Mental_Health_Law

Dissociative Identity Disorder and the Functions of Criminal Law Shawn Crowley “Having multiple personalities is like hosting a kegger in your brain, only you’re passed out cold while everyone else is trashing the joint.” - Tara, The United States of Tara Introduction Dissociative Identity Disorder (DID), formerly called Multiple Personality Disorder, has been increasingly portrayed in popular culture over the past several decades. Despite its rare occurrence in real life1, it has been repeatedly depicted in books, movies and television shows. From the 1976 book-turned-movie, Sybil, the story of a psychiatrist treating and eventually curing a lifelong sufferer of the disorder2, to Fight Club, the 1996 hit film featuring a shy protagonist and his aggressive alter personality3, to the present day comedy United States of Tara, which chronicles the life of a mother and wife dealing with DID, the American public has remained fascinated with the disorder and how it plays out in “real” life.4 This fascination is not surprising- understanding DID involves opening one’s mind to a completely new concept of personhood. Those who suffer from Dissociative Identity Disorder essentially house many “persons” within themselves. They can switch from one “person” to another instantaneously, and the differences between them can be dramatic. The protagonist in 1 See Brad Foote et al., Prevalence of Dissociative Disorders in Psychiatric Outpatients, 163 AM. J. PSYCHIATRY 623 (2006); Richard P. Kluft, Current Issues in Dissociative Identity Disorder, 1 BRIDGING EASTERN AND WESTERN PSYCHIATRY 71 (2003) 2 SYBIL (CBS 1976) 3 FIGHT CLUB (Fox 2000 Pictures 1999). 4 The United States of Tara (Showtime television broadcast) 1 the United States of Tara switches from a suburban homemaker named Alice, to a promiscuous 15-year-old called “T,” to crude and lewd-mouthed Buck, all in the course of one day. If this disorder is real (which is still a subject of debate within the mental health community), people want to know about it. How do those who suffer from it survive' And how should/does our society respond to them' This paper examines the second question from a legal perspective and asks how our criminal justice system deals with defendants who have been diagnosed with DID. Is it fair to punish a defendant who committed a criminal act while another “person” controlled her body' This question depends on one’s concept of personhood and what is meant by “defendant”- is it the “host” personality (he who controls the body most of the time), or the personality who was in control at the time the act was committed, or should the defendant simply be the person as a whole' Courts and scholars have answered this question differently and have, therefore, come up with distinct theories on criminal responsibility of defendants with DID. Part I of this paper briefly describes DID. It defines the disorder, explains how a patient with DID typically presents, and puts forth two prevalent theories on what causes it. Part II discusses criminal responsibility of defendants who suffer from DID. It briefly deals with the problem of malingering (or fabricating) the disorder, and then explains the insanity defense and how it may be applied in cases involving DID. It proceeds to explain the three main approaches to criminal responsibility used by the courts today and a newer approach suggested by a legal and mental health scholar, which has received significant attention and criticism. Finally, Part III of this paper argues that one’s thoughts on how to deal with criminal responsibility of DID defendants depends on his notion of the most important functions of the criminal law. 2 Part I: What is Dissociative Identity Disorder' A. Definition The Diagnostic and Statistical Manual of Mental Disorders (DSM IV) classifies Dissociative Identity Disorder (DID) as a “dissociative disorder,” which is characterized by “a disruption in the usually integrated functions of consciousness, memory, identity or perception of the environment.”5 The DSM IV requires four elements to be present for a diagnosis of DID: 1. The presence of two or more distinct identities or personality states (each with its own relatively enduring pattern of perceiving, relating to, or thinking about the environment and self). 2. At least two of these identities or personality states recurrently take control of the person’s behavior. 3. Inability to recall important personal information that is too extensive to be explained by ordinary forgetfulness. 4. The disturbance is not due to the direct physiological effects of a substance… or a general medical condition. 6 In short, “an individual who suffers from [DID] seems to house more than one person in the same body.”7 He has at least two (but sometimes as many as one hundred)8 separate identities within himself. Each identity (alter) can take over his behavior completely, so much so that he cannot remember what took place while the alter was in control. B. Classic Presentation of a Patient Suffering from DID A typical DID patient presents with a “host” personality and a number of “alters.” The host is the personality that controls the body most often.9 The host is typically a passive identity 5 AMERICAN PSYCHIATRIC ASSOCIATION, DIAGNOSTIC AND STATISTICAL MANUAL OF MENTAL DISORDERS (DSM IV) 477 (4th ed. 1994). 