Fairness for People with Mental Illness in Criminal Justice with Dr. Daniel Murrie

Episode Description:

In this episode of Never the Same, Dr. Tony Pisani sits down with Dr. Daniel Murrie, a forensic psychologist who is also Professor of Psychiatry and Neurobehavioral Sciences at the University of Virginia and director of the Institute of Law, Psychiatry and Public Policy.

Daniel is one of the most cited researchers in forensic psychology, best known for a landmark study that challenged a foundational assumption in his field: that experts retained by opposing legal sides can remain objective. However, the answer is more complicated.

They explore what forensic psychology actually is, what it’s like to sit across from someone facing the death penalty, why the US is in the middle of a “competency crisis,” and how a field changes its mind.

Guest: 

• Daniel Murrie is a professor of Psychiatry and Neurobehavioral Sciences at the University of Virginia, where he directs the Institute for Law, Psychiatry and Public Policy. He is a leading researcher in forensic psychology, with extensive work on evaluator bias, competency assessment, capital (death penalty) cases, and the intersection of mental illness and the justice system. He serves as a consultant and as a court-appointed special master, helping states improve their forensic service systems.

Host: 

• Professor Tony Pisani is a professor, clinician, and founder of SafeSide Prevention, leading its mission to build safer, more connected military, health, education, and workplace communities.

Referenced Resources:

• The Institute of Law, Psychiatry and Public Policy (ILPPP)
• Competency to stand trial — the 1960 Supreme Court case Dusky v. United States
• Competency to stand trial evaluations: A state-wide review of court-ordered reports
• Not guilty by reason of insanity
• Are forensic experts biased by the side that retained them?
• Evaluations of competence to stand trial are evolving amid a national "competency crisis."
• Bird by Bird by Anne Lamont 

Transcript

Tony: I'm very happy to have Dr. Daniel Murrie on the Never the Same podcast today. Daniel is a professor of psychiatry and neurobehavioral sciences at the University of Virginia. He's also the director of the Institute for Law, Psychiatry and Public Policy. So welcome to the Never the Same podcast, Daniel.

I'm really glad we're having a chance to sit down and talk like this. We've, of course, known each other for, almost 30 years.

Dan: Yes.

Tony: But, looking forward to getting a chance to dig into things maybe we haven't specifically talked about before.

Dan: Likewise.

Tony: And, so thanks for coming.

Dan: Thank you.

Tony: Dan, we're gonna start with something, very provocative and gutsy that you did about 10 years ago, and rocked the world of forensic psychology. But before we go into that, could you explain what is a forensic psychologist, a forensic psychiatrist, and what role they play in the justice system in the United States?

Dan: Sure. Sure. So forensic just means applied to the law, related to the law. So forensic psychology or psychiatry, are these disciplines applied to the law. And for psychology, you can imagine, this is so broad. Right? There are people who study eyewitness identification.

There are people, social psychologists, who might study false confessions. So much good work there. But for many of us who are clinical psychologists, forensic psychology means applying clinical skills to, to help answer a question about a particular defendant. Courts ask questions often related to mental health issues:.

Is someone competent to stand trial? Might they be eligible for an insanity defense? Questions like that, and forensic psychologists or psychiatrists are involved in answering those questions.

Tony: Okay. And we'll get into some of those, the definitions of competence to stand trial, insanity defense, and you can maybe help us understand how those happen, what that means for the people, what maybe, what it means for all of us in the public as well. So with that context, in this very highly cited study that you conducted, you recruited over 1,000... No, sorry, over 100,

Dan: just 100. Just 100.

Tony: just 100, oh but, forensic psychiatrists, and under, we could call them false pretenses, right?

You handed them identical case files and asked them to provide their clinical judgments. Tell me about the twist in this, in this study and what you found.

Dan: Sure. Sure. That's a fair preview of this study. So much of forensic psychology and psychiatry take place in adversarial context, not all of the work.

Tony: Adversarial meaning?

Dan: Meaning, in our legal system, two sides are battling it out. Right? And our legal system generally believes that's how you get at the truth, is that two opposing sides bring their best case, their best arguments. And sometimes those two opposing sides will retain experts, and in really contested trials, you'll hear opposing testimony from experts.

And so the public has always wondered, maybe even been skeptical, about expert testimony in our discipline and in other disciplines. This idea that it'd be really hard to be objective if you are retained by one side in these contentious-

Tony: And when you say retained, that's paid by that side.

Dan: It is paid by that side. Yeah. Yeah, absolutely. And of course, we all want to be paid for our work. People with expertise want to be compensated for that. Nothing wrong with that, of course. But you understand why the public is sometimes maybe skeptical when they see retained experts from any discipline.

Our field, of course, has these arrangements and have really historically been pretty confident of our objectivity even in adversarial work.

Tony: Okay, because when somebody says, "We'd like to pay you to do a, an evaluation," you're bound to do that as well as, and as accurately, and as truthfully and as objectively as you can, and your payment doesn't depend upon what you come up with.

In fact, it explicitly doesn't, right? You say, "I will be sharing what my true findings are and, and period."

Dan: That's the goal. Yeah, that really is the arrangement. Our ethical guidelines, really push us to strive for objectivity. Attorneys can take cases on a contingency basis.

If they win the case, they get paid. If they don't, they dont. Mental health professionals, other experts, should never be doing that.

Tony: No. That's a big no-no.

Dan: So it's really, it's really structured, and all in our field really pushes us to do this objectively and accurately as possible, right?

Tony: Ok. So what did you do?

Dan: That is an- I guess I, I explored that assumption, right? It is an assumption. We, we have taken that on faith-

Tony: That people are objective.

Dan: That we can be objective, yeah, in these arrangements. And at some point- frankly, this started because I would get questions about this, even as I was beginning in this field.

My colleagues in law school or business school might, say, "Hey, can forensic psychology..." and I would explain, and they would say, "oh, yeah, but, don't people just find what they're paid to find?" Which I thought was a very jaundiced, cynical perspective, and I explained, no, no, no, that's not true. We've got these ethical guidelines. I'm always seeing my mentors give attorneys bad news, news they didn't want. "Here's, here are my findings, and they're not what you hoped I'd find." So there, in my view, there wasn't some kind of rampant evidence of bias-

Tony: And nobody had studied it.

Dan: And nobody had studied it.

Tony: Yeah. How'd you do it?

Dan: It started with field observations, so just observing trials. In a particular kind of trial relating to sexual offenders. That was where this was easiest to study because you had two opposing experts giving some, a lot of the same test or instruments- and so we could compare the scores that those experts assigned. And they did systematically differ, right? Scores and input from prosecution-retained evaluators were different. They looked worse for the examinee than those from defense-retained.

Tony: Okay, so just observing it, you're like, "Okay, maybe there's a signal there."

Dan: When you do field studies, when you do observational studies, you don't really know the reason for things, right? And in those cases that make it to trial, this could be what we called selection effects, right? Maybe they made it to trial because there were differing opinions.

Tony: Oh.

Dan: Evaluators, they differ.

We can talk about that later, but maybe attorneys just selected the ones who were most likely to find favorable findings. So we don't really know certain things in science-

Tony: You don't know...

Dan: until we run a true experiment.

Tony: Yeah. So how, what was the experiment?

Dan: So the experiment, the experiment was essentially deceiving people, right? Research ethics, as you know, allow for deceiving people if that's the only way to study what you need to study, as long as you tell them the truth at the end. And so we recruited over 100 forensic psychologists and psychiatrists to believe they were consulting on these particular, types of cases, these are cases related to sexual offending, in another state.

We provided them some good training on some of these instruments. We had them come back to, to actually do the work- they all believed they were doing a large-scale consultation for some agencies in a- in another state. Really the only thing that would varied, the only experimental manipulation we would call it, is that when they met with this attorney, he told half of them in these individual meetings that they were working for the defense, and he told half that they were working for the-

Tony: Oh

Dan: prosecution.

Tony: Yeah, that's old school.

Dan: So everything, everything is exactly the same, except an evaluator, depending on which condition they were assigned to, might believe they were working for the defense or the prosecution.

Tony: But they got exactly the same file. So-

Dan: Exactly.

