Art By Johanna Povirk-Znoy


Madness and Criminality

I am but mad north-north-west: when wind is southerly
I know a hawk from a handsaw.
Hamlet, Act II

And the answer, said the judge. If God meant to interfere in the degeneracy of mankind would he not have done so by now? … The way of the world is to bloom and to flower and die but in the affairs of men there is no waning and noon of his expression signals and the onset of night. His spirit is exhausted at the peak of his achievement. His meridian is at once his darkening and the evening of his day.
Cormac McCarthy
Blood Meridian

Introduction: Madness and Criminality

  The question of insanity cuts to the heart of the Anglo-American tradition of criminal law. That tradition is predicated upon a simple philosophical premise: Human beings are free agents capable of making thoughtful choices between different actions. At the center of such a claim lies the presumption that human choice is both rational and meaningful, and that therefore the individual has a fundamental responsibility for any choice made. We are, one might say, the owners of our choices, and of any actions and consequences that may result. Such claims have important consequences, as Donald J. Hermann points out in his book, The Insanity Defense:

  One consequence of the law’s acceptance of the notion that most people
  are free rational agents is the tacit assumption that, except in clearly recognizable
  cases of psychological disorder, all people are similar and should be treated alike.
  Law is general; rules are formulated in advance and are applied to everyone alike
  in equivalent manner. Inquiry into the causes of behavior for purposes of
  determining the applicability of a rule would make each case unique, with the
  result that there would be no law.1

  The premise that all people should be treated alike by a neutral and accessible law is, unfortunately, riddled with difficulties, any number of which are confronted by judges and attorneys on a day-to-day basis. Many of these difficulties are beyond the scope of this analysis, but a few deserve mention here. First, no individual is ever ideally equivalent before the law, rather, every party comes to the law with a discrete set of circumstances that determine that party’s specific relation to the law in question. This accounts for the fact that two very similar acts can result in quite different allotments of punishment. Second, the fact that the law is flexible does not entail that there is no law. Depending on how one chooses to define law – as a set of political principles2, as a set of natural principles3, as a set of shared but unstated values,4 or as a set of strict liability provisions based upon social utility needs5 – a rigidly drawn image of law is not a prerequisite to the idea of having law in general.

  This is nowhere clearer than in the case of the insanity defense. In essence, the insanity defense is an evolving posture which interprets the relation of mens rea to criminal law. I use the term to underscore the socially and scientifically unsettled nature of such a defense; put otherwise, we should say that there is not such thing as a “natural” notion of insanity, any more than we might say that there is a “natural” prohibition against the purchase of alcohol by persons under the age of 18. The insanity defense is a product of the logic of the criminal law carried to an apparently – or socially consensual – rational conclusion. Were the principles of criminal law to change, we might see the expansion or eradication of the insanity defense. As such, it may well be useful to investigate some of the historical formulations this defense has had. Such is the goal of this paper: A brief survey of various strains of thought coursing through the insanity defense in the Western intellectual and political tradition.

  Such an analysis appears, at first blush, to be rather straightforward. It requires only an excuse for criminal behavior, and of the legalistic mechanisms and determinations which surround such claims. One might, for instance, simply chronicle court cases in which some kind of insanity defense was put forward. But two important caveats are necessary at the outset. First, contemporary Anglo-American notions of insanity are quite distinct from images of madness in other historical epochs. This much has been shown in a number of contexts, most notably in Michel Foucault’s text, Madness and Civilization,6 discussed below. Second, the development of psychology as a science of both the human mind and human behavior is a remarkably young one. It is only within the past century or so that psychology as a coherent scientific discipline has come to be accepted within the medical community.7 Indeed, one might compare contemporary psychological knowledge with such knowledge some 30 years ago, and then again to the notion of faculty psychology which dominated the thoughts of the Framers of the U.S. Constitution, to see how much psychology, as the object of intellectual inquiry, is the product of shifting intellectual presumptions.8 Put simply, we will be asking who it is that psychological modes of inquiry create as the insane or mad person.

  What follows, then, will be a brief discussion of the history of various philosophical and scientific presuppositions that surround the understanding of madness and insanity as elements in the mitigation of violations of the law. This inquiry will necessarily blend fact and epistemological concerns to such an extent that the very nature of “brute fact” is put into question. In short, we will see that what counts as evidence of insanity, and of whether it actually exists, change with various historical periods. This, in fact, is a native activity of the law, which I will argue constantly asks what should count as fact – as, for example, is the case with the hearsay rule.9 More importantly, the historically unsettled quality of the notion of insanity should serve as a note of caution against its rigid codification via the confluence of science and law.

  This essay is comprised of four distinct sections. In the first I will briefly discuss the relation of madness to the violation of the law in Classical Greece. I will focus on Plato’s discussion of the relation of reason to knowledge of the good, and of right behavior, in Book I of the Republic. After that, I will move to a survey of Plato’s commentary in Book IX of the Laws, for a classical understanding of what we might today call a defense of diminished capacity.

