Abstract
This chapter critically discusses the traditional law of insanity, according to which an accused is insane if, as a result of mental disease or defect, he lacks the capacity to know the law or to conform his conduct to it. It then critically discusses an alternative proposal, according to which an accused is insane if he is in some sense irrational.
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Notes
- 1.
Oxford was the first, but not the last, to make an attempt on the Queen’s life. Six more would follow (Murphy 2012).
- 2.
- 3.
This chapter focuses on the law of insanity. The insanity defense has of course been subject to empirical study. For a recent meta-analysis discussing the variables associated with a finding of insanity, for example, see Kois and Chauhan (2018).
- 4.
Among the many questions M’Naghten’s canonical test raises: (1) What, if anything, does the language pursuant to which an accused is insane if he “did not know the nature and quality of what he was doing” add to the language pursuant to which he’s insane if he “did not know what he was doing was wrong”? Is the former phrase really necessary, insofar as all (or most) cases in which an accused didn’t know the nature and quality of what he was doing will also be cases in which he didn’t know what he was doing was wrong? See, for example, Clark v. Arizona (pp. 753–754); Goldstein (1967, pp. 50–51) (noting that the “phrase ‘nature and quality of the act’ … is [m]ore often stated to the jury without explanation or treated as adding nothing to the requirement that the accused know his act was wrong,” but also noting “[t]here have been [a] few efforts to treat the phrase as if it added something to the rule”). (2) Does the reference to “wrong” mean legally or morally wrong, and if the latter, in reference to what system of “moral” rules is moral wrongness to be determined? (3) Because the Judges’ second question, to which the canonical test was a response, asked about “a person alleged to be afflicted with insane delusion,” is M’Naghten’s canonical test limited to cases in which the accused claims to have been delusional?
- 5.
For example, compare Simester et al. (2013, p. 723) (“This express provision for partial delusions [i.e., the question-four test] does not appear to add anything to the substance of the Rules.”) and LaFave (2010, p. 408) (“Although some American cases might be read as if they were following somewhat different standards in [cases involving ‘partial delusions only,’ and ‘not in other respects insane’] it is undoubtedly fair to conclude that this particular part of M’Naghten does not set up a unique formula differing from the right-wrong test [i.e., the answer to the second and third questions].”), with, for example, United States v. Currens (p. 764 n.15) (opinion by Biggs, C. J.) (“The answers of the Judges of England can by some simplification be fairly reduced to two rules to determine the criminal responsibility of one pleading insanity as a defense to crime,” one corresponding to the Judges’ answer to questions two and three and the other to their answer to question four) (emphasis added).
- 6.
In contrast, discussions of the law of insanity in the early twentieth century included, with some regularity, an entry under the heading of “delusion,” and appear to analyze “delusion” as a separate test for insanity (see, e.g., Wharton and Stillé 1905, pp. 547–549; Weihofen 1933, pp. 69–79; Glueck 1925, pp. 245–254). Writing in 1961, however, Glanville Williams noted: “A study [in England] of the directions actually made show that the [test stated in response to question four] is in desuetude. … So also in most American jurisdictions” (see Williams 1961, p. 500).
- 7.
The Judges’ use of the phrase “defect of reason,” in their answer to questions two and three, might be interpreted as a synonym for incapacity. For a suggestion to this effect, see Fingarette (1972, p. 198). If so, then the canonical test would, like the newM’Naghten, ground insanity in cognitive incapacity.
Earlier tests for insanity, predating M’Naghten’s Case, and associated with Hale’s notion of “total insanity” or “perfect insanity,” did ask if the accused had the general capacity to know (and distinguish) right from wrong in the abstract, rather than, as M’Naghten asked, if he the capacity to know the particular acts charged constituted a crime. For a recent contribution urging a return to these older formulations, see Moore (2015, p. 768).
- 8.
Accord Dressler (2015, p. 348) (stating that the M’Naghten Rule “has been persistently criticized … because, by its terms, it does not recognize degrees of incapacity”); LaFave (2010, p. 421) (stating that according to the “usual interpretation of M’Naghten … a complete impairment of cognitive capacity … [was] necessary”).
- 9.
The Supreme Court has read M’Naghten’s canonical test in the same way. See Clark v. Arizona (p. 747) (stating the Judges’ answer to questions two and three and then stating that the “second part” of that answer “presents an ostensibly alternative basis for recognizing a defense of insanity understood as a lack of moral capacity: whether a mental disease or defect leaves a defendant unable to understand that his action is wrong”) (emphasis added).
- 10.
For a helpful discussion on the different ways the word “wrong” can be construed, see Sinnott-Armstrong and Levy (2011, pp. 302–306).
- 11.
Compare Walker (1968, p. 112) (readingM’Naghten’s Case to state that “it was [an accused’s] knowledge of [his act’s] objective moral wrongness, together with the fact of its illegality, which made him punishable.”), with LaFave (2010, p. 406) (“TheM’Naghten judges did not make clear what construction they were giving to the word ‘wrong.’”), and Manwaring (2018, p. 988) (“[T]he M’Naghten Rules … did not specify the relevant sense of ‘wrong’.”).
- 12.
Compare, for example, U.S. v. Polizz, (pp. 276–281) (Weinstein, J.) (defining “wrongfulness” in 18 U.S.C. § 17(a), in context of child pornography prosecution, to mean “unlawful”); R v. Windle (legal wrong), with, for example, U.S. v. Ewing (pp. 617–621) (defining “wrongfulness” in 18 U.S.C. § 17 to mean moral wrong); People v. Schmidt (p. 947) (moral wrong) (Cardozo, J.); People v. Serravo (p. 135) (en banc) (moral wrong). The ModelPenal Code is agnostic. See Model Penal Code and Commentaries 1985, p. 169 (“The proposal as originally approved in 1955 was in terms of a person’s lack of capacity to appreciate the ‘criminality’ of his conduct, but the Institute accepted ‘wrongfulness’ as an appropriate substitute for ‘criminality’ in the Proposed Final Draft.”).
