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Morse contributes to ground-breaking report on criminal justice reform

March 12, 2018

Penn Law professor Stephen J. Morse has contributed a chapter to a comprehensive report titled Reforming Criminal Justice. Morse’s chapter, “Mental Disorder and Criminal Justice,” examines the wide-reaching interactions between mental health and the criminal justice system. In addition, Penn Law professor Paul H. Robinson and former faculty member Stephanos Bibas (now a judge on the U.S. Court of Appeals for the Third Circuit) served as consultants for the report.

Morse is the Ferdinand Wakeman Hubbell Professor of Law and Professor of Psychology and Law in Psychiatry, as well as the Associate Director of the Center for Neuroscience & Society at the University of Pennsylvania. In addition to being a lawyer, he is a board-certified forensic psychologist.

Morse’s contribution is one chapter of a four-volume report, edited by Professor Erik Luna of Arizona State University, targeted to policymakers, practitioners, and all others interested in criminal justice reform. The report consists of 47 chapters written by leading criminal justice scholars. It is being widely distributed.

“The goal is to help provide a basic understanding of these topics in the criminal justice system so that someone, after finishing a relatively short and reader-friendly chapter, will appreciate the issues in terms of the law, policy, and scholarship on a given topic, and have before them some recommendations for possible reforms,” said Luna, who is the Amelia D. Lewis Professor of Constitutional & Criminal Law at Arizona State’s Sandra Day O’Connor College of Law.

While most of the chapters in the report deal with specific issues in the criminal justice system, Morse’s chapter engages systemically with criminal justice and mental health.

“I took the criminal justice system from first encounters with the police to last encounters — including competence to be executed — and looked at every mental health issue that exists in the criminal justice system,” said Morse.

Throughout his overview of mental health and criminal justice, Morse makes a large number of specific recommendations. He notes that a disproportionate number of people in prisons and jails suffer from serious mental disorders, and the treatment provided for them is utterly insufficient.

“Providing inadequate treatment is not only a humanitarian failure,” he said, “it’s also a practical failure.”

In addition, Morse recommends that non-physician health-care providers in jails and prisons, particularly psychologists, psychiatric social workers, and psychiatric nurses, should be permitted to prescribe psychotropic medication and medication for substance use disorders, if they have received adequate training in prescribing those types of medication.

Morse acknowledges that this is a controversial recommendation — typically only those with a medical degree can prescribe medications — but he notes that a small number of states have already allowed psychologists with specialized training the ability to prescribe the needed medications. He argues that the lack of psychiatrists makes the recommendation necessary. He also recommends that substance abuse treatment generally should be more widely available.

Other recommendations in the chapter include providing all defendants who raise a mental health issue with an independent, genuine defense mental health expert to assist with their claims, and videotaping all forensic evaluations interviews.

Morse also recommends establishing a new verdict: “Guilty, but partially responsible,” that would be available to defendants charged with any crime. In appropriate cases, the new verdict would permit defendants to raise at trial claims that they suffered from substantially diminished responsibility as a result of mental abnormality. If they succeed, a legislatively-mandated reduction in sentence would follow. Sentencing discretion is insufficient, Morse argues, to respond fairly and even-handedly to substantial diminished responsibility cases.

As to the role of this report in the current political landscape, Professor Luna noted that there is a desire for criminal justice reform that spans the traditional divisions of American politics. “People may come to the table with different underlying rationales,” he said, “and yet they all seem to agree that the American criminal justice system is in need of change.”

“Any fair-minded, principled person wants a fair criminal justice system,” said Morse. “We can argue about what are the fairest rules and what are the fairest procedures, but so much of what we do now is clearly broken, by anybody’s standards.” He hopes that the unprecedented report will have a positive impact on reform efforts.