  The second section will discuss Michel Foucault’s history of madness in the age of reason in Madness and Civilization. Foucault’s analysis focuses on the increasingly scientific understanding of madness both during and after the Enlightenment. In particular, he is concerned with the various symbolic and practical functions that madness, and later insanity, fulfill in the modern era (post -1800). One of Foucault’s most striking claims is the distinction he draws between madness and insanity. The former, he says, is a largely unsupervised religious and social object; the latter is a strictly scientific invention. Ultimately, it is Foucault’s conclusion that science and legal technology meet in contemporary treatments of the insane to produce a new, distinctly modern vision of personhood – one that is subject to increasing intervention and scrutiny by the police functions of the contemporary world.

  The third section will address the criticisms of psychology as a science articulated in the works of Thomas Szasz. There, I will describe Szasz’s polemic against the medicalization of behavioral disorders (what Szasz calls “problems of living”) as illness. In Szasz’s view, medical technology has sought an easy way out of the dilemma of socially unacceptable behavior by treating it as a sickness to be cured. Unfortunately, Szasz says, such a model misconstrues two fundamental features of the human condition: First, the fact that, except in cases of automatism, human beings are condemned by nature to liberty. Free choice is something we cannot escape. Second, we have no notion of what a “normal” standard is in behavioral terms that is analogous to a medical model of “normal” biological function. In short, to make such analogy is to open a Pandora’s box of intervention by medical science into the rudimentary elements of human life. Such an intervention is, for Szasz, both unjustifiable and dangerous. Instead of turning mental “illness” into a disease, we should treat it as what it is: The difficulty a free human agent may experience in coping with the complex issues of everyday life.

  In the fourth section I shall briefly survey that state of the insanity defense today. This will include a discussion of the M’Naghten Rule, as well as a discussion of the notions of irresistible impulse and diminished responsibility. The goal of this section will be historical rather than practical; I hope only to compare and contrast the current state of the insanity defense with its historical counterparts.

I. Early History of Madness and Culpability:

  A. Classical Greece:

  The insanity defense is a profoundly modern legal phenomenon. That is, a specific defense created to plead that the accused party, though it “committed” a particular act, did not possess the requisite guilty mind to take ethical responsibility for that act, only receives its contemporary formulation in the Anglo-American tradition with the advent of M’Naghten’s Rule in 1843. Yet the idea that socially culpable violations of the law require a sound mind go back at least as far as Plato. Indeed, Plato’s discussion of the ideas of doing social wrongs as opposed to producing social damages, and of the idea of voluntary vs. involuntary wrongdoing, have a remarkable resemblance to discussions of the very same subject today.10 Beyond that, Classical Greek literature and philosophy are filled with discussions of the relation of reason to the passions; one might go so far as to suggest that the Greeks were obsessed with madness.

  Plato’s analysis of right action receives its most thorough treatment in the Republic. The dialogue itself is a rumination on the ideal state: on its mode of governance, its social structure, its educational system, and more. At the same time, the dialogue asks how it is that human beings can know right action. Plato suggests, for instance, that all human beings are the product of competing impulses – an early division of the psyche into distinct elements. These impulses are the appetite (also called impulse) and reason, between which exists thumos, generally translated as “spirit.”11

  Thumos functions, according to Plato, as a mediating force between the relentless, driven reason and the equally relentless but meandering appetite. Thumos is thus a kind of legislator, insuring that the personality is kept in an appropriate balance (an analogy to Freud’s notion of Id, Ego, and Superego is quite appropriate here). Most importantly, thumos is guided by knowledge.12 Plato here claims that all wrongdoing is the product of ignorance. That is, the “right” choice (made available to us via knowledge of the Good) is so compelling that, were one exposed to it, one could not help but follow its course.13

  Reason and a virtuous moral and ethical life are thus inextricably linked in Plato. This link is further explored in the Laws, where we are presented with a dialogue between two figures – the Athenian Stranger and Clinias – concerning the construction of a sound constitution for the state. Unlike the earlier, utopian proclivities of the Republic, however, the Laws essentially surrenders the notion of a perfectible state, replacing it instead with a discourse on how best to govern human beings as they are.

  In that vein, much of the Laws is occupied with an analysis of very specific statutory issues – finding, for example, the proper penalty for so microscopic or granular an issue as the cultivation and sale of pears and apples.14 But the Laws also contains a discussion of culpability and its relation to reason. In essence, the dialogue is a prologue to contemporary notions of excuse by reason of insanity.

  Plato begins the Laws with a restatement of the premise established above: all bad acts are the result of ignorance. As the Athenian Stranger (Plato’s voice in the dialogue) puts it, “bad men are always bad against their own will.”15 Why is this? Because all human beings have a natural will to knowledge of the Good, and therefore of right action. Once the Good appears to the person, she cannot but follow its course. Thus is wrongdoing the result of ignorance.

