1 I should promptly reveal my own perspective by noting my previous involvement with this issue—participating in drafting the American Civil Liberties Union policy on the insanity defense (Policy #241) and testifying before the Subcommittee on Criminal Justice of the House Judiciary Committee, as witness for the ACLU, I have opposed abolition of the insanity defense.Google Scholar

2 As a fall back position, Morris advocates eliminating the insanity defense and relying on a “diminished responsibility” defense to reduce murder convictions to manslaughter (at 53–54, 69).Google Scholar

3 I have stated this second premise in so simplified a fashion that it has become imprecise. A fuller statement might read, “The insane are not blameworthy for otherwise criminal acts if their performance of those acts is causally connected with their mental disease or deficiency.” No matter how careful the wording, however, it is impossible to state the requirement of causal connection without taking a position on the hotly contested issue of what the test for insanity should be (whether the act must be a “product”, “caused by”, etc.). See Gross, H., A Theory of Criminal Justice 298–302 (1979), on the issue of the requisite connection between the mental disease or defect and the act.Google Scholar

With, Morris I would like to try insofar as possible to avoid committing myself to a particular test in discussing the problem of insanity. I recognize that it is difficult, arguably even impossible, to discuss insanity without having defined it. Then again, it has been argued that defining insanity is also impossible. A. Goldstein, The Insanity Defense 87 (1967). Morris states in his introduction that he wishes to include in his working concept of madness “all reasonable perceptions of mental illness” from Thomas Szasz to Karl Menninger (at 1). Although I doubt that Szasz and Menninger could agree on any common ground whatever, I will share Morris's attempt.Google Scholar

4 Model Penal Code, Comment to Section 4.01 (American Law Institute 1962).Google Scholar

5 One classic statement of this position is Judge Bazelon's: “Our collective conscience does not allow punishment where it does not allow blame.” Durham v. United States, 214 F.2d 862, 876 (D.C. Cir. 1954), quoting Holloway v. United States, 148 F.2d 665, 666–67 (D.C. Cir. 1945). See also H. Fingarette, The Meaning of Criminal Insanity 128–34 (1972); Goldstein, A., The Insanity Defense 9–10, 15 (1967); Packer, H., The Limits of the Criminal Sanction 131–35 (1968); Kadish, The Decline of Innocence, 26 Camb. L.J. 273, 273–85 (1968).Google Scholar

6 “The irreducible basis for criminal liability and consequent deprivation of liberty in the Anglo-American legal system should be individual responsibility for acts and decisions. Elimination of the insanity defense, or adoption of a guilty but insane verdict in lieu of the insanity defense, would impose criminal responsibility on individuals who, due to their mental state, are not blameworthy.” ACLU Policy #241.Google Scholar

7 See also Morris, , Psychiatry and the Dangerous Criminal, 41 S. Cal. L. Rev. 514, 536–44 (1968). where Morris proposes an institutional design for treating mentally ill offenders.Google Scholar

8 See Bentham, J., Principles of Penal Law, Pt. 11, bk. 1, ch. 3, in J. Bentham's Works (J. Bowringed. 1843). Aspects of this position are reflected best in contemporary criminal law jurisprudence by the ALI Model Penal Code. See Commentary to Section 4.01 (1962). See also H. L. A. Hart, Punishment and Responsibility 40–50 (1968) for a discussion of the Benthamite position.Google Scholar

9 See works cited in note 6 supra. Google Scholar

10 E.g., Regina v. Dudley & Stephens, 14 Q.B.D. 273 (1884) (the famous cannibals in the lifeboat case). See A. W. B. Simpson, The Story of the Tragic Last Voyage of the Mignonette and the Strange Legal Proceedings to Which It Gave Rise (1984).Google Scholar

11 The Queen in fact commuted the sentences of Dudley and Stephens to six months' imprisonment. See Kadish, S., S. Schulhofer & M. Paulsen, Criminal Law and Its Processes 186 n.2 (4th ed. 1983).Google Scholar

12 See Section 3.02 (justification of choice of evils).Google Scholar

13 See Section 2.04 (ignorance or mistake of fact or law).Google Scholar

14 Morris posits that desert, the limiting concept for punishment, refers to a range of punishments, and not to a particular punishment. He invokes Hart for support for the proposition that although desert sets the appropriate range of punishment, utilitarian considerations are then properly applied to select a particular sentence within that range (at 146–52).Google Scholar

15 See Davis, K., Discretionary Justice (1969), for the classic discussion of this problem.Google Scholar

16 Goldstein, J. & Katz, , Abolish the “Insanity Defense”—Why Not? 72 Yale L.J. 853 (1963).Google Scholar

17 Goldstein and Katz laid the groundwork for the view of the insanity defense as a basis for incarcerating those who might otherwise be acquitted for lack of mens rea, rather than as a basis for exoneration from criminal liabilty. Id. at 865.Google Scholar

18 From time to time, in a discussion of legal principle, Morris inserts a reference to community sentiment. E.g., in a discussion of the propriety of mitigating the sentences of the mentally ill, he declares: it is not a sentimental but rather a judicious use of the heavy weapons of punishment to lighten its impact on the less morally guilty to the extent that decent community sentiment allows (at 168, emphasis added).Google Scholar

