Insanity Defence: A Complex, Grey Area, with Differing Dimensions – I

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The greyest area in determining guilt/innocence of an individual in nearly every system of jurisprudence is when it deals with the issue of the insanity defence. Unsurprisingly, one of the reasons for the disarray is the total absence of consensus as to what should constitute insanity defence. Different countries have differing and operate on them. Each one of them carries some merit but the safety net provided by the legal provision available has been badly straddled primarily because it has not yet been appreciated fully that insanity defence is a holistic concept and requires a holistic approach. No other contemporary concept requires evaluation through as many differing dimensions as the insanity defence.  Here’s our Executive Editor, Ashoka’s in-depth research in this subject that we present to you in three parts. A practicing psychiatrist and a bar-at-law, the author has unique insight into the subject. As a special story, we have decided to feature the narrative on the insanity defence for three consecutive weeks, especially and exclusively in Different Truths.

There is no other precept to determine the inherent fairness of a society than being able to dispense justice. Central to this is to punish the guilty and even more central is to protect the innocent. Philosophically there is a very thin line between innocence and guilt; which is what accounts for the phenomenal number of miscarriages of justice we have observed in the and continue to witness in the present. Indeed there is no better axiom to define the fairness of a society than its ability to protect the innocent.

The greyest area in determining guilt/innocence of an individual in nearly every system of jurisprudence is when it deals with the issue of the insanity defence.

Unsurprisingly, one of the reasons for the disarray is the total absence of consensus as to what should constitute insanity defence. Different countries have differing standards and operate on them. Each one of them carries some merit but the safety net provided by the legal provision available has been badly straddled primarily because it has not yet been appreciated fully that insanity defence is a holistic concept and requires a holistic approach.

No other contemporary concept requires evaluation through as many differing dimensions as the insanity defence.

Juridical dimension

Medical dimension

Philosophical dimension

Socio-cultural dimension

Religious dimension

There is a constant interplay between all these dimensions.  It is the author’s position that we have not been able to address the problem of the insanity defence primarily because we have only tended to view it through the juridical angle and ignored the other equally vital angles.

History/Philosophy of Insanity Defence

The idea of insanity is a complex and difficult term to define, an issue which only adds to the disputable nature of the topic.  Often when people hear the word, they think of a deranged and deluded individual; one with no concept of reality.  The definition, however, quickly transformed from a medical term into a legal one.  The Concise Medical Dictionary declares that insanity refers to, “A degree of mental illness such that the affected individual is not responsible for his actions or is not capable of entering in a legal contract” (Tighe).  The definition of criminal insanity is fairly similar: “The individual’s mental make-up at the time of the offending act was such that, with respect to the criminality of his conduct, he substantially lacked the capability to act rationally” (Hathaway, 2009).

The theory behind the defence is that a person who is insane lacks the intent required to execute a criminal act because the person either does not know that the act is wrong or cannot control his or her actions even when the person understands that the act is wrong. The situations in which insanity can be used to excuse criminal responsibility are difficult to characterize.  While many states in the U.S. use many different terms to define insanity, a commonly used rule of thumb comes from a case that took place in England known as the M’ Naghten Rule which states that “a defendant is legally insane only if, as a result of a defect of from a disease of the mind, at the time of the act he did not know either the nature and quality of the act or that the act was wrong” (Emanuel, 1989).

It is also argued that insanity is inconsistent and while the defendant may have been in a psychotic state during the time the crime was committed, he or she may not be during the trial.  While the jurors draw inferences about the defendant’s mental state during the time of the crime based on his or her during the trial, improper verdicts could possibly result. Today, the insanity defence is an affirmative defence, this means the defendant must raise the argument that they are insane, and if they were found insane, it would negate the elements of a crime. The burden of proof is also on the defendant and the defendant must prove the defence of insanity by “clear and convincing evidence”.

The insanity defence has evolved over centuries. People have always believed that it is immoral to punish a person who is not responsible for their criminal behaviour, because if a person does not know what they are doing at the time of a crime they should not have to be punished for it. The Roman Empire that found people non-compos mentis (Latin. without mastery of mind) were not held responsible for their criminal actions. The Roman concept of “mastery of mind” has evolved into the modern concept of mens rea or “guilty mind” which is the component of a crime that looks at a person’s state of mind.

Before the McNaughton ruling, the insanity defence went through three important phases. Before the McNaughton Rule, the insanity defence was applied through three tests: the “good and evil” test, the “wild beast” test, and then the “right and wrong test”. The “good and evil” test first appeared in English cases around the year 1313. The “good and evil” test found its origins in Biblical and religious concepts. The insane were thought of as children incapable of “sinning” because they could not choose or distinguish the “good from the evil.” Under this rule, a defendant would be found guilty if they knew the difference between good and evil at the time of the crime. The “good and evil” test was used from the fourteenth century up to the sixteenth century when it was replaced in 1724 by the “wild best test”.

