Attacks on the Insanity Defence

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.?

MENTAL ILLNESS AND CRIMINAL BEHAVIOR

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 ...

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