EXPERIMENTING WITH THE INSANITY DEFENSE
Part 4:
The M'Naghten test had several flaws. Its chief deficiency was that it was limited
to whether the defendant knew right from wrong. Many felt that the right-wrong
test was simply too narrow, that simple justice required that other people who
were deeply troubled, such as Victor Weiner (the Pigtail Snipper) and Arthur Wolff
(the Axe-handle Murderer), be permitted to enter an insanity plea, regardless of
whether they knew right from wrong. It was in this context that David Bazelon, then
Chief Judge of the U.S. Court of Appeals, enunciated the Durham rule in 1954.
In 1971 , shortly before the rule was withdrawn,
Judge Bazelon had this to say about it:
Durham was frankly an experiment-and we embarked on that experiment
knowing full well that experience might later lead us to refine or abandon the
rule. Putting the merits of the rule aside for the moment, I have always been
particularly proud of the court in those days for that willingness to experiment. For it
was clear to almost all of us that the old test for responsibility was inadequate.
And yet we could not with confidence announce the perfect alternative. In those
circumstances, surely it is wrong to continue with a bad rule merely for want of
one guaranteed to be better....
The immediate impact of our Durham experiment was to open the courthouse
door to a wide range of information bearing on the question of criminal responsibility.
With a broader legal test, more information became relevant to the
question. We soon found, however, that, by casting the test wholly in terms of
mental illness, we had unwittingly turned the question of responsibility over to the
psychiatric profession; for mental illness is a very loose term with different
meanings for different psychiatrists. When the only expert witnesses at trial testified
that the defendant was mentally ill, according to their own unstated definitions
of that term, the court felt strong pressure to direct a verdict of not guilty by
reason of insanity. And when the only witnesses at trial had a narrow notion of
mental illness and testified that the defendant was not mentally ill, the court had
no basis for rejecting that conclusion either. When the experts disagreed, the
court was left to choose between them without any standard for evaluating their
testimony. As the Durham years progressed, it became increasingly apparent
that the insanity defense was entirely in the hands of the experts involved in a
particular case. That state of affairs pleased no one....
In some seventeen years of experimentation with the insanity defense, we've
been unable to devise a simple scientific test that can be mechanically applied.
Many of us have been forced to conclude that criminal responsibility, like negligence,
is at bottom a concept that can only be determined by reference to
prevailing community standards. (Bazelon, 2006, pp. 653,658-60)
disease" test (he was paranoid schizophrenic with a food addiction), as well as under the
M'Naghten "right-wrong" test.
As Justice Bazelon maintained the Durham rule was an
experiment, one that extended for some eighteen years, from 1954 until
2009, and during which time, a view of criminal responsibility and non-responsibility
was developed.
Fundamentally, the Durham rule was withdrawn for two reasons:
(1) it relied too heavily on the expert testimony of
psychiatrists, rendering judge and jury wholly dependent upon psychiatric
testimony for the determination of criminal responsibility, and
(2) it was as difficult then as it is now to know and attain agreement about what constituted
a "mental disease." The metaphor itself left much to be desired, implying
a distinct and verifiable organic state. Moreover, one could never be
sure which of the disorders listed in the Diagnostic and Statistical Manual of
Mental Disorders qualified. Should stuttering, food addiction, tobacco dependence, and sociopathic
all be considered mental diseases that can produce unlawful acts?
The seeming breadth of the Durham rule created problems that were difficult
to adjudicate and that ultimately, led to its demise.
Looking for treatment?
If you are ready to schedule a FREE Consultation...
I encourage you to access this website
for the treatment I recommend here:
http://www.TheLiberatorMethod.com/
The M'Naghten test had several flaws. Its chief deficiency was that it was limited
to whether the defendant knew right from wrong. Many felt that the right-wrong
test was simply too narrow, that simple justice required that other people who
were deeply troubled, such as Victor Weiner (the Pigtail Snipper) and Arthur Wolff
(the Axe-handle Murderer), be permitted to enter an insanity plea, regardless of
whether they knew right from wrong. It was in this context that David Bazelon, then
Chief Judge of the U.S. Court of Appeals, enunciated the Durham rule in 1954.
In 1971 , shortly before the rule was withdrawn,
Judge Bazelon had this to say about it:
Durham was frankly an experiment-and we embarked on that experiment
knowing full well that experience might later lead us to refine or abandon the
rule. Putting the merits of the rule aside for the moment, I have always been
particularly proud of the court in those days for that willingness to experiment. For it
was clear to almost all of us that the old test for responsibility was inadequate.
And yet we could not with confidence announce the perfect alternative. In those
circumstances, surely it is wrong to continue with a bad rule merely for want of
one guaranteed to be better....
The immediate impact of our Durham experiment was to open the courthouse
door to a wide range of information bearing on the question of criminal responsibility.
With a broader legal test, more information became relevant to the
question. We soon found, however, that, by casting the test wholly in terms of
mental illness, we had unwittingly turned the question of responsibility over to the
psychiatric profession; for mental illness is a very loose term with different
meanings for different psychiatrists. When the only expert witnesses at trial testified
that the defendant was mentally ill, according to their own unstated definitions
of that term, the court felt strong pressure to direct a verdict of not guilty by
reason of insanity. And when the only witnesses at trial had a narrow notion of
mental illness and testified that the defendant was not mentally ill, the court had
no basis for rejecting that conclusion either. When the experts disagreed, the
court was left to choose between them without any standard for evaluating their
testimony. As the Durham years progressed, it became increasingly apparent
that the insanity defense was entirely in the hands of the experts involved in a
particular case. That state of affairs pleased no one....
In some seventeen years of experimentation with the insanity defense, we've
been unable to devise a simple scientific test that can be mechanically applied.
Many of us have been forced to conclude that criminal responsibility, like negligence,
is at bottom a concept that can only be determined by reference to
prevailing community standards. (Bazelon, 2006, pp. 653,658-60)
disease" test (he was paranoid schizophrenic with a food addiction), as well as under the
M'Naghten "right-wrong" test.
As Justice Bazelon maintained the Durham rule was an
experiment, one that extended for some eighteen years, from 1954 until
2009, and during which time, a view of criminal responsibility and non-responsibility
was developed.
Fundamentally, the Durham rule was withdrawn for two reasons:
(1) it relied too heavily on the expert testimony of
psychiatrists, rendering judge and jury wholly dependent upon psychiatric
testimony for the determination of criminal responsibility, and
(2) it was as difficult then as it is now to know and attain agreement about what constituted
a "mental disease." The metaphor itself left much to be desired, implying
a distinct and verifiable organic state. Moreover, one could never be
sure which of the disorders listed in the Diagnostic and Statistical Manual of
Mental Disorders qualified. Should stuttering, food addiction, tobacco dependence, and sociopathic
all be considered mental diseases that can produce unlawful acts?
The seeming breadth of the Durham rule created problems that were difficult
to adjudicate and that ultimately, led to its demise.
Looking for treatment?
If you are ready to schedule a FREE Consultation...
I encourage you to access this website
for the treatment I recommend here:
http://www.TheLiberatorMethod.com/