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Monday, May 23, 2022

Zero waste

From Wikipedia, the free encyclopedia
 
Used products dumped at a scrap metal recycler

Zero waste is a set of principles focused on waste prevention that encourages the redesign of resource life cycles so that all products are reused. The goal is for no trash to be sent to landfills, incinerators or the ocean. Currently, only 9% of plastic is actually recycled. In a zero waste system, material will be reused until the optimum level of consumption. The definition adopted by the Zero Waste International Alliance (ZWIA) is:

Zero Waste: The conservation of all resources by means of responsible production, consumption, reuse and recovery of all products, packaging, and materials, without burning them, and without discharges to land, water or air that threaten the environment or human health.

Zero Waste refers to waste prevention as opposed to end-of-pipe waste management. It is a whole systems approach that aims for a massive change in the way materials flow through society, resulting in no waste. Zero waste encompasses more than eliminating waste through reducing, reusing, and recycling. It focuses on restructuring production and distribution systems to reduce waste. Zero waste is more of a goal or ideal rather than a hard target. Zero Waste provides guiding principles for continually working towards eliminating wastes.

Advocates expect that government regulation is needed to influence industrial choices over product and packaging design, manufacturing processes, and material selection.

Advocates say eliminating waste decreases pollution, and can also reduce costs due to the reduced need for raw materials.

Cradle-to-cradle / cradle-to-grave

The cradle-to-grave is a linear model for materials that begins with resource extraction, moves to product manufacturing, and ends by a "grave", where the product is disposed of in a landfill. Cradle-to-grave is in direct contrast to cradle-to-cradle materials or products, which are recycled into new products at the end of their lives, so that ultimately there is no waste.

Cradle-to-cradle focuses on designing industrial systems so that materials flow in closed-loop cycles which mean that waste is minimized, and waste products can be recycled and reused. Cradle-to-cradle simply goes beyond dealing with issues of waste after it has been created, by addressing problems at the source and by re-defining problems by focusing on design. The cradle-to-cradle model is sustainable and considerate of life and future generations.

The cradle-to-cradle framework has evolved steadily from theory to practice. In the industrial sector, it is creating a new notion of materials and material flows. Just as in the natural world, in which one organism's "waste" cycles through an ecosystem to provide nourishment for other living things, cradle-to-cradle materials circulate in closed-loop cycles, providing nutrients for nature or industry.

The spread of industrialization worldwide has been accompanied by a large increase in waste production. In 2012 the World Bank stated that 1.3 billion tonnes of municipal waste was produced by urban populations and estimates that the number will reach 2.2 billion tonnes by 2025 (Global Solid Waste Management Market - Analysis and Forecast). The increase in solid waste production increases the need for landfills. With the increase in urbanization, these landfills are being placed closer to communities. These landfills are disproportionately located in areas of low socioeconomic status with primarily non-white populations. Findings indicated these areas are often targeted as waste sites because permits are more easily acquired and there was generally less community resistance. Additionally, within the last five years, more than 400 hazardous waste facilities have received formal enforcement actions for unspecified violations that were considered to be a risk to human health.

There is a growing global population that is faced with limited resources from the environment. To relieve the pressures placed on the finite resources available it has become more important to prevent waste. To achieve zero waste, waste management has to move from a linear system to be more cyclical so that materials, products, and substances are used as efficiently as possible. Materials must be chosen so that they may either return safely to a cycle within the environment or remain viable in the industrial cycle.

Zero waste promotes not only reuse and recycling but, more importantly, it promotes prevention and product designs that consider the entire product life cycle. Zero waste designs strive for reduced materials use, use of recycled materials, use of more benign materials, longer product lives, reparability, and ease of disassembly at end of life. Zero waste strongly supports sustainability by protecting the environment, reducing costs and producing additional jobs in the management and handling of wastes back into the industrial cycle. A Zero waste strategy may be applied to businesses, communities, industrial sectors, schools and homes.

Benefits proposed by advocates include:

  • Saving money. Since waste is a sign of inefficiency, the reduction of waste can reduce costs.
  • Faster Progress. A zero waste strategy improves upon production processes and improving environmental prevention strategies which can lead to take larger, more innovative steps.
  • Supports sustainability. A zero waste strategy supports all three of the generally accepted goals of sustainability - economic well-being, environmental protection, and social well-being.
  • Improved material flows. A zero waste strategy would use far fewer new raw materials and send no waste materials to landfills. Any material waste would either return as reusable or recycled materials or would be suitable for use as compost.

Health

A major issue with landfills is hydrogen sulfide, which is released during the natural decay of waste. Studies have shown a positive association between increased lung cancer mortality rates and increased morbidity and mortality related to respiratory disease and hydrogen sulfide exposure. These studies also showed that the hydrogen sulfide exposure increased with proximity to the landfill.

Household chemicals and prescription drugs are increasingly being found in large quantities in the leachate from landfills. This is causing concern about the ability of landfills to contain these materials and the possibility of these chemicals and drugs making their way into the groundwater and the surrounding environment.

Zero waste promotes a circular material flow that allows materials to be used over and over, reducing the need for landfill space. Through zero waste the number of toxins released into the air and water would be decreased and products examined to determine what chemicals are used in the production process.

Health issues related to landfills:

Zero waste's promotion of a cyclical product life can help reduce the need to create and fill landfills. This can help reduce incidences of respiratory diseases and birth defects that are associated with the toxins released from landfills. Zero waste also can help preserve local environments and drinking water sources by preventing pollutants from entering the ecosystem.

History

2002–2003

The movement gained publicity and reached a peak in 1998–2002, and since then has been moving from "theory into action" by focusing on how a "zero waste community" is structured and behaves. The website of the Zero Waste International Alliance has a listing of communities across the globe that have created public policy to promote zero-waste practices. There is a zero-waste organization named the GrassRoots Recycling Network that puts on workshops and conferences about zero-waste activities.

The California Integrated Waste Management Board established a zero waste goal in 2001. The City and County of San Francisco’s Department of the Environment established a goal of zero waste in 2002, which led to the City's Mandatory Recycling and Composting Ordinance in 2009. With its ambitious goal of zero waste and policies, San Francisco reached a record-breaking 80% diversion rate in 2010, the highest diversion rate in any North American city. San Francisco received a perfect score in the waste category in the Siemens US and Canada Green City Index, which named San Francisco the greenest city in North America.

2009: The Zero Waste lifestyle movement emerges

In 2008, Zero Waste was a term used to describe manufacturing and municipal waste management practices. Bea Johnson, a French American woman living in California, decided to apply it to her household of 4. In 2009, she started sharing her journey through the popular blog, Zero Waste Home, and in 2010, was featured in The New York Times. The article, which introduced the mainstream to the concept of waste-free living, received much criticism from people confusing it for a bohemian lifestyle. These critical reviews began to shift after images of the family and their interior was widely broadcast in worldwide media. In 2013, Johnson published Zero Waste Home: The Ultimate Guide to Simplifying your Life by Reducing your Waste. Dubbed "Bible for the zero waste pursuer" by Book Riot, it provides a simple to follow the methodology of 5R's with in-depth practical tips on how to eliminate waste in a household. Translated into 27 languages (as of 2019), the international bestseller helped spread the concept to a wide audience. Some of Bea's followers and readers went on to start their own blogs, such as Lauren Singer, an eco-activist living in New York, whose Social Media channels spread the concept to millennials, open package-free stores, such as Marie Delapierre, who opened the first unpackaged store in Germany (based on the model of Unpackaged, the first package-free concept in our modern era), launch non-profit organizations, such as Natalie Bino, founding member of Zero Waste Switzerland. Over the years, the Zero Waste lifestyle experienced a significant increase in followers. Thousands of social media channels, blogs, unpackaged stores, lines of reusables and organizations have emerged worldwide. And in turn, the fast-evolving grass-root movement created a demand for large corporations, such as Unilever and Procter and Gamble, to conceive reusable alternatives to disposables.

