РефератыИностранный языкAnAnti Insanity Defense Essay Research Paper Attacks

Anti Insanity Defense Essay Research Paper Attacks

Anti Insanity Defense Essay, Research Paper


Attacks on the Insanity Defence


The insanity defense refers to that branch of the concept of insanity


which defines the extent to which men accused of crimes may be


relieved of criminal responsibility by virtue of mental disease. The


terms of such a defense are to be found in the instructions


presented by the trial judge to the jury at the close of a case.


These instructions can be drawn from any of several rules used in


the determination of mental illness. The final determination of


mental illness rests solely on the jury who uses information drawn


from the testimony of “expert” witnesses, usually professionals in


the field of psychology. The net result of such a determination


places an individual accordingly, be it placement in a mental


facility, incarceration, or outright release. Due to these


aforementioned factors, there are several problems raised by the


existence of the insanity defense. Problems such as the actual


possibility of determining mental illness, justifiable placement of


judged “mentally ill” offenders, and the overall usefulness of such a


defense. In all, I believe that these problems, as well as others


which will be mentioned later, lead us to the conclusion that the


insanity defense is useless and should be abolished entirely.


Insanity is a legal, not a medical definition. Therefore, mental illness


and insanity are not synonymous: only some mental illness


constitutes insanity. Insanity, however, includes not only mental


illness but also mental deficiencies. Due to this, there are problems


in exactly how to apply a medical theory to a legal matter


(Herman, 1983;128). The legal concepts of mental illness and


insanity raise questions in a conflict between what are termed


legalistic criminology and scientific criminology: mens rea,


punishment v. treatment, responsibility, and prisons v. hospitals.


This debate seesaws to and fro amidst a grey area between law


and science. The major difficulty with a theory such as mental


illness is that it is just that, a theory. To scientists theories are a


way of life, but applied to the concept of law theories become


somewhat dangerous. By applying a loose theory such as mental


illness to law we are in essence throwing the proverbial “monkey


wrench” into the wheels of justice.


TESTING FOR INSANITY


At the center of the legal use of insanity lies the mens rea. Every


crime involves a physical act, or actus reus, and a mental act, or


mens rea, the non-physical cause of behavior. The mens rea is the


mental element required for a crime, and if absent excuses the


defendant from criminal responsibility and punishment (Jeffery,


1985;49). The difficulty here lies in analyzing the mens rea. In


order to do this lawyers apply one of several rules used by


psychologists. These rules range from the Irresistible Impulse Test


to the M’Naghten Rule. Each of these rules approach mental


illness/capacity in a different way and in my opinion each falls short


of actual proof. I will discuss each in detail.


The M’Naghten Rule The M’Naghten Rule, also known as the


right-wrong test, arose in 1843 during the trial of Daniel


M’Naghten who argued that he was not criminally responsible for


his actions because he suffered from delusions at the time of the


killing. The M’Naghten Rule reads: A defendant may be excused


from criminal responsibility if at the time of the commission of the


act the party accused was laboring under such a defect of reason,


from a disease of the mind, as not to know the nature and the


quality of the act he was doing, or if he did know it, that he did not


know that he was doing what was wrong. Thus, according to the


rule, a person is basically insane if he or she is unable to distinguish


between right and wrong as a result of some mental disability.


Criticism of the M’Naghten Rule has come from both legal and


medical professions. Many criticize that the test is unsound in its


view of human psychology. Psychiatry, it is argued, views the


human personality as an integrated entity, not divisible into


separate compartments of reason, emotion, or volition (Herman,


1983;138). Additionally, the test is criticized for defining


responsibility solely in terms of cognition. While cognitive


symptoms may reveal disorder, they alone are not sufficient to give


an adequate picture of such a disorder or determine responsibility.


Also, it has been shown that individuals deemed insane by


psychologists have possessed the ability to differentiate right from


wrong. I believe that the major weakness of this test, however, lies


in the fact that courts are unable to make clear determinations of


terms such as disease of the mind, know, and the nature and


quality of the act.


The Irresistible Impulse Test This rule excludes from criminal


responsibility a person whose mental disease makes it impossible


to control personal conduct. Unlike the M’Naghten Rule, the


criminal may be able to distinguish between right and wrong, but


may be unable to exercise self-control because of a disabling


mental condition. Normally this test is combined with the


M’Naghten Rule. Many of the criticisms of the Irresistible Impulse


Test center around the claim that the view of volition is so


extremely narrow that it can be misleading. Just as the M’Naghten


Rule focused on cognition rather than the function of the person in


an integrated fashion, the Irresistible Impulse Test abstracts the


element of volition in a way that fails to assess a person’s function


in terms of an integrated personality. Additionally, it has been


asserted that the concept at best has medical significance in only


minor crimes resulting from obsession-compulsion, and that


seldom, if ever, can it be shown that this disorder results in the


commission of a major crime (Seigel 1993;144). Such a claim is


subject to the objection that it cannot be conclusively proven.