- 13.
In these jurisdictions, jurors are simply kept in the dark as to what “wrong” means (see, e.g., State v. Morgan (p. 524 n.5)).
- 14.
- 15.
James Fitzjames Stephen, the eminent Victorian jurist, suggests as much when he writes: “Either, therefore, Hadfield ought to have been convicted, or the presence of delusions must have some legal effect other than those which the answers of the judges to the House of Lords expressly recognize” (Stephen 1883, p. 160).
- 16.
The mental-disease-or-defect requirement plays a pivotal role in both the newM’Naghten and irresistibleimpulse tests, but the law rarely defines the phrase “mental disease or defect,” although some conditions, like psychopathy and addiction, are often excluded. See, for example, Melton et al. (2018, p. 206) (“In short, legal definitions of the mental disease or defect threshold, if they exist at all, are extremely vague and vary from jurisdiction to jurisdiction.”).
- 17.
Stephen made a similar observation about Hadfield. See, for example, Stephen (1883, p. 167) (“Hadfield no doubt knew [his act] to be wrong in the sense that he knew other people would disapprove of it, but he would also have thought, had he thought about it at all, that if they knew all the facts (as he understood them) they would approve of him, and see that he was sacrificing his own interest to the common good.”). Likewise, the Connecticut Supreme Court has held: “[A] defendant may establish that he lacked substantial capacity to appreciate the ‘wrongfulness’ of his conduct if he can prove that … he … harbored a delusional belief that society, under the circumstances as he honestly but mistakenly understood them, would not have morally condemned his actions.” State v. Wilson (p. 640) (emphasis in original). Asking if an accused would believe the law or society would regard his actions as wrongful if his delusions were true is similar to, but not exactly the same as, the question-four test from M’Naghten’s Case, which asks if the accused would in fact have been criminally liable if his delusions were true.
- 18.
See, for example, Moore (2016a, p. 208) (“While not universally accepted, it is plausible to analyze ‘X could have A-ed’ in terms of the counterfactual ‘X would have A-ed if C’, where C represents a change from the actual word (in which X did not A). Such changed worlds philosophers … have called ‘possible worlds’.”). See generally Maier (2014).
- 19.
Judge Weinstein relied on a similar test when he instructed the jury in U.S. v. Polizzi: “[W]hen the [federal insanity] statute says ‘unable to appreciate’ the ‘wrongfulness’ of his acts, you are, in effect, being asked to determine, ‘If he were told that the act was illegal, would he be able to understand, i.e., ‘appreciate,’ that he would be breaking the law” by committing the crime charged? U.S. v. Polizzi (p. 277) (emphasis added).
- 20.
See Model PenalCode and Commentaries (1985, p. 172) (“The adoption of the standard of substantial capacity may well be the Code’s most significant alteration of prevailing tests. It was recognized, of course, that ‘substantial’ is an open-ended concept, but its quantitative connotation was believed to be sufficiently precise for purposes of practical administration.”).
- 21.
SeeModel Penal Code and Commentaries (1985, p. 166) (use of the word “appreciate” is intended to cover cases in which the accused’s awareness of the criminality or wrongfulness of his conduct “does not penetrate to the affective level”).
What does it mean for knowledge to “penetrate to the effective level”? One possibility is this: Someone “appreciates” the wrongfulness or criminality of his conduct only if, when he engages in conduct he “knows” to be wrong, he experiences, or at least has the capacity to experience, some adverse reactive emotions, like guilt or shame. That’s a plausible way to interpret “appreciate,” but it would make psychopaths insane, at least if someone is a psychopath just in case he lacks the capacity to experience such reactive emotions. One might agree or disagree with that conclusion, but if psychopathsaren’t responsible under § 4.01(1) because they can’t “appreciate” the wrongfulness or criminality of their conduct, they’re nonetheless outside the scope of § 4.01(1), at least insofar as § 4.01(2) is read to exclude “psychopathy” as a qualifying “mental disease or defect” under § 4.01(1).
- 22.
See, for example, Fingarette (1972, p. 239) (“Thus, in effect, it seems to me that M’Naghten can stand as an adequate test if properly interpreted, retained in full, and rendered somewhat more flexible in certain respects.”); Stephen 1883, p. 171 (“I should be fully satisfied with the insertion in a [Penal] Code of ‘knowledge that an act is wrong’ as the best test of responsibility, the words being largely construed on the principles stated here.”); Bonnie (1983, p. 195) (“[R]eviv[ing] the M’Naghten test as the sole basis for exculpation on ground of insanity … is the approach I favor, although I would modify the language used by the House of Lords in 1843 in favor of modern terminology that is simpler and has more clinical meaning.”).
- 23.
Again, the right result in Hadfield’s case can be reached if “wrong” is given a moral-wrong reading rather than a legal-wrong reading, but that move would raise the problem discussed supra notes 15–16 and accompanying text.
- 24.
See, for example, United States v. Currens, p. 774 (opinion of Biggs, J.) (holding that substantial lack of capacity to conform to the law, as a result of mental disease or defect, is the exclusive test for insanity); Corrado 2009. English courts have declined invitations to adopt the “irresistible impulse” test. See, for example, R. v. True (p. 170) (“There is no foundation for the suggestion that the rule derived from M’Naghten’s case has been in any sense relaxed.”).
- 25.
