Tag Archives: mental illness

“Not Criminally Responsible:” Not Getting Away with Something

Richard Kachkar’s not criminally responsible verdict has divided observers and is fueling the debate on Bill C-54, the Bill to make NCR reviews more restrictive.

There are those who feel that the NCR decision was the right, though imperfect one.

And there are those who are angered by the verdict.  They feel that justice was not done; that the jury was duped; and worst of all, that Kachkar’s life is going to be spared while that of his victim was not.  To them, a finding of “not criminally responsible” is equal to a full acquittal, a get-out-of-jail free card, a verdict of no repercussions for Kachkar and his actions.

But an NCR finding is not tantamount to escaping justice.  And it is not a ticket to freedom.  It is the best, albeit imperfect, response that we have to people whose severe mental illness rendered them incapable of formulating the kind of intent that we believe is necessary before someone can be convicted of a criminal offence.

What does an NCR finding really mean? 

In legal terms, an NCR finding means that the person who committed an act suffered from a major mental illness at the time of commission of the act, and, as a result of the illness, she or he either did not have the mental capacity to appreciate the nature and quality of the act or did not know that the act was wrong.  

In layperson terms, such persons are often delusional or haunted in a manner that makes them out of touch with the reality of what they were doing or why they were doing it. 

And, despite the impression that a number of highly-publicised NCR cases may leave, NCR findings are rather rare. 

While many people who commit crimes often suffer from varying degrees of mental illness, most of those persons would not qualify for an NCR finding.  (Neither would they want to be found NCR, given the severe consequences of such a verdict.)

Before an NCR finding is made, one or more psychiatrists meet with and assess the accused person, and examine all the information available about him from before and after the offence.  The psychiatrists’ conclusions, along with any other psychiatric findings, are presented to the court.  The court then decides whether or not the person was NCR: whether or not the person suffered from a mental disorder, and that disorder made him or her unable to appreciate the nature and quality of his actions or render him incapable of knowing that the act was wrong. 

The consequence for the NCR person, while not as draconian as a jail term, is still severe, still restrictive, and still results in deprivation of her liberty. 

In theory, a person who has been found NCR is not supposed to spend any time in jail.  In reality, people who have been found NCR often do spend days, weeks, or sometimes even months in jail while awaiting a bed in one of our over-burdened mental health institutions.

After a first assessment, NCR persons often spend years in a psychiatric facility in order to get treatment.  They are locked up in these so-called hospitals, until such time as a Review Board deems them safe enough for some form of a leave. 

The Review Board is comprised of lawyers, judges, psychiatrists or psychologists, as well as a member of the general public.  When an NCR person appears before them for a review (which is currently done on an annual basis), the Review Board examines an array of information, focusing on the treatment the person has received, their progress, their current mental health and their prognosis.  The Board considers public safety when deciding whether or not to grant the person some kind of release, be it a permanent one or in the form of escorted day passes.

Review Boards do not make their decisions casually.  They know the stakes.  They also know that the person before them committed the acts that they did because they were sick.  Once that illness is under control, the person no longer poses a risk to society.

Keep those mentally ill people who have recovered from their disease institutionalized longer, as Bill C-54 would, and you endanger their recovery, overburden our already taxed mental health institutions, and keep others who need those beds in jails rather than in hospitals.

But as Bill C-54 and the reactions to the Kachkar verdict prove, many of us continue to look at the mentally ill with suspicion.  We wonder if their illness really played a role in their behaviour.  Even if we believe that it did, we are doubtful that such persons can ever really be safe.  And so, we believe that the NCR finding lets guilty people get away with a horrible crime.  These are understandable doubts and fears, but the available facts and data should alleviate these concerns.

In reality, a person who has been found NCR is serving an indeterminate sentence: he does not know when the sentence will come to an end.  He is not free to roam in public at any time; he is institutionalized and locked up.  And while he may not carry with him the stigma of a criminal conviction, he will always wear the stigma of having committed a heinous act, and of having suffered from a mental illness so severe that he lost touch with reality and committed a horrendous act.  His future will forever be shaped and negatively impacted by this horrible disease and event.

The tragedy of a lost life will not be avenged through the punishment of a person who did not fully and consciously intend to cause that loss.  Convicting and forever locking up Kachkar and others like him will not bring healing or justice to the victims.  It will only make all of us, who do have the full use of our rational faculties, responsible for convicting a person who was too ill to recognize the nature, severity, and consequence of his actions.

 

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Jails: Do Not Expect Healing

Every once in a while, the media focuses on the dreadful state of our prisons, and the number of people suffering from serious mental health problems who are stuck in these institutions.

(For two recent articles on the topic, see  Kirk Makin’s reports in the Globe and Mail from January 2011, below:  http://www.theglobeandmail.com/news/national/why-canadas-prisons-cant-cope-with-flood-of-mentally-ill-inmates/article1879501/
http://www.theglobeandmail.com/news/national/prisons-grapple-with-increase-in-mentally-ill-female-inmates/article1884243/  )

Each time, these exposés reveal the same tragedies:  There are far too many people who suffer from mental health problems in jail.  Jails are not the appropriate place for the treatment of the mentally ill.  Jails and jail conditions often exacerbate people’s already compromised mental health.  Each time, it appears that we have a mental health “crisis” in our justice system.