Tony: So you could really know what cau- if there is a difference, you know it was caused by their, who they thought they were being paid by.

Dan: Exactly. Exactly. Everything's held constant. You can never do-

Tony: Yeah.

Dan: That in the field really. but in this scenario, everything's held constant. These are real materials- Yeah ... real case files. They are scoring the same risk instrument. So it's replicating real practice-

Tony: Yeah

Dan: as much as possible.

There is a-

Tony: That's pretty brilliant ...

Dan: meeting with attorneys.

Tony: Yeah.

Dan: And, and we could run the experiment-

Tony: Yeah.

Dan: in this very strict way, but also in a way that we hoped felt ecologically valid, meaning like-

Tony: Nat- natural

Dan: the real world ... like the real world. Natural like the real world.

Tony: And what'd you find?

Dan: And so we find that it did make a difference. Meaning that there was a tendency for those retained by the prosecution to, to see the cases they examined as more high risk. Those retained by the defense were inclined to see these cases as somewhat lower risk. I wanna be real careful how I describe these findings because this did not apply to every single evaluator.

The effects differed across evaluators. There was not perfect reliability on these scores or opinions in general, but there was a discrepancy overall between sides- right? This-

Tony: So you really showed for the first time that this assumption of objectivity has to be questioned.

Dan: Yeah, it didn't hold up as, maybe we would have-

Tony: Yeah.

Dan: hoped or expected. Again, and this, I, wanna be clear that this wasn't-

Tony: Yeah.

Dan: dismal, that these weren't drastic, wild differences. But experimentally speaking, these were strong and meaningful effects.

Tony: Yeah. Yeah. Was that ... it sounds like a risky thing to do.

And I think, in previously talking about it, some people thought, "Dan, don't, don't do this. Don't do this study." Did, you get that feedback?

Dan: To some degree. This sort of line of research, right? Starting to explore bias was, I think, it elicited some kind of cautions at first, right?

Yeah. So when I was first starting to work on this, there were some senior colleagues who said, "Hey, this is, this is maybe not a good idea."

Tony: Why are you undermining us?

Dan: Yes,

I think, there was some

concern there. Now to be clear, I also wanna say that the field has responded really,

ultimately has responded very positively to this. I think has been really engaged in discussions about this. Many other researchers have worked to understand bias. So it, I think ultimately was a really positive reaction. But you're correct that in the early stages there were some warnings about, "Don't, you don't, wanna be the guy who does this."

Tony: Yeah. I'm almo- I'm like, equally interested in both of these things, that you... first of all, the how you got that idea to do this thing. I mean, people could be really mad at you for tricking them. Or, people could be upset that, this is a fundamental thing to our profession.

Whatever our own fields are, there are probably places where you have to take risks in order to pursue truth.

Dan: Yeah, I think... so I really love this field, right? I really love this work. I think it is fundamental to justice that we can do these kind of individualized decisions, right? That really take a close look at a defendant, that try to apply the best science we have, which is always imperfect, to give reasonable input to the court, right, that may be helpful. So there is, there's so much that I think is right and good about our profession, and it really... I wanna, I always wanna make clear in these conversations that it really is a love of this profession and this work and a sense of the value of this work that also made me want to look at it closely.

Tony: Want to critique it.

Dan: And-

Tony: Yeah, it's because

you cared about it.

Dan: Yeah. And so I think, I think that's a starting point for this-

Tony: Yeah.

Dan: is understanding that I really do value this, and think our field has a good bit to offer the legal system. That said, nobody can offer good input or guidance if they are complacent or overly confident.

And the observational studies really raised concerns and it became clear that we would need an experiment to really understand this, to really examine.

Tony: Yeah. I could really relate to this. And I wonder if people who are listening in our conversation could think about too, like in your own job, what are those pretty fundamental assumptions.

The one in suicide prevention is, that I sometimes call like a dirty little secret of suicide prevention is that almost all of it, almost all of the interventions and programs depend upon identifying people who are at risk for suicide. And, but we also know that many, if not most of the people who die by suicide, we aren't able to identify them.

Dan: Yes.

Tony: And so this, one of the things that some of my colleagues and I've been pursuing is, can we address suicide risk without identifying people who are suicidal, that hidden risk?

Dan: Yes.

Tony: But it's jarring sometimes to think about oh, so much of what we're doing is might be pointed in a direction that won't move the needle.

Dan: Yeah.

Tony: And it just makes me think about how do we take on... If we're, 'cause we're gonna move forward, we have to do things differently. And I bet there's something like that in every field.

Dan: Yeah, probably many things, right?

Tony: Yeah.

Dan: Probably many things. This has become such an issue in the broader forensic sciences. So much of what we do in psychology and psychiatry is, is sometimes not considered the hard sciences, right? It's, considered more soft. There is this other body of science-like knowledge that is often used in the justice system: fingerprint analysis, DNA analysis. There has also been great faith in that kind of work, great confidence in

Tony: Oh, like the psychologists, sure, they're good, they're gonna do-

Dan: That's subjective. That's muddy.

Tony: But this is like,

Dan: this is hard science.

Tony: Yeah. but did your work sort of-

Dan: Not, I mean-

Tony: inspire some of the-

Dan: not so much. Even unrelated to my work, of course, there had been this kind of growing movement to really look at these hard forensic sciences, fingerprints, DNA.

And more and more that's just raised alarms, So even, even as far back as the early 2000s, Congress mandated a report on this and found that these procedures in which our system places great faith were largely untested. They were not tested in the ways that other kinds of scientific procedures are tested.

They were very subjective.

Tony: Oh. So they also could be sensitive to biases or-

Dan: Certainly.

Tony: Who was paying the per- the even-

Dan: Certainly.

Tony: Even those things that seem like they could be so objective.

Dan: Yeah. Yeah. Lots of really clever, rich work on this, right?

Tony: Yeah.

Dan: Looking at contextual biases in how somebody compares fingerprints, for example.

Tony: Yeah.

Dan: And, and so yeah, all that to say these fields, all, all of our fields, any field that involves human judgment, warrants a close look at that judgment.

Tony: Okay. A lot of what you do, and what forensic psychologists do, in this area that we've been talking about involves some pretty hard work, hard situations.

I know you spend a lot of time in prisons. And we're gonna talk in a bit about, including people who have committed really heinous crimes and are even those facing the death penalty. So I'm curious, how does a person get into that? Probably nobody wakes up and they're eight years old and says, "I wanna be a forensic psychologist."

For you, how would you trace that back? I know, I think it went back pretty-

Dan: Yeah.

Tony: pretty far for you, or?

Dan: I had, I think a clumsy accidental path in, into this work. I do, I do now see people, have some wonderful students or trainees who knew early on that this is what they wanted to do.

Ah.

I think this field has become visible in ways that it probably wasn't when we were-

Tony: Oh, like crime-

Dan: young.

Tony: TV shows about real crime and-

Dan: For better or worse.

Tony: Yeah.

Dan: I think some of these are really distorted ideas of what the work might be. But I do think, I certainly know many-

Tony: That's interesting.

Dan: Bright younger professionals who did know this early on, right? Who did have a real interest in psychology, in law. I think came into this with clearer eyes. Not so much distorted by TV shows and, so there are wonderful professionals doing that now. My, my path was more indirect, more clumsy.

I, but in retrospect, it fits, like so much of our experiences do. Yeah, grew up in a home that had a lot of foster kids coming through and I think that sort of, at an early stage, sensitized me to this idea that people have very different types of life experiences. I think there was always some sense of curiosity or empathy about that.

In college, did not have a clear path. Had some interest in law, but mostly in human services. Did psychology and social work majors and ended up in these summer jobs, where I would work in group homes or, a favorite was a wilderness program with kids who'd gotten in trouble in the first time.

And, and I just thought this was the greatest work ever. I got $50 a week to go on wilderness trips and work in the rope course, and I just, I thought that was the greatest. And I couldn't quite figure out how to make a career out of that, and I did though get this sense that I wanted to do something, some kind of graduate study in this field and did exactly what I advise students not to do. I ultimately went towards a PhD program without a clear sense of how I would use that. I picked the longest, slowest route even though I didn't know exactly what I wanted to do with it. But did, as you know, end up going to graduate school at the University of Virginia, in a clinical psychology doctoral program that then allowed some really good exposure to this field with some great mentors and great access to the institute I'm now at.

