Crazy Laws Keep Crazies on the Loose

You, too, could be pushed under the subway train if your number is up, or bashed into unconsciousness while waiting for a traffic light. These acts of random violence may be an urban metaphor for the slings and arrows of misfortune or for fate’s heavy hand falling where it will. However, what happened to Nicole Barrett and Kendra Webdale is not just a plot device of the angry gods but a most grim, man-made reality on New York’s oh-so-Giulianized streets.

Like most everyone else, I began recently to cast a leery eye over my shoulder as I was strolling down to Zabar’s or wending my way to an East Side haircut.

The trial of Andrew Goldstein held up for all New York to see both the absurdity of our righteous legal system and the danger to us all that follows when we do not attend to the blighted and benighted and bedeviled who share our public spaces, who both menace us and need our help. Hallucinations, voices that command bloody acts, confusions, eruptions of rage, wild impulses, those viruses of the brain we call psychosis are not the whines of the chronic malingerer, not Medicaid fraud, and they are not going to disappear if you take two aspirin and tug hard on your bootstraps.

Ever since the mistake was made confusing liberty and freedom with the necessities of mental illness, ever since Billie Boggs who was defecating on the streets and demanded her right to do so and became a heroine of sorts to the anti-medical-establishment partisans, we’ve been in trouble. The old hospitals that once took lifetime care of the chronically mad are now near to empty. They are still there, so sorrowfully massive, with peeling paint, burst pipes, but they don’t tend the mentally ill. They release them to the streets without adequate follow-up, without caring, without the means to hold their balance.

Medicine, if taken, helps most but not all. The mad mind has its own compulsions that can easily overwhelm the hand that reaches for the correct “drink-me” bottle in the cabinet. Especially when there is no cabinet, when there is no helping hand, when medicine dulls the mind, when inner confusion or darkest grief edges up the ante. Today medicine is only partial, frequently not good enough. Grateful as we are that we no longer need snake pits and straitjackets and cuckoos that fly over the nest, aware as we are of the horrors of institutionalization when it loses its compassion and enacts cruel dramas of master over slave, there is no doubt we have allowed a new inhumanity to fill the old one’s place.

Yes, most delusional souls harm only themselves, but what of the few that wish the rest of us ill and might act on their wishes?

What is going on? Why has the law failed to protect both civilians and the mentally ill? I asked Jack Greenberg, professor of law at Columbia University and former director counsel of the NAACP Legal Defense and Educational Fund. He wrote me a note: “At least since the decision in England in the McNaghten case in 1843, the law has recognized insanity as a defense to a charge of criminal conduct. Even today, when retributionists and advocates of the death penalty are high in the saddle, we still won’t execute someone who is insane. The definition of insanity shifts from time to time and place to place, but the general concept persists.” The law professor goes on to explain that the skepticism about the insanity plea that we have seen in the courts stems in part from the widely held belief that you can find an expert to testify to anything. In addition, we and John and Jane Q. Public do not believe that psychiatrists have the ability to predict how someone will act far into the future. We are afraid of the Hannibal Lecters who will be released next month to wander among us. And with good reason.

But the turn against the insanity defense is also a sign, Mr. Greenberg says, of the retributionist view of justice that has become a mark of the American mindset. Juries these days, he says, “either reject the insanity defense or refuse to find any defendant sufficiently insane to acquit. If we were to put enough resources into diagnosis and treatment of the criminally insane, we might be able to offer assurance that someone who has committed a horrible act when he was out of his senses will not repeat that sort of conduct after he has become well. But the paradox is that the opposition to the insanity defense would then be likely to translate itself into opposition to doing anything positive for the criminally insane or releasing them under any circumstances.”

In other words, because we are so angry at the acts of these mad folk, we really want to lock them away forever. Because we can’t seem to find the money or the resources to treat them well enough when their illnesses first appear, when they show up as Mr. Goldstein did in our emergency rooms or psychiatric hospitals, we must then ignore their mental incapacities, hard as it is on our common sense, and use our jails as hospitals. We are always happy when we have received our eye for an eye at a bargain price, one without an additional burden to the taxpayer.

Now, I have no sympathy for Mr. Goldstein or a Hannibal Lecter, and I really think, given the medical know-how we have today, the violent madman should be permanently incarcerated. But what I’m wondering is this: Why can’t we have a better mental health system? Why can’t we get the paranoids and the ones with voices telling them to use knives on their fellow subway car passengers off the streets when the urges first strike? Why are we always behind the deed and never in front? Why, I don’t understand, have the law and the jury system, which should protect our liberty, been used by penny pinchers and other ideologues to throw away people who really need attention both for their sakes and ours? This can’t be a sensible way to run a society.

If retribution, revenge and punishment are more important to us than salvaging, protecting and even understanding illness, then those whose balance wavers, who may know the correct time but not the correct thing to do with a gun, will be shafted again and again, and their victims, the rest of us, will grow in number.

It must be a litmus test of a civilization: how we treat the mad, how we save our own lives while holding accountable those who can be held accountable and providing a safe place for the rest. We fail. We proud New Yorkers fail.

Crazy Laws Keep Crazies on the Loose