have oft-seen mythologized, even by the Left, is “fairness.” “Fairness” is an integral part of the market fables that not only purport capitalism as efficient, but as ethically and morally sound. The bourgeoisie own wealth because it is “fair” since they have worked so hard. The wealth inequality is “fair” because the poor do not work hard enough. When I am buying a sofa for my apartment, it is “fair” for my roommates to chip in, even if I make enough money to buy the sofa without their assistance.
Contracts are claimed to be the purveyor of “fairness” (as we will see, this is a mistaken view of their relationship). When an offer is made and someone accepts it, that is generally seen in the United States as “fair” unless the offer was made under force, fraud, or coercion. The focus here will be tailored particularly to unilateral contracts, because of a special interest in fairness with the upholding of these contracts. A unilateral contract is pretty much what it sounds like: it is an offer to carry out some future act (to make a promise) that demands some specified performance to make it binding (called consideration). Why fairness is important to contracts is fairly straightforward: unlike a bilateral contract, the offeree in a unilateral contract has no promise to leverage the offerer with. A good example of a unilateral contract is an insurance policy. Your payment to an insurance company is your consideration, and as such the insurance company promises to insure your health, life, property, etc. And of course we get really upset when insurance companies are “unfair”! People still go off about the tens of thousands being denied insurance for their homes after Hurricane Katrina. The tactic of finding “previous conditions” not reported in the purchase of health insurance was another example of a lack of “fairness” bemoaned by the Left of this country. But in both of these cases (speaking generally about lawsuits around “previous conditions” before the Affordable Care Act), the courts ruled in favor of the contract. And one of the most important things about contracts, a key element to its value in capitalism, is to bind the underclasses to unfair economic dynamics through the state’s authority.

One famous example of such a case was Petterson v. Pattberg (1928) in New York. Essentially this trial dealt with three people: the decease John Petterson, the executrix of his will (simply referred to as Petterson), and a man who held a bond secured by a third mortgage on the house. Pattberg’s bond on John Petterson’s property was, at the time of the execution of the will, unpaid upon the principal the sum of $5450, payable in installments of $250 in 21 days and then subsequently every three months thereafter. Pattberg wrote the plaintiff with an offer to accept cash for the mortgage reduced by $780 if the mortgage was paid on or before May 31, 1924 and the April 25th payment was given on time.” Petterson paid the April 25th payment on time. On a day in May, Petterson went to Pattberg’s home with the money for the remainder of the mortgage. Pattberg informed plaintiff that he had sold the mortgage. Petterson showed that he had the full sum, in cash, but Pattberg refused the money. And the court ruled that without Pattberg accepting the money, there was no legal reason why Pattberg could not rescind his original offer to reduce the payment by $780: it was not a full performance. This case was very controversial, and not just because the dissenting judge insinuated the Chief Justice was hypocritical. One of the most interesting statements comes from a law review commentator named Samuel Blinkoff. Blinkoff said that the “court gives the strict orthodox answer [but] it seems that the demands of good faith in business dealings would require a more liberal decision in cases of this kind” (Note, 14 Cornell L.Q. 1928). The question here is: what are the “demands of good faith in business dealings”?

In a far more recent case, Cook v. Coldwell Banker/Frank Laiben Realty Co. (1998) in Missouri, the issue of “fairness” gets revisited by the court with what appears to be a different philosophical approach. Cook was a licensed real estate agent, and Frank Laiben promised bonuses for any of their contracted agents who made a certain amount in commissions. This bonus would be paid at the end of the year. Cook quickly surpassed the “first tier” of bonuses, and by September she was in the highest tier with a thirty percent bonus. On this month, Frank Laiben informed the agents that bonuses would actually be given on March of the next year, and that agents who were not still with them at that time would not receive their bonuses. Cook stayed through the end of the year, and then started working for another company at the beginning of the next year. She sued to get her bonus and won. The court reasoned that Cook had made a “substantial” enough performance by September that Frank Laiben could not have made a new offer (to collect bonuses on March of the next year) without fulfilling his promise for the first offer (to collect bonuses at the end of the year).

Here’s the issue: why was Cook’s performance considered substantial but not the performance of Petterson or the Hurricane Katrina survivors? The answer has to do with the reproduction of surplus value in a capitalist economy, not with some fairly arbitrary doctrine of “fairness.” Rosa Luxemburg in The Accumulation of Capital expanded on Marx’s own assertion that “money in itself is not an element of actual reproduction”: Luxemburg writes “we must assume that capitalist society must always dispose of money, or a substitute, in just that quantity that is needed for its process of circulation… the capitalist class, that is to say, use the whole of their surplus value for personal consumption. Since the capitalists are the consumers of surplus value, it is not so much a paradox as a truism that they must, in the nature of thing possess the money for appropriating the objects of consumption, the natural form of this surplus value. The circulatory transaction of exchange is the necessary consequence of the fact that the individual capitalist cannot immediately consume his individual surplus value, and accordingly the individual surplus product.”

Unilateral contracts, and perhaps more importantly state enforcement of unilateral contracts or the lack thereof, are an exchange as much as any other. So it is not quite surprising then that the corporations and state have a vested in interest in ensuring that the governance of unilateral contracts creates surplus value for their consumption. Therein lies the difference between Cook and all these other cases: Cook was a member of the bourgeoisie, engaging in the standard capitalist accumulation in her labor and incentivized by the unilateral contract from Frank Laiben. Actually, it is more than standard: real estate is one of the increasingly effective and pervasive ways of accumulating whatever wages are retained by the workers. It is the surplus value extracted on top of the exploitation by their employer. It is no surprise then that the agents of capitalism do not want to disrupt a “substantial performance” by one of their agents generating value for their class.

“Fairness” can only be attributed to contracts when they are atomized, observed individually and in relative isolation. This is why, even when used to speak out against the unfairness of contracts, I want to propose that we cease using the word completely. We must stop looking at contracts, or even class action lawsuits about thousands of contracts, as isolated to the actions of one insurance company or one credit card company or one employer. Fundamentally, contracts are like any other instrument of capitalism: they are part of a massive function, programmed to extract wealth from the working class into the hands of the bourgeoisie.

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