An Emerging Democracy’s Use of Forensic Psychiatry as Evidence in Criminal Trials: Modern Russian...

FORDHAM UNIVERSITY SCHOOL of LAW

An Emerging Democracy’s Use of Forensic Psychiatry as Evidence in Criminal Trials: Modern Russian Law & Practice in Light of History and Compared to the U.S.Paper submitted for Psychology & Criminal Law Professors Barry Rosenfeld (Ph.D. psych) & James Cohen (law)

ELIZABETH A. LEDKOVSKY, J.D. 2013

12/17/2012

An Emerging Democracy’s Use of Forensic Psychiatry as Evidence in Criminal Trials: Modern Russian Law & Practice in Light of History and Compared to the U.S.

Prepared for

Psychology & Criminal Law Professors Barry Rosenfeld (Ph.D. psych) & James Cohen (law)

Fordham School of Law - fall 2012

submitted by Elizabeth A. Ledkovsky, J.D. Candidate

December 17, 2012

Table of Contents

Abstract ........................................................................................................................................................ 1

Introduction .................................................................................................................................................. 2

Part I: From “Evil Empire” to “Emerging Democracy”: A History of Russian Criminal Law ....................... 5

Part II: Criminal Justice & Forensic Psychiatry: A Soviet Tool of Abuse, A Russian Target for Reform .... 7

A. Dark Times: Soviet “Justice” Meted Out by Doctors, Not Jurists .......................................................... 7

B. Post‐Soviet Reformation ...................................................................................................................... 11

C. Shifting the Russian Paradigm ............................................................................................................. 14

Part III: Forensic Psychiatry as Used in Modern Russia & Compared to the U.S. .................................... 20

A. Twenty Years On . . . ........................................................................................................................... 20

B. Truth, Justice, The American Way ....................................................................................................... 24

Part IV: Reformed or Regressing? .............................................................................................................. 30

Conclusion .................................................................................................................................................. 31

An Emerging Democracy’s Use of Forensic Psychiatry as Evidence in Criminal Trials: Modern Russian Law & Practice in Light of History and Compared to the U.S.

Prepared for

Psychology & Criminal Law Professors Barry Rosenfeld (Ph.D. psych) & James Cohen (law)

Fordham School of Law - fall 2012

submitted by Elizabeth A. Ledkovsky, J.D. Candidate

ABSTRACT

Abuse of psychiatry as a means to prosecute — and persecute —individuals is an

issue that has received a great deal of attention, starting in the 1970s, when international

observers deemed it a rampant problem in the Soviet Union (a problem that the U.S.S.R.

denied, denouncing criticism as geo-political slander). Since the emergence of the

Russian Federation as a constitutional democracy, abuses of the past are no longer

contested, but, rather, have been the subjects of reform, at least nominally.

This paper provides a brief, general description of Russia’s use of forensic

psychiatry in its criminal justice system, beginning with an overview of its history to

provide context. It then examines the current usage of expert testimony, notoriously

abused under the Soviet regime, and compares present day standards against the

prevailing United States standards. Finally, the paper briefly discusses a recent trial—

the internationally watched criminal proceedings against members of a punk rock band,

in which psychiatric experts were called upon to provide testimony that contributed to

the prosecution and continued incarceration of civil disobedience actors. In conclusion,

the paper invites consideration of whether or not Russia has made the progress in

practice that it has made on paper, or, perhaps, has regressed.

2 | P a g e An Emerging Democracy’s Use of Forensic Psychiatry as Evidence in Criminal Trials: Modern Russian Law & Practice in Light of History and Compared to the U.S.

INTRODUCTION

Russian culture, marked by a people that can be characterized either as deeply

religious or highly superstitious, is, at its highest level, genuinely fascinated with

questions of morality and justice and has long been intrigued by the criminal psyche.

Feodor Dostoevsky’s novel CRIME AND PUNISHMENT stands as one of literature’s

masterpieces, examining a criminal’s inner torment.1 But as a society, Russia has

fluctuated in its treatment of individuals accused of crime, owing to the dramatic

variations in its governance over the last century. Imperial Russia’s theocracy,

influenced by its intelligentsia at various times to varying degrees,2 defeated Napoleon3

and abolished serfdom4 in the 19th century, but less than two decades into the 20th

century, suffered a bloody overthrow from within5 that gave the world a totalitarian

state, repressive and murderous of its own people and powerful enough to polarize the

1 First published in 1866 and since translated into many languages, this classic, along with criticism and commentary, may be read on‐line through various sources, such as at http://www.bartleby.com/318/, and http://www.gutenberg.org/files/2554/2554‐h/2554‐h.htm, or http://www.online‐literature.com/dostoevsky/crimeandpunishment/ (all last visited Nov. 21, 2012). 2 How much influence was permitted depended on the personality of the Tsar, whose brutality or kindness “trickled down” through the aristocracy. A unique historical perspective on Imperial Russia, provided through French eyes, is the 1864 travelogue by the Marquis du Custine, which is now available as an e‐book. ASTOLPHE CUSTINE, EMPIRE OF THE CZAR: A JOURNEY THROUGH ETERNAL RUSSIA, 227, at http://books.google.com/books?id=ksgDAAAAQAAJ&pg=PR1&source=gbs_selected_pages&cad=3#v=onepage&q&f=false (last visited Nov. 21, 2012). 3 Famously, in 1812, under the rule of Tsar Alexander I. It was not just the bitter Moscow winter that did Bonaparte in: he underestimated the formidable tactical abilities of his foe, General Mikhail Kutuzov. See generally ALEXANDER MIKABERIDZE, THE BATTLE OF BORODINO: NAPOLEON AGAINST KUTUZOV, (Pen & Sword Books 2011). 4 Tsar Alexander II decreed an end to serfdom on February 19, 1861, later than most European countries, but two months before the civil war broke out in the United States over the issue of slavery. EDVARD RADZINSKY, ALEXANDER II: THE LAST GREAT TSAR, 131 (Antonina W. Bouis, trans., Simon & Schuster 2005). 5 The eminent Harvard historian Richard Pipes argues that the intelligentsia led the revolution (Richard Pipes, RUSSIA UNDER THE BOLSHEVIK REGIME, 494‐495 (Vintage Books 1995)), but descendants of that intelligentsia dispute and even take umbrage to this characterization of the revolutionary Bolsheviks. See VLADIMIR C. NAHIRNY, THE RUSSIAN INTELLIGENTSIA: FROM TORMENT TO SILENCE (New Brunswick, Transaction Books 1983). A compelling view lays the blame at a perfect storm that took decades to develop. ORLANDO FIGES, A PEOPLE’S TRAGEDY: A HISTORY OF THE RUSSIAN REVOLUTION (Random House, 1997).

An Emerging Democracy’s Use of Forensic Psychiatry as Evidence in Criminal Trials: P a g e | 3 Modern Russian Law & Practice in Light of History and Compared to the U.S.

world into a cold war.6 Since communism’s remarkably bloodless collapse, Russia has

often been described an emerging democracy.7 Highly corrupt8 and rife with oligarchs,9

Russia is nonetheless inarguably a freer society today than it was a few short decades

ago.10

Through all of this, the criminal justice system, such as it is, is an evolving

novelty, monitored by human rights groups and international watchdogs.11 With this

has come the evolution of forensic psychology in Russia, from its Soviet-era usage as an

abusive tool for bogus sentences, wielded especially to justify incarceration of political

dissidents,12 to a legitimate scientific field, increasingly relevant to the international

community of academic, medical, and legal scholars.