But that was not a master plan.

Tony: Yeah.

Yeah. I think that's, that's helpful. I think it's helpful to hear for people. And I think one, one of the things that often comes up in, kind of career mentoring, is that you, you can't steer a car that isn't moving.

And so you didn't take exactly- who would've known what the exact right action would've been?

Dan: Yeah.

Tony: But you took an action .

Dan: Yeah.

Tony: And went to maybe, "Okay, I'll just go to this direction," and once the car is moving, then you can start steering. I think the, the sort of the worst thing sometime is just, I don't really know what my next step is, so I don't take any steps.

Dan: Yeah.

Tony: So that's really interesting to hear. And, you mentioned, as I know, because we both went to that same graduate school and were there for, for some of the same time.

 Dan: Yes.

Tony: I wanted to switch into this, it's a long way from a wilderness program with, with youth who have offended maybe for the first time all the way to being involved in situations where somebody is facing the death penalty, capital cases. And you have quite a bit of experience with that. And so I'm just curious, we wanna hear a couple things about that, but one is just like- what is it like to sit across from somebody who is facing the death penalty? What's it like to try to understand them, answer questions for the court about them?

Maybe just talk about what that's-

Dan: Yeah.

Tony: What that's like, what we might expect or not expect.

Dan: Yeah, that particular niche of, capital-

Tony: Yeah, yeah.

Dan: Work. So that, that context, right? These are... in the U- And I know all, not all your listeners are in the US.

Tony: No, about-

Dan: In the US, we have capital punishment-

Tony: About half, yeah.

Dan: in roughly half of the states, there is capital punishment still in the United States. that had been steadily declining. There has been an uptick in very recent history due to federal changes. And it, it does become a pretty specialized niche of work because of some particular legal questions that only or primarily come up there, right?

And one of these is this concept of mitigation. The US Supreme Court has been very clear that if the state or the federal government is going to execute someone, or they're considering that, then the jury has a right to hear anything that might possibly prompt them to spare that defendant's life.

Because the kind of cornerstone of these proceedings is supposed to be an individualized decision-making, right? Historically when the court ruled these unconstitutional briefly and then allowed them again, the premise was that there would be individualized decision-making that wasn't capricious.

And what happens is there, there evolve practice standards in, in law, in, in our field that allow for an opportunity to tell this defendant's story. how did they become someone who now faces capital charges? And-

Tony: And are those are pretty much always around murder?

Dan: Always around murder. Yeah. Yeah. At this point, you're- one is only eligible for the death penalty for murder and even particular kinds of murder at that, right? Murder of a law enforcement officer, murder of multiple victims, murder in the course of another crime. These will vary a little bit across jurisdictions, but there have to be some special circumstances that make one eligible for that, that most extreme punishment.

Yeah, there are many ways in, in- in which this work is, it's a much more intense version of what clinicians are often doing, which is trying to understand how someone came to be where they are. And one of the things I try to make clear when teaching about this to, to evaluators, to judges, attorneys, is that this is not just a matter of telling sad stories.

Some of this is sometimes dismissed as an abuse excuse. As if, telling a sad story somehow exculpates someone of responsibility.

Tony: Excuses them.

Dan: Yeah. yeah. And, first and foremost, this isn't making excuses. The person has been found guilty by the time the court is considering mitigation.

So it's not about making excuses. They're certainly criminally responsible. But it is about understanding context. And for clinicians, psychologists or psychiatrists who become involved in this, it's also about linking that history with what science tells us. So a defendant's abuse certainly may be sad, and there are terribly poignant stories about this, but the clinician's role is also to explain, "here's what science tells us about those kinds of experiences; here's how we know it may shift a person's trajectory towards certain outcomes and make other good outcomes much more difficult." And so there's always this sort of translation from the individual case to what science tells us and back and forth, that we hope is part of education.

And of course, a jury can do with that what they decide to do with that. But that's, part of the role in those cases.

Tony: Yeah. So tell me about it, what it's like. I'm sure you do hear very, very difficult things, right? And you probably have to he- also hear about what happened in the crime itself.

And so what is that like to sit across from the person as a-

Dan: Yeah.

Tony: as a person and as a professional?

Dan: Yeah, I think, I think two, two things are true, right? The first thing is, that's true is there is a way in which it's just like talking with any other person, right? Each of us bring these complex histories.

Each of us have ways we, we try to navigate our lives. We, try to minimize our responsibility or unders- so the first answer I think is, that, oh this is, it's fundamentally like talking to, anyone. There are very, few instances where I have felt like, oh, this is fundamentally different from other human encounters.

This person is thinking in ways that I just could not recognize or understand. That's a very, rare scenario. For the most part, talking with a defendant who's, even who's coming to terms with having done something terrible, is no different from talking with a friend who's coming to terms with having made a mistake, right? The- and

by that I mean, I don't mean there's friendship in this professional role, but the mechanisms, the way of thinking about things. these are... humans all do the same things, right? They all try to make sense of their history.

They all try to make sense of their behavior through one way or another. So much of it is just generalizable, right? The same experience you have with your patients or clients, so much there is universal.

Tony: And then there's also another-

Dan: Yeah, and then there's another part

Tony: dimension to this where-

Dan: Where you mention-

Tony: 'cause the context.

Dan: You mention, yeah, that there are ways in which this probably feels hard, and that's certainly true, right? There is a, this involves just exposure to trauma, right? The trauma that a defendant has caused, the trauma that a defendant has usually experienced, that, that kind of contributed to them being in that place.

There is a more vivid look at some of the context, and structures, and systems that, that can be so damaging- to people. right? Whether these are particular neighborhoods or institutions or family patterns or patterns of violence or behavior. And I think you're right to think ooh, that would feel more highlighted in these context, that would feel more vivid and just often deeply sad.

I will sometimes get questions about whether work is, this kind of work is somehow scary. But by and large, my, my primary emotion is just sadness. There's just deeply sad material in, in the effects of a crime and also in, generally in what leads up to it.

Yeah.

Tony: Yeah. Thanks for sharing that. I really appreciate that. another thing about this context is, I would imagine that the person themselves, they have a lot on the line here too, and I wonder if they're... like what is it like to try to learn about somebody, when they have also probably...they're wanting to share certain things with you and not others. They may be scared themselves. Do you have to build trust? How do you build trust in a circum- I would imagine, it's probably very- not a very natural environment -

Dan: Yeah. Yeah.

Tony: to have a conversation about... I'm sure they've talked with a lot of people about it by that time.

But could you talk about that part? Like the-

Dan: Sure. I think we're speaking to a specific context of capital cases, death penalty cases, right?

Tony: It's- Yeah. That probably goes broader-

Dan: It differs-

Tony: But you can just take it whatever direction you wanna take it-

Dan: No.

Tony: is fine.

Dan: Some of the work that forensic evaluators do is more brief and circumscribed, right?

There are very narrow questions where it does not make sense, it wouldn't even be appropriate to go into all sorts of history of the most difficult life experiences. in these capital cases where the explicit goal, the legal command, is to look for mitigation, you're right, that does take building rapport, right?

It is, It would be so unnatural for a stranger to come in and you tell them your most difficult moments. And so there's certainly some rapport that's necessary, the way there is in other clinical work. I think there's just some discernment involved because people respond to this very differently.

I think a common assumption would be that a defendant in that position would want to just tell you every sad, bad thing and elicit sympathy and say, "Here's how hard I had it. Here's..." that is usually not my experience. Usually, defendants in this position- well, let me say many of them are self-protective.

They are protecting their family. They do not want to portray their family poorly, even though that family may have done them great harm. They do not necessarily wanna portray themselves as vulnerable. Some are clear about saying, "Look, I did what I did, and there's no excuse," I don't want somebody to make some excuse." And of course, that's not our role, but it, there is a, a concern about things getting spun that way in, in courts. And it's also just true that many defendants don't know what in their history is abnormal or unusual, right?

And, that's why this work involves so many other collateral interviews and reviewing records and things like that, where you see a social worker making notes about them as a child and talking about what they experienced. Or you might talk to a partner who says, "I'd, I've never seen a family like that."

