the conclusion that the insanity defense is useless and should be abolished entirely.
TESTING FOR INSANITY
proof. I will discuss each in detail.
person is basically insane if he or she is unable to distinguish between right and wrong as a result of some mental disability.
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.
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.
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
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
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
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
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
INSANITY: HOW IT IS ESTABLISHED
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
moral faith rather than scientific fact."
MENTAL ILLNESS AND CRIMINAL BEHAVIOR
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
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
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.
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
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
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
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
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
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.
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
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
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
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
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
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
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.
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.
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
usage and should therefore be abolished.