Throughout its history, the insanity defense specifically and the more general concept of mental defect or incompetence have been grounded in the assumption that those people fit for the rule of law are able to give and to comprehend reasons for their actions. This chapter traces the evolution of perspectives on the nature of mental illness and the manner in which cultural and extra-scientific influences have shaped perspectives. These perspectives are most saliently expressed in statutory provisions and relevant (...) case law summarized here and covering historical developments from ancient Greece and Rome to the present. Significant interactions between law and psychiatry are further highlighted and informed by core and controversial philosophical assumptions. Attention is given to differences between juridical and medical conceptions of responsibility. (shrink)

The insanity defense presents many difficult questions for the legal system. It attracts attention beyond its practical significance (it is seldom used successfully) because it goes to the heart of the concept of legal responsibility. “Not guilty by reason of insanity” generally requires that as a result of mental illness the defendant was unable to distinguish right from wrong at the time of the crime. The many difficult and complex questions presented by the insanity defense (...) have led some in the legal community to hope that neuroscience might help resolve some of these problems, but that hope is not likely to be realized. (shrink)

Book reviewed in this article: The Insanity Defense and the Trial of John W. Hinckley, Jr. By Lincoln Caplan.

I attempt to describe and defend an alternative definition of insanity. I claim that my definition follows from an adequate general understanding of legal excuse and that it describes correctly the question that jurors in the recent Andrea Yates case and others like it ought to be faced with. My essay has three parts. In the first, I briefly criticize M'Naghten- and Durham-inspired insanity statutes. In the second, I sketch and defend a general understanding of legal excuse and (...) try to show how an adequate insanity statute follows from it. Finally, in the third section, I describe and defend a rough version of the statute itself. In the course of doing so, I try to explain why I believe that statute is superior to the American Law Institute's various model insanity statutes. (shrink)

"An American psychologist, Daniel N. Robinson, traces the development of the insanity plea...[He offers] an assured historical survey." Roy Porter, The Times [UK] "Wild Beasts and Idle Humours is truly unique. It synthesizes material that I do not believe has ever been considered in this context, and links up the historical past with contemporaneous values and politics. Robinson effortlessly weaves religious history, literary history, medical history, and political history, and demonstrates how the insanity defense cannot be fully (...) understood without consideration of all these sources." Michael L. Perlin, New York Law School "Daniel N. Robinson has written a graceful history of insanity and the law stretching from Homer to Hinckley. He attempts no final theory as to how the law should cope with the insane; he seeks, rather, to use the shifting notions of when madness exculpates criminal activity to illuminate the core self-perceptions of the cultures developing ever-evolving resolutions of the problem...[T]he grandeur of the theme...commands attention and respect." --Neal Johnston, The Nation . (shrink)

Criminal responsibility refers to a person’s ability to understand his action, behavior at the time a crime is committed, what a person is thinking when he commits a crime or the expected result when a crime is committed. Crime is defined in terms of an act or omission (actus reus) and a mental state (mens rea). In this paper, is presented the general concept of irresponsibility and essentially reduced responsibility as a reason to be exempted from the punishment provided by (...) the Criminal Code. Any perpetrator of a criminal offense who is capable of undertaking any action can be an active subject of a criminal offense, with the fact that regarding their sanctioning by the criminal system is concerned there are some restrictions related to age as well as dividing the perpetrators into responsible and non-responsible ones. For a person to be convicted of a crime, there must be evidence that proves his guilt, and that proves whether the perpetrator was in a regular state of mind or committed the criminal offense due to his irresponsibility. Another important element of this scientific paper is the historical aspects of how irresponsibility has been treated from the customary law to the present day, a huge focus gets also the treatment of the biological-psychological concept on one hand and the treatment of the legal concept on the other hand for this category of people. A criminal defendant who turns out to have been incapacitated at the time he committed a crime may be acquitted because of his incapacity, or he may be sentenced leniently because he was unable to understand the importance of his actions. Legally, the defendant must prove and convince the court that he was not able to understand his actions, or he is not able to distinguish right from wrong, or he must prove that he committed the act in uncontrolled impulses. (shrink)

Book reviewed in this article: Madness and the Criminal Law. By Norval Morris. The Insanity Plea: The Uses and Abuses of the Insanity Defense. By William J. Winslade and Judith Wilson Ross.