But the defendant themselves may not even know what's abnormal. So that's, yeah, part of the process you're asking about, really involves a 360 view from other sources. And it does require repeated conversations with the defendant to hear more about their perspective.

And that perspective's always limited, just like ours are, right? We don't have perfect insight into what happened, don't have perfect recollection, that sort of thing. So it's, it's that kind of, I think, common assumption that they would be just eager to give any excuse. That does not tend to hold up.

There certainly are some portion of people who exaggerate, lie, are misleading about symptoms or experiences. That's certainly a part of the work, too. But I'm always quick to say the other, because I think the public is pretty quick to assume there's always dissimulation there or some kind of dishonesty.

And the truth is there are lots of kinds of dishonesty, right? One is, one is, a lack of insight and not even knowing what was in the past or not wanting to share things that are vulnerable, all the way to the other end of the spectrum, which is exaggeration, misleading-

Tony: Yeah

Dan: purposely.

Yeah.

Tony: Yeah. do you get to see the results of, as I assume, you go into court and you share about what you learned, you, you submit a report to the court. Do you get to learn how the court receives those and what happens to the person?

Dan: Yeah. in these death penalty cases, that's true.

There, there's other work where evaluators wouldn't always see what happened. These are litigated so heavily. There is a way to, you're almost always aware of the, at least the first outcome of a matter. But it's, it's, also true that just a slim minority of these actually go to trial.

So in, in our system overall, the vast majority of cases are resolved with a plea deal. Vast majority. Trials are rare. 5% or less of criminal matters end in trial. And so even these death penalty cases, they are tremendously time and resource intensive. They cost jurisdictions millions of dollars.

And so there is, there are many reasons that both sides want a resolution, right? They want a deal. And so a really common scenario is that these end with a plea agreement for life without parole.

Tony: Even at the mitigation stage?

Dan: Well, it's interesting. So-

Tony: 'Cause I thought it had... Yeah, I was understanding that had already been resolved.

Dan: It's interesting. So death penalty cases, if they go to trial, have a guilt phase and a sentencing phase. Those are two different phases, although they often happen back to back. And mitigation only comes up in the sentencing phase. It's not relevant to guilt. But because these things happen back to back, all that mitigation work has to be done beforehand. And so that, that work has to be done, and in any, almost every scenario, there is some work before trial, between the sides to look for some sort of plea agreement. And the defense may, may share some of this mitigating material from all sorts of sources, right? including a forensic evaluator's work, but perhaps other information as well, may share that with the prosecution.

So that may inform a plea agreement. The federal government requires a particular set of steps to decide whether something will be pursued as a death penalty case. And so there's many opportunities in these processes, to reach a resolution before trial. And that is by far the more common scenario.

It's a very slim minority that, that proceed to trial and then have that sort of sentencing phase. Now, of course, when that happens, you do... any of those happen-

Tony: That's public.

Dan: You know the outcome to some degree. Yeah.

Tony: Yeah. Yeah. Having been that close to this, do you have a personal view on the death penalty?

Dan: Yeah. Yeah. Sort of a

Tony: Want to talk about?

Dan: a philosophical-

Tony: I don't know, just, I'm- ...

Dan: perspective on it or a value perspective?

Tony: Yeah, just curious of what you-

Dan: Yeah.

Tony: Do you feel comfortable talking about that?

Dan: Yeah, it's a little, it is a little tricky to talk about. It's a fair question and it would be a fair questions for attorneys to ask about my role in these.

I, so one of the things that's particularly difficult when we think about the death penalty in the United States is the ways in which it is unequally applied, right? So in, in principle, this is always to be reserved for the worst of the worst offenses. And there, there are some offenses and scenarios that you look at and you think, "Okay, this is...

I agree. This would be the worst of the worst scenarios," right? Planful multiple homicides. There, there are certain offenses that, that hap- that you see in these contexts that are truly egregious, and may fit what the death penalty was designed for. But by and large, the data is pretty clear that the death penalty is disproportionately applied in, in any number of respects, right?

Tony: Tell me, Dan, what do you mean by that, disproportionately applied?

Dan: And you've, many people are, familiar with this. We know that, race seems to play a role, right? Death penalty is more likely when the victim is white, or when the defendant is a person of color. We know that the death penalty has featured some error, death sentences have featured some error for...

I believe the figure is, for every eight sentences, there is one exoneration. Meaning that one, one in nine, one in eight, maybe, people sentenced to death is exonerated.

Tony: Exonerated meaning later found-

Dan: Meaning found not- ...

Tony: like actually they didn't do it?

Dan: to have committed that crime.

Tony: That's a lot, actually.

Dan: That seems if you were told-

Tony: Given howa big, long, involved process that is ...

Dan: You're exactly right. So I think, it, it seems to me, like a high rate of error for a significant outcome, right? Now, maybe if somebody told you there was a one in chance, one in eight chance of rain today, you wouldn't bring an umbrella and you wouldn't worry about it.

But if somebody told you that your next flight has a one in eight chance of crashing or not landing safely, you would never get on that plane, right?

Tony: So, the, the, odds, the consequences matter-

Dan: They do matter

Tony: when you take into account odds.

Dan: Yeah. Yeah. And, to think that there's one exoneration for every eight death sentences, that seems like a pretty high rate when we're talking about the most serious consequence, right?

Tony: Yeah.

Dan: So there, there are a number of issues like that, that make it hard to think about the death penalty in strictly philosophical terms, right? The ways we have operationalized it have been prone to, to error. It's, I think most observers would say it is disproportionately applied to poor people of color.

And so it, it is... I- it's hard for me to remove that. Now, I have sometimes tried to think about this in this strictly philosophical perspective, in which, are there some crimes that are so heinous that might warrant this as the only appropriate punishment? And I'm not even against that logic.

I'm not somebody who would necessarily say that philosophically there never should be a death penalty, but it's hard for me to even get to those discussions-

Tony: You can't even get there.

Dan: Given the system we have now.

Tony: Yeah. Yeah. Thanks for talking about that-

Dan: Yeah

Tony: and helping me learn about that. Looking at some of these other aspects of the legal system and your really unique window into, into different things that we hear about, but don't really get to see from the inside. One of those is this idea of, not guilty by reason of insanity.

You've been involved in these kinds of, of situations. Most legal systems, from what I understand, not just in the US, have some concept around this.

Dan: Yes.

Tony: They might differ a little bit, so some of our listeners in other areas will have to tweak a bit. But, could you explain that concept and, yeah, what's behind that?

Dan: Yeah. Yeah. All of these concepts have deep philosophical roots, really are rooted in philosophical and even humanitarian ideas about when it's right to punish someone or not. And for the insanity defense, this is dated back... some version of this idea has dated back, hundreds of years.

And it acknowledges that not everyone is equally culpable.

Tony: Culpable?

Dan: Culpable meaning responsible. By and large, the vast majority of people are fully responsible for their behavior as we understand it. But even hundreds of years ago, the law started to recognize that there are a few people who seem to have done things that they fundamentally did not understand, or they understood them in very confused and distorted ways, very bizarre ways due to serious mental illness.

And so the concept of not guilty by reason of insanity is also known as criminal responsibility because it can mean that somebody is not criminally responsible. They are not guilty, because of severe psychiatric illness impairing them in a very particular way. And generally, again you're right that these vary across jurisdictions and countries, but generally speaking, somebody is not criminally responsible or not guilty by reason of insanity if they had such a severe psychiatric illness, so that's the threshold condition is a severe mental illness, that they didn't understand what they were doing.

They didn't understand the nature, character, or consequences of their act, that's a common phrase, or that they didn't understand that that act was wrong. Some some jurisdictions also say, or that they couldn't control their impulse to act. They couldn't keep from it. And you'll see it's, it is a, funnel that narrows.

It's not just that you have a mental illness, or a very serious mental illness. It's not just that it was active at the time of the crime, but that it actually distorted one's understanding so bad that they didn't understand what they were doing or didn't understand that it was wrong. They thought it was somehow right.

