Mass incarceration and the death penalty in the USA: a brutal system that does not spare the mentally ill.

  • January 24, 2021

In the last 50 years the prison population in the USA has swollen from about 196,000 to nearly 2.5 million – a twelve-fold increase and 30 times the prison population of the UK for a population about five times the size of ours. A further 4+million are paroled or on probation.

Mass incarceration: the real American dream?

US prison population (1000s) over the past 50 years

This state of affairs is not an accident or an unwished-for unintended consequence of some other aspect of US policy. It has been building for decades and is driven by a complex of inter-related social and political decisions towards action or inaction. Aggressive response to drug-related crime accounts for about 20% of incarcerations. Phenomenal levels of gun ownership increase the likelihood that minor offences like stealing from a shop or getting into a fight turn into armed robbery or (attempted) murder. Privatised incarceration and the associated prison (slave) labour are numerically small but important in lobbying and in their ideological force. Poverty is a barrier to making bail and even more so to getting a competent or interested defence attorney. Important positions in the public legal system are politicised and being tough on crime is an easy electioneering slogan (sound familiar?). Underlying the lot is a poisonous racism that has its roots in slavery and resistance to reconstruction after the Civil War.

Bryan Stevenson is a campaigning lawyer who found the Equality Justice Initiative thirty years ago.

His book Just Mercy describes some of the people he and his organisation have represented as they challenge iniquities like sentencing minors to death or to die in prison (life without parole). Winning these battles is an uphill struggle – the USA is the only country in the world to send children as young as 13 to adult prisons and it was only this month that Ohio abolished life-without-parole sentences for children; one of only 24 states to do so. The book should be read by anybody who believes that America is the Land of the Free and a model democracy.

Mental states and coercive states

The chaotic emptying of mental hospitals in the Reagan era pitched thousands of vulnerable adults onto the streets (see eg Decarceration: community treatment and the deviant, Andrew Scull, Polity Press 1984) and exposed them to risk of imprisonment that has never gone away.  Stevenson touches on, but does not major on, this aspect of mass incarceration but I was nonetheless struck by a passage in his book which outlines one line used to persuade the justice system towards leniency in their treatment of juveniles. In a book where the arguments are otherwise couched in social, ethical and political terms, comes this explanation for the likelihood of young people becoming involved in crime:

“A rapid and dramatic increase in dopaminergic activity within the socioemotional system around the time of puberty…drives the young adolescent toward increased sensation-seeking and risk taking…This increase in reward-seeking preceded the structural maturation of the cognitive control system.”

Is this how abused and neglected people have to be presented to the US courts to elicit a response other than savagery? 

Can Lisa Montgomery have a lasting legacy?

While I was thinking about this (I have just finished Stevenson’s book) the case of Lisa Montgomery made news in the UK. She was one of the victims of Donald Trump’s killing spree as he left office and attracted particular attention because she was female, killing women being seen as especially abhorrent in part I suspect for sentimental reasons, and partly because they are seen more often as damaged victims and less often in the role of (male) heartless psychopath.

Ms Montgomery was convicted of the most dreadful murder – killing a woman who was in advanced pregnancy and undertaking her own Caesarian section to take the baby as hers.  Unsurprisingly she was recognized from the beginning to be mentally ill and indeed while awaiting execution she was imprisoned in The Federal Medical Center, Carswell which is a United States federal prison in Fort Worth, Texas for female inmates with special medical and mental health needs.

The basis for a final unsuccessful plea for stay of execution was that she was mentally incompetent, a term pretty much equivalent to lacking mental capacity in the UK. That is, she did not understand in a meaningful way that she was to be executed and why. An additional argument was that she was being denied the opportunity to prove that by being denied access to experts who might provide the necessary evidence to the court.

The relevant evidence was presented by her defence team in a petition for writ of habeas corpus.  In addition to outlining a history of gross and persistent physical and sexual abuse throughout her early life, the document provides extensive neurological and psychiatric evidence, including reference to MRI and PET scanning of her brain. The various observations and opinions make a bewildering read, offering a snowstorm of diagnoses include depression, psychotic depression, bipolar disorder, psychosis, delusional cycling psychosis, PTSD, complex PTSD and dissociative disorder. All complicated by evidence of “frontal, parietal and temporal or slash limbic lobe dysfunction”, and impaired motor control, cognitive function, attention, language and cerebellar dysfunction and temporal lobe epilepsy.