  But Plato points out another possibility, one that suggests that Classical Greece was fully aware of the potential uncontrollability of human personality. Sometimes, reason may be overwhelmed by appetite or passion.16 When passion supersedes our natural impulse towards reason, wrong action may result. In this sense, wrongdoing may be involuntary.17 In short, an individual may have an excuse for actions he did in fact commit:

  Now a man might conceivably commit an act of one of these kinds from
  insanity, or when so disordered by disease, so extremely aged, or of such tender
  years, as to be virtually insane. If one of these pleas can be established to the sat-
  isfaction of the court selected for the trial of the case … and the verdict should be
  that the accused committed his transgression in such condition, he shall in any
  case pay full compensation to any party endamaged by his act, but the rest of the
  sentence shall be remitted …18

  Plato’s analysis thus suggests that human reason can be overwhelmed by other elements of personality – a prescient hint at Freud’s deconstruction of the human psyche that would occur some 2300 years later. Indeed, a major portion of Classical Greek literature was meditation on just this subject.19 Most importantly for our purposes here, Plato points out that personality may be divided against itself, and that reason is never fully in control of action. If reason is the seat of responsibility, we may conclude that at those moments when reason fails, there is at least some ground for questioning the culpability of the actor.

II. Michel Foucault’s History of Insanity in the Age of Reason:

  The ideal point of penalty today would be an indefinite discipline: an
  interrogation without end, and investigation that would be extended without
  limit to a meticulous and ever more analytical observation, a judgment that would   … never be closed, the calculated leniency of a penalty that would be interlaced
  with the curiosity of an examination … in relation to an inaccessible norm … Is it
  surprising that prisons resemble factories, schools, barracks, hospitals, which all
  esemble prisons?
                Michel Foucault
                Discipline and Punish


  French philosopher Michel Foucault is perhaps most famous for his archeological histories of the human sciences – his studies of fields such as economics, sociology, political science, and psychology. Archeological history differs from traditional history by bracketing any search for meaning or significance in the events and objects described. As such, the archeological historian is not concerned with an epoch’s justification of itself, nor is he concerned with correcting the past by applying current, “improved” models of knowledge to that era. Instead, the archeologist presumes that every epoch produces forms of knowledge that are not elements in an ongoing march of truth, and that they may be swiftly overturned or discarded – often for very vague reasons.20 In short, the archeological historian attempts to uncover the paradigm that fueled and conditioned a particular practice within the culture, what Foucault famously calls the discursive regime of an era. He does not comment on its rightness in the broader sense.

  In Madness and Civilization Foucault takes up the question of how madness has been recognized by various historical epochs and cultures. He begins his study with a simple heuristic premise: The actual character of modern concepts is less the continued clarification and refinement of rational methods of inquiry than a codification of diverse, sometimes conflicting, sometimes irrational practices related to the object in question. Foucault points out, for instance, that madness in the Middle Ages was often described in the most unobtrusive of fashions. There were simply a multitude of behaviors which one might exhibit. In fact, he says, “madness” as such did not exist, since behaviors were not categorized according the division between the “mad” and the “rational”.21

  To repeat: madness as such did not exist in the Middle Ages. But toward the middle of the 1500’s, Foucault discovers that a strange societal phenomenon takes place: Leprosy, a three-century scourge, virtually vanishes, largely due to an increase in hygienic practices. The Lazar houses – virtual dungeons created for the exclusion of the leper from mainstream life – fall empty. But, Foucault points out, the cognitive and physical structures of inclusion and exclusion that leprosy has created remained in existence, as if the physical structures of the world called for categories of thought that would mirror one another:

  Leprosy withdrew, leaving derelict these low places and these rites which
  were intended, not to suppress it, but to keep it at a sacred distance … What
  doubtless remained longer than leprosy … were the values and images attached
  to the figure of the leper as well as the meaning of his exclusion … Leprosy dis-
  appeared … from memory; these structures remained.22

  Foucault argues that the “sacred space” of the leper is soon filled by the madman. The eccentricity of the mad figure of Middle Ages, for whom madness was in a constant dialogue with reason, disappears. The great confinement takes place. Foucault points out that by 1650 one of every 100 inhabitants of the city of Paris was institutionalized in the Hospital General.23 The construction of new hospitals took place all across Europe.24 In the Renaissance (roughly 1550-1650) and the Classical Era (1650-1800), we see the birth of the mad as an obsessive object of cultural, political, social, and police scrutiny. According to Foucault, we see in this period the birth of a purely negative view of madness – it is now seen not as just another mode of being, but as the animalistic absence of reason. The mad are less than human. Moreover, this phenomenon is understood to demand strict administrative control, all in the name of a “cure.”25

  Foucault then goes on to an analysis of madness in the modern era (1800-present). Here, he argues, madness or lunacy give way to a notion of insanity, and the modern asylum is born. Its origins are manifold, but I shall list the central ones here: First, Foucault notes that sometime around 1750 an event he calls the “Great Fear” occurs, in which the population of Europe suddenly sees itself as threatened with contagion by the mad. The loss of reason begins to be understood as a disease that can be transmitted to others,26 in the same manner that we fully accept the contagious natures of influenza strains today. Second, constraint comes to be understood as a valuable therapy. The insane are those who give imagination excessive freedom, and sanity can be restored by reigning those forces in. This goal might be achieved, for example, by insisting that the patient observe strict silence for weeks at a time.27 Third, and most importantly, Foucault points out that the asylum marks the ascension of the medical personage to a godlike role: that of physician, religious minister and police authority all at once.28 The modern asylum, and its officials, says Foucault, illustrate the birth of the modern, technically and scientifically administered state.