The defence of necessity has had a long, though confused, legal career. Like self-defence, consent, duress, insanity and mistake of law, necessity is rooted in moral intuitions about when conduct which causes harm to another's person or property is not wrong, or should be tolerated, permitted or praised. If a man is literally starving to death and steals a loaf of bread, we are reluctant to say that his extreme circumstances should make no difference at all to the way (...) we treat him at trial. And if two men, adrift at sea, are clinging to a log which can only support the weight of one, we are once again reluctant to say that if one pushes the other off the log, it is just a case of murder. These intuitions are deepseated; but it is extremely difficult to articulate the defence they seem to support, or to isolate the circumstances which mark the difference between a situation where the defence ought to apply and where it ought not. (shrink)

We explicate and evaluate arguments both for and against the insanity defense itself, different versions of the insanity defense (M'Naghten, Model Penal Code, and Durham (or Product)), the Irresistible Impulse rule, and various reform proposals.

The question of whether psychopaths are criminally and morally responsible has generated significant controversy in the literature. In this paper, we discuss what relevance a psychopathy diagnosis has for criminal responsibility. It has been argued that figuring out whether psychopathy is a mental illness is of fundamental importance, because it is a precondition for psychopaths’ eligibility to be excused via the legal insanity defense. But even if psychopathy counts as a mental illness, this alone is not sufficient to (...) show the insanity defense is applicable; it must also be shown that, as a result of the illness, specific deficits in moral understanding or control are present. In this paper, we show that a diagnosis of psychopathy will generally not indicate that a defendant is eligible for an insanity defense. This is because the group of individuals subsumed under the diagnosis is so heterogeneous that while some psychopaths do show significant impairments in affect and control which may impact on their responsibility, many psychopaths are not incapacitated in a way relevant to responsibility. (shrink)

This book examines core issues related to legal insanity, integrating perspectives from psychiatry, law, and ethics. Various criteria for insanity are analyzed and recommendations for forensic psychiatric and legal practice are offered. Many legal systems have an insanity defense, in one form or another. Still, it remains unclear exactly when and why mental disorders affect a person’s moral or criminal responsibility. Questions addressed in this book include: Why should insanity be a component of our legal (...) system? What should be the criteria for an insanity defense? What would be the reasons for abolishing it? Who should bear the burden of proof? Furthermore, the book discusses the impact neurosciences may have on psychiatric and psychological evaluations of defendants as well as on legal decisions about insanity. (shrink)

This Article falls into three general parts. The first part starts with an important question: is the insanity defense constitutionally required? The United States Supreme Court will finally try to answer this question next term in the case of Kahler v. Kansas. -/- I say “finally” because the Court refused to answer this question in 2012 when it denied certiorari to an appeal brought by John Joseph Delling, a severely mentally ill defendant who was sentenced to life in (...) prison three years earlier for two murders. Delling never had the opportunity to plead the insanity defense because his home state, Idaho, had abolished it in 1982. -/- By depriving Delling of the right to plead insanity, Idaho violated Delling’s Fourteenth Amendment right to due process and his Eighth Amendment right against “cruel and unusual” punishment. Naturally, the same is true for many other mentally ill and disabled defendants who have been prosecuted in Idaho and in the other three states that have abolished the insanity defense: Kansas, Montana, and Utah. -/- The second general part of this Article notes an insight that I stumbled upon in the course of researching the first part: the insanity defense and the mistake of law defense both require ignorance of the law, what I refer to as “normative ignorance.” Indeed, normative ignorance is what makes both of these defenses exculpatory in the first place. -/- Given this critical connection, there is a way for Idaho, Kansas, Montana, and Utah to resume compliance with the Constitution. Instead of reinstating the insanity defense per se, which might be politically unpopular, they should just broaden their mistake of law defense to include normative ignorance caused by cognitive incapacity that is itself caused by mental illness or disability. -/- Still, this Article is not merely directed at these four western states. It is directed at the other forty-six states as well. Because they already have an insanity defense, they need not incorporate it into their mistake of law defense. But in the third general part, I will argue that they should still expand their mistake of law defense to cover defendants who either lack a reasonable opportunity to learn the law or reasonably but mistakenly infer from widely accepted norms or ethics that their conduct is lawful. (shrink)

In this chapter we will argue that the capacities necessary to moral and legal agency can be understood as executive functions in the brain. Executive functions underwrite both the cognitive and volitional capacities that give agents a fair opportunity to avoid wrongdoing: to recognize their acts as immoral and/or illegal, and to act or refrain from acting based upon this recognition. When a person’s mental illness is serious enough to cause severe disruption of executive functions, she is very likely to (...) lack substantial capacities necessary to be law-abiding. Our analysis supports the Model Penal Code test for legal insanity over the traditional M’Naghten test, because the Model Penal Code test allows either severely diminished cognitive or volitional capacities to warrant an excuse to criminal culpability. We will provide a nuanced account of the ways in which mental illness can erode executive function, as well as an explanation as to why severe diminishment of executive functions caused by mental illness, but not some other causes, is exculpatory. (shrink)

