 It's very early in California right now, isn't it? It's very early in the morning. The sun is just coming up now. Well, at least there's sun, lots of bonus. Yeah, I mean, I think by the end of it, there will be sunlight. We got a little bit of snow yesterday, the day before, yeah. Is this the start of the winter season? It's an early start for us, actually, but yeah. Gotta love climate change. Very hard to predict these days, yeah. Give it another couple of minutes, as people are coming in. All right, I just can't wait to get started. I'm waiting for people to just settle in, but why don't we start then? So good afternoon, everybody, and welcome to the third lecture in this year's Dalhousie Health Justice Institute Seminar Series. I'm Sheila Wildman, Associate Director of the Health Justice Institute. We're grateful to convene today's lecture and this year's lecture series in McMaggy, The Ancestral and Unceded Territory of the Mi'kmaq People. We pay respect to the indigenous knowledges held by the Mi'kmaq people and the wisdom of their elders past and present. We also recognize that African Nova Scotians are a distinct people whose histories, legacies, and contributions have enriched that part of McMaggy, known as Nova Scotia, for over 400 years. Today, we are delighted to welcome Professor Rabia Belt from Stanford University Law School, who is joining us online for a lecture I cannot wait for. So again, I'll be brief as I can. Her lecture is entitled The Hidden History of the U.S. Insanity Defense. Professor Belt received her JD from the University of Michigan Law School in 2009 and her PhD in American Studies from the University of Michigan in 2015. She's a legal historian whose scholarship focuses on disability and citizenship, topics ranging from cultural analysis of disability in media to contemporary issues facing voters with disability to the historical treatment of disabled Americans. In 2015, the American Society of Legal History named her a Catherine T. Prayer Scholar for her paper Ballots for Bullets, the Disenfranchisement of Civil War Veterans. I wanted to make mention of another formidable original contribution, an essay in the Georgetown Law Journal published in 2022 entitled The Fat Prisoner's Dilemma, Slow Violence, Intersectionality, and a Disability Rights Framework for the Future. It's a paper that I encourage you to pick up as well as the rest of Professor Belt's work. It challenges disability rights paradigms to take on carceral injustice and helps open the way for intersectional immense patient struggles. Professor Belt is currently writing a book titled Disabling Democracy in a Merit Path, Mental Incompetence, Citizenship, Suffrage and the Law, 1819 to 1920, forthcoming with Cambridge University Press. Rabia Belt is also an advocate for people with disabilities. In 2016, President Obama named her as a council member to the National Council on Disability, the independent federal agency that advises the President, Congress and other federal agencies on policies and practices affecting people with disabilities. And she's also served as a member of the Board of Directors for the Disability Rights Bar Association. So with all of that, I turn it over to you, Professor Belt. Thank you. Thank you so much. And greetings from California. Thank you for that warm welcome and to Sheila Wildman for inviting me. I look forward to chatting with Erin Dovelstein's class later on today and to Ashley Johnson for making all of the arrangements for me and to all of you for attending this talk and to Laura Sleikwa for doing the captioning. This is a fairly new paper that I'm going to present part of for you today and I look forward to the conversation that we'll have after the presentation. I welcome your thoughts. I'd also like to say at the outset some content warnings for some violence that I will discuss, including homicide and suicide. And there will be the use of some older pejorative terms for mental disability. So I'm going to share my screen really quickly. So with PowerPoint and let's get started. So on June 15, 1843, Abner Rogers killed Charles Lincoln. This is a slide of Charles Lincoln, who is the warden of the Massachusetts State Prison in Charleston, Massachusetts. There is an image of a fairly young white man with luxuriant sort of brunette hair, fairly young, wearing a formal black suit. Rogers had just begun his second stay for forgery at the Massachusetts State Prison in Charleston. And when the prison doctor William Walker examined Rogers along with the other new prisoners on the day of his admittance, Rogers complained of a pain in his head and said that he felt as if he cannot govern his mind. And this is a picture of the state prison in Charleston, which is an older sort of faded black and white image of the building sort of with a series of rows of rooms. Rogers complained of a pain in his head and said that he felt as, quote, he could not govern his mind and quote, Dr. Walker consulted with Lincoln, the prison warden, and they both believe that Rogers is faking both the pain and the mental issues and that his real problem was that he was an onanist or masturbator. Consequently, Dr. Walker refused to treat Rogers medically and instead recommended physical labor to keep his mind off of masturbating. At night and the days before the killing, other prisoners and prison attendants heard Rogers groaning in a cell. He appeared for work without shoes and a hat. And so there were, quote, checkerberries in his food. His mutterings included, quote, I have fixed the warden and I'll have a rope around my neck tonight. I am in great distress here. I'm in pain all over. I am in pain right through here and feel as if I could not govern my mind and don't take me up to the old prison and kill me. If you will not, I'll behave myself. End quote. The deputy warden punished Rogers for his disobedience through solidary confinement, physical restraints and shower bath. So here's a diagram showing this showering treatment where prison attendants would hold down Rogers and pour cold water on him. And this was both to, it was designed to calm people down, but then also was a method of punishment in the prison. On the day of the killing, a week after his arrival at the prison, Rogers moved frequently in and out of the mattress making area of the prison where he was working and muttered to himself. When Lincoln came into the mattress making area, Rogers took a shoe knife, a common knife of the value of 20 cents, held it in his right hand and struck Lincoln three times on his back neck and throat. The prison attendants and prisoners in the room pulled Rogers off Lincoln, but the warden was already dying of his wounds. And the deputy warden then put Rogers in a solitary cell to await trial. When the news of Charles Lincoln's death hit the press, Massachusetts newspaper has initially treated the murder or killing as another lurid, sensationalistic story for their readers. And this is a slide that says, horrid murder in the Massachusetts state prison, the very melancholy duty devolves upon us to state that the estimate, sorry, it was a little early today and I would probably not get this right anyway if it was later. Estimable warden of the state prison, Charles Lincoln Esquire, was murdered yesterday between five and six o'clock and one of the workshops of the state prison in Charleston. As another example, the Boston Post gave its radius minute detail on the killing itself, including the shoe knife, quote, plunging into Lincoln's back and the severing of his carotid artery. The killing was labeled an awful tragedy where the warden was suddenly deprived of life. While Lincoln was described as a, quote, moral reformer without cant, a shrewd and sagacious observer, get charitable in his judgments, not likely to be deceived in the character of his prisoners