  Foucault’s point in writing this history, as suggested earlier, was to raise questions about the self-certainty of science in its ongoing elaboration of descriptive and therapeutic terms concerning human behavior. In essence, he points out that science is never so neutral and objective in the constitution of its objects of inquiry as it would seem. Gary Gutting, in his book, Michel Foucault’s Archeology of Scientific Reason, puts the matter of Foucault’s inquiry as follows:

  Without denying all objectivity to the modern view [of madness], he emphasizes its essential
  connections to contingent features of modern society. He also claims that the picture of
  modern society. He also claims that the picture of modern psychology and psychiatry as
  disinterested searches for a truth that frees the mad from abuse and manipulation is a myth.
  In fact, our modern knowledge and treatment of the mad are devoted to a particularly
  thorough and insidious manipulation of them.29

Obviously, if this is the case – and there is strong support as well as opposition to Foucault’s analysis from within and without the psychiatric community – legal representations of insanity, so dependent upon scientific discourse for their veracity and authority, may require re-evaluation.

  This is the terrain studied by philosopher of science Thomas Kuhn as well as psychiatrist Thomas Szasz, to whose analyses we shall now turn.

III. Thomas Szasz and the Assault on Mental Illness

  A. Mental Illness v. Problems in Living:

  Psychiatrist Thomas Szasz begins his analysis of the relation of mental illness, insanity, and the law with a simple proposition: mental illness is a myth.30 His claim rests on a particular understanding of both “illness” and “myth” as operative terms. Szasz suggests that illness, understood properly, should signify something akin to anatomical disorder, such as a malfunctioning kidney. For Szasz, the organ possesses a specific function whose nominal range is relatively clearly identifiable through scientific testing. When it fails to fulfill its function, scientific medicine seeks the cause – viral infection, a lesion, or some such illness.31

  Mental “illness,” says Szasz, is a different kind of phenomenon. “Its main support,” he says, “[comes] from such phenomena as syphilis of the brain or delirious conditions – intoxications, for instance – in which persons may manifest certain disorders of thinking and behavior.”32 In such cases it is important to note that disease afflicts the brain, not the mind.33 Indeed, Szasz goes to some lengths to reiterate the validity of the philosophical notion of mind as something distinct from the brain. The latter is an organ; the former is a complex concept used to describe an array of nonmaterial states, such as feelings, hopes and fears.34 The crucial point, for Szasz, is that mental (i.e., “brain”) illnesses are clearly within the same class of phenomena as bodily illnesses. Indeed, he holds that it would be wiser to call mental illness by a term such as “brain disease.” As he puts it:

  A disease of the brain, analogous to a disease of the skin or bone, is a   neurological defect, not a problem in living. For example, a defect in a person’s   visual field may be explained by correlating it with certain definite lesions in the   nervous system. On the other hand, a person’s belief – whether it be in Christ-   ianity, Communism, or the idea that his internal organs are rotting and that his   body is already dead – cannot be explained by a defect or disease of the nervous system.35

  The problem, for Szasz, is that there is no neutral scientific algorithm by which one might trace and judge the origins and validity of a behavior or belief.36 For instance, one might say that a law student’s belief in the absolute perfection of the Anglo-American legal system as it now stands is an excessive, obsessional, or even neurotic one. By the same token, one might say that the same student’s belief that he is Mozart is a psychotic one. But, says Szasz, we are conditioned to call the first kind of belief “eccentricity” and the second “mental illness,” when in fact the difference is one of degree, not one of kind.37

  Although Szasz is relentlessly critical of the characterization of aberrant behavior as an illness, he does not reject the possibility of psychoanalysis. In fact, he claims that psychiatry will only be an effective and humane method of treatment for troubled human lives when in recognizes that what it treats are more aptly called, quite simply, “problems of living.” In this framework, the concept of illness, which “implies deviation from a clearly defined norm,” is no longer a viable referent. Why? Because the questions posed to human beings living in a social world have no such norm. Rather, such questions are posed in terms of “psychological, ethical, and legal concepts.”38 Mental illness – as a means of describing socially “sick” behavior – is thus not a scientific inquiry at all; rather, it is a political, ethical, philosophical, and legal one. In Szasz’s words:

  [I] suggest that the phenomena now called mental illness be looked at afresh and
  more simply, that they be removed from the category of illness, and that they be
  regarded as expressions of man’s struggle with the problem of how we should live   … [T]oday is not the time in human history for obscuring the issue of man’s
  responsibility for his actions, by hiding it behind the skirt of an all-encompassing
  conception of mental illness.39

  B. Science and Knowledge as Mythic Forms:

  Szasz’s critique of the concept of mental illness does not rest on the distinction between mind and body alone. Instead, he raises questions that challenge our very understanding of the human sciences – those “sciences of man” whose disciplines include sociology, psychology, anthropology, economics, and so forth. Like philosopher of science Thomas Kuhn, Szasz points out that all forms of knowledge command authority only insofar as their explanatory function is satisfactory to us. Kuhn refers to the prevailing form of knowledge at any given times as a paradigm; as such, the paradigm constitutes the ether in which inquiry and problem solving take place.40

  But paradigms do more than provide a backdrop for inquiry; they provide its substance as well. Kuhn compares paradigms to broadly significant judicial decisions in common law. They provide a definitive characterization of previous cases (sometimes rendering them virtually obsolete by overruling them), while creating, in the language of the decision, an object for further inquiry. In short, paradigms set the agenda, in large part reinventing the agenda. In Kuhn’s words:

  … [L]ike an accepted judicial decision in the common law, it [a paradigm]
  an object for further articulation and specification under new or more stringent
  conditions … Paradigms gain their status because they are more successful than
  their competitors in solving a few problems that the group of practitioners has
  come to recognize as acute.41

  Two issues are prominent here. First, Kuhn points out that scientific practitioners will, for various reasons, recognize a particular problem as acute. In turn, a specific path of inquiry will be followed. The paradigm that results is thus not a natural fact, in the strict sense, but the product of human decision. Like normative questions about behavior, guilt, and innocence, the structure of a paradigm is always profoundly “human.”