6 See KENNETH W. THOMPSON, COLD WAR THEORIES (La. St. U. Press 1981). 7 For example, by American legislators.147 CONG. REC. H24,854 (daily ed. Dec. 11, 2001) (statement of Rep. Christopher Smith). 8 Only 40 of the world’s 183 countries are rated worse than Russia when it comes to corruption, per the 2011 Corruption Perceptions Index by Transparency International, an independent, international, non‐partisan anti‐corruption coalition. See http://www.transparency.org/country#RUS (last visited Nov. 22, 2012). 9 DAVID M. KOTZ & FRED WEIR, RUSSIA’S PATH FROM GORBACHEV TO PUTIN: THE DEMISE OF THE SOVIET SYSTEM AND THE NEW

RUSSIA, 212‐223 (Routledge, 2007). 10 If for no other reason than because of the rise of the Internet, which is a primary forum of political and social discourse and remains open in Russia, for now, notwithstanding that, in July, 2012, Russia’s Parliament passed legislation permitting certain websites to be blacklisted. Lukas I. Alpert, Russian Duma Passes Internet Censorship Bill, WALL ST. J., July 11, 2012, http://online.wsj.com/article/SB10001424052702303740704577521050751239314.html. See also Concerns over Internet Censorship in Russia, Deutsche Welle, Nov. 13, 2012, http://www.dw.de/concerns‐over‐internet‐censorship‐in‐russia/a‐16374975. 11 For example, see Human Rights Watch, Human Rights in Russia, http://www.hrw.org/europecentral‐asia/russia (last visited Nov. 23, 2012) and the extensive resources provided by UNHCR, the United Nations’ Refugee Agency, http://www.unhcr.org/cgi‐bin/texis/vtx/refworld/rwmain. 12 This issue was examined extensively by the World Psychiatric Association (WPA) and the American Psychiatric Association (APA) in the 1970s and 80s. Their findings were received by Soviet authorities as slanderous and led to the U.S.S.R.’s withdrawal from the WPA in 1983, by a letter from the Soviet All‐Union Scientific Society of Neuropathologists and Psychiatrists, which was included in materials published by Congress. Abuse of Psychiatry in the Soviet Union: Hearing before the H. Subcomm. on Human Rights and Int’l Orgs. of the Comm. on Foreign Affairs and the Comm’n on Sec. and Cooperation in Eur., 98th Cong. 25‐30 (1983). The Soviet Union returned to the WPA conditionally in 1989 (Robert van Voren, Political Abuse of Psychiatry – An Historical Overview, 36 SCHIZOPHRENIA BULLETIN 33, 33 (2010)), and today there are two WPA Member Societies: the Independent Psychiatric


Part I of this paper briefly explains the recent history of Russia’s governmental

structure — its shift from communism in the Soviet era to the parliamentary civil

democracy of today. Focusing on the judiciary and, more specifically, the modern

criminal justice system, this overview introduces the reader to Russian law governing

expert testimony and the place of psychiatric medicine in relation to criminal

procedure. Part II describes the history of Russian criminal justice and forensic

psychiatry as a tool of abuse in the Soviet Union and a target for reformers in the

modern Russian Federation. This provides context for Part III, in which the Russian

Federation’s Code of Criminal Procedure and other relevant laws and forensic

psychiatric practices are compared to general standards and procedures found in

United States criminal trials, limited for the present purposes to a broad overview. The

paper culminates in Part IV with a review of a recent application of forensic psychiatry

in a Russian criminal trial: the highly publicized and much-debated 2012 case of the

punk rock band Pussy Riot. The conclusion follows.

Association of Russia and the Russian Society of Psychiatrists, according to the WPA’s website, http://www.wpanet.org/detail.php?section_id=5&content_id=674&sort_by=R (last visited Nov. 23, 2012).


I FROM “EVIL EMPIRE” TO “EMERGING DEMOCRACY”:

A CURSORY AND SELECTIVE HISTORY OF RUSSIAN CRIMINAL LAW

“The Russian state has always had difficulties in instilling respect for the rule of

law, either on the part of its citizens or its officials.”13 The imperial state that preceded

the Union of Soviet Socialist Republics (U.S.S.R) was authoritarian in nature, only as

just or capricious as the emperor (Tsar) or empress of the day, with no concept of

citizens having any rights against the state.14 Likewise, although nominally based in the

codified systems of civil law traditions, the Soviet legal system officially adhered to

Marxism, which called for “a ‘dictatorship’ of the proletariat.”15 While the “‘Second

Russian Revolution’ of 1991 removed the economic and political influences of Marxist

thought”16 that differentiated Russia’s legal system from those of other civil law

countries, the underlying “legal nihilism in the mass consciousness”17 of Russian society

remains part of the national character and poses a continuing challenge to the

development of a genuine democracy in Russia.18

13 WILLIAM BURNHAM, PETER B. MAGGS & GENNADY M. DANILENKO, LAW AND LEGAL SYSTEM OF THE RUSSIAN FEDERATION 5 (4th ed., 2009). 14 Id. at 6. 15 Id. at 5. 16 Id. at 6. 17 Id. at 7. 18 Under President Boris Yeltsin, a year after the “Second Revolution,” Russia applied for membership in the Council of Europe. It was eventually granted – in 1996 – but with express reservations about Russian regard for human rights and the rule of law, and with the idea that the fledgling democracy would be harmed by isolationism. See generally Jean Pierre Massias, Russia and the Council of Europe: Ten Years Wasted? 15 RUSSIE.NEI.VISIONS (Nicola Bigwood, trans., Institut Français des Relations Internationales 2007), available at: http://www.ifri.org/?page=contribution‐detail&id=4742&id_provenance=97; Rudolf Bindig, Russia’s Accession to the European Council and the Fulfillment of its Obligations and Commitments, in RUSSIA AND THE COUNCIL OF EUROPE: 10 YEARS AFTER 33 (Katlijn Malfiet and Stephan Parmentier, eds., 2010).


Nevertheless, over the past two decades, the Russian Federation has been

reforming and developing its legal system under a constitution, adopted by referendum

in 1993.19 Within this system is the Criminal Code (“C.C.”), adopted in 1996 and

amended many times since,20 along with the Criminal Procedure Code (“C.P.C.”) that

was enacted in 2001.21 The enactment of the C.P.C. brought to Russia some innovations:

codifying principles introduced by the Constitution,22 the C.P.C. extended jury trials

(theretofore only available on a very limited basis)23 and replaced Russia’s civil law-

based tradition of investigative/inquisitorial criminal procedure with a more

adversarial/accusatorial approach.24 This changed the nature of the judiciary, which

previously held inquisitorial powers, such as the ability to initiate criminal cases or an

option to return a case for additional investigation, by requiring instead judicial

impartiality.25 Courts were also given sole legal authority and discretion to make

numerous pre-trial decisions about accused individuals with psychiatric defenses or

psychological issues, something that had previously been the exclusive purview of 19 KONSTITUTSIIA ROSSIISKOI FEDERATSII [KONST. RF][CONSTITUTION] (Russ.). The full text of the Russian Federation’s Constitution is available online in its original version and with translations to English, French and German. See http://www.constitution.ru/en/10003000‐01.htm. 20 UGOLOVNYI KODEKS ROSSIISKOI FEDERATSII [UK RF] [Criminal Code]. It is available in translation through numerous

online sources, including http://legislationline.org/documents/section/criminal‐codes/country/7 (last visited Nov. 24, 2012). 21 UGOLOVNO‐PROTSESSUAL’NYI KODEKS ROSSIISKOI FEDERATSII [UPK RF] [Criminal Procedural Code]. Available at http://legislationline.org/documents/section/criminal‐codes/country/7 (last visited Nov. 24, 2012). 22 The concept of adversarial proceedings based on equality of parties is expressed in Article 123 of the Constitution. The right to a jury is provided by Articles 47(2) and 123(4). KONST. RF arts. 47(2), 123(3) & 123(4). 23 BURNHAM ET. AL., supra note 13, at 553‐54. 24 The inquisitorial method is the classic approach of Continental Europe, where a trusted figure (“inquisitor” – although this term has, over time, taken on a pejorative connotation) leads an investigation on behalf of or by the judge. This is in contrast to the English adversarial system, where a jury and/or neutral judge weigh the evidence presented by accuser and accused. For an interesting summary of these differences and an overview of their evolution in England and on the Continent, see J.R. Spencer, Introduction in EUROPEAN CRIMINAL PROCEDURES, 1, 1‐80, (Mireille Delmas‐Marty & J.R. Spencer, eds., reprinted 2004). 25 BURNHAM ET. AL., supra note 13, at 487.


state-employed psychiatrists. Those doctors had wielded considerable power and had

not been restrained by any system of accountability, code of ethics, or legal supervision

analogous to the limitations and guiding standards for mental health professionals in

the west.26

The extensive and explicit nature of the new laws is significant because of the

history of forensic psychiatry related to criminal prosecution in the U.S.S.R. The laws

and their application are examined below in detail, with a comparison to American

standards.27 But, first, the reader will be helped by a further lesson in Russian history.

