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Psychiatric Justice
Dr. Szasz presents four case histories which highlight his contention that pretrial psychiatric examination and subsequent `hospitalization' are travesties `on justice and healing which ought to be repudiated by both the legal and medical professions."
- GenresMental HealthPsychology
Hardcover
First published January 1, 1978
About the author
Thomas Szasz
99 books329 followersThomas Stephen Szasz (pronounced /sas/; born April 15, 1920 in Budapest, Hungary) was a psychiatrist and academic. He was Professor Emeritus of Psychiatry at the State University of New York Health Science Center in Syracuse, New York. He was a prominent figure in the antipsychiatry movement, a well-known social critic of the moral and scientific foundations of psychiatry, and of the social control aims of medicine in modern society, as well as of scientism. He is well known for his books, The Myth of Mental Illness (1960) and The Manufacture of Madness: A Comparative Study of the Inquisition and the Mental Health Movement which set out some of the arguments with which he is most associated.
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October 15, 2025
WHAT SHOULD DECIDE IF SOMEONE IS FIT/UNFIT FOR A TRIAL?
Thomas Stephen Szasz (1920-2012) was a Hungarian-born psychiatrist who was professor of psychiatry at the State University of New York Upstate Medical University.
He wrote in the Preface to this 1965 book, “as the material assembled in this book shows, there is a widespread and increasing tendency in the United States to regard standing trial for a crime as a complex social performance, not unlike an occupation. Only some persons are considered capable of doing so; many others are deemed unfit. Who are these people? And on what grounds are they disqualified? Briefly stated, they are those deemed ‘mentally ill,’ barred on the grounds of psychiatric criteria. But this is no real answer; it is rather a series of words strung together to look like a sentence. The question is: How do we determine who is fit to stand trial and who is not? And what happens to those declared unfit? These are some of the questions I try to answer in this book.” (Pg. 9)
He continues, “the problem discussed in this book must be considered a part of the larger problem of social controls in a modern mass society. Regardless of their moral or political outlook, most men today agree that the modern state is the most awesome repository of power the world has ever known. Through its numerous and vast bureaucracies, such a state has the power to influence the life of the individual as never before. Is this good or bad? It is not easy to tell.” (Pg. 10-11)
He notes the “the double incrimination of a person as criminal and as mental patient. This is effected whenever an accused person is considered mentally until to stand trial and is ordered by the court, against his will, to submit to pretrial mental examinations (usually while confined in a mental hospital). Must jurisdictions in the United States countenance such double incrimination.” (Pg. 37)
He explains, “My thesis is simple. I hold that in a medical situation it is not enough to note who is the doctor and who the recipient of his medical attention. The latter is not necessarily a ‘patient’ nor the former a ‘physician’---at least not in the usual sense of these terms. Whenever the physician is employed by someone other than the patient, his loyalty and responsibility to his employer must be frankly recognized. In some cases such loyalty to third parties does not interfere with the physician’s conscientious care of the sick person. In others… it requires that the ‘patient’ be harmed rather than helped… (In the case of adults, I consider that an individual’s ‘best interests’ are whatever he himself says they are.)” (Pg. 56-57)
In a court trial, Szasz testified, “It is my personal opinion that doctors not retained by a patient, and especially doctors representing opposing interests, are in no position to render any psychiatric service… to that patient.” (Pg. 159)
He states, “The attempt by the prosecution to incriminate a defendant as a mental patient and thus deprive him of the right to trial is clearly displayed in the [Edwin A.] Walker case. It is evident that a person so attacked cannot effectively defend himself if he does not have the funds to procure the legal talent necessary for the task. In effect, anyone but a Very Important Person is defenseless against the prosecution’s ostensibly benevolent ‘suspicion’ that he is ‘too sick’ to stand trial.” (Pg. 221)
He summarizes, “The cases presented thus far illustrate how a person may be denied his right to trial by being ordered by the court to submit to pretrial psychiatric examination. If the accused is declared unfit to stand trial, he is incarcerated for months, years, or sometimes for life in an institution which, though ostensibly psychiatric, is actually penal in character.” (Pg. 226)
He notes, “One of the important traditional functions of the mental hospital is to serve as a kind of jail. This role is not a new role, foisted on the mental hospital by recent legislation… but on the contrary is an old role, merely given greater scope and significance than it has had before.” (Pg. 238-239)
He asserts, “If mental disease is the sort of thing I think it is, then fighting it with doctors and drugs is about as reasonable as fighting the War on Poverty … with generals and tanks.” (Pg. 250)