Among the items he apparently stole: “14 silverine watches, 2 old brass watches, 2 old clocks, 24 razors, 21 pair of cuff buttons, 15 watch chains, 6 pistols, 7 combs, 34 jack-knives, 9 bicycle wrenches, 4 padlocks, 7 pairs of clippers, 3 bicycle saddles, 1 box of old keys, 4 pair of scissors, 5 pocket mirrors, 6 mouth organs, rulers, guns, bolts, calipers, oil cans, washers, punches, pulleys, spoons, penholders, ramrods, violin strings, etc.” State v. McCullough (pp. 503–504).
McCullough’s jury was, on the issue of insanity, instructed in part as follows:
If you believe from the evidence that the acts charged in the indictment were done by the defendant … but were caused by mental disease or unsoundness which dethroned his reason and judgment with respect to those acts, which destroyed his power rationally to comprehend the nature and consequences of said acts, and which, overpowering the will, inevitably forced him to their commission, then he is not in law guilty of the crime charged.
Ibid., p. 504. McCullough’s conviction was reversed on appeal for instructional errors unrelated to the quoted language. The McCullough case figures prominently in Joel Feinberg’s important paper on insanity (see Feinberg 1970, p. 281).
- 26.
A standard citation for the irresistibleimpulsetest is Parsons v. State. According to the Parsons court, an accused “afflicted with a disease of the mind” who knew “right from wrong,” may “nevertheless not be legally responsible if the two following conditions concur:”
(1) If, by reason of duress of such mental disease, he had so far lost the power to choose between right and wrong, and to avoid doing the act in question, as that his free agency was at the time destroyed; (2) and if, at the same time, the alleged crime was so connected with such mental disease, in relation of cause and effect, as to have been the product of it solely. (Parsons v. State, pp. 866–867)
The irresistibleimpulse test is often associated with impulse control disorders, such as kleptomania or pyromania, but the defendant in Parsons, a woman accused as an accomplice in the murder of her husband, suffered from delusions, not from what would today be describe as a control disorder. As such, Parsons appears to presuppose that delusions, as distinct from desires, can compel choice. Indeed, M’Naghten’s defense counsel, Alexander Cockburn, likewise argued that M’Naghten’s delusions took “away from him all power of self control.” Walker (1968, p. 94). Several witnessed called on M’Naghten’s behalf testified likewise. See, for example, Eigen (1991, p. 45) (“Nine physicians and surgeons testified [in M’Naghten’s trial], many addressing their remarks to the force inherent in the delusion itself which ledMcNaughtan to the offense.”). Perhaps the thought is that some delusions become obsessive, such that someone experiencing such a delusion can rationally think of nothing else. So, for example, perhaps M’Naghten, at the moment he attacked the man he believed to be Peel, could have thought of nothing else, much like McCullough, who at the moment he stole the schoolbook, could perhaps have thought of nothing else.
- 27.
Moore (2015, pp. 659–660) (“The irresistible impulse test was formulated as a response to [the] criticism of M’Naghten.”).
- 28.
Another example is Commonwealth v. Rogers, decided a year after M’Naghten but before the judges in Rogers had become aware of it.
- 29.
If a choice is voluntary insofar as it results from a distinctive mental state known as a volition, then a compelled choice is nonetheless a voluntary choice. An accused who voluntarily chooses to commit a crime might lack the capacity to have chosen otherwise, but his choice to commit the crime is still voluntary. Referring to the irresistibleimpulse test as a “volitional” test is therefore misleading insofar as it implies a lack of voluntary action.
- 30.
The Commentaries acknowledge a common line of thought found in the work, among others, of James Fitzjames Stephen and Jerome Hall, according to which M’Naghten’s canonical test, and especially its reference to the word “know,” if construed and applied in the “right” way, would classify as insane those who couldn’t have chosen otherwise than to commit the crime charged. See Model Penal Code and Commentaries 1985, p. 167. But see Goldstein (1967, p. 75) (acknowledgingHall’s claims but concluding that “[i]t is difficult to avoid the conclusion that Hall is making exaggerated demands on the word ‘know’”).
- 31.
See, for example, Morse 1994, p. 1660 (“The moral test [for internal duress] only asks for phenomenological description and then weighs it in the moral balance. By comparing the intensity of the threatened dysphoria to the conduct chosen to avoid it, we can make the moral and legal decision whether an internal duress excuse is warranted.”).
- 32.
Kant (1788, p. 30).
- 33.
Justice Riddell, of the Ontario Supreme Court, echoed Kant when he wrote: “The law says to men who say they are afflicted with irresistible impulses: ‘If you cannot resist an impulse in any other way, we will hang a rope in front of your eyes, and perhaps that will help.’” R v. Creighton (p. 349).
Among other proposed tests, besides Kant’s, perhaps the most well known is the “policeman at the elbow” test. UnitedStates v. Kunak (pp. 357–358) is the usual citation for the test. Courts have allowed prosecutors in jurisdictions following the Model Penal Code to ask witnesses if they believe the accused would have conformed had a policeman been at his elbow. See, for example, State v. Gaffney (pp. 415–416); People v. Jackson (p. 13). A much earlier observation along similar lines comes from Baron Bramwell, who testified in 1874 before the House of Commons Select Committee, Homicide Amendment Bill:
I tried a man named Dove many years ago for murdering his wife: he called a number of witnesses for the purpose of proving he could not control his actions; there was one of them who, to prove the state of this man’s mind, proved that he had shot a cat in the presence of his wife, or something of that sort; and this man gravely said he believed it was an irresistible impulse. I put this question to him. … “Now, suppose a policeman had been present when he shot the cat, do you think he would have been restrained,” and he said, “Yes.” “Well, then” I said, “according to your view, an uncontrollable impulse is an impulse acting upon a man when a policeman is not present.”