And so an example might be someone who kills their roommate. A horrible act that is clearly legally and morally wrong, but they did because Their schizophrenia, their severe mental illness left them with a delusion that this wasn't actually their roommate, it was a demon or an alien that had replaced their roommate, and that the only way to save their true roommate was to kill this sort of body that the demon was occupying and free their real roommate.

Okay, this is a hypothetical but very similar to, to real cases and the very slim portion of cases that would qualify for an insanity defense. And I think publicly, the public, this is, may- maybe this is where you're going. The public is so prone to misunderstand this concept.

You'll see mention of it in the news. It comes up a lot in crime movies, right? There's a kinda prototypical thriller or horror movie that shows this kind of conniving, killer who then pretends to be insane and gets away with an insanity defense. And of course, the insanity defense is actually really rare.

The public estimates that it occurs in one out of four cases. One out of four criminal cases, this would be millions.

Tony: When they survey people-

Dan: Yes.

Tony: guess how many, how often this happens, in general, people say one out of four.

Dan: Exactly.

Tony: What's the-

Dan: The real number is closer to one out of four of 1%, meaning 0.25% of-

It doesn't happen very often. Doesn't happen often at all. And, of course, again, those are very narrow criteria. When someone is referred for an insanity evaluation, when a defense attorney requests this, it's about 10 to 20% evaluators actually offer opinion supportive, so-

Tony: And that's when somebody has already... like-

Dan: Already referred.

Tony: Yeah, yeah.

Dan: So it's a s-

Tony: So the public's probably about 1,000 times wrong.

Dan: Ex- roughly Yeah. Roughly on this issue.

Tony: Something like that.

Dan: Yeah.

Tony: A- and, and-

Dan: So we do not have a crime wave due to too many easy insanity defenses. That's not- that's just not a worry.

Tony: That's... Yeah. We have a, we have c- we have crime problems, we have a lot of problems, but it's probably not-

Dan: Yeah

Tony: Yeah, not, due to that. And how hard is it to, to know?

Dan: To know?

Tony: If the, they are, the person was,

Dan: Oh, if they truly meet criteria for this-

Tony: Yeah.

Dan: in, in an evaluator-

Tony: Yeah.

Dan: Perspective. Yeah, these too, one of the premises of forensic evaluation is you're not, you're never just, relying on someone's self-report, right?

Never just, "Tony, tell me what happened." Well, okay, that sounds, that sounds compelling. I hear you, right? I would always, before speaking with you as the defendant, have read your records, read the police reports. These days I probably would've seen all body cam footage from the times you were arrested.

I might have seen security footage, which is ubiquitous. And so there is a great deal of information that evaluators can and should be bringing to these evaluations. One sort of textbook on this calls them sanity investigations, not interviews or evaluations, because there's so much other data, that relies on them.

And these, there are good practices for doing these. None of them are perfect, right? 'Cause we're trying to figure out a mental state back in time, and sometimes there is ample evidence depicting that. Other times there may be no living witness. The person themselves may not have a great account and it is more murky.

This is one of those scenarios where clinicians don't always show perfect agreement because there's a lot of inference required. But there are good practices to make those inferences as strong as possible.

Tony: I'm sitting here and I'm thinking like, "Oh, I'm so glad this guy is part of the system."

These are such important decisions to be made and I, and like it increases my kind of confidence to know that somebody like you is putting so much into it. And then the system is requiring that we, that you take into account all of the, and really look into this.

Dan: Yeah.

Tony: And I know that you also help to train other people to do that. So let's talk about, maybe a different, legal concept and what you've learned about how to prepare other people to do this. Because, I'm sitting here, I'm like "Can this, can Daniel be part of, every case in the world?"

Because you can hear, just anybody listening can just see how thoughtful and thorough you are.

Dan: So that's so kind, but that is not, that's not unique to me, right? That's the field. That's the job. So thank you, that's very kind. And if you'd swapped out, anybody else, they would be, talking about the many types of things you would need to explore to make these-

Tony: Yeah

Dan: decisions.

Tony: Yeah. That's helpful. That is helpful because, we do wanna know that this is a problem in so many different areas of life and society, and especially certain generations, where there's just a lot of skepticism-

Dan: Yeah.

Tony: about stuff happening in the system.

Dan: Yes.

Tony: and I know you're also concerned about things-

Dan: Yes

Tony: in the system too, and are doing a lot of work in that. But it, what is with, what is your- I don't know if you can make this, so I, know this is, probably an impossible question. I ask a lot of impossible questions as part of my, part of my job.

What is your overall assessment of is this stuff fair? Is it legit? Can we feel, as people who don't go to court or prisons or... what's going on there is, really trying pretty hard to get the right thing? I don't know how to say it.

Dan: Yeah, it's such an easy question. I'm s-

Tony: Yeah.

Dan: and you mean with respect to these kind of mental health related questions, right? The clinical... I guess that's, all I'm-

Tony: Yeah, just-

Dan: That's all I'm competent to speak to-

Tony: you can take any direction that, that feels best to you.

Dan: Yeah, I think there's two...

I mean- I realize I'm often answering it by saying, "Hey, there's, two things that are true. They seem in tension, but they're both true." And I'll answer that way again. So on the one hand, I want to reassure, right? And I want to say, hey, when I look at public perceptions of some of this, when I read the comment lines below a newspaper article, which you should never, ever do if you wanna feel good about humanity. But when I do that, I want to tell the public, I want to tell your listeners, whoa, whoa, whoa these sort of most cynical, negative, caustic interpretations are just, they're so wrong. And in some ways they're really ignorant. And I mean that respectfully.

Tony: Yeah, uninformed.

Dan: But it's uninformed. It's really missing. I think, again, I think the insanity defense is an excellent example of this. Nobody can just say, "I have a mental health problem," and not be held criminally responsible. We d- we do not need to worry about that. Nobody can just say, "I have a mental health problem.

I'm confused. I'm not understanding, therefore I'm not competent to stand trial. You should freeze all these proceedings." The sort of worst pictures the public has about crime and criminals and mental health are really distorted, right? The idea that mental illness is always associated with danger is vastly oversimplified and misunderstood.

So there's so much good news here I wanna say, that no, these cases and claims must be getting a very careful look. Yeah. And they generally do. Generally so. This tension, the other side of this, that you could probably anticipate, is we all have room for improvement in the justice system, right?

It is a, an overburdened, spread thin system that is trying to handle too much. There are, you know, like so much else in public health and social policy, the water flows through the path of least resistance. And so there are some things that happen because they are efficient and they're easiest on everybody, but they're not necessarily right.

They're not necessarily the way things ought to be. Every decision has the risk for some error. Everything has some subjectivity, right? And, in a way, we value that and want that. You want a judge to be able to make subjective decisions about a case, but only up to a point, right? We don't want that too much.

And so legal scholars will, talk to you about how we've, we give great sentencing discretion, and then we try to rein it in with guidelines, and then we have to give more discretion, and then we try to rein it in. So there is always this tension and effort to improve these. I think many of our, us think that our work is partly to, to identify the weak spots and improve them.

But that's, rarely is that like an indictment on the full system, right? There are areas for improvement, just like we might think about with the healthcare system or any other complex system. I think of healthcare and I am amazed that I could have a surgery for something that would have killed me in decades past, and I'm up and moving the next day.

There are things that are amazing. And of course, we also know there's things that are terrible about our healthcare system, that are inefficient and harmful even. And, and so again, I think, part of our role, I know part of your work, is to take a complicated problem and just chip away at it day after day, in ways that try to move it in a better direction.

Tony: That's really helpful. And what I understand is you-- there's been two directions that your work has gone to, to, to improve that. One is through training, and the other is through informing the systems, policy makers, people who are running things. And that's like the most recent thread of your work.

So just circling back to that training part, I know you've done a lot in the area of, it's called competency assessment. I wonder if you could talk about that concept, what you think, maybe people misunderstand about it, and then what you've learned about passing on those good practices that you described.

Dan: Sure. So competence in, in, in this context, there's different kind of legal competencies, but we're usually referring to competence to stand trial. Fitness to stand trial would be the term in Canada and some other countries. But is someone able to meaningfully participate in the proceedings that address them?

Tony: So not about their crime but about, can they-- the whole court-

Dan: Exactly.

Tony: The whole court.