Present day

An example of a zero waste starter kit that includes: a reusable water bottle, reusable cutlery, mason jars, upcycled spice jar, and reusable grocery bag

Behavior change is a central factor, necessary for shifting to more sustainable waste management but there is a lack of research with regards to behavior change intervention. Critics of Zero Waste point out that a material could be reusable, organic, non-toxic, and renewable but still be ethically inferior to single use products. Bags made of baby seal pelts or tiger skin, for example, theoretically meet the definitions of "zero waste", but are hardly superior to single use plastic bags. Similarly, a toxic material, such as lead in solder, may be replaced by less toxic materials like tin and silver. But if the mining of silver and tin releases more mercury or damages sensitive coral islands, the protection of landfills in developed nations is hardly paramount. While Zero Waste advocates have sophisticated answers as to why these examples do not meet the definition of Zero Waste (e.g., that the bodies of seals and tigers, or mining waste, is of equal concern), critics say that Life Cycle Analysis, habitat protection, carbon neutralization, or "Zero Extinction" are more environmentally astute philosophies than waste-centric measures. The simple accounting of measurable waste diversion, reuse, recycling rates, etc. is an attractive and useful tool, but a campaign based on a goal of literally stopping the last 5% of waste might will come at the expense of other environmental and sustainability goals.

Within the waste industry itself, other tensions exist between those who view zero waste as post-discard total recycling of materials only, and those who view zero waste as the reuse of all high-level function. It is probably the defining difference between established recyclers and emerging zero-wasters. A signature example is a difference between smashing a glass bottle (recovering cheap glass) and refilling the bottle (recovering the entire function of the container).

The tension between the literal application of natural processes and the creation of industry-specific more efficient reuse modalities is another tension. Many observers look to nature as an ultimate model for production and innovative materials. Others point out that industrial products are inherently non-natural (such as chemicals and plastics that are mono-molecular) and benefit greatly from industrial methods of reuse, while natural methods requiring degradation and reconstitution are wasteful in that context.

Whether made of starch or petroleum, the manufacturing process expends all the same materials and energy costs. Factories are built, raw materials are procured, investments are made, machinery is built and used, humans labor and make use of all normal human inputs for education, housing, food etc. Even if the plastic is biodegraded after a single use, all of those costs are lost so it is much more important to design plastic parts for multiple reuse or perpetual lives. The other side argues that keeping plastic out of a dump or the sea is the sole benefit of interest.

Companies moving towards "zero landfill" plants include Subaru, Xerox and Anheuser-Busch.

The movement continues to grow among the youth around the world under the organization Zero Waste Youth, which originated in Brazil and has spread to Argentina, Puerto Rico, Mexico, the United States, and Russia. The organization multiplies with local volunteer ambassadors who lead zero waste gatherings and events to spread the zero waste message.

Packaging example

Returnable glass milk bottles

Milk can be shipped in many forms. One of the traditional forms was reusable returnable glass milk bottles, often home delivered by a milkman. While some of this continues, other options have recently been more common: one-way gable-top paperboard cartons, one-way aseptic cartons, one-way recyclable glass bottles, one-way milk bags, and others. Each system claims some advantages and also has possible disadvantages. From the zero waste standpoint, the reuse of bottles is beneficial because the material usage per trip can be less than other systems. The primary input (or resource) is silica-sand, which is formed into glass and then into a bottle. The bottle is filled with milk and distributed to the consumer. A reverse logistics system returns the bottles for cleaning, inspection, sanitization, and reuse. Eventually, the heavy-duty bottle would not be suited for further use and would be recycled. Waste and landfill usage would be minimized. The material waste is primarily the wash water, detergent, transportation, heat, bottle caps, etc. While true zero waste is never achieved, a life cycle assessment can be used to calculate the waste at each phase of each cycle.

Online shopping orders are often placed in an outer box to contain multiple items for easier transport and tracking. This creates waste for every order, especially when there is only a single item. In response, some products are now designed not to require an outer box for safe shipping, a feature known as ships in own container.

Recycling and composting

It is important to distinguish recycling from Zero Waste. The most common practice of recycling is simply that of placing bottles, cans, paper, and packaging into curbside recycling bins. The modern version of recycling is more complicated and involves many more elements of financing and government support. For example, a 2007 report by the U.S. Environmental Protection Agency states that the US recycles at a national rate of 33.5% and includes in this figure composted materials. In addition, many multinational commodity companies have been created to handle recycled materials. At the same time, claims of recycling rates have sometimes been exaggerated, for example by the inclusion of soil and organic matter used to cover garbage dumps daily, in the "recycled" column. In US states with recycling incentives, there is constant local pressure to inflate recycling statistics.

Recycling has been separated from the concept of zero waste. One example of this is the computer industry where worldwide millions of PC's are disposed of as electronic waste each year in 2016 44.7 million metric tonnes of electronic waste was generated of which only 20% was documented and recycled. Some computer manufacturers refurbish leased computers for resale. Community Organizations have also entered this space by refurbishing old computers from donation campaigns for distribution to underserved communities.

Software recycling

A clear example of the difference between Zero Waste and recycling is discussed in Getting To Zero Waste, in the software industry. Zero waste design can be applied to intellectual property where the effort to code functionality into software objects is developed by design as opposed to copying code snippets multiple times when needed. The application of Zero Waste is straightforward as it conserves human effort. Also, software storage mediums have transitioned from consumable diskettes to internal drives which are vastly superior and have a minimal cost per megabyte of storage. This is a physical example where Zero Waste correctly identifies and avoids wasteful behavior.

Use of zero waste system

Zero waste is poorly supported by the enactment of government laws to enforce the waste hierarchy. In practice, these laws invariably emphasize destruction and recycling, while the reuse component is marginalized.

A special feature of Zero Waste as a design principle is that it can be applied to any product or process, in any situation or at any level. Thus it applies equally to toxic chemicals as to benign plant matter. It applies to the waste of atmospheric purity by coal-burning or the waste of radioactive resources by attempting to designate the excesses of nuclear power plants as "nuclear waste". All processes can be designed to minimize the need for discard, both in their own operations and in the usage or consumption patterns which the design of their products leads to. Recycling, on the other hand, deals only with simple materials.

Zero Waste can even be applied to the waste of human potential by enforced poverty and the denial of educational opportunity. It encompasses redesign for reduced energy wasting in industry or transportation and the wasting of the earth's rainforests. It is a general principle of designing for the efficient use of all resources, however defined.

The recycling movement may be slowly branching out from its solid waste management base to include issues that are similar to the community sustainability movement.

Zero waste, on the other hand, is not based in waste management limitations to begin with but requires that we maximize our existing reuse efforts while creating and applying new methods that minimize and eliminate destructive methods like incineration and recycling. Zero Waste strives to ensure that products are designed to be repaired, refurbished, re-manufactured and generally reused.. ("What is Zero Waste?", para 2).

Significance of dump capacity

Many dumps are currently exceeding carrying capacity. This is often used as a justification for moving to Zero Waste. Others counter by pointing out that there are huge tracts of land available throughout the US and other countries which could be used for dumps. Proposals abound to destroy all garbage as a way to solve the garbage problem. These proposals typically claim to convert all or a large portion of existing garbage into oil and sometimes claim to produce so much oil that the world will henceforth have abundant liquid fuels. One such plan, called Anything Into Oil, was promoted by Discover Magazine and Fortune Magazine in 2004 and claimed to be able to convert a refrigerator into "light Texas crude" by the application of high-pressure steam.

Corporate initiatives

An example of a company that has demonstrated a change in landfill waste policy is General Motors (GM). GM has confirmed their plans to make approximately half of its 181 plants worldwide "landfill-free" by the end of 2010. Companies like Subaru, Toyota, and Xerox are also producing landfill-free plants. Furthermore, The United States Environmental Protection Agency (EPA) has worked with GM and other companies for decades to minimize the waste through its WasteWise program. The goal for General Motors is finding ways to recycle or reuse more than 90% of materials by: selling scrap materials, adopting reusable boxes to replace cardboard, and even recycling used work gloves. The remainder of the scraps might be incinerated to create energy for the plants. Besides being nature-friendly, it also saves money by cutting out waste and producing a more efficient production. Microsoft and Google are two other big companies that have Zero Waste goals. These two companies have goals to keep the majority of their waste out of landfills. Google has six locations that have a Zero Waste to Landfill goal. These locations have a goal to keep 100% of their waste out of landfills. Microsoft has a similar goal, but they are only trying to keep 90% their waste out of landfills. All these organizations push forth to make our world clean and producing zero waste.

A garden centre in Faversham, UK, has started to prevent plastic plant pots from being passed down to customers. Instead, it reuses the plastic pots only locally in the garden center, but upon selling it to its customers it repots the plants in paper plant pots. It also sells plants wrapped in hessian, and uses a variety of techniques to prevent handing down (single-use) plastics to customers

Re-use or rot of waste

The waste sent to landfills may be harvested as useful materials, such as in the production of solar energy or natural fertilizer/de-composted manure for crops.