Interestingly, it has been shown by many psychiatric authorities that


no homicidal or suicidal crime ever results from


obsession-compulsion neurosis.


Another criticism of this test is the difficulty, if not the impossibility,


of proving the irresistibility of the impulse, which the definition of


the test requires. The jury, as I said earlier, has the final decision,


and is faced with deciding when the impulse was irresistible and


when it was merely unresisted, a task that psychiatrists suggest is


impossible to perform. We are also able to argue that the test is


one of volition. It is too narrow in that it fails to recognize mental


illness characterized by brooding and reflection (Herman


1983;140). The test is misleading in its suggestion that where a


crime is committed as a result of emotional disorder due to


insanity, it must be sudden and impulsive.


The Durham Rule The Durham Rule, also known as the Products


Test, is based on the contention that insanity represents many


personality factors, all of which may not be present in every case.


It was brought about by Judge David Bazelon in the case of


Durham v. U.S. who rejected the M’Naghten Rule and stated that


the accused is not criminally responsible if the unlawful act was the


product of mental disease or defect.


The primary problem with this rule of course lies in its meaning.


Again it is impossible for us to define mental disease or defect, and


product does not give the jury a reliable standard by which to base


a decision. It is unnecessary to offer further criticism, for my


purpose I believe this attempt fails at it’s onset.


The Substantial Capacity Test Another test is termed the


Substantial Capacity Test which focuses on the reason and will of


the accused. It states that at the time of the crime, as a result of


some mental disease or defect, the accused lacked the substantial


capacity to (a) appreciate the wrongfulness of their conduct or (b)


conform their conduct to the requirements of the law. This test is


disputable in the fact that it is not only impossible to prove capacity


of reason or will, but to even test such abstracts seems absurd.


Additionally, the term “substantial capacity” lies question in that it is


an abstract impossible to define.


INSANITY: HOW IT IS ESTABLISHED


The meaning of insanity is the legal definition as put forth in a rule


such as the M’naghten Rule or whatever school of thought is in use


on any given day. The legal test is applied in an adversary system


which pitches lawyer against psychiatrist and psychiatrist against


psychiatrist. Because of this, the psychiatrist is often perceived not


as a scientist but a partisan for the side which is paying for his


testimony (Jeffery, 1985;56). The major problem in this case being


that the use of a neutral expert is impossible to implement. In the


end the determination of insanity is a layman’s decision since it is


the jury which ultimately decides whether the defendant is sane or


insane. This of course is ludicrous since professional scientists


cannot agree on the meaning of mental illness. How can a layman


make such a decision especially after listening to contradictory


testimony which is manipulated by opposing lawyers. I believe that


the major problem that we can point out here is in the futility of


asking psychiatrists to testify in terms of legal concepts of insanity.


The psychiatrist finds himself in a double bind: he has no medical


definition of mental illness and he must answer questions from


lawyers concerning legal insanity, right and wrong, and irresistible


impulses. As stated by Packer: “The insanity defense cannot


tolerate psychiatric testimony since the ethical foundations of the


criminal law are rooted in beliefs about human rationality,


deterribility, and free will. These are articles of moral faith rather


than scientific fact.”


MENTAL ILLNESS AND CRIMINAL BEHAVIOR


In the insanity defense we have no variable independent of the


criminal behavior we are studying. Insanity refers to a class of


behaviors known by observing the behavior of the patient, and


criminality is a class of behavior likewise known by observing the


behavior of the defendant. We are involved in classification and


labels. Where we have one class of behaviors labeled as


schizophrenia, and the other class labeled as crimes, what we have


are two co-existing classes of behavior in the same individual, and


not a cause or effect relationship (Simon, 1988;47). A person can


be Catholic and commit a robbery without a casual relationship


existing; likewise, a person can be schizophrenic and a robber


without a casual relationship existing between the two classes of


behavior. Coexistence does not show a casual relationship.


Behavior cannot cause behavior.


What we must do, in order to prove a relationship between mental


illness and criminal behavior is produce some independent link


between the two classes of behavior on a biochemical level. We


must have a definition of mental illness independent of the


behavioral symptoms in order to establish a casual relationship


between crime and mental illness. There is such a view and it is


termed the Biological Psychiatric view. The view basically states


that there is some de

fect or malfunction in the actual make-up of


the brain of an individual which causes schizophrenia. This same


defect then causes the criminal behavior such as robbery or


murder. The problem here is that we have no actual way of


mapping the brain and conclusively determining exactly what


portion thereof is responsible for either type of behavior much less


that one area is responsible for both. In essence even if true this


theory is unprovable.


