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The Insanity Defense



 The insanity defense refers to that branch of the concept of 
insanity which defines the extent to which men accused of crimes may 
be relieved of criminal responsibility by virtue of mental disease. 
The terms of such a defense are to be found in the instructions 
presented by the trial judge to the jury at the close of a case. These 
instructions can be drawn from any of several rules used in the 
determination of mental illness. The final determination of mental 
illness rests solely on the jury who uses information drawn from the 
testimony of "expert" witnesses, usually professionals in the field of 
psychology. The net result of such a determination places an 
individual accordingly, be it placement in a mental facility, 
incarceration, or outright release. Due to these aforementioned 
factors, there are several problems raised by the existence of the 
insanity defense. Problems such as the actual possibility of 
determining mental illness, justifiable placement of judged "mentally 
ill" offenders, and the overall usefulness of such a defense. In all, 
I believe that these problems, as well as others which will be 
mentioned later, lead us to the conclusion that the insanity defense 
is useless and should be abolished entirely. Insanity is a legal, not 
a medical definition. Therefore, mental illness and insanity are not 
synonymous: only some mental illness constitutes insanity. Insanity, 
however, includes not only mental illness but also mental 
deficiencies. Due to this, there are problems in exactly how to apply 
a medical theory to a legal matter (Herman, 1983;128). The legal 
concepts of mental illness and insanity raise questions in a conflict 
between what are termed legalistic criminology and scientific 
criminology: mens rea, punishment v. treatment, responsibility, and 
prisons v. hospitals. This debate seesaws to and fro amidst a grey 
area between law and science. The major difficulty with a theory such 
as mental illness is that it is just that, a theory. To scientists 
theories are a way of life, but applied to the concept of law theories 
become somewhat dangerous. By applying a loose theory such as mental 
illness to law we are in essence throwing the proverbial "monkey 
wrench" into the wheels of justice.


 At the center of the legal use of insanity lies the mens rea. 
Every crime involves a physical act, or actus reus, and a mental act, 
or mens rea, the non-physical cause of behavior. The mens rea is the 
mental element required for a crime, and if absent excuses the 
defendant from criminal responsibility and punishment (Jeffery, 
1985;49). The difficulty here lies in analyzing the mens rea. In order 
to do this lawyers apply one of several rules used by psychologists. 
These rules range from the Irresistible Impulse Test to the M'Naghten 
Rule. Each of these rules approach mental illness/capacity in a 
different way and in my opinion each falls short of actual proof. I 
will discuss each in detail. The M'Naghten Rule The M'Naghten Rule, 
also known as the right-wrong test, arose in 1843 during the trial of 
Daniel M'Naghten who argued that he was not criminally responsible for 
his actions because he suffered from delusions at the time of the 
killing. The M'Naghten Rule reads: A defendant may be excused from 
criminal responsibility if at the time of the commission of the act 
the party accused was laboring under such a defect of reason, from a 
disease of the mind, as not to know the nature and the quality of the 
act he was doing, or if he did know it, that he did not know that he 
was doing what was wrong. Thus, according to the rule, a person is 
basically insane if he or she is unable to distinguish between right 
and wrong as a result of some mental disability. Criticism of the 
M'Naghten Rule has come from both legal and medical professions. Many 
criticize that the test is unsound in its view of human psychology. 
Psychiatry, it is argued, views the human personality as an integrated 
entity, not divisible into separate compartments of reason, emotion, 
or volition (Herman, 1983;138). Additionally, the test is criticized 
for defining responsibility solely in terms of cognition. While 
cognitive symptoms may reveal disorder, they alone are not sufficient 
to give an adequate picture of such a disorder or determine 
responsibility. Also, it has been shown that individuals deemed insane 
by psychologists have possessed the ability to differentiate right 
from wrong. I believe that the major weakness of this test, however, 
lies in the fact that courts are unable to make clear determinations 
of terms such as disease of the mind, know, and the nature and quality 
of the act. The Irresistible Impulse Test This rule excludes from 
criminal responsibility a person whose mental disease makes it 
impossible to control personal conduct. Unlike the M'Naghten Rule, the 
criminal may be able to distinguish between right and wrong, but may 
be unable to exercise self-control because of a disabling mental 
condition. Normally this test is combined with the M'Naghten Rule. 
Many of the criticisms of the Irresistible Impulse Test center around 
the claim that the view of volition is so extremely narrow that it can 
be misleading. Just as the M'Naghten Rule focused on cognition rather 
than the function of the person in an integrated fashion, the 
Irresistible Impulse Test abstracts the element of volition in a way 
that fails to assess a person's function in terms of an integrated 
personality. Additionally, it has been asserted that the concept at 
best has medical significance in only minor crimes resulting from 
obsession-compulsion, and that seldom, if ever, can it be shown that 
this disorder results in the commission of a major crime (Seigel 
1993;144). Such a claim is subject to the objection that it cannot be 
conclusively proven. Interestingly, it has been shown by many 
psychiatric authorities that no homicidal or suicidal crime ever 
results from obsession-compulsion neurosis. Another criticism of this 
test is the difficulty, if not the impossibility, of proving the 
irresistibility of the impulse, which the definition of the test 
requires. The jury, as I said earlier, has the final decision, and is 
faced with deciding when the impulse was irresistible and when it was 
merely unresisted, a task that psychiatrists suggest is impossible to 
perform. We are also able to argue that the test is one of volition. 
It is too narrow in that it fails to recognize mental illness 
characterized by brooding and reflection (Herman 1983;140). The test 
is misleading in its suggestion that where a crime is committed as a 
result of emotional disorder due to insanity, it must be sudden and 
impulsive. The Durham Rule The Durham Rule, also known as the Products 
Test, is based on the contention that insanity represents many 
personality factors, all of which may not be present in every case. It 
was brought about by Judge David Bazelon in the case of Durham v. U.S. 
who rejected the M'Naghten Rule and stated that the accused is not 
criminally responsible if the unlawful act was the product of mental 
disease or defect. The primary problem with this rule of course lies 
in its meaning. Again it is impossible for us to define mental disease 
or defect, and product does not give the jury a reliable standard by 
which to base a decision. It is unnecessary to offer further 
criticism, for my purpose I believe this attempt fails at it's onset. 
The Substantial Capacity Test Another test is termed the Substantial 
Capacity Test which focuses on the reason and will of the accused. It 
states that at the time of the crime, as a result of some mental 
disease or defect, the accused lacked the substantial capacity to (a) 
appreciate the wrongfulness of their conduct or (b) conform their 
conduct to the requirements of the law. This test is disputable in the 
fact that it is not only impossible to prove capacity of reason or 
will, but to even test such abstracts seems absurd. Additionally, the 
term "substantial capacity" lies question in that it is an abstract 
impossible to define.