6 Id. at 487. 7 Juliette K. Orr, Multiple Personality Disorder and the Criminal Court: A New Approach, 28 SW. U. L. REV. 651, 652 (1998-1999). 8 Jeff Smythe, Uninvited Guests Crash a Party for One: Multiple Personality Disorder and the Criminal Law’s Derision Toward Multiples, Note, 6 J.L. SOC’Y 179, 182 (2005). 9 Id. at 653; ELYN R. SAKS & STEPHEN H. BEHNKE, JEKYLL ON TRIAL: MULTIPLE PERSONALITY DISORDER & CRIMINAL LAW (1977). 3 that is more timid and reserved than the alters.10 Hosts do not have complete memories and most are unaware that alters even exist.11 In the few cases where the host is aware of his alters, he is generally not capable of controlling their actions.12 Hosts “dissociate” or switch into alter personalities. Alters tend to be more aggressive and outgoing than the hosts, each with distinct personalities and character traits.13 One patient described his alters as “other people. I’ve always thought of them as other people… I know it’s only supposed to be one person per body… but that’s not what it feels like to me.”14 Though there is much debate within the mental health profession over whether alters should be likened to separate people or just strong personalities within a single person,15 most agree that alters can have strikingly different personalities, skills, and patterns of behavior.16 They may have their own personal histories, “their own names, voices, wardrobes, jobs, social circles, preferred language, handwriting, vocabulary, values, and beliefs.”17 Another patient, when asked about the differences among his alters, said, “Sarah is vicious and Terry is mean… Frank, my friend, told me, ‘Just let me know when Sarah arrives. She has a black belt in karate and I don’t want to deal with it. I mean, how can your friend tell you that you have a black belt, and I don’t even know karate' I’m not very athletic either.”18 10 Felicia G. Rubenstein, Committing Crimes While Experiencing a True Dissociative State: The Multiple Personality Defense and Appropriate Criminal Responsibility, 28 WAYNE L. REV. 353, 362 (1991-1992). 11 See Smythe supra note 8, at 183. 12 See Orr supra note 7, at 654. 13 See Smythe supra note 8, at 183. 14 See SAKS & BEHNKE supra note 6, at 10. 15 See e.g. Stephen S. Marmer, A Theory of Command and Control: A Reply to Elyn Saks, 10 C. CAL. INTERDISC. L.J. 267 (2000-2001). 16 17 See SAKS & BEHNKE supra note 9, at 11. See Smythe supra note 8, at 183. 18 Id. at 11. 4 Everyone who suffers from DID experiences amnesia to some degree. Though the extent of that amnesia varies among alters (some know about each other while some do not),19 most hosts have no memory of what takes place when their alters are in control. Hosts report “losing time,” when an alter takes over. Lost time can range from “minutes to years and is likened to ‘a black space . . . like going to sleep and then all of a sudden it’s morning.’”20 Hosts will find themselves in the middle of a task they do not remember beginning, or in a place they do not remember going to when they suddenly regain control of their consciousness.21 C. What Causes DID' It is generally believed that DID begins in early childhood and is triggered by repeated traumatic events the child experiences.22 One prevalent theory posits that DID is the result of a defense mechanism created by the child in order to deal with persistent child abuse. In an attempt to protect himself, the child creates an alter identity to which he can dissociate and escape the distressing feelings caused by the abuse.23 When he is in a dissociated state (and an alter is in control), he is walled off from the memories and feelings and emotions his alter is experiencing and simply does not have to process them. Throughout his childhood, he will continue to create separate alter personalities “to help the child deal with the problems of every day life, such as school.”24 Therefore, having successfully insulated the host from negative experiences, the alter personalities exhibit feelings of hatred, anger and aggression that the host does not. 19 20 See Smythe supra note 8, at 183; Kluft supra note 1, at 71. See SAKS & BEHNKE supra note 9, at 13. 21 Id. 22 Sabra McDonald Owens, The Multiple Personality Disorder (MPD) Defense, 8 MD. J. CONTEMP. LEGAL ISSUES 237, 243 23 See Orr supra note 7, at 653. 24 Id. 5 Another theory says that DID is caused by a child’s failure to integrate his emotions, as one normally does during childhood.25 Instead of developing one personality that can process different emotional states, the child will dissociate “traumatic events and resentful feelings of the past.”26 The difference between these two theories is that the former is more defensive (the child creates the personality in order to protect himself), while the later is structural (as a result of the abuse, the child fails to develop in a way that normal children do). Both theories reflect a person’s attempt to protect himself from having to experience the painful feelings that come from child abuse or other seriously traumatic events. And under both theories, a person with DID will continue to dissociate whenever these feelings resurface. “An alter appears and takes control when the host feels overwhelmed by these thoughts, memories, or emotions.”27 What began as a mechanism to deal with and survive horrific events becomes a serious mental disorder that will continue to plague the sufferer throughout adulthood. Part II: DID and Criminal Responsibility Whether or not people with DID should be held responsible for their crimes has been much debated among legal and mental health scholars. Controversy among courts and lawyers about treating the disorder as a legitimate defense to criminal responsibility may reflect an ongoing skepticism within the mental health profession about whether or not DID actually exists.28 25 26 See Rubenstein supra note 10, at 362. See Smythe supra note 8, at 184. 