yet mild, though firm in the discipline in which he is employed to restrain their evil propensities, end quote, who left a wife and 11 children, quote, a more wretched and miserable being than Abner Rogers, the murderer, it would be hard to find even in a state prison, end quote. These local newspapers called for and they expected swift punishment for Rogers. They also expected an ultimately unsuccessful insanity defense by Rogers lawyers. The Pittsfield Sun, for instance, cynically noted, quote, the ground of defense was insanity, of course. Ultimately, though, they were wrong. Abner Rogers did in fact plead not guilty by reason of insanity for killing Charles Lincoln. Yet, despite all these expectations to the contrary, this play was successful. And he was transferred to Worcester State Lunatic Hospital. Rogers is appointed counsel, prominent Boston lawyers George Tyler Bigelow and George Bemis subsequently published a report of the trial proceedings due to the case's publicity. And this is an image of the defense attorneys, George Bemis and George Bigelow, both white men wearing suits and then also an image of the first page of this case report of the trial. Judge Lemuel Shaw, the Chief Justice of the Massachusetts Supreme Judicial Court and Herman Melville's father-in-law presided over the trial in the subsequent appeal. This is an image of Judge Lemuel Shaw, who also has very buoyant hair and is wearing a formal suit and looking sternly at the photographer. Judge Shaw, who historian Leonard Levy has argued no other state judge through his opinions alone had so great an influence on the course of American law, sat as Chief Justice of the Massachusetts Supreme Judicial Court from 1830 to 1860, and he authored 2,200 opinions covering a wide array of legal topics. He had a disproportionately large impact over the development of U.S. criminal law. Among other contributions, he differentiated between murder and manslaughter. He gave important definition to the reasonable doubt standard and permitted convictions based solely on forensic evidence. And Rogers' case, history instructions and appellate decisions formed the basis for the introduction of expert witnesses into criminal trials. The experts in the Rogers case included Isaac Ray, then the superintendent at the State of St. Anselm and Augusta Main, the author of a widely read treatise, a treatise on the medical jurisprudence of insanity, and the future editor of the American Journal of Insanity. Luther Bell, the superintendent of McLean Asylum, the preeminent private lunatic asylum in the country at the time, and Samuel Woodward, the superintendent of the state lunatic hospital at Worcester, Massachusetts, the model state lunatic asylum for the nation, the founding president of the association of medical superintendents of American institutions for the insane, and the supervisor of the institution where Rogers was eventually placed. And through the efforts of these expert witnesses and the blessing of Judge Shaw, Rogers imported the McNaughton right wrong test, which is the current prevailing test for insanity in the United States, from English law into the United States. So this is far from a routine criminal law case. Yet despite its fame or infamy when it occurred, Commonwealth v. Rogers has all but disappeared from American memory. Contemporary American law students are quite familiar with the McNaughton Insanity Defense and aware that McNaughton's case is the overseas case that quote modernized insanity within criminal law. And this is a slide of Daniel McNaughton from 1856. So it's a white man who does not have boy and hair standing with his arms crossed. In 1842, Daniel McNaughton thought the British prime minister, Sir Robert Peel, was conspiring against him and thus shot the man he believed was Peel. In fact, this man was Peel's secretary, Edward Drummond, who died from the gunshot wound. McNaughton's 1843 trial focused upon his sanity or lack thereof and how to assess it legally. After the McNaughton trial was stopped, basically sort of a directed verdict, a subsequent debate in the House of Lords with judges on the insanity standard birthed this McNaughton rule on sanity, which updated the legal test for criminal insanity from a person acting as a quote wild beast or laboring under an insane delusion to one that asked whether the defendant knew what he was doing when he committed the charge act. And if so, if he thought it was wrong. So US historians and presidential trivia Fischianatos are also familiar with the assassination of President Garfield by Charles Guteau in 1881. And this is an image of Charles Guteau from Puck. It's a satirical cartoon of a drawing of a man with an oversized head who has a gun in one hand and another a document saying an office or your life. Charles Rosenberg's landmark study, the trial of the assassin Guteau, psychiatry and the law in the Gilded Age, the pathbreaking investigation at the intersection of law and psychiatry. And the contemporary American public though, probably far more familiar with criminal insanity through another aborted political assassination, this time on American soil. So in 1982, John Hinckley was found not guilty by reason of insanity under the McNaughton standard for his attempted assassination of President Ronald Reagan and wounding of three other men. This is an image of John Hinckley, his arrest photo where he's holding up a sign with his name and the date. He's wearing a striped shirt and is looking straight at the camera. Rather than incarceration within a prison, Hinckley was committed to St. Elizabeth's hospital for treatment. Current U.S. law students are taught that the outrage over this verdict insane instead of guilty and the intended result, treatment instead of punishment had short the development of the insanity defense immense criticisms of the incoherence and limitations of the McNaughton test and catalyzed new laws restricting the use of insanity defense or attempting to end it all together. So compared to the spectacular afterlife of those cases of high politics, homicide and insanity, Rogers has been relegated to a footnote at best and contemporary criminal law case books. Yet I argue that Rogers deserves greater scrutiny by scholars and the rest of us and more attention would yield an array of benefits. So first I'm going to unpack the case a bit. And then I have a slide of Worcester State Hospital, which is lunatic asylum, which is say there's an image of a very beacolic looking series of white buildings with some horses in front. When it came to Rogers's case, both the trial report and the newspaper accounts are in general agreement over the events leading to the killing and the killing itself. The battle was over what this chain of abner's activities meant and how to assess them. In particular, did he have malice when he killed Lincoln and was he legally insane when he did so? And legal precedent gave the prosecution an advantage. This Massachusetts criminal law adopted English legal principles. Since the 1300s, the will was an important part of determining guilt for murder. And prosecutors needed to prove not only that the act of the defendant caused a killing, but that the defendant had a guilty will or intention as well. In 1682, in one of the first systematic treatments, a mens rea sort of thinking through this guilty mind, Lord Hale wrote the consent of the will is that which renders human actions either commendable or culpable. Where there is no will to commit a defense, there could be no just reason to incur the penalty. When it came to malice by a defendant, it was not necessarily avert. The court could impute malice based on the defendant's action, but an insane defendant lacked the capacity for a guilty mind and therefore could not be found guilty of murder. Samuel Parker, the prosecutor in