He suggests, “The recommendations I proposed flow logically from the point of view developed here and in my other writings on law and psychiatry. Let us be clear about our goal: To define and develop a functional---not a mentalistic---method of ascertaining competence to stand trial. Accordingly the psychiatrist… can play no part in this affair---either as decision-maker or as provider of ‘expert opinion.’ The responsibility for examining the defendant and for deciding his fitness to stand trial should be placed in the hands of one of the following persons or groups: (1) a judge or panel of judges; (b) a lawyer or panel of lawyers; (3) a lay jury.” (Pg. 255-256)
He provides more detail: "1. The Judge as Examiner… if we want to determine whether a person can defend himself against criminal charges, we need not call in a psychiatrist or a psychologist to test him; instead, we ought to entrust the task to a judge (or attorney, or layman)…” (Pg. 256) He admits, “judges might feel mystified by so-called mental illness, and believe that anyone suspected of such a dread malady should promptly be placed in the hands of physicians… In countering this argument, I would compare their doing so to referring defendants charged with witchcraft to theologians or witch-hunters.” (Pg. 258)
He continues, “2. The Attorney as Examiner… If a defense attorney accepts a client, this implies that he believes that his client is able to stand trial… Of course, this practice would greatly favor the prominent and well-to-do defendant over the unknown and indigent one. This difference cannot be completely eliminated… However, the indigent defendant… should have access to attorneys… appointed by the court or by Legal Aid societies…” (Pg 258-259)
He goes on, “3. The Layman as Examiner… commissioning of a panel composed of laymen… I believe that such a panel could adequately assess, and could find fit for trial, many defendants who now oppose pretrial psychiatric examination and are found psychically unfit to stand trial.” (Pg. 259)
He concludes, “involuntary mental hospitalization is a weapon in society’s battle against the individual; moreover, the use of this weapon, in contrast to traditional judicial sanctions, is not regulated by the principles of the process. I stand by my previous position that involuntary mental hospitalization, civil or criminal, has no place in a civilized, free society and must be abolished.” (Pg. 260)
He adds, however, that “I do not favor creating a ‘loophole’ for the easy escape of persons accused of crime and perhaps guilty of it. I believe that virtually everyone accused of crime should stand trial. To be sure, the scheme I have outlined would tend to benefit, rather than harm, some individuals declared incompetent to stand trial; it might, therefore, encourage the tactical use of this maneuver by certain defendants. I do not see how we can entirely prevent this.” (Pg. 262)
All of Szasz’s books are controversial---but his proposals/recommendations probably make this one even more controversial. (And note that some defendants/lawyers WANT to be sent to a mental hospital, rather than a state prison.)
Thomas Stephen Szasz (1920-2012) was a Hungarian-born psychiatrist who was professor of psychiatry at the State University of New York Upstate Medical University.
He wrote in the Preface to this 1965 book, “as the material assembled in this book shows, there is a widespread and increasing tendency in the United States to regard standing trial for a crime as a complex social performance, not unlike an occupation. Only some persons are considered capable of doing so; many others are deemed unfit. Who are these people? And on what grounds are they disqualified? Briefly stated, they are those deemed ‘mentally ill,’ barred on the grounds of psychiatric criteria. But this is no real answer; it is rather a series of words strung together to look like a sentence. The question is: How do we determine who is fit to stand trial and who is not? And what happens to those declared unfit? These are some of the questions I try to answer in this book.” (Pg. 9)
He continues, “the problem discussed in this book must be considered a part of the larger problem of social controls in a modern mass society. Regardless of their moral or political outlook, most men today agree that the modern state is the most awesome repository of power the world has ever known. Through its numerous and vast bureaucracies, such a state has the power to influence the life of the individual as never before. Is this good or bad? It is not easy to tell.” (Pg. 10-11)
He notes the “the double incrimination of a person as criminal and as mental patient. This is effected whenever an accused person is considered mentally until to stand trial and is ordered by the court, against his will, to submit to pretrial mental examinations (usually while confined in a mental hospital). Must jurisdictions in the United States countenance such double incrimination.” (Pg. 37)
He explains, “My thesis is simple. I hold that in a medical situation it is not enough to note who is the doctor and who the recipient of his medical attention. The latter is not necessarily a ‘patient’ nor the former a ‘physician’---at least not in the usual sense of these terms. Whenever the physician is employed by someone other than the patient, his loyalty and responsibility to his employer must be frankly recognized. In some cases such loyalty to third parties does not interfere with the physician’s conscientious care of the sick person. In others… it requires that the ‘patient’ be harmed rather than helped… (In the case of adults, I consider that an individual’s ‘best interests’ are whatever he himself says they are.)” (Pg. 56-57)
In a court trial, Szasz testified, “It is my personal opinion that doctors not retained by a patient, and especially doctors representing opposing interests, are in no position to render any psychiatric service… to that patient.” (Pg. 159)
