- Since the dawn of recorded law, Western societies have recognised that some people shouldn’t be held liable for their acts because they are non compos mentis – not in their right mind. This exemption from criminal sanctions was seen as an act of mercy required by basic morality: it was immoral to exact vengeance against a person who didn’t know that his behaviour was wrong. This principle was well-established in English common law, and from there into the law of the United States.
- The question has always been ‘the kind and degree of insanity that would excuse its victim from punishment for an act which if done by a sane person would bring upon him the sanctions of the law’, as put in the House of Lords in 1843.
- What can be done to rehabilitate the insanity defence? There are the obvious process fixes: all defendants should have equal access to legitimate defences, and this means providing adequate funding for public defender services, smaller caseloads, and more money for investigation and mental health evaluations. There should be clear competency standards for attorneys raising an insanity defence, just as there are for attorneys in cases involving the death penalty. We should establish higher standards for those who perform forensic1 psychiatric evaluations. Structurally, we should have the issue of insanity decided by a panel of three judges rather than by a jury. This would likely reduce the effects of both bias and emotion, and temper the desire for retribution regardless of mental state.
|1|But the most profound change must be in the definition of insanity itself. It must be brought into conformance with psychiatric realities, and back to its moral and ethical roots. Those whose criminal act is the product of an irrational delusion or compulsion brought about by mental illness, rather than by bad character or the desire for personal gain, should not be the object of conviction and retribution.
|1|In sum, it offends the conscience, and erodes the moral basis of the criminal justice system, to convict and punish those whose mental illness prevented them from knowing that what they were doing was morally wrong, all the more so when those convicted are disproportionately impoverished and people of colour.
- This paper focuses on US law for current practice, though it mentions UK law from a historical perspective.
- I liked the suggestion that the "insanity defense" should be decided on by a panel of judges rather than the jury. This is to ensure a legal, rather than emotional, ruling.
- But, it strikes me that this is primarily a sentencing issue rather than a question of legal guilt. A person2 – assuming that’s what they are, which would be doubtful were they deemed insane, in that rationality is a prime prerequisite – either did or did not commit the crime (in the sense that there are no other guilty parties possible). If that person was mentally unfit to be fully accountable, then the sentence may be reduced or converted to custody in an appropriate institution. But the person is not thereby “innocent”. If the person subsequently recovers their sanity, they can never feel the same as would someone not involved. If that person recovered quickly after slaughtering dozens of children (say) “the public” would be outraged should they be quickly released, whatever psychiatrists might say.
- There’s something parallel to Locke3’s attitude to people claiming “not to be the same person” as the one who committed the crime, on the grounds of amnesia. The law just carries on as before – because of the possibility of dissimulation – and it’s left to the “Great Assize” at the resurrection to attribute the true justice. Of course, this option is no longer available to contemporary lawyers.
- Any such assumptions – even allowing for post-mortem “settling-up” – rely on the psychological view4 of personal identity and on PID being a forensic property5.
- This paper – Villaverde - Racism in the Insanity Defense – is referenced. I was somewhat disquieted by the discussions mentioned about whether O J Simpson might have decided to “plead insanity”. In the adversarial legal system, morality and guilt have nothing to do with things – just argument.
- Sub-title: "The insanity defence offends the conscience, has no basis in modern psychiatry, and penalises poor and black defendants. "
- For the full text, see Aeon: Vinocour - Criminally insane
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