The Meaning of Criminal Insanity [First Paperback Edition, 1974, Reprint 2020] 9780520347106

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THE MEANING OF CRIMINAL INSANITY

HERBERT FINGARETTE

The Meaning of Criminal Insanity

UNIVERSITY OF CALIFORNIA PRESS BERKELEY, LOS ANGELES,

LONDON

University of California Press Berkeley and Los Angeles, California University of California Press, Ltd. London, England Copyright © 1972, by The Regents of the University of California First Paperback Edition, 1974 ISBN: 0-520-02631-4 Library of Congress Catalog Card Number: 70-165223 Printed in the United States of America

TO MY DAUGHTER ANN

Contents

Acknowledgments, ix Introduction, 1

PART

I At

the

Intersection

of

Psychiatry

and

Law

1. The Concept of Mental Disease, 19 Is Mental Disease a Medical Concept? 19 Mental Disease: A Cross-Dimensional Concept, 37 2. The Relation Between Psychiatry and Law, 53 The Scientific Versus the Moralistic: A False Opposition, 53 Philosophical Red Herrings in Law and Psychiatry: Determinism, Free Will, the Inaccessibility of Mind, 69 The Essential Role of Teleology in Psychiatric Explanation, 84 The Central Role of Moral Concepts and Issues in Psychiatry, 97

PART II The

Legal

Concept

of

Insanity

3. Legal Interpretations of Insanity, 123 Introduction, 123 Insanity as Absence of Mens Rea, 128 The Knowledge-of-Wrong Criterion, 142 Irresistible Impulse and Incapacity to Conform to Law, 158 vii

Contents 4. The Legal Concept of Insanity: A Formulation, 173 Conditions to Be Satisfied by a Correct Analysis of Insanity, 173 Insanity and Irrationality: Preliminary Suggestions, 175 The Meaning of "Rational" in the Context of Insanity, 179 A General Definition of Insanity, 194 A Definition of Criminal Insanity, 203 5. Some Implications of the Formulation, 216 The "Unity of the Mind," 216 Psychiatric Diagnostic Categories and Criminal Insanity, 227 Specific Insanity Tests in Use, 234 Bibliography, 255 Books and Articles, 255 Cases, 263 Index, 267

Acknowledgments

Much of the work that produced this book was made possible as a result of the support, in the form of a grant, given to me by the Walter E. Meyer Research Institute of Law. I am very grateful to the institute. I also wish to express my sincere appreciation to Professors Abraham S. Goldstein and Sanford H. Kadish, who read drafts of the entire work and provided me with much helpful comment. My daughter Ann gave invaluable constructive advice and inspiration during a summer of intensive and continuous critical discussions of the legal aspects of the material. My wife Leslie provided as always the essential support—moral, emotional, secretarial—which not only sustained me but so largely helped to make the whole venture one of exhilarating shared creation.

Introduction

Speaking of the concept of criminal insanity, a lengthy study shortly before the famous 1843 M'Naghten opinion announced: "Upon this subject all definitions are unsatisfactory." 1 A little over a decade after M'Naghten, a physician wrote on this topic in a prize essay: "What is insanity? Is it a condition capable of verbal definitions? The ill-success which has hitherto attended endeavors to effect this, would suggest a negative reply." 2 A century later, the 1955 draft of the American Law Institute's Model Penal Code contained these words: "No problem in the drafting of a penal code presents larger intrinsic difficulty than that of determining when individuals whose conduct would otherwise be criminal ought to be exculpated on the ground that they were suffering from mental disease or defect when they acted as they did." 3 And in one of the most recent major studies of the topic, the author writes, "It is now apparent that a precise definition of insanity is impossible." 4 I believe, however, that an adequately precise definition of insanity —one which is also thoroughly realistic from the standpoint of case 1. Shelford, 1833, p. xxxiv. 2. Bucknill, 1856, p. 15. 3. American Law Institute, Model Penal Code, draft 4, 1955, p. 156. (Hereafter referred to as ALI Model Penal Code.) 4. A. Goldstein, 1967, p. 87.