II CRIMINAL JUSTICE & FORENSIC PSYCHIATRY:

A SOVIET TOOL OF ABUSE, A RUSSIAN TARGET FOR REFORM

A. Dark Times: Soviet “Justice” Meted Out by Doctors, Not Jurists

The Marxist philosophy that guided Lenin and the early leadership of the

U.S.S.R, deterministic as it is, denied the existence of free will and instead deemed crime

to be an outcome of a criminal’s deviant personality.28 Likewise, law itself was

considered a bourgeois affectation, and the Soviet government resisted implementing

criminal laws of any sort for much of the first half-decade of the Soviet Union’s

existence, taking the official position that crime is essentially a medical problem, not a

26 This is according to a Soviet psychiatrist who became one of the leaders of reform, both before and after the fall of the Soviet regime. S.V. Polubinskaya, Law and Psychiatry in Russia: Looking Backward and Forward, in THE EVOLUTION OF MENTAL HEALTH LAW, 112, 115 (L.E. Frost & R. J. Bonnie, eds., 2001). 27 Infra Part III. 28 Harold J. Berman & Donald H. Hunt, Criminal Law and Psychology: The Soviet Solution, 2 STAN. L. REV. 635, 640 (1950).


legal one.29 Nevertheless, the New Economic Policy (NEP) of 1921-1928 eventually

included a criminal code, which included a provision for an insanity defense, stating

that punishment

. . . may not be applied to persons who have committed a crime while in a

condition of chronic mental illness, or of temporary disorder of mental activities,

or in any other ill condition, if these persons could not realize the nature of their

acts [literally, ‘account to themselves in their acts'] or direct them, and also to

those persons who, although they acted in a condition of mental balance, had

become mentally ill at the moment of execution of the sentence. To such

persons may be applied only measures of . . . a medical character.30

Under Stalin, however, Marxism was re-interpreted to mean that free will was at

the root of criminal responsibility, and the rule of law and, especially, its capacity for

punishment on society’s behalf was hailed as a mark of the sure establishment of

socialism.31 Likewise, the pertinent medical authorities —that is, psychiatrists —were

called on not to act instead of the law in dealing with the aberration of criminality, but in

concert with the law, applying not only medical knowledge but also legal doctrine.32

This call brought to prominence an organ of the U.S.S.R. Ministry of Health, the Serbsky

Institute of Forensic and General Psychology, established in 1922.33

29 Id. 30 Id. at 641‐42, quoting CRIM. CODE, RSFSR, art. 11. 31 Id. at 644. 32 Id. at 646. 33 Howard J. Berman, Law as an Instrument of Mental Health in the United States and Soviet Russia, 109 U. PA. L. REV. 361, 374 (1961).


The Serbsky Institute, a mental hospital located in Moscow, was responsible for

assessing people accused of crimes anywhere in the U.S.S.R.34 Among the Institute’s

most infamous developments was its creation of a diagnosis unknown in any other

psychiatric circles35 —that of “sluggish schizophrenia,” a concept developed by Professor

Andrei Snezhevsky to explain what communism’s true believers viewed as the madness

that would compel anyone to criticize the “best sociopolitical system in the world.”36

Political motives aside, genuine symptoms (i.e. involutional and senile changes) would

attributed by Soviet psychiatrists to sluggish schizophrenia (which, it was contended,

could emerge post middle age), in cases that would likely have been diagnosed by

Western doctors as involutional melancholia (later, under DSM-III, classified as major

depression or paranoid disorder).37

By the 1960s, scholars and dissidents, many of whom were committed to long-

term “care” inside the walls of the Serbsky Institute hospital due to a diagnosis of

sluggish schizophrenia, came to view the agency (which by then included a “political

department”)38 as distorted and malignant. Even some Soviet political leaders grew

concerned, with one Communist party official going so far as to decry it as “the root of

34 David Cohen, In Two Minds About Soviet Psychiatry, NEW SCIENTIST, Oct. 14, 1989, at 48. 35 The editors of the INTERNATIONAL CLASSIFICATION OF DISEASES, unable to otherwise define this diagnosis, assigned it to the category of latent schizophrenia. Greg Wilkinson, Political Dissent and “Sluggish” Schizophrenia in the Soviet Union, 293 BRIT. MED. J. 641 (1986). 36 Robert van Roren, Political Abuse of Psychiatry – An Historical Overview, 36 SCHIZOPHRENIA BULL. 33 (2009). 37DSM refers to the American Psychiatric Association’s DIAGNOSTIC AND STATISTICAL MANUAL OF MENTAL DISORDERS, now in its fourth major iteration, with a fifth revision currently in progress and expected to be published in 2013. ALAN A. STONE, LAW, PSYCHIATRY, AND MORALITY: ESSAYS AND ANALYSIS 9 (1984). 38 R. Van Roren, Abuse of Psychiatry for Political Purposes in the USSR: A Case‐Study and Personal Account of the Efforts to Bring Them to an End, in ETHICS IN PSYCHIATRY: EUROPEAN CONTRIBUTIONS 496 (Hanfried Helmchen & Norman Sartorius eds., 2010).


all evil.”39 The problems of abusive and politicized Soviet psychiatry started to gain the

west’s attention, both in scientific communities40 and among the general population,

thanks to Alexander Solzhenitsyn and other activists, beginning in the 1970s.41 While

its use as a tool of repression became well-publicized, abusive psychiatry affected even

more patients whose cases were nonpolitical.42 It was a profoundly ingrained system by

the 1980s, with Russian psychiatrists’ professionalism “swallowed up by their identity

as the state’s employees.”43

Many doctors trained in the Soviet ideology and diagnostic process were

genuinely unaware that their efforts were unethical or that they played a role in

“repressive government machinery;”44 it was the system they grew up with and most

had little, if any, contact with the greater universe against which to compare practices or

philosophies. Those who did interact with the west were often defensive. For example,

even though the international medical community did not recognize sluggish

schizophrenia,45 Soviet doctors continued to defend and try to explain the syndrome,

until the very end of the U.S.S.R.’s existence.46 Moreover, the leadership of the Soviet

psychiatric system resisted criticism and external scrutiny. This was ultimately

39 Id. 40 Helen Lavretsky, The Russian Concept of Schizophrenia: A Review of the Literature, 24 SCHIZOPHRENIA BULL. 537, 537‐38 (1998). 41 Richard J. Bonnie & Svetlana V. Polubinskaya, Unraveling Soviet Psychiatry, 10 J. CONTEMP. LEGAL ISSUES 279 (1999). 42 Polubinskaya, supra note 26, at 114. 43 Bonnie & Polubinskaya, supra note 41, at 287‐288. 44 Van Roren, supra note 38, at 34. See also supra note 12. 45 Indeed, argues one scholar, the misuse of the “schizophrenia concept . . . led to a virtual cessation of interaction between Russian and international psychiatry, depriving all of mutual enrichment.” Lavretsky, supra note 40, at 538. 46 For example, Anatoly B. Smulevich, Sluggish Schizophrenia in the Modern Classification of Mental Illness, 15 SCHIZOPHRENIA BULL. 533 (1989).


overcome in 1989, when the Soviet government permitted a U.S. delegation of doctors

and scholars to conduct an unrestricted study of the mental health programs, patients,

and institutions inside the U.S.S.R.47

B. Post-Soviet Reformation

After the Soviet bloc disintegrated, Russia began to reform mental health laws48

as well as its criminal code.49 American legal scholar Bonnie and Russian psychiatrist

and reformer Polubinskaya noted that a wholesale shift from the communist concept of

a society-centered attitude about mental health care toward one that is centered on the

individual patient would represent a “fundamental reversal of the normative premise

of Soviet psychiatry.”50 They further argued that effective reform of psychiatry in

Russia must see to improvements in clinical training, implementation of ethical

standards to which doctors could and would be held accountable, and a restructuring of

the system, to ensure a cessation of state interference or agenda-setting with relation to

patient care as well as professional independence.51

The first significant reform to the Russian mental health care system came in

1992, with the adoption of a new federal law “On Psychiatric Care and Guarantees of

Rights. . .”52 (hereinafter “the 1992 Act”). Starting with the premise that mental health