Abner's case, had a lot of advantages. So first was the juxtaposition of the defendant and the victim. So there was a person who was already incarcerated at the time of the killing and a repeat offender at that versus a respected family man of 11 children. And Massachusetts Law and Society was still absorbing the developments and understanding the mind and treating mental illness that could potentially weaken his case. Parker suggested that Rogers killed Lincoln because he was a person of bad character. And in a more muted register, he argued that Abner killed Lincoln out of revenge for ordering his punishment through the showering. I think that he didn't want to emphasize the details of the showering itself out of concern that it would seem as if Rogers actually did have a reason to hurt Lincoln for torturing him. And indeed, Rogers was the last person in the Massachusetts State Prison that was subjected to the showering treatment. And Parker argued that Rogers was faking insanity because he seemed lucid for the most part, both before and after the killing. He contended that even if Rogers might have been partially insane, he was not insane enough to be found not guilty by reason of insanity. And he reassured the jurors of the fairness of the legal procedure itself that if they found Rogers guilty of murder and thus he was sentenced to death, the legal system gave him a fair trial in reaching that result. So for the prosecution, Massachusetts Benevolence was displayed through people like Gordon Lincoln and also in the legal process. By contrast, Abner's Rogers defense did not seem to have a very good case. The prosecution's witnesses clearly outlined a sequence of events that led to a horrific killing. And legal precedents favored the prosecution's view of malice and insanity. The public did not know the medical theories of asylum superintendents very well. And the prison doctor, Dr. Walker, testified that Rogers was faking his insanity. And none of the asylum superintendents that testified had actually examined Rogers before the killing. Only one of them did so after the incident. And the rest only saw him at the trial itself where he only said a single word. Moreover, newspapers carried the story of Lincoln's murder and called for Rogers' head even before the trial started. And the defense counsel conceded the difficulty of his client's case and his opening statement. George Bemis rightly pointed out to the jury that newspapers implied that Rogers' counsel would set him up for the play of insanity and confess that quote, there's so much going against Rogers, the task of developing the truth. In regard to this transaction, it is so difficult, a one that for myself, I feel oppressed and almost overwhelmed with the responsibility which belongs to the humble share, I have undertaken in this manner, end quote. Bemis then proceeded to turn the prosecution's case to an disadvantage, and he also had a multi-pronged strategy for how to do this defense. So first he addressed the jury's prejudices about the insanity defense directly. He argued that the abuse of the insanity defense law was not the fault of defendants using it too much, it was actually too little, and that juries did not believe in sanity defenses as often as they should, and thus sent defendants who could have been found not guilty by reason of insanity to the gallows instead. Second, that Bemis used asylum superintendents as his key witnesses. All three of these superintendents emphasized their extensive experience in treating insane people, and all three superintendents were unanimous in their opinion that Rogers' insane behavior was real. And furthermore, they indicated the punishment that was inflicted by Rogers in prison not only failed to treat his problems, but in fact caused his violent outbursts that killed Lincoln. As a result, Dr. Walker, the prosecution's only expert witness, failed to diagnose Rogers correctly since he lacked specific specialized experience within sanity. Moreover, by prescribing the type of treatment aimed at disciplining criminality, rather than treating insanity, Dr. Walker exacerbated Rogers' condition instead of curing it. And the favoritism of the superintendent's testimony may have rested in part with Judge Shaw's experiences off the bench. So Shaw was a member of many of the reform groups that organized Massachusetts on behalf of insane people and also for the better treatment of prisoners, including the Humane Society and the Prison Discipline Reform Society. In addition, before assuming the bench, he was a member of the Massachusetts legislature and took an active part in creating statutes classifying insanity. And Shaw praised the medical treatises on insanity during the trial itself. And third, the defense suggested that Rogers' insanity was hereditary. Amner Rogers' father, Amner Rogers Sr., testified for the defense on what he thought was the prevalence of insanity in his family. According to Amner's dad, his son had fit starting when he was a baby that continued as he aged. Rogers Sr. reported that, quote, Amner's great uncle and aunt by his mother's side were both reputed crazy, end quote. Most strikingly, Rogers Sr. described the condition of Amner's older brother, Bamiah, was, quote, deficient in understanding. Bamiah hit Amner on the face with a skype when Amner was three and cut off part of his nose. Starting when Bamiah was a child to the age of 30, when he calmed down, the Rogers family would tie him to a chair or tree for their own protection. Finally, the defense emphasized the stakes of the jury's decision. Since murder was a capital of defense, a guilty verdict would send Rogers to the gallows, not back to jail. Instead of looking to American law for precedent, Bamiah's wanted the jury to bring in this progress evidenced in the new understanding of social reform, insanity, and criminality into the courtroom. That was there both in terms of developments in English law, but then also in terms of Massachusetts society and the creation of new institutions designed for the care of insane people. Bamiah's concentrated his closing argument on the types of arguments used in the case, specifically he urged the jury to utilize his witnesses more modern view of insanity rather than the older legal precedent that Parker employed. So thinking of insanity as something that did not have to be total, that it could be partial, that people could have preoccupations on a specific thing, but that would still be insanity sufficient enough to reach this new legal threshold that England was developing. Bamiah's also highlighted the rapid proliferation of reform institutions that is sprouted in Massachusetts. With this increased attention to insanity and criminality, proper classification of insane people, and criminals with their respective institutions became more important for reformers. And his closing statement drafted the jury as part of this benevolent vanguard to usher Massachusetts into this modern future. They could do so by finding Rogers not guilty by reason of insanity and placing him in one of the quote spacious and magnificent hospitals which now open their doors to receive all those afflicted with the loss of reason affording to them the benefit of the highest medical skill end quote. Bamiah's called on the jury to use the quote noble monuments of the benevolence and charity of our community and so the change which has taken place in the public mind in regard to the nature and treatment of insanity within the last 20 years. That said though, if Rogers was found not guilty of by reason of insanity, he would be transferred to Worcester State Hospital, not a place like McLean, which was a private asylum that catered more to paying patients. Worcester by contrast did not have the financial resources to offer most patients this new benevolent