  There is, however, a second and more important issue concerning the concept of paradigms that Kuhn resists: the connection of paradigms with myth. It is here that Kuhn’s understanding of science becomes particularly relevant to Szasz’s discussion of mental illness. For Szasz, every kind of knowledge – from medicine to psychotherapy – has one of two types of mythic quality to it. One type is on the order of the paradigm: myth as effective belief. The other type is on the order of superstition: myth as pre-scientific shamanism.42 Indeed, Szasz opens his text, Law, Liberty, and Psychiatry with the following passage from Gilbert Ryle’s The Concept of the Mind:

  A myth is, of course, not a fairy story. It is the presentation of facts
  belonging in one category in the idioms belonging to another. To explode a
  myth is accordingly not to deny the facts but to re-allocate them.43

Szasz’s claim that mental illness is a myth rests upon his belief that the particular presentation of facts associated with it have ossified to the point that they now possess an almost timeless quality. Put otherwise, the paradigm – which is nothing more than a compelling way of describing and outlining a set of problems and a posture towards their solution – has become a hard, immutable fact. In Szasz’s words:

  The expression “mental illness” is a metaphor which we have come to
  mistake for a fact … We call people mentally ill when their personal conduct
  violates certain ethical, political, and social norms.44

The consequence of this is potentially disastrous, says Szasz, for two reasons. First, it entails an excessive reliance on science for securing human happiness. “Problems in living” are cast in the light of the medical model: to each pathology there is a prescribed cure. The infinitely varied role of each individual is thus minimized in the face of a scientific norm of “the good of life.” Second, and more frighteningly, the medicalization of “problems of living” unleashes an almost unstoppable therapeutic right to intervene into the lives of eccentric persons. Political, social, or behavioral uniqueness becomes a sickness to be cured, like appendicitis or the common cold. In this context, science begins to undermine liberty and choice – certainly two essential characteristics of human being.

IV. The Insanity Defense Today:

  Today, few legal issues generate the kind of polemical responses that one finds surrounding the insanity defense. In the preceding sections, I have tried to show that the notions of madness, diminished capacity, insanity, involuntary action and the like are not modern phenomena. Nor are they equivalent from period to period to culture to culture. What does seem to be constant is the idea that human action often overreaches governance by reason or law. When such a circumstance occurs, we have little trouble in recognizing it.

  This does not end the inquiry, however, for the fact that an act was committed in the heat of passion or as a result of some legal definition of insanity does not mean that the courts will necessarily find this fact to be an excuse for the action. American public discourse has been occupied with this question, on a more or less intense level, since the mid-1850’s.45 Following the verdict of not guilty by reason of insanity levied against John Hinckley in the attempted assassination of President Ronald Reagan in 1981, renewed public attacks on the insanity defense became more frequent.46

  Public criticisms of the insanity defense often claim that the defense is omnipresent, when in fact the defense is invoked only very rarely.47 The “myths” surrounding the insanity defense have been well documented: Michael J. Perlin, in an essay entitled “Unpacking the Myths: The Symbolic Mythology of Insanity Defense Jurisprudence,” puts the matter as follows:

  … [O]ne of the driving forces behind the [insanity defense] abolition
  movement has been the persistence of insanity defense mythology. For
  example, it is taken as common wisdom that the insanity defense is an abused,
  over-pleaded and over-accepted loophole used as a last-gasp plea solely in
  grisly murder cases to thwart the death penalty; that most successful pleaders are
  not truly mentally ill; that most acquittals follow sharply contested “battles of the
  experts”; and that most successful pleaders are sent for short stays to civil

  hospitals. Each of these myths has been clearly, definitively, and empirically
  disproven, yet they show no sign of abating.48

In what follows, and by way of conclusion, I would like to outline the essential elements of the modern insanity defense claim, and to offer some comments – in line with our previous discussions of the origins of contemporary notions of reason and madness, sanity and insanity – about the public as well as philosophical future of the insanity defense to the public at large.