It may also be reused and recycled for something that we can actually use. "The success of General Motors in creating zero-landfill facilities shows that zero-waste goals can be a powerful impetus for manufacturers to reduce their waste and carbon footprint," says Latisha Petteway, a spokesperson for the EPA.

Market-based campaigns

Market-based, legislation-mediated campaigns like extended producer responsibility (EPR) and the precautionary principle are among numerous campaigns that have a Zero Waste slogan hung on them by means of claims they all ineluctably lead to policies of Zero Waste. At the moment, there is no evidence that EPR will increase reuse, rather than merely moving discard and disposal into private-sector dumping contracts. The Precautionary Principle is put forward to shift liability for proving new chemicals are safe from the public (acting as guinea pig) to the company introducing them. As such, its relation to Zero Waste is dubious. Likewise, many organizations, cities and counties have embraced a Zero Waste slogan while pressing for none of the key Zero Waste changes. In fact, it is common for many such to simply state that recycling is their entire goal. Many commercial or industrial companies claim to embrace Zero Waste but usually mean no more than a major materials recycling effort, having no bearing on product redesign. Examples include Staples, Home Depot, Toyota, General Motors and computer take-back campaigns. Earlier social justice campaigns have successfully pressured McDonald's to change their meat purchasing practices and Nike to change its labor practices in Southeast Asia. Those were both based on the idea that organized consumers can be active participants in the economy and not just passive subjects. However, the announced and enforced goal of the public campaign is critical. A goal to reduce waste generation or dumping through greater recycling will not achieve a goal of product redesign and so cannot reasonably be called a Zero Waste campaign. Producers should be made responsible for the packaging of the products rather than the consumers in EPR like campaigns by which the participation of the Producers will increase.

How to achieve

National and provincial governments often set targets and may provide some funding, but on a practical level, waste management programs (e.g. pickup, dropoff, or containers for recycling and composting) are usually implemented by local governments, possibly with regionally shared facilities.

Reaching the goal of zero waste requires the products of manufacturers and industrial designers to be easily disassembled for recycling and incorporated back into nature or the industrial system; durability and repairability also reduce unnecessary churn in the product life cycle. Minimizes packaging also solves many problems early in the supply chain. If not mandated by government, choices by retailers and consumers in favor of zero-waste-friendly products can influence production. More and more schools are motivating their students to live a different life and rethink every polluting step they may take. To prevent material from becoming waste, consumers, businesses, and non-profits must be educated in how to reduce waste and recycle successfully.

The 5R’s of Bea Johnson

In the book, Zero Waste Home: The Ultimate Guide to Simplifying your Life by Reducing your Waste, the author, Bea Johnson, provides a modified version of the 3Rs, the 5Rs: Refuse, Reduce, Reuse, Recycle, Rot to achieve Zero Waste at home. The method, which she developed through years of practicing waste free living and used to reduce her family's annual trash to fit in a pint jar, is now widely used by individuals, businesses and municipalities worldwide.

Zero Waste Hierarchy

The Zero Waste Hierarchy describes a progression of policies and strategies to support the Zero Waste system, from highest and best to lowest use of materials. It is designed to be applicable to all audiences, from policy-makers to industry and the individual. It aims to provide more depth to the internationally recognized 3Rs (Reduce, Reuse, Recycle); to encourage policy, activity and investment at the top of the hierarchy; and to provide a guide for those who wish to develop systems or products that move us closer to Zero Waste. It enhances the Zero Waste definition by providing guidance for planning and a way to evaluate proposed solutions. All over the world, in some form or another, a pollution prevention hierarchy is incorporated into recycling regulations, solid waste management plans, and resource conservation programs. In Canada, a pollution prevention hierarchy otherwise referred to as the Environmental Protection Hierarchy was adopted. This Hierarchy has been incorporated into all recycling regulations within Canada and is embedded within all resource conservation methods which all government mandated waste prevention programs follow. While the intention to incorporate the 4th R (recovery)prior to disposal was good, many organizations focused on this 4th R instead of the top of the hierarchy resulting in costly systems designed to destroy materials instead of systems designed to reduce environmental impact and waste. Because of this, along with other resource destruction systems that have been emerging over the past few decades, Zero Waste Canada along with the Zero Waste International Alliance have adopted the only internationally peer reviewed Zero Waste Hierarchy that focuses on the first 3Rs; Reduce, Reuse and Recycle including Compost.

Zero waste jurisdictions

Various governments have declared zero waste as a goal, including:

An example of network governance approach can be seen in the UK under New Labour who proposed the establishment of regional groupings that brought together the key stakeholders in waste management (local authority representatives, waste industry, government offices etc.) on a voluntary basis. There is a lack of clear government policy on how to meet the targets for diversion from landfill which increases the scope at the regional and local level for governance networks. The overall goal is set by government but the route for how to achieve it is left open, so stakeholders can coordinate and decide how best to reach it.

Zero Waste is a strategy promoted by environmental NGOs but the waste industry is more in favour of the capital intensive option of energy from waste incineration. Research often highlights public support as the first requirement for success. In Taiwan, public opinion was essential in changing the attitude of business, who must transform their material use pattern to become more sustainable for Zero Waste to work.

California is a leading state in the United States for having zero waste goals. California is the state with the most cities in the Zero Waste International Alliance. According to the United States Environmental Protection Agency, multiple cities have defined what it means to be a Zero Waste community and adopted goals to reach that status. Some of these cities include Fresno, Los Angeles, Oakland, San Francisco, Pasadena, Alameda, and San Jose. San Francisco has defined Zero Waste as "zero discards to the landfill or high-temperature destruction." Here, there is a planned structure to reach Zero Waste through three steps recommended by the San Francisco Department of the Environment. These steps are to prevent waste, reduce and reuse, and recycle and compost. Los Angeles defines zero waste as "maximizing diversion from landfills and reducing waste at the source, with the ultimate goal of striving for more-sustainable solid waste management practices." Los Angeles plans to reach this goal by the year of 2025. To reach this goal, major changes will have to be made to product creation, use, and disposal.

Zero-waste stores

Retail stores specializing in zero-waste products have opened in various countries, including Spain and the United States.

Saturday, May 21, 2022

Anti-social behaviour order

From Wikipedia, the free encyclopedia
https://en.wikipedia.org/wiki/Anti-social_behaviour_order

An anti-social behaviour order (ASBO /ˈæzb/) is a civil order made in Great Britain against a person who had been shown, on the balance of evidence, to have engaged in anti-social behaviour. The orders were introduced by Prime Minister Tony Blair in 1998,[1] and continued in use until repealed in England and Wales by the Anti-Social Behaviour, Crime and Policing Act 2014 on 20 October 2014—although they continue to be used in Scotland. ASBOs were replaced in England and Wales by the civil injunctions and the criminal behaviour orders. They were designed to address behaviours like intimidation, drunkenness, and violence by individuals and families, using civil orders rather than criminal sanctions. The orders restricted behaviour in some way, such as: prohibiting a return to a certain area or shop; or restricting public behaviours, such as swearing or drinking alcohol. Many saw the ASBOs as connected with young delinquents.

They are closely related to the fixed penalty notices and related schemes such as penalty notices for disorder (PNDs) and penalty charge notices (PCNs), in both intent and date of introduction.

History

ASBOs were introduced in England, Scotland, and Wales through the Crime and Disorder Act 1998. Later legislation strengthened its application: in England and Wales, this was largely via the Anti-social Behaviour Act 2003; in Northern Ireland through an Order in Council; and in Scotland with the Antisocial and Sexual Behaviour etc. (Scotland) Act 2004. Scotland, however, had a pre-existing tribunal system charged with dealing with children and young persons who offend, the Children's Hearings system.

In a press release of 28 October 2004, Tony Blair and David Blunkett announced further measures to extend the use and definition of ASBOs. The remit included:

  • Extension of the Witness Protection Programme in anti-social behaviour cases
  • More courts dealing with cases
  • More offences, including dog-fouling, litter, graffiti, and night-time noise liable for fixed penalty notices
  • Giving parish councils the power to issue fixed penalty notices for infringements

The press release concluded by remarking:

In the past year, around 100,000 cases of anti-social behaviour have been dealt with. 2,633 ASBOs and 418 dispersal orders have been issued in the same period.