He states, “The attempt by the prosecution to incriminate a defendant as a mental patient and thus deprive him of the right to trial is clearly displayed in the [Edwin A.] Walker case. It is evident that a person so attacked cannot effectively defend himself if he does not have the funds to procure the legal talent necessary for the task. In effect, anyone but a Very Important Person is defenseless against the prosecution’s ostensibly benevolent ‘suspicion’ that he is ‘too sick’ to stand trial.” (Pg. 221)
He summarizes, “The cases presented thus far illustrate how a person may be denied his right to trial by being ordered by the court to submit to pretrial psychiatric examination. If the accused is declared unfit to stand trial, he is incarcerated for months, years, or sometimes for life in an institution which, though ostensibly psychiatric, is actually penal in character.” (Pg. 226)
He notes, “One of the important traditional functions of the mental hospital is to serve as a kind of jail. This role is not a new role, foisted on the mental hospital by recent legislation… but on the contrary is an old role, merely given greater scope and significance than it has had before.” (Pg. 238-239)
He asserts, “If mental disease is the sort of thing I think it is, then fighting it with doctors and drugs is about as reasonable as fighting the War on Poverty … with generals and tanks.” (Pg. 250)
He suggests, “The recommendations I proposed flow logically from the point of view developed here and in my other writings on law and psychiatry. Let us be clear about our goal: To define and develop a functional---not a mentalistic---method of ascertaining competence to stand trial. Accordingly the psychiatrist… can play no part in this affair---either as decision-maker or as provider of ‘expert opinion.’ The responsibility for examining the defendant and for deciding his fitness to stand trial should be placed in the hands of one of the following persons or groups: (1) a judge or panel of judges; (b) a lawyer or panel of lawyers; (3) a lay jury.” (Pg. 255-256)
He provides more detail: "1. The Judge as Examiner… if we want to determine whether a person can defend himself against criminal charges, we need not call in a psychiatrist or a psychologist to test him; instead, we ought to entrust the task to a judge (or attorney, or layman)…” (Pg. 256) He admits, “judges might feel mystified by so-called mental illness, and believe that anyone suspected of such a dread malady should promptly be placed in the hands of physicians… In countering this argument, I would compare their doing so to referring defendants charged with witchcraft to theologians or witch-hunters.” (Pg. 258)
He continues, “2. The Attorney as Examiner… If a defense attorney accepts a client, this implies that he believes that his client is able to stand trial… Of course, this practice would greatly favor the prominent and well-to-do defendant over the unknown and indigent one. This difference cannot be completely eliminated… However, the indigent defendant… should have access to attorneys… appointed by the court or by Legal Aid societies…” (Pg 258-259)
He goes on, “3. The Layman as Examiner… commissioning of a panel composed of laymen… I believe that such a panel could adequately assess, and could find fit for trial, many defendants who now oppose pretrial psychiatric examination and are found psychically unfit to stand trial.” (Pg. 259)
He concludes, “involuntary mental hospitalization is a weapon in society’s battle against the individual; moreover, the use of this weapon, in contrast to traditional judicial sanctions, is not regulated by the principles of the process. I stand by my previous position that involuntary mental hospitalization, civil or criminal, has no place in a civilized, free society and must be abolished.” (Pg. 260)
He adds, however, that “I do not favor creating a ‘loophole’ for the easy escape of persons accused of crime and perhaps guilty of it. I believe that virtually everyone accused of crime should stand trial. To be sure, the scheme I have outlined would tend to benefit, rather than harm, some individuals declared incompetent to stand trial; it might, therefore, encourage the tactical use of this maneuver by certain defendants. I do not see how we can entirely prevent this.” (Pg. 262)
All of Szasz’s books are controversial---but his proposals/recommendations probably make this one even more controversial. (And note that some defendants/lawyers WANT to be sent to a mental hospital, rather than a state prison.)
August 3, 2016
I've long enjoyed the libertarian/civil liberties bent to Dr. Szasz's books. With the exception of his first, the one on pain, all have proven rewarding efforts, antidotes to the attitudes prevalent in modern psychiatry and jurisprudence, challenges to my conditioning.
This one is about the abuse of insanity/mental incapacity determinations in law, means by which the rights of citizens to fair and speedy trials, or to any trial at all, are circumvented. Most interesting to me was one of the four case studies presented, the one about retired General Walker--you know, the right-winger that Lee Harvey Oswald is purported to have attempted to kill.
This one is about the abuse of insanity/mental incapacity determinations in law, means by which the rights of citizens to fair and speedy trials, or to any trial at all, are circumvented. Most interesting to me was one of the four case studies presented, the one about retired General Walker--you know, the right-winger that Lee Harvey Oswald is purported to have attempted to kill.
Displaying 1 - 3 of 3 reviews