House of Commons, Select Committee on Homicide Law Amendment Bill 1874, p. 27 (testimony of Hon. Baron Bramwell). Dove’s case is described in some detail in Stephen (1863, pp. 391–402). Stephen proposed yet another test: “In the Bill of 1878, the test which I suggested was whether the impulse to commit a crime was so violent that the offender would not have been prevented from doing the act by knowing that the greatest punishment permitted by law for the offense would be instantly inflicted” Stephen (1883, p. 171).
- 34.
See, for example, Moore (2016a, p. 215) (“Surely no one really subscribes to [tests like the “policeman at the elbow” test]. … A line less clear in its delineation, but more sensible in its allowance of excuse, is more plausible. If the strength of the [desire not to commit the crime] … had been ‘a lot greater’ and yet the accused still would have done what he did, then the level of excuse is reached.”); Morse (2016, p. 245) (“The ability of an agent to exercise control [if faced with the threat of instant death] does not entail that he must be responsible. It is sufficient to excuse if the agent lacks ‘substantial’ capacity, with that lack given varying normative content depending on the general stance of the legal system to the expansiveness of excuses.”).
- 35.
See, for example, Kennett (2001, p. 157) (An “irresistibledesire is usually so phenomenologically salient that the agent cannot stop thinking about it. It may be such as to defy any strategy aimed at distraction and redirection of attention.”); Moore (2016a, p. 210) (“[T]he alien nature of the tempting desire [i.e., the desire to commit the crime] refuses integration enough to be balanced off against the controlling desire [i.e., the desire not to commit the crime, so that] … the tempting desire might cause behavior irrespective of the heightened strength of the controlling desire.”) (emphasis added); Morse (2017, p. 293) (“[L]ack of control arises from the intensity of desire that seems to drown out all the competing considerations that most of us use to control untoward desires.”) (emphasis added); Morse (2016, pp. 244–245) (“Generically, the ‘ego-alienated’ agent’s desires [to commit the crime] are sealed off from the reasons-responsive self.”) (initial emphasis added); Ibid., p. 245 (noting that “craving, intense emotion, and … other variables” can undermine a person’s capacity to “think straight,” that is, “to access the good reasons not to offend”) (emphasis added); Morse (2005, p. 236) (“The claim is that when desires become sufficiently intense, the agent can think of nothing else and cannot bring his or her normative competence to bear.”) (emphasis added); Watson (2004, p. 333 n.44) (“I should say that what I have in mind by volitional impairments are not merely defects of something called the will, as distinct from reason or intellect. As I see them, impairments of the kind typified by addictions characteristically involve cognitive distortions of various kinds. The ability to see things straight, and in focus, is not entirely separable from the ability to respond to the reasons one knows one has.”) (emphasis added).
Inasmuch as an actor lacks the capacity to control a desire to commit a crime only when the desire renders his practical reason non-responsive to some range of countervailing reasons (actual or counterfactual) not to commit the crime, Stephen Morse has long urged the law to define insanity using the language of rationality and irrationality rather than the language of control. See, for example, Morse (2011, p. 928) (“If a defendant was sufficiently irrational, no separate control test will be necessary to excuse him.”); Morse (2009, pp. 455–459); Morse (2005, p. 236) (“Note that if the desire sufficiently interferes with the agent’s ability to grasp and be guided by reason, then a classic irrationality problem arises and there is no need to resort to compulsion as an independent ground for excuse.”). The difference in language—rationality compared to control—may well be a difference in form, not substance. See Moore (2016b, p. 392) (“Morse calls the excusing condition that I call, ‘volitional impairment,’ with his own label, ‘irrationality’; while I find this usage of Morse’s peculiarly broad, it is a harmless enough stipulation if it in fact covers the same conditions as my own label.”).
- 36.
Morse (1994, pp. 1587–1588) (“If it is true that an agent really could not help or control herself and was not responsible for the loss of control, blame and punishment are not justified on any theory of morality and criminal punishment.”); Bonnie (1983, p. 196) (“Few people would dispute the moral predicate for the control test—that a person who ‘cannot help’ doing what he did is not blameworthy.”).
- 37.
United States v. Lyons (p. 999) (Rubin, J., dissenting) (noting (and rejecting) criticism that a volitional test “invites ‘moral mistakes.’”); Bonnie (1983, p. 196) (“I agree with critics who believe the risks of fabrication and ‘moral mistakes’ in administering the defense are greatest when the experts and the jury are asked to speculate whether the defendant had the capacity to ‘control’ himself or whether he could have ‘resisted’ the criminal impulse.”).
- 38.
See Morse (2011, p. 929) (“Even if one accepts a control theory of mitigation or excuse, in most cases the agent can still be held responsible. During those times when arousal is dormant or low, they do have intact rational capacity and recognize that they will yield in the future. It is therefore their duty to take whatever steps are necessary … to ensure that they do not offend.”).
- 39.
American Psychiatric Association (1983, p. 685); Morse (2011, p. 928) (“Although it may seem unfair to blame and punish an otherwise rational agent who cannot control himself, there was good reason to jettison control tests. The primary ground was the inability of either experts or jurors to differentiate the defendant who could not control himself from one who simply did not.”); Morse (1985, p. 819) (“I believe that retaining a volitional branch would be a mistake: distinguishing between resistible and irresistible internal states is simply too difficult.”).
- 40.
One, and perhaps the only, exception to this generalization is Washington law, which provides that “[n]o condition of mind proximately induced by the voluntary act of a person charged with a crime shall constitute insanity.” Wash. Rev. Code § 10.77.030(3) (2017). See generally Mitchell (2003, 2004); Maliha (2018).
- 41.
