Evil or Ill?

Justifying the Insanity Defence

Lawrie Reznek

• Publisher: Routledge
• Year: 2005
• eBook ISBN: 9781134705771
• Topic: Philosophy
• Subtopic: Philosophy History & Theory

Lawrie Reznek addresses these questions and more in his controversial investigation of the insanity defense in Evil or Ill? Drawing from countless intriguing case examples, he aims to understand the concept of an excuse, and explains why the law excuses certain actions and not others. In his easily accessible and elegant style, he explains that in law, there exists two excuses derived from Aristotle: the excuses of ignorance and compulsion. Reznek, however proposes a third excuse - the excuse of character change. In introducing this third excuse, Reznek raises a controversial possibility - the abolition of the insanity defence.

1

A HISTORY OF CRIMINAL RESPONSIBILITY

BAD DEEDS AND EVIL MINDS

Understanding the concept of insanity requires knowing its conceptual history. Anglo-American law is constitutively historical: past procedure and decisions determine how the present law functions (Smith, 1981). For this reason, understanding the history is to understand the law. According to Anglo-American law, a person is guilty of a crime if two conditions are satisfied. He must commit a criminal act and have a criminal mind. These two components are called the actus reus and mens rea respectively – the bad deed and evil mind. The idea that evil intent is necessary for a crime is cited as far back as Bractin in his thirteenth-century treatise On the Laws and Customs of England: ‘a crime is not committed unless the will to harm be present.’ This is the doctrine of mens rea: Actus non facit reum nisi mens sit rea: The act does not make a man guilty unless his mind is guilty. The requirement that a particular state of mind be present for a crime to exist has a fundamentally important consequence: it opens the possibility of excuses in general, and in particular the possibility that abnormal states of mind can exculpate. The history of the insanity defence is the history of what states have counted as excuses and why.

Little has changed in 150 years. When M’Naghten was found NGRI in 1843, there was a public outcry. The Illustrated London News noted that ‘within the previous three years there had been five assassination attempts, three against the sovereign, and not a single criminal had been duly punished’. The House of Lords was moved to draw up the M’Naghten Rules defining insanity. In 1981, Hinckley was found NGRI, provoking a similar outcry. President Reagan, who had been wounded, instructed the Attorney General to propose new legislation to reform the insanity defence and ‘restore the balance between the forces of law and the forces of lawlessness’. These reforms led to an insanity defence that was none other than a rewording of the M’Naghten Rules!

THE EMERGENCE OF LEGAL INSANITY

There are two sorts of insanity. A person can be judged insane when he is out of touch with reality (because he is deluded or hallucinating), or when he is considered to be so mentally ill as to lack responsibility. The former is a medical concept and the latter a legal one. ‘Insanity’ is nowadays used only to refer to the legal concept, and I will follow this usage. But initially the word had a medical usage too. The earliest case illustrating the distinction arose when Edward Arnold, known locally as ‘Crazy Ned’ for his bizarre behaviour, shot and wounded Lord Onslow in 1724. He believed Onslow had sent imps and devils to disturb his sleep and appetite. Arnold planned the crime, buying shot and powder, announcing: ‘God damn him, if I see him I will shoot my Lord Onslow.’ In his trial, Mr Justice Tracy followed the bible of criminal law, Hale’s History of the Pleas of the Crown:

[S]ome people that have a competent use of reason in respect of some subjects, are yet under a particular dementia in respect of some particular discourses … [T]his partial insanity seems not to excuse … The best measure that I can think of is this: such person as, labouring under melancholy distempers, hath yet ordinarily as great understanding as ordinarily a child of fourteen years hath, is such a person as may be guilty of treason or felony.