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. (shrink)

In the Insanity Defence Woody Allen claims that when we say humans are mortal we are obviously not complimenting them. It is difficult to contradict great comedy, of course, but if what I argue holds, Allen is wrong on this account. Mortality is a compliment – or at least something for which we should be grateful – since life without it threatens with disaster. To live without death also means living in the universe in its more hostile stages under (...) conditions where there can be no meaningful life. In this way, immortality is worse than death. In addition, I argue that no matter how carefully we qualify the conditions that make up immortality the old problem of death resurface. I therefore conclude, with a nod towards Voltaire, that if death did not exist, it would have been necessary to invent it. (shrink)

In his accompanying article, Dr. Kinscherff has convincingly demonstrated why a categorical exclusion of personality disorders from the definition of “mental disease” in insanity defense adjudication is arbitrary, both conceptually and clinically. He explains his position in the context of a vignette involving a hypothetical defendant, Wilhelmina Sykes, charged with ramming her car into another car obstructing her path, causing serious injury to its driver. Dr. Kinscherff correctly points out that the determinative issue in applying the insanity (...) defense in any case, including the hypothetical case involving Ms. Sykes, is whether the defendant experienced a legally relevant functional impairment at the time of the offense. In many states — and in the hypothetical jurisdiction in which Ms. Sykes is being prosecuted — the relevant functional impairments are those that could have affected her ability “to appreciate the wrongfulness of her conduct” or “to conform her conduct to the requirements of the law. (shrink)

Ira Brevis furor, said the Latins: anger is a brief bout of madness. There is a long tradition that views all emotions as threats to rationality. The crime passionnel belongs to that tradition: in law it is a kind of “brief-insanity defence.” We still say that “passion blinds us;” and in common parlance to be philosophical about life's trials is to be decently unemotional about them. Indeed many philosophers have espoused this view, demanding that Reason conquer Passion. Others — (...) from Hume to the Emotivists — have appeared to reverse this hierarchy.” But those philosophers who refuse to join in the general denigration of emotion as irrational usually share the presupposition that the role of rationality is limited to the calculation of means. In so far as emotions are concerned with the determination of ends, they remain, on this view, beyond the pale of rationality. Modern decision theorists have worked out schemes to assess the rationality of desires, as well as actions, against the background of beliefs and other desires.1 But these schemes leave no room at all for emotions, except, by implication, as disrupters of the rational process. (shrink)

In physics, we use the same laws to explain why airplanes fly, and why they crash. In psychiatry, we use one set of laws to explain sane behaviour, which we attribute to reasons (choices), and another set of laws to explain insane behaviour, which we attribute to causes (diseases). God, man's idea of moral perfection, judges human deeds without distinguishing between sane persons responsible for their behaviour and insane persons deserving to be excused for their evil deeds. It is hubris (...) to pretend that the insanity defence is compassionate, just, or scientific. Mental illness is to psychiatry as phlogiston was to chemistry. Establishing chemistry as a science of the nature of matter required the recognition of the non-existence of phlogiston. Establishing psychiatry as a science of the nature of human behaviour requires the recognition of the non-existence of mental illness. (shrink)

Theoretical arguments that psychopathy eliminates individual responsibility for illegal behavior and can therefore serve as a basis for an insanity defense are largely premised on emotional characteristics of psychopathy that impede the individual’s capacity to appreciate right from wrong. We offer arguments and countervailing evidence indicating psychopaths do have the capacity to appreciate right from wrong and therefore should not be absolved of criminal responsibility.

Whether psychopathy is a mental disease or illness can affect whether psychiatrists should treat it and whether it could serve as the basis for an insanity defense in criminal trials. Our understanding of psychopathy has been greatly improved in recent years by new research in psychology and neuroscience. This illuminating research enables us to argue that psychopathy counts as a mental disease on any plausible account of mental disease. In particular, Szasz's and Pickard's eliminativist views and Sedgwick's social (...) constructivist account of mental illness that might exclude psychopathy are not plausible, and there is no reason to exclude psychopathy under Boorse's and Scadding's biomedical accounts, Wakefield's harmful dysfunction account, and the DSM-IV-TR objective harm account of mental disease. The basic reason is that psychopathy involve neural dysfunction that increases risk of serious harm and loss to people with psychopathy. (shrink)