  A. The M’Naghten Rule:

  The M’Naghten case is generally regarded as the foundation of contemporary insanity jurisprudence. The case itself concerned Daniel M’Naghten’s murder of Edmund Drummond, an assistant to British Minister Sir Robert Peel. The defense showed that M’Naghten held the “deluded belief” that Peel had engaged in a series of acts aimed at harming him. To complicate that case further, M’Naghten’s murder of Drummond was an accident; he had mistaken the latter for Peel. M’Naghten’s defense counsel pleaded that he was insane; in support of their plea they introduced a bevy of medical and scientific evidence (much of which focused on the state of the defendant’s personality) that showed that M’Naghten had neither the capacity to control his actions nor the ability to distinguish right from wrong.49
  M’Naghten’s ensuing acquittal by reason of insanity gave rise to a public furor. Like the Hinckley case 140 years later, demands for reform virtually exploded onto the legal arena. Parliament was subsequently charged by the Crown with two legislative tasks: (1) articulating the essential components of criminal culpability; and (2) limiting the autonomy and power of judges to create their own culpability standards for defendants who plead the insanity defense.50 The “M’Naghten Test” is the result of this legislative inquiry. According to that test, a defendant is presumed to be sane unless it is shown, to the satisfaction of the jury, that: (1) the defendant was suffering some kind of “defect of reason or disease of the mind” that resulted in (2) his inability to understand the nature and quality of his act or (3) the fact that the act was wrong.51

  M’Naghten is illuminating and important not only because it establishes, with some modifications, the jurisprudential framework for contemporary applications of the insanity defense. It also illustrates the intersection of law, morality, medicine, psychiatry, and scientific knowledge, as they existed at that moment. In short, M’Naghten is like a constellation of social forces, brought together by the incomprehensibility of a violent act in a highly rationalistic culture. It is, as well, a manifestation of the impulses described by Foucault, Kuhn, and Szasz above – an unwieldy integration and codification of highly disparate social forms of knowledge. The compatibility of such diverse explanatory models is highly disreputable; for instance, the assumption that a moral claim (the ability to distinguish right from wrong) is also a scientifically verifiable cognitive claim (involving the ability to show such a state existed) is highly problematic, as much literature has shown.52
  More importantly, however, M’Naghten repeats the mind-body distinction discussed earlier.53 It argues that cognitive awareness of the wrongness of an action constitutes the determining element of culpability. But cognitive awareness is never wholly private; it is also constituted by the social and political circumstances in which the individual lives. In short, the insanity defense presumes that the defendant is an integrated actor as well as an integrated object; it assumes that she is a person who has made what Kant calls a synthetic judgment about social rules and values and has, in some fashion, processed and internalized them.54

  M’Naghten also repeats some of the elements of wrongdoing established in our earlier discussion of Plato. Knowledge is equated, in principle, with right action. If Plato is correct, the possession of knowledge of the Good Will command the individual to follow its course; the insanity defense is thus a legal response to those moments when this equation, for some reason, fails. To this extent the defense is a laudable one, since it is plausible to claim that any act of abject violence entails some kind of madness.

  But insanity (or “madness”) as a social phenomenon is not wholly related to the completion or incompletion of a cognitive circuit. Again, Plato is illuminating here. His model of the soul, which emphasizes the omnipresence of both appetite and reason as ultimately indivisible elements of a unified whole, entails that a rigid division of human behavior along mind-body line is inappropriate. Although Plato emphasizes the potential authority of reason above all else, he does not suggest that it can exist independent of appetite or passion. For a coherent model of insanity to exist under the M’Naghten Rules, mind must be postulated as an entity independent of body. This is particularly troubling when we ask – as did Plato – what role is given to passion in determining human behavior.

  B. Parsons v. State and the Irresistible Impulse Doctrine:

  Parsons v. State addressed such concerns, and it is here that our inquiry into the insanity defense shall come to a provisional close. In Parsons, the court addresses questions much like those that would be reiterated by Thomas Szasz 80 years later: In addition to the requisite capacity for intellectual discrimination, legal culpability demands that a party possess freedom of will. For instance, a party could claim the defense of duress if she were compelled to commit a crime under threat of death or imminent bodily danger.55 The idea behind such a defense is that choice is the essence of legal responsibility; it makes no justifiable sense to hold someone liable for an action over which they exerted no control.

  Parsons suggests, in essence, that the showing of insanity could proceed by three separate tests: (1) a moral-cognitive test (the capacity to distinguish between right and wrong as to the particular act); (2) the physical non-cognition test (the actor has delusions as to the act itself, as in the famous hypothetical of a husband who strangles his wife believing her to a lemon); and (3) the irresistible impulse test (the inability to refrain from an act of which one is cognitively aware).56 It is the latter the Parsons describes. In the words of Donald J. Hermann:

  The fundamental basis of the formulation of an irresistible impulse seems
  to be a recognition of compulsion at the psychological level, as a defense to culp-
  ability; the court cites with approval the statement that “there can be no punish-
  ment for what a person cannot avoid.” Assuming the existence of free will, the
  court concluded that violational capacities could be impaired without obscuring
  cognitive capacities
. (my emphasis)57

Once again, Plato’s commentary echoes here, but in a paradoxical fashion. Plato suggests that there are moments when reason might be overwhelmed by passion; at such a moment the individual is placed in a state of frenzy that defeats the signature elements of personhood. The fact to note is that an excess of appetite (passion) means that knowledge of the Good is no longer functioning. In short, it is impossible to have a cognitive failure of the will, since the dominance of the will (in Plato’s view) cannot occur in conjunction with the functioning of reason. One or the other is in control.

