The "mad" vs. the "bad" revisited: managing predatory behavior

Ever since the Englightenment, western democracies have maintained separate institutions for the "mad" and for the "bad." For the mad they provided protection and treatment, and for the bad, deterrence and punishment. During the past decade, however, increasing social conservatism and the apparent failure of the criminal justice system have resulted in a series of changes in social policy. In order to protect the public adequately from repeatedly violent predators, legislation has been introduced in several states that remands those predators to mental institutions on completion of their prison terms. Challenges to this legislation, based on ex post facto, double jeopardy, and civil rights considerations were effectively dismissed by the U.S. Supreme Court in Kansas v Hendricks in June, 1997. An effect, however unintended, of upholding these laws and of policy changes leading up to them, is that they have effectively blurred the separation between mad and bad. This paper details the following: 1) the events that have led to these changes in policy and law; 2) the preparations being made in New York State's mental health system to prepare for managing such predators when and if such laws are enacted; 3) the dangers and drawbacks these changes have brought in states where they have already been legislatively mandated; and 4) suggestions for alternatives that would reaffirm the separation between mad and bad.