In the present manuscript, we comment upon a paper that strongly criticized an expert report written by the consultants of the defense in a case of pedophilia, in which clinical and neuro-scientific data were used to establish the causal link between brain alterations and onset of criminal behavior. These critiques appear to be based mainly on wrong pieces of information and on a misinterpretation of the logical reasoning adopted by defense consultants. Here we provide a point-by-point reply to (...) the issues raised in the above paper and also discuss the potential role that neuroscience may contribute in the forensic context. Did the forensic neuroscience defense consultants claim the existence of a deterministic relationship between brain structure or function and behavior? How did the neuroscientific logic work in this specific case? How may the classic psychiatric/neurologic examination and neuroscientific evidence work side by side? Does the rarity of a disease impact on the causal relationship between the disease and the crime? Do neuroscientific data need to be interpreted? We address the above questions and conclude that neuroscience may strengthen the results of psychiatric evaluations, thus reducing uncertainty in the forensic settings. (shrink)

«Hva er det vi egentlig mener når vi sier, mennesket er dødelig?» spør Woody Allen i boken The Insanity Defence. Han legger til: «Det er åpenbart ikke et kompliment.»1 Jeg tror Woody tar feil her. Vår dødelighet er et kompliment – eller i det minste av det gode – siden livet uten døden ville være katastrofalt. Udødelige liv fører til dyp kjedsomhet, eksistensiell angst og en radikal form for verdinihilistisk tilværelse. Grunnen er at udødeligheten gjør at vi en gang (...) i fremtiden må konfronteres med de radikalt livsfiendtlige stadiene av universets historie. Jeg argumenterer for at dette er en skjebne langt verre enn døden. Konklusjonen blir derfor, med et nikk til Voltaire, at om døden ikke hadde eksistert, hadde vi vært nødt til å finne den opp. (shrink)

This book is psychiatry's reply to the diverse group of antipsychiatrists, including Laing, Foucault, Goffman, Szasz and Bassaglia, that has made fashionable the view that mental illness is merely socially deviant behaviour and that psychiatrists are agents of the capitalist society seeking to repress such behaviour. It establishes, by the use of evidence from historical and transcultural studies, that mental illness has been recognised in all cultures since the beginning of history and goes on to explore the philosophical and medical (...) basis for psychiatry's diagnosis and treatment of mental illness. Finally, it tackles two issues where psychiatry has recently been seen as at odds with the values prevailing in society: involuntary hospitalization and the insanity defence. The Reality of Mental Illness does not pretend to offer simple answers to the complex problems it discusses, but will leave the reader with a much greater understanding of psychiatry's aims, practices and problems. (shrink)

Psychopathy is typically characterized as a constellation of deviant personality traits and behavioral tendencies. The link between psychopathic personality traits and pervasive antisocial behavior raises a crucial question concerning the legal accountability of offenders with psychopathy. Some argue that the unique clinical profile and neurobiological peculiarities of individuals with psychopathy mitigate their responsibility, while others maintain that current scientific knowledge does not support the use of psychopathy as an exculpatory condition for criminal offending. Our overview mainly centeres on whether offenders (...) with psychopathy can be considered legally insane. In this regard, our overview suggests that there is still an ongoing debate whether psychopathy should be used as a legally relevant construct for determining criminal responsibility. Moreover, our discussion indicates that careful attention should be put on empirical and conceptual issues surrounding the role of (neuro)scientific data for determining whether individuals with psychopathy should be considered criminally blameworthy for their wrongdoings. (shrink)

Should offenders with psychopathy or those exhibiting extreme forms of antisocial behav- iour be considered criminally responsible? The current debate seems to have reached a stalemate. Several scholars have argued that neuropsychologi- cal data on individuals with psychopathy might be relevant for determining their criminal responsibil- ity. However, relying on such data has not produced a consensus among legal scholars and philosophers on whether individuals with psychopathy should be excused from responsibility. We offer a diagnosis about why this debate has (...) reached a standoff. We argue that part of the problem is that psychopathy, being a syndrome-based category, is too heterogeneous and thus offers low prospects for being integrated with neuropsychological data that might support significant conclusions about the criminal responsibility of individuals with psychopathy. Moreover, the construct of psychopathy was not originally devised to discriminate criminally accountable from unac- countable antisocial individuals. To overcome these difficulties and advance the debate, we extend a currently less discussed theoretical framework for bridging biopsychology and the law that focuses on neuropsychological constructs, domains, and processes that directly measure capacities of offenders that are relevant for criminal responsibility, without necessarily relying on mediating syndrome-based constructs. The novelty of our contribution is that the biopsy- chological bases of exculpation can be further devel- oped and used for determining more fine-grained cat- egorisations of antisocial personality types. We show how this framework provides guidelines for inter- disciplinary research that can significantly advance our understanding of the preconditions for criminal responsibility and help the legal practice of ascribing or withholding it. (shrink)