treatment that the asylum superintendent's witnesses discussed and the beam is implied that Rogers will get. None of them meant that part when they were testifying or giving statements. So given the evidence presented to them, the jury may not have seen a not guilty play as an entirely outlandish gamble, clearly punishment and not work for Rogers, he was in jail when he became a killer. Furthermore, Beamus gave a compelling reason for using the expensive institutions that grew up in the public's midst. A successful insanity defense would not send Rogers free to run dangerously among the public, nor would he lurk behind the beneath the public's attention like his brother Bamiah. The jury's verdict went merely transfer him to another institution that could possibly cure him. Moreover, the same people who wanted Rogers found not guilty of by reason of insanity, the superintendents would be responsible for him. Probably seemed unlikely to the jury that the superintendents would define a problem for themselves that they could not solve. Even the newspapers applauded Beamus's closing statement and congratulated Massachusetts for its modern spirit in trying Rogers and the eventual verdict, despite the fact that they were calling for Rogers to receive the death penalty at the initial descriptions of the killing of Charles Lincoln. Regardless of the reason for the jury's verdict, they eventually found Rogers not guilty by reason of insanity. On May 17th, 1844, Abner Rogers killed himself by jumping out of the window of Worcester State Lunatic Hospital, and this image is notes from his death record. After learning from his death, his lawyers, Bigelow and Beamus, wrote Samuel Woodward, the superintendent of the hospital, asking for his expert opinion on Rogers' suicide, and if it in any way changed his opinion on the trial. Woodward replied that he had no idea that Rogers intended to commit suicide, Rogers appeared happy at his job, mattress making, and those pulse was frequent. Woodward dismissed Rogers' suicide as, quote, acting from impulse, yet despite his surprise at Rogers' death, he remained adamant that Rogers was, quote, insane and irresponsible when he committed the homicide. So at the time that Woodward wrote his letter back to Bigelow and Beamus, his career was ascendant, he was a start witness in a prominent trial, he was the superintendent of the most respected state asylum in the country, he was the founding president of the professional association. This prominence proved fleeting, and in only a few decades, interprofessional quarrels, institutional overcrowding and lack of funds, and the rise of neuroscience tarnished this nascent field of psychiatry. And psychiatry did, though, retain its inclusion within the law through expert witness testimony and on the landscape through mental health institutions that closed only a few short decades ago, but the field only regained its reputation through its incorporation to biomedical language in the 1900s. Though Rogers has disappeared an instruction in our memory, I think the chronology of the U.S. Insanity Defense from Macnaughton to Hinckley without Rogers' overlooked important developments in American social welfare and carceral institution building also foregrounds a narrative of dangerous political intrigue rather than one of how criminal law was reinterpreting broader ideas social control and deviance and thus creating a population of mentally disabled people that the state both was crafting and then assigning itself responsibility to manage. And shifts in the Insanity Defense heavily reliant on the presence of asylums in psychiatric hospitals is far more tenable to release people accused of violence, yet deemed insane to another institution rather than set them free. And this benevolence of criminal insanity fuelled the development of this group of mentally disabled people who are not imprisoned, yet they remained unfree. And the spectacle of violence, the debate of treatment versus punishment, and the lobbying of reformers and the professional of this psychiatric specialty catalyze the state to invest more resources to manage a problem of its own creation. I also like we're dealing with both then and now the what can be done to people who are within institution. In Rogers' case there was the specter of the gallows if you receive the death penalty for the case, but even within the prison himself when he was there for forgery he was subjected he was subjected to the shower treatment which was criticized as being an act of torture. He also experienced solitary confinement as well. Even though Abner was the last prisoner who was showered in that particular prisoner, prison it did persist elsewhere. And it is I think an image and sort of a practice sort of very reminiscent to the waterboarding that was very prominent in the discussions of U.S. torture after 9-11. Also like to call your attention to the institutional labor that happened. So the labor was designed both as a cost-saving device for the institutionals running, but also it was designed for different rationales for the people within it. Note that Abner was doing mattress making in both prison and also in the lunatic asylum, but they were supposed to be for different reasons. Mattress making in the prison was designed to give the prisoner something to do during the day. There was also a design for the rehabilitation whereas mattress making in the Western lunatic hospital was designed to restore Abner to sanity. And also the issue of sexuality namely masturbation. So this is several images. One is a device sort of a circle with a very formidable teeth on it. And the image of a steeped overman with a cane. And this is someone who's supposed to be suffering from the effects of self pollution or masturbation. And then the cover image of a book written actually by Samuel Woodward hints for the young on a subject related to the health of body and mind. And then part of this was characterizing masturbation as a serious problem and also hints to stop it. There was a concern that it prevented men from turning into women for sexual activities. And also sterilization later was intended both to prevent men from reproducing but to stop people from masturbating. And there's this tangle of medical disorder, morality and criminality. There might be folks in the audience that are familiar with the case book versus Bell, which is this infamous United States Supreme Court case that permitted sterilization under the U.S. Constitution. But there's also Skinner versus Oklahoma which is a 1942 Supreme Court case which said that the Oklahoma criminal state criminal sterilization act of 1935 was unconstitutional. Under this act the state could sterilize someone who's convicted of three or more crimes. There were felonies involving moral turpitude and Jack Skinner had these three convictions. It was ordered to be sterilized. It's found that this act violated the Equal Protection Clause of the 14th Amendment under the U.S. Constitution. And I just want to note here that this language of moral turpitude and then also the felonies that were labeled as such really took off after the U.S. Civil War as a way to disenfranchise newly freed black people because people who are convicted of felonies and moral turpitude were also disenfranchised. So far I've been talking about people who are white but there is also a racial story here both in terms of the internal management of the white American population and then also the management of folks of color. And then also Skinner found compulsorily sorry compulsory sterilization punishment in those unconstitutional but there are still a lot of workarounds that happened which I can talk about during the Q and A as well as blatant violations especially for people in institutions in which they were sterilized. Also masturbation itself