47 Michael L. Perlin, International Human Rights and Comparative Mental Disability Law: The Role of Institutional Psychiatry in the Suppression of Political Dissent, 39 ISR. L. REV. 69, 77 (2006). 48 Bonnie & Polubinskaya, supra note 41, at 292. 49 Supra notes 20 & 21. 50 Bonnie & Polubinskaya, supra note 41, at 289. 51 Id., 289‐291. 52 Federal’nyi Zakon RF o Psikhiatricheskoi Pomoschi i Garantiiakh Prav Grazhdan Pri ee Okazanii [Federal Law of the Russian Federation on Psychiatric Assistance and Guarantees of Rights of Citizens in its Provision], ROSSIISKAIA


should be promoted (in contrast to being a topic to address with a punitive tone to

convey an attitude that society must be protected from those with psychological

problems), the new legislation’s language was markedly proactive in hailing the

importance of care and respect for the dignity of the individual as well as human rights,

and included provisions that would limit the previously extensive powers of mental

health professionals.53 For example, cases of involuntary hospitalization would be

subject to periodic judicial review, to protect the rights of patients, especially those

institutionalized.54 In the decade that followed this law’s inception, reforms of the

Criminal Code (in 1996), the Criminal Procedure Code (2001), the Civil Procedure Code

(2002), and a new statute about forensic experts combined to create a comprehensive

new legal approach to the interface between criminal proceedings and the psychiatric

profession. 55

Concurrently, the Russian psychiatric profession began undergoing reforms,

with the adoption of the first-ever code of ethics for Russian psychiatrists56 and a

GAZETA [ROZ. GAZ.] Jun. 2, 1992, No. 3185‐I. Svetlana Polubinskaya, who had cultivated extensive contacts with western psychiatrists, criminologists, and legal scholars, was one of the drafters of the 1992 law, which is available in English in Richard J. Bonnie, The Evolution of the 1992 Law of the Russian Federation on Psychiatric Care, 27 J. OF RUSSIAN & EAST EUROPEAN PSYCHIATRY, 69 (1994). It has been amended numerous times, according to Garant, a legal database service providing Russian legislative updates and English translations of most laws pertinent to foreign businesses. The list of amendments to the law guaranteeing psychiatric patients’ rights is available in Russian only at http://base.garant.ru/10136860/. 53 Svetlana Polubinskaya, The Russian Federation Law on Psychiatric Care as a Tool for Reform of Russian Psychiatry, 2 JUSTITIAS WELT – ZEITSCHRIFT FÜR AUSLÄNDISCHES, EUROPÄISCHES UND INTERNATIONALES RECHT (July, 2008), at http://justitiaswelt.com/Archiv/Archiv_Ausgabe02.html. 54 Id. 55 See supra notes 20 & 21; GRAZHDANSKII PROTSESSUAL’NYI KODEKS ROSIISKOI FEDERATSII [GPK RF] (Civil Procedure Code); Federal’nyi Zakon RF o Gosudarstvrnnoi Sudebno‐Ekspertnoi Deiiatel’nosti v Rossiiskoi Federatsii [Federal Law of the Russian Federation on State Forensic Examiners’ Activity in the Russian Federation], ROZ. GAZ. Jun. 5, 2001, No. 2718. 56 An English translation is available at http://www.am.org/iupsys/resources/ethics/russia‐code‐eng.pdf (last visited Dec. 1, 2012). The Code of Ethics was met with some initial skepticism: “. . . seems to be more like a


reorganization of the field that incorporated nurses, psychologists, and social workers

into a team approach to mental healthcare.57 Russian scholarship in psychiatry also rose

to new levels, with progressive doctors and professors looking increasingly to the west,

both to share and to explore ideas and practices.58 The Independent Psychiatric

Association (IPA) of Russia59 was established in 1989, initially in response to the

“struggle with totalitarian inertia,” but eventually developing a focus on human rights

aspects and a liberal approach to the profession.60 The IPA began publishing an

eponymous scientific journal on a quarterly basis in 1991.61 The Moscow City University

now has a program in forensic psychology.62 This university is affiliated with the

above-mentioned Serbsky Center and offers a wealth of curated resources.63

Significantly, in the last few years, the University began issuing several new scholarly

journals, such as COUNSELING PSYCHOLOGY AND PSYCHOTHERAPY; SOCIAL PSYCHOLOGY

declaration of good intentions than an instrument to guide everyday psychiatric practice.” Polubinskaya, supra note 26, at 124. However, many western scholars, scientists and human rights advocates applauded the code. For example, British forensic psychiatrists remarked that “[a]cceptance in the Code of the concept of informed consent is a remarkable reform in Russian psychiatry. . .” Harvey Gordon & Clive Meux, Forensic Psychiatry in Russia: Past, Present and Future, 24 PSYCHIATRIC BULL. 121, 122 (2000). 57 Polubinskaya, supra note 53. 58 The Soviet Union, to avoid being expelled, withdrew in 1983 from the World Psychiatric Association (WPA) and was readmitted, conditionally, in 1989. Supra note 12. But the Independent Psychiatric Association, formed, according to British scientists/bloggers Tom Stafford and Matt Webb, to expose abuses in Russian mental health care system and provide an alternative to the official state organ, was admitted to the WPA before the official Soviet agency’s membership was reinstated. See http://mindhacks.com/2007/08/30/is‐russia‐entering‐another‐dark‐age‐of‐psychiatry/ (last visited Dec. 2, 2012). 59 In Russian, Nezavisimaiia Psikhatricheskaiia Assotsiatsiia Rossii. 60 This according to the association’s website. See http://www.aha.ru/~ipar/eng/about.htm (last visited Dec. 1, 2012). 61 It is archived online in Russian, but English translations of abstracts are included in each issue. See http://www.npar.ru/journal/. 62 See http://www.jp.mgppu.ru/en (last visited Dec. 1, 2012). 63 See http://www.jp.mgppu.ru/links (in Russian, last visited Dec. 1, 2012), and http://psyjournals.ru/en/ (last visited Dec. 1, 2012).


AND SOCIETY; and PSYCHOLOGY AND LAW, which appears to be published bilingually.64

The Serbsky Center itself, still government-run, has also shifted towards more scholarly

pursuits and began publishing a bi-monthly peer-reviewed medical journal, THE

RUSSIAN PSYCHIATRIC JOURNAL,65 in 1997. Based on the titles available and the sheer

volume of scholarly publications, combined with recent legislative history, there is no

question that Russia has come a long way in terms of its thinking about psychiatry and

criminal law.

But thinking is not the same as doing: a shift in individual and collective

attitudes is only the beginning of a reform process. No one expected an overnight

transformation,66 and ingrained attitudes and habitual practices are not easy to change.

To what extent the change in written law reflects genuine change in actual practice is a

question to which we may now turn our attention.

C. Shifting the Russian Paradigm

As previously mentioned,67 the democratically adopted Russian Federation

Constitution of 1993 and subsequently enacted codes of criminal law and criminal and

civil procedure, along with other federal legislation, combined to create a new legal

64 Full text articles are only available by subscription and the journal does not yet appear to be widely available through libraries, despite compelling topics and the availability of English versions. See http://psyjournals.ru/en/psyandlaw/2012/n3/index.shtml (last visited Dec. 1, 2012). 65 Available in Russian only at http://www.geotar.ru/catalog/periodica/psihjurnal/. 66 “It is clear that the task of creating a modern system of mental health care in the Russian Federation is unfinished business.” Polubinskaya, supra note 26, at 124. 67 Supra Section I.


environment for forensic psychiatrists, who, meanwhile, have also been adapting to

new attitudes and approaches to their profession.68

A major change in the Russian approach to managing criminally accused persons

with possible mental health issues was the shift of authority from the psychiatrist’s

office to the judge’s bench with respect to pre-trial decisions as to the disposition of the

patient. For example, according to the Criminal Procedure Code (“C.P.C.”), “. . .putting

the suspect and the accused, who is not in custody, into a medical or a psychiatric

stationary hospital for carrying out the forensic-medical or the psychiatric medical

expertise, respectively . . .69 is now at a judge’s discretion, upon recommendation from a

medical doctor. The decision — a potentially arbitrary and unchecked decision — is no

longer left to the state-employed psychiatrist.70 Not only is current law designed to

prevent abuse of medical authority and discretion, but it contains provisions for redress

in cases of infringement of patients rights.71

Having a law that prescribes new procedures is not a guarantee that those

practices will be implemented, however, and the fact is that many Russian psychiatrists

have had some trouble adapting to new ways. Indeed, most doctors, except those

pursuing advanced certifications or continuing education, were not trained about the

new laws at all. Consequently, in the decade following the 1992 Act, professional habits

