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