Dan: Exactly. And I'll say a bit more 'cause it is one of those common questions. In fact, it's much more common than an insanity defense. This is the most common forensic question is whether, this person is competent to stand trial this is all rooted in a 1960 Supreme Court case that says, look, it's not enough that the defendant's just m- oriented, knows what time and place they're in.

The defendant has to have at least these basic skills, has to understand the, have a basic factual understanding of the legal system, like how does this work in very basic terms. A rational understanding, they need to get it in a rational way that's not totally distorted by symptoms of mental illness.

They need to get how these facts apply to their own case. They need to appreciate that at a very basic, simple level, and then they have to be able to assist their attorney in mounting a defense. They don't have to be a law scholar. They just have to be able to tell the attorney, "Here's what might be relevant," "Here's what I remember.

Here's what happened," that sort of thing. So it's a low bar.

Tony: Low bar meaning?

Dan: Meaning, almost everyone you know is competent to stand trial.

Tony: Okay.

Dan: Vast majority of people, but when struck by severe mental illness or when someone has an intellectual disability, they may not meet those criteria.

It's usually not that they don't have a factual understanding, that they don't know what a judge is, but often their rational understanding is distorted. Maybe they have delusions, which are fixed false beliefs attributable to psychiatric illness. Maybe they have severe paranoia and they think their defense attorney is working against them.

or maybe they are so symptomatic and disorganized that they can't help their attorney even by just engaging in a rational conversation. And again, as a psychologist, you've seen people who are psychotic, who have a severe psychiatric illness, cannot communicate in a way that's based in reality.

They would often not be competent to stand trial when actively psychotic. And again, I think there's, sometimes the public will see this as some kind of, soft on crime, overly sensitive mechanism. This too has been around hundreds of years, and it's really rooted in this philosophical idea that you would not,

you wouldn't punish somebody if they can't understand what's happening and why they're being punished. A parent wouldn't pick up an infant or toddler and punish them for doing something that they didn't understand. And in the same way, we wouldn't drag somebody who is actively psychotic through these proceedings if they just have no understanding of why, right?

It's, it seems morally wrong, but it also increases our chance of error. There's certain information we need from them that we couldn't get. We use this justice system. And one scholar, law professor Richard Bonnie, who's a father in this field, would say it offends the moral dignity of the court to do that.

Almost like you just wouldn't, you wouldn't be a bully and pick on someone who doesn't understand it. It offends the moral dignity of the court.

Tony: Like extreme intellectual disabilities and they're-

Dan: Yeah, just not-

Tony: It just se- yeah.

Dan: Yeah.

Tony: There's a kind of a, It just feels just so cruel.

Dan: Yes.

Tony: Interesting. Okay. So what about preparing people to do that?

Dan: Oh, so this, that was the concept of, of-

Tony: Yeah,

Dan: competence to stand trial-

Tony: That's helpful.

Dan: or really adjudicative competence because so few people actually go to trial.

We might call it fitness to proceed or adjudicative competence.

Tony: Adjudicative.

Dan: But this is a real workforce need, right? The demand for these services has increased greatly. We can talk about this in a moment. But there has become a need for training for this. Many states need this desperately, need more people doing this and doing it well.

And so that, yeah, that too has been one of my favorite roles is helping states, helping teams, prepare to do this kind of work well, in ways that are, certainly efficient but also appropriate, focused, careful. And then make the accurate calls in these cases that really protect the interest of justice, right?

We, don't wanna push somebody through if they don't understand and we don't wanna delay proceedings any, any further. For the good of anyone, we don't want to have unnecessary delays.

Tony: Yeah. You, you said, it's, this is, these, demand for this has increased. Why is that?

Dan: Yeah. This is, and I think this is maybe where we're probably shifting from forensic to general clinical issues.

Meaning the, demand on the forensic system is probably a symptom of something else. And so what I mean by this is, in the past few decades, there has been a tremendous increase in court orders for competence to stand trial evaluations. There are more and more requests for these You could say that, oh maybe the courts are just becoming more aware of mental illness, or attorneys are getting more savvy or something.

But it's not just that. There's more orders for these evaluations, it's that a greater portion of people are then found not competent. Okay? So these weren't frivolous evaluations. There's actually more people are found so severely ill that they're not competent. What happens then is courts need to order treatment.

They need to order restoration services. '

Tony: Cause they wanna get them to that point, where they are.

Dan: Because they wanna get them to that point, right? We want them to be better, certainly for humanitarian reasons.

Tony: But also so that they can answer for what they did.

Dan: Exactly. Exactly. And the courts want that.

That's a fair, that's a fair thing to want, right? So they are ordered to treatment. Treatment has historically happened in state psychiatric hospitals. That's been the normal place for this. Generally, incompetent defendants are psychotic. They need anti-psychotic medication. Many of them need inpatient treatment.

And the demand has drastically outpaced the supply. So we end up with these long waits where people may be waiting in jail, often without treatment. Some jails will have treatment, but often they wait in an untreated condition. They get worse and worse, sometimes waiting months or even years in a few states.

And you can imagine this is a very long time to wait on treatment, particularly in a jail, which is a stressful place for anyone. And so this dilemma has been called a competency crisis. We would think of it probably as an actual public health crisis, right? People needing treatment, waiting too long.

Many states, almost half the states now have lawsuits about this, right? Suing the state to say, "Hey, you've got to find a way to get these people treatment sooner and reduce some of that suffering that, that happens when you've got untreated psychiatric illness."

Tony: So I know you were important and high level appointment as a special master in the state of Colorado.

Was it related to this-

Dan: Yeah.

Tony: Yeah ... kind of issue?

Dan: So that,

Tony: Without getting into the specifics of that state, but-

Dan: Yeah. Yeah.

Tony: Is that the kind of idea?

Dan: That is. Yeah. Yeah. So that's, Colorado's one of many states with these kinds of lawsuits and that is a state in which me and my colleague, Neil Gowensmith, were appointed as special master, which is a monitoring and coaching function to help a state address these problems.

Tony: Yeah.

Dan: Yeah.

Tony: So tell me about this. The, so it's the problem is that there are people are waiting in jail to get into the hospital? Is that the story?

Dan: That's usually the story. That's usually the story. Now, we could... this crisis has prompted or accelerated some other developments, which are good.

First, again, historically the default was that everybody got sent to the hospital for restoration if they were found incompetent. In truth, not everybody needs to go to the hospital for that, right? Some people can be treated in the community. And so if somebody was already eligible for bail or bond, they should be able to get this treatment in the community, and that, that has started to happen, right?

More states offer this kind of treatment in the community. It's always for people with lower level offensive who could, could've been released on bail or bond anyway. There's a small set of, subset of people who are not competent to stand trial, who would never be released to the community because they've done something very serious, but they don't really require hospital treatment, and so some of them can be treated in jail under special conditions.

This jail-based competence restoration. But by and large, states still have to send a large portion of these incompetent defendants to state hospitals because that's the treatment they need. And, frankly, they need it period. But they also need it for this legal purpose of returning to court and facing their charges.

Tony: Yeah. So it, you, this is, this is now work at like a different level. We've been talking some, a lot about-

Dan: Yeah.

Tony: trying to get it right for-

Dan: Yes.

Tony: an individual. And now it seems like your work is still that-

Dan: Yeah.

Tony: but also trying to help a system get it right.

Dan: Yes.

Tony: Could you talk about that shift?

Dan: Yeah. Yeah. That's... that really has been one of the shifts in my career and in my thinking, and it remains a great tension for me. And, maybe I'll just give a few illustrations. Let's imagine somebody is not competent to stand trial for a misdemeanor charge, for a very petty charge like trespassing.

And in fact, this is really common. One county found that every single person charged with trespassing was a person with serious mental illness. That's who comes to the attention of the police. And competence to stand trial evaluation of that person finds that they're not competent That, the accurate, right, true analysis is that they are not competent, right?

And a good evaluator's gonna find that. It's good that they do. That's their job.

Tony: Any one of us would probably look at that and be like, "yeah."

Dan: Of course they're not competent, right? This person has a delusion. They thought they owned the mall they were trespassing on. They go into court and they throw a scene about how they own the mall.