  Parsons rejects this view of the psyche. In Parsons, the person could be freed from culpability even if he knew the nature or quality of his act, as well as the fact that it was wrong, if only it could be shown that he had no command over his will. In this model freedom of will is separate from cognitive capacities. (11) In an odd sense we see Plato’s division once again; this time, however, we find a weakened faculty of reason coexisting with a will that it cannot necessarily control. Under Parsons, either the will or the cognitive capacities may fail to relieve the defendant from culpability.

  But how might someone prove that a person’s will had failed and that the person had thus lost the capacity for freedom of choice? This vexing problem has never been fully solved, nor is it likely to be. The Parsons court adopted a two-part test to determine when a person’s will has been undermined by mental “illness” to such an extent that the person may be declared legally insane: (1) the person’s “power” to choose between right and wrong was destroyed such that the person was no longer a free agent; (2) the crime which resulted was caused by that failure alone.58

  Many commentators and courts have raised important questions about the Parsons irresistible impulse rule. Certainly the rule cuts to the heart of lay notions of moral responsibility: the work of Thomas Szasz is a case in point. In addition, however, the irresistible impulse doctrine raises enormous proof issues: How, we might ask, is it possible for a psychoanalyst to determine precisely how “impaired” a person’s will was at a specific moment? The Fifth Circuit has rejected the Model Penal Code formulation of the irresistible impulse doctrine (the “volitional” test) on this ground.59

  Nonetheless, the logic of the irresistible impulse doctrine and, more generally, the idea that a “failed” will entails the impossibility of meaningful moral choice is a deeply entrenched element of Western thought. In State v. Noel,60 the New Jersey Supreme Court overturned a murder conviction on the basis of the M’Naghten Rule. More importantly, however, the opinion points out that the “absence of will precludes responsibility.”61 In the court’s words:

  … [T]he crucial test of moral responsibility has been centered upon the
  assumption that the being under observation was in control of his will power,
  for it is inconceivable that there can be any satisfactory test of moral or criminal
  responsibility where the will of the subject becomes entirely dormant or
  absolutely inactive …62

C. The Need for a Theory of Moral Responsibility:

  The central theme that runs through contemporary formulations of the insanity defense remains the question of moral responsibility. It is one of the great virtues of Anglo-American criminal law that it recognizes that informed choice is the sine qua non of criminal culpability. Unfortunately, the enormously complex issues that surround the practical application of the insanity defense are certainly incapable of final resolution. Were an adequate and objective theory of moral responsibility available, it is conceivable that a coherent understanding and application of the insanity defense might follow. (16) But no such theory exists. Nor can it ever exist. Once again, we return to the commentary of philosopher Richard Rorty in Philosophy and the Mirror of Nature:

  We have not got a language which will serve as a permanent neutral
  matrix for formulating all good explanatory hypotheses, and we have not the
  foggiest notion of how to get one.63

The crucial element in making the insanity defense a reasonably sound philosophical alternative to what might, in contrast, amount to a strict liability theory of criminal law is the recuperation of the act of reflection. Beyond that, jurists must remember the historically fluctuating character of so many of our beliefs – the point Foucault reminds us of again and again in his magisterial studies of Western thought. As he makes undeniably clear, the field of psychological truth is a slippery one, and the humane application of the criminal law depends on its willingness to greet its contemporary propensity to seek blame with skepticism. The insanity defense, properly considered in its historical sense, is a recognition of the limits of human understanding. Such humility must remain at the center of law.

End Notes

1 Donald J. Hermann, The Insanity Defense, 3 (1984).

2 See Ronald Dworkin, Law’s Empire, 119-145 (1985).

3 ASee Jeffrie G. Murphy and Jules L. Coleman, Philosophy of Law, 11 (1990).

4 See Stanley Fish, Doing What Comes Naturally, 86-101 (1989).

5 Supra note 1 at 76-77.

6 Michel Foucault, Madness and Civilization, (1965).

7 Robert W. Rieber and Harold J. Vetter, The Psychological Foundations of Criminal Justice, 15-39 (1978).

8 See Terence Ball and J.G. A. Pocock, Conceptual Change and the Constitution, 1-12 (1988).

9 Jack B. Weinstein, Weinstein’s Evidence Manual, Sec. 3.01 (02) © (1991).

10 Supra note 1 at 19.

11 Plato, Republic in Edith Hamilton and Huntington Cairns, eds., Plato: The Collected Dialogues, 597 (1961).

12 Id. at 685, Sec. 443 (b).

13 Id. at 686 444 (a).

14 Plato, Laws, n Hamilton and Cairns, eds., Plato: The Collected Dialogues, 1478, Book XI, Sec. 919 (1961).

15 Id. at 1421, Book IX, Sec. 860 (d).

16 Id. at 1423, Book IX, Sec. 863 (a)-(d).

17 Id. at 1423, Book IX, Sec. 863 (b).

18 Id. at 1425, Book IX, Sec. 864 (e).

19 Michel Foucault, Discipline and Punish, 227 (1977).

20 In this regard, Foucault’s work is much like that of philosopher of science Thomas Kuhn, whose central premise is that scientific revolutions are often dramatic and total, and that science is not a 2,000 or 3,000 year march in pursuit of perfect clarity. Instead, Kuhn argues that science operates by means of the production paradigms – what Foucault would call the “positive unconscious of knowledge” – which both command and permit certain kinds of inquiry about physical phenomena. See, Thomas Kuhn, The Structure of Scientific Revolutions (1970), and the The Essential Tension: Selected Studies in Scientific Tradition and Change (1977). See also, Michael Clark, “Kuhn and Foucault on Paradigms and Change in the Law,” (December, 1993) (unpublished manuscript, under review at University of Toledo Law Review).