On 25 October 2005, Transport for London announced its intent to apply for a new law giving them the authority to issue orders against repeat fare dodgers, and increased fines. By 31 March 2004, 2,455 ASBOs had been issued in England and Wales. On 30 March 2006, the Home Office announced that 7,356 ABSOs had been given out since 1999 in England and Wales.

Replacement

The 2010 coalition government expressed its intention to replace ASBOs, citing the reasons that "breach rates are high, and the number issued has been steadily declining since 2005." In July 2010, Home Secretary Theresa May announced her intention to reform anti-social behaviour measures for England and Wales, with the abolition of ASBOs in due course in favour of alternative "community-based" social control policies. However, in 2012, Liberal Democrat objections prevented the implementation of proposals in a Home Office White Paper to replace the ASBO with a "criminal behaviour order" and a "crime prevention injunction". In May 2013, an Anti-social Behaviour, Crime and Policing Bill was introduced into the House of Commons, including a provision to create "injunctions to prevent nuisance and annoyance," replacing ASBOs in England and Wales. The bill was criticised for the broad and undefined scope of "Nuisance and Annoyance," and defeated in the House of Lords in January 2014.

The Anti-Social Behaviour, Crime and Policing Act 2014 received Royal Assent in March 2014. This streamlined the tools available to tackle anti-social behaviour, and replaced the ASBO with an injunction (a civil order) and a CBO.

What warranted an ASBO

Uses

A police notice on the street in Richmond

An ASBO was issued in response to "conduct which caused or was likely to cause harm, harassment, alarm, or distress, to one or more persons not of the same household as him or herself, and where an ASBO was seen as necessary to protect relevant persons from further anti-social acts by the defendant." In England and Wales, they were issued by magistrates' courts, and in Scotland by the sheriff courts.

The British government introduced ASBOs through the Crime and Disorder Act 1998. In the UK, a CRASBO was a "criminally related" ASBO. One local authority published photos of those given ASBOs on an Internet site. Anti-social behaviour included a range of problems, such as:

Standard of proof

Applications for ASBOs were heard by magistrates sitting in their civil capacity. Although the proceedings were civil, the court had to apply a heightened civil standard of proof. This standard was virtually indistinguishable from the criminal standard. The applicant had to satisfy the court "so that it is sure" that the defendant has acted in an anti-social manner. The test for the court to be "satisfied so that it is sure" was the same direction that a judge gives to a jury in a criminal case heard in the Crown Court, and is also known as satisfying the court "beyond reasonable doubt".

Pursuant to section 1(1) Civil Evidence Act 1995, an applicant (and a defendant) had the right to rely on witness statements without calling the makers of those statements—known as hearsay. If a party proposed to rely upon a hearsay statement, then the other party was entitled to ask the court for permission to call that witness for cross-examination.

If the court refused to grant such an application, then the defendant would be unable to cross examine the makers of the hearsay statements. Nevertheless, it was open to them, in accordance with the Civil Evidence Act, to submit that the court should place little or no weight upon material that had not been tested by way of cross examination.

Section 4(1) Civil Evidence Act 1995 states that:

In estimating the weight (if any) to be given to hearsay evidence in civil proceedings, the court shall have regard to any circumstances from which any inference can reasonably be drawn as to the reliability or otherwise of the evidence.

The High Court has emphasised that the use of the words "if any" shows that some hearsay evidence may be given no weight at all. For an ASBO to be made, the applicant had to prove beyond all reasonable doubt that the respondent had behaved in an anti-social manner. The applicant could rely on hearsay evidence. However, the Court of Appeal has stated that it does not expect a court to find that the criminal standard has been reached by relying solely on hearsay evidence. The Civil Evidence Act 1995 itself makes clear that courts should consider what weight, if any at all, attaches to hearsay material. In Cleary, the Court of Appeal again restated that courts should consider attaching no weight at all to such material, in accordance with the words of the statute.

It is for the court to decide what weight to give the hearsay evidence. The Court of Appeal has stated that the high standard of proof is difficult to meet if the entirety of the case, or the majority of it, is based upon hearsay evidence. The proper approach would be for a court to consider to what extent the hearsay evidence is, amongst other things, supported by other evidence, the cogency and similarity of supporting instances of hearsay evidence, and the cogency and reliability of contradictory evidence supplied by a defendant.

Where, for example, ten anonymous witnesses who are unrelated to each other each provide a witness statement as to the defendant's anti-social behaviour, where each statement refers independently to the same particular events, and where this is supported by a witness statement from a non-anonymous witness, such as a housing officer who confirms that residents have made complaints about a particular person over a period of time, then the court may be justified in according to the statements a fair degree of weight.

Typical ASBOs

An ABSO was an order of the court which told an individual aged over 10 years how they must not behave.

An order could contain only negative prohibitions. It could not contain a positive obligation. To obtain an ASBO, a two-stage test had to be satisfied by the applicant authority (see: s.1(1) Crime and Disorder Act 1998). The first test was that the defendant had committed acts causing or likely to cause harassment, alarm, or distress within six months of the date of issue of the summons. The second test was that an order was necessary to protect persons from further anti-social behaviour.

The applicant had to satisfy the court that the individual had acted in an anti-social manner—that is to say, in a manner that caused, or was likely to cause, harassment, alarm, or distress to one or more persons not of the same household as themself. A court could order an ASBO only if such an order was "necessary". Further, each prohibited act would usually be an act preparatory to a criminal offence, rather than the offence itself—but not always (see: Rabess v Commissioner of Police of the Metropolis [2007] EWHC 208 (Admin)). In addition, each prohibition itself had to be necessary.

An order had to be tailor-made for the individual defendant. The ASBO represented "a form of personalised criminal law." It had to be relevant to their particular anti-social behaviour. Orders should not have been drafted too widely or imprecisely. Each prohibition had to be necessary.

An ASBO was very similar to a civil injunction, even though the differences are important. First: the injunction was supposed to protect the world at large, in a given geographical area, rather than an individual. Second: breach of an ASBO was a criminal offence to be tried in a criminal court, applying the criminal standard of beyond all reasonable doubt. A power of committal to prison was available for breach of a civil injunction, but a court was unlikely to exercise that power. A person subject to an anti-social behaviour order where it did not follow a criminal conviction had an automatic right of appeal against both the making of the order and its terms to a higher court. There was also the availability of an appeal to the High Court by way of "case stated". There was no appeal against the variation of orders, and variation was used to add extra conditions, and to extend the duration of ASBOs.

An application for an ASBO was considered by the courts in its civil jurisdiction, and was a civil order. However, breach of an ASBO was a criminal offence, and conviction could result in up to five years' imprisonment (two for a minor). Subsequent legislation compelled magistrates to make a Parenting Order, where a person under the age of 16 breached their ASBO.

Other examples:

Less common ASBOs

Less common and more conventional uses of ASBOs, as listed by a report to the Home Office to illustrate the difficulties with ASBOs, include:

  • Two teenage boys from east Manchester forbidden to wear one golf glove, as it was a symbol of membership of a particular gang.
  • A 13-year-old forbidden to use the word "grass" as a term of abuse in order to threaten people.
  • A 15-year-old forbidden to play football in his street.
  • A farmer (the first to be given an ASBO) who was instructed to keep his geese and pigs from damaging his neighbour's property.
  • An 18-year-old ordered not to congregate with three or more other youths. He entered a local youth club that had a good reputation, and was arrested because there were more than three youths on the premises. He was intending to attend an event there on how to deal with anti-social behaviour.

Reception

From their inception, ASBOs were controversial. They were criticised as being "without strong and principled justification", a distraction from the failure of the government's law and order policies, a "recipe for institutionalised vigilantism", and an "emblem of punitive populism". Andrew Rutherford commented that the "ASBO provides a particularly striking example of the criminalisation of social policy". A MORI opinion poll published on 9 June 2005 found that 82% of the British public were in favour of ASBOs; however, only 39% believed they were effective in their current form. A 2012 survey by Angus Reid Public Opinion showed that only 8% of Britons believed ASBOs had been successful in curbing anti-social behaviour in the UK.

Other parties voiced concerns about the open-ended nature of ASBO penalties—that is, there is little restriction on what a court may impose as the terms of the ASBO, and little restriction on what can be designated as antisocial behaviour. In 2005, critics reported that only around 3% of ASBO applications had been turned down. In July 2007, the Local Government Ombudsman published a report criticising Manchester City Council for serving an ASBO based purely on uncorroborated reports of nuisance by a neighbour, and the Council agreed to pay £2000 in compensation.