1

2

The Meaning of Criminal

Insanity

law and legal theory—is possible. I propose to explain and justify it in these pages. It can no longer be supposed that the problem of definition is the sole major problem in connection with the insanity plea. In the first place it rests within a larger context in the criminal law—that of criminal responsibility—which is itself in a condition of long-standing obscurity.® More specifically, the insanity plea is a focal point on which many different policy questions converge: What is the most efficient way to protect society from those whose insanity leads them to do social harm? What is the most effective therapeutic route for such persons? What procedures best protect the human and civil rights of the citizen for whom the insanity defense is offered? 6 At what stage of legal proceedings is the issue most appropriately raised, as part of the plea to the charge (as is the case now) or as part of the postverdict but presentencing procedures (as is increasingly being proposed in recent years)? 7 Should the prosecution have the right to 5. "A tradition of chronic imprecision in the elucidation of principles of criminal responsibility has existed in the common-law world for more than seven centuries" (Dubin, 1966, p. 324). "One searches the treatises in vain for any articulation of underlying principles or for the construction of any analytical framework that would serve either to explain or to criticize the development of the law [with respect to mens rea]" (Packer, 1962, p. 137). "Curiously, there has been little discussion in the literature of the criminal law on the criteria under which the legal concept of 'being responsible' is appropriately invoked. Surely, these are fundamental notions which should be explored" (A. Morris, 1968, pp. 584-585). (Morris also cites further bibliography on this issue.) 6. "[Psychiatrists [are] increasingly responsible for the treatment and cure of many formerly classified as criminals at a time in the development of psychiatry when we do not have the knowledge, the techniques, or the manpower to do these jobs, and . . . psychiatrists . . . hold for lengthy treatment as diseased and ill the same people who under criminal statutes might be given freedom" (Robitscher, 1967, p. 45). See, generally, Dession's insightful and foresightful article (1938). Szasz has written extensively on this topic, though his theses are increasingly overstated and oversimplified. See, e.g., Szasz, 19606. The importance of the problem is indicated by the fact that, as A. Goldstein summarizes it, "In virtually every state, a successful insanity defense does not bring freedom with it. Instead, it has become the occasion for either mandatory commitment to a mental hospital or for an exercise of discretion by the court regarding the advisability of such commitment" (1967, p. 19). 7. See below, note 11.

Introduction

3

introduce the plea, even against the wishes of the defendant? And, if so, how should this affect the rights of the defendant if found not guilty by reason of insanity as a result of such a prosecution-initiated plea? In establishing procedures for persons hospitalized as a consequence of a successful insanity plea, how best can the individual's mental rehabilitation and his civil rights be reconciled with the need for protecting society? Is it desirable from the standpoint of justice, humanity, and the deterrence of crime to expand the scope of the plea of "not guilty by reason of insanity" to include all those who are medically considered to be seriously mentally disordered, or even to abandon criminal punishment for all who commit antisocial acts? 8 Or would these concerns be better served by restricting the scope of the plea 9 even further than at present and, as suggested above, handling the issue of mental disorder after conviction and as part of the sentencing and penal procedures? 10 Each of these problems is complex, and becomes even more so because each is intertwined with the others. Medical efficiency cannot be purchased at the price of injustice; protection of society cannot be purchased at the price of stripping a person of his human rights; problems of legal administration cannot be resolved without reference to the relevant legal aims and safeguards, the medical considerations, the civil rights of the individual, the deterrent impact on the community, and the limits of public tolerance. The failure over more than a century to develop a generally acceptable doctrine of criminal insanity and the increasing frustration with this definitional problem have led to a feeling that the defini8. "This problem would be eased, however, and certainly the question of responsibility would not have to be raised, if the concept of management of the antisocial individual were changed from that of punishment as the main instrument of control, to a concept of the antisocial individual as a sick person, in need of treatment rather than punishment. Again this is nothing new. This proposition has been advanced many times . . ." (B. Glueck, 1954, p. 127). See also the collection of statements in Waite, 1958, pp. 657-658. 9. See Wechsler's argument (1955) summarizing the view that the test should be stringent in order to deter where deterrence might be possible even when a person is under extreme temptation or emotional pressure. Rubin (1961) also proposes a similar point. This position is endorsed in State v White (1962). See also note 12, below. 10. See note 12, below.

