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February 6, 2018

Advocating for postpartum mental illness to be an express mitigating sentencing factor

The Hill has this notable new sentencing commentary authored by doctors Katherine Wisner and Cara Angelotta headlined "Accounting for postpartum depression in criminal sentencing is the right move." Here are excerpts:

A new Illinois law is set to take effect this summer that will specifically address the legal culpability of women who commit criminal acts during episodes of severe postpartum mental illness.  This is the first law of its kind in the U.S., and as perinatal and forensic psychiatrists, we applaud this legislation and urge other states to follow.

This new law takes the unprecedented step of specifically highlighting postpartum mental illness as a potential mitigating factor for judges to consider in determining an appropriate punishment for a crime.

Once enacted, the state law will allow women who were convicted of a felony, but who did not have evidence of postpartum mental illness presented at their trial or sentencing, to apply for post-conviction sentence reduction.  Practically, this means that women in prison for crimes that were directly related to symptoms of undiagnosed or untreated postpartum mental illness now have a legal mechanism to apply to the courts for a lesser sentence.

The law provides hope for the possibility of treatment, rather than punishment, for women who were convicted without consideration of the devastating effects of postpartum mental illness on behavior.

This legislation is in line with the longstanding Infanticide Act of 1938 in the United Kingdom, which limits the charge for killing an infant to manslaughter, not murder, if the act occurred when the woman’s “balance of her mind was disturbed by reason of her not having fully recovered from the effect of giving birth to the child or by reason of the effect of lactation consequent upon the birth of the child.”...

The Illinois legislation is unique because it creates a legal definition of postpartum mental illness. Postpartum depression was defined in the law’s text as "a mood disorder which strikes many women during and after pregnancy which usually occurs during pregnancy and up to 12 months after delivery. This depression can include anxiety disorders.”...

To be sure, we all have strong emotional reactions to the injury or killing of an infant by a mentally ill mother. The criminal acts in this law apply to forcible felonies, which involve violence or the threat of physical force or violence to any individual, not only the infant but other family members or strangers. But, coupled with the miracle of new life comes the risk for multiple maternal complications, including mental illness, anemia, nausea and vomiting, hypertension, gestational diabetes, excess weight gain, pregnancy loss, cesarean delivery and anesthesia complications.

Perinatal mood and anxiety disorders are associated with increased risks of maternal and infant mortality and morbidity and are recognized as a significant maternal safety issue. The pregnancy-related death rate in the United States has steadily increased across the past three decades — evidence of another risk pregnant women face....

This law specifically identified perinatal (occurring during pregnancy or postpartum) psychiatric disorders as mitigating factors.  We urge support for legislation that incorporates both pregnancy and childbirth and their complications as mitigating factors in crimes committed during postpartum mental disorders in all states.

February 6, 2018 at 10:20 PM | Permalink


So let me get this straight: a woman murders her baby or her husband, and these two women want to allow her to claim that she was temporarily insane? They want to do this because there is some evidence that some women may suffer a psychotic break in the postpartum stage? And this is progress: giving a murderous woman a break, because crazy for a few weeks?

Interesting article. But what about that common ailment found in men: temporary irritation with nagging wife syndrome? This common malady should cause all state and federal legislaatures to change all of their laws to allow for this type of defense. Furthermore, all people in prison convicted of any violent offense should be evaluated for sentence reductions or even complete reversals in order to account for men who suffer the trauma of temporary IWNW Syndrome.

Posted by: restless94110 | Feb 7, 2018 2:24:28 AM

No, it doesn't allow her to argue she was "temporarily insane." It's a factor at sentencing, which means this only applies after a conviction that this law leaves untouched. For what it's worth, the traditional example of voluntary manslaughter was a husband killing his wife and her lover when finding them in bed together. This "partial excuse" from murder down to manslaughter assumed that finding your wife in bed with another man is deemed a "severe provocation" that decreased (but didn't eliminate) criminal responsibility.

Posted by: Stephen Hardwick | Feb 7, 2018 9:43:30 AM

When someone, especially if they add some critical comment, says something like "let me get this straight" or "so you are saying" etc., be on guard. They just might be off base to some degree. It's just a inclination, so not saying the first comment meets it.

Posted by: Joe | Feb 7, 2018 9:59:05 AM

Progesterone levels go from 160 in pregnancy back to like 10 or lower in three days, after delivery. Progesterone is a good anti-depressant. For example, it boosts brain serotonin, the way anti-depressants do. After this rapid withdrawal of progesterone, millions of women cannot control their tears despite having done very well in delivery. Those with prior mood disorders may become psychotic. They may have done well in pregnancy off meds. All OB's and psychiatrists know this. So they jump in immediately to resume prior treatment.

Post partum depression is associated with lethargy, low self esteem, feeling overwhelmed. If psychotic, as Andrea Yates was prior to delivery, she may act on her false beliefs. In the case of Andrea Yates, her psychiatrist took her off Haldol, despite the begging of her husband. He was afraid of being sued for the side effects of Haldol. The husband should have said the magic words, we will not sue you, put her back on Haldol. She came to believe she had to save her children from the Devil by drowning them. She drowned 5 of them, as they begged for their lives. Once in prison, she was restarted on Haldol, and became a normal person. She had to face what she had done, with a clear head.

Post partum depression should not be a separate defense without the usual features of the insanity defense. It is associated with violence only in people with prior mental problems, worsened by progesterone withdrawal. I have also said that all mitigating factors are actually aggravating factors. Is Andrea Yates more or less dangerous than a paid Mafia assassin?

[Disclosure. I was sued for what the doctor was afraid of. I ended the entire line of litigation by destroying the lives of the plaintiff lawyers, the plaintiff expert witnesses, and of the plaintiff's family. To deter. There has not been any more such litigation. They had won $millions prior to suing me. Now doctors should use their best judgement, and no longer fear litigation on this subject. I have seen a patient suffering horrifying versions of the side effect. She could not find a lawyer to take her case within 200 miles of her town. I felt sorry for her, but then I thought of the Yates children.]

Posted by: David Behar | Feb 7, 2018 12:46:08 PM

When someone, named Joe, attacks another commenter because they say a phrase, be on your guard. That person is obviously a nitwit devoid of all sense whatsoever.

Posted by: restless94110 | Feb 8, 2018 3:40:00 PM

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