For the most part, neither statutory law nor case law defines the phrase “mental disease or defect,” which is striking, considering the phrase looks like it’s meant to play an important role in the traditional tests. See, for example, Slobogin (2006, p. 251) (“[D]espite centuries of law, the usual tests for insanity still speak simply in terms of ‘mental disease or defect,’ without further elaboration.”).
- 42.
See, for example, Sinnott-Armstrong and Levy (2011, p. 317) (“Peoplelack [the] capacity [to be rational] if they cannot form rational beliefs or rationally consider the criminality or wrongfulness of their acts (a defect in theoretical rationality) or if they cannot act according to the reason that they have (a defect in practical rationality). These are exactly the lack that remove responsibility according to the MPC.”); Sinnott-Armstrong (1987, p. 1) (arguing that “insanity cannot be analyzed in terms of irrationality unless irrationality is defined so this it implies the very incapacities that excuse and imply insanity on the traditional approach [as reflected in Model Penal Code § 4.01(1)]”).
- 43.
Here’s another observation about the relationship between insanity and irrationality. Consider Daniel M’Naghten. M’Naghten delusionally believed the Tories were relentlessly persecuting him. Delusions are irrational beliefs. Yet however irrational M’Naghten’s beliefs were, once he made Peel’s death his end, he rationally put two and two together. He figured out how to execute his delusion-inspired plan. He bought a couple of pistols. He loaded them. He identified the person he thought was Peel, approached him, and fired. He rationally connected means to ends. If instrumental rationality suffices for sanity, then M’Naghten was sane. Yet if we agree that M’Naghten was insane, then someone who’s insane can nonetheless be instrumentally rational.
- 44.
Erskine’s test is similar to the DurhamRule but importantly different. According to the DurhamRule, a person was insane if his crime was the product of a “mental disease or defect.” Under Erskine’s test, a person was insane if his crime was the product of delusions, which are typically associated with psychotic disorders. Erskine’s test thus limits the DurhamRule’s reference to mental disease or defect to delusions, and thus in the main to psychotic disorders. Erskine’s theory received greater attention from treatise writers during the early twentieth century than it tends to receive from writers today.
Erskine isn’t usually included in the standard roster of irrationality theorists. Irrationality theories are usually associated with the work, first appearing in the 1960s, of Herbert Fingarette, Joel Feinberg, Herbert Morris, and, more recently, with the work of Michael Moore, Stephen Morse, and Robert Schopp. See Garvey 2018 (collecting literature).
- 45.
Another response to the traditionalist objection would be to supplement Erskine’stest with a traditional excusing condition, that is, compelled ignorance or choice. An accused would then be insane if as a result of psychosis (and not just mental disease or defect), he lacked the capacity to know he was committing a crime, or if he did know, lacked the capacity to choose otherwise. The test for insanity under federal law, which defines a person as insane if, as a result of “severe mental disease or defect,” he was “unable to appreciate the nature and quality or wrongfulness of his acts,” is a version of this approach. See 18 U.S.C. § 17 (2018) (emphasis added). Adding a traditional excusing condition would meet the traditionalist’s objection, but the resulting test would be a traditional test, albeit one limited to psychotic disorders. That’s fine, but irrationality theories are supposed to represent a break with tradition.
- 46.
Writing in 1961, Glanville Williams described the question-four test as “obsolete” (Williams 1961, p. 442). True, the test nowadays gets almost no attention, at least not in the academic literature, but in law nothing may ever be truly obsolete. Old ideas sometimes just wait to be rediscovered, and that goes for the question-four test, which Christopher Slobogin has recently tried to revive. See, for example, Slobogin (2000); Slobogin (2003, p. 318) (noting that the “partial delusion test [i.e., the question-four test] … is very closely related” to the alternative he proposes).
- 47.
Earlier critics of M’Naghten made the same point. See, for example, Parsons v. State (p. 866) (“If [a delusional accused] dare fail to reason, on the supposed facts embodied in the delusion, as perfectly as a sane man could do on a like state of realities, he receives no mercy at the hands of the law.”); State v. Jones, p. 388 (The test “is, in effect, saying to the jury, the prisoner was mad when he committed the crime, but he did not use sufficient reason in his madness.”); Maudsley (1874, p. 97) (“Here is an unhesitating assumption that a man, having an insane delusion, has the power to think and act in regard to it reasonably; that, at the time of the offense, he ought to have and to exercise the knowledge and self-control which a sane man would have and exercise, were the facts with respect to which the delusion exists real; that he is, in fact, bound to be reasonable in his unreason, sane in his sanity.”); Ray (1860, p. 47) (“This is virtually saying to a man, ‘You are allowed to be insane; the disease is a visitation of Providence, and you cannot help it; but have a care how you manifest your insanity; there must be method in your madness.”); Stephen (1883, p. 157) (“[D]elusion … never, or hardly ever, stands alone, but is in all cases the result of a disease of the brain, which interferes more or less with every function of the mind.”); Wharton and Stillé (1905, pp. 548–549); (“This rule is based on the theory that an insane man must act with reason and moderation; he must measure his acts strictly by a rational standard; but insane men do not do this; and for the reason that they are insane.”).
- 48.
Besides young children, early writers also analogized the insane to animals. Animals, along with children and the insane, were thought to lack the attributes and capacities necessary to qualify as moral agents. The analogy to animals, in the early sources, later became, thanks to Judge Tracy’s charge in the trial of Edward Arnold, an analogy to “wild beasts.” Howell (1816, pp. 764–765) (“[A] madman as is to be exempted from punishment … must be a man that is totally deprived of his understanding and memory, and doth not know what he is doing, no more than an infant, than a brute, or a wild beast, such a one is never the object of punishment.”). See generally Platt and Diamond (1965).
- 49.
Watson (2012, p. 219) (“Moore’s formulation harks back to the ‘total deprivation’ standard.”)