But the mental health “crisis” is not news.  It’s been an ongoing problem and shame for our society.

Some readers may be surprised at what these reports reveal.  But the fact that those institutionalized for having committed society’s most condemned acts are, themselves, suffering, should not be a surprise.

A person who turns to crime, especially violent crime, or one who returns to crime repeatedly, cannot be whole.

Crime is rarely an option chosen by rational people who have decent options in life.  When a child is asked, “What do you want to be when you grow up,” the excited response is not, “I want to be a criminal.  I want to be drunk in public and do crazy things. I want to steal and beat up people, and shoot in a drive-by.” Crime is not the dream of a child.

And yet a chain of events usually leads some people to acts of crime.

In the majority of these cases, those people are not whole.  The chain of events chipped away at their mental health, at their stability, at their innocent and hopeful view of life.  The chain of events stripped away many of their options.

Of course, such circumstances generally do not abdicate an offender of responsibility.  But given our role in perpetuating these conditions, we must change our approach to crime.

After all, who else is responsible for the damage?  Who else is responsible for the untreated depression?  Who is responsible for the suffering and harm that result from a broken mental health system that often offers people drugs but no other support?  Who is responsible for the neglect and abuse a child receives?  Who is responsible for ignoring that neglect and abuse, for not lending a hand to the family that so badly needed it?  Who is responsible to parents who work at full-time minimum wage jobs, but who then don’t make enough to buy food and pay the rent, let alone save for college, pay for tutoring, or get qualified and sufficient counseling when needed?  Who is responsible for the lack of love, care, and attention in a child’s life, because his or her parent(s) were drunk, manic, or absent?  Who is responsible for throwing the mentally ill in jail (and then acting disappointed and angry, when that person commits another crime?)

We are.  The community is responsible.

We saw it coming and we turned away.

We saw the need for help and we ignored it.

We found it easier to say, “Well, the parents are responsible.”  “A tough childhood doesn’t justify turning to violence later.”

Yet we know that certain factors certainly lead to deteriorated mental health.  And we know that people with serious mental health problems are disproportionately represented in our jails.  We know that certain factors are more likely to lead to a life of trouble with the law.  We know all this, and yet we ease our conscience by abdicating our responsibility.  We know that A leads to B, and we do nothing to intervene.  We provide no support.  And then we cry in shock, shake our heads, and condemn people when A did lead to B.  We throw people in prison, when we know that prisons are ineffective as a place to rehabilitate people.  We relegate the mentally ill to jails, but provide them with no services to address their ailments.

And then we do it all over again, knowing what is to come.

If we want to fix it, we have to prevent it.

If we want justice, we have to seek it together, right from the start.

We have to collaborate to make us all: victims, offenders, and the community, whole.

Imagine what would have happened that first time a young man was charged with theft or robbery if we did things differently.  What if, instead of dealing with him in court, where we largely ignored him or his victims and where just handed him a quick sentence (whether apparently lenient or apparently harsh), we involved him, his victims, and his community?

What if he really listened to and heard about the impact of his actions?  What if the victims and others in the community listened to what got him there?  What if they caught the beginnings of a mental illness?  What if the community observed that the young man had little support at home: his single mother was working around the clock at jobs which provided little security.  He has very few of those extras that might make our children’s lives rich: the security of not worrying about where his food will come from, knowing that his father will be home to speak to him about his day, loving and available grandparents, engaging activities, and most importantly, the knowledge that he is moving forward, that there is hope for progress in his life, that he can make an improvement in his life and his family’s life.

What if everyone was involved in righting this wrong, and making each other and themselves whole?

The young man would likely take responsibility for his actions, and attempt to make it up to his victims.  He would practice empathy. He could see his own ability to make a positive impact on others and himself.  His self-esteem would gain a boost.

In the process, he becomes a whole person to his victims, who feel less anxious and afraid, having gotten to know the person who harmed them.  They feel more healed by participating in the process, where the offender accepted accountability and tried to help them.  And what’s more, as so often happens in true collaborative justice, the victims and the community step in to support the young man so that he can choose a different path in the future.  If the beginnings of a mental illness are discovered, the community may pitch in with support: financial or services, to help him and his family manage the illness.

Put aside our needs to condemn and to blame.  Replace it with empathy and with accountability by all, and amazingly, we are likely to see a lot less crime.

The presence of so many people with mental health problems in the criminal justice system shows us how wasteful and immoral is our individualistic, punishment-oriented approach.

We cannot expect our government to take care of our people if we, ourselves, do not want to be bothered, want to go our merry way, want to turn a blind eye.  It’s time that we, as communities, stepped in and held ourselves accountable.

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