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In the Year 2019: Psychiatry in Law and Public Policy

In the Year 2019: Psychiatry in Law and Public Policy

Whether you credit the idea to Niels Bohr or Yogi Berra, it is true that predictions are very difficult to make, especially about the future. It is a daunting task, yet obviously an intriguing one, to try to imagine what our field will be like in 10 years or more.

To cope with the limits of prognostication, article size, and personal knowledge (and to limit the extent of how wrong I may be proved by time), I will focus here on events in the realms of ethics and law in psychiatry and the inevitable conflicts between science and public policy and economics that have their origin in those spawning grounds. I will comment on 2 general areas:

• Conflicts related to people our society fears and feels justified in stigmatizing—including sex offenders and people with serious mental illness
• The limits of the sciences of prediction and the ways in which our fears lead us to ignore those limits

I will begin by mentioning an important area of active development that deserves fuller description than can be managed within this article: advances in neuroscience and their relationships to questions in psychiatry and the law. Significant research is being conducted in this area, with a notable available literature.1-3 While some advances are likely to be more readily applicable and easily acceptable to the practice of forensic psychiatry—such as the application of neuroscience data about memory to the assessment of amnesia claims and malingering—I am less optimistic about the application of neuroimaging and other advances to questions of criminal responsibility.3,4

Better scientific understanding of neural mechanisms is not likely to settle fundamental questions of morality, ethics, and interpersonal justice as applied to the specific determinations that must be made in the legal arena.5 Although there are scholars who argue for greater scientific optimism, I do not believe we are likely as a society to accept a mechanistic view of personhood or a neurodeterministic view of personal responsibility that is unfiltered by the screen of functional capacity.6 I do expect, however, that there will be both steps and missteps in that direction in individual legal cases.

So where are we likely to be in 10 years or so? We are likely to be working hard to find our way out of very difficult sociopolitical-economic problems of our own making. The record numbers of Americans who are imprisoned will continue, because we have not been able to exercise political control of our communal anxiety with options less concrete than the construction and utilization of larger prisons. Incarceration has soared in America, despite a fall in violent crime rates.

The Pew Center on the States recently released its report “One in 100: Behind Bars in America 2008.” That report highlights these sad and troubling facts: we now incarcerate more than 1 in every 100 adults in America; also, 1 in 9 black men between the ages of 20 and 34 is imprisoned.7 At the same time, violent crime rates have dropped, and only 25% of that drop is attributable to increased rates of incarceration.8 Between 1994 and 2005, the adjusted violent crime rate in this country decreased more than 59%.9 During that same period, the prison count increased by more than 36%; it tripled between 1987 and 2007.7

The good news is that lawmakers are already taking notice of the crippling effects on economies and public policy of the costs of incarceration. Within 10 years, the idea that we ought to spend more money on reducing the causes of crime is likely to be a mainstream notion. So what does this have to do with psychiatry? The Department of Justice reported in 2006 that more than 56% of state prisoners and 64% of local jail inmates have mental health problems.10 More than half of these individuals have severe mental illness.11 Mental health leadership from the Substance Abuse and Mental Health Services Administration, the National Association of State Mental Health Program Directors, the National Alliance on Mental Illness, the NIMH, the American Psychiatric Association, and many other organizations has significantly stimulated interest in decriminalization of mental illness. This interest will continue to grow and become an increasing force during the next 10 years.


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