27 See Orr supra note 7, at 654. 28 For a discussion of the views of DID skeptics in the mental health community, see SAKS & BEHNKE supra note 9, at 21–32. Saks and Behnke contend that there are three main forms of skepticism of the existence of DID. The first, “realistic skepticism” holds that DID is extremely rare and is far less prevalent than most DID experts believe. The second, “mild skepticism” says that “there are no personalities, or independent systems of control.” The third form claims that DID is a cultural phenomenon that is not found universally. The fourth “claims that cases of [DID] are 6 This section examines how courts have dealt with Dissociative Identity Disorder in determining criminal responsibility. Part A explains the insanity defense. Part B discusses the problem of malingering in criminal trials, while Part C examines actual opinions where courts have considered that defense for defendants suffering from DID. It then discusses Dr. Elyn Saks’ unique theory on criminal responsibility for patients with DID. A. The Insanity Defense In order for a state to establish criminal responsibility, the state must prove that the defendant (1) has committed the act itself (actus reas)29, and (2) has the requisite mental state (mens rea).30 Thus, the defendant must have actually acted, and he must have done so knowingly and intentionally. In holding a person responsible for his actions, the criminal law presumes that he is able to make voluntary and rational choices.31 What follows is a presumption that the defendant is sane- that he “knew the consequences which would follow from his physical movements.”32 A rational actor who has made a conscious decision to commit a criminal act will be punished. However, the criminal law will not punish those who cannot morally be held responsible for their actions.33 Therefore, if the defendant can show that, when he committed the act, he was unable to comprehend the nature and quality of the act he was committing, he may be able to actually misdiagnoses of other disorders…” Finally, the fifth form of skepticism says that DID is iatrogenic- that it is actually a product of therapy and is created by implicit or explicit suggestions made by treating psychiatrists. 29 Proctor v. State, 176 P. 771 (Okla. Crim. App. 1918). 30 JOEL SAMAHA, CRIMINAL JUSTICE 110 (7th Ed. 2006). 31 Mark E. Hindley, United States v. Denny-Shaffer and Multiple Personality Disorder: “Who Stole the Cookie from the Cookie Jar'”, Note, 1994 UTAH L. REV. 961, 968 (1994). 32 ABRAHAM S. GOLDSTEIN, THE INSANITY DEFENSE 17 (1967). 33 See U.S. v. Freeman 357 F.2d 606 (C.A.N.Y. 1966) (Applying the Model Penal Code’s test for insanity: “A person is not responsible for criminal conduct if at the time of such conduct as a result of mental disease or defect he lacks substantial capacity either to appreciate the wrongfulness of his conduct or to conform his conduct to the requirements of law.”). 7 escape criminal responsibility.34 This is known as the insanity defense and is an affirmative defense to criminal responsibility. The first federal codification of the insanity defense was the Insanity Defense Reform Act of 1984, which allowed for an affirmative insanity defense if “at the time of the commission of the acts constituting the offense, the defendant, as a result of a severe mental disease or defect, was unable to appreciate the nature and quality or wrongfulness of his acts.”35 In order to be eligible for an insanity defense, the defendant must show that he (1) is suffering from a “severe mental disease or defect” and (2) that he does not know that his acts were wrong. When a defendant is diagnosed with DID, he clearly satisfies the first prong of this test. The real controversy surrounds the second question. If a crime was committed while a defendant was dissociated (an alter had control of his behavior), does he “appreciate the nature and quality or wrongfulness of his acts”' Most likely he was not even aware that he committed the act, and, even if he was, he could not have stopped it. Should he still be held responsible for the crimes' As will be shown, courts answer this question based on who they determine “he” to be. In a case of multiple personalities, who should be considered the defendant' B. The Problem of Malingering If a defendant is found “not guilty” by reason of insanity, he will not be held criminally responsible for his act and thus will not be punished (though he will likely be sent to a mental health institution for incapacitation and rehabilitation).36 Since it is advantageous for a defendant facing steep jail time to be able to prove insanity, one of the most commonly cited concerns by 34 35 Leland v. State 343 U.S. 790, 796 (1952). 