Toward a New Test for Insanity

Abstract

When we typically speak about “culpability” in connection with insanity cases, we usually, if not exclusively, focus on the moment of the act. In lay terms, we ask, “Was the accused totally out of his or her mind at the moment of the act, such that he or she should not be held culpable, or was the accused capable of exercising rationality, and therefore culpable?” This is the question that has been asked by judges and answered by juries over 250 years of Anglo-American jurisprudence regarding insanity. In the traditional schema of things, the possible answers are two: nonculpable or culpable, with the verdict being either NGRI or guilty. If we add “partial insanity” to the discussion, a third question is asked: “Was the accused’s capacity for rational conduct only partially impaired, such that, at the moment of the act, he or she was to some degree culpable?” If the answer is “Yes,” then a verdict of GBMI or diminished responsibility or diminished capacity follows. But notice that the crucial focal point is the moment of the act, regardless of whether two verdicts or three are being weighed.