(Walker, 1968: 38)

Being deluded or suffering from ‘partial insanity’ (a medical concept) did not amount to exculpatory insanity (the legal concept). The law stated that in order for mental illness to excuse, it had to reduce understanding to that of a 14-year-old. This age was chosen because in English common law, a child under that age was presumed to be unable to distinguish right from wrong. This made the insanity defence cognitive: Someone is NGRI if they were unable to distinguish right from wrong. In his final address to the jury, Mr Justice Tracy instructed them thus:

If he was under the visitation of God, and could not distinguish between good and evil, and did not know what he did, though he committed the greatest offence yet he could not be guilty of any offence against any law whatsoever: for guilt arises from the mind, and the wicked will and intention of the man … [I]t is not every frantic and idle humour of a man that will exempt him from justice … it must be a man that is totally deprived of his understanding and memory, and doth not know what he is doing, no more than an infant, than a brute or wild beast, such a one is never the object of punishment.

(Walker, 1968: 56)

The cognitive test Tracy articulated became known as the ‘Wild Beast Test’ of insanity, and the jury used it to convict Arnold. He was sentenced to death, but Lord Onslow intervened and the sentence was commuted to life imprisonment. Arnold was clearly insane in the medical sense but was judged legally sane.

On 15 May 1800 Hadfield stood up in the Drury Lane theatre and fired a pistol at King George III, missing his head by a foot. He was labouring under the delusion that God would destroy the world unless he sacrificed himself. Believing that suicide was a mortal sin, he decided to shoot at the king, knowing that attempted regicide was punishable by death. He was tried six weeks later, having the brilliant lawyer, Thomas Erskine, as his counsel. Erskine had evidence that Hadfield was mentally ill – he had received a penetrating head wound in the war against the French making him deranged, but Erskine knew Hadfield did not pass the Wild Beast Test. Although Hadfield was deluded (or medically insane), he knew he was breaking the law. In fact, it was precisely because the act was illegal that he had performed it. Erskine’s tactic was instead to argue that madness could be partial and not reduce men to helpless idiots, but still excuse. The jury was convinced and Hadfield was acquitted.

Acquitting the mentally ill created the problem of disposition. Prior to 1800, mental asylums were few and most insane offenders were sent to jail. Of those ending up in asylums, most were discharged after 12 months, even if uncured. The vagrancy legislation of 1744 allowed two judges to order the detention of an offender as a dangerous lunatic, but the common law only allowed his detention until he had recovered. This led to dangerous lunatics being released during ‘lucid intervals’, and the Attorney General pointed to ‘several instances of His Majesty’s subjects having lost their lives for want of a due provision in this respect’ (Walker, 1968: 78). Hadfield’s judge, Lord Kenyon, did not want him released early:

The prisoner, for his own sake, and for the sake of society at large, must not be discharged; for this is a case which concerns every man of every station, from the king upon the throne to the beggar at the gate; people of both sexes and of all ages may, in an unfortunate frantic hour, fall a sacrifice to this man, who is not under the guidance of sound reason; and therefore it is absolutely necessary for the safety of society that he should be properly disposed of.

(Walker, 1968: 78)

As a result of this decision, an act of parliament hastily established the existence of the special verdict – NGRI – allowing Hadfield to be committed indefinitely to Bethlem. Hale’s view that ‘partial insanity’ cannot excuse had been overturned.

The existence of the statutory special verdict was important for a number of reasons. Walker explains:

From the jurisprudential point of view, the statutory special verdict was an attempt at a compromise between two traditional alternatives. It purported to be an acquittal, for it used the words ‘not guilty’. On the other hand, it was an acquittal in name only, for it tacitly admitted that the doctrine of mens rea could not safely be applied to the insane. A criminal lunatic might be as morally innocent as a man who had done harm by accident or in self-defence, but the danger of treating him as innocent was too great. The solution was to pay lip-service to his innocence but use the law to make sure he remained in custody … From the judicial point of view, Hadfield – or rather Erskine – established the doctrine that in order to be excused on the grounds of insanity the accused need not be shown to have lacked all understanding, or the ability to distinguish between right and wrong, but could be proved to have suffered from a delusion which prompted his act.

(Walker, 1968: 81)

Contra Walker, the insanity defence was not an acquittal in name only – until the death sentence was abolished, it enabled a defendant to escape the gallows. In any event, Hadfield’s case established that the presence of a delusion could be sufficient to undermine criminal responsibility.