18 USC §17(a). Although there is no constitutional requirement for states to have an insanity defense available to criminal defendants, all but four states have enacted one. The Insanity Defense Among the States, FINDLAW, http://criminal.findlaw.com/crimes/more-criminal-topics/insanity-defense/the-insanity-defense-among-thestates.html (last visited April 25, 2010). 36 See SAKS & BEHNKE supra note 9, at 66–67. 8 skeptics within the legal profession is that DID defendants may be malingering, or fabricating their disorder.37 Unlike physical disorders or ailments, DID cannot be proven by external or tangible symptoms that are outwardly discernible. The treating mental health professional must therefore base his diagnosis on his observations of his patient’s dialogue and behavior. Thus, many courts and prosecutors question the reliability of a defendant who knows he may escape criminal responsibility if he can prove he is suffering from a mental disorder. Fortunately, mental health experts and legal professionals have been fairly successful in determining who is malingering.38 A person who suffers from DID usually has a long and complicated history with the disorder that can be corroborated by family members, acquaintances, and former mental health professionals. Someone who is fabricating the disorder, on the other hand, often first presents with DID after he has committed the criminal offense.39 While malingering remains a concern when a defendant claims he has DID, the legal and mental health communities have developed methods to discern who truly has multiple personalities and who does not. C. Courts’ Approaches to Criminal Responsibility When deciding whether or not a defendant suffering from DID should be able to invoke the insanity defense, a court will ask whether he met the requirements for insanity when the crime was committed.40 In doing so, the court must consider two things: who committed the act, and who is the defendant at trial. For example, if a court considers the defendant to be the host, but accepts expert testimony that an alter had complete control over the body and therefore committed the criminal act, it may allow the defendant to plead insanity (the defendant host 37 38 See Smythe supra note 8, at 186. Id. 39 For a full discussion on how mental health experts and prosecutors distinguish true DID patients from malingerers, see Smythe supra note 8, at 186–188. 40 See Hindley supra note 31, at 975 9 personality, being unaware of the actions of the alter, did not have the requisite mental state for criminal responsibility). “The defendant with multiple personalities raises the defense that another personality, over which he, the core personality, had no control nor knowledge of, committed the crime in question; thus the “innocent” core personality should be exculpated.”41 If, on the other hand, the court finds that the alter committed the act, but considers the alter to be the defendant, the court will inquire into whether or not the alter had the necessary mens rea to be held criminally responsible for the crime. Finally, the court may consider the person as a whole to be both the defendant and the person who committed the act. In this case, it will be much harder for a DID defendant to show that he should not be held criminally responsible- henot an alter personality- committed the act for which he is now on trial. These three scenarios roughly describe the three approaches courts have developed in determining criminal responsibility of defendants with DID: the host test, the alter approach, and the unified approach.42 Each will be discussed in turn. a. The Host Test The host test focuses on the host personality as the criminal defendant. It asks whether or not the host personality was in control or aware of the actions of the body at the time the crime was committed. If the host was unaware of the criminal act and did not participate in the criminal conduct, the defendant should be able to invoke the insanity defense and should not be held criminally responsible.43 Only one jurisdiction has applied the host test. In U.S. v. Denny-Shaffer, the 10th Circuit acquitted the defendant, who suffered from DID, when it found that her host personality was not 41 42 See Rubenstein supra note 10, at 364 See Smythe supra note 8, at 189; Hindly supra note 27, at 975. 43 Hindly supra note 31, at 979. 10 in control of her body when she kidnapped a baby and transported it across state lines.44 The defendant, Bridget Denny-Shaffer, entered the newborn unit of a hospital in New Mexico posing as a medical student. She picked up an infant, exited the building and drove to her former boyfriend’s home in Texas. The next day, her former boyfriend discovered Denny-Shaffer in his bed with the bloody baby in her arms. She told him she had delivered the baby and that he was the father.45 Denny-Shaffer was arrested a few days later while transporting the baby back to New Mexico. She immediately admitted that she had kidnapped the infant.46 Denny-Shaffer plead insanity based on DID (then MPD) at trial. The experts for both the government and the defense agreed that one of her alter personalities, “Rina,” and possibly another, “Bridget” were in complete control of Denny-Shaffer’s behavior when she kidnapped the infant. The defense’s expert said “she did not know whether the