Question

which scholar has pointed out the reason for crime as mental impairment​

Answer 1

Answer:

According to article 39 of the Dutch Criminal Code, anyone who commits an offense for which he cannot be held responsible due to a mental defect or mental disease is not punishable (5, 6, 10–12).2 To come to this decision, the trial judge—who does not have the expertise to assess a mental disorder of the defendant and its relation to the offense—needs to obtain information from a behavioral expert, usually a psychologist or psychiatrist. This expert advice pro Justitia is even a statutory requirement if the judge considers imposing a placement in a psychiatric hospital (plaatsing in een psychiatrisch ziekenhuis) or a hospital order (terbeschikkingstelling, TBS), a criminal measure similar to the commitment order which can be imposed in the US (cf. article 330.20 lid 1 sub f New York Criminal Procedure Law). The expert advice is an important substantive safeguard with respect to the assessment by the judge of the defendant’s insanity or (diminished) responsibility.

As mentioned earlier, TBS is the most severe measure. This security measure can be imposed if the defendant, at the time of committing the (grave) offense, was suffering from a mental defect or mental disease. If the offense was directed against the physical integrity of the victim, the TBS can be extended every 2 years. In recent years, it has become more common for defendants not to cooperate with psychiatric and psychological evaluations, presumably because they fear the indeterminacy of the duration of TBS (and their lawyers may advice against cooperation for that reason). The defendant is free either to cooperate or not (5, 6). In recent years, there have been quite a few cases in which the behavioral experts were not able to do a proper evaluation of the defendant, because he did not sufficiently cooperate.3 Behavioral experts should not diagnose a person without performing a proper evaluation (13). In addition, the nemo tenetur-principle—one is not obliged to contribute to his own conviction—which can be derived from the right to a fair trial (article 6 European Convention for the Protection of Human Rights and Fundamental Freedoms, ECHR), gives the defendant the legal space to refuse to cooperate with the behavioral examination (14).

In the daily practice of Dutch criminal law, the judge explicitly asks the psychiatrist and psychologist about their opinion with regard to insanity or (diminished) criminal responsibility of the defendant. This question is part of a format that was used over the last decades in Dutch criminal law. Until recently, the behavioral expert was supposed to answer—among others—the following questions (this is the format of questions used in the case we describe):

Is the examined person suffering from a mental disorder/defective development of the mental faculties? If so, how can this be described diagnostically (in terms of the DSM)?

What was the person’s mental condition at the time the criminal offense was committed?

Did the mental disorder/defective development of the mental faculties influence the behavioral choices of the examined person, or his behavior during the offense, to an extent that the alleged offense can be explained from this disorder/defective development?

If so, can the behavioral expert substantiate:

(a)

in what way this happened,

(b)

to what extent this happened, and

(c)

which conclusion with regard to the examined person’s criminal responsibility can be advised?4

Can the behavioral expert substantiate to what extent and in what way the (possible) mental disorder/defective development of the mental faculties could lead to similar or other offenses?

The answer to question 4c by the behavioral expert used to be categorized in one out of five degrees: (i) responsibility, (ii) somewhat diminished responsibility, (iii) diminished responsibility, (iv) severely diminished responsibility, or (v) insanity (15, 16). (Currently, in the Netherlands, a three point scale is used: (1) responsibility, (2) diminished responsibility, and (3) insanity.)

Another feature of the Dutch system is that there is no formal test for legal insanity. As a result of the lack of clarity of the criteria for legal insanity, in practice, each behavioral expert creates his own frame of reference with regard to this concept (17).

Explanation:

Answer 2

Brond has pointed out the reason for crime as mental impairment​.

Explanation:

• The postulation that mental disorder is a cause of crime is the basis of forensic psychiatry, but epistemological, conceptual, and empirical analyses display that neither mental nor crime, or the connection inferred, are clear-cut concepts.  

• "Mental" means heterogeneous aspects of a person such as cognitive abilities, inner experiences, and behaviour patterns defined in a non-physical vocabulary.  

• In psychiatry and psychology, mental describes law-bound, triggered aspects of human functioning that are generalizable and predictable.  

• Problems described as mental disorders are end-points of dimensional inter-individual arguments instead of natural categories.  

• Shortages in cognitive faculties, such as verbal understanding, attention, impulse control, and reality assessment, maybe vulnerability factors that relate to conducts such as crimes by increasing the likelihood/risk for negative behaviour.