Anti Insanity Defense Essay, Research Paper
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
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.
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.
USEFULNESS OF THE INSANITY DEFENSE
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.
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