This person probably needs treatment to understand what's happening in a rational way. That's totally fair. But, you do enough evaluations like that, and you start to wonder, what are we doing here?

Tony: Huh.

Dan: Because that, typically, that person, there's a few other things that are happening to them.

Let's pretend that person was competent to stand trial. They would have gone before the judge very quickly. The judge would have dismissed them with time served, and they would have been back in the community, typically. Very low sanctions for this. But because that person's not competent to stand trial, they will continue waiting in the jail in many jurisdictions before they can go to the hospital.

That may take months in some places. So now this person, by virtue of their mental illness, has served 10, 20, 30, 40 times the sentence that somebody without a mental illness would have served because they've been waiting in jail. They do eventually go get that restoration treatment if they don't time out, meaning hit their maximum sentence while they're waiting.

Let's say this is a scenario where they do get to the hospital in time, they do get treatment, they do get restored, they go before the judge, and she says same thing she would have said, "Okay, dismissed. Time served."

Tony: So it's upside down.

Dan: It feels very inefficient, right? And that person did need treatment.

It's good they got treatment. But you start to wonder, could that person get treatment in a different way? Did we have to arrest them to get them that treatment? Or might there be a more logical way for us as a country to handle people with serious mental illness who are found yelling outside the 7-Eleven?

Is there maybe a better way here? And of course, the path of least resistance in, our system is usually calling the police, and then for the police, it's usually taking that person to jail. And then, of course, the attorney has to raise this competence question ethically because their person does not, their client does not understand.

So you start to feel like, okay, I can make the accurate call here. That's fine. But this-

Tony: At that individual level.

Dan: At that individual level, there is a true, right, correct answer here to which we must adhere. But something about the system starts to feel a little crazy, right? It feels like maybe this isn't the best way.

It's just the way we've always done things.

Tony: And so that's where the shift is to, from individual into system.

Dan: For me, at least.

Tony: Yeah. Yeah,

Dan: and I think-

Tony: Yeah.

Dan: I think other colleagues feel this way.

Tony: Yeah.

Dan: And they feel this tension between making the right call in this case, but thinking about these broader problems in the system that, that maybe should be different.

Tony: Yeah. Yeah. And I bet, that probably goes across a lot of different fields, where you're realizing, "I'm doing this straight thing, but if I take one step back- yeah ... this is kinda messed up." And, but not everybody has this opportunity to maybe influence that. So tell me, what has that been like to have, to be in, in a position where, you're coming into a state and there's been a determination that things have to change?

What is it like for you? What do you do? And what is that work like at this point?

Dan: Yeah. Yeah. So these, and that process often isn't immediate, right? The, there's litigation that builds up to it.

Tony: Understood.

Dan: And, and, then an expert of some sort would talk about the problems in the system, and here's, here's what we see, here's what could be better.

Tony: And you might do that as well.

Dan: Might do that as well, or other very skilled people would do that. And, that's usually how it gets to a point of a state trying to make changes. Now, I, think what's, striking to me about this is that everybody involved has good intentions. So as I watch these processes unfold, it... There, there often is what looks like very antagonistic litigation, because that's what our, that's how our system works. and often on both sides of that antagonistic litigation are thinkers who really want the same thing, right? So the advocates that bring these lawsuits really want the best for people with serious mental illness, and the people leading with state systems, who they are suing, really want the best for people with mental illness, right?

Everybody went into this work 'cause they, care about others. This is almost universally true. They want the same things, right? They want these services to be prompt and good. They want to reduce the human suffering that comes from untreated serious psychiatric illness. And one of the only ways our system...

I don't wanna say it's the only option, but one, but the, option that usually is the one to which people default is litigation. And that litigation takes a lot of time, it takes a lot of resources, all of which could've been gone to solve the problem. So there are times I think a lawsuit is not an answer, although the threat of lawsuit sometimes is, right?

It sometimes spurs action. But generally the advocates want more resources for people with serious mental illness, and the people leading these state agencies really want more resources. Now, sometimes the threat of a lawsuit is what frees up resources, right? It is what spurs a governor or legislators or other decision-makers to acknowledge a problem and really put forward the resources that are necessary.

So that, that has been maybe the most striking thing about that work. I guess the other piece is that, of course, there is no single simple answer for any of this, right? It's not just building more inpatient hospital beds, although most states absolutely need more inpatient hospital beds.

And it's not just community programs, although most, every state needs more community mental health treatment. So these are always complicated, multifaceted problems where a simple solution is, like never the, whole story. And that's also where people of goodwill and good intention can sometimes get tangled up is, assuming that there is one right answer when in fact there are many, and you're often struggling with competing goods.

Tony: Yeah.

Dan: Which one of these is most urgent?

Tony: And what do you do in that?

Dan: So I struggle like everyone else is the first answer. I try to, try to think about some of these general best practices that we know are helpful and then try to contemplate those with people in an individual state or jurisdiction who may have really good reasons for thinking, "No, this one doesn't work here, but this other thing might work." So there is always an individualization-

Tony: kind of thinking about those solutions.

Dan: Exactly, right? There is, never some sort of cookie cutter solution that goes to every state.

Tony: Yeah. One, this will make me another one of these impossible questions. Yeah. but one of the things as I was sitting here, listening to you about this, you talked about the way the system is set up, and is this, you keep calling adversarial, that there's, that-

Dan: Yeah

Tony: is there, do you ever question that idea?

Dan: That whole system?

Tony: Yeah.

Dan: The whole adversarial-

Tony: That like that the whole way we get at things is-

Dan: Yeah.

Tony: Two sides that have to be like, put against each other.

Dan: Yeah, it's a very American system, right? To think the right way to get this is to battle it out, and the toughest will prevail. And that is not-

Tony: Or right will prevail.

Dan: Yeah.

Tony: Or the truth comes out.

Dan: The truth comes out. And there is some merit to that.

Tony: But it's like this, it's like the, like what's the-

Dan: There is some merit to that, but it's important to remember that's not how every country works.

That's not how every system works. There are other systems of justice that are called inquisitorial, rather than adversarial, and they have some different procedures. And I don't know, I don't know that the US is going to drastically change their adversarial system. I, don't-

Tony: There are probably a lot of people working on that.

Dan: Yeah. And I don't even know that's a good, right? There are pros and cons to each of these systems. There are some strengths to the adversarial one. What I do know is that can look, that can be more or less healthy in different places, that adversarial model. I think it's...we slip into talking about that as a universal, homogenous kind of thing. But even this adversarial system, the more I work around the country, the more I'm just struck by how it has a different feel in different places. I just happen to be based in this sort of smaller town where the system, as best I can see it looks like a pretty collaborative adversarial system.

They will argue and battle, but there is, there is a way in which even competing teams can be pretty reasonable and rational and I noticed this in the military system, where attorneys have often worked on both sides, and so there is just a general sense that they can see both arguments.

They don't necessarily think that the other side is evil or morally wrong. But I also do see systems where that really seems to be the case, right? And they are, polarized. They assume the worst of the other side. They assume ill intent at every step. There's some national analogs to this kind of polarization, of course.

But that strikes me as less helpful. Not that you wouldn't want a good adversarial process to really get at the truth. I get the appeal of that. But it seems like even in that system, me as this tiny little piece of this system observing at least, I am sometimes struck by how the tone of that system can really differ depending on jurisdiction.

There can be much more antagonistic versions, and then versions that seem to at least share certain common values and a, we'd even maybe even call it a goodwill or a civility.

Tony: And is that something that you're in a position to try to encourage when you're overseeing these processes?

Dan: I probably have very little control over that. Yeah.

Tony: Fair enough. Fair enough. One of the preoccupations that led me to start this podcast was wanting to understand how people- things that people have changed their minds about over time or ways that their points of view, approaches, or how they've changed, over time.

Could you think of anything- we've talked about a lot of different things here. What are some things that you have kinda changed your mind about, across this career with so many different lines of, research related to justice, with working with individuals, working with systems?

What's something that maybe you've changed your mind about?

Dan: So the, I'm not sure, the example that comes to mind may not be completely responsive to this question, right? Because it's not so much of a, change in mind or a, an opposite really. But it is a change in focus, and I think it, it ties into some of these other things we've discussed about moving from the individual scenario to thinking more systemically.