was characterized as something that caused insanity and with the DSM the diagnosis and statistical manual which is a guidepost for psychiatrists and others and insurance companies they removed both homosexuality and masturbation and sexual behavior disorders in 1973. I think the campaign to remove homosexuality as a psychiatric disorder you see far more intention but just sort of want to note that masturbation was also something that was both connected and part of this campaign. And then finally Rogers is not a clear cut case of social control. Abner Rogers' father testified in favor of an insanity defense for his son and narrated a fraught family history of mental illness and violence. For him new asylums offered a solution to hidden family violence visible criminal violence simultaneously as well as an opportunity to save his son from the gallows. So consequently I think Rogers offers significant avenues of investigation for contemporary scholars of welfare, disability, psychiatry, law, health and criminal punishment and jurisprudence and I think it suggests a stronger historical connection to current issues that medieval health, psychiatry, disability and crime and what to do with their intersection than a long ago case might suggest. And thank you and I look forward to your questions. Thank you so much Professor Belt that was really that was a lot and it was it was a lot to process and just I know that we'll be reflecting on it for a while. I just want to remind people who are in the webinar that there is a Q&A button that you can press and you can write a question out in the Q&A and I'll be able to moderate that. You could also use the chat function if you're having problems with Q&A but I would prefer it if you're able to put it in the Q&A function because it's easier for me to follow but let me just kind of start us off by returning you to those connections between then and now because I'm so interested even just in your in your discipline your cross disciplinary work in history and law which we don't hear enough we don't hear enough of that in our seminar series as I reflect and I think about the kinds of richness that that comes from looking at the past and thinking about those shifts over time in our institutional sort of forms and legal doctrines but I want to kind of pull you back to what I see as kind of the two prongs of of the story but these are there were so many ways we can process the story and one relates to the pathways sort of the pathways out of the prison and into the institution and so that goes to things like the legal test you know many of us are very interested listening keenly as we think about all the McNaughton test and you know what's being tested is it understanding or cognition is it will is it something like affect and we start to process these things and think well is there a lesson here about refining the test you know and I ask that to you knowing that you are you know sort of cultural and historians such that you are probably you're thinking critically about all the tests but I so that's that's kind of like question one is reflection from you in light of your historical you know the attention you pay to these processes so your reflections on that pathway which is the legal doctrine around insanity in the criminal space and then the second piece and I think we I'll I'll just pitch it but it's something that can be in impact in a lot of different ways is the the state response is to so the the construction of that that second space so not the prison but but what the the therapeutic I mean is it the the institutional response which you very definitely I think have already constructed as something of a mirror world even through the mattress you know the mattress making happening in both spaces and it makes me wonder how is daily life different in space number two than space number one which is still a question that clearly you know dogs us as as we think about how best to respond to disability both disability sort of that has manifested or been constructed prior to incarceration and and disability as you bring out in in some of your other work right disability that we have to be so mindful about is created through incarceration so I guess I'll just stop talking and pitch it to you again in terms of this insights on the the construction of that pathway out of the the prison or the you know prison criminal justice space and into I don't know even how to describe the other space the psychiatric space and then then maybe we can think more about the institutional forms question great thank you I really appreciate that um part of the reason why I wanted to do this paper and I came across this case really early in graduate school has been sort of mulling in the back of my head since then is that I feels that part of it really resonates with our current debates over mass incarceration and prison abolition is sort of what to do and one of the things that makes me really worry about perhaps an easy turn to care is feeling we have been there already this case is very much about pointing to the harms of prison like and the problems of criminality and the turn to care and in itself that care space had its own issues um so for one thing is that they're not as distinct I think as reformers and others characterize them as so both in terms of what happened to people within them and even though what was happening in the care spaces was not intended to be punishment still seem very coercive violent harmful sort of things like that um and then I think that one thing that I think is also sort of difficult is that the differences in terms of due process and the United States context so if you are in the criminal system then you get far more due process in terms of what is the procedure to get there and there is a distinct time you're supposed to be there and sort of various other things it's a lot more nebulous when you're in the care side right um because it's not supposed to be punishment but as we as we show I mean sort of as I hopefully sort of show a bit that it seems very very reminiscent um I think one thing that I think was lurking in terms of what I said but I could sort of bring it out here more is of what the demographics are of the folks that are being sort of shifted from one side to the other um especially with respect to class so one of the things was the unintended consequences here was that asylum superintendents had this early win quote unquote and being declared expert witnesses in criminal trials right so the first issue of the American Journal of Insanity in 1844 talks about the Rogers case and the initial afterlife of this case is very much focused on the fact that asylum superintendents were granted this deference to being the experts on the mind right but one of the things that then happened was the pathway they were creating were of funneling people from the criminal system into the public asylum system so for people who were potential paying patients they're like we're not going to Worcester we're going to McLean right and that for the superintendents who were on this campaign of respectability for their profession they ended up being essentially the wardens of the patients that they found the least desirable um and for the prison the prison superintendents like sure you can have them um and then I think it sort of ended up being part of the reason for the lack of continued resources the overcrowding because of the the folks that were being put in these institutional spaces that said though I think part of talking about Abner's father is to also resist an easy comparison of that institutions are the entire problem right that of what was happening in the family um was not great either um that they were trying to do this self-help in terms of what to do with Bamiya um which was detrimental to him and then