4

The Meaning

of Criminal

Insanity

tional problem not only raises "the most complicated, elusive, and difficult problem in the criminal law," 11 but is at last a dead end. This feeling in turn has increasingly led to proposals that in effect would entirely by-pass the insanity plea. One widespread type of current proposal is that the trial concern itself only with the question whether the person caused the harm in question. Subsequent to an affirmative finding on this, the mental condition of the person would then be assessed by experts prior to sentencing; the sentence and disposition of the case would take into account these expert findings.12 11. Cavanagh, 1962, p. 480. 12. One or another variant of this proposal has been supported by a number of the leading writers on the law of criminal insanity. See, e.g., B. Glueck, 1954, pp. 127, 129; Guttmacher, 1955, p. 327; Biggs, 1964, p. 396; Weintraub, 1964, p. 369; Rubin, in Proceedings of 10th Circuit, 1962, p. 577. B. Wootton, the distinguished English sociologist, and H. L. A. Hart, the eminent English legal philosopher, are representative of professionals outside law and psychiatry who support such proposals. (See Wasserstrom [1967] for a critique of these views.) Warren Burger, now Chief Justice of the U.S. Supreme Court, said (while still a judge of the U.S. Appellate Court of the District of Columbia), "perhaps we should consider abolishing what is called the 'insanity defense'; the jury would decide within the traditional framework of drawing inferences as to intent from the accused's conduct only whether he committed the overt acts charged. I suggest this not as a new idea but to stimulate a serious debate on the subject. "To adopt this proposal would not mean that mental patients would all go to prison. Rather it would mean that if some mental disorder or illness appears to have precluded the accused from forming a criminal intent, the court alone would deal with that question after a special jury verdict on whether the accused committed the act charged. The courts could employ a hearing process but not in the conventional adversary sense of 'dog eat dog and the devil take the hindmost.' Rather this hearing would be an occasion for psychiatrists to present as full and complete a personality profile as could be developed. The usual adversary type objections should be omitted and virtually unlimited cross-examination should be allowed free of the partisan atmosphere of a jury trial. This inquiry would be in addition to the usual report presented by trained probation officers. "From all this the trial judge would then decide the best course (a) for the protection of society, (b) for the protection of the defendant, and (c) for the rehabilitation and restoration of the defendant." (Burger, 1964, p. 9.) On the other hand, there have been powerful criticisms of the assumptions underlying these views, in particular the assumption of the impartiality and

Introduction

5

It seems to me, however, that we are obliged to face up to the fact that as a matter of deep intuition, evident through several centuries of Anglo-American law, the community has held it to be unjust to convict of crime a person who is insane.13 It would be a grave wrong, I believe, to rest satisfied with the failure of the law until now to express in explicit and precise terms the rationale of this intuition. The recognition that the law has been forced to make do with unsatisfactory approximations to the intuitive concept of insanity cannot justify supposing that we will develop a more rational policy by frankly ignoring the issue and turning the question over to the experts. For without a clear legal understanding of the issues, to turn the question over to the experts amounts to turning the person over to the experts. To do this without legal criteria concerning how the experts shall make their judgments is to abandon due process and to establish a tyranny—however well intentioned it may be—of experts acting through in camera proceedings. In this area, the increasing willingness to "turn it over to the experts" reflects a dangerous faith in the combination of good will and claimed expertise. It is understandable that medical men should be inclined to this approach. After all, they are not students of the law; they are not professionally concerned with the legal issues. The physician or mental-health expert naturally thinks in terms of freedom to apply his methods; from his standpoint, considerations of law or considerations of long-range social implications are distracting complications. But the man of law, in turn, has other obligations and responsibilities. Failure to resolve an issue touching the fundamental legal issue of responsibility cannot justify evading that issue and abandoning the perspective of law. The insanity plea controversy is, after all, essentially a controversy of principle. Though there is an inherent drama surrounding the insanity plea, the fact is that, practically speaking, the insanity plea in the United States today is used in an almost negligible proporobjectivity of the experts, and the expectation that judicial control could be maintained. See, e.g., Goldstein and Fine, 1962, pp. 1067 if., and Diamond, 1959, on the former point; and on the latter point see, e.g., Reid, 1960, and Weihofen, 1950. Bazelon, 1964, p. 17, presents still another reason for opposing abandonment of the insanity plea: The testimony evoked by the use of the plea educates the jury about the causes of crime. 13. See, generally, note 18, below.