It is common for philosophers to argue that psychopaths are not morally responsible because they lack some of the essential capacities for morality. In legal terms, they are criminally insane. Typically, however, the insanity defense is not available to psychopaths. The primary reason is that they appear to have the knowledge and understanding required under the M’Naghten Rules. However, it has been argued that what is required for moral and legal responsibility is ‘deep’ moral understanding, something that psychopaths (...) do not have either due to their lacking empathy or practical reason. In the first part of the paper, I argue that psychopaths do not lack the abilities required for deep moral understanding, although they have deficits in those areas. According the M’Naghten Rules, therefore, psychopaths are not insane. Under a less strict formulation of the insanity plea, like the Model Penal Code, however, there is a good case to be made for their lacking substantial capacity. I argue that because psychopathy is an essentially moral disorder, and because of the nature of psychopathic violence, psychopaths should not be excused under the insanity plea. It would be tantamount to excusing someone for committing a crime because they are bad. Arguably, this contravenes the entire system of law. (shrink)

Many legal systems have an insanity defense, which means that although a person has committed a crime, she is not held criminally responsible for the act. A challenge with regard to these assessments is that forensic psychiatrists have to rely to a considerable extent on the defendant's self-report. Could neuroscience be a way to make these evaluations more objective? The current value of neuroimaging in insanity assessments will be examined. The author argues that neuroscience can be valuable (...) for diagnosing neurological illnesses, rather than psychiatric disorders. Next, he discusses to what extent neurotechnological 'mind reading' techniques, if they would become available in the future, could be useful to get beyond self-report in forensic psychiatry. (shrink)

This author shows how the main principle would endorse a new ground-level principle of weak legal paternalism, the most reliable judgment standard, and compares this standard with the most influential nonconsequentialist standard, Joel Feinberg’s voluntariness standard. The most reliable judgment standard will permit legal paternalism if it is reasonable to believe that the subject will or would come to unequivocally endorse it. The chapter illustrates the difference between his and Feinberg’s standards with hypothetical examples of drug and suicide prohibitions. The (...) chapter explains his consequentialist account of autonomy and shows how that account fits the legal standard of autonomy. However, it does not fit the standard statement of the insanity defense. The chapter explains why the insanity defense should be revised. (shrink)

This chapter gives an illustrated overview of recent philosophical work on the concept of delusion. Drawing on a number of case vignettes, examples are given of the wide range of theories that has been advanced to explain this most challenging of experiences. Some have agreed with the philosophical founder of modern descriptive psychopathology, Karl Jaspers, that delusions are “ununderstandable.” The large majority, though, has sought to understand delusion in terms of aberrations of one kind or another either of beliefs or (...) of the grounds or preconditions for beliefs. As a project in understanding, these theories offer helpful insights. A further group of theories focuses on the agential aspects of delusion as reflected, for example, in their role in the insanity defense. Agential theories converge with the person-centered approaches of contemporary empirical and clinical work on delusion. Such approaches bring an additional level of complexity in the form of delusions that are not pathological but adaptive in the life of the person concerned. As such they show the challenge of understanding delusion to be a project not just of understanding but of mutual understanding. (shrink)

In his third and final investigation into the science of belief, bestselling author Michael Shermer tackles the evolution of morality and ethics A century and a half after Darwin first proposed an “evolutionary ethics,” science has begun to tackle the roots of morality. Just as evolutionary biologists study why we are hungry (to motivate us to eat) or why sex is enjoyable (to motivate us to procreate), they are now searching for the roots of human nature. In The Science of (...) Good and Evil , psychologist and science historian Michael Shermer explores how humans evolved from social primates to moral primates, how and why morality motivates the human animal, and how the foundation of moral principles can be built upon empirical evidence. Along the way he explains the im-plications of statistics for fate and free will fuzzy logic for the existence of pure good and pure evil and ecology for the development of early moral sentiments among the first humans. As he closes the divide between science and morality, Shermer draws on stories from the Yanamamo, infamously known as the “fierce people” of the tropical rain forest, to the Aum Shinrikyo cult in Japan, to John Hinckley’s insanity defense. The Science of Good and Evil is ultimately a profound look at the moral animal, belief, and the scientific pursuit of truth. (shrink)