 The meaning of insanity is the legal definition as put forth 
in a rule such as the M'naghten Rule or whatever school of thought is 
in use on any given day. The legal test is applied in an adversary 
system which pitches lawyer against psychiatrist and psychiatrist 
against psychiatrist. Because of this, the psychiatrist is often 
perceived not as a scientist but a partisan for the side which is 
paying for his testimony (Jeffery, 1985;56). The major problem in this 
case being that the use of a neutral expert is impossible to 
implement. In the end the determination of insanity is a layman's 
decision since it is the jury which ultimately decides whether the 
defendant is sane or insane. This of course is ludicrous since 
professional scientists cannot agree on the meaning of mental illness. 
How can a layman make such a decision especially after listening to 
contradictory testimony which is manipulated by opposing lawyers. I 
believe that the major problem that we can point out here is in the 
futility of asking psychiatrists to testify in terms of legal concepts 
of insanity. The psychiatrist finds himself in a double bind: he has 
no medical definition of mental illness and he must answer questions 
from lawyers concerning legal insanity, right and wrong, and 
irresistible impulses. As stated by Packer: "The insanity defense 
cannot tolerate psychiatric testimony since the ethical foundations of 
the criminal law are rooted in beliefs about human rationality, 
deterribility, and free will. These are articles of moral faith rather 
than scientific fact."


 In the insanity defense we have no variable independent of the 
criminal behavior we are studying. Insanity refers to a class of 
behaviors known by observing the behavior of the patient, and 
criminality is a class of behavior likewise known by observing the 
behavior of the defendant. We are involved in classification and 
labels. Where we have one class of behaviors labeled as schizophrenia, 
and the other class labeled as crimes, what we have are two 
co-existing classes of behavior in the same individual, and not a 
cause or effect relationship (Simon, 1988;47). A person can be 
Catholic and commit a robbery without a casual relationship existing; 
likewise, a person can be schizophrenic and a robber without a casual 
relationship existing between the two classes of behavior. Coexistence 
does not show a casual relationship. Behavior cannot cause behavior. 
What we must do, in order to prove a relationship between mental 
illness and criminal behavior is produce some independent link between 
the two classes of behavior on a biochemical level. We must have a 
definition of mental illness independent of the behavioral symptoms in 
order to establish a casual relationship between crime and mental 
illness. There is such a view and it is termed the Biological 
Psychiatric view. The view basically states that there is some defect 
or malfunction in the actual make-up of the brain of an individual 
which causes schizophrenia. This same defect then causes the criminal 
behavior such as robbery or murder. The problem here is that we have 
no actual way of mapping the brain and conclusively determining 
exactly what portion thereof is responsible for either type of 
behavior much less that one area is responsible for both. In essence 
even if true this theory is unprovable. There is also a statistical 
relationship between crime and mental illness. Guttmacker and Weihofen 
found 1.5 percent of the criminal population psychotic, 2.4 percent 
mentally defective, 6.9 percent neurotic, and 11.2 percent 
psychopathic (Jeffery, 1985:66). These figures are very unconvincing. 
Additionally they are based on old diagnostic categories and 
procedures which are most unreliable. Also, the meaning of neurotic or 
psychotic or psychopathic is uncertain within the context of these 
studies and they do not refer to modern biological categories of brain 
disease. Terms such as insanity, mental illness, and mens rea have no 
scientific meaning, therefore we must leave as unspecified and 
uncertain the relationships between insanity, mental illness and 
criminal law. We certainly cannot conclude that mental illness bears 
any relationship to diseases of the brain, nor can we conclude that 
mental illness or insanity causes criminal behavior.


