Insanity Defense

insanity

insanity, mental disorder of such severity as to render its victim incapable of managing his affairs or of
conforming to social standards. Today, the term insanity is used chiefly in criminal law, to denote
mental aberrations or defects that may relieve a person from the legal consequences of his or her acts.
The case of Daniel McNaughtan, who was found not guilty by reason of insanity after making an
assassination attempt on British prime minister Robert Peel (1834), gave rise to the modern insanity
defense used in many Western nations today. In the United States, the 1954 case of Durham v. the
United States led to the establishment of new rules for testing defendants. Today, psychologists may
perform tests to determine whether or not the defendant is mentally stable. Such tests try to ascertain
whether or not a defendant can distinguish right from wrong, and whether or not he acted on an
"irresistible impulse." John Hinckley's assassination attempt on Ronald Reagan (1981) became another
landmark in the history of the insanity defense. The court's initial verdict of "not guilty by reason of
insanity" generated public outcry and renewed interest in the verdict of "guilty but mentally ill," which
is permissible in some states. This verdict allows defendants deemed mentally ill to be hospitalized but
requires them to carry out a reasonable prison sentence as well. In 1983, the Supreme Court ruled it
permissable to keep a mentally ill defendant hospitalized for a term longer than the maximum sentence
for the crime with which the defendant was charged. Many have contended that the insanity defense is
nothing more than a legal loophole, allowing serious criminals to escape imprisonment. In fact, the plea
is rarely employed in the United States, and it is estimated that less than 1% of defendants have used
it successfully. Recent years have seen the restrictions surrounding insanity defense considerably
narrowed, with the sole criteria for a successful plea being the determination of whether or not the
defendant knew he was breaking the law.

See R. Simon and D. Aaronson, The Insanity Defense (1988); R. Porter, A Social History of Madness:
The World Through the Eyes of the Insane (1989).

The Columbia Encyclopedia, 6th ed. Copyright© 2018, The Columbia University Pres

Insanity Defense: Past, Present, and

Future
Math, Suresh, Kumar, Channaveerachari, Moirangthem, Sydney, Indian Journal of Psychological
Medicine

Byline: Suresh. Math, Channaveerachari. Kumar, Sydney. Moirangthem

Insanity defense is primarily used in criminal prosecutions. It is based on the assumption that at the tim
e of the crime, the defendant was not suffering from severe mental illness and therefore, was incapable o
f appreciating the nature of the crime and differentiating right from wrong behavior, hence making them
not legally accountable for crime. Insanity defense is a legal concept, not a clinical one (medical one). Th
is means that just suffering from a mental disorder is not sufficient to prove insanity. The defendant has
the burden of proving the defense of insanity by a "preponderance of the evidence" which is similar to a c
ivil case. It is hard to determine legal insanity, and even harder to successfully defend it in court. This art
icle focuses on the recent Supreme Court decision on insanity defense and standards employed in Indian
court. Researchers present a model for evaluating a defendant's mental status examination and briefly d
iscuss the legal standards and procedures for the assessment of insanity defense evaluations. There is an
urgent need to initiate formal graduation course, setup Forensic Psychiatric Training and Clinical Servic
es Providing Centers across the country to increase the manpower resources and to provide fair and spee
dy trail.

INTRODUCTION

The concept of responsibility connects with our most fundamental convictions about human nature and
dignity and everyday experience of guilt and innocence and blame and punishment. [sup][1] Punishing a
person, who is not responsible for the crime, is a violation of the basic human rights and fundamental ri
ghts under the Constitution of India. It also brings the due process of law, if that person is not in a positi
on to defend himself in the court of law, evoking the principle of natural justice. [sup][2] The affirmative
defense of legal insanity applies to this fundamental principle by excusing those mentally disordered off
enders whose disorder deprived them of rational understanding of their conduct at the time of the crime
. [sup][1] Hence, it is generally admitted that incapacity to commit crimes exempts the individual from p
unishment. This is recognized by the legislation of most of the civilized nations. [sup][1],[3] Even in Indi
a, Section 84 of Indian Penal Code (IPC) deals with the "act of a person of unsound mind" and discusses
insanity defense. [sup][4] However, in the recent past some of the U.S. states (such as Montana, Idaho,
Kansas, and Utah) have banned insanity defense. [sup][3] This issue has raised a serious debate among
medical, psychology and law professionals across the world. [sup][1]