In lieu of an abstract, here is a brief excerpt of the content:Philosophy, Psychiatry, & Psychology 10.2 (2003) 193-194 [Access article in PDF] A Comment on Christopher Ciocchetti:"The Responsibility of the Psychopathic Offender" Daniel W. Shuman Questions of responsibility for serious harm are complex and potentially divisive. The way in which we frame these questions and the criteria by which we assess answers to them are colored, in part, by the lens though which we view them. I am a law (...) professor whose writings includes issues relating to criminal responsibility of person with mentally disabilities and I come to this commentary from that perspective. For me questions of moral responsibility raise psychological and philosophical, as well as legal, questions.Ciocchetti's (2003) paper addressees the criminal responsibility of the psychopathic offender. Not sure quite what the author meant by this label, I began to try to understand the concept of psychopathic offender by picking up my DSM-IV-TR and found no reference to such a diagnostic category. Absent a handy reference in the DSM, I looked in the paper for some other definition or recognition of the category of psychopathic offender and found no satisfactory grounding in any body of sound research. Left with the author's unsupported assertions that such a category of persons exists and that they behave in ways the author asks me to accept without support, my lawyer instincts cautioned me to proceed carefully. The psychopathic offender the author describes might well exist, but I am not persuaded of that, nor would be my legal colleagues, absent proof.Next, to the author's thesis that "[t]he offender must have the capacities necessary to understand relationships to justify holding that offender responsible" (p. 176) and that because psychopaths lack this capacity they should not be held criminally responsible. Is the author proposing a new test for criminal responsibility? Certainly no test for criminal nonresponsibility based on mental disability (i.e., insanity defense) in Anglo-American jurisprudence, or any other with which I am familiar, makes status (i.e., a diagnostic category) exculpatory for criminal responsibility. Rather, every test addresses the impact of a mental illness or disorder on the cognitive or volitional capacity of the offender at the time of the offense. The author offers no reason to reject the approach taken for the last several hundred years [End Page 193] by Anglo-American jurisprudence. Moreover, to the extent that status or diagnostic category is relevant in the insanity defense in Anglo-American jurisprudence, character or personality disorders (the genus to which I take it that psychopathy belongs) are often specifically excluded from consideration. For example, the Texas Penal Code (Tex. Penal Code Ann. § 8.01 (Vernon 1994)) states that:It is an affirmative defense to prosecution that, at the time of the conduct charged, the actor, as a result of a severe mental disease or defect, did not know that his conduct was wrong. The term "mental disease or defect" does not include an abnormality manifested only by repeated criminal or otherwise antisocial conduct.The federal Insanity Defense Reform Act raises the same issue: The government relies on the legislative history of 18 U.S.C. § 17, which states: "The concept of severity was added to emphasize that non-psychotic behavior disorders or neuroses such as an 'inadequate personality,' 'immature personality,' or a pattern of 'antisocial tendencies' do not constitute the defense.".... The government argues that because Dr. Lorenz would have testified that Salava was not psychotic but suffered from antisocial personality disorder, his testimony was not relevant to either prong of the insanity defense under the statute.... As a general matter, the government's point is well-taken. It seems clear that Congress intended by its inclusion of the modifier "severe" to place certain "disorders" outside the purview of the insanity defense altogether. United States v. Salava, 978 F.2d 320, 323 (7th Cir. 1992) Nowhere in the paper does Chiochetti acknowledge or address these societal judgments of moral responsibility that have already rejected a far more modest version of his proposal in categorically ruling out character or personality disorders from inclusion as... (shrink)

Neuroimaging offers great potential to clinicians and researchers for a host of mental and physical conditions. The use of imaging has been trumpeted for forensic psychiatric and psychological evaluations to allow greater insight into the relationship between the brain and behavior. The results of imaging certainly can be used to inform clinical diagnoses; however, there continue to be limitations in using neuroimaging for insanity cases due to limited scientific backing for how neuroimaging can inform retrospective evaluations of mental state. (...) In making this case, this paper reviews the history of the insanity defense and explains how the use of neuroimaging is not an effective way of improving the reliability of insanity defense evaluations. (shrink)