A 2005 memorandum submitted by the National Association of Probation Officers (NAPO) asserted that "there is ample evidence of the issuing of ASBOs by the courts being inconsistent and almost a geographical lottery. There is great concern that people are being jailed following the breach of an ASBO, where the original offence was itself non-imprisonable. There is also evidence that ASBOs have been used where people have mental health problems where treatment would be more appropriate. In NAPO's view, the time is right for a fundamental review of the use and appropriateness of Anti-social Behaviour Orders by the Home Office."

In 2002, Home Office data stated that in the cases where information was available, there was a high proportion where some mitigating factor appeared to have contributed to their behaviour. Almost 15 used substances, and 16 were consuming excessive amounts of alcohol. Overall, 44% were engaging in substance use or had a learning disability, and a further 16% included persons with psychological and behaviour problems in the family. Similar results were found in Scotland. A casefile review showed that 55% of those given ASBOs had substance use disorders, mental health, or learning disability problems. (see: The Use of ASBOs in Scotland, H. Pawson, School of The Built Environment, Heriot-Watt University, Edinburgh, 2007.)

In 2005, a survey of Youth Offending Teams by the British Institute for Brain Injured Children showed that 38% of ASBOs went to young people with significant mental disorders. Problems included: clinical depression, suicidal tendencies, autism, psychosis, personality disorders, learning disabilities, and ADHD; this raised the question of whether young people with these illnesses should be held to a lower standard of behaviour than others. By contrast, the same survey of ASBO teams gave only a 5% reported incidence of mental impairment. This massive difference suggests that most ASBO teams did not take into account mental health problems, even though the Home Office safeguards for vulnerable people in the ASBO process required it.

ASBO effectiveness has also been questioned. In a House of Commons reply, it was stated that 53.7% of ASBOs were breached in England in 2005; 69.4% in 2006; and 70.3% in 2007. In large cities, rates could be higher: the breach rate in Manchester reached 90.2% in 2007. This level of breaching raised an interesting issue. The first test to justify the issuing of an ASBO was that ASB had been proved to the criminal standard. The second test was that the order was necessary to prevent future acts of ASB, and provide protection to the victim(s). However, the criminal standard was not applied to the second test. Indeed, Lord Steyn (House of Lords in R (on the application of McCann) v. Manchester Crown Court [2003] 1 AC 787,812, para 37) is quoted:

The inquiry under section 1(1)(b), namely that such an order is necessary to protect persons from further anti-social acts by him, does not involve a standard of proof: it is an exercise of judgment or evaluation.

According to government evaluations (e.g. Housing Research Summary No. 230; DfCLG) in the "ASB Intensive Family Support" (Sin Bin) projects introduced to supplement ASBOs, 80% of the families targeted had serious mental/physical health and learning disability problems; one in five families had children affected with attention deficit hyperactivity disorder, and 60% of the families were recognised as victims of ASB. Project managers described many families as "easily scapegoated" in neighbour disputes. HRS 230 called for a review of both ASBO policy and investigation procedures in order to make the whole process fairer.

A later study of 53 projects by the National Centre For Social Research noted that 42% of children with mental health problems were reported to have ADHD or hyperactivity, and 29% were reported with depression or stress. Amongst adults, 69% had depression.

A later comprehensive review of Family Intervention Projects over a decade found little objective evidence for significant, sustained reduction in ASB in the families, and concluded that underlying mental health and disability problems remained largely unaddressed.

In the UK, there was criticism that an ASBO was sometimes viewed as a badge of honour by the youth.

Nacro, the biggest criminal justice-related charity in England and Wales, published two reports: the first claimed that ASBOs were a failure, due to being costly and slow to obtain; and the second criticised their use by the courts, with assertions that they were being used too hastily, before alternatives had been tried.

Insanity defense

From Wikipedia, the free encyclopedia
 

The insanity defense, also known as the mental disorder defense, is an affirmative defense by excuse in a criminal case, arguing that the defendant is not responsible for their actions due to an episodic or persistent psychiatric disease at the time of the criminal act. This is contrasted with an excuse of provocation, in which the defendant is responsible, but the responsibility is lessened due to a temporary mental state. It is also contrasted with a finding that a defendant cannot stand trial in a criminal case because a mental disease prevents their from effectively assisting counsel, from a civil finding in trusts and estates where a will is nullified because it was made when a mental disorder prevented a testator from recognizing the natural objects of their bounty, and from involuntary civil commitment to a mental institution, when anyone is found to be gravely disabled or to be a danger to themself or to others.

Exemption from full criminal punishment on such grounds dates back to at least the Code of Hammurabi. Legal definitions of insanity or mental disorder are varied, and include the M'Naghten Rule, the Durham rule, the 1953 British Royal Commission on Capital Punishment report, the ALI rule (American Legal Institute Model Penal Code rule), and other provisions, often relating to a lack of mens rea ("guilty mind"). In the criminal laws of Australia and Canada, statutory legislation enshrines the M'Naghten Rules, with the terms defense of mental disorder, defense of mental illness or not criminally responsible by reason of mental disorder employed. Being incapable of distinguishing right from wrong is one basis for being found to be legally insane as a criminal defense. It originated in the M'Naghten Rule, and has been reinterpreted and modernized through more recent cases, such as People v. Serravo.

In the United Kingdom, Ireland, and the United States, use of the defense is rare. Mitigating factors, including things not eligible for the insanity defense such as intoxication (or, more frequently, diminished capacity), may lead to reduced charges or reduced sentences.

The defense is based on evaluations by forensic mental health professionals with the appropriate test according to the jurisdiction. Their testimony guides the jury, but they are not allowed to testify to the accused's criminal responsibility, as this is a matter for the jury to decide. Similarly, mental health practitioners are restrained from making a judgment on the "ultimate issue"—whether the defendant is insane.

Some jurisdictions require the evaluation to address the defendant's ability to control their behavior at the time of the offense (the volitional limb). A defendant claiming the defense is pleading "not guilty by reason of insanity" (NGRI) or "guilty but insane or mentally ill" in some jurisdictions which, if successful, may result in the defendant being committed to a psychiatric facility for an indeterminate period.

Non compos mentis

Non compos mentis (Latin) is a legal term meaning "not of sound mind". Non compos mentis derives from the Latin non meaning "not", compos meaning "having command" or "composed", and mentis (genitive singular of mens), meaning "of mind". It is the direct opposite of Compos mentis (of a sound mind).

Although typically used in law, this term can also be used metaphorically or figuratively; e.g. when one is in a confused state, intoxicated, or not of sound mind. The term may be applied when a determination of competency needs to be made by a physician for purposes of obtaining informed consent for treatments and, if necessary, assigning a surrogate to make health care decisions. While the proper sphere for this determination is in a court of law, this is practically, and most frequently, made by physicians in the clinical setting.

In English law, the rule of non compos mentis was most commonly used when the defendant invoked religious or magical explanations for behaviour.

History

The concept of defense by insanity has existed since ancient Greece and Rome. However, in colonial America a delusional Dorothy Talbye was hanged in 1638 for murdering her daughter, as at the time Massachusetts's common law made no distinction between insanity (or mental illness) and criminal behavior. Edward II, under English Common law, declared that a person was insane if their mental capacity was no more than that of a "wild beast" (in the sense of a dumb animal, rather than being frenzied). The first complete transcript of an insanity trial dates to 1724. It is likely that the insane, like those under 14, were spared trial by ordeal. When trial by jury replaced this, the jury members were expected to find the insane guilty but then refer the case to the King for a Royal Pardon. From 1500 onwards, juries could acquit the insane, and detention required a separate civil procedure. The Criminal Lunatics Act 1800, passed with retrospective effect following the acquittal of James Hadfield, mandated detention at the regent's pleasure (indefinitely) even for those who, although insane at the time of the offence, were now sane.

The M'Naghten Rules of 1843 were not a codification or definition of insanity but rather the responses of a panel of judges to hypothetical questions posed by Parliament in the wake of Daniel M'Naghten's acquittal for the homicide of Edward Drummond, whom he mistook for British Prime Minister Robert Peel. The rules define the defense as "at the time of committing the act the party accused was labouring under such a defect of reason, from disease of the mind, as not to know the nature and quality of the act he was doing, or as not to know that what he was doing was wrong." The key is that the defendant could not appreciate the nature of their actions during the commission of the crime.