detrimental to the rest of the family right so of this tricky issue of what to do about Kara that is not coercive that is not one that is being thrust on people um is something that's really hard um when it comes to the issue of the test one of the things that was a challenge with the test initially was what did it mean in terms of this issue right and wrong is it understanding um that something is legally right or wrong is it understanding whether or not something is morally right or wrong um I've written in a separate article which everyone is uh welcome to download um about this um something that is a thread that gets pulled out of this case um with the deific decree doctrine that if someone believes that God told them to kill someone um that they're they're able to um sort of plead not guilty by reason of insanity this is one of the examples that is part of Roger's right that of this push and pull between legal and moral wrong right so you think God is telling you to do it they think of it as the Abraham and Isaac problem right in terms of God telling Abraham to kill his son Isaac right um then the person may think that this is morally right but it's legally wrong to kill someone right so that was something that was initially that they were grappling with that said though this um this ricochet between um legal right and wrong and moral right and wrong was something there's also a lot of criticism of why is there this focus on understanding and cognition to begin with um especially as psychiatry developed but because of these things of these charismatic cases cases like Kinkley case um sort of fictional cases too in which this idea that people are faking insanity people are getting away with something um that it I think undermined a more thoughtful idea of what the insanity defense should be um and instead sort of brought us back into this older 19th century world in which um there still are a lot of fuzziness about what the test is yeah and and seems to me like there is still yeah there is still that that fuzziness there are still those tensions around you know whether somehow um in Canada we call it not criminally responsible so right that would be the the the label or the status but is that somehow an easy you know the easy path or the path of the the the folks who have um you know sort of uh received an unearned you know some kind of bonus um and so I'd like to talk a little bit about about that again and when there's a piece that came up um along the way in your talk that again sort of brought to mind some contemporary issues um and again it's you know it's all contextual as to which of these spaces the available spaces sort of in status as well as just in institute you know institutional spaces which of them is preferable in a given context and from a given perspective and I really liked your you know and packing of the the family space uh and you know the potential alternative um in the example that you gave of the death penalty you know where the the options before you are obviously really going to um make a difference to um uh to where you put your effort and kind of qualifying um and these days one of the the phenomena that um that comes up from time to time as I uh as I um am aware is this malingering kind of label so and this happens both at the at the point of you know trial where where the in our case it would be the ncr determination is being made and I often have just deep questions around how how is that determination made like how what what is actually happening in those in those meetings and at so many levels and I haven't done the study or had the experience to really um try and unpick that but I certainly see as a one of the refrains of this kind of malingering refrain and I see it maybe just because of the things I'm more aware of I see it even more often in the inside the jail or prison environment where people are again in terms of the options that are there in our world it might be you know people would like to get to an RPC or a regional psychiatric center and out of the the prison um for a whole lot of reasons um and this this um determination is being made as to whether they're sick enough or sick in the right way or are they drug seeking that's a really common sort of peace or malingering in some other way and I just wonder again um in light of the historical work that you've done as well as the contemporary work is that something that you see or that you can help us sort of put a a bit of um some more thinking around in terms of how these tasks are not just constructed but applied in these different contexts where you know people are they are often seeking to get out of a of a particular space but um but that can turn on on them yes absolutely and I think that last thing that you said was um really key too that it can turn on them I mean the the question of malingering was something that was super important in the 19th century and I think it's still really important in a bunch of contexts in the United States um with respect to disability assessment um in terms of getting welfare benefits in terms of what's happening within the criminal system with getting diversion out this backdrop of our people faking having a mental disability so they can receive treatment instead of punishment or receive sort of welfare resources things like that so I think that there is a few things going on one is that morality and character are doing so much work um that of suspicion of people being a bad character and it is that people are proving that they are good people alongside of proving that they are mentally disabled which which is sort of striking given that they they have to travel together right that um in order to be deemed worthy of being mentally disabled in order to receive say treatment or resources that they also have to be someone who is a good character right so when it comes to someone like Abner that the fact that he was thought of as bad character someone a bad character was counting against him and whether or not he was insane I mean I my sense is those two things should not have anything to do with each other right but the but it seems like it's really matters and in part because of um both on the one hand like the punitive nature of a lot of things that are going on and then the stendiness maybe it's different in Canada here so we're told that it is like a sort of resources that are allocated so the first one is that people are faking um being mentally disabled because they're trying not to get punished they're trying not to get harmed um and I think the repercussions for that is well we'll make the other we'll make the other thing that they're trying to get to also unpleasant so that there won't be much of a distinction between them right um as a way perhaps to reduce that incentive um and then the other part of like that gaining of resources it is well we'll make them like we'll have a stinty right so that um if you go through that hoop as well then you're not actually gaining much of advantage so if perhaps the thinking goes is not me but if I'm putting myself in this uh sense of a legislature of that if someone is choosing between getting paid work versus getting sort of resource like um sort of SSI or sort of other benefits um because they're too disabled to work right then it's like we're going to make it really hard for that to happen but then also we're not going to give you a lot of money and go sort of have a lot of like um sort of strings attached so it does not look very appealing right so then it ends up being like a race to the bottom and sort of both and like I think it is all of the stuff is very connected to each other right um unfortunately yeah I I teach poverty law course and we were talking about the the doctrine sort of of less eligibility this idea that right to to get social assistance you've