alters in control at the time of the abduction knew that taking a baby was wrong.”47 The trial court rejected the insanity defense based on this confusion. The 10th Circuit reversed. The court conducted an extensive review of the record concerning the abuse Denny-Shaffer suffered as a child and the expert testimony below. The court held that the trial court erred in focusing on whether the alter personality in control at the time of the offense was culpable. Instead, “it is the host or dominant personality which must be the focus of the determination of possible criminal responsibility respecting the kidnapping charge and the insanity defense asserted here.”48 Finding that the expert testimony showed that Denny-Shaffer’s host personality was not in control during the planning or commission of the 44 45 U.S. v. Denny-Shaffer 2 F.3d 999 (10th Cir. 1993). Id. at 1002–03 46 Id. at 1003. 47 Id. at 1004. 48 Id. at 1020–21. 11 kidnapping, the 10th Circuit remanded to the trial court, instructing that the jury should be instructed on the insanity defense. 49 No other jurisdiction has followed the 10th Circuit’s use of the host test in determining criminal responsibility of defendants with DID. b. The Alter Approach In contrast to the host test, the alter approach focuses on the alter in control at the time the crime was committed. The alter who committed the crime is the defendant, whether or not the host or any other alter personality controls most of the time. If the alter who committed the act had the requisite mental state for the crime, the defendant will not be permitted to plead insanity.50 In State v. Grimsley, the Ohio Court of Appeals applied the alter test in upholding the guilty verdict of Robin Grimsley.51 Ms. Grimsley was convicted of driving under the influence. She appealed her conviction, first arguing lack of control, claiming that she should not be held responsible because an alter was in control of her body when she was arrested for drunk driving.52 She said that her alter, Jennifer, was the one driving under the influence, while Robin was unconscious of what was going on and was therefore unable to control Jennifer’s actions (Ms. Grimsley was, in effect, arguing that the host test should apply). The appellate court rejected Ms. Grimsley’s argument, holding that it was immaterial whether or not Robin was in control at the time of the crime. The relevant question was whether Jennifer was aware of her actions and was acting voluntarily. There was only one person driving the car and only one person accused of drunken driving. It is immaterial whether she was in one state of consciousness or another, so long 49 50 Id. See Orr supra note 7, at 656. 51 State v. Grimsley, 444 N.E.2d 1071 (Ohio Ct. App. 1982). 52 Id. at 1075. 12 as in the personality then controlling her behavior, she was conscious and her actions were a product of her own volition. The evidence failed to demonstrate that Jennifer was unconscious or otherwise acting involuntarily.53 Ms. Grimsley further argued that she should have been able to plead insanity. Because Robin was not conscious when Jennifer acted, Robin “did not have the ability to cause that personality to refrain from driving while drunk.”54 Robin was thus incapable of having the requisite mental state for drunk driving. The court rejected Ms. Grimsley’s argument, again focusing on Jennifer, the alter in control at the time. The court held that “[T]he evidence fails to establish by a preponderance that … Jennifer… either did not know that her drunken driving was wrong or did not have the ability to refrain from driving while drunk.”55 The court thus applied the alter test to both of Ms. Grimsley’s arguments- lack of control and insanity. Though seeming to accept the possibility that the alter, and not the host, committed the criminal act, the court found the distinction immaterial. Unless the defendant could prove that the alter who committed the act lacked the mental state required for the crime, her claim of non-responsibility would not prevail.56 c. The Unified Approach Finally, some courts take the unified approach when determining criminal responsibility of DID defendants, which focuses on the person as a whole.57 Courts do not consider multiple 53 54 Id. at 1076–77. Id. at 1076. 55 Id. 56 For other cases in which courts have used the alter approach, see Kirkland v. State 304 S.E.2d 561, 565 (Ga. Ct. App. 1983) (“Where trial court accepted that defendant suffered from multiple personality disorder, but ruled that personality, whoever he was, who robbed bank did so with rational, purposeful criminal intent and with knowledge that it was wrong, trial judge's finding that defendant was guilty but mentally ill was not erroneous.”); State v. Rodrigues, 679 P.2d 615, 618 (Haw. 1984). (“The law adjudges criminal liability of the person according to the person's state of mind at the time of the act; we will not begin to parcel criminal accountability out among the various inhabitants of the mind.”). 57 See Owens, supra note 22, at 252. 