In Ford v. Wainwright 477 U.S. 399 (1986), the US Supreme Court upheld the common law rule that the insane cannot be executed. It further stated that a person under the death penalty is entitled to a competency evaluation and to an evidentiary hearing in court on the question of their competency to be executed. In Wainwright v. Greenfield, the Court ruled that it was fundamentally unfair for the prosecutor to comment during the court proceedings on the petitioner's silence invoked as a result of a Miranda warning. The prosecutor had argued that the respondent's silence after receiving Miranda warnings was evidence of his sanity.

Application

Incompetency and mental illness

An important distinction to be made is the difference between competency and criminal responsibility.

  • The issue of competency is whether a defendant is able to adequately assist their attorney in preparing a defense, make informed decisions about trial strategy and whether to plead guilty, accept a plea agreement or plead not guilty. This issue is dealt with in UK law as "fitness to plead".

Competency largely deals with the defendant's present condition, while criminal responsibility addresses the condition at the time the crime was committed.

In the United States, a trial in which the insanity defense is invoked typically involves the testimony of psychiatrists or psychologists who will, as expert witnesses, present opinions on the defendant's state of mind at the time of the offense.

Therefore, a person whose mental disorder is not in dispute is determined to be sane if the court decides that despite a "mental illness" the defendant was responsible for the acts committed and will be treated in court as a normal defendant. If the person has a mental illness and it is determined that the mental illness interfered with the person's ability to determine right from wrong (and other associated criteria a jurisdiction may have) and if the person is willing to plead guilty or is proven guilty in a court of law, some jurisdictions have an alternative option known as either a Guilty but Mentally Ill (GBMI) or a Guilty but Insane verdict. The GBMI verdict is available as an alternative to, rather than in lieu of, a "not guilty by reason of insanity" verdict. Michigan (1975) was the first state to create a GBMI verdict, after two prisoners released after being found NGRI committed violent crimes within a year of release, one raping two women and the other killing his wife.

Temporary insanity

The notion of temporary insanity argues that a defendant was insane during the commission of a crime, but they later regained their sanity after the criminal act was carried out. This legal defense is commonly used to defend individuals that have committed crimes of passion. The defense was first successfully used by U.S. Congressman Daniel Sickles of New York in 1859 after he had killed his wife's lover, Philip Barton Key.

Mitigating factors and diminished capacity

The United States Supreme Court (in Penry v. Lynaugh) and the United States Court of Appeals for the Fifth Circuit (in Bigby v. Dretke) have been clear in their decisions that jury instructions in death penalty cases that do not ask about mitigating factors regarding the defendant's mental health violate the defendant's Eighth Amendment rights, saying that the jury is to be instructed to consider mitigating factors when answering unrelated questions. This ruling suggests specific explanations to the jury are necessary to weigh mitigating factors.

Diminished responsibility or diminished capacity can be employed as a mitigating factor or partial defense to crimes. In the United States, diminished capacity is applicable to more circumstances than the insanity defense. The Homicide Act 1957 is the statutory basis for the defense of diminished responsibility in England and Wales, whereas in Scotland it is a product of case law. The number of findings of diminished responsibility has been matched by a fall in unfitness to plead and insanity findings. A plea of diminished capacity is different from a plea of insanity in that "reason of insanity" is a full defense while "diminished capacity" is merely a plea to a lesser crime.

Withdrawal or refusal of defense

Several cases have ruled that persons found not guilty by reason of insanity may not withdraw the defense in a habeas petition to pursue an alternative, although there have been exceptions in other rulings. In Colorado v. Connelly, 700 A.2d 694 (Conn. App. Ct. 1997), the petitioner who had originally been found not guilty by reason of insanity and committed for ten years to the jurisdiction of a Psychiatric Security Review Board, filed a pro se writ of habeas corpus and the court vacated his insanity acquittal. He was granted a new trial and found guilty of the original charges, receiving a prison sentence of 40 years.

In the landmark case of Frendak v. United States in 1979, the court ruled that the insanity defense cannot be imposed upon an unwilling defendant if an intelligent defendant voluntarily wishes to forgo the defense.

Usage

This increased coverage gives the impression that the defense is widely used, but this is not the case. According to an eight-state study, the insanity defense is used in less than 1% of all court cases and, when used, has only a 26% success rate. Of those cases that were successful, 90% of the defendants had been previously diagnosed with mental illness.

Psychiatric treatment

Those found to have been not guilty by reason of mental disorder or insanity are generally then required to undergo psychiatric treatment in a mental institution, except in the case of temporary insanity (see below). In England and Wales, under the Criminal Procedure (Insanity and Unfitness to Plead) Act of 1991 (amended by the Domestic Violence, Crime and Victims Act, 2004 to remove the option of a guardianship order), the court can mandate a hospital order, a restriction order (where release from hospital requires the permission of the Home Secretary), a "supervision and treatment" order, or an absolute discharge. Unlike defendants who are found guilty of a crime, they are not institutionalized for a fixed period, but rather held in the institution until they are determined not to be a threat. Authorities making this decision tend to be cautious, and as a result, defendants can often be institutionalized for longer than they would have been incarcerated in prison.

Worldwide

Australia

In Australia there are nine law units, each of which may have different rules governing mental impairment defenses.

South Australia

In South Australia, the Criminal Law Consolidation Act 1935 (SA) provides that: 269C—Mental competence

A person is mentally incompetent to commit an offence if, at the time of the conduct alleged to give rise to the offence, the person is suffering from a mental impairment and, in consequence of the mental impairment—

(a) does not know the nature and quality of the conduct; or
(b) does not know that the conduct is wrong; or
(c) is unable to control the conduct.

269H—Mental unfitness to stand trial

A person is mentally unfit to stand trial on a charge of an offence if the person's mental processes are so disordered or impaired that the person is—

(a) unable to understand, or to respond rationally to, the charge or the allegations on which the charge is based; or
(b) unable to exercise (or to give rational instructions about the exercise of) procedural rights (such as, for example, the right to challenge jurors); or
(c) unable to understand the nature of the proceedings, or to follow the evidence or the course of the proceedings.

Victoria

In Victoria the current defence of mental impairment was introduced in the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 which replaced the common law defence of insanity and indefinite detention at the governor's pleasure with the following:

the accused was suffering from a mental impairment; and
the mental impairment affected the accused so they either did not understand the nature and quality of the conduct, or did not know that it was wrong.

These requirements are almost identical to the M'Naghten Rules, substituting "mental impairment" for "disease of the mind".

New South Wales

In New South Wales, the defence has been renamed the 'Defence of Mental Illness' in Part 4 of the Mental Health (Forensic Provisions) Act 1990. However, definitions of the defence are derived from M'Naghten's case and have not been codified. Whether a particular condition amounts to a disease of the mind is not a medical but a legal question to be decided in accordance with the ordinary rules of interpretation. This defence is an exception to the Woolmington v DPP (1935) 'golden thread', as the party raising the issue of the defence of mental illness bears the burden of proving this defence on the balance of probabilities. Generally, the defence will raise the issue of insanity. However, the prosecution can raise it in exceptional circumstances: R v Ayoub (1984).

Australian cases have further qualified and explained the M'Naghten Rules. The NSW Supreme Court has held there are two limbs to the M'Naghten Rules, that the accused did not know what he was doing, or that the accused did not appreciate that what he was doing was morally wrong, in both cases the accused must be operating under a 'defect of reason, from a disease of the mind'. The High Court in R v Porter stated that the condition of the accused's mind is relevant only at the time of the actus reus. In Woodbridge v The Queen the court stated that a symptom indicating a disease of the mind must be prone to recur and be the result of an underlying pathological infirmity. A ‘defect of reason’ is the inability to think rationally and pertains to incapacity to reason, rather than having unsound ideas or difficulty with such a task. Examples of disease of the mind include Arteriosclerosis (considered so because the hardening of the arteries affects the mind.

Canada

Criminal Code provisions

The defence of mental disorder is codified in section 16 of the Criminal Code which states, in part:

16. (1) No person is criminally responsible for an act committed or an omission made while suffering from a mental disorder that rendered the person incapable of appreciating the nature and quality of the act or omission or of knowing that it was wrong.

To establish a claim of mental disorder the party raising the issue must show on a balance of probabilities first that the person who committed the act was suffering from a "disease of the mind", and second, that at the time of the offence they were either 1) unable to appreciate the "nature and quality" of the act, or 2) did not know it was "wrong".