got to be sort of be willing to undergo a kind of degradation that is sort of worse than the lowest paying employment so yeah so I note that there is a question in the chat and I'm going to take a look or in the q&a um which is sort of back to basics here but it's a really important basic back to the uh the test so the question is is the mcnaughton test still the current test used in the us how is it different than what is used currently in canada um oops and in terms of canada uh I just wanted to say really quickly it's it's section 16 of the criminal code which basically is a kind of um like statement of mcnaughton so it says no person it's criminally responsible uh basically for an act uh or a mission while suffering from mental disorder that rendered them incapable of appreciating the nature and quality of the act or a mission or of knowing that it was wrong yeah thank you for uh help thank you for helping me out on that uh so in terms of what the canada context is it's um striking oh and also thank you so much uh first anonymous attendee for um sort of breaking the ice there so I am very into q&a so I'm very glad that um that uh we're kicked it off so uh this appreciate language is also something that's part of our model penal code sorry model penal code which is a um basically like model language that legislatures can use sort of adopt whole and part um to craft their criminal laws they also have the appreciate language which some states do use and some states do not um and then there's always been like there's been a battle in terms of what does that mean in terms of appreciation um so I think the quick and dirty answer is yes mcnaughton like this question of whether or not someone can understand um right and wrong is still the current test generally used in the united states um criminal laws generally is something that is by states so we've got 50 of them but that is what most states use so I think the um people were doing states were doing different things until hinkley and then it really sort of dried up and went back to that um that said though I mean I think to go back to the conversation that she and I were having there's a lot of other stuff happening even within the criminal context one is are you competent enough to stand trial to begin with right so you can be held for a long time um before you even get to the trial if you are thought of as incompetent um and in the united states you can get you can be forced to take medication to make you competent the other thing that is happening on the back end is post conviction committal so it is that people have served their conviction but then are placed somewhere um because they're still thought of as dangerous to society so this is not thought of as punishment um which then means that it could be pretty indefinite in terms of the treatment that you get or don't get or how long you stay there so I have another piece again you could download that um called mass institutionalization and civil death and it actually is about the other non-carceral spaces of the present day um and how these people aren't have no political citizenship or power and it starts out with a group of people that were committed post conviction interest interesting and yes there are many parallels in Canada um to all to all of that um so thank you for that I want to turn to another question um which was I'm really glad that this one has been asked says following the idea of the previous question do you believe that the assessment of disability is centered around white cis hetero men and oftentimes this assessment can be difficult to apply to racialized folks and women could you speak to how the assessment of disability can reconcile this disparity it's a lot there yes awesome thank you thank you anonymous attendee number two um I think it is a both and so disability like pretty much many other things is certainly something where we can see inequality happening right and an intersectional way so certainly I think that um attention to race and gender and class and gender expression and sexual orientation um show up in terms of assessments of disability I think when it comes to marginalized folks it is both an over representation problem and an under representation problem so that there can be folks that are thought of as mentally disabled um or mentally incompetent and the aspects of their marginalization are read as mental disorder right so um I was talking about before in terms of one of the examples is sexual orientation um in which being gay was something's period right sort of characterizes a psychiatric disorder um and we're having challenges now in terms of being trans right in the United States and when they're not that is thought of as a um psychiatric disorder and then there's also interpretations of people's behavior um which can be read through sort of lenses of racism and sexism and whatnot um on the other hand though there can be spaces of care or resources of care that are allocated to people that are not at the bottom of the ladder so for example the institutions that I was discussing in Massachusetts are sort of this network of asylums that were generated to um care for people so that they were not in forehouses they were not in prisons they were for white people um so folks of color at least before the civil war couldn't get into them um and this was something in which it was the management of sort of the internal management of the white American population um this is complicated I think a bit of being at the bottom of that hierarchy was not great right so a lot of the emphasis there uh pre-civil wars targeted towards Irish immigrants especially with the potato famine so um in places like Massachusetts places like Worcester State Hospital really filled up with Irish immigrants Irish folks were thought of as particularly prone to insanity um because of anti-catholic bias because of xenophobia um so they but they had a both and right so that there was the privilege of being white but then the vulnerability of being thought of as not the bottom of the whiteness ladder right and the need to improve them um and then sort of folks outside of that who are not white right didn't get care period this changes as opposed after the civil war right and which um there was far more attention to people of color and that was that was more in an eliminationist sort of way um I think that disability I mean this is a long answer but I think that disability is one of those places in the United States at least that um we can see see racism happening in a way that whiteness matters in which there could be technologies developed that are initially used to internally um govern and reduce the internal hierarchy of the white population which are then exported out to be far more draconian for people of color so if we move from 1844 and then we move to like sort of the early 1900s when we get into the hate of eugenics and sterilization and we have someone like Kerry Buck and Buck v. Bell sort of I don't think it's an accident that the early um targets of eugenics and sterilization were white um because there was just a concern of white decline and it and then it moved from we're going to sterilize some white people to we're going to sterilize whole communities of people of color so places like Puerto Rico tribal um like folks in reservations sort of black women in the south um things like that I say it was probably pretty similar in Canada unfortunately in terms of the history yeah the very specific histories but very but absolutely yeah parallels we you know folk it's become common terminology to call prisons here the new residential schools and so this idea of a kind of repetition and new forms of different uh uh yeah different strategies or um processes of eugenics and um and uh but the the piece that you just described the way