Theresa Janusz was caught in a long scheme of embezzling from the financial institution she worked for, in a scheme that netted upwards of 70 thousand dollars over several years. Facing prison time for bank embezzlement, Ms. Janusz pleaded with a district court judge to reduce her potential sentence based on, among other things, diminished mental capacity. Her request was grounded in USSG § 5K2.13, p.s., which allows a court to depart from standard sentencing guidelines if the defendant committed a non-violent offense while suffering from reduced mental capacity.

To do this, Janusz submitted letters from a psychiatrist, a psychologist and a therapist. The psychiatrist's letter stated that Janusz suffered from major depression, anxiety and impulse control disorder. Indeed, Janusz's suffering was severe enough to cause a change in her normal impulse control and judgment. Her mental state, the letter stated, was a causative factor in her actions and contributed to a change in normal behavior.

Holding: The court did not find Janusz's letters persuasive. While it did not deny that she suffered from depression, the court held that Janusz had not presented any evidence that she was unable to exercise the power of reason in committing her acts. The court, citing the decision in U.S. v. Withers (100 F.3d 1142, 1147-48 (4th Cir. 1996), cert. denied, 520 U.S. 1132, 117 S.Ct. 1282), noted that in order to qualify for sentence reduction under USSG § 5k2.1 3, p.s., Janusz needed to show that her diminished mental capacity was more than "emotional problems." She needed to show that she was unable to process information or reason mentally. Not only was she capable of reasoning, said the court, she was capable of "orchestrating" a bank embezzlement scheme that lasted several years. Given her ability to function at such a high mental level, the court held that Janusz was not entitled to a reduced sentence based on diminished mental capacity and sentenced her to four years in prison, three years of supervised release and fines.

Dr. Welner comments: From humble beginnings of input on insanity, mitigating psychiatric information has polished a creativity open to abuse. The ruling in Withers, reinforced in Janusz, disciplines defendants to secure psychiatric departure the old fashioned way: earn it. Criminality and depression have been more traditionally linked in adolescent crime. The disguises of depression in juveniles include impulsivity, drug abuse, and delinquency. For this reason, psychiatrists and psychologists are seduced into attributing the depression explanation for crime more frequently. This includes assuming that just as criminality in adolescence occasionally heralds an underlying depression or bipolar disorder, therefore it must in adulthood. What's the reality?

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Love or control obsession
Religious and political zealotry
Kleptomania
Addictive sex offending
Depressive's obvious self-destruction
Rage overreactions in the provoked
Intellectual deficits

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Bad flowers develop into bad fruit. Criminality in adolescence is predicted in earlier life by previous or more modest antisocial behavior. Drugs, physical maturity, bad influences, and positive reinforcement are far more likely to promote the expansion of criminal ambitions than depression or bipolar disorder. Secondly, the available evidence for linking mental illnesses such as depression with antisocial behavior in adults is scant. The expression of mood disorders through antisocial behavior has never been recognized in adults the way it has been appreciated in teens.

However, defense attorneys still have available opportunities to demonstrate defects of reason, even with individuals who maintain a high level of function. Obsessional mental states, such as those seen with fatal attractions and stalkers, are notorious for promoting choices in sufferers that consistently make no sense. Was Judge Sol Wachtler laboring under a defect of reason because of manic depressive illness? You've gotta be kidding. But the eminent jurist was certainly overcome by an obsessional attachment to a woman such that his reason was impaired in that regard.

Kleptomaniacs may risk arrest simply because the anxiety relieved by the act of stealing (an often valueless object) is simply unbearable. Some sex offenders truly have an addictive impulse that can only be relieved by actions they know are criminal, yet relieve the psychological craving that is incapacitating. Even the occasional depression sufferer will make a criminal choice that clearly reflects his hopelessness and despair. We will see this around Christmastime, when husbands and fathers blow away their entire families in murder suicides. Even the bipolar disorder sufferer with a defect of reason during the acute stages of a manic episode may, in singular instances, of theft and other material crimes related to the grandiosity of his condition. This should in no way be confused with the careful and longstanding orchestration of fraud by quick thinking ponzi schemers like former publisher Stephen Hoffenberger, who are able to purchase a redefinition from psychopath to a variant of bipolar disorder.

Intellectual deficits as a cause of poor judgment may not be readily obvious, either. For this reason, careful neuropsychological testing and neuroimaging will uncover defects in decision making and reason and provide the standardized data the court needs. These tests, properly administered and interpreted, can also detect the faking defendant.

Impulse control disorders are risky to raise as defects of reason. Prosecutors are well advised to explore for the presence of narcissistic or antisocial personality disorder in those who claim to suffer from impulse control disorders. After all, impulsivity is a common feature of these often exploitive personalities.

One easy rule of thumb to follow is that the longer a period of criminality, the less likely the defendant suffers from a psychiatric defect of reason, unless the defendant is very dependent on the orchestrator or suffers from one of the above conditions.