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This week's episode raised a number of intriguing issues concerning insanity, criminal responsibility, and the underpinnings of criminal law.

Lindsay is appointed to represent Walter Arens (Richard Thomas, a.k.a. "John-Boy Walton"). Arens is a serial killer who brutally murdered five young girls twenty years ago. Found not guilty by reason of a mental illness, Arens is now petitioning for release from the mental institution where he has been housed ever since.

As a first-year law student learns, criminal law is designed to punish only those persons who have bad thoughts (mens rea) and who do bad things (actus reus). In theory, you cannot be incarcerated simply for intentions that you do not act on, or for acts that you do not intend. I could not, for instance, be punished for thinking about killing the person responsible for those Gap commercials. Nor could I be punished if I suffered from delusions and believed that I was big game hunting in Kenya when, in reality, I had shot that individual.

This theory has two problems. First, it little matters to the person who gets shot whether the shooter was delusional or meant to shoot him. Second, while the fact that someone committed a bad act can be proved by objective evidence, it is virtually impossible to prove what a person was thinking at the time he committed the act. People have been known to fake delusions (a la Harry Thaw or Vincent "The Oddfather" Gigante) to escape punishment.

As a result of the need to protect society, and the reluctance most of us have to believe that an individual really did not know what he was doing, persons who commit bad acts are generally incarcerated very much like prisoners even if they suffer from a mental illness, a fact noted in this week's episode. To meet with Arens, for instance, Lindsay must go through a metal detector and two locked, barred doors, past five or six armed guards, and into a locked interview room. This is more or less the routine that one would have to go through to interview an inmate at MCI-Walpole, the Commonwealth's maximum-security prison.

Defendants found not guilty by reason of a mental illness are treated like convicted felons in other ways. Under Massachusetts law, a person found to be incompetent to stand trial is generally committed for the same term he would have received if found guilty of the crime. The only distinction is that instead of being incarcerated at a state prison, the defendant is confined to Bridgewater State Hospital. The Court may commit a defendant found not guilty by reason of mental illness to Bridgewater or a similar facility for a period of one year. After that year is up, the defendant may be committed for additional yearly periods indefinitely. As this episode points out, such treatment of the mentally ill provides a distinction without a difference.

History shows a number of parallels in the treatment of criminals and the insane. Criminals used to be punished - really punished. Before the so-called Age of Reason, a convicted criminal might be flogged, whipped, burned at the stake, or have the name of his crime carved directly into his body.

One particular punishment stands out in my mind. On January 5, 1757, a domestic servant named Robert-François Damiens tried to kill King Louis XV, but succeeded only in scratching him with his knife. Damiens was convicted and ordered brought to a place where "the flesh will be torn from his breasts, arms, thighs and calves with red-hot pincers, his right hand, holding the knife with which he committed the said parricide, burnt with sulphur, and on those places where the flesh will be torn away, poured molten lead, boiling oil, burning resin, wax and sulphur melted together and then his body drawn and quartered by four horses and his limbs and body consumed by fire, reduced to ashes and his ashes thrown to the winds."

Ouch.

Enlightened societies created the modern prison and the modern asylum. These institutions physically separated criminals and the insane, who were removed from society to be "corrected" or "reformed" in prison or in hospitals like Charenton in France and Mary of Bethlehem (Bedlam) in England.

But I digress.

While this week's episode accurately portrays how treatment of the criminally insane very much resembles the treatment of prisoners, it was inaccurate in a number of respects. First, a jury decides Arens' petition for release; under Massachusetts law, commitment hearings are held before a judge, not a jury. Second, if the judge finds that the defendant should be committed to Bridgewater, the normal period of commitment is one year, not the twenty years Arens has apparently been waiting for his release. (While I am aware of no provision allowing a committed person to petition for release before the one-year period has expired, it would always be possible to seek release through a habeas corpus proceeding.) Finally, the episode raised the interesting issue of whether Arens has been cured. No Hannibal Lecter, Arens is a sweet, cooperative, model patient (he is John-Boy, after all) thanks to daily dosages of clozapine, an antipsychotic medication. Interesting or not, the issue of whether he was cured would not arise in an actual commitment proceeding. The relevant legal standard is not whether the person committed had been cured, but whether "the failure to retain [the patient] in strict security would create a likelihood of serious harm by reason of mental illness."

These small nits did not diminish the overall quality of his week's show, which continues to impress me.

Oh, and there was a second storyline revolving around Eugene's efforts to protect his son who is suspected of murder. Bottom line: He didn't do it.

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