MB Civic

By MORRIS B. HOFFMAN and STEPHEN J. MORSE

IN June, the Supreme Court upheld a narrow Arizona test for legal insanity, which asked simply whether mental disorder prevented the defendant from knowing right from wrong. Last week, a Texas jury used a similarly narrow test to decide that Andrea Yates was legally insane when she drowned her five children in a bathtub, allegedly to save them from being tormented forever in hell.

Many scientists and legal scholars have complained that tests like these, used by the law to determine criminal responsibility, are unscientific. Given recent advances in our understanding of human behavior and of the brain, these critics argue, the legal test for insanity is a quaint relic of a bygone era.

These criticisms misunderstand the nature of criminal responsibility, which is moral, not scientific. On the other hand, legislation that has eliminated or unduly constrained the insanity defense, often in response to unpopular verdicts of not guilty by reason of insanity, is likewise off the mark. Between these two attacks, the concept of the morally responsible individual seems to be disappearing.

For centuries we have had a rough idea of the categories of people whom we should not hold criminally responsible. Early cases labeled them “the juvenile, possessed or insane.” The idea was that only people capable of understanding and abiding by the rules of the social contract may justly be declared criminally responsible for their breaches. Someone who genuinely believes he has heard God’s voice command him to kill another does not deserve blame and punishment, because he lacks the ability to reason about the moral quality of his action.

In an effort to hold most people accountable, and recognizing both the difficulty of establishing what was in the defendant’s mind at the time of the crime and the defendant’s incentive to lie about it, the law sought to establish strict standards for responsibility. As a result, legal insanity tests were drawn quite narrowly. They did not excuse most defendants whose intentional conduct broke the law, even if they might have suffered from mental disorders or other problems at the time of the crime.

The rise of various materialistic and deterministic explanations of human behavior, including psychiatry, psychology, sociology and, more recently, neuroscience, has posed a particular challenge to the criminal law’s relatively simple central assumption that with few exceptions we act intentionally and can be held responsible. These schools of thought attribute people’s actions not to their own intentions, but rather to powerful and predictable forces over which they have no control. People aren’t responsible for their crimes: it’s their poverty, their addictions or, ultimately, their neurons.

Lawyers and policymakers brought these academic explanations into the courts and legislatures, many of which responded to the pressure by expanding the doctrines of mitigation and excuse. Predictably, however, the public tired of many of the broader uses of the defense, especially after John Hinckley Jr. was found not guilty for reason of insanity for the attempted murder of President Ronald Reagan and others. Congress responded by adopting a narrow insanity defense, and many states followed suit. Four states have abolished the insanity defense entirely.

Once we agree that there may be some small percentage of people whose moral cognition is seriously disordered, how can the law identify those people in a way that will not allow the materialism of science to expand the definitions of excusing conditions to include all criminals? That is, if paranoid schizophrenia can provide part of the basis to excuse some criminal acts, why not bipolar disorder, or being angry, or having a bad day, or just being a jerk? After all, a large number of factors over which we have no rational control cause each of us to be the way we are.

The short answer is that we should recognize that the criteria for responsibility — intentionality and moral capacity — are social and legal concepts, not scientific, medical or psychiatric ones. Neither behavioral science nor neuroscience has demonstrated that we are automatons who lack the capacity for rational moral evaluation, even though we sometimes don’t use it. Some people suffer from mental disorder and some do not; some people form intentions and some do not. Most people are responsible, but some are not.

Punishing the deserving wrongdoers among us — those who intentionally violate the criminal law and are cognitively unimpaired — takes people seriously as moral agents and lies at the heart of what being civilized is all about. But being civilized also means not punishing those whom we deem morally impaired by mental disorder. Convicting and punishing a defendant who genuinely believed that God commanded him to kill is not unscientific, it is immoral and unjust.

We should be skeptical about claims of non-responsibility. But, if insanity-defense tests are interpreted sensibly to excuse people who genuinely lacked the ability to reason morally at the time of the crime, and expert testimony is treated with appropriate caution, the criminal justice system can reasonably decide whom to blame and punish.

Wrong insanity verdicts are possible, of course, but wrong verdicts are always possible. We should not respond by abandoning a defense that justice requires. A sensible test for legal insanity, fairly applied, can help prevent the concept of the responsible person from disappearing, either because the law naïvely accepts a cacophony of untestable excuses, or because cynical legislators overreact by permitting the conviction and punishment of blameless defendants.

Morris B. Hoffman is a state trial judge in Denver and a fellow at the Gruter Institute for Law and Behavioral Research. Stephen J. Morse is a professor of law and psychiatry at the University of Pennsylvania.