The best known of all insanity trials is that of the Scottish wood-turner, Daniel M’Naghten, who in 1843 fatally wounded Edward Drummond, private secretary to the English Prime Minister, Sir Robert Peel. He believed the Tories, orchestrated by Peel, had been persecuting him for six years. He bought a pair of pistols and on 20 January, mistaking Drummond for Peel, followed him up Whitehall to his bank and shot him in the back. Drummond died five days later. When examined at Bow Street, M’Naghten gave this statement to the police:

The Tories in my native city have compelled me to do this. They follow and persecute me wherever I go, and have entirely destroyed my peace of mind. They followed me to France, into Scotland and all over England; in fact they follow me wherever I go … They have accused me of crimes of which I am not guilty; in fact they wish to murder me. It can be proved by evidence. That’s all I have to say.

(Walker, 1968: 91)

On 3 March, M’Naghten went on trial, defended by one of the most able counsels of the time, Alexander Cockburn, with Chief Justice Tindal and two other judges presiding.

In his opening address, the Solicitor General favourably cited Hale on insanity, and dismissed Erskine’s reasoning in Hadfield’s trial as a misleading statement of the law – if a delusion did not lead to an inability to distinguish right from wrong, it was no defence. Cockburn’s task was difficult – M’Naghten’s statement to the police indicated he knew precisely what he was doing and that it was illegal. Cockburn enlisted the testimony of Dr Monro of Bethlem, who argued that M’Naghten’s illness was ‘sufficient to deprive the prisoner of all self-control’. Cockburn argued that M’Naghten was insane because he lacked self-control:

I trust that I have satisfied you by these authorities that the disease of partial insanity can exist – that it can lead to a partial or total aberration of the moral senses and affections, which may render the wretched patient incapable of resisting the delusion, and lead him to commit crimes for which morally he cannot be held responsible.

(Walker, 1968: 94)

All this did not impress Judge Tindal, who reminded the jury that they should find M’Naghten guilty if he had been able to distinguish right from wrong.

The jury returned a verdict of NGRI, and the public outcry that followed led the House of Lords to call upon fifteen judges of the Queen’s Bench to clarify the legal position regarding the criminal responsibility of the mentally ill. The House of Lords put five questions to the judges: (1) What is the law pertaining to persons acting on delusions who know they are acting contrary to the law? (2) What are the proper questions to be put to the jury? (3) In what terms should the question of the person’s state of mind be put to the jury? (4) If a person is deluded as to the facts, is he thereby excused? And (5) Can a psychiatrist who never saw the person prior to the trial be asked his opinion as to the state of the person’s mind at the time the crime was committed? Lord Chief Justice Tindal gave the views of the judges on questions (1) and (4):

[W]e think he must be considered in the same situation as to responsibility as if the facts with respect to which the delusion exists were real. For example, if under the influence of his delusion he supposes another man to be in the act of attempting to take away his life, and he kills that man, as he supposes, in self-defence, he would be exempt from punishment. If his delusion was that the deceased had inflicted a serious injury to his character and fortune, and he killed him in revenge for such supposed injury, he would be liable to punishment.

(Walker, 1968: 99)

Tindal answered questions (2) and (3) together:

[E]very man is to be presumed to be sane, and to possess a sufficient degree of reason to be responsible for his crimes, until the contrary be proved to their satisfaction; and that to establish a defence on the ground of insanity, it must be clearly proved that, at the time of the committing of the act, the party accused was labouring under such a defect of reason, from disease of the mind, as not to know the nature and quality of the act he was doing; or, if he did know it, that he did not know he was doing what was wrong.

(Walker, 1968: 100)

Finally, he answered question (5):

[W]e think the medical men, under the circumstances supposed, cannot in strictness be asked his opinion in terms above state, because each of those questions involves the determination of the truth of the facts deposed to, which it is for the jury to decide, and the questions are not mere questions upon a matter of science, in which case such evidence is admissible.