68 Supra Section II.B. 69 UPK RF art. 29(2)(3). 70 Polubinskaya, supra note 26, at 120. 71 Per part VI of the 1992 law reforming psychiatric medicine. Supra note 52.


and practices did not change very much.72 However, data from a recent study, which

asserted the premise that the number of psychiatric beds in communist systems had

been inflated due their use in confining dissidents who weren’t genuinely “crazy,” does

indicate a significant drop (nearing 20%) in the total number of psychiatric beds in

Russia since 1989.73 Today’s scholars are now looking back on the past two decades and

marveling at how much actually has changed, although not all has changed for the

better.74

Renewed impetus for reviewing modes of operation many have been spurred by

the enactment of the C.P.C. nearly a decade after the initial legislation overseeing

psychiatric health care reform,75 establishing further protection for individuals. For

example, under the C.P.C., a Russian Court order for a psychiatric evaluation of a

suspect automatically triggers appointment of a defense attorney,76 and continued

representation by defense counsel is mandatory in cases where a suspect or accused

cannot exercise his right to a defense because of psychological “defects.”77 Experts may

72 POLUBINSKAYA, supra note 26, at 122‐23.

73 A study conducted by a multi‐national team of 16 psychiatrists, including two Russians, found a significant decrease in the total number of psychiatric beds in Russia and in 11 other post‐communist countries over the 20 year period since 1989. Adrian P. Mundt, et al., Changes in the Provision of Institutionalized Mental Health Care in Post‐Communist Countries. 7(6) PLOS ONE 1, 4 (2012), available at http://www.plosone.org/article/info%3Adoi%2F10.1371%2Fjournal.pone.0038490. 74 The head of the Independent Psychiatric Association of Russia has been vocal in his critiques of the failures of reform and observations of corruption. Y. S. Savenko & D. G. Bartenev, Pravo i Etika v Rossiiskoi Psikhiatrii v Poslednie 20 Let [Law and Ethics in Russian Psychiatry in the Last 20 Years], 3 INDEPENDENT PSYCHIATRIC JOURNAL [IND. PSYCH. J.] 7 (2010) (Russ.) and Infra Section IV. 75 Supra note 21. 76 UPK RF art. 49 (3)(4). 77 UPK RF art. 51 (1)(3) and art. 51(3).


be appointed to examine a suspect, and such appointments are mandatory in several

instances, including when, as the C.P.C. states,

. . . it is necessary to establish:

. . .

3) the mental or the physical state of the suspect or of the accused, if a doubt

arises concerning his sanity or his capability to independently defend his rights

and lawful interests in the criminal court proceedings; . . .78

Numerous articles in the C.P.C. spell out the duties, rights, prohibitions and liabilities

of experts, 79 including criminal liability for deliberately false conclusions80 and various

procedures for court-ordered examinations and expert testimony.81 Notably, an entire

chapter of the C.P.C (Chapter 51. “Procedure on the Application of Coercive Measures

of a Medical Nature”) is devoted to rules and procedures relative to mandated

psychiatric treatment for an accused person, including commitment to a mental

hospital.82 These laws provide for the administration of the Criminal Code’s Section VI:

Compulsory Measures of a Medical Nature, defining grounds, purposes, and measures

related to the insane and mentally deranged who have committed a crime.83 Moreover,

the code criminalizes “illegal placement of a person in a mental hospital,” punishable

by years in prison.84

78 UPK RF art. 196. 79 UPK RF art. 57. 80 UPK RF art. 57(5) and UK RF art. 307. 81 UPK RF arts. 195‐207, 269, 282 and 283. 82 UPK RF arts. 433‐446. 83 UK RF arts. 97‐104. 84 UK RF art. 128.


The law notwithstanding, the slowness of its implementation brought on

criticism from international observers as well as internal reformers. A 2006 report to the

United Nations Office of the High Commissioner for Human Rights (“UNHCR”) found

eighty-nine points to make about the inadequacies of the mental health care system in

its study of Russian criminal justice from the period of 2001 - 2005.85 Among the most

salient observations were the following:

Psychiatrists and other psychiatric hospital officials regularly prevented patients

from exercising their rights under the 1992 law to lodge complaints or protest

institutionalization; 86

Patients typically received inadequate explanation about treatment options and

ramifications, and informed consent certifications were routinely falsified; 87

Courts frequent failed of to enforce provisions of the C.P.C. and the 1992 Act,

including restrictions on duration of confinement;88

Courts often failed to act independently or critically of psychiatric practitioners

(rubber stamping);89

Courts failed to act in a timely manner or ensure adherence to legislative

restrictions on the restraint of patient freedom;90

85 Prevention of Cruel and Degrading Treatment of Inmates in Psychiatric Institutions of Russia in RUSSIAN NGO

SHADOW REPORT ON THE OBSERVANCE OF THE CONVENTION AGAINST TORTURE AND OTHER CRUEL, INHUMAN OR DEGRADING

TREATMENT OR PUNISHMENT BY THE RUSSIAN FEDERATION FOR THE PERIOD FROM 2001 TO 2005, 98‐112 (2006), available at http://www2.ohchr.org/english/bodies/cat/docs/ngos/joint‐russian‐report‐new.pdf. 86 Id. at 108‐109. 87 Id. at 106‐107. 88 Id. at 100. 89 Id. at 103. 90 Id. at 103‐104.


Courts refused to insist on the presence of all involved parties, especially accused

or their legal representatives, at determination hearings.91

Soon after this report was issued, Russia drew international criticism for

incidents that signaled to some a return to the “bad old days.” Activist Marina Trutko92

and journalist Larisa Arap93 were detained and diagnosed by Russian forensic

psychiatrists as mentally ill. Both garnered attention from western media, who reported

the circumstances as dubious, leading to international pressure to release the women

from their involuntary confinements to psychiatric institutions. This gave reform-

minded Russians an opportunity to ride the political tide and push anew for reforms to

a system that had seemed, according to some, to have begun slipping backwards

starting as early as 1995.94

91 Id. at 104‐106. 92 See Peter Finn, In Russia, Psychiatry is Again a Tool Against Dissent, WASH. POST, Sept. 30, 2006, available at http://www.washingtonpost.com/wp‐dyn/content/article/2006/09/29/AR2006092901592.html, (last visited Dec. 1, 2012). 93 See Alex Rodriguez, Russian Dissidents Called Mentally Ill, CHI. TRIB., Aug. 7, 2007, available at http://articles.chicagotribune.com/2007‐08‐07/news/0708070053_1_vladimir‐bukovsky‐soviet‐labor‐camps‐asylum, (last visited Dec. 1, 2012). 94 One of the most outspoken and prominent Russian critics of his country’s psychiatry system is Yuri Savenko, President of the Independent Psychiatric Association and also a member of the World Psychiatric Association and an advisor to the U.N.’s Human Rights Commissioner. He has issued several journal articles, chronicling the rise and fall of reform efforts and criticizing the Serbsky Center’s inflexibility and apparent opposition to change. His IPA Journal articles are available only in Russian, although English abstracts are provided, but an interview of him, published online, also provides insight into his perspective. See http://robertamsterdam.com/2008/03/grigory_pasko_you_cant_understand_russia_with_the_mind_part_1/ (last visited Dec. 2, 2012). See also: Savenko & Bartenev, supra note 74, at 8, in which the authors describe the Serbsky Institute’s activity in opposing the use of non‐governmental psychiatrists as forensic experts and criticize rising corruption; Y. S. Savenko, 20‐i Letie NPA Rossii [20th Anniversary of the IPA of Russia] 1 IND. PSYCH. J. 5, 16 (2009) (Russ.), which recites the IPA’s history and accomplishments, including the fact that resounding international attention helped IPA convince Russian Human Rights Commissioner to take up Larisa Arap’s case; and Y. S. Savenko, Problemy i Perspektivy Sotrudnichestva Spetsialistov: Opyt NPA Rossii [Problems and Perspectives on Collaboration Among Specialists: The Experience of the IPA of Russia], 4 IND. PSYCH. J. 13, 14 (2009) (Russ.), which closes with a threat to sue the government if other means of pressing for better compliance with its own laws for the protection of psychiatric patients continue to fail.