13 personalities when applying the unified approach. “One body contains one person. Thus, if one person committed a crime, then only one person is liable for that crime.”58 The North Carolina Court of Appeals used the unified approach in State v. Woodard.59 The defendant, James Woodard, was accused of burglary, rape, and sexual assault. One of his alters, Johnny Gustud, appeared after the evidence was given, saying that he wanted to testify and that his testimony would exculpate Woodard.60 The court of appeals upheld the trial court’s refusal to allow Johnny Gustud to testify, holding that “there was only one person accused of rape.”61 The court thus found it unimportant that Woodard’s body may have been completely controlled by an alter when the crimes were committed. Mr. Woodard’s body purposefully committed the crimes and therefore Mr. Woodard would be held criminally responsible for them.62 The unified approach is easier for courts to apply as it more readily tracks the normal notions of criminal responsibility. The court need not distinguish between the mental states of the hosts and the alters.63 The approach is not commonly used, however, as it “completely ignores the fact that the defendant had a mental disorder.”64 By not allowing Johnny Gustud to testify and refusing to allow for the possibility of alter control, the court prevented Mr. Woodard from presenting any evidence regarding his disorder.65 58 59 Orr supra note 7, at 657. State v. Woodard, 404 S.E.2d 6 (N.C. Ct. App 1991). 60 Id. at 693–94. 61 Id. at 694. 62 For another case in which the court has applied the unified approach, see State v. Halcomb, 510 N.W.2d 344 (Neb. App. 1993) (finding it irrelevant whether an alter was in control when the crime was committed or when the defendant confessed, as “the law holds [the defendant] responsible for his actions against these children because he and he alone committed the acts.”). 63 See Owens, supra note 22, at 252. 64 Orr supra note 7, at 658. 65 Id. at 658. 14 d. Dr. Saks’ Proposed Rule Dr. Elyn Saks has proposed a new rule for determining whether defendants suffering from DID should be held criminally responsible. Saks argues that a DID defendant should not be held responsible for a crime unless all of his alters “knew about and acquiesced in the crime.”66 Saks suggests that defendants with DID should normally be nonresponsible except for (1) when an alter acquiesces in the commission of a crime- when he knows about the crime and can prevent it, but does not attempt to do so, and (2) “when multiples are so organized that it is just to hold them on a theory of corporate criminal liability.”67 Thus, if all of the alters were on board with the crime, or could have stopped it but declined to do so, they may be held criminally responsible.68 Saks recognizes that whether alters constitute separate people is an open question.69 She analyzes three different views on how to conceptualize alter personalities: 1) alters are different persons, 2) alters are different personlike centers of consciousness, and 3) alters are nonpersonlike parts of a deeply divided person.70 Yet, Saks argues that, no matter how one conceptualizes alters, nonresponsibility should still be presumed. Saks believes that alters are separate enough entities that punishing one for the acts of another is equivalent to punishing an innocent person.71 She points out that a judgment has been made in criminal law that sparing the innocent is valued over punishing the guilty. The criminal justice system is premised around a 66 Elyn Saks, Multiple Personality Disorder and Criminal Responsibility, 10 C. CAL INTERDISC. L.J. 185, 189 (20002001). 67 Id. at 195. 68 Saks does not recommend imprisonment even in the case of her second exception. The defendant’s liability should only be mitigated, not completely erased as it would with the insanity defense. Id. 69 Id. at 190. 70 Id. at 191–94. Though there have been significant criticisms of Saks’ three views of alters by psychologists and mental health professionals, these debates go beyond the scope of this paper and will not be discussed. For one such article, see Marmer, supra note 12. 71 Saks, supra note 66, at 191–94. 15 presumption of innocence. “As a society, we have made a judgment that, in the words of Blackstone, ‘it is better to let ten guilty persons escape than that one innocent suffer.’”72 In the context of the insanity defense, Saks contends that defendants with DID should be not guilty by reason of insanity if “any of their nonfragmentary alters either did not know the nature, quality, or wrongfulness of the act as it was occurring. . . . ”73 Saks’ approach differs from all three of the approaches described above in that it looks at the mental state of each of the alters. If one of the alters did not have the requisite mens rea for the crime, unless the defendant falls under one of her two exceptions, the defendant should be able to plead insanity. Part III: The Purposes of Criminal Law The criminal justice system has four main goals: incapacitation of the criminal, deterrence of future crimes, rehabilitation of the criminal actor, and retribution against the criminal.74 One’s decision on how to handle defendants with DID- or which of the courts’ approaches to use- may depend on his beliefs as to which of the purposes of criminal law is most important. This part examines how one’s approach to criminal responsibility is informed by his view of the goals to be achieved by the criminal justice system. A. Incapacitation The criminal justice system incapacitates those who have committed crimes in order to “restrain future criminal behavior,” or protect society from future dangerousness.75 Thus, one who believes that incapacitation- protecting society- is the most important goal of the criminal justice system may determine that the unified approach, which is most likely to imprison a DID 72 73 SAKS & BEHNKE supra note 9, at 69 (quoting Blackstone 358 (vol. 4 1897)). Id. at 195. 