6

The Meaning

of Criminal

Insanity

14

tion of the cases of antisocial mental disorder. Therefore, as a source of practical social problems, it is quantitatively negligible. And we may well remark here, as have others, that the issue of the criminal insanity plea, important as it may be in its way, must not be allowed to distract us from the other and massive problems of reform in the areas of social welfare, psychological medicine, penology, and law. The insanity plea and the controversies associated with it do have large significance, but not because of any direct relation to largescale social misery. It is sometimes asserted that the insanity plea has whatever significance it does have entirely because it can serve as an escape from capital punishment. Elimination of capital punishment would eliminate the use of the plea, it is argued. But the facts plainly belie this unsupported though common claim.15 The insanity plea and the controversies generated by it take their 14. "Though the insanity defense has long dominated discussions about criminal law, it arises too rarely to deserve a place at the center of the stage. The statistics tell the tale with remarkable clarity. Of the total number of criminal acts committed, a relatively small proportion are detected; an even smaller proportion of offenders are formally charged with crime. Of those charged, some ninety per cent plead guilty; only a small number of the ten per cent who stand trial plead the insanity defense" (A. Goldstein, 1967, p. 23). A note appended to this statement adds, "It has been estimated that about 70 per cent of acquittals by reason of insanity in the District of Columbia are uncontested acquittals by the court, sitting without a jury. Acheson, 'McDonald v United States: The Durham Rule Redefined,' 51 Geo. L J . 580, 589 (1963)." See also the statistics and comments on this point by Matthews, 1967, especially on pp. 2-3, 7-9, and 12. Perhaps the plea would be more used if it were not so expensive to develop it adequately in court (see Matthews, 1967). It has been estimated that only some 2 percent of those charged with crime have mental disorders that would, prima facie, justify entering a plea of insanity in most jurisdictions today. See the statement by Guttmacher and others cited in Waite, 1958, p. 636; Messinger and Apfelberg, 1961, pp. 345348; Thomsen, 1959, p. 277. See, on the other hand, the collection of statements in Waite on pp. 657-658, and also Gasch, 1959, p. 33. 15. See, e.g., Rubin, 1965. A typical comment by an authority is that the insanity plea is "generally entered only in homicide cases" (Guttmacher, 1955, p. 327). The logic of a common line of argument in this connection is that only capital punishment, of all penal sanctions, is a greater threat than indefinite commitment to a mental hospital. Hence, no one would plead insanity unless he feared capital punishment. The logic is plausible, but unfortunately

Introduction

7

significance in part from the fact that, in those cases in which the plea is invoked, fundamental principles of justice, humanity, and morality are at stake. And the very fact that the plea is ultimately available expresses, even if only in a symbolic way, the concern of the law with citizens as rational beings and not as mere creatures. For it expresses, in however awkward and circumscribed a way, the principle that one who has lost his reason may not be criminally condemned, that the criminal law is a law for those who can be held responsible for what they do. The significance of the controversies over the insanity plea derives from still another source. On a theoretical level such controversies raise in acutest form questions concerning the meaning of responsibility and the distinction between guilt and "sickness." Put in slightly more practical terms, the problems raised in these controversies go to the heart of conceptual problems arising at the borderline between law and medicine. At issue here is whether to approach a citizen primarily as an autonomous subject under law or to approach him as a sick or defective person, as a dependent or ward of the state, as one whose very personality may be reshaped by the state whether he will or no. This issue is central to one of the social revolutions of our time—the growing emphasis on institutions based on medical, paramedical, welfare and technological expertise in place of, and within, the institution of law. We cannot afford to think of the outcome of this trend in black-and-white terms, as it turns out to lead to a conclusion that is contrary to fact. I have never seen any statistical data used to support the typical flat statement that the plea is "generally entered only in homicide cases." On the other hand, Rubin—who maintains this to be a fact—himself cites in a footnote a California report in 1963 which states that of 296 insanity pleas entered in 1962 in California, only 55 were in homicide cases. Furthermore, a case-by-case review of the instances where insanity is an issue in the U.S. Appellate Reports shows at once that a significant proportion of these cases involves a wide variety of noncapital crimes—at times, even petty crimes. Krash (1961, p. 949) reports statistics for the District of Columbia, 1954-1959, showing that fewer than 20 percent of the insanity pleas were in capital cases. Judge Biggs reports that the insanity plea is used in "many" lesser criminal cases (see Biggs, 1962, in Proceedings of 10th Circuit, p. 550, and Biggs, 1964, p. 377). For further typical comments to the opposite effect, see, e.g., Modlin, 1956, p. 390, and Weintraub, 1964, p. 373.

8

The Meaning of Criminal Insanity

promising a Utopia of enlightenment or an insidious elitist tyranny. But we will not be able to think in an adequately discriminating way about it until we have at least become reasonably clear about such concepts as responsibility and rationality, sickness and incompetency. It is the presumption of this essay that our efforts at rational resolution of the many related issues, as well as of the problems of the insanity plea per se, will be profoundly assisted if we can reach fundamental clarity about the meaning of insanity and the moral-legal rationale for considering insanity a complete and fundamental basis for exculpation from criminal charges. The issue goes deeper than the question whether one or another specific form of wording would have any impact, for better or worse, than some other form. It is a question of clarifying the substance of this notion, since it raises in radical form the issue of responsibility.16 In spite of the extensive literature on the subject, very little has been done that goes to the root of the concept of criminal insanity. Instead, we find widespread in both case law and in the scholarly literature the practice of shuffling the same verbal counters, of manipulating and adjusting old slogans, old formulae. Even the most radical proposals—such as the New Hampshire rule, or the original Durham decision—are not truly radical in the sense I have in mind. These are radical in that they omit certain of the familiar, well-worn, and hitherto ubiquitous formulae (knowledge that the act was wrong, 16. There is some reason to suppose that the exact wordings of the insanity tests have not made much difference to the average jury. Both impressions of lawmen (Pope v US, p. 735) and a certain amount of very tentative experimental evidence (see James) suggest that the decision of a jury of laymen for any particular case will be the same, as to presence or absence of insanity, whether Durham or M'Naghten or the Model Penal Code is used as the explicit test for insanity. Nevertheless, even if this should be a fact, it is important for the professionals involved that they, at least, be clear about the issues. Moreover, I suspect that part of the reason for the apparent failure of juries to respond discriminatingly to the different formulae is that the essential rationale has been obscure even in the law; and therefore the rules plus the instructions have failed to convey the intuitive meaning of the concept of insanity. If I am right and if my own proposal does indeed bring out the essential features of the concept, then a test wording based on this analysis might have some hopes of being genuinely applied by juries rather than, as is now the case, being ignored.

