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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.


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.


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.”


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.


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.


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.


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. 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 within both 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 be reestablished on a more scientific

level, based on the neurological work now going on in the brain

sciences. The insanity defense is impracticle in it’s present usage

and should therefore be abolished.

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