- 50.
Suppose M’Naghten, contrary to fact, had been insane under the total insanity test. If so, he shouldn’t have been liable for killing Drummond. Of course, if he’d been that deranged, as disordered as the total insanity test requires for insanity, then he probably wouldn’t have committed the crime in the first place. The non-agents of the total insanity test, one imagines, are so disorganized that it would be miraculous if they could manage to pull off any but the most simple of offenses. If the totally insane do manage to commit a crime, one hopes no prosecutor would insist on bringing them to trial, or if she did, one hopes no jury would convict. See, for example, Fingarette (1972, p. 206) (“[T]here are those whose mental powers have generally so deteriorated for one reason or another that the individual has become permanently incapable of the most elementary self-care or interpersonal intercourse.”); Morse (2016, p. 241) (“[T]hose people who are omni-disabled are usually too disorganized to engage in criminal conduct other than simple assaultive or disorderly conduct, for which no sensible defendant raises an insanity defense.”). As Erskine likewise noted, the totally insane “are not only extremely rare, but never can become the subjects of judicial difficulty” (Howell 1820, p. 1313).
- 51.
Moore maintains M’Naghten would qualify as insane under the unintelligibilitytheory (see Moore 2015, p. 662). That’s hard to fathom, given what we know about M’Naghten. This disagreement reflects another point Moore makes; namely, that the “line separating persons from non-persons,” the intelligible from the unintelligible, is more gray zone than bright line. Still, portraying M’Naghten as having passed some threshold into unintelligibility, as having entered a zone wherein he’s “stranger to us than birds in our garden,” doesn’t seem quite right. History’s descriptions of M’Naghten, and the unintelligibility theory’s description of the insane, don’t mesh very well. Here’s one account of how M’Naghten behaved while in prison awaiting trial:
What would become increasingly interesting about M’Naughten was the fact that his demeanor throughout his time in prison was always precisely the same. He always appeared calm and composed. He had a hearty appetite and ate well. He appeared very attentive to conversations between other people in the jail: other prisoners, attorneys, police guards, and is said to have frequently laughed at any jocular observations that were made. (Schneider 2009, pp. 29–30)
On its face, that doesn’t sound like someone who’s “stranger to us than birds in our garden,” and according to one well-informed observer, in “most areas of life” those with “psychotic disorders” are not strange birds. See Morse (2016, p. 240) (“People with psychotic disorders may be perfectly capable of substantive and instrumental rationality in some, indeed most areas of their lives. … [T]hey are not ‘stranger to us than the birds in our gardens,’ nor are they ‘beyond good and evil.’ … Each is recognizably one of us.”) (quoting Moore 2015, p. 678.)
- 52.
Fingarette (1972, p. 208) (“[T]here seems no good moral reason why, in general, a person who is persistently irrational about food should not nevertheless be held responsible in connection with his business dealings.”); Morse (2016, p. 241) (“[P]eople with severe mental disorders … may be competent or morally responsible for some conduct.”); Kenny (1991, pp. 24–25) (“Treating madness as a status rather than a factor … gives a certified mental patient a license which is not given to others: he knows there are certain things he may do without being held criminally responsible, while all others not of the same status will be held responsible.”). Morse and Kenny add that treating insanity as a status defense or exemption is also, in one way or another, stigmatizing. See Kenny (1991, pp. 24–25) (“Treating madness as a status … attaches stigma to insanity by assuming, without any need of proof, that insanity predisposes to criminal action.”); Morse (2016, p. 243) (expressing concern that treating insanity as a status excuse “would contribute, albeit marginally, to common misunderstandings and fear of mental disorder that continue to stigmatize and exclude people with such disorders”).
- 53.
For a recent survey, see Robinson and Williams (2018, pp. 159–170). Five states (Idaho, Kansas, Montana, North Dakota, and Utah) have abolished insanity as an affirmative defense. The Supreme Court has recently agreed to answer the question: “Do the Eighth and Fourteenth Amendments permit the state to abolish the insanity defense?” State v. Kahler, 410 P.3d 105 (Kan. 2018), cert. granted, 139 S. Ct. 1318 (2019). For an argument that they don’t, see Morse and Bonnie (2013).
- 54.
United States v. Brawner (p. 1032) (Bazelon, C. J., concurring in part and dissenting in part). The Royal Commission on Capital Punishment, almost 20 years earlier, reached a similar conclusion. A majority of the Commission’s members recommended replacing the M’Naghten Rules. Rather than M’Naghten, the Commission believed the jury should be asked to determine if “at the time of the act the accused was suffering from disease of the mind (or mental deficiency) to such a degree that he ought not be held responsible.” Royal Commission on Capital Punishment (1953, p. 116).
Two prominent irrationality theorists have also suggested proposals along similar lines. See Moore (1997, p. 609) (“[T]he question put to juries should be the moral question framed in terms of the actual criterion by which such moral judgments are made, that is, in terms of the irrationality of the accused: was the accused so irrational that he cannot justly be held responsible?”); Morse (1985, p. 820) (“A defendant is not guilty by reason of insanity if, at the time of the offense, the defendant was so extremely crazy and the craziness so substantially affected the criminal behavior that the defendant does not deserve to be punished.”).
- 55.
See Robinson and Williams (2018, p. 166) (“There is evidence that, no matter what instruction a jury is given, its members tend to look to their own shared intuitions of justice in deciding whether a particular defendant’s mental illness in a given case renders him or her sufficiently blameless to deserve a defense.”).
- 56.
Many thanks to Stephen Morse for helpful comments, not to mention his many scholarly works on insanity and mental health in the criminal law.
References
Washington Revised Code. 2017.
United States Code. 2018.
Clark v. Arizona, 548 U.S. 735 (2006).