It is difficult to find a straightforward account of a mental state examination that would convince a sceptical court of her incapacity.  She is described at times as showing “…confused thought processes, disengagement, depersonalization, derealization, identity confusion, memory disturbance, and emotional constriction.” At times she was dishevelled and monosyllabic.  At other times she reported hearing her mother saying derogatory things to her and saying that God communicated with her through dot-to-dot pictures.

Even a straightforward question about mental capacity (competence) produces a response of opinion rather than clearly stated fact:

“Based on your knowledge of Mrs. Montgomery’s history as well as the reports of counsel regarding her current symptomology, is Mrs. Montgomery able to form a rational understanding of the State’s rationale for her execution as required by Ford v. Wainwright, 477 U.S.399 (1986)?

In my professional opinion, which I hold to a reasonable degree of psychiatric certainty, Lisa Montgomery is unable to rationally understand the government’s rationale for her execution as required by Ford v. Wainwright, 477 U.S.399 (1986). Mrs. Montgomery’s grasp of reality has always been tenuous: medication and the stable, supportive environment of her confinement over the past decade have allowed her to appear psychologically intact, though her baseline perceptions of reality are always distorted due to her brain impairments and trauma history. Mrs. Montgomery’s attorney’s observations—limited though they are—indicate that Mrs. Montgomery is further disconnected from reality, precluding a “rational understanding” of “the State’s rationale for [her] execution.”

Trying to make sense of all this is complicated by the experts’ tendency to drift into quasi-neurological speculation about the origins of her symptoms:

“Traumatized children experience neurochemical, neuroendocrine and neuroanatomical changes in the brain”  (Really? Experience?)

“..her neurobiological response to early stress was such a heavy load of anaesthetising, altering neurochemicals that she now just daily lives in that kind of …operating stance,…”

With regard to cerebellar dysfunction these are the symptoms one sees…distractibility, hyperactivity, impulsivity, disinhibition, not being able to control one’s anxiety, irritability, rumination,…obsessive behaviour and dysphoria”

“… the dysfunction of PTSD is that we understand now that the part of the brain that encodes memory is the hippocampus, the larger system than that but the hippocampus is the main structure. If laying down that memory as the amygdala, the part of the brain we talked about [in] the limbic system, is sending fear. So later the memory of the trauma activates the fear,…” 

Piecing all this together, the most likely I could come up with was that Ms Montgomery had three main problems with her mental health, in each case exact diagnosis unclear but not relevant for the plea under consideration:-

  • A long-standing psychotic disorder characterised by mood swings, hallucinations and delusions;
  • Emotional and interpersonal problems consequent upon severe sexual, physical and emotional abuse in childhood;
  • Some degree of cognitive impairment consequent upon brain injury sustained during attacks in childhood;

All these almost certainly exacerbated by the abusive nature of her treatment during incarceration.

In truth the only conclusion I could come to in the end was a feeling of despair that her liufe depended upon a procedural argument about whether  she understood that the state wanted to kill her.

Lessons for the UK?

Like so much about life in the USA, especially in the Trump era one can be horrified by the inhumanity of it all, but it is difficult to see if there are any messages of relevance to our own policy and practice. I think there are at least four lessons, two relating to public policy and two relating to psychiatric practice especially as it is used to explain and respond to social deviance.

First and foremost, we must step back from the current drift towards demonising the poor and marginalised and especially those from minority ethnic groups. The main cause of mass incarceration is illiberal social policy, not individual badness – let’s not go there.

Second, we should avoid imprisonment if at all possible – including imprisonment of those with significant mental illness, those charged with offences but not convicted, and sans papiers suspected of not having legal status as immigrants or asylum-seekers. Privatised prison services are wrong even at a pragmatic level because profiteers are a distorting influence on public policy.

In relation to psychiatric practice we must be endlessly careful that our formulations do not support such demonising by emphasising individual pathology at the expense of social determinants – the diagnosis of personality disorder being a prime example.

Functional imaging is an interesting development in understanding the brain, but it can’t help us with questions about agency and responsibility. Muddling together neurological and psychological explanations runs the risk of neither being delivered adequately. Brain investigation doesn’t make psychological explanation in such cases more credible, it just muddies the waters.

It is difficult to believe any of this made a difference to poor Ms Montgomery’s fate – a spiteful punitive system was determined to have its way – but perhaps we can make the best of a very bad job by asking how her final sorry end might have been avoided.  

Allan House

E-mail : a.o.house@gmail.com

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