The Disability of Mind Doctrine

Abstract

Much of the controversy surrounding the insanity defense arises because the modern defense is not based on fundamental analysis and because it has developed in isolation from other modern mentaldisability defenses. Unrelated doctrines, arising out of different early cases, have become increasingly unrealistic. Confusion and frustration ensue.

The Disability of Mind (DOM) doctrine resulted from the attempt to identify the fundamental legal and moral issues in mental-disability defenses. Several moral-legal intuitions emerged that underlie the legal concept of a mental-disability excuse, whether based on mental disease, intoxication, trauma, organic damage, or some other condition. These intuitions were developed into a coherent legal doctrine intelligible, in its essentials, to juries and the public. This doctrine covers all mental-disability excuses in the law. The doctrine, key concepts, and some practical consequences that should build public confidence in the DOM defense are explained here.

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References

1. The remarks in this and the following two paragraphs of text state summarily conclusions developed fully in the works cited in fn. 2.

Since the ideas were fully presented in 1979, there have been many review commentaries in legal, psychiatric, and social science journals. The very large majority of the commentators have responded positively to the analyses, most of these indicating an overall favorable attitude to the proposed doctrine, a good number of others, however, remarking on problematic issues but recommending wide discussion and exploration of the ideas proposed. A few commentators have been on the whole strongly critical.

3. The phrase “disability of mind”—or alternatively, “mental disability”—was selected as the key phrase of the doctrine because it does seem to be a natural way of expressing in nontechnical English the core of what is at issue. However, the phrase is given a more carefully defined, technical meaning for use in the proposed doctrine. When the technical sense is intended, the phrase is capitalized—Disability of Mind—or abbreviated with capitals—DOM. When the phrase is used more broadly in its nontechnical English sense, it is used without capitals and is never abbreviated.

4. See, for example, Regina v. Howell, [1974] 2 All E.R. 807, 808; People v. Hood, 462 P. 2d 370, 378 (Cal. Sup. Ct., 1969); Bolton v. Crawley, [1972] Crim. L. Rev. 222, 224.

For a nontechnical overview, see H. Fingarette and A. F. Hasse , “Excuses: Intoxication,” in Encyclopedia of Crime and Justice, ed. Sanford Kadish (New York: Free Press, 1983).

6. The literature on criminal insanity is, of course, vast. For a thorough treatment in the context of DOM doctrine, see Fingarette and Hasse , Mental Disabilities and Criminal Responsibility, pt. 2; see also Fingarette , Meaning of Criminal Insanity.

7. For example: “A person is not responsible for criminal conduct if at the time of such conduct as a result of mental disease or defect he lacks substantial capacity either to appreciate the criminality of his conduct or to conform his conduct to the requirements of law.” American Law Institute, Model Penal Code §4.01.

8. See Fingarette and Hasse , Mental Disabilities and Criminal Responsibility, pts. 2 and 3.

9. The verdict was instituted in this form in 1883—Trial of Lunatics Act, 46 & 47 Vict., c. 38—and was changed again to the “not guilty' form in 1964—Criminal Procedure (Insanity) Act, 12 & 13 Eliz. 2, c. 84.

10.

10. It seems reasonable, though it is not logically necessary, to allow for a finding of partial Disability of Mind. Without this possibility of an intermediate judgement as to mental responsibility, legal doctrine too often seems to invite rebellion by juries when, as is not infrequent in mental-disability cases, an all-or-none judgment seems unreasonable. It is this that seems in part to have inspired the diminished-mental-capacity defense in this country, and the diminished-responsibility defense in England.

11.

11. People v. Ramon, 584 P. 2d 524 (Cal. Sup. Ct. en banc, 1978).