Durham v. United States, 214 F.2d 862 (D.C. Cir. 1954).
M’Naghten’s Case, 8 Eng. Rep. 718 (1843).
Parsons v. State, 2 So. 854 (Ala. 1887).
People v. Jackson, 627 N.W.2d 11 (Mich. Ct. App. 2001).
People v. Schmidt, 110 N.E. 945 (N.Y. 1915).
People v. Serravo, 823 P.2d 128 (Colo. 1992).
R v. Creighton, (1908) 14 CCC 349 (Can. Ont. Sup. Ct.)
R v. Oxford, 9 C. & P. 525 (1840).
R v. True, 16 Crim. App. 164 (1922).
R v. Windle, 36 Cr. App. R. 85 (1952).
State v. Gaffney, 551 A.2d 414 (Conn. 1988).
State v. Jones, 50 N.H. 369 (1871).
State v. McCullough, 87 N.W. 503 (Iowa 1901).
State v. Morgan, 863 So. 2d 520 (La. 2004).
State v. Wilson, 700 A.2d 633 (Conn. 1997).
United States v. Brawner, 471 F.2d 696 (D.C. Cir. 1972).
United States v. Currens, 290 F.2d 751 (3d Cir. 1961).
United States v. Ewing, 494 F.3d 607 (7th Cir. 2007).
United States v. Kunak, 5 C.M.A. 346 (1954).
United States v. Lyons, 739 F.2d 994 (5th Cir. 1984).
United States v. Polizzi, 545 F. Supp. 2d 270 (E.D.N.Y. 2008).
American Law Institute 1985. Model Penal Code and Commentaries. Philadelphia: The American Law Institute
American Psychiatric Association, Insanity Defense Working Group. 1983. American psychiatric association statement on the insanity defense. American Journal of Psychiatry 140: 618.
Biggs, John, Jr. 1955. The guilty mind: Psychiatry and the law of homicide. Baltimore: John Hopkins Press.
Bonnie, Richard J. 1983. The moral basis for the insanity defense. American Bar Association Journal 69: 194.
Corrado, Michael. 2009. The case for a purely volitional insanity defense. Texas Tech Law Review 42: 481.
Dressler, Joshua. 2015. Understanding criminal law. 7th ed. New York: Matthew Bender and Company.
Eigen, Joel Peter. 1991. Delusion in the courtroom: The role of partial insanity in early forensic testimony. Medical History 35: 25.
Feinberg, Joel. 1970. What is so special about mental illness? In Doing and deserving: Essays in the theory of responsibility, 272. Princeton: Princeton University Press.
Fingarette, Herbert. 1972. The meaning of criminal insanity. Berkeley: University of California Press.
Garvey, Stephen P. 2018. Agency and insanity. Buffalo Law Review 66: 123.
Glueck, Sheldon. 1925. Mental disorder and the criminal law: A study in medico-sociological jurisprudence. Boston: Little, Brown, and Company.
Goldstein, Abraham S. 1967. The insanity defense. New Haven: Yale University Press.
Hale, Sir Matthew. 1847. The history of the pleas of the crown. Vol. 1. Philadelphia: Robert H. Small. (Orig. Pub. 1736.).
House of Commons. 1874. Select Committee on Homicide Law Amendment Bill. Special Report.
Howell, T.B. 1816. The trial of Edward Arnold, 1724. In Vol. 16 of A complete collection of state trials, ed. T.B. Howell. London: T.C. Hansard.
Howell, Thomas Jones. 1820. The trial of James Hadfield, 1800. In Vol. 27 of A complete collection of state trials, ed. Thomas Jones Howell. London: T.C. Hansard.
Kant, Immanuel. [1788] 1956. Critique of practical reason. Trans. Lewis White Beck. New York: Macmillan Publishing Company.
Kennett, Jeanette. 2001. Agency and responsibility: A common-sense moral psychology. Oxford: Oxford University Press.
Kenny, Anthony. 1991. Can responsibility be diminished? In Liability and responsibility: Essays in law and morals, ed. R.G. Frey and Christopher Morris, 13. Cambridge: Cambridge University Press.
Kois, Lauren E., and Preeti Chauhan. 2018. Criminal responsibility: Meta-analysis and study space. Behavioral Sciences & the Law 36: 276.
LaFave, Wayne. 2010. Criminal law. 5th ed. St. Paul: West Publishing Company.
Maier, John. 2014. Abilities. Stanford encyclopedia of philosophy. https://plato.stanford.edu/entries/abilities/. Accessed on 23 Feb 2019.
Maliha, George. 2018. Noncompliant insanity: Does it fit within insanity? Harvard Journal of Law and Public Policy 41: 647.
Manwaring, James. 2018. Windle revisited. The Criminal Law Review 12: 987.
Maudsley, Henry. 1874. Responsibility in mental disease. London: Henry S. King and Company.
Melton, Gary B., John Petrila, Norman G. Poythress, Christopher Slobogin, Randy K. Otto, Douglas Mossman, and Lois O. Condie. 2018. Psychological evaluations for the courts: A handbook for mental health professionals and lawyers. 4th ed. New York: The Guilford Press.
Mitchell, Edward W. 2003. Self-made madness: Rethinking illness and criminal responsibility. London: Routledge.
———. 2004. Culpability for inducing mental states: The insanity defense of Dr. Jekyll. American Academy of Psychiatry 32: 63.
Moore, Michael S. 1997. Placing blame. Oxford: Oxford University Press.
———. 2015. The quest for a responsible responsibility test: Norwegian insanity law after Breivik. Criminal Law and Philosophy 9: 645.
———. 2016a. The neuroscience of volitional excuses. In Philosophical foundations of law and neuroscience, ed. Dennis Patterson and Michael S. Pardo, 179. Oxford: Oxford University Press.
