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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.
 TESTING FOR INSANITY 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.
INSANITY: HOW IT IS ESTABLISHED 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."
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
THE MYTH OF MENTAL ILLNESS 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.
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.
ABOLISH THE INSANITY DEFENSE 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.
CONCLUSION 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


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