(Walker, 1968: 102)

This last answer carefully differentiated medical from legal insanity – a psychiatrist might be qualified to decide the former factual matter, but the latter evaluative issue was a matter for the courts.

These answers, establishing a purely cognitive test, have become known as the M’Naghten Rules. They establish a complex relationship between medical insanity and legal insanity, as the answer to questions (1) and (4) outline. Medical insanity does not imply legal insanity, but medical insanity does not have to reduce understanding to that of a 14-year-old to qualify as legal insanity. Curiously, the jury used a volitional test in finding M’Naghten NGRI. Erskine conceded that M’Naghten knew what he was doing, but argued that he could not stop himself acting on his delusions. Even more curiously, had the M’Naghten Rules been followed in M’Naghten’s case, the jury would have found him sane! Nevertheless, the M’Naghten Rules have dominated legal thinking on both sides of the Atlantic for 150 years, preventing non-cognitive tests of insanity being recognized.

THE INVENTION OF DIMINISHED RESPONSIBILITY

Until the notion of Diminished Responsibility (DR) was introduced, Anglo-American law operated with a dichotomous system. If someone intentionally committed the offence, he was either sane and guilty, or insane and not guilty. There was no room for intermediate verdicts such as a little insane and a little guilty. The Scots were the first to introduce the notion of DR, and it has since been entrenched into English law, supplanting the use of the M’Naghten’s Rules (Dell, 1984).

Although the Scots were ‘ahead’ in this respect, many English commentators were aware of the defects of the Rules and criticized their exclusively cognitive definition. A mentally ill person who was unable to control his behaviour – who suffered from ‘irresistible impulses’ – was legally sane according to the Rules. Talk of irresistible impulses offended lawyers, as the young barrister Fitzjames Stephen explained to the Juridical Society in 1855: ‘There may have been many instances of irresistible impulse of this kind, although I fear there is a disposition to confound them with unresisted impulses’ (Walker, 1968: 105). However, when Stephen embarked on the codification of English criminal law, he was convinced that it should exempt an offender who had been ‘prevented by disease affecting the mind … from controlling his own conduct.’ In his History of the Criminal Law of England, he felt that the M’Naghten Rules were an incomplete statement of the law:

If it is not, it ought to be the Law of England that no act is a crime if the person who does it is at the time … prevented either by defective mental power or by any disease affecting his mind from controlling his own conduct, unless the absence of the power of control has been produced by his own default.

(Walker, 1968: 106)

In this respect, he followed Cockburn’s defence of M’Naghten. Stephen actually suggested that ‘the law ought … where madness is proved, to allow the jury to return any one of three verdicts: Guilty; Guilty, but his power of self-control was diminished by insanity; Not Guilty on the ground of insanity’ (Walker, 1968: 147). If his suggestion had been adopted, the defence of DR would have been introduced into English Law 70 years earlier than it was.

The landmark case in Scotland arose when Dingwall, an alcoholic who suffered from attacks of delirium tremens, married an older woman who tried to temper his drinking. Things came to a head on New Year’s Eve, 1866. After consuming his daily allowance of whisky (a glass before each meal) he went out to drink half a dozen more glasses with neighbours – on Hogmanay, Scottish custom dictates that households offer whisky to whoever presents themselves at the door. He returned with a bottle of whisky, but when his wife hid it, a quarrel followed and he stabbed h...

Table of contents

• Cover
• Halftitle
• Title
• Copyright
• Dedication
• Contents
• Preface
• Introduction: The Diagnosis of Evil
• 1 A History of Criminal Responsibility
• 2 A Taxonomy of Defences
• 3 Ignorance as an Excuse
• 4 Compulsion as an Excuse
• 5 Automatism as an Excuse
• 6 The Justification of Excuses
• 7 Causality as an Excuse
• 8 The Reductionist Theory
• 9 Irrationality as an Excuse
• 10 The Concept of Disease
• 11 Character Change as an Excuse
• 12 The Clash of Paradigms
• 13 The Insanity Defence in Practice
• Conclusion: Psychiatric Justice
• Bibliography
• Index