Seattle University Collaborative Projects - International Academy of ...

204. TJ & Criminal Procedure: International Perspectives“Idiots” and “Lunatics”: Are These Two Now Pejorative Terms Still Viable inDistinguishing Competency and Insanity in the Criminal ContextPatrick D. Reilly, New Jersey Public Defender, Trenton, USA(Patrick.Reilly@advocate.state.nj.us)For centuries idiots and lunatics were terms that would entitle criminal defendants or civillitigants to specific treatment in the Anglo-American court system.Idiots would be incompetent to retain property for themselves and their progeny. They wereentitled to the protection of the sovereign. They could not be tried for criminal activity. Finallytheir condition was considered unchangeable.Lunatics were also entitled to protection of the sovereign, but only during periods of lunacy.Their condition would be considered to be variable. Therefore their property was to be preservedand returned when their lunacy subsided. They could be tried in criminal court when sane, butcould not be convicted if the lunacy controlled their behaviour at the time of the alleged criminalact.As words took on pejorative meanings and were changed, as diagnoses proliferated, as statutoryand case law developed, separating intellectual deficiencies from mental illness may no longer bepossible. We will discuss how and why this happened both in psychiatry and law.International Human Rights, Mental Disability Law, and the Dilemma ofCriminalizationBruce Borkosky, Independent Practice, Sebring, USA (drborkosky@gmail.com)Nations vary considerably in the percentage of their population that they incarcerate, the lengthof those incarceration periods, and in the quality of the incarceration (punishment vs.rehabilitation). These policy decisions have far ranging direct and indirect consequences on thenation and the inmate. The negative consequences of long term punishment / criminalization ofthe mentally ill are yet more severe and long-lasting, made all the more poignant due to thereduced responsibility caused by their mental illness.Mitigation Practices in Death Penalty Cases: An International Human RightsPerspective491