III

FORENSIC PSYCHIATRY AS USED IN MODERN RUSSIA & COMPARED TO THE U.S. STANDARDS OF EVIDENCE FOR DOCTORS AND LAWYERS

A. Twenty Years On . . .

In Russia today, a defendant who appears to have psychiatric issues has a

number of legal protections, given that psychiatrists no longer have carte blanche to

dispense with persons referred to them for evaluation. Although many problems of the

old system persist, the most recent report to the U.N. indicates that there have been

steps in the right direction.95 For example, the 1992 Act was amended in April, 2011,96

extending the rights of legally incapable citizens admitted to psychiatric care facilities or

hospitals, requiring either patient consent or judicial review of all cases.97

The number of adjudicative competency evaluations conducted annually in the

Russian Federation is comparable to the number conducted in the United States. In

2008, there were 42,107 such evaluations in Russia.98 The American Academy of

Psychiatry and the Law estimates about 50,000 such evaluations were conducted in the

United States that same year.99 Similarities seem to end there, however. When a Russian

95 RUSSIAN NGO SHADOW REPORT ON THE OBSERVANCE OF THE CONVENTION AGAINST TORTURE AND OTHER CRUEL, INHUMAN OR

DEGRADING TREATMENT OR PUNISHMENT BY THE RUSSIAN FEDERATION FOR THE PERIOD FROM 2006 TO 2012, available at: (20http://www2.ohchr.org/english/bodies/cat/docs/ngos/report_CoordinationPVF_RussianFederation_CAT49.doc 96 Federal’nyi Zakon RF o Vnesenii Izmeneniĭ v Zakon Rossiĭskoĭ Federatsii “O Psikhiatricheskoĭ Pomoshchi i Garantiiakh Prav Grazhdan pri ee Okazanii” i Grazhdanskiĭ Protsessual’nyĭ kodeks Rossiĭskoĭ Federatsii [Federal Law On amending Russian Federation Law “On Psychiatric Care and Guarantees of the Rights of Citizens in Therapy” and Civil Procedure Code of Russian Federation], ROSSIISKAIA GAZETA [ROS. GAZ.] Apr. 8, 2011, No. 67‐FZ. 97 Id. at 52. 98 IU. N. Argunova, Sudebnaia Praktika Priznaniia Grazhdanina Nedeesposobnym [Court Practice of Acknowledgment of a Citizen to be Legally Incapable], 4 IND. PSYCH. J. 56 (2009) (Russ.). 99 Douglas Mossman, et. al., AAPL Practice Guideline for the Forensic Psychiatric Evaluation for Competency to Stand Trial, 35 J. AM. ACAD. PSYCHIATRY & L. S3 (supp. 2007).


defendant is referred for expert evaluation, he (or she) is evaluated by a team of three

psychiatrists —medical doctors — and undergoes a variety of tests.100 A significant

portion of the examination process focuses on somatic symptoms and physical tests,

such as PET scans of the brain and electro-encephalograms (EEGs).101 In addition to

those physical diagnostic procedures, the principle evaluation method is a subjective

one: psychiatrist interviews of both the defendant-patient and all people close to him or

her, if possible, also reviewing all medical history. It appears there is some, but not

much, use of objective psycho-analytical instruments, such as surveys or psychological

tests.102 After the process has been completed, the team’s lead doctor prepares a written

report that is submitted to the court, offering a diagnosis or diagnoses, including

whether or not the condition is perceived as chronic, as well as recommendations

regarding the defendant’s ability to stand trial or need for further treatment or

institutionalization.103 Although doctors may no longer summarily execute orders to

commit a patient-defendant, as they could in the past, there is a strong element of

resistance to a dilution of medical authority that emanates from the Serbsky Center

establishment of Russian’s psychiatric professions, evident in public statements and

published commentary, asserting that psychiatric-medical recommendations should not

be questioned, in spite of the spirit and letter of recent legislation designed to end

100 V.A. Pehterev, Funktsional’naia Proba dlia Sushchestvuıu͡shcheĭ Sudebno‐Psikhiatricheskoĭ Teorii i Praktiki i eë Rezul’taty [The Functional Test for Current Forensic Psychiatric Theory and Practice and its Outcomes] 2 IND. PSYCH. J. 64, 65 (2011) (Russ.). 101 See generally INSTRUMENTAL’NYE METODY DIAGNOSTIKI V PSIKHIATRII [INSTRUMENTAL DIAGNOSTIC METHODS IN PSYCHIATRY], http://www.medidea.ru/articles/495/114/. 102 See generally S. IU. Savenko, I vse‐taki – Shizofreniia [And after all – Schizophrenia] 1 IND. PSYCH. J. 20 (2010) (Russ.). 103 V.A. Pehterev, supra note 100.


judicial rubber stamping.104 In fact, in the wake of a November 7, 2012 mass murder in

Moscow, where a gunman wrote a “malicious manifesto” and then went on a shooting

spree, killing seven people, psychiatrists have called for a reversal of the new laws,

allowing mental health professionals more, not less, control over the detention of

patients. Legislators are said to be considering the doctors’ position.105

The latest UNHCR report asserts that Russia’s legislative requirement for

consent and/or judicial review of any psychiatric treatment of individuals is routinely

violated in practice, with consent to hospitalization and treatment frequently falsified, if

requested at all. Further, the report states that it is “practically impossible [for a

committed patient] to file a complaint while the person is held in the hospital,” thereby

diluting the guarantees against involuntary hospitalization.106 The report calls for the

establishment of an independent body that would manage complaints, noting that

although such a service was mandated by legislation in 1992, in the two decades since

then it had yet to be organized.107

Another law, established in 2007 and reinforced by the April 2011 reform,108is

supposed to guarantee that criminal defendants awaiting psychiatric evaluation of their

104 IU. S. Savenko, Zapretit’ Osparivanie i Obzhalovanie Ekspertiz! [Contests of Expert Conclusions Should be Banned!] 1 IND. PSYCH. J. 85 (2010) (Russ.). 105 Jamestown Foundation, Russia Considering Restoring Soviet‐Era Law on Psychiatry, Opening Door to Political Abuse, 15 November 2012, available at: http://www.unhcr.org/refworld/docid/50a4d26f2.html (last visited Dec. 13, 2012); It is not implausible that the recent, horrifying killings in a Connecticut school will also influence Russian lawmakers. Russians are especially sensitive to school violence since 2004, when they suffered a terrorist takeover of an elementary school in Beslan, and the Russian traditional tough stance against the mentally ill may be viewed favorably. 106 Id. at 12. 107 Id. at 53. 108 Supra note 96 and decree of the Constitutional Court of Russian Federation of 20.11.2007 # 13‐P.


adjudicative competency may participate personally in all court proceedings related to

the determination. But the 2012 U.N. report states that, “patients are under pressure to

refuse themselves to assist [at] court sessions . . . and judicial control over cancellation of the

mandatory treatment, its alteration or its prescription does not work in full measure,” as courts

almost universally accept the expert findings and endorse their recommendations without

questioning them, even when the findings are thinly substantiated. As a result, it is not

uncommon for patient-defendant to be detained at a hospital for a month or longer.109

The 2012 UNHCR report concluded with no fewer than 41 recommendations to

improve the current system of criminal justice.110 Calls for reform continue to come

from within the Russian psychiatric profession as well, led by the IPA.111 What is

interesting is that Russian psychiatric professionals, especially those involved with

forensic psychology and the legal system, are paying a great deal of attention to

American psychiatric practices and jurisprudence.112

109 Id. at 56‐57 110 Id. at 131‐136. 111 See generally IU. S. Savenko, Klinicheskiĭ Analiz Sudebnym Psikhiatram uzhe ne Nuzhen? [Don’t Forensic Psychiatrists Need Clinical Analysis Techniques Already?] 2 IND. PSYCH. J. 53 (2009) (Russ.). 112 The IPA journal, for, regularly includes an article or two summarizing recent developments in U.S. jurisprudence related to forensic psychiatry, or describing practices and procedures. For example V.V. Motov, Psikhatr‐ekspert, Advocat i Amerikanskiĭ Sudebnyĭ Protsess [The Psychiatrist‐Expert, the Attorney and the American Legal Process] 1 IND. PSYCH. J. 53 (2010) (Russ.).