74 See Kelly v. Robinson, 479 U.S. 36, 49 (1986). 75 FRANKLIN E. ZIMRING & GORDON HAWKINS, INCAPACITATION: PENAL CONFINEMENT AND THE RESTRAINT OF CRIME 60 (1994). 16 defendant who has acted criminally, is the preferred approach. One who has had a mental disorder his entire life is especially likely to be dangerous in the future and should be detained. It is important to note, however, that acquitting someone because he is insane does not mean he is released. Most states allow, and even require, the immediate commitment of defendants who have been found guilty by reason of insanity.76 One who is “let off” because he was adjudged insane is not set free- he is most often sent to a mental hospital. Indeed, an insanity acquittal of a DID defendant may be even more protective of society than finding him guilty and sending him to jail. Theoretically, those who are committed will not be released until mental health professionals deem them “cured” or no longer dangerous.77 On the other hand, a convicted criminal is released from prison once his sentence is completed- whether or not he is still considered “insane.” The Supreme Court has said it does not violate a person’s Due Process rights to confine a defendant who was acquitted on an insanity defense for longer than he would have been imprisoned had he been found guilty.78 Thus, allowing defendants with DID to invoke the insanity defense may go further in achieving the purpose of incapacitation than not allowing such a defense and sending them to prison. One who believes that incapacitation is the most important purpose of criminal law may therefore favor Saks’ approach, as it allows for the greatest opportunity that the defendant will be adjudged insane and sent to a mental institution, where release will be contingent upon a mental health professional’s judgment that the patient is competent to rejoin society. 76 CHRISTOPHER SLOBOGIN, ET AL., LAW AND THE MENTAL HEALTH SYSTEM: CIVIL AND CRIMINAL ASPECTS 554 (5th Ed. 2004). 77 See Jones v. United States 463 U.S. 354 (1983) (holding that “the Constitution permits the Government, on the basis of the insanity judgment, to confine [a defendant] to a mental institution until such time as he has regained his sanity or is no longer a danger to himself or society. . . .”) 78 Id. 17 B. Rehabilitation Another purpose of criminal law is rehabilitation.79 Criminals are put away with the hope that they will be reformed. However, there is ample evidence that prisons do not rehabilitate.80 Though incarceration rates have increased over the past several decades, rates of recidivism have remained steady, or even slightly increased.81 Mental health institutions, on the other hand, are set up for rehabilitation and treatment of the mentally impaired. They are staffed by mental health professionals who were extensively trained in how to treat and care for them, not prison guards, who were trained to keep them in line. It is therefore much more probable that a person suffering from DID will be rehabilitated in a psychiatric institution than in a prison. Prisons are not calm or happy environments. As those with DID dissociate more often when they are under stress,82 serving time in prison is more likely to make them worse than they were before. This could result in someone being released at the end of his sentence who is more dangerous than he was when he entered prison. Thus, not allowing a defendant with DID to invoke the insanity defense may directly undermine the rehabilitative function of criminal punishment. One who believes that rehabilitation is the most important purpose of criminal law would find Saks’ approach most compelling. By requiring all alters to have been complicit in the crime in order for the defendant to be held criminally responsible, Saks’ proposed rule allows DID defendants to more easily invoke the insanity test. They are therefore more likely to be acquitted by reason of insanity and sent to a mental institution to be rehabilitated. 79 80 KATHERINE W. ELLISON & ROBERT BUCKHOUT, PSYCHOLOGY AND CRIMINAL JUSTICE 240–262 (1981). Id.; See also Charles E. Tittle, Prisons and Rehabilitation: The Inevitability of Disfavor, 21 SOC. PROBS. 385 (1974). 81 Pew Report Finds More than One in 100 Adults Behind Bars, PEW CENTER ON THE STATES, http://www.pewcenteronthestates.org/news_room_detail.aspx'id=35912 (Feb. 28, 2008). 