The insanity defense does not get as much press in Hong Kong as it does jurisdictions where there are more gruesome acts of violence. In England and America the issue has spawned popular movements to abolish the rule. We won't look at the arguments for that but take the philosophical question to be what the correct formulation should be. Answering that should amount to justifying the rule from the point of view of the inner morality of law.
Each different mens rea has an effect on the seriousness of the crime of which we can be convicted. It corresponds to a degree of responsibility. For example we noticed that in killing someone, we may be guilty of first-degree murder (deliberate) or manslaughter (reckless). The limiting case of mens rea exculpation is the insanity plea (or being juvenile or an animal). In most jurisdictions the actual killer will not declared guilty. He would be innocent by reason of insanity. (Some jurisdictions have introduced the verdict “guilty but insane” and the difference applies to the punishment rather than to guilt.) Normally the government is required to prove that the defendant committed the act. When one enters this plea in a court trial, the burden of proof shifts. (It shifts for this issue because the defendant implicitly admits causal responsibility. If he does not, the state still has the burden of proving the “facts” surrounding the action.) The implicit assumption used in justifying the rule of law was that people are sane and rational—they can plan, conform behavior, understand and apply principles in shared ways etc. The defendant now has to prove otherwise. The philosophical question is exactly what is it he should show in order to prove he should not be subject to the law because of insanity.
The development of the insanity rule is an interesting case of gradual rational sophistication of an area of law as it absorbs the "inner morality of law." It illustrates how, absent any fixed formulation, the principles of law can evolve rationally. The development of the standard used in the judge’s instructions to the jury shows how the inner morality of law shapes its principles. In dealing with real cases the judges try to work out a conception that is coherent. The evolution is slowed (and made nonlinear) by the fallibility of judges. Sometimes later formulations are worse from the point of view of the inner morality than are earlier ones.
Our intuition is that we should be punished only for actions for which we are responsible. Some argue that if determinism is true, no one has free will so no one is responsible (blamable or punishable) for anything they do. A Kantian justification of punishment usually requires an assumption of free will, but a utilitarian justification can work on the assumption that, even if our acts are determined, punishment will deter crime. Punishment works precisely because of determinism. The threat of harm becomes one of the determining conditions when people are aware of it. So all we need is that acts are determined by awareness of future probable consequences. This suggests (as does the Kantian inner morality) that punishment can only be justified for rational or free agents.
In effect, we are arguing that the insane do not have free will. Hence, we should not punish them. The question becomes how to define ‘madness’ or ‘insanity’ in the proper way. We will survey three rules. Punishment should be restricted to those able to plan, predict, and anticipate. So the traditional rule (The M’Naghten rule) requires that to use the insanity defense successfully the defendant has to show that (a) he has a mental defect or disease that (b) makes him incapable of knowing that that the act was wrong. This may be because they could not predict the consequences of their act as normal people can or because they cannot understand why such a thing is normatively wrong.
The M’Naghten rule focuses (like much of Western philosophy) on knowledge and delusion. The first problem is deciding whether to say the person did not know the act was wrong or illegal. This poses a problem because few of us know all the laws–despite the courts presumption (remember, ignorance of the law is no excuse). The negligence rule makes us responsible as long as a reasonable person could have known. So the rule has usually been given in terms of the general capacity to know whether the act was right and wrong with no qualification. The legal/moral distinction doesn’t figure too often since the acts usually are violations of both (c.f. Smith).
The original version of the M'Naghten rule focused on the notion of a delusion (the paradigm mental disease back then). If you were under a delusion such that if it were true, your action would not have been a crime, then you are not guilty (by reason of insanity). This lead to some troublesome hypothetical cases. Suppose one person has a delusion that he is God or Moses killing some evil representative of the devil. Presumably the defendant is innocent since his delusion caused him to think his act was right. Gross compares this to the example of someone who has a delusion that they are Bluebeard (a famous pirate) killing an Englishman in France or Jack the Ripper (a famous criminal) killing an Englishman in England. If you had the former delusion you would be innocent, if you had the latter you will be guilty. Yet, it seems wrong to punish one of them since an identical illness caused each delusion and both delusions equally caused their acts in the same way. The defendant surely lacks control over the content of his controlling delusion.
The rule led to other practical problems as psychological knowledge grew. We became aware of "compulsive" disorders. One particularly relevant example is kleptomania – the compulsion to steal things even if you don't need or want them. The person suffering from kleptomania in fact knows what he does is wrong but he can't control his behavior. So, a modified version of the M'Naghten rule included an irresistible impulse condition.
The Durham rule was an attempt to simplify this condition-laden rule by boiling it down to its core. It focused on causation. All we had to ask was whether the defendant had a mental defect that caused or produced the behavior. The content or type of mental defect was not important. Although seemingly sensible, the result of this reform was a disappointment. First, it led to an extreme reliance on psychiatrists as witnesses. Their influence seemed disproportionate to the reliability of the “science.” If you could get a psychologist to say you were "sick" you could go free. Psychologists began to invent new psychological diseases every month.
They even began to argue for an even looser formulation. It required only showing that the accused was mentally ill or abnormal at the time of the act. It was not necessary to say that the illness had even caused the act. If a psychiatrist could be found who says (or says more convincingly) that the defendant was mentally abnormal at the time of the crime, that is all the jury has to decide on. The jury was not to employ its common-sense notions of moral standards of responsibility. The courts had effectively handed the criterion of legal responsibility over to a widely suspect profession. The number and types of mental defects began to balloon (and were quite different on different sides of the Atlantic–not to mention the Pacific).
Hyman Gross attacks the Durham rule and argues for reversing it's reliance on the psychological "illness of the day" with his example of two embezzlers. One is caused to embezzle by a powerful unconscious wish to be punished (a names psychological syndrome). The other is caused to embezzle by an equally powerful healthy desire for a life of leisure in the Bahamas. The problem is that both could equally easily have controlled their impulses and both knew the action was wrong. Gross argues that the correct standard should compare the accused to the “ordinary capacity” to resist the impulse. The fact that it is a "sick" or "abnormal" impulse does not, by itself, warrant excusing the behavior.
The insanity defense, he argues, is not justified by simple compassion for people who are sick (otherwise, having the flu at the time of the act would excuse someone). It must reflect a diminished natural capacity to do the things that justify using a rule of law to governing humans. It is also not the case that we are punishing a person for being sick. We are punishing them for their conduct, not their disease.
This line of reasoning then motivates the fourth, more adequate rule: The ALI Model Penal code. A person is not guilty by reason of insanity if he has a mental disease or defect that produces either (a) an inability to appreciate the nature (wrongfulness or illegality) of the act or (b) a substantial inability to conform conduct to the law. This puts the judge or jury back in control of legal standards. It is up to jury to decide if the inability to conform conduct to the law is defective enough compared to the normal case to justify excusing the behavior (delivering the verdict of “not guilty”). The psychiatrists still testify and are questioned about the degree of the disability produced by disease. However, they do not settle the issue merely by giving a diagnosis or name to the mental illness.
Notice here again the relation of judicial reasoning to the inner morality of law. We start with a conception of persons as capable of conforming their behavior to shared standards and rational predictions. Those who lack the capacity to rationally avoid punishment are considered outside the law–not appropriate subjects for rule of law. The same applies to children and animals.
 |
|
|
|
|
|
 |
|
||||
 |
 |
 |
|
||
 |
|
||||
 |
|
||||
 |
 |
 |
|
||
 |
|
||||