Introduction

9

lack of self-control), while retaining another such formula, mental disease. I do not mean to imply that these formulae should necessarily be abandoned or are irrelevant; far from it. I mean, rather, that merely shifting and rearranging the combinations, or "refining" and "improving" them (as in the American Law Institute Model Penal Code formula), 17 do not make explicit the fundamental rationale. All these modifications are based, in effect, on tacit appeals to intuition: Does this way of juggling the formula or refining it, of adding a component or of omitting one, seem intuitively more just? But none of the proposals have faced squarely the question whether there is something distinctive in the insanity plea, some distinctive concept central to our idea of personal responsibility, that would provide us with explicit criteria for assessing any particular proposal of some legal formula or procedure. In this essay I shall not attempt to deal with the many sorts of important problems related to the insanity plea that I mentioned at the outset. I want solely to examine problems and controversies connected with the meaning and the rationale of the insanity plea, to try to resolve these by presenting an affirmative and fundamental account of the meaning of the moral-legal concept at issue and the reason why it works as it does. What I shall be saying will include direct comment on certain current controversies, such as the bearing of psychiatric doctrine and the role of psychiatric experts in the trial inquiry into insanity. I shall also be concerned with the case law and actual criminal law procedures insofar as these provide an essential context for understanding and using the concept of insanity in the law. I am concerned here with an authentic concept in law and not a concept so abstracted from or purified of case law that its practical relevance, if any, would be dubious or difficult to see. On the other hand I aim for a concept that is clearly rooted in fundamental concepts of psychiatry and law, and is morally and philosophically sound. I will not present a single formula to be actually used, for the exact formula used must reflect decisions on many of the policy questions I have mentioned above, questions I do not purport to examine here. But what I shall present is an analysis that will provide the directly 17. See discussion, note 30, below.

10

The Meaning of Criminal Insanity

usable elements and a number of possible formats for a practicable insanity test that would rationally implement the policies adopted while remaining consistent with the basic notion of insanity as precluding responsibility. Though the route is very different, the verbal results I arrive at are in their spirit as well as their wording very close—in some ways identical—to the important traditional and current formulations. This sort of result, as I see it, is not only a practical desideratum, it is also partial confirmation of the validity of my inquiry. For what I aim to do, as I have said, is to make clear and explicit our common intuition, not to present a new and counterintuitive proposal. And it would be surprising if traditional formulae were nowhere near the mark. I believe, for reasons that will become evident in the course of this book, that the concept which has underlain the intuitively understood phrase "criminal insanity" can be explicated as follows: It is the concept of a mental makeup at the time of the offending act such that the individual substantially lacked capacity to act rationally with respect to the criminality of the act. One who is familiar with the prevalent formulae for criminal insanity will immediately recognize the above explication as having close affinities to those familiar formulae. But a mere adjustment of terminology could hardly justify a book-length argument. Moreover, the mere shift of terminology could not do what is of fundamental significance, since the language I use itself raises questions immediately and calls for explication. Playing a merely verbal game in quest of the winning formula is by now, as my earlier remarks suggest, a pointless game. The substance of this book and the purpose that justifies it is to contribute to the analysis and clarification of fundamental issues in an important area of criminal law and forensic psychiatry. More specifically, my aim is not to provide a new verbal formula but a clear intellectual basis for assessing any reasonable verbal variant of the criminal insanity test that might appear desirable in the light of other policy considerations. My analysis is aimed at providing a perspective for better understanding and application of the broader concept of criminal responsibility; and the analysis aims at a better fundamental understanding of the relation of psychiatric knowledge