———. 2016b. Responses and appreciations. In Legal, moral, and metaphysical truths: The philosophy of Michael S. Moore, ed. Kimberly Kessler Ferzan and Stephen J. Morse, 343. Oxford: Oxford University Press.
Moran, Richard. 1981. Knowing right from wrong: The insanity defense of Daniel McNaghten. New York: Free Press.
———. 1985. The origin of insanity as a special verdict: The trial for treason of James Hadfield (1800). Law and Society Review 18: 487.
Morse, Stephen J. 1985. Excusing the crazy: The insanity defense reconsidered. Southern California Law Review 58: 777.
———. 1994. Culpability and control. University of Pennsylvania Law Review 142: 1587.
———. 2005. The jurisprudence of craziness. In The law and economics of irrational behavior, ed. Francesco Parisi and Vernon L. Smith, 225. Stanford: Stanford University Press.
———. 2008. Thoroughly modern: James Fitzjames Stephen on criminal responsibility. Ohio State Journal of Criminal Law 5: 505.
———. 2009. Against control tests for criminal responsibility. In Criminal law conversations, ed. Paul H. Robinson, Stephen P. Garvey, and Kimberly Kessler Ferzan, 449. Oxford: Oxford University Press.
———. 2011. Mental disorder and criminal law. The Journal of Criminal Law and Criminology 101: 885.
———. 2016. Moore on the mind. In Legal, moral, and metaphysical truths: The philosophy of Michael S. Moore, ed. Kimberly Kessler Ferzan and Stephen J. Morse, 233. Oxford: Oxford University Press.
———. 2017. Mental disorder and criminal justice. In Reforming criminal justice. Introduction and criminalization, ed. Erik Luna, vol. 1, 251. Phoenix: Arizona State University.
Morse, Stephen J., and Richard J. Bonnie. 2013. Abolition of the insanity defense violates due process. Journal of the American Academy of Psychiatry and Law 41: 488.
Murphy, Paul Thomas. 2012. Shooting Victoria: Madness, mayhem, and the British monarchy. New York: Pegasus Books.
Platt, Anthony. 1965. The criminal responsibility of the mentally ill in England, 1100–1843. Master’s thesis, University of California, Berkeley, School of Criminology.
Platt, Anthony, and Bernard L. Diamond. 1965. The origins and development of the “wild beast” concept of mental illness and its relation to theories of criminal responsibility. Journal of the History of the Behavioral Sciences 1: 355.
———. 1966. The origins of the “right and wrong” test of criminal responsibility and its subsequent development in the United States. California Law Review 54: 1227.
Ray, Isaac. 1860. Treatise on the medical jurisprudence of insanity. 4th ed. Boston: Little, Brown and Company.
Robinson, Daniel N. 1996. Wild beasts and idle humours: The insanity defense from antiquity to the present. Cambridge, MA: Harvard University Press.
Robinson, Paul, and Tyler Scott Williams. 2018. Mapping American criminal law: Variations across the 50 states. Santa Barbara: Praeger.
Royal Commission on Capital Punishment. 1953. Report. London: Her Majesty’s Stationery Office.
Schneider, Richard D. 2009. The lunatic and the lords. Toronto: Irwin Law.
Simester, A.P., J.R. Spencer, G.R. Sullivan, and G.J. Virgo. 2013. Simester and Sullivan’s criminal law: Theory and doctrine. 5th ed. Oxford: Hart Publishing.
Sinnott-Armstrong, Walter. 1987. Insanity v. irrationality. Public Affairs Quarterly 1: 1.
Sinnott-Armstrong, Walter, and Ken Levy. 2011. Insanity defenses. In The Oxford handbook of philosophy of criminal law, ed. John Deigh and David Dolinko, 299. Oxford: Oxford University Press.
Slobogin, Christopher. 2000. An end to insanity: Recasting the role of mental illness in criminal cases. Virginia Law Review 86: 1199.
———. 2003. The integrationist alternative to the insanity defense: Reflections on the exculpatory scope of mental illness in the wake of the Andrea Yates trial. American Journal of Criminal Law 30: 315.
———. 2006. Minding justice. Cambridge, MA: Harvard University Press.
Stephen, Sir James Fitzjames. 1863. A general view of the criminal law of England. London: Macmillan and Co.
———. 1883. Vol. 2 of A history of the criminal law of England. London: Macmillan and Co.
Walker, Nigel. 1968. The historical perspective. Vol. 1 of Crime and insanity in England. Edinburgh: Edinburgh University Press.
———. 1985. The insanity defense before 1800. Annals of the American Academy of Political and Social Science 477: 25.
Watson, Gary. 2004. Excusing addiction. In Agency and answerability: Selected essays, 318. Oxford: Clarendon Press.
———. 2012. The insanity defense. In The Routledge companion to philosophy of law, ed. Andrei Marmor. London: Routledge.
Weihofen, Henry. 1933. Insanity as a defense in criminal law. New York: The Commonwealth Fund.
Wharton, Francis, and Moreton Stillé. 1905. Mental unsoundness. Vol. 1 of Medical jurisprudence. 5th ed. Rochester: The Lawyers’ Co-operative Publishing Company.
Williams, Glanville. 1961. Criminal law: The general part. 2nd ed. London: Stevens and Sons Limited.
Zilboorg, Gregory. 1943. Mind, medicine, and man. New York: Harcourt, Brace and Company.
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Garvey, S.P. (2019). Insanity. In: Alexander, L., Kessler Ferzan, K. (eds) The Palgrave Handbook of Applied Ethics and the Criminal Law. Palgrave Macmillan, Cham. https://doi.org/10.1007/978-3-030-22811-8_17
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