Mental Health, Freewill, and the Justice System

Jesse Martin

March, 2018


Another mass shooting in the United States has taken the lives of innocent students. This time, the person behind the AR-15 assault rifle was a former student at Marjory Stoneman High. The debate that has ensued, has expectedly focused on gun control and the need for reform. Within the firestorm of opinions, the media and public has overlooked a crucial facet – mental health.

Mental health has again been a factor. Upon the killing of fourteen students and three teachers, the perpetrator fled the scene with the rest of his peers, stopping at a Subway to get a drink then to a McDonald’s for some food, before being apprehended by police. How can it be possible for a human to commit such atrocities and then return to such normalcy; even the officer who apprehended him admitted that the shooter had seemed “like a typical high school student”, asking, “could this be the person who I need to stop?”

This epitomizes the issues of mental health; people who suffer from such diseases cannot control their illnesses. Even though countries like Australia whom have spent significant amounts of their budget on improving mental healthcare, no country has seriously considered mental health’s positionality in the justice system.

Criminal law has its roots in mens rea and the belief in freewill. Mens rea states that if the mind is guilty than so is the individual. Simply put, if there is intention or knowledge of wrongdoing than that constitutes a crime. Yet, with the advancements of modern science and psychology, psychologists and experts in human behaviour agree that freewill cannot be justified as being scientifically accurate.

They have proven that Genes, environment, and stochasticism govern all human behaviour. Humans are born with about 100 billion neurons, each neuron forms about 1000 synapses. The properties of these neurons and connections reflect the genetics and experience of the individual as time progresses. Stochasticism refers to the principle of uncertainty that governs all physical properties of matter. Recent advancements in quantum mechanics have propelled stochasticism further.

While the degree to which each of these factors affect behaviour is debatable, the severity of the impact of these variables proves that humans decision-making is void of freewill. Before continuing, it is important to clarify that it is science that proves freewill as null.  Governments often make decisions not based on science, and this article argues that that is unjust.

People who experience mental health illnesses should benefit immediately from the admission of freewill as an illusion. Already, there are partial defences that correlate with the lack of freewill in law: age restrictions and the plea of insanity. Offenders with mental illnesses need better legal mechanisms to prove that their illnesses are evidence of a lack of free will.

Clear examples of this can be found throughout the scientific community. For example, studies have found that people with antisocial personality disorder and psychopathy have damage to the ventromedial prefrontal cortex. These individuals make decisions that adversely affect their environment, displaying disregard for social and moral conventions.

Rejecting their mental illness as evidence of a lack of freewill is affecting tens of millions of people around the world. Studies have found that 90% of justice-involved youth meet the minimum criteria for at least one mental health disorder and in the United States, the largest mental health institutions are prisons. While states are addressing other dimensions of mental health, they are denying justice to suffers because of the disruption that science may cause to the legal system.

Thus, there needs to be a new set of principles to govern the legal system, that both legitimizes science and provides justice. The following five principles could assist in replacing mens rea: (i) protection of society; (ii) protection of the offender from society; (iii) alleviation of the biological defect of the offender; (iv) allowance of appropriate psychiatric assistance for the offending individuals; (v) incarceration (either imprisonment or mental health institution) as a deterrence from reoccurring offences. These principles can separate offenders who are healthy, yet still commit crimes from those who are suffering from mental illness.

Of course, this article is not attempting to use mental illness as an excuse for unlawful behaviour; people who conduct such behaviour have to be brought to justice. It is the term ‘justice’ that society must challenge as to what we wish for it to mean; whether it is incarceration or receiving treatment in a mental health facility. The biopsychosocial perspective is a good place to start. As the principles above explained, offenders with mental illness should be allowed rehabilitation if possible.

Unfortunately, there is not always an underlying biological defect that can be identified. This exemplifies the limitation of this argument, but it is nonetheless an improvement from the current, unscientific legal system.

The courts accept science from others fields, and mental health should not be an exception. For the health of their people, states need to review how their justice systems function and what principles ought to judge offenders.