Introduction

11

to the assessment of criminal responsibility. In short, this book moves in the direction of intellectual foundations rather than the details of superstructure. But it is superstructure that has, in my opinion, predominantly occupied the attention of most commentators and jurists in this area of law. Though it is an oft-told tale, it may be convenient to offer here in briefest historical outline the various modern definitions or tests of criminal insanity in English-American law.18 Let us put the familiar and well-worn counters on the table: My purpose, as will be plain, is not to do historical scholarship here but to use a historical framework within which to relate to each other the key elements of the classical insanity tests. This historical-analytical outline will then serve as a perspective within which discussion in subsequent chapters can be oriented. The landmark case for modern times was the M'Naghten case,19 in 1843, at which time the justices of the English courts replied to an inquiry by the House of Lords concerning the proper test for insanity. During the preceding century,20 the key phrases that had come to prevail in English and American cases were various combinations and permutations of "the ability to discern good and evil," "to distinguish right and wrong," "have understanding (or reason) enough to be conscious he was doing wrong," and understand "the nature and consequences of the act." In M'Naghten, the rule to which all but one of the justices subscribed was that it should be held that there was criminal insanity where a person was "labouring under such a 18. There are a number of reasonably full expositions of the history of the insanity plea in Anglo-American law, some contained in book-length treatments of the plea, others in journal articles. Some representative recent studies are: "Lunacy and Idiocy," 1951; Weihofen, 1954; Biggs, 1955; Guttmacher, 1961; Piatt and Diamond, 1966; Lewinstein, 1969. I will not give detailed citations for my own presentation here since the above cited historical reviews are ample, and I intend only a brief analytical sketch, placed for convenience in a historical framework and to be filled in later in the course of the book. 19. 10 Clark and Finnelly, 200 (1843). 20. See, for details, Piatt, 1965. He remarks, generally, that "The criminal law of England and the United States, from its earliest systematization in the middle of the thirteenth century until the present day, has always considered insanity as a mitigating or exculpating factor which exempts the accused from punishment" (p. 2).

12

The Meaning of Criminal Insanity

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." 21 This English rule was quickly adopted in the United States federal courts, and also in the state courts.22 Subsequently, in the course of the nineteenth century and early twentieth century, the federal courts and some state courts added to the M'Naghten formula a new test pertaining to volition: the lack of power to control the act (sometimes labeled "irresistible impulse") was to be an alternative to the lack of knowledge of the act's nature or wrongness. This alternative met with much controversy not only in legal circles but also in psychiatric circles.23 Until the early 1950s, M'Naghten—either in the earlier, narrower form or in what I shall call the "expanded" form—remained the test in all United States jurisdictions except New Hampshire. On this issue New Hampshire had remained a tiny island of dissent since around 1870. The test that New Hampshire had adopted was simply to ask whether or not the offending act was a product of mental disease.24 In 1954 the District of Columbia Court of Appeals announced a new rule for the District in the Durham case; 25 that rule was in most respects the formula of New Hampshire.26 This marked the first modern, major break from the M'Naghten approach, and it also marked the beginning of a series of significant changes— accompanied by great controversy—in the prevailing tests of criminal insanity in the United States.27 21. M'Naghten's Case, p. 210. 22. In addition to the citations in notes 18 and 20, above, see, for example, A. Goldstein (1967, p. 45) for a recent review of the current status. Since Goldstein's book appeared, a notable trend has developed in federal appellate courts to some version of the American Law Institute Model Penal Code formula (see note 29, below) or to an avoidance of a rigid formula as in Pope v US. 23. A. Goldstein reports that seventeen states and the federal system include such a provision in some reasonably explicit form (1967, p. 4 5 ) . Goldstein reviews the critical controversy on this issue. See also Keedy, 1952. 24. State v Pike, 49 N H 399 (1870). 25. Durham v US, 214 F2d 862, 45 ALR 2d 1430 (Annotated), 1954. 26. See Reid, 1962. 27. "The District of Columbia became a veritable laboratory for consideration of the details of insanity, in its fullest substantive and procedural ramifications" (A. Goldstein, 1967, p. 83). A merely quantitative review of the

Introduction The Durham

13 approach was generally rejected in other jurisdictions.

But the inclination to change was now widespread, and a trend developed toward a new test proposed in the American L a w Institute's Model

Penal Code.28

This new test was considered by many to be a

modernized v e r s i o n 2 9 of the expanded M'Naghten

test hitherto pre-

vailing. It proposed that "A person is not responsible for criminal conduct if at the time of such conduct as a result of mental disease or defect he lacks substantial capacity either to appreciate the criminality (or wrongfulness) of his conduct or to conform his conduct to the requirements of law." There is a second subsection to the effect that mere repeated criminal conduct is to be excluded as a ground for a holding of insanity. A n d the defect-of-reason element in