The meaning of the word "wrong" was determined in the Supreme Court case of R. v. Chaulk [1990] 3 S.C.R. which held that "wrong" was NOT restricted to "legally wrong" but to "morally wrong" as well.

Post-verdict conditions

The current legislative scheme was created by the Parliament of Canada after the previous scheme was found unconstitutional by the Supreme Court of Canada in R. v. Swain. The new provisions also replaced the old insanity defense with the current mental disorder defence.

Once a person is found not criminally responsible ("NCR"), they will have a hearing by a Review Board within 45 days (90 days if the court extends the delay). A Review Board is established under Part XX.1 of the Criminal Code and is composed of at least three members, a person who is a judge or eligible to be a judge, a psychiatrist and another expert in a relevant field, such as social work, criminology or psychology. Parties at a Review Board hearing are usually the accused, the Crown and the hospital responsible for the supervision or assessment of the accused. A Review Board is responsible for both accused persons found NCR or accused persons found unfit to stand trial on account of mental disorder. A Review Board dealing with an NCR offender must consider two questions: whether the accused is a "significant threat to the safety of the public" and, if so, what the "least onerous and least restrictive" restrictions on the liberty of the accused should be in order to mitigate such a threat. Proceedings before a Review Board are inquisitorial rather than adversarial. Often the Review Board will be active in conducting an inquiry. Where the Review Board is unable to conclude that the accused is a significant threat to the safety of the public, the review board must grant the accused an absolute discharge, an order essentially terminating the jurisdiction of the criminal law over the accused. Otherwise, the Review Board must order that the accused be either discharged subject to conditions or detained in a hospital, both subject to conditions. The conditions imposed must be the least onerous and least restrictive necessary to mitigate any danger the accused may pose to others.

Since the Review Board is empowered under criminal law powers under s. 91(27) of the Constitution Act, 1867 the sole justification for its jurisdiction is public safety. Therefore, the nature of the inquiry is the danger the accused may pose to public safety rather than whether the accused is "cured". For instance, many "sick" accused persons are discharged absolutely on the basis that they are not a danger to the public while many "sane" accused are detained on the basis that they are dangerous. Moreover, the notion of "significant threat to the safety of the public" is a "criminal threat". This means that the Review Board must find that the threat posed by the accused is of a criminal nature.

While proceedings before a Review Board are less formal than in court, there are many procedural safeguards available to the accused given the potential indefinite nature of Part XX.1. Any party may appeal against the decision of a Review Board.

In 1992 when the new mental disorder provisions were enacted, Parliament included "capping" provisions which were to be enacted at a later date. These capping provisions limited the jurisdiction of a Review Board over an accused based on the maximum potential sentence had the accused been convicted (e.g. there would be a cap of 5 years if the maximum penalty for the index offence is 5 years). However, these provisions were never proclaimed into force and were subsequently repealed.

A Review Board must hold a hearing every 12 months (unless extended to 24 months) until the accused is discharged absolutely.

Accused unfit to stand trial

The issue of mental disorder may also come into play before a trial even begins if the accused's mental state prevents the accused from being able to appreciate the nature of a trial and to conduct a defence.

An accused who is found to be unfit to stand trial is subject to the jurisdiction a Review Board. While the considerations are essentially the same, there are a few provisions which apply only to unfit accused. A Review Board must determine whether the accused is fit to stand trial. Regardless of the determination, the Review Board must then determine what conditions should be imposed on the accused, considering both the protection of the public and the maintenance of the fitness of the accused (or conditions which would render the accused fit). Previously an absolute discharge was unavailable to an unfit accused. However, in R. v. Demers, the Supreme Court of Canada struck down the provision restricting the availability of an absolute discharge to an accused person who is deemed both "permanently unfit" and not a significant threat to the safety of the public. Presently a Review Board may recommend a judicial stay of proceedings in the event that it finds the accused both "permanently unfit" and non-dangerous. The decision is left to the court having jurisdiction over the accused.

An additional requirement for an unfit accused is the holding of a "prima facie case" hearing every two years. The Crown must demonstrate to the court having jurisdiction over the accused that it still has sufficient evidence to try the accused. If the Crown fails to meet this burden then the accused is discharged and proceedings are terminated. The nature of the hearing is virtually identical to that of a preliminary hearing.

Denmark

In Denmark a psychotic person who commits a criminal defense is declared guilty but is sentenced to mandatory treatment instead of prison. Section 16 of the penal code states that "Persons, who, at the time of the act, were irresponsible owing to mental illness or similar conditions or to a pronounced mental deficiency, are not punishable". This means that in Denmark, 'insanity' is a legal term rather than a medical term and that the court retains the authority to decide whether an accused person is irresponsible.

Finland

In Finland, punishments can only be administered if the accused is compos mentis, of sound mind; not if the accused is insane (syyntakeeton, literally "unable to guarantee [shoulder the responsibility of] guilt"). Thus, an insane defendant may be found guilty based on the facts and their actions just as a sane defendant, but the insanity will only affect the punishment. The definition of insanity is similar to the M'Naught criterion above: "the accused is insane, if during the act, due to a mental illness, profound mental retardation or a severe disruption of mental health or consciousness, he cannot understand the actual nature of his act or its illegality, or that his ability to control his behavior is critically weakened". If an accused is suspected to be insane, the court must consult the National Institute for Health and Welfare (THL), which is obliged to place the accused in involuntary commitment if they are found insane. The offender receives no judicial punishment; they become a patient under the jurisdiction of THL, and must be released immediately once the conditions of involuntary commitment are no longer fulfilled. Diminished responsibility is also available, resulting in lighter sentences.

Germany

According to section 20 of the German criminal code, those who commit an illegal act because a mental disorder makes them unable to see the wrong of the act or to act on this insight is considered not guilty.

Norway

In Norway, psychotic perpetrators are declared guilty but not punished and, instead of prison, they are sentenced to mandatory treatment. Section 44 of the penal code states specifically that "a person who at the time of the crime was insane or unconscious is not punished". It is the responsibility of a criminal court to consider whether the accused may have been psychotic or suffering from other severe mental defects when perpetrating a criminal act. Thus, even though he himself declared to be sane, the court hearing the case of Anders Behring Breivik considered the question of his sanity.

Japan

If the ability to recognize the right or wrong of action or the ability to act accordingly is lost due to a mental disorder, then the defendant cannot be pursued under Japanese criminal law so if this is recognized during a trial then an innocent judgment will be given. This is, however, rare, happening in only around 1 in 500,000 cases.

Poland

Insanity is determined through a judicial decision issued on the basis of expert opinions of psychiatrists and psychologists.

Russia

A forensic psychiatric examination is used to establish insanity. The result of the forensic examination is then subjected to a legal assessment, taking into account other circumstances of the case, from which a conclusion is drawn about the defendant's sanity or insanity. The Criminal Code of Russia establishes that a person who during the commission of an illegal act was in a state of insanity, that is, could not be aware of the actual nature and social danger of their actions or was unable to control them due to a chronic mental disorder, a temporary mental disorder, or dementia is not subject to criminal liability.

Sweden

In Sweden, psychotic perpetrators are seen as accountable, but the sanction is, if they are psychotic at the time of the trial, forensic mental care.

United Kingdom

Although use of the insanity defense is rare, since the Criminal Procedure (Insanity and Unfitness to Plead) Act 1991, insanity pleas have steadily increased in the UK.

Scotland

The Scottish Law Commission, in its Discussion Paper No 122 on Insanity and Diminished Responsibility (2003), pp. 16/18, confirms that the law has not substantially changed from the position stated in Hume's Commentaries:

We may next attend to the case of those unfortunate persons, who have plead the miserable defense of idiocy or insanity. Which condition, if it is not an assumed or imperfect, but a genuine and thorough insanity, and is proved by the testimony of intelligent witnesses, makes the act like that of an infant, and equally bestows the privilege of an entire exemption from any manner of pain; Cum alterum innocentia concilii tuetur, alterum fati infelicitas excusat. I say, where the insanity is absolute, and is duly proved: For if reason and humanity enforce the plea in these circumstances, it is no less necessary to observe a caution and reserve in applying the law, as shall hinder it from being understood, that there is any privilege in a case of mere weakness of intellect, or a strange and moody humor, or a crazy and capricious or irritable temper. In none of these situations does or can the law excuse the offender. Because such constitutions are not exclusive of a competent understanding of the true state of the circumstances in which the deed is done, nor of the subsistence of some steady and evil passion, grounded in those circumstances, and directed to a certain object. To serve the purpose of a defense in law, the disorder must therefore amount to an absolute alienation of reason, ut continua mentis alienatione, omni intellectu careat - such a disease as deprives the patient of the knowledge of the true aspect and position of things about them - hinders them from distinguishing friend from foe - and gives them up to the impulse of their own distempered fancy.