 Not only is there no agreement as to the meaning of insanity 
and mental illness, but to add further confusion, there is a school of 
thought that states that mental illness is a myth and does not exist. 
This approach is found in the works of such persons as Thomas Szasz 
(1961;1963) who argues that mental illness is a myth and label applied 
to behavior by psychiatrists who are making political and ethical 
decisions, and Laing (1969;1971) who claims that labels are being used 
by society to impose violence and control on people. View such as 
these and others deny the physical and biological basis of behavioral 
disorders. They separate completely biology and behavior, brain and 
behavior, and mental and physical. The fact that we refer to "mental" 
disease has been cited as evidence that we do not regard it as disease 
but as something outside the realm of biological science. Szasz 
states, for example, that the psychiatrist confuses physical disease 
and neurological disorders with mental diseases. A study in evidence 
of this was done by Rosenhan (Ziskin, 1975:54) known as "Being Sane in 
Insane Places." Rosenhan, a psychologist, placed eight normal people 
in mental hospitals as "pseudo-patients." They were diagnosed as 
schizophrenic, and later on when they appeared normal, rediagnosed as 
schizophrenia in remission. After one experiment one hospital 
challenged Rosenhan to send them "pseudo-patients" during the next 
several months. At the end of the period the hospital announced that 
they had discovered that 12 percent of their admission were 
"pseudo-patients" from Rosenhan went in fact none had ever been sent.


 As we have already seen, there is much confusion dealing with 
the placement of insanity and mental illness, it's definition, and 
even it's very existence. We have likewise seen the use of several of 
the various testing techniques used to determine mental illness and 
their shortcomings. This information alone would lead us to believe 
that the insanity defense needs at least to be revised and improved in 
many areas. What we have looked at thus far is what precedes the 
actual judgment of sanity. What we have not looked at, however, is 
that implementation of the actual judgment of sanity. That is to say, 
the actual results of the defense when successful. I believe that it 
is here that we will see the most heinous travesties of justice. There 
are several decisions which can be reached when insanity is at last 
proven. These judgements include not guilty by reason of insanity 
(NGI), and guilty but mentally ill (GMI), with the later verdict not 
being implemented until the early eighties in an attempt to reform the 
insanity defense and decrease the amount of NGI verdicts. The NGI 
verdict is the more dangerous verdict and the one which I believe has 
the strongest argument against the insanity defense. The objection 
here is that it allows dangerous men to return to the streets where 
they commit heinous crimes. Of the 300 persons committed on NGI 
verdicts 80 percent were released from mental hospitals by 
psychiatrists, and in several instances these mental patients went on 
to kill again (Jeffery, 1985;73). My belief is that psychiatrists and 
mental hospitals do not cure the mentally ill. This is the reality of 
the insanity defense which I find irrefutable; in many cases criminals 
are released due to loopholes such as the insanity defense to simply 
commit the same crime again. Even is these cases make up 10 out of 
100,000, there now exist 10 crimes that need not have happened. The 
guilty but mentally ill approach has three serious flaws. First it 
strikes indirectly at the mens rea requirement, introducing the 
slippery notion that the accused had partial, but not complete, 
criminal intent. Second, it creates a lesser and included offense that 
judges and juries may choose as simply a compromise verdict. They 
believe the accused probably did something wrong and deserves some 
punishment, but they are unwilling to bring in a verdict of guilty on 
the top charge. The GMI verdict would allow them to split the 
difference. Finally the GMI verdict is fraudulent on the issue of 
treatment. As proposed, it makes no provision for treatment of the 
person who has been declared mentally ill. The GBI option has already 
proved to be a bogus reform. A 1981 Illinois law added the GMI as an 
additional verdict, retaining the traditional insanity defense. In 
Cook County, verdicts of not guilty by reason of insanity actually 
increased from 34 to 103 between 1981 and 1984. At the same time GMI 
went from 16 in 1982, the first year the option was available, to 87 
in 1984. There has been much evidence of a "hydraulic" effect that was 
contrary to the law's intent. In both Illinois and Michigan, GMI 
verdicts involved people who would otherwise have been found guilty, 
not defendents who would have been found not guilty by reason of 
insanity (Walker, 1994;155-156). The real function of the GBI option 
is to appease public opinion. The public has little concern for the 
details of what actually happens to a mentally ill criminal defendent. 
Basically, it wants a symbolic statement of "guilty." In practice, the 
GMI verdict has as much meaning as "guilty but brown eyes." How 
dangerous is the GMI verdict? As we say with the NGI verdict, many 
extremely dangerous mentally ill criminals were simply released onto 
the streets where they committed the same crimes. Does the GMI verdict 
solve this problem? We have some "natural experiments" on this questio 
rising from some court decisions. A 1971 decision forced to 
reassessment of 586 inmates of Pennsylvania's Fairview State Hospital 
for the Criminaly Insane who were placed there under the GMI verdict. 
Over two-thirds were eventually released. Over the next four years, 27 
percent were rearrested. Eleven percent were rearrested for violent 
crime. Including some others who were rehospitalized for a violent 
act, a total of 14.5 percent of those released proved to be dangerous.