Very little research has been done on this topic in India, however, there are few studies on exploring the
clinical picture of the patients in prison. A landmark study in the forensic psychiatry of Indian setting oc
curred in 2011, in which 5024 prisoners were assessed on semi-structured interview schedule reported t
hat 4002 (79.6%) individuals could be diagnosed as having a diagnosis of either mental illness or substa
nce use. After excluding substance abuse, 1389 (27.6%) prisoners still had a diagnosable mental disorder
. [sup][5] Another study from India portray a very gloomy picture of patients in forensic psychiatry setti
ngs and advocate for there is a need to streamline the procedure of referral, diagnosis, treatment, and ce
rtification. [sup][6] To address this issue of streamlining the process of evaluation of insanity defense an
d certification, this article focuses on semi-structured assessment in the Indian context based on landma
rk Supreme Court decisions. In addition, it will also present a model for evaluating a defendant's mental
status examination and briefly discuss the legal standards and procedures for the assessment of insanity
defense evaluations.

Disclaimer

Terms such as "insanity" and "unsoundness of mind" are legal concepts and are used frequently in the co
urt of law. …

The rest of this article is o

The diagnosis of evil

MAD OR BAD?
From 1978 to 1991 Jeffrey Dahmer killed seventeen young men, mostly homosexuals, by luring them to
his apartment with the promise of money for posing in nude photographs. There Dahmer plied them wit
h drinks spiked with the sedating drug Halcion. Once asleep, he strangled them, cut them open, and had
sex with the exposed body parts. He was only able to have an erection if his partner was unconscious. He
kept some of the dead victims in his apartment for days, repeatedly sexually assaulting them. He boiled
their skulls in hydrochloric acid, painting them for a shrine which he hoped would give him 'special pow
ers'. The skulls aroused him, and he frequently masturbated in front of them. He ate parts of his victims
after tenderizing them, responding with an erection. He explained his cannibalism by saying that he wan
ted his victims to come alive in him. He tried to turn some of his victims into walking zombies-sex slaves
-by performing frontal lobotomies. He drilled holes in their heads and injected muriatic acid. Some died
instantly but others managed to walk around for days after the operation.

Was he mad or bad? The matter was put to the courts. Dahmer was charged with fifteen murders and ple
aded not guilty by reason of insanity (NGRI). The ensuing trial became a battleground of experts. Psychi
atrists for the defence testified that Dahmer suffered from necrophilia to such a degree that he was unabl
e to control his behaviour. They recounted that his fascination for death began early in life when he searc
hed for animals along the side of the road, experimenting with their dead bodies and bleaching their bon
es with acid. He dissected
fish to see their insides, and once nailed a dog's carcass to a tree, mounting its severed head on a stake. A
t the time he started masturbating, he became engrossed in dissecting animals at school, and began to fa
ntasize about their dissected bodies while masturbating. This obsession with death continued until fanta
sy alone had not been sufficiently gratifying. That was when he lost control, so his psychiatrists argued, a
nd the killing began.

Psychiatrists for the prosecution were unimpressed. They agreed that Dahmer had necrophilia, but deni
ed that he was unable to control his impulses. When the police found one of his potential victims stagger
ing naked in the street, Dahmer lied that the 14-year-old boy was a drunken 19-year-old house guest. Th
e police officers were convinced and left the apartment. Straight afterwards Dahmer strangled the boy an
d had sex with the corpse. This was not the behaviour of a man in the grip of an uncontrollable impulse.
The experts notwithstanding, Dahmer's sanity was decided by twelve lay people, and they concluded he
was evil and not ill. Before sentencing, Dahmer addressed the court: 'I believe I was sick. The doctors ha
ve told me about my sickness, and now I have some peace...I hope God has forgiven me. I think He has. I
know society will never be able to forgive me...I am so very sorry.' He was sentenced to 957 years in pris
on, but was subsequently murdered in prison (Schwartz, 1992).