The “wild best test” transformed insanity law and first found use in the 1724 case of Rex v. Arnold. This case involved a defendant who shot and attempted to kill a British load. The trial judge (Judge Tracy) instructed the jurors to acquit the defendant by reason of insanity if it was found that he was “a man totally deprived of his understanding and memory, and doth not know what he is doing, no more than a brute, or a wild beast, such a one is never the object of punishment.” However, the “wild best test” is a misnomer this is a result of the mistranslation of two Latin phrases. The Latin phrase Brutis was simply translated to mean a “brute” and the phrase “wild beast” which in 1724 England really referred to farm animals like foxes, deer, and rabbits. Therefore, the phrase wild beast did not literally mean a person who was like a wild beast but rather that the person had the intellectual ability of a farm . Judge Tracy’s jury instruction change the insanity defence from that of a moral failing (i.e. good versus evil) to a cognitive failing. A century later, in 1840, the insanity standard was further refined by the case of Regina v. Oxford. This test was the precursor for the McNaughton rule. Lord Denman told the jury that they must acquit the defendant by reason of insanity if it was found that the he suffered “from the effect of a diseased mind”, and if he was “quite unaware of the nature, character, and consequences of the act he was committing.”

The McNaughton Rule

The insanity defence modern roots come from the 1843 case involving Daniel McNaughton (sometimes spelled “M’Naghten”), who was a woodcutter from Scotland. McNaughton suffered from what we today classify as paranoia and delusions of persecution. He thought the government was trying to kill him, and that the then Prime Minister of England Robert Peel was persecuting him. McNaughton travelled to London with the intention of assassinating Peel. He could have been successful if it was not for the fact that Peel had decided to ride with Queen Victoria in her carriage. McNaughton ended up killing the Prime Minister’s Secretary, Edward Drummond, who was riding in Peel’s carriage.

Most of the Early English common law tests emphasised the defendant’s ability “to discern the difference between moral good and evil” and the defendant’s knowledge of the nature of their act (i.e. right from wrong) the McNaughton case ended up combing both views. At the trial, the defence counsel claimed the McNaughton was insane relying on the then new work of Dr. Isaac Ray, and his book called The Medical Jurisprudence of Insanity. During the lengthy trial, nine medical experts testified that McNaughton was indeed insane, and the jury ended up finding him not guilty by reason of insanity.

The high court came up with the McNaughton Rule, which has three parts. The first is the presumption that the defendant is sane and that they are responsible for their criminal acts. The next requirement of the McNaughton Rule is that at the time of the crime the defendant must have been suffering “under a defect of reason” or “from the disease of the mind.” The third requirement of this rule is that the defendant must “not know the nature and quality of the act he was doing, or if he did know it that he did not know what he was doing was wrong”. Over time, the McNaughton rule became part of English law and then eventually introduced into the American legal system.

Many critics cite the McNaughton Rule as too vague because there are two ways to form an acceptable defence. The first possible defence is that of a lack of mens rea, which stems from the fact that the person would not know that their actions, where wrong. The second possible defence is created from the “wrongfulness test” aspect of this rule, which has been a center of controversy since McNaughton was implemented. Most insanity statues including the Model Penal Code, the American Psychiatric Association’s model standard on legal insanity, the 1984 Insanity Defence Reform Act (IDRA), and most state penal codes all have some reference to the word “wrong” or “wrongfulness.”

The Irresistible Impulse Test

Many professionals criticise the wrongfulness component of the McNaughton Rule saying that cognition is only one part of insanity and that it may not even by the most important part. The McNaughton rule makes no provision for the degrees of insanity. Under the McNaughton rule the person either knows what they are doing and/or knows that the act is wrong to be found sane. In the 1920’s many states in an attempt to solve these problems modified their McNaughton rules to allow for “irresistible impulse” defences. At the time, it was widely believed that some forms of behaviour were beyond the controlled of certain individuals. Using the Irresistible impulse defence the defendant would claim that because of a mental disease or defect they were unable to control their behaviour at the time of the criminal act. Under this test, the person would be found not guilty by reason of insanity if “his reasoning powers were so far dethroned by his diseased mental condition as to deprive him of willpower to resist the insane impulse to perpetrate the deed, though knowing it to be wrong.”

To make this concept easier for jurors to understand some jurisdictions use introduced the “policeman at the elbow” test. The jurors are told that “if the accused would not have committed that act had there been a policeman present, he cannot be said to have acted under irresistible impulse”.

Michigan was the first state to enact the Guilty but Mentally Ill verdict. Since that time, about 12 other states have passed similar statues. In the mid-1980’s the Guilty but Mentally Ill verdict became increasingly popular, but within a few years fell out of popularity. Weiner in 1985 predicted that “it is likely to be revived in those states where a crime occurs which enrages the public when the defendant raises and/or succeeds with the insanity defence.” This prediction has appeared to come true. Even though the Guilty but Mentally Ill verdict has become popular with the public, it has also been the subject of intense criticism and debate. When the Guilty but Mentally Ill verdict was first introduced its original intent was to reduce the number of acquittals by reason of insanity.