The phrase "absolute alienation of reason" is still regarded as at the core of the defense in the modern law (see HM Advocate v Kidd (1960) JC 61 and Brennan v HM Advocate (1977)

United States

In the United States, variances in the insanity defense between states, and in the federal court system, are attributable to differences with respect to three key issues:

  1. Availability: whether the jurisdiction allows a defendant to raise the insanity defense,
  2. Definition: when the defense is available, what facts will support a finding of insanity, and
  3. Burden of proof: whether the defendant has the duty of proving insanity or the prosecutor has the duty of disproving insanity, and by what standard of proof.

In Foucha v. Louisiana (1992) the Supreme Court of the United States ruled that a person could not be held "indefinitely" for psychiatric treatment following a finding of not guilty by reason of insanity.

Availability

In the United States, a criminal defendant may plead insanity in federal court, and in the state courts of every state except for Idaho, Kansas, Montana, and Utah. However, defendants in states that disallow the insanity defense may still be able to demonstrate that a defendant was not capable of forming intent to commit a crime as a result of mental illness.

In Kahler v. Kansas (2020), the U.S. Supreme Court held, in a 6–3 ruling, that a state does not violate the Due Process Clause by abolishing an insanity defense based on a defendant's incapacity to distinguish right from wrong. The Court emphasized that state governments have broad discretion to choose laws defining "the precise relationship between criminal culpability and mental illness."

Definition

Each state and the federal court system currently uses one of the following "tests" to define insanity for purposes of the insanity defense. Over its decades of use the definition of insanity has been modified by statute, with changes to the availability of the insanity defense, what constitutes legal insanity, whether the prosecutor or defendant has the burden of proof, the standard of proof required at trial, trial procedures, and to commitment and release procedures for defendants who have been acquitted based on a finding of insanity.

M'Naghten test

The guidelines for the M'Naghten Rules, state, among other things, and evaluating the criminal responsibility for defendants claiming to be insane were settled in the British courts in the case of Daniel M'Naghten in 1843. M'Naghten was a Scottish woodcutter who killed the secretary to the prime minister, Edward Drummond, in a botched attempt to assassinate the prime minister himself. M'Naghten apparently believed that the prime minister was the architect of the myriad of personal and financial misfortunes that had befallen him. During his trial, nine witnesses testified to the fact that he was insane, and the jury acquitted him, finding him "not guilty by reason of insanity".

The House of Lords asked the judges of the common law courts to answer five questions on insanity as a criminal defence, and the formulation that emerged from their review—that a defendant should not be held responsible for their actions only if, as a result of their mental disease or defect, they (i) did not know that their act would be wrong; or (ii) did not understand the nature and quality of their actions—became the basis of the law governing legal responsibility in cases of insanity in England. Under the rules, loss of control because of mental illness was no defense. The M'Naghten rule was embraced with almost no modification by American courts and legislatures for more than 100 years, until the mid-20th century.

Durham/New Hampshire test

The strict M'Naghten standard for the insanity defense was widely used until the 1950s and the case of Durham v. United States case. In the Durham case, the court ruled that a defendant is entitled to acquittal if the crime was the product of their mental illness (i.e., crime would not have been committed but for the disease). The test, also called the Product Test, is broader than either the M'Naghten test or the irresistible impulse test. The test has more lenient guidelines for the insanity defense, but it addressed the issue of convicting mentally ill defendants, which was allowed under the M'Naghten Rule. However, the Durham standard drew much criticism because of its expansive definition of legal insanity.

Model Penal Code test

The Model Penal Code, published by the American Law Institute, provides a standard for legal insanity that serves as a compromise between the strict M'Naghten Rule, the lenient Durham ruling, and the irresistible impulse test. Under the MPC standard, which represents the modern trend, a defendant is not responsible for criminal conduct "if at the time of such conduct as a result of mental disease or defect he lacks substantial capacity either to appreciate the criminality of their conduct or to conform their conduct to the requirements of the law." The test thus takes into account both the cognitive and volitional capacity of insanity.

Federal courts

After the perpetrator of President Reagan's assassination attempt was found not guilty by reason of insanity, Congress passed the Insanity Defense Reform Act of 1984. Under this act, the burden of proof was shifted from the prosecution to the defense and the standard of evidence in federal trials was increased from a preponderance of evidence to clear and convincing evidence. The ALI test was discarded in favor of a new test that more closely resembled M'Naghten's. Under this new test only perpetrators suffering from severe mental illnesses at the time of the crime could successfully employ the insanity defense. The defendant's ability to control himself or herself was no longer a consideration.

The Act also curbed the scope of expert psychiatric testimony and adopted stricter procedures regarding the hospitalization and release of those found not guilty by reason of insanity.

Those acquitted of a federal offense by reason of insanity have not been able to challenge their psychiatric confinement through a writ of habeas corpus or other remedies. In Archuleta v. Hedrick, 365 F.3d 644 (8th Cir. 2004), the U.S. Court of Appeals for the Eighth Circuit the court ruled persons found not guilty by reason of insanity and later want to challenge their confinement may not attack their initial successful insanity defense:

The appellate court affirmed the lower court’s judgment: "Having thus elected to make himself a member of that ‘exceptional class’ of persons who seek verdicts of not guilty by reason of insanity...he cannot now be heard to complain of the statutory consequences of his election." The court held that no direct attack upon the final judgment of acquittal by reason of insanity was possible. It also held that the collateral attack that he was not informed that a possible alternative to his commitment was to ask for a new trial was not a meaningful alternative.

Guilty but mentally ill

As an alternative to the insanity defense, some jurisdictions permit a defendant to plead guilty but mentally ill. A defendant who is found guilty but mentally ill may be sentenced to mental health treatment, at the conclusion of which the defendant will serve the remainder of their sentence in the same manner as any other defendant.

Burden of proof

In a majority of states, the burden of proving insanity is placed on the defendant, who must prove insanity by a preponderance of the evidence.

In a minority of states, the burden is placed on the prosecution, who must prove sanity beyond reasonable doubt.

In federal court, and in Arizona, the burden is placed on the defendant, who must prove insanity by clear and convincing evidence. See 18 U.S.C.S. Sec. 17(b); see also A.R.S. Sec. 13-502(C).

Controversy

The insanity plea is used in the U.S Criminal Justice System in less than 1% of all criminal cases. Little is known about the criminal justice system and the mentally ill:

[T]here is no definitive study regarding the percentage of people with mental illness who come into contact with police, appear as criminal defendants, are incarcerated, or are under community supervision. Furthermore, the scope of this issue varies across jurisdictions. Accordingly, advocates should rely as much as possible on statistics collected by local and state government agencies.

Some U.S. states have begun to ban the use of the insanity defense, and in 1994 the Supreme Court denied a petition of certiorari seeking review of a Montana Supreme Court case that upheld Montana's abolition of the defense. Idaho, Kansas, and Utah have also banned the defense. However, a mentally ill defendant/patient can be found unfit to stand trial in these states. In 2001, the Nevada Supreme Court found that their state's abolition of the defense was unconstitutional as a violation of Federal due process. In 2006, the Supreme Court decided Clark v. Arizona upholding Arizona's limitations on the insanity defense. In that same ruling, the Court noted "We have never held that the Constitution mandates an insanity defense, nor have we held that the Constitution does not so require." In 2020, the Supreme Court decided Kahler v. Kansas upholding Kansas' abolition of the insanity defense, stating that the Constitution does not require Kansas to adopt an insanity test that turns on a defendant's ability to recognize that their crime was morally wrong.

The insanity defense is also complicated because of the underlying differences in philosophy between psychiatrists/psychologists and legal professionals. In the United States, a psychiatrist, psychologist or other mental health professional is often consulted as an expert witness in insanity cases, but the ultimate legal judgment of the defendant's sanity is determined by a jury, not by a mental health professional. In other words, mental health professionals provide testimony and professional opinion but are not ultimately responsible for answering legal questions.

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