Was Dahmer suffering from a mental illness undermining his responsibility, or was he an evil man respo
nsible for his deeds? Did his necrophilia constitute an excuse? Is there something special about mental d
isorder that allows it to excuse? Does his having a mental illness preclude his being an evil man? If his be
haviour was determined by abnormal biological factors, does this mean he was suffering from a mental d
isorder, or are these factors the biological basis of evil? Does explanation imply exculpation? What sort o
f explanation, if any, of his evil acts implies he was not evil? Should we offer him humane treatment for h
is mental disorder, or should we punish him for his evil deeds? These are the questions the book aims to
answer.

PUZZLES AND PARADOXES

To understand whether Dahmer's illness transforms him from an evil man into an innocent victim, we m
ust understand the notions of responsibility and excuses. This requires us to under-stand the whole insti
tution of punishment and its justification, and this in turn the notion of an evil person. There is a circle o
f concepts, one of which cannot be understood without the other. The concept of mental illness, although
seemingly peripheral in this network, is just as crucial as the other concepts. Only with an understandin
g of the nature of mental illness will we be able to fully understand such concepts as responsibility, excus
e, punishment, and evil. Seemingly peripheral concepts often illuminate more central notions because th
ey force us to draw the boundaries of the concept carefully. For example, ant hills are not paradigmatic c
ases of living things. However, they have the property of being able to maintain their own structure. Whe
never the hills are damaged, the ants rebuild them. This property is in fact a feature of all living cells-the
y have DNA and a cellular metabolism that enables them to take energy from their environment to rebuil
d their structure in the fight against decay. Since we know many living things cannot reproduce (like mul
es), these sorts of cases suggest that the essence of living things is that they can maintain their own struc
tures. Only by thinking about such cases can we understand the central cases of life more deeply. Similar
ly, I hope to show that mental illness illuminates the whole notion of responsibility.

In the process of showing this, we will encounter many problems. The first is the Ultimate Issue Proble
m. Should psychiatrists give 'ultimate issue' testimony, that is, testimony that a defendant is insane? Sho
uld they go beyond making diagnoses of mental illness and infer sanity or insanity? Should they have tes
tified whether Dahmer was insane? This issue turns on whether judging insanity is something that falls
within their expertise, and this on whether insanity is a factual or scientific matter. Is it a factual matter
whether Dahmer has an excuse? On the one hand, whether he has an excuse depends on whether he was
mentally ill, and whether he was able to control himself, which seem to be factual matters. On the other
hand, whether Dahmer has an excuse depends on whether we ought to blame him, and whether he ough
t to have controlled himself, which are normative matters. Is insanity a psychiatric concept like schizoph
renia, the criteria for which are factual and objective, or is it a normative or evaluative notion implying t
hat someone deserves to be excused from blame and punishment, which cannot be decided by the exami
nation of the facts alone? If the
matter is ultimately a factual one, then psychiatrists are in the best position to judge whether Dahmer ha
s an excuse. But if the question is a normative one, a jury is better placed to decide. We need to settle this
to understand the role psychiatrists ought to play in the courts.

The second problem is the Relativity Paradox. The second edition of the Diagnostic and Statistical Man
ual (DSM II), the American Psychiatric Association's (APA) disease taxonomy, classified homosexuality
as a disease, but the next edition did not. This change was not the result of any scientific discovery, but t
he result of a change in values effected by political pressure from organizations like Gay Liberation (Baye
r, 1987). Let us suppose that necrophiliacs successfully lobby for the removal of necrophilia from DSM V.
They argue, like homosexuals did, that necrophilia is a 'way of life'. If being a disease is settled like this,
and if Dahmer's responsibility depends on having a disease, then whether he is responsible is relative to
our disease classification. We would be forced to say that prior to DSM V, he was not responsible, but su
bsequently he is, which is absurd. If this sounds far-fetched, a situation actually arose in the District of C
olumbia when psychiatrists classified psychopathic personality disorder as a disease, but then over a wee
kend changed their classification. As Burger, a circuit judge, noted: 'We tacitly conceded to St. Elizabeth'
s Hospital the power to alter drastically the scope of a rule of law by a weekend change of nomenclature'
(Moore, 1984:229).