B. Truth, Justice, The American Way. . .

The United States and Russia are both federations, and the Constitutions of both

permit the states (in Russia’s case, republics and regions) belonging to the federation to

enact their own local mental health legislation, but only insofar as it does not contradict

or contravene any Federal law.113 The U.S. Supremacy Clause notwithstanding, Russia’s

federal law is more pervasive and all-encompassing that of the United States, which

generally leaves most aspects of criminal law and procedure to the states.114

It is not pragmatic to thoroughly compare every jurisdiction in America to

Russia, so the present analysis is limited to the generalized standards set forth in federal

case law and legislation. Besides the practical effect of limiting the comparison in this

way, given that this document is a law-school paper and not a textbook, it is also

noteworthy that Russian scholars of forensic psychiatry study U.S. practices almost

exclusively at this level.115

Overarching all jurisdictional questions is, of course, the “supreme law of the

land”116 set forth by the United States Constitution, guaranteeing all citizens protection

of their individual rights. In the context of criminal law, the most salient constitutional 113 Polubinskaya, supra note 26, at 119. KONST. RF art. 71(c); U.S. CONST. art IV, cl. 2. 114 There are, of course, federal crimes, which generally involve inter‐state activities or crimes against national interests. Crimes and Criminal Procedure, 18 U.S.C. §§ 1‐6005 (2012). 115 The Russian IPA’s journal regularly features a review of selected articles from American journals dealing with forensic psychiatry and other relevant legal issues, compiled by V.V. Motov, who has also authored a book (V.V. MOTOV, FUNDAMENTAL’NYE VOPROSY AMERIKANSKOĬ SUDEBNOĬ PSIKHIATRII I PSIKHIATRII I PRAVA [FUNDAMENTAL ISSUES OF AMERICAN

FORENSIC PSYCHIATRY AND PSYCHIATRY AND LAW], (2008).) and articles about the U.S. legal system. V. V. Motov, Psikhiatr‐ekspert, Advokat i Amerikanskiĭ Sudebnyĭ Prot͡sess [The Psychiatrist‐Expert, the Lawyer and the American Legal Process], 1 IND. PSYCH. J. 53 (2010); V. V. Motov, Sudebno‐psikhiatricheskaia Ekspertiza po Ugolovnym Delam v SSHA (nekotorye medits͡inskie i ıu͡ridicheskie aspekty) [Forensic Psychiatry Expertise in Criminal Cases in the U.S.A. (Some Medical and Legal Aspects)], 3 IND. PSYCH. 70 (2003). 116 The Supremacy Clause of the U.S. Constitution, U.S. CONST. art IV, cl. 2.


protections include the Fifth Amendment’s for an accused individual’s right to the

privilege against self-incrimination117 and substantive due process118 (made expressly

applicable to states by the Fourteenth Amendment’s Due Process Clause).119 The

Fourteenth Amendment also forbids states from denying equal protection to any

citizen,120 and the Sixth Amendment establishes a number of rights for citizens accused

of crime, including the right to a speedy (but not rash) and public trial by jury, the right

to counsel, and the right to be informed of the nature and cause of the charges against

him.121 Trials are governed by specific procedural and evidentiary rules122 as well as the

broader constitutional principles. Over time, as the judiciary branch interprets the

application of statutes created by legislators, case law refines standards for specific

issues. In short, balanced against the government’s interests in defending its citizenry

against crime are its interests in safeguarding the principle of liberty and taking care to

prevent injustice by protecting the individual rights of an accused party.

American psychiatric professionals are called upon to assist in the achievement

of just outcomes when there is a question surrounding the accused individual’s mental

health or capacity. It is a long-ingrained common law tradition, dating back almost 400

years to England,123 that an individual must have the capacity to understand the

117 U.S. CONST. amend. V, cl. 3. See also Miranda v. Arizona, 384 U.S. 436 (1966). 118 U.S. CONST. amend. V, cl. 4. 119 U.S. CONST. amend. XIV, § 1, cl. 3. 120 U.S. CONST. amend. XIV, § 1, cl. 4. 121 U.S. CONST. amend. VI. 122 At the federal level, these include Federal Rules of Criminal Procedure (FED. R. CRIM. P.) and the Federal Rules of Evidence (FED. R. EVID.), which serve as models for some states, all of which have their own codes or systems of criminal procedure. http://www.law.cornell.edu/wex/criminal_procedure (last visited Dec. 4, 2012). 123 Bruce J. Winick & Terry L. DeMeo, Competence to Stand Trial in Florida, 35 U. Miami L. Rev. 31, 32 (1980).


accusations made against him as well as the ability to effectively work with counsel124

for justice to be fairly achieved. If an accused is mentally unstable, she may unwittingly

violate her own Fifth Amendment privileges. Providing expert testimony on an

individual’s competency to stand trial rises as a point of entry to the judicial system for

forensic psychiatrists—and provides a logical limitation of this paper’s scope of

analysis. To be sure, there are many important services that U.S. forensic psychiatric

professionals provide to the criminal justice system, including assessments of a

defendant’s mental state during a crime (toward an insanity defense or sentence

mitigation), and evaluations of a convict’s potential for recidivism.125 For purposes of a

comparative study such as this, since the function of determining competency is the one

of the most clearly defined roles in Russia’s forensic psychiatry practices, it is the most

logical topic to address.

The constitutional standard that guides competency-to-stand-trial proceedings

was set in 1960 by the U.S. Supreme Court’s ruling in Dusky v. United States.126 In that

case, the Court held that the defendant’s orientation and ability to recall events was not

sufficient to establish adjudicative fitness, stating that not only was a factual

understanding of the proceedings necessary, but that a reasonable degree of rational

understanding was also required, both with respect to the proceedings and to the

124 Hearkening back to the Sixth Amendment’s guarantee of a right to counsel. Supra note 104. 125 See generally GARY B. MELTON, JOHN PETRILA, ET. AL., PSYCHOLOGICAL EVALUATIONS FOR THE COURTS – A HANDBOOK FOR MENTAL HEALTH PROFESSIONALS AND LAWYERS (3d ed. 2007). 126 362 U.S. 402 (1960).


defendant’s ability to consult with his attorney.127 Thus, Dusky established a two-prong

test for competency to stand trial: (1) the defendant’s capacity to understand the

proceedings and (2) the defendant’s ability to function throughout the process,

especially with respect to cooperation with counsel.128 Several factors are considered in

determining whether a defendant meets both of these criteria: the defendant’s present

mental state,129 the defendant’s capacity, distinct from willingness, to cooperate with an

attorney, whether the defendant has a reasonable —not necessarily perfect —

understanding of the situation, and the sufficiency of the defendant’s cognitive

functioning: whether he has a rational as well as factual understanding of the trial

procedure.130

The second Dusky factor was reinforced by the Supreme Court in Drope v.

Missouri,131 which stated that a criminal defendant must be able to assist in the

preparation of his defense and found that a defendant is entitled to a competency

evaluation at any point during the proceedings when his capacity appears

diminished.132 This rule had been established by Pate v. Robinson,133 a Supreme Court

ruling which held that if a question of fitness for trial arises during proceedings, it is

127 Mossman, et. al., supra note 99, at S5. 128 MELTON, JOHN PETRILA, ET. AL., supra note 125, at 127. 129 That is to say, not necessarily the state the defendant was in at the time of the alleged crime. Mossman et. al., supra note 99, at S6. 130 MELTON, JOHN PETRILA, ET. AL., supra note 125, at 128. 131 429 U.S. 162 (1975). 132 Mossman et. al., supra note 99, at S6. 133 383 U.S. 375 (1966).


incumbent on the court to require an assessment of the defendant’s capacity, even if

defense counsel fails to raise the issue.134

Psychiatric professionals use a variety of methods to evaluate a defendant. The

current standard for the admissibility of expert testimony requires that any scientific

data relied upon in testimony is gathered by “generally accepted” valid methods.135 The

Supreme Court elucidated this standard by applying the Federal Rules of Evidence.

Rule 702, for example, governs expert testimony, and specifies that expert testimony of

a scientific nature must be based on information gathered via “reliable principles and

methods” that are applied to the facts of the case.136 Note also that, while opinions

based on acceptable scientific evidence about a defendant are permitted as testimony,137

Rule 704 bars an expert witness from voicing an opinion on the ultimate issue of any

element of the crime charged or a defense thereto.138

In addition to the most basic form of assessment —the personal interview — a

wide variety of tools are available to psychiatric professionals to back up their opinions.