M'Naghten

was tacitly dropped as a separate and distinct element. By 1971 most federal jurisdictions had adopted or accepted the A L I test or some close variant of it. 30 The District of Columbia Appellate Court, however, has remained at least verbally with Durcases and the journal articles listed in the standard reference works as bearing on Durham directly (omitting innumerable discussions indirectly inspired by the Durham decision) immediately reveals the massive impact of that decision on legal thinking—in spite of its widespread rejection by the courts. 28. American Law Institute, Model Penal Code, Sec. 4.01, 1961. See note 30, below. 29. See, e.g., A. Goldstein, 1967, p. 87; Burger, 1964, and also 1962, p. 561. Overholser (1962) is critical of the ALI test just because it is, in his opinion, a refinement of the expanded M'Naghten test rather than a new test along the lines of Durham. The differences between the expanded M'Naghten test and the ALI test are discussed at some length in the decision of the U.S. Appellate Court, 7th Circuit, when it adopted the ALI test in US v Shapiro. It is clear that the three principal differences cited consist of modernization of language and use of terms expressing degree, rather than absolute polar terms; but the central content of the test remains the same. See also Wion v US p. 427. 30. The ALI test, or a close variant of it, has been adopted or is acceptable in all federal circuit courts except the First Circuit and the District of Columbia. It is adopted in US v Freeman (2d Circuit), US v Chandler (4th Circuit), Blake v US (5th Circuit), and Wade v US (9th Circuit); it is partially adopted in US v Currens (3d Circuit); it is accepted generally, though not restrictively with respect to the exact wording, in US v Smith (6th Circuit), Pope v US (8th Circuit), and Wion v US (10th Circuit). The above classifications do not take into account the second paragraph, directed presumably to the issue of the criminal psychopathic personality per se; the courts have reacted variously to this proposal, some rejecting it, others accepting it. A. Goldstein reports that five states had adopted the ALI test (1967, p. 88).

14

The Meaning of Criminal Insanity

ham, but a fair amount of doctoring of that rule has been necessary: the phrase "mental disease" now has an explicit definition provided by the court; 31 there is also a prohibition against expert testimony directed explicitly to the question whether the act was or was not a "product" of the mental disease.32 Some other courts, beset by the proliferation of new variants, have adopted an even broader, eclectic view in which it is proposed that what is needed is not some rigid formula but a readiness to examine in substance the cognitive, emotional, or volitional facets of the personality in order to determine if there is substantial impairment of these.33 The United States Supreme Court has been unwilling to require any particular test, holding that the state of psychiatric knowledge and the results of judicial experimentation in the area are as yet not such as to warrant imposing a test by the court. The court has said that the traditional or expanded M'Naghten test is acceptable but not required.34 And there is reason to suppose that in any case some reasonable form of insanity defense must be available as a matter of constitutional right.35 If we take M'Naghten as a base of reference, we might analyze in capsule form the developments beginning with M'Naghten as follows: (1) M'Naghten focuses on three major elements: (a) Mental disease (b) Defect of reason; this must be "from" the mental disease, and it must be "such that . . ." (c) One does not know what one is doing In M'Naghten it is clear that (b), the defect of reason, is the essential logical connective between (a) and (c). (2) A fourth element is eventually added in some jurisdictions as an acceptable alternative to (c): (d) One is unable to control what one is doing. 31. McDonald v US. See the discussion in subsequent chapters, especially in chapter 2. 32. Washington v US. 33. See Dusky v US, Feguer v US, Pope v US. See the position of then Judge Burger, 1962, p. 564. 34. Leland v Oregon. 35. State v Strasburg, p. 119; State v White, p. 965. See also Radish's (1968) discussion, especially on pp. 283-284.

Introduction

15

( 3 ) The defect-of-reason element, the essential logical connective in M'Naghten, tends to drop out of all the tests, without comment of any sort, as soon as there is any expansion of or departure from the original M'Naghten language. ( 4 ) In Durham the knowledge and self-control elements (c and d) are also dropped, and the mental disease element (a) is directly linked to the act as its cause. ( 5 ) Most commonly, however, where changes are adopted they amount to a verbally refined version of mental disease (a), plus lack of knowledge ( c ) , plus lack of self-control (d). As will eventually become evident to the reader, I believe that it is the element in (1) (b)—the defect of reason, which long ago dropped from sight—that offers the central clue to the meaning of insanity.36 But, as I have already said, I do not believe that the way to achieve understanding in this matter is merely by reshuffling these familiar counters; we must go at the matter in a more fundamental way. I shall turn next to an attempt to develop a fundamental understanding of what lies deep in the meaning of these phrases, in their relation to each other and to the context of law and psychiatry in which they are used. For although I do think they reflect profound moral and legal intuitions as these have emerged over the past few centuries, I do not believe these phrases reveal unambiguously or explicitly the meaning or the rationale of these intuitions. However, far from being the relics of archaic laws, far from reflecting the compromises of a legal system which in this area lag far behind science and psychiatry, these notions remain, I believe, essentially consistent with the most contemporary and enlightened developments in psychiatry, philosophy, and law. 36. See the discussion of "capacity for rational conduct," pp. 178 ft., below.