Unlike other treatments of legal punishment, this book takes both an external approach, asking why we punish at all, and an internal approach, considering issues faced by those 'inside' the practice: For what actions should we punish? Should we allow plea-bargaining? the insanity defense? How should sentencing be determined? The two approaches are connected: To decide whether to punish someone who is 'insane', or who cops a plea, we need to ask whether doing so is consistent with our (...) theory of why we punish at all. In connecting theory and practice, I draw on a broad range of thought: radical criticisms of punishment (Nietzsche, Foucault, Marxists), sociological theories (Durkheim, Girard), various philosophical traditions (utilitarian, German Idealism, modern liberalism), and the 'law and economics' movement. Against radical critics who argue we shouldn't punish at all, but who then leave us without an alternative for dealing with crime, I defend the practice, offering a version of retribution (which I distinguish from revenge and non-consequential theories) that holds we punish not to deter, reform, or otherwise augment social utility, but to mete out just deserts, vindicate right, and express society's condemnation of actions it deems blameworthy. I argue that this theory best accounts for how we do punish, and then use this theory to provide immanent criticism of certain features of our actual practice that don't accord with the retributive principle. (shrink)

Unlike other treatments of legal punishment, Punishment: Theory and Practice takes both an external approach, asking why we punish at all, and an internal approach, considering issues faced by those 'inside' the practice: For what actions should we punish? Should we allow plea-bargaining? the insanity defense? How should sentencing be determined? The two approaches are connected: To decide whether to punish someone who is 'insane', or who cops a plea, we need to ask whether doing so is consistent (...) with our theory of why we punish at all. In connecting theory and practice, I draw on a broad range of thought: radical criticisms of punishment (Nietzsche, Foucault, Marxists), sociological theories (Durkheim, Girard), various philosophical traditions (utilitarian, German Idealism, modern liberalism), and the 'law and economics' movement. Against radical critics who argue we shouldn't punish at all, but who then leave us without an alternative for dealing with crime, I defend the practice, offering a version of retribution (which I distinguish from revenge and non-consequential theories) that holds we punish not to deter, reform, or otherwise augment social utility, but to mete out just deserts, vindicate right, and express society's condemnation of actions it deems blameworthy. I argue that this theory best accounts for how we do punish, and then use this theory to provide immanent criticism of certain features of our actual practice that don't accord with the retributive principle. (shrink)

In the United States, when an individual commits a criminal act, there are due processes to assess their responsibility and respective punishment. However, if that individual was unable to conform to the necessary standards due to symptoms caused by a mental illness, they may be excused or exempt from standard legal punishment. While we may not want to hold certain individuals responsible, or in some courtrooms, “not guilty by reason of insanity,” how should they be punished? Should they be (...) considered not legally responsible, but still morally responsible? -/- In this chapter, I explore how to navigate legal and moral responsibility, how the insanity defense operates in a few different contexts in the U.S. legal system, and most importantly, how individuals with mental illnesses are mistreated in the U.S. justice system. I demonstrate that present practices in fact exacerbate the challenges faced by individuals with mental illnesses rather than alleviate them through rehabilitation. It is my hope to contribute to the call for action amongst scholars, clinicians, and arbitrators of the law to work towards more equitable treatment of mental illness inside and beyond the courtroom. (shrink)

The McNaughton rules for determining whether a person can be successfully defended on the grounds of mental incompetence were determined by a committee of the House of Lords in 1843. They arose as a consequence of the trial of Daniel McNaughton for the killing of Prime Minister Sir Robert Peel’s secretary. In retrospect it is clear that McNaughton suffered from schizophrenia. The successful defence of McNaughton on the grounds of mental incompetence by his advocate Sir Alexander Cockburn involved a profound (...) shift in the criteria for such a defence, and was largely based on the then recently published scientific thesis of the great US psychiatrist Isaac Ray, entitled A Treatise on the Medical Jurisprudence of Insanity. Subsequent discussion of this defence in the House of Lords led to the McNaughton rules, still the basis of the defence of mental incompetence in the courts of much of the English-speaking world. This essay considers one of these rules in the light of the discoveries of cognitive neuroscience made during the 160 years since Ray’s treatise. A major consideration is the relationship between the power of self-control and irresistible impulse as conceived by Cockburn on the one hand, and by cognitive neuroscience on the other. The essay concludes with an analysis of the notion of free will and of the extent to which a subject can exert restraint in the absence of particular synaptic connections in the brain. (shrink)

In the months after Donald Trump's election, Hannah Arendt's seminal work, The Origins of Totalitarianism crashed onto the Amazon bestseller lists. "Never has our future been more unpredictable," she had written in the preface to the first edition in 1951, "never have we depended so much on political forces that cannot be trusted to follow the rules of common sense and self-interest - forces that look like sheer insanity, if judged by the standards of other centuries." With an uncannily (...) accurate prescience, Arendt's dark history of her times seemed to be describing the insanity of our own. Arendt would've recognized the extremes of the twenty-first century from her own: the disenchantment with politics; the rise of conspiracy theories; self-censorship; powerlessness; tyranny and occupation, the climate catastrophe, the banality of evil. She had lived through it already. Born in the first decade of the last century, just before it lurched into war, she escaped Fascist Europe to make a new life for herself in America, where she became one its most influential-and controversial-public intellectuals. She wrote about power and terror, exile and love, and above all about freedom. Hannah Arendt wrote, and thought, in order to engage directly with the political chaos of her time. Questioning - thinking - was her first defence against tyranny. Her approach was to change the world by examining it unflinchingly, and not simply to criticise and protest. It is this defiance that attracts so many to her work today. (shrink)