19 For fascinating accounts of the Hinckley trial, see L. Caplan, The Insanity Defense and the Trial of John W. Hinckley, Jr. (1984) and Stone, The Trial of John Hinckley, in Law, Psychiatry and Morality 77–98 (A. Stone, ed.) (1984).Google Scholar

20 People v. White, 117 Cal. App. 3d 270, 172 Cal. Rptr. 612 (1981). The political turmoil surrounding this case culminated in the California legislature's repeal of the diminished capacity defense. See Cal. Penal Code §§ 28, 29 (West Supp. 1983).Google Scholar

21 M'Naghten, in an incident startlingly similar to Hinckley's assassination attempt, attempted to kill Prime Minister Robert Peel but instead shot Peel's secretary, Edward Drummond. The famed House of Lords discussion of his case and the problem of insanity also was preceded by public outrage when M'Naghten was found not guilty by reason of insanity. M'Naghten's Case, House of Lords, 10 CI. & F. 200, 8Eng. Rep. 718(1843).Google Scholar

22 In one poll taken shortly after the Hinckley verdict, 75% of those polled opposed the insanity defense at least to some extent. N.Y. Times, June 23, 1982, at B6, col. 1.Google Scholar

23 Steinbeck, J., Of Mice and Men (1937).Google Scholar

24 Dostoevsky, F., Crime and Punishment (1986).Google Scholar

25 Diagnostic Statistical Manual 111 is currently popular with psychiatric diagnosticians.Google Scholar

26 See M'Naghten's Case, supra note 22.Google Scholar

27 Some commentators have concluded that because length of civil commitment is predicated on findings of dangerousness and because findings of dangerousness are commonly based on the nature of the crime with which the NGRI defendant was charged, the length of civil commitment will tend to parallel the length of the criminal sentence. See Monahan, J., The Clinical Prediction of Violent Behavior 30–31 (National Institute of Mental Health Monograph 1981); Cooke & Sikorsky, Factors Affecting Length of Hospitalization in Persons Adjudicated Not Guilty by Reason of Insanity, 2 Bull. Am. Acad. Psychiatry & Law 251, 257–58 (1974).Google Scholar

It does occasionally happen that an individual found NGRI, due to mental state at the time of the offense, is found soon after conviction not to be presently mentally ill and is thereby released. E.g., In re Torsney, 47 N.Y.2d 667, 394 N.E.2d 262,420 N.Y.S.2d 192 (1979). The reaction to such cases is, not surprisingly, extreme. The Torsney case provoked a public reaction that resulted in changes in the state law. See Comment, Reforming Insanity Defense Procedures in New York: Balancing Societal Protection Against Individual Liberty, 45 Alb. L. Rev. 679, 693–96 (1981). To avoid adverse public reaction, many jurisdictions have enacted automatic commitment procedures applicable upon a finding of NGRI, with length of commitment varying. See Note, Commitment Following an Insanity Acquittal, 94 Harv. L. Rev. 605, 60–6 & nn. 4–6 (1981), for a fairly recent survey of state practices.Google Scholar

28 An alternative formulation is “guilty but mentally ill,” the legislative hybrid Morris has rightly criticized as unacceptable (at 83–87).Google Scholar

29 E.g., H.R. 47, 98th Cong., 1st Sess. (1983); H.R. 682, 98th Cong., Ist Sess. (1983); H.R.I 196, 98th Cong., 1st Sess. (1983).Google Scholar

30 See Insanity Defense Reform Act of 1984 §402 (a), 18 U.S.C. 520. American Psychiatric Association, Statement on the Insanity Defense 9–10, 14–15 (1982); American Bar Association, Criminal Justice Mental Health Standards, Standard 7–6.1 (1983); American Bar Association, Policy on the Insanity Defense (approved February 9, 1983).Google Scholar

31 See Smith, , Limiting the Insanity Defense: A Rational Approach to Irrational Crimes, 47 Mo. L. Rev. 605 (1982) (based on Attorney General William French Smith's congressional testimony on the administration's position).Google Scholar

32 See, e.g., Hearing on H.R. 1280 and Related Bills to Reform the Insanity Defense, before the Subcommittee on Criminal Justice of the House Committee on the Judiciary, 98th Cong., 1 st Sess. (1983) (statement of D. Lowell Jensen, Assistant Attorney General, Department of Justice. Criminal Division).Google Scholar

33 The outcome was not the same in all states that have considered abolishing the insanity defense. Both ldaho and Montana, e.g., have abolished the defense legislatively. 1982 Idaho Sess. Laws ch. 368; 1979 Mont. Laws ch. 713.Google Scholar

34 See Morris, , On “Dangerousness” in the Judicial Process, 39 Rec. A.B. City N.Y. 102 (1984).Google Scholar

35 See, e.g., Baxstrom v. Herold, 383 U.S. 107 (1966).Google Scholar

36 Jones v. United States, 463 U.S. 354 (1983).Google Scholar

37 See, e.g., Morris, The Future of Imprisonment (1974), for a sensitive view of the problems of role and reform in American prisons.Google Scholar