The Merits of Abolishing the Insanity Defense

Abstract

Discontent with the special insanity defense has resulted in pressure on legislatures and courts to change or abolish it. Most reformers urge modifications that they hope will rectify obvious abuses. This article examines the most frequently advanced moderate reforms and compares them to a more radical reform, the so-called abolition of the special insanity defense, which involves the use of the mens rea—or intent—approach as a vehicle for exculpating offenders who are seriously mentally ill, together with a greater emphasis on the dispositional stage of the process. It is argued that abolition of the insanity defense is neither immoral nor inhumane, as is often charged, if it is accompanied by such dispositional reforms. Rather, the elimination of an expanded insanity defense would result in restoring confidence in the criminal justice system and in psychiatry, would eliminate show trials, and would provide a more rational allocation of scarce mental health resources, with ultimate benefit both to the individual offender and to society.

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References

1. See, for example, National Mental Health Association, National Commission on the Insanity Defense , Myths and Realities (Arlington, VA: National Mental Health Association, 1983), supporting the ALI test as is, with a change recommended in the burden of proof.

and American Bar Association Standing Committee on Association Standards for Criminal Justice , Criminal Justice Mental Health Standards, First tentative draft (Washington, DC: American Bar Association, 1983), p. 261.

and William R. Le Vine and Philipp E. Bornstein , “Is the Sociopath Treatable? The Contribution of Psychiatry to a Legal Dilemma,” Washington University Law Quarterly (1972).

4. See People v. Lockett, Sup. Ct. of Kings County, NY, criminal term, 1983 (unreported).

5. The case of William Heirens is described in Lucy Freeman, Before I Kill More... (New York: Crown, 1955).

6. U.S. v. Lyons, 731 F. 2d 243 (5th Cir. 1984) (en banc).

7. See, for example, A. Louis McGarry , “Pathological Gambling: A New Insanity Defense,” Bulletin of the American Academy of Psvchiatrv and the Law, vol. 11 (1983).

8. Stuart B. Silver and Michael K. Spodak , “Dissection of the Prongs of ALI—A Retrospective Assessment of Criminal Responsibility by the Psychiatric Staff of the Clifton T. Perkins Hospital Center,” Bulletin of the American Academy of Psychiatry and the Law, vol. 11 (1983).

9. American Medical Association, Board of Trustees , “The Insanity Defense in Criminal Trials and Limitation of Psychiatric Testimony,” Journal of the American Medical Association, vol. 251 (8 June 1984), approved by the association's House of Delegates, 6 Dec. 1983.

10.

10. Professor Morris 's position is spelled out in his classic book, Madness and the Criminal Law (Chicago: University of Chicago Press, 1982), pp. 53-76.

11.

11. Barefoot v. Estelle, — U.S. — (1983).

12.

12. Durham v. United States, 214 F.2d 863, 876 (D.C. Cir. 1954).

13.

The general literature on abolition of the insanity defense is too vast to cite here; earlier literature is collected in Alexander D. Brooks , Law, Psychiatry, and the Mental Health System (Boston: Little, Brown, 1974) and its supp. (Boston: Little, Brown, 1980).