you just described it in terms of sort of the lowest on the hierarchy you know the treatment of the lowest on the hierarchy uh of the white population then being exported out and then even more sort of degraded forms really something that I'm going to hold I see there's a another oh hold on no I think that wasn't I thought for a second I saw a question I'm going to ask a lap a last one that at least comes to my mind and if someone has something that they're just burning to put up um we can give it a couple minutes I know uh we've got just a couple minutes left but as we talk about this I mean I think you've pretty thoroughly unpacked the idea of there being some obvious uh good bad binary in terms of whether um the route out of the um criminal law path is you know a therapeutic sort of more just or um more responsive um alternative but um one thing that I've been reflecting on is the attack that some folks have taken some scholars and lawyers working under the CRPD in particular the Convention on the Rights of Persons with Disabilities taking an approach at least I saw it maybe more prominent a few years ago but I maybe haven't been paying enough attention but um taking an approach to say that it's simply discriminatory to have this alternative path to carve out the you know not guilty by reason of insanity or not criminally responsible pathway as something that's discreet in particular to disability and what that analysis tends to play up are things like you know the uh indeterminate duration of um incarceration under that second path and the kinds of treatment that sometimes get hidden or muted uh but um it could go from you know from control of sexuality to other forms of of experience that can be prolonged including even after here in Canada you know even after there's been a formal uh sort of declaration of fitness for release to supervise community release but there's no spaces in the community because no one is prepared to sort of open those spaces uh so that's uh that's just I guess a question for you to I'm really interested in your reaction to that argument that this alternative pathway is somehow itself um discriminatory and in some you know I guess the the the further question as well if that's too kind of blunt to response what what's the what's maybe the better response using the kind of legal frames that we have yeah I think the classical answer to questions like that is as compared to what so I think the um I would agree in terms of the concerns of institutionalization that you flagged in terms of the indeterminacy and then process and treatment and then the lack of alternatives in the community um and I would agree with all of those I would say that the United States is not governed under the CRPD um although with um case law under the ADA in the Americans with Disabilities Act that has um a skepticism in terms of institutionalization so one of the big cases um Olmsted is described as the Brown versus Board of Education of Disability which does say that um unjustified sort of institutionalization is per se discriminatory and when I teach it I bring cupcakes that day that um it is brown which is our big sort of racial segregation case um in two ways one is I think sort of this ringing claim and justice and the other is what is the process and remedies that are actually going to happen so when it came to brown in terms of the all deliberate speed of integration it hasn't really worked so well um and then when it comes to Olmsted yes we have this language of unwarranted institutionalization but in terms of increased resources of giving people alternatives has really worked so well um so I think part of it is um and I think a lot about democracy is what is happening to people as wards right and that is going to be something that will I think perhaps always fall into this trap of if things are done on people and they cannot direct it then it's going to be draconian it's going to be stingy there's not a going to be a lot of alternatives and it is going to be like spaces will be of folks who are pariahs and the spaces themselves will also be pariahs right so the so someplace like Worcester uh lunatic asylum looks really beautiful from the outside seems really great at the beginning fills up with a whole bunch of people from prison and then a whole bunch of poor people a whole bunch of Irish people and then it becomes where they don't get any money and then no one wants no one else wants to go there so um I think part of it is like how do we think of democracy and disability together as opposed to just care and punishment the management of a certain part of our communities and then also really give scrutiny like think more in terms of this issue of visibility so on the one side institutions can be horrible and we I see in both countries we both have legacies of um the shock and horror of what happens within institutions that said though I think with the Rogers case shows this that horrible things can happen in people's families too and in their own houses and that can also be something that is a problem um and one thing that can be a question is sure that Amner's dad um had this as a secret that he was revealing in this court case right to save his son's life but well his son was being tied to trees and chairs they had neighbors they had family members that saw this happen and he was and for my it was just there right and that was something that did that was happening to him and people accepted that so it is of um the shift in terms of dignity and things that are like unacceptable right sort of knitting together that community needs to be something that is really hard to do it's a heavy lift but I think it does need to happen and segregation does lend itself I think to this idea of dehumanization so yes I would be like generally pro institutionalization but it is sort of de institutionalization de institutionalization but I do not think that it is something that is a panacea um and anytime that you have people that are just going to be subject to the the whims of others there's going to be a problem so thank you so much for that um and for the the talk as a whole I wish we um I feel like we're just launching on to a whole other um uh you know meeting and discussion that we could take a lot further around de institutionalization and the the cultural and political you know sort of aspects of remedy spurred by law perhaps you know as we've seen both in the states and here I want to remind people of professor belts um forthcoming book uh disabling democracy in america mental incompetence citizenship suffrage and the law 1819 to 1920 but once again I think that we learned so much um from looking at our our histories and it just helps us to maybe detach that little bit stand back from the present and understand it maybe imagine it a little bit differently so important um so uh before I say my final thank you I want to also remind people we have another seminar upcoming this month it's Friday November 24th and that is professor katie albrecht who holds a candidate research chair in health equity and social justice at st fx university and the title of her talk uh which actually I think we'll carry on from this one really nicely is accessibility legislation catalyst for culture change in mental health care question mark right so um unfortunately I can't ask you all to um audibly applaud but I know that you are with me and so warmly I'm thanking professor belt for this wonderful lecture today thank you so much radia thank you thank you everyone um I've really enjoyed this and I really appreciate it um and as Sheila said this is these are waiting questions that we did not solve here but I think the asking and really investigating matters so much so I'm glad that we were all together for this thank you thanks again take care bye take care everyone bye