To provide valid data that testifies to the psychiatric examiner’s conclusions,

assessment instruments should contribute information that can be applied to the legal

elements that define competency; the details of competency standards vary from state

134 Mossman et. al., supra note 99, at S7. 135 Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579 (1993). 136 FED. RULE EVID. 702. 137 FED. RULE EVID. 703. Kirk Heilburn, The Role of Psychological Testing in Forensic Assessment, 16 L. & HUMAN

BEHAVIOR: EXPERT EVIDENCE 257, 260 (1992). 138 Only a trier of fact may decide those issues. FED. RULE EVID. 704.


to state.139 Psychology professionals have dealt with that both by creating various

assessment tools that comport to the differing standards140 and by attempting to

develop broad conceptual models for practitioners.141 While the American

Psychological Association’s (“APA”) guidelines for forensic psychology offer general

suggestions on how to determine assessment procedures, they do not dictate any

specific methods or even name any instruments or procedures.142 The American

Academy of Psychiatry and Law also offers guidelines and advises issues to assess

without specifying any practices.143 Certain assessment tools, such as multiscale

inventories (such as the “MMPI”) and intellectual assessments, are more commonly

used than others,144 and a number of new tools have been developed in the past

decade,145 but there is “no clear consensus on a standard of practice for competency

evaluations.”146

139 Denise L. Mumley, Chad E. Tillbrook & Thomas Grisso, Five Year Research Update (1996‐2000): Evaluations for Competence to Stand Trial (Adjudicative Competence) 21 BEHAVIORAL SCI. & L. 329, 331 (2003). 140 Heilburn supra note 137, at 260 & 264‐266. 141 Keith R. Cruise & Richard Rogers, An Analysis of Competency to Stand Trial: An Integration of Case Law and Clinical Knowledge, 16 BEHAVIORAL SCI. & L. 35, 40‐42 (1998). See also Mumley et. al., supra note 139 at 333‐334. 142 See Section 10, Assessment, in Specialty Guidelines for Forensic Psychology, adopted by the APA Council of Representatives August 3, 2011, American Psychologist. Available at https://www.ap‐ls.org/aboutpsychlaw/SGFP_Final_Approved_2011.pdf (last visited Dec. 17, 2012). 143 Mossman et. al., supra note 99, at S33‐35. 144 Cruise & Rogers, supra note 141, at 43. 145 Mumley et. al., supra note 139, at 335‐338 & 346. 146 Cruise & Rogers, supra note 141, at 44.


IV

REFORMED OR REGRESSING? A RECENT RUSSIAN CRIMINAL TRIAL USING FORENSIC PSYCHIATRY

While the growth of the field as a serious academic and professional pursuit has

been lauded, its independence has again come into question. Some Russian scholars

argue that there has been a reverse trend since 1995.147 Recently, Russia’s criminal

justice system drew fire for the commentary by psychiatric professionals involved in the

internationally-watched Pussy Riot trial. In that case, three women were prosecuted for

trespass and hate crimes that were largely viewed in the west as acts of free speech and

dissidence against Vladimir Putin and the Russian Orthodox Church.148 But other recent

crimes against the church — even violent ones, such as the case of a knife-wielding

attacker who defaced property and threatened injury to himself and bystanders149 —

were not as harshly punished nor were psychiatrists invoked as they were in this

case.150 While the Pussy Riot defendants were not detained in psychiatric institutions,

they were required to undergo compulsory evaluations. The evaluator’s findings —

147 Savenko & Bartenev, supra note 74. 148 See: Vassily Vlasov, Psychiatry and Political Dissent in Russia, BMJ GROUP BLOGS, 31 August, 2012. Available at: http://blogs.bmj.com/bmj/2012/08/31/vasiliy‐vlassov‐psychiatry‐and‐political‐dissent‐in‐russia/. See also Masha Lipman, The Pussy Riot Verdict, THE NEW YORKER, August 17, 2012, available at http://www.newyorker.com/online/blogs/newsdesk/2012/08/the‐pussy‐riot‐verdict.html. 149 Martin Barillas, Orthodox Church Assembles Thousands to Protest Perceived Assaults on Religion, THE CUTTING EDGE NEWS, Apr. 22, 2012, at http://www.thecuttingedgenews.com/index.php?article=73069&pageid=89&pagename=Features (last visited Dec. 17, 2012). 150 “The psychiatrists described the defendants' supposed disorders: Nadezhda Tolokonnikova shows signs of "an active life position … and a tendency to express her opinions categorically"; Yekaterina Samutsevich suffers from "obstinacy, decisiveness and a tendency toward oppositional forms of behavior during conflicts, along with subjectivist and vigilant character traits"; and Maria Alyokhina shows signs of "demonstrative, overrated self‐opinion." Michael Bohm, Why the Pussy Riot Judge Hid Her Face, THE MOSCOW TIMES, Aug. 24, 2012, available at http://www.themoscowtimes.com/opinion/article/why‐the‐pussy‐riot‐judge‐hid‐her‐face/467052.html.


based on interviews of the women — included a conclusion that two of group’s leaders

have complex personality disorders: one “displayed through her activist stance, and a

desire for self-realisation” and the other displayed through “persistence, emphatically

voicing her opinion, low emotional sensibility and a tendency for deviant behavior. All

were deemed competent and none in need of compulsory medical treatment.151

Ultimately, the three women, with opinionated but subjectively gathered testimony

from the psychiatrist used against them, were convicted of hooliganism (a crime in

Russia) and sentenced to two years in prison, with one of them recently transferred to

solitary confinement, ostensibly at her own request.152

CONCLUSION

There can be no doubt that the Russian Federation of today is not the Soviet

Union of the Cold War, nor even the transitioning democracy that was scrambling to

create new codes of law under a new Constitution under Boris Yeltsin. Vladimir Putin’s

Russia is a growing capitalist force and a prominent player on the world stage.153 Its

presence in the WPA means that international scientists can both learn from and

influence psychiatric practices inside Russia. This, indeed, has been the case, as

evidenced by the IPA and its growing influence, seen in the respect that the United 151 Doctors say Tolokonnikova has Personality Disorder: Activist Stance and Desire for Self‐Realization, GAZETA.RU, AUG. 2, 2012. Available at http://en.gazeta.ru/news/2012/08/02/a_4708149.shtml. 152 Russia: Musician is in Solitary, N.Y. TIMES, Nov. 23, 2012, at A11. 153 Russia was accepted to the World Trade Organization in 2012. Many documents chronicling the process of Russia’s application are made available to the public at the WTO web page entitled Accession of the Russian Federation to the WTO at http://www.wto.org/english/thewto_e/acc_e/a1_russie_e.htm (last visited Dec. 5, 2012). See also Daria Tinaza, Current Development of Intellectual Property Laws in Russia and its Impact on Piracy of Intellectual Property, JD SUPRA, available at http://www.jdsupra.com/legalnews/current‐development‐of‐intellectual‐prop‐24711/ (last visited Dec. 10, 2012).


Nations pays to IPA commentary and research. If Russia is to succeed in integrating its

words and deeds, then it must continue to reform the practices that have been

legislated, but clearly have not been adapted in practice.

One thing that could help would be if Russian doctors would develop an

approach to the psychological aspects of their evaluation that is as subjective as their

extensive somatic examinations of patients. Reliance on objective, if imperfect,

assessment tools such as the myriad tests available to American psychiatric

professionals might substantiate opinions further, thereby quelling concerns about bias

and abuse.

What is also clear is that the mindsets among both the medical and the legal

professions in Russia need to incubate. That will take time —perhaps the duration that

it would take for the leadership of the professional ranks to be assumed by a new

generation, steeped in different approaches and practices than those that have been

inherited by the old guard of the waning Soviet Union. Only with international

vigilance and the passage of time can genuine reform occur. Until then, the well-

meaning words in those extensive Russian Federation statutes will continue to tease the

idealists and prove the nihilists, so prevalent in Russian society, correct in their ongoing

cynicism. Optimists can only hope that the cynics do not effect a self-fulfilling

prophecy. That could mean a return to the bad-old-days of Russian psych wards as de

facto prisons and a reversal of Russia’s emergence as a democratic society.

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