There is also a statistical relationship between crime and mental


illness. Guttmacker and Weihofen found 1.5 percent of the criminal


population psychotic, 2.4 percent mentally defective, 6.9 percent


neurotic, and 11.2 percent psychopathic (Jeffery, 1985:66). These


figures are very unconvincing. Additionally they are based on old


diagnostic categories and procedures which are most unreliable.


Also, the meaning of neurotic or psychotic or psychopathic is


uncertain within the context of these studies and they do not refer


to modern biological categories of brain disease. Terms such as


insanity, mental illness, and mens rea have no scientific meaning,


therefore we must leave as unspecified and uncertain the


relationships between insanity, mental illness and criminal law. We


certainly cannot conclude that mental illness bears any relationship


to diseases of the brain, nor can we conclude that mental illness or


insanity causes criminal behavior.


THE MYTH OF MENTAL ILLNESS


Not only is there no agreement as to the meaning of insanity and


mental illness, but to add further confusion, there is a school of


thought that states that mental illness is a myth and does not exist.


This approach is found in the works of such persons as Thomas


Szasz (1961;1963) who argues that mental illness is a myth and


label applied to behavior by psychiatrists who are making political


and ethical decisions, and Laing (1969;1971) who claims that


labels are being used by society to impose violence and control on


people. View such as these and others deny the physical and


biological basis of behavioral disorders. They separate completely


biology and behavior, brain and behavior, and mental and physical.


The fact that we refer to “mental” disease has been cited as


evidence that we do not regard it as disease but as something


outside the realm of biological science. Szasz states, for example,


that the psychiatrist confuses physical disease and neurological


disorders with mental diseases.


A study in evidence of this was done by Rosenhan (Ziskin,


1975:54) known as “Being Sane in Insane Places.” Rosenhan, a


psychologist, placed eight normal people in mental hospitals as


“pseudo-patients.” They were diagnosed as schizophrenic, and


later on when they appeared normal, rediagnosed as schizophrenia


in remission. After one experiment one hospital challenged


Rosenhan to send them “pseudo-patients” during the next several


months. At the end of the period the hospital announced that they


had discovered that 12 percent of their admission were


“pseudo-patients” from Rosenhan went in fact none had ever been


sent.


USEFULNESS OF THE INSANITY DEFENSE


As we have already seen, there is much confusion dealing with the


placement of insanity and mental illness, it’s definition, and even it’s


very existence. We have likewise seen the use of several of the


various testing techniques used to determine mental illness and their


shortcomings. This information alone would lead us to believe that


the insanity defense needs at least to be revised and improved in


many areas. What we have looked at thus far is what precedes the


actual judgment of sanity. What we have not looked at, however,


is that implementation of the actual judgment of sanity. That is to


say, the actual results of the defense when successful. I believe that


it is here that we will see the most heinous travesties of justice.


There are several decisions which can be reached when insanity is


at last proven. These judgements include not guilty by reason of


insanity (NGI), and guilty but mentally ill (GMI), with the later


verdict not being implemented until the early eighties in an attempt


to reform the insanity defense and decrease the amount of NGI


verdicts. The NGI verdict is the more dangerous verdict and the


one which I believe has the strongest argument against the insanity


defense. The objection here is that it allows dangerous men to


return to the streets where they commit heinous crimes. Of the 300


persons committed on NGI verdicts 80 percent were released


from mental hospitals by psychiatrists, and in several instances


these mental patients went on to kill again (Jeffery, 1985;73). My


belief is that psychiatrists and mental hospitals do not cure the


mentally ill. This is the reality of the insanity defense which I find


irrefutable; in many cases criminals are released due to loopholes


such as the insanity defense to simply commit the same crime


again. Even is these cases make up 10 out of 100,000, there now


exist 10 crimes that need not have happened.


The guilty but mentally ill approach has three serious flaws. First it


strikes indirectly at the mens rea requirement, introducing the


slippery notion that the accused had partial, but not complete,


criminal intent. Second, it creates a lesser and included offense that


judges and juries may choose as simply a compromise verdict.


They believe the accused probably did something wrong and


deserves some punishment, but they are unwilling to bring in a


verdict of guilty on the top charge. The GMI verdict would allow


them to split the difference. Finally the GMI verdict is fraudulent on


the issue of treatment. As proposed, it makes no provision for


treatment of the person who has been declared mentally ill.