For anyone not familiar with , the insanity defence probably just evokes the impossibility to be liable if declare insane, with no further complexities. For the criminal lawyer, it is rather synonymous of a headache. As Prof. M. Allen dared to put it in his textbook, “to say the law is an ass is to engage in understatement.” Assessing the complexity of English law is a necessary step before engaging into comparisons.

Automatism and Insanity

One has to be fair. Not everything lacks logic. First of all, the use of the criterion to distinguish automatism and insanity is consistent. Automatism is always accepted where there is an external factor. It is only when there is diabetes that it leads to a result quite absurd; but if it were not for this only issue, the law is not difficult to understand and apply. Secondly, to incorporate into the insanity defence different situations such as epilepsy or Sleepwalking and diabetes can be seen in a positive light. The test elaborated in 1843 proved flexible enough to integrate different expressions of incapacitating illnesses throughout the years. Concentrating on the inability to discern (to know, the defect of reason) and lack of volition.

The complexity of English Law reveals itself in three different ways. Firstly, the definition of insanity itself does not seem to be the easiest tool to use. Built on the McNaughton’s rules (1843), it requires “that, at the time of the committing of the act, the party accused was labouring under such a defect of reason, from disease of the mind, as not to know the nature and quality of the act he was doing; or if he did know it, that he did not know he was doing what was wrong.”

Most lawyers struggle with the various concepts embodied in the of Lords’ definition: the defect of reason, disease of the mind, the reference to know what is wrong in situations where actually the person knows but still acts, and yet is mentally ill because of schizophrenia for example. True, Prof. Mackay demonstrates that the practice of the courts shows more common sense than the leading cases seem to imply. Nonetheless, common sense, to which Lawton LJ referred to in Quick as a standard for shaping the law of insanity, struggles to associate sleepwalking (Burgess), epilepsy (Sullivan) or diabetes (Hennessy) with insanity; schizophrenia or psychosis call for insanity, but not being diabetic.

Secondly, the definition of insanity, in contrast with that of automatism, does not seem to make sense either. The difference between the two is whether or not there is an internal or external factor creating the defect of reason. External factors (like accidents creating post-traumatic stress disorder) call for automatism; internal factors, for the insanity defence. The criterion, apparently simple, leads to very curious results in the case of diabetes. A diabetic with hypoglycaemia, because s/he used an injection of insulin – the external factor –, will benefit from a defence of automatism; but the unfortunate who forgot to take the insulin has to resort to a defence of insanity. So, for the same disease, diabetes, with an identical end result (lack of capacity and volition), two different legal concepts and two different legal outcomes.

The outcome of the insanity defence in contrast with that of automatism is to promote mental health measures. Worse, until 1991, mental health measures were mandatory and detention could be indefinite; whereas the automatism defence led simply to a declaration of irresponsibility, with no possibility to take mental health measures. Thus, for our diabetic, until 1991, a plea of insanity meant mandatory detention with a risk of it being indefinite; whereas a plea of automatism would spare him any measure of detention. Truly, the reform in 1991 allowed for the judge to discharge completely the defendant declared insane, but the risk is nonetheless there. In a similar way, why mental health measures should be contemplated for epilepsy, sleepwalking, and diabetes, just because they fall under the spectrum of insanity, but not for posttraumatic stress disorder or psychopathic state falling under the definition of automatism? The former does not seem to require in mental health measures (health maybe, not mental health), but the latter rather calls for some. A similar about the outcome of the insanity defence arises when comparing with the defence of diminished responsibility. Indeed, since 1957, rather than pleading insanity, a defendant accused of murder can plead diminished responsibility. If the plea is accepted, he will be declared liable but for manslaughter. A positive thing in practice because s/he has more chances to have that plea accepted than to be declared insane; by contrast, to run the serious risk of not being declared insane means risking punishment for murder, not for manslaughter. But in terms of theoretical logic, the solution is unsatisfactory. Why should the same factual situation (being recognised as lacking capacity either totally or substantially) lead, on one hand, to non-liability, on the other hand, to liability albeit for a less severe offence? There seems to be confusion between mens rea and the presumption of capacity inherent to being a human being. Although not totally illogic, when compared to automatism and diminished responsibility, the insanity defence can be puzzling. So should it be reformed?

In 1975, the Butler Committee recommended linking insanity to mental illness, thus excluding diabetics, sleepwalkers, and epileptics. In addition, the judge has different options for disposal, from committal to hospital to absolute disposal, instead of, at the time, the only option of committal.

(To be continued next week)

(Information relied upon is based on Robert Bluglass’s Hewitt Oration that I attended)

©Ashoka Jahnavi Prasad

Photos from the internet.

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Prof. Ashoka Jahnavi Prasad

Prof. Ashoka Jahnavi Prasad

Ashoka Jahnavi Prasad is a physician /psychiatrist holding doctorates in pharmacology, history and philosophy plus a higher doctorate. He is also a qualified barrister and geneticist. He is a regular columnist in several newspapers, has published over 100 books and has been described by the Cambridge News as the 'most educationally qualified in the world'.
Prof. Ashoka Jahnavi Prasad