82 See supra Part I. 18 The unified test, on the other hand, does not allow defendants to present evidence of their disorder or to plead insanity. When viewed as regular people who committed crimes, these defendants are much more likely to be sent to prison, where rehabilitation is not a priority. Both the alter and host tests fall somewhere between Saks and the unified approach when it comes to rehabilitation—they allow for the possibility of invoking the insanity defense and thereby sending the defendant to a mental institution. However, whether the defendant will be able to plead insanity depends on which personality- the host or the alter- was in control at the time of the crime. One who views rehabilitation as the most important purpose of criminal law may find this problematic- the court is recognizing that the defendant has a serious mental disorder, but is still allowing for the possibility that his mental defects will be ignored and he will be sent to prison. C. Retribution Finally, society punishes criminals in order to exact revenge for the harm they have caused. Retribution is based on the belief that, when someone commits a crime, he deserves to be punished for it.83 And when he has committed a crime against another person, the victim, or society as a whole, has a right to see him punished.84 “Retributive justice in this way aims to restore both victim and offender to their appropriate positions relative to each other.”85 The host approach only finds criminal responsibility when the host was the criminal actor. This means that society only has a right to punish a guilty person when that guilty person is the host. When an alter was in control during the commission of the crime, society’s right to punish has been lost. Therefore, a court that uses the host approach is making the implicit 83 As those who are acquitted by reason of insanity are generally incapacitated, this paper assumes that punishment means imprisonment or criminal sanctions. 84 See SAKS & BEHNKE supra note 9, at 68–69. 85 Michelle Maiese, What Retributive Justice is, BEYOND INTRACTABILITY, http://www.beyondintractability.org/essay/retributive_justice/ (May 2004). 19 judgment that only a host can be morally culpable. A retributivist would argue that this distinction is unacceptable, even if one accepts that alters constitute separate people. If society has a right to punish a defendant for the actions of one of his personalities, why does it not have a right to punish for the actions of another' On the other hand, Saks makes no distinctions based upon which of the personalities was in control at the time of the crime. Instead, she argues that society only has a right to punish when every single alter was complicit in the crime.86 Alters are distinct enough persons that, when a person with DID is found guilty for a crime for which not all of the alters were on board, an innocent person is thereby punished. Saks believes that society’s right to punish does not outweigh an innocent person’s right to not be punished for a crime he did not commit.87 “Imagine a pair of Siamese twins, one of whom impulsively commits a murder in which the other was in no way complicit. Would we put the twins in prison for the rest of their lives' I think not.”88 Conjoined twins, however, are separate people with two brains. Alters are not. Saks’ approach asks the courts to accept the fact that alters are as distinct as conjoined twins, a conclusion that has by no means been accepted by the mental health community. No one would argue that society has a right to punish a conjoined twin who in no way participated in the commission of a crime. There is no part of him that is guilty. On the other hand, when a defendant with DID commits a crime, someone within him has acted criminally. Unless the mental health and legal communities decide that alters should be regarded the as different people, it is unlikely that a retributivist would agree with Saks that society should lose its right to retribution when “innocent” alters may be punished. 86 87 See SAKS & BEHNKE supra note 9, at 68–69 Id. 88 Id. 20 A pure retributivist would likely favor the unified approach—a person committed a crime, and both society and the victim have the right to punish him for it. It does not matter which alter was in control at the time of commission- the retributivist would view the defendant as the person as a whole. One person acted, and, as the court in State v. Woodard held, “if one person committed a crime, then only one person is liable for that crime.”89 Conclusion This paper has presented the approaches courts use when confronted with the question of the criminal responsibility of those who suffer from Dissociative Identity Disorder, and has attempted to examine how these approaches would be viewed by those with differing views of the goals of criminal law. Though it was suggested that a “pure” retributivist would likely favor the unified approach, while one who believes that rehabilitation is most important would prefer Saks’ rule, these pronouncements assume that people, and courts, believe that there is one purpose of criminal law that is supreme over all others. In reality, people’s beliefs about the goals of criminal law are much more nuanced. One may favor retribution in a normal instance, but rehabilitation in the case of children or the mentally incapacitated. Or one may believe that courts should decide which goal to pursue based on the specific facts of the case. This paper does not argue that one of the courts’ approaches is “better” than another, or that one goal of criminal law is the most important. Instead, it attempts to add some perspective to the complicated discussion surrounding defendants with DID. In determining whether or not to hold them criminally responsible, it might be useful to consider the goal(s) of the criminal justice system along with the facts of the case. 89 Orr supra note 7, at 657. 21