The GBI option has already proved to be a bogus reform. A 1981


Illinois law added the GMI as an additional verdict, retaining the


traditional insanity defense. In Cook County, verdicts of not guilty


by reason of insanity actually increased from 34 to 103 between


1981 and 1984. At the same time GMI went from 16 in 1982, the


first year the option was available, to 87 in 1984. There has been


much evidence of a “hydraulic” effect that was contrary to the law’s


intent. In both Illinois and Michigan, GMI verdicts involved people


who would otherwise have been found guilty, not defendents who


would have been found not guilty by reason of insanity (Walker,


1994;155-156).


The real function of the GBI option is to appease public opinion.


The public has little concern for the details of what actually


happens to a mentally ill criminal defendent. Basically, it wants a


symbolic statement of “guilty.” In practice, the GMI verdict has as


much meaning as “guilty but brown eyes.”


How dangerous is the GMI verdict? As we say with the NGI


verdict, many extremely dangerous mentally ill criminals were


simply released onto the streets where they committed the same


crimes. Does the GMI verdict solve this problem? We have some


“natural experiments” on this questio rising from some court


decisions. A 1971 decision forced to reassessment of 586 inmates


of Pennsylvania’s Fairview State Hospital for the Criminaly Insane


who were placed there under the GMI verdict. Over two-thirds


were eventually released. Over the next four years, 27 percent


were rearrested. Eleven percent were rearrested for violent crime.


Including some others who were rehospitalized for a violent act, a


total of 14.5 percent of those released proved to be dangerous.


ABOLISH THE INSANITY DEFENSE


Abolishing the insanity defense is easier said than done for the


simple reason that the mens rea requirement remains a fundamental


legal principle. The proposal that “mental condition shall not be a


defense to any charge of criminal conduct” could be interpreted in


one of two ways. The broader interpretation would mean that


absolutly no aspect of mental condition could be taken into


account. In effect, this interpretation would abolish the mens rea


requirement altogether. The prosecution would not have to prove


anything about the accused’s mental state. This is unneccessarry.


For one thing, it would wipe out the distintions that separarte


first-degree murder, second-degree murder, and manslaughter. It


is doubtful that anyone againt the insanity defense would choose to


take this approach. So sweeping, in fact, would be it’s effect, that


it would probably be declared unconstitutuional.


A more limited reading of the wording “mental condition shall not


be a defense to any charge of criminal conduct” would mean that


an affermative plea of “not guilty by reason of insanity” could not


be raised. The crucial distinction here is drawn between


affermative and ordinary defenses. An ordinary defense is simply


an attempt to shown that the prosecution has failed to connect the


accused with the crime, a defense used in everyday law. An


affermative defense is raised when the prosecution has connected


the accused with the crime, as in an example of self-defense. The


defense argues that, yes, the accused did shoot and kill the person


and did so intentionally, but because the act was commited in


self-defense the accused does not bear criminal responsibilty for it.


The same is true in the case of a criminal act commited under


duress. The insanity defense, in this respect, is an affermative


defense. It is this usage that needs to be abolished. In cases such


as self defense it may be an adequate and totally acceptable


defense, for in how many cases do you hear of a man being


aquitted due to a self-defense plea returning to the streets in order


to kill again? To draw a comparison between the two and argue


that both defenses are neccessarry to the total order is naive and


unfounded.


CONCLUSION


The law of insanity involves the conceptes of mens rea and


punishments, as does the criminal law in general. Insanity is a legal


concept, not a medical concept, and insanity is defined within the


context of an adversary system wherin psychiatrists and lawyers


battle one another over the meaning of terms such as “right and


wrong” and “ability to control one’s behavior.”


Mental illness and mental disease are psychoanalytic concepts, not


scientific concepts. Mental illness is defined by talking to people or


by giving them written tests, and there is no agreement among


psychiatrists as to the meaning of this illness or whether or not it


really exists. Some psychiatrists call mental illness a myth. The


psychoanalyst has not been successful in treating or predicting


mental illness.


The psychoanalyst has never established a casual relationship


between mental illness and criminal behavior. The insanity defense


would require both a mental illness and a relationship between the


illness and the criminal behavior, neither of which could be


scientificly established.


Of the criminals both aquited and convicted using the insanity


defense, a good number have shown conclusive evidence of


recidivism. Many dangerous persons are allowed to return to the


streets and many non-dangerous persons are forced into facilities


due to an insanity plea adding further confusion and injustice

Сохранить в соц. сетях:
Обсуждение:
comments powered by Disqus

Название реферата: Anti Insanity Defense Essay Research Paper Attacks

Слов:3989
Символов:27131
Размер:52.99 Кб.