 Abolishing the insanity defense is easier said than done for 
the simple reason that the mens rea requirement remains a fundamental 
legal principle. The proposal that "mental condition shall not be a 
defense to any charge of criminal conduct" could be interpreted in one 
of two ways. The broader interpretation would mean that absolutly no 
aspect of mental condition could be taken into account. In effect, 
this interpretation would abolish the mens rea requirement altogether. 
The prosecution would not have to prove anything about the accused's 
mental state. This is unneccessarry. For one thing, it would wipe out 
the distintions that separarte first-degree murder, second-degree 

murder, and manslaughter. It is doubtful that anyone againt the 
insanity defense would choose to take this approach. So sweeping, in 
fact, would be it's effect, that it would probably be declared 
unconstitutuional. A more limited reading of the wording "mental 
condition shall not be a defense to any charge of criminal conduct" 
would mean that an affermative plea of "not guilty by reason of 
insanity" could not be raised. The crucial distinction here is drawn 
between affermative and ordinary defenses. An ordinary defense is 
simply an attempt to shown that the prosecution has failed to connect 
the accused with the crime, a defense used in everyday law. An 
affermative defense is raised when the prosecution has connected the 
accused with the crime, as in an example of self-defense. The defense 
argues that, yes, the accused did shoot and kill the person and did so 
intentionally, but because the act was commited in self-defense the 
accused does not bear criminal responsibilty for it. The same is true 
in the case of a criminal act commited under duress. The insanity 
defense, in this respect, is an affermative defense. It is this usage 
that needs to be abolished. In cases such as self defense it may be an 
adequate and totally acceptable defense, for in how many cases do you 
hear of a man being aquitted due to a self-defense plea returning to 
the streets in order to kill again? To draw a comparison between the 
two and argue that both defenses are neccessarry to the total order is 
naive and unfounded.


 The law of insanity involves the conceptes of mens rea and 
punishments, as does the criminal law in general. Insanity is a legal 
concept, not a medical concept, and insanity is defined within the 
context of an adversary system wherin psychiatrists and lawyers battle 
one another over the meaning of terms such as "right and wrong" and 
"ability to control one's behavior." Mental illness and mental disease 
are psychoanalytic concepts, not scientific concepts. Mental illness 
is defined by talking to people or by giving them written tests, and 
there is no agreement among psychiatrists as to the meaning of this 
illness or whether or not it really exists. Some psychiatrists call 
mental illness a myth. The psychoanalyst has not been successful in 
treating or predicting mental illness. The psychoanalyst has never 
established a casual relationship between mental illness and criminal 
behavior. The insanity defense would require both a mental illness and 
a relationship between the illness and the criminal behavior, neither 
of which could be scientificly established. Of the criminals both 
aquited and convicted using the insanity defense, a good number have 
shown conclusive evidence of recidivism. Many dangerous persons are 
allowed to return to the streets and many non-dangerous persons are 
forced into facilities due to an insanity plea adding further 
confusion and injustice within both the legal and medical systems. In 
my opinion the iunsanity defense is impossible to maintain on the 
basis of rules such as the M'Naghten Rule, and the relationship 
between law and psychiatry must be reestablished on a more scientific 
level, based on the neurological work now going on in the brain 
sciences. The insanity defense is impracticle in it's present usage 
and should therefore be abolished.



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