The Council for Secular Humanism identifies Secular Humanism as a "way of thinking and living" committed to rejecting authoritarian beliefs and embracing "individual freedom and responsibility... and cooperation." The paradigmatic practices of psychiatry are civil commitment and insanity defense, that is, depriving innocent persons of liberty and excusing guilty persons of their crimes: the consequences of both are confinement in institutions ostensibly devoted to the treatment of mental diseases. Black's Law Dictionary states: "Every confinement of the person is (...) an 'imprisonment,' whether it be in a common prison, or in private house, or in the stocks, or even by forcibly detaining one in the public streets." Accordingly, I maintain that Secular Humanism is incompatible with the principles and practices of psychiatry. (shrink)

“FITNESS FOR THE RULE OF LAW” lends itself to a variety of treatments. I should make clear at the outset one treatment that I do not intend to provide under this heading, even if it is implicitly represented here and there in this essay. I will not examine psychological or psychiatric conceptions of “fitness” as these are featured in, for example, the “insanity defense” or in tests of testamentary capacity. A recent book of mine explores these issues in (...) some historical and analytical detail, but this is a vast and complex subject falling beyond the scope of what I hope to clarify here. I shall assume throughout that the minimal conditions by which one becomes fit for the rule of law are satisfied, and will focus then on how one’s potentialities for life within such a context are realized. (shrink)

The Council for Secular Humanism identifies Secular Humanism as a "way of thinking and living" committed to rejecting authoritarian beliefs and embracing "individual freedom and responsibility ... and cooperation." The paradigmatic practices of psychiatry are civil commitment and insanity defense, that is, depriving innocent persons of liberty and excusing guilty persons of their crimes: the consequences of both are confinement in institutions ostensibly devoted to the treatment of mental diseases. Black's Law Dictionary states: "Every confinement of the person (...) is an 'imprisonment,' whether it be in a common prison, or in private house, or in the stocks, or even by forcibly detaining one in the public streets." Accordingly, I maintain that Secular Humanism is incompatible with the principles and practices of psychiatry. (shrink)

It may seem odd that our legal culture’s uneasiness with regard to the insanity defense has risen in direct proportion to advancements in the scientific understanding of insanity itself. Yet the most intriguing benefit of Daniel N. Robinson’s short history of the insanity defense is his explanation of why this is not an oddity at all. For as Robinson convincingly argues, Western legal systems at least since the seventeenth century have been influenced by theoretical accounts (...) of insanity which have undermined the very understanding of human agency according to which those legal systems were built. The result has been a mounting incoherency in what it means for a plea of insanity to come before a court of law. (shrink)

To Wrestle With Demons offers a rare glimpse of a psychiatrist's innermost thoughts about how his work affects patients, deeply move him, and reflects the society in which we live. Describing the unconscious as music, "a silent and explosive score," Dr. Ablow recalls the process of helping patients ferret out the past from the deep recesses of their minds. In so doing, he becomes enchanted with "the subtlety and power of human interaction." He describes the lonely gentleman who, gaining a (...) sense of security from hearing voices, refuses the medication that would take them away...the depressed woman whose extreme dependence on others is rooted in a violent and abusive childhood...the doting husband whose obsessive devotion to his ill wife harks back to the tragic loss of a childhood friend. In delving into the minds of his patients, Dr. Ablow must also wrestle with his own demons. He speaks with unabashed candor about the guilt he feels exchanging empathy for money, his struggle to help a homeless veteran, and the embarrassment of warning a mother of her son's intent to kill her. Through his eyes, the reader confronts a patient's suicide and a close colleague's murder. While sharing these private revelations, Dr. Ablow provides to us all a looking glass to society. Discussed here, among many issues are poverty, the insanity defense, patients' rights, sexual malpractice, and changing medical economics. Captured is the critical moment which psychiatry now finds itself - attempting to integrate technology with spirituality, science with the soul, and economics with empathy. To Wrestle With Demons offers anyone who has ever wondered whether psychiatrists are touched by the lives of their patients a resounding yes. (shrink)