The third problem is the Demarcation Paradox. Our legal system presumes we are sane and therefore re
sponsible for our actions. In this way, it draws a sharp boundary between mad and bad. But if deviant be
haviour, including crime, is due to a disease, and this exculpates, this distinction collapses. As Moore (19
84:201) puts it: 'If to be ill is to deviate from some sort of norm, and to passively suffer such deviation ra
ther than actively cause it, badness becomes one kind of illness.' Diamond (1962:189) predicted over thir
ty years ago that 'within 10 years biochemical and physiological tests will be developed that will demonst
rate beyond a reasonable doubt that a substantial number of our worst and most vicious criminal offend
ers are actually the sickest of all. And if the concept of mental disease and exculpation from responsibilit
y applies to any, it will apply more appropriately to them.' Does science show that criminals
matter is ultimately a factual one, then psychiatrists are in the best position to judge whether Dahmer ha
s an excuse. But if the question is a normative one, a jury is better placed to decide. We need to settle this
to understand the role psychiatrists ought to play in the courts.

The second problem is the Relativity Paradox. The second edition of the Diagnostic and Statistical Man
ual (DSM II), the American Psychiatric Association's (APA) disease taxonomy, classified homosexuality
as a disease, but the next edition did not. This change was not the result of any scientific discovery, but t
he result of a change in values effected by political pressure from organizations like Gay Liberation (Baye
r, 1987). Let us suppose that necrophiliacs successfully lobby for the removal of necrophilia from DSM V.
They argue, like homosexuals did, that necrophilia is a 'way of life'. If being a disease is settled like this,
and if Dahmer's responsibility depends on having a disease, then whether he is responsible is relative to
our disease classification. We would be forced to say that prior to DSM V, he was not responsible, but su
bsequently he is, which is absurd. If this sounds far-fetched, a situation actually arose in the District of C
olumbia when psychiatrists classified psychopathic personality disorder as a disease, but then over a wee
kend changed their classification. As Burger, a circuit judge, noted: 'We tacitly conceded to St. Elizabeth'
s Hospital the power to alter drastically the scope of a rule of law by a weekend change of nomenclature'
(Moore, 1984:229).

The third problem is the Demarcation Paradox. Our legal system presumes we are sane and therefore re
sponsible for our actions. In this way, it draws a sharp boundary between mad and bad. But if deviant be
haviour, including crime, is due to a disease, and this exculpates, this distinction collapses. As Moore (19
84:201) puts it: 'If to be ill is to deviate from some sort of norm, and to passively suffer such deviation ra
ther than actively cause it, badness becomes one kind of illness.' Diamond (1962:189) predicted over thir
ty years ago that 'within 10 years biochemical and physiological tests will be developed that will demonst
rate beyond a reasonable doubt that a substantial number of our worst and most vicious criminal offend
ers are actually the sickest of all. And if the concept of mental disease and exculpation from responsibilit
y applies to any, it will apply more appropriately to them.' Does science show that criminals
The fourth problem is the Determinism Paradox. We hold someone responsible for his actions if he coul
d have done otherwise. According to G.E. Moore, someone could have done otherwise if he would have d
one otherwise had he wanted to (Austin, 1970). But what if he cannot want otherwise (Edwards, 1958)?
What if a person's character is determined in such a way that he cannot want otherwise? If his character
is determined by factors outside his control, and his actions are determined by his character, is he really
in control of his actions? If we say he is, we seem to face a deeper paradox:

If I suffered from a compulsion neurosis, so that I got up and walked across the room,
whether I wanted to or not, or if I did so because somebody else compelled me, then I
should not be acting freely. But if I do it now, I shall be acting freely, just because thes
e conditions do not obtain; and the fact that my action may nevertheless have a cause i
s, from this point of view, irrelevant. For it is not when my action has any cause at all,
but only when it has a special sort of cause, that it is reckoned not to be free. But here i
t is objected that, even if this distinction corresponds to ordinary usage, it is still very i
rrational. For why should we distinguish, with regard to a person's freedom, between t
he operations of one sort of cause and those of another? Do not all causes equally nece
ssitate? And is it not therefore arbitrary to say that a person is free when he is necessit
ated in one fashion but not when he is necessitated in another?

