Chasing Gnat and Viper With an Equal Ferocity

In Flint, Mich., last February, a 6-year-old boy killed a classmate, but no one believes that he is responsible in any adult sense for this terrible event.

A judge ruled that the boy’s caretaker, his uncle, Jamelle James, must stand trial for involuntary manslaughter as a result of James’ criminal negligence in leaving a loaded gun around for the boy to find.

Yet in Riverside County, the district attorney’s office plans to prosecute Ann Marie Degree, a brain-damaged adult woman who is said to have the cognitive skills of a 6-year-old. Degree allegedly stole some candy and a soda from a hospital gift shop and assaulted a police officer in her hospital room when he tried to retrieve the stolen merchandise--a roll of Life Savers. “This was clearly felony conduct,” Deputy Dist. Atty. Richard Bentley told The Times.

Great. If you’re a real child, adults understand that you are a child, but if you are a brain-damaged adult with the capacity of a child, adults treat you like a responsible adult. I’m starting to think the mental problems we most need to worry about are those of supposedly normal grown-ups.

The Riverside case will be held up as another example of the debate about how the legal system should respond to defendants who are brain-damaged, psychotic or otherwise unable to control their impulses. This is a serious concern, one that prosecutors, defense attorneys and families of the mentally ill struggle with across the country, and it does not lend itself to simplistic answers.

For example, “brain damage” is a murky, complicated term with tremendous potential for over-diagnosis and misdiagnosis. Damage to what part of the brain? With what consequences? How severe is the impairment? Has the damage actually been identified, or is it simply inferred from the individual’s behavior? If damage is discovered through physiological measures, is it reliably associated with impairments in behavior, such as impulsive, disturbed behavior or violence? Degree suffered massive rupturing of brain blood vessels when she was 18, leaving her incapable of caring for herself.

Yet this case is not just about the obvious issue of treatment versus punishment for the mentally ill who commit crimes. Among the questions it raises is the matter of what it means to say that someone has the “cognitive abilities of a 6-year-old.” Children that age might indeed impulsively steal a roll of Life Savers, but they generally do not physically attack police officers or other adults who catch them at it. At 6, children understand right and wrong; they know the difference between being a good girl or boy and a naughty one; they know it’s wrong to steal. Degree is not 6 years old; she is mentally impaired. There’s a difference.

Yet in this lunatic era of zero tolerance, our society is not much interested in differences or nuances. The Riverside D.A. is responding to a culture that directs him to treat every offense the same way--punitively--and never mind the age, motives or mental condition of the offender. If you did it, you’re responsible.

This case does illuminate the question of responsibility, but not on the part of poor Ann Marie Degree. The district attorney should take responsibility for using good judgment in deciding what “felonies” warrant prosecution. The nurse who found the purloined items in Degree’s hospital room should have taken responsibility for calming down a distressed patient, quietly calling the family to pay the few bucks to the gift shop, instead of inflaming the situation by calling hospital security. Yet the nurse’s mindless and uncompassionate overreaction, like the D.A.’s, is the result of a system that, increasingly, goes after the gnat and the viper with equal ferocity. We can expect more cases like Degree’s as long as the punitive response is rewarded while kindness and common sense are not.