21 Michel Foucault, Madness and Civilization, 19 (1973).

22 Id. at 6.

23 Id. at 42.

24 Id. at 44.

25 Id. at 83.

26 Id. at 202.

27 Id. at 267.

28 <Id. at 127.

29 Gary Gutting, Michel Foucault’s Archeology of Scientific Reason, 88 (1989).

30 Thomas Szasz, Law, Liberty, and Psychiatry, 12 (1963).

31 Id. at 13.

32 Id. at 12.

33 Id. at 13.

34 The distinction here between “mind” and “brain,” owes its substance to the philosophical distinction between mind and body. In essence, the mind-body “split” refers to a peculiar feature of human life: Human beings are made of both physical and mental components. There are, for example, two general sorts of statements that can be made about people. One class describes objectively verifiable elements: statements about one’s body, events that occur to it, and so forth. Such statements are marked by the fact that they can be made about virtually any observable physical object. The statements, “Bob is tall,” or “Bob is crying” are akin to such statements as, “It is raining,” or “Rain is a liquid.”
  To such statements we can contrast such claims as “Bob is sad,” or “Bob is certain,” or “Bob is fearful.” These statements describe strictly mental events which, though they may have objectively verifiable behavioral histories (sadness may be brought on by the death of a friend), have no materially verifiable objective referent.
  The two kinds of statements that result from the mind-body dualism have been referred to by philosopher as being either “physicalist” or “mentalistic.” Much philosophy, from Plato to Descartes to contemporary neuropsychological theory (where the stimulus of a specific portion of the brain will produce a correlative feeling), has attempted to translate physical and mental sensations. In do doing, it is generally suggested that physicalist phenomena owe their existence to mentalist phenomena, or vice versa. In general, such efforts at a unified theory explaining the origins and topography of the mind-body distinction are quite disappointing.

35 Supra note 30 at 12.

36 I borrow the notion of the neutral algorithm from Richard Rorty’s brilliant reworking of pragmatist philosophy, Philosophy and the Mirror or Nature. There, Rorty attempts to allay fears that the absence of a transcendental site of certainty – the goal of virtually all philosophy since Plato – is neither a curse, nor a fact to be feared. As Rorty puts it: “We have not got a language which will serve as a permanent neutral matrix for formulating all good explanatory hypotheses, and we have not the foggiest notion of how to get one.” Richard Rorty, Philosophy and the Mirror of Nature, 348 (1979). One of the central questions about mental “illness” concerns the quite obvious but often ignored fact that any depiction of mental “health” is a normative, culturally conditioned one. Hence mental “illness” might better be described as “unacceptable deviant behavior.” Of course, not all mental illness necessarily manifests itself as behavior, complicating the picture still further.

37 Supra note 30 at 13.

38 Id. at 16.

39 Id. at 16.

40 Thomas Kuhn, The Structure of Scientific Revolutions, 43-48 (1970).

41 Id. at 23.

42 Supra note 30 at 11.

43 Gilbert Ryle, The Concept of the Mind, 8 (1949)

44 Supra note 30 at 17

45 J.A. Tighe, “Francis Wharton an the nineteenth-century insanity defense: The origins of a reform tradition,” American Journal of Legal History, 27 224-253 (1983). Tighe points out that public outcries over the invocation of the insanity defense have been a regular feature of American life since the early nineteenth century. As late as 1881, in the trial of Charles Guiteau, assassin of President James Garfield, the insanity defense was popularly called the “insanity dodge.” Charles E. Rosenberg, The Trial of the Assassin Guiteau, 53 (1968).

46 Henry J. Steadman, et al., Before and After Hinckley, 4 (1993).

47 Id. at 5. “In New York there were only two insanity pleas for every 1, 000 felony arrests in 1978 … and in California there were only five insanity acquittals for every 1, 000 felony convictions in 1980.

48 Michael L. Perlin, “Unpacking the Myths: The Symbolic Mythology of Insanity Defense Jurisprudence,” 40 Case Western Reserve Law Review 599, 707 (1990).

49 M’Naghten’s Case, 10 Cl. & Fin. 200, 8 Eng. Rep. 718 (1843).

50 Id. at 719.

51 Id. at 719-720.

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

53 See Supra, note 34.

54 Model Penal Code, Sec. 2.09 (1) (1962).

55 Supra note 1 at 39.

56 Parsons v. State, 81 Ala. 577, 2 So. 854 (1886).

57 Supra note 1 at 39.

58 Supra note 56 at 584.

59 Supra note 1 at 41.

60 State v. Noel, 102 N.J. L. 659, 133 A. 274 (1926).br />
61 <Supra note 1 at 41.

62 Supra note 60 at 285.

63 Richard Rorty, Philosophy and the Mirror of Nature, 359 (1979).