And I think I have been struck that one of our primary ways as a country of dealing with serious mental illness has been arrest, has been to wait till people with serious mental illness come to public attention and then respond with police, that being our first response.

And that I think has contributed to this competence crisis we have described, right? People with serious illness are arrested. They're brought into a system where the easiest lever to pull is that competence lever, right? There are other things we could be doing, but that's the easiest one.

And I don't know if this is so much of a change in mind, but it is a change in priority. I think I really had loved being in this career where I could stay in my lane and just focus clearly on these individual cases and it's just got harder and harder to not think about or become attuned to these sort of patterns that, that kind of bring these individual cases to, to our attention.

And so I think where... I guess maybe if we'd call this a change in mind, it's a change about where my priorities should be. I am really, I think less, meaning no disrespect to my niche or anybody's niche or discipline, but that the solutions for problems really are rarely coming from one place.

So when we think about our social response to mental illness as defaulting to police and arrest, it evokes these questions and strategies that are very multidisciplinary and they are available. They are emerging, right? There are other types of professionals that can go to scenes and deal with people with serious mental illness that do not have to be police.

But our culture's been really slow to develop those. There are ways in which anything that's innovative like that just faces a lot of friction because it doesn't fall in the normal buckets or silos, if you will. And so some of these... I think the other thing that's been striking is this, the availability of some pretty good strategies that don't seem to catch on as well.

So I think I've been just more and more drawn to ideas about implementation, ideas about marketing. I used to think marketing was the most kind of horrible profession there could be. And I find myself, really interested in marketing. Like, how do we share that this kind of-

Tony: Innovative

Dan: product or innovation-

Tony: Yeah.

Dan: is appealing and helpful? Because you know what? Academic papers aren't doing it. Discussions in small groups aren't doing it. How might we get the public to really take interest in some of these innovations? And so I guess the change of mind there is just coming to better value, some of these other strategies and to value strategies for promoting strategies, right?

Tony: Yeah. That's really interesting. You've given me a, a desire to follow up this podcast maybe with one or two or more, with people who are working on some of those strategies. So maybe we'll talk afterwards about-

Dan: Yeah.

Tony: About people who, because I know there's really smart, passionate people thinking about, who are so inclined to take that step back, challenge the system, think broadly. So maybe, maybe that's a kind of a follow-on episode that we should do. So as we think about landing our, our plane here, we get feedback in the podcast from a lot of people who are early in career.

We, from late... and I don't know everybody who, you know, thousands of people who listen-

Dan: Sure.

Tony: But, I tend to hear from people at very top leadership levels, and then people who are early in their career who say they, they appreciate the guests that we have. So I wanna speak with, to those early career people-

Dan: Sure.

Tony: a little bit. And, if there's somebody who's listening and is interested in this field, maybe specifically what you do or working on these challenges in the justice system as it relates to people with mental health or whatever, what kind of advice would you have?

Dan: Yeah, that's a great question and I'm, I really enjoy talking to early career people, and I get, that privilege pretty often. I think the hard part of the answer is there's... I don't know that I have one canned answer or strategy, I think. But I think there's a couple themes that come to mind. One is to first just accept that there's not one right path or right strategy.

And some of the best, some of my best, favorite colleagues were people who did, something else early on. It shaped a passion, and it brought them to a particular place, right? That, I think, part of this is not dismissing these early experiences. I have a great colleague who worked, even since high school, in homes for people with intellectual disabilities, and it just, it informs her work in so many ways.

Tony: And now a forensic psychologist.

Dan: Now a forensic psychologist, works on lots of issues, but it was, it was a big draw when we hired this person initially. And it was, I just see that strength a couple decades later probably.

Tony: Yeah.

Dan: So these early experiences I think can be really meaningful.

I, I would encourage people to absorb what they can from those rather than, fretting as much about the exact right path. To the extent there is a right path, it probably, it does involve following the things that are naturally interesting and appealing. And this is true for, I think for all of us in all sorts of work.

People talk about it as finding a calling, but the things that, that really resonate. And then I think we are in a particular moment where there is deep and good desire to reform, to get in and change things and fix things, and I love that, and I respect that so much. And I think, I think it's important to couple that with kind of a process of exposure.

We, I wouldn't have had good ideas about how to improve things after a case or two or three, right? It really, it really had to gnaw at me after a while. And so I... while I love and affirm these desires to change, and reform, I think there is an important process there to just couple that with time spent with people, time spent on individual cases, really absorbing the stories, building a database.

And I don't mean that to say, "So you have to wait X years, so don't do reform until you're 20, 30 years into your career." I do not mean to convey that. But to never separate that from experience on the ground, face-to-face with individual people.

Tony: Yeah. Oh, that sounds so wise. So wise. I have my own association with that and hope I'm not completely hijacking your point, but-

Dan: No, proceed.

Tony: But I... hopefully building on it, I have a special interest in Gen Z, as you know, and, and one of the things that I love about that generation, and this is people who are, probably somewhere between age right now, I don't know, 15 and 28 or something-

Dan: Yeah.

Tony: like that.

There is a strong desire to have an impact,

Dan: Yeah.

Tony: change things that are going on.

Dan: Yeah.

Tony: People often talk about the mental health crisis and these challenges, but I really see so much strength.

Dan: Yeah.

Tony: and, but there's also a lot of pressure, I think built up from growing up seeing, people make a video and have three million people watch it.

And it's... and there, I think there's a, there's a sense that people feel like, just going to work in a, a home with people with individuals with disabilities, isn't really having an impact. But I love what you just said, that you don't, that you have to have...and sometimes just take the opportunity that's in front of you.

Dan: Yeah.

Tony: It may not even, you may not even, it might not even be a calling, right?

Dan: Yeah.

Tony: It might just be like you have this opportunity. Your, your friend works the overnight shift and-

Dan: Yes.

Tony: said they need people.

Dan: Yes.

Tony: And that is how you end up-

Dan: Yes.

Tony: It doesn't have to be, like you said, this is not to gatekeep people-

Dan: Yes.

Tony: or something like that, right?

Dan: Yes.

Tony: But it doesn't have to end up being, the, it, that... you can't know how it's gonna e- end up, and, and getting real experience with real people is-

Dan: Yeah.

Tony: is, gonna be valuable.

Dan: Yes.

Tony: go to it.

Dan: Yeah. Do not undervalue what seem like sort of-

Tony: Ordinary

Dan: routine or early experiences. Yeah. Yeah. Absolutely.

Tony: Yeah. A question that we often ask guests, and it's one that I borrowed from another podcaster that I listen to which is, more generally, what books that you may, really like or have often, what book have you maybe gifted to people, more than any other? It could be related to your field.

Dan: Yeah.

Tony: Could not be. But I think, just curious about that.

Dan: Yeah. This is not... the honest answer is not related-

Tony: Your own forensic psychology textbook?

Dan: Yes, it is not related to the field.

So except maybe in the sense of great attention to human, the human condition. But, and this is often funny, but it... books by Anne Lamott. Are you familiar with her? So-

Tony: I don't think so.

Dan: just wonderful author, very funny. Has a book about early motherhood that is a, a very common gift to people with new children.

In fact, one of our friends gave this to me. One of our old supervisors gave this to me, and it's irreverent and funny and beautiful. She also has a book on writing that's called Bird by Bird.

Tony: Oh, I have read that book.

Dan: Okay. Yeah, which is, which is again, not about research writing or professional writing-

Tony: No.

Dan: but this sort of discussion of the process and the fun of that book generalizes. So just, yeah, lovely person doing very engaging work.

Tony: Okay. We'll put a link to those books in the episode notes. I hope this has been as, it probably is, probably not as great for you as it had been for me, but-

Dan: It's a pleasure. It's a pleasure.

Tony: But it has really been, very rich, and I appreciate you talking, us having a chance to talk like this.

Dan: It's lovely. Thank you.

Tony: It's a different, very different kind of context. We appreciate it. And how could people get in touch with you if they wanted to be in touch?

Dan: Sure. Probably just googling me. The website for our institute at the University of Virginia will get you to me and to our team, and I would be happy to talk.

Tony: Great. Thank you so much, Daniel.

Dan: Thank you. Thank you.