(Ayer, 1954:276)
We know that those with a psychiatric illness are five times more likely to commit acts of violence than t
hose without (Swanson et al., 1991), and that delusions or hallucinations are what makes the mentally ill
violent (Link et al., 1992). But as Morris (1968:520) argues:

Why not permit the defence of dwelling in a Negro ghetto? Such a defence would not be morally indefens
ible. Adverse social and subcultural background is statistically more criminogenic than is psychosis...You
argue that insanity destroys, undermines, diminishes man's capacity to reject what is wrong and to adhe
re to what is right. So does the ghetto-more so.
If all our behaviour is caused, we need to know why some causes excuse and some do not.

We are led straight into Wootton's Paradox: If abnormal conditions are classified as disorders, and this i
mplies a lack of responsibility, then those with the most bizarre desires will be the most innocent. Woott
on (1978:231) writes: 'If a man's crimes are by ordinary standards only moderately objectionable, we are
prepared to regard him as wicked, and therefore a suitable subject for punishment; but if his wickedness
goes beyond a certain point, it ceases to be wickedness at all and becomes mental disorder.' The more ex
treme the behaviour, the more inclined we are to consider that the behaviour is the product of a derange
d mind. If being mentally disordered undermines responsibility, it is impossible for extreme evil to exist,
which seems absurd.

Finally, we face the Paradox of Evil: The law considers a person responsible if his evil deeds are the cons
equence of his character (Radden, 1985). An evil person is someone who does not care sufficiently about
the well-being of others in the pursuit of his own selfish interests. Many crimes require the offender to b
e indifferent to the needs of others. If committing such crimes is symptomatic of a personality disorder a
nd this qualifies him for an excuse, there will be no criminals at all. This paradox threatens to eliminate t
he categories of evil and crime altogether and thereby undermine our whole moral and legal system.

judgment on human conduct. Its views of human nature asserts the reality of free choi
ce and rejects the thesis that the conduct of normal adults is a mere expression of imp
erious psychological necessity.'

(Moore, 1984:353)

In courts of law, psychiatric and legal conceptual systems lock horns. Psychiatrists talk of manic-depress
ion and schizophrenia, lawyers of insanity and diminished responsibility. Psychiatrists make determinist
ic assumptions and explain behaviour in terms of serotonin levels and frontal lobe damage, while lawyer
s assume free will and explain behaviour in terms of desires and beliefs. Psychiatrists analyse the causes
of the behaviour, and lawyers look for the reasons. How do these different concepts and theories relate t
o one another? Is there a way of reconciling the assumptions of determinism and free will? Is insanity a
moral or legal concept with no relation to psychiatric concepts? Or is insanity a scientific concept, the pr
esence of which is settled by the facts?
Our moral and legal systems adopt Folk Psychology which makes the following assumptions: (1) Intentio
nal behaviour is the product of an agent's desires and beliefs, and (2) Agents are (by and large) rational.
An agent is rational if he has a set of rational beliefs, a set of desires, an ordering of these desires based o
n a set of values, the ability to figure out the options, the ability to understand the consequences of these
options, the ability to weigh up the pros and cons of each option, and the ability to choose the one that m
ost satisfies his most important desires. Churchland (1986:299) explains:

Folk psychology is commonsense psychology-the psychological lore in virtue of which

we explain behaviour as the outcome of beliefs, desires, perceptions, expectations, goa
ls, sensations, and so forth...As philosophers have analyzed it, the preeminent element
s in folk psychological explanations of behaviour include the concepts of belief and des
ire.

Whether we praise or blame a person depends on how we explain his behaviour. If Peter kills Paul by ru
nning over him in his car, before we can blame him we need to know whether he did it deliberately (for
monetary gain) or accidentally (without knowing he was under the car), whether he believed the man

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Evil or Ill? Justifying the Insanity Defence

By Lawrie Reznek

Crime, Punishment, and Mental Illness: Law and the

Behavioral Sciences in ConflictBy Patricia E. Erickson; Steven K. Erickson

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