1

The Concept of Mental Disease

IS MENTAL DISEASE A MEDICAL CONCEPT?

I have alluded to four basic elements that are found, with various refinements and in differing combination, in the insanity tests adopted in federal and state courts. These elements, in capsule form, are (a) presence of mental disease, (b) presence of defect of reason, (c) lack of knowledge of nature or wrongness of the act, and (d) incapacity to refrain from the act. The way in which these elements are connected with each other when any or all appear in a particular test formula varies. Yet we can generalize, roughly yet adequately for our purposes in this chapter, by saying that elements b, c, or d, when they appear in a formula, are characterized as results or manifestations of element a, the mental disease. In this chapter I propose to study the first element, mental disease. This element, alone of the four, appears in every form of the insanity test that has gained any status in English or American law. There is, thus, agreement that it is essential. This is curious, for there is widespread disagreement over what it signifies; and as we shall see later, it is not at all clear why it should have the excusing force that it does. There can be little doubt of the powerfulness of the intuitive belief 19

20

The Meaning of Criminal Insanity

that it is appropriate to link insanity in some essential and central way with mental disease. The ubiquity of such a linkage in English and American law over more than a century, in spite of disagreement over how to analyze the specific sense of either of the notions, is evidence of the forcefulness of the intuition.1 One thing is plain: the notion of mental disease is understood against the background notion of disease in the realm of physical disorders. There are deep analogies at work here; and no doubt other related pairs of terms reflect the same sorts of analogy: "sound mind" and "sound body," "physical health" and "mental health," "physical breakdown" and "mental breakdown." 2 Historically, the term "mental disease" entered the legal picture (in M'Naghten) at a time when the notion of physical disease had emerged into prominence in the field of medicine. The eighteenth and nineteenth centuries saw a great upsurge of scientific interest and increasing success in understanding anatomy, the basic role of the brain, and certain specific kinds of disease causation and prevention.3 These successes, in the context of the often naive materialism of the times, engendered an optimism that looked for rapid progress toward a rational treatment of mental disorder as, at bottom, a direct symptom 1. See, e.g., Shelford, 1833, p. xliv: "Insanity is essentially a bodily disease. . . ." Bucknill, 1856, p. 20: "The element of disease therefore in abnormal conditions of mind is the touchstone of irresponsibility." 2. See, Shelford, note 1, above. Robitscher states that the influential nineteenth-century American psychiatrist, Isaac Ray, "was a firm believer in phrenology, [and] was guilty of a great oversimplification; he believed that all mental illness was accompanied by organic impairment and that the psychiatrist could unerringly differentiate between the mentally ill and those of sound mind" (1967, p. 46). Bucknill (note 1, above) uses language that clearly reflects the physical reference; he speaks of "impairment or perturbation of function" as the "chief test of cerebro-mental disease [i.e., insanity]" (p. 19). A contemporary authority states that "'mental illness' [is] a medical term, borrowed from the mechanistic concepts of classical physical disease" (Roche, 1958, p. 240). Roche also says, "The modern psychiatrist has his foundations out of the same concepts and discipline as that part of medicine which deals primarily with man's physical well-being. And within the same compelling canons of science, the psychiatrist has withdrawn mental illness further and further out of reach of moral prejudice" (p. 223). See Reik's discussion of the Doe-Ray correspondence (1953, pp. 187-188). 3. See, generally, Singer and Underwood, 1962.

The Concept of Menial Disease

21

of physical diseases not yet identified but undoubtedly soon to be so.4 Thus, in the earliest period that concerns us here, the phrase "mental disease" was a kind of promissory note cashable in the near future. Mental disease was tacitly or explicitly a physical disease (a brain disease) whose distinctive symptoms included mental malfunction. This notion is evident in court decisions even into the twentieth century.® Physicians—those who care for the body rather than the soul—would naturally enough be the appropriate experts to identify and treat mental diseases. The existence of widespread disagreement among physicians over the correct principles of diagnosis or classification—not to speak of etiology—was natural enough in view of the lack (supposedly for the time being) of a definitive identification of the physical causes of mental disease. Meanwhile, some symptoms, such as delusions and hallucinations, were plain enough signs of the presence of a disease; in other cases, it was arguable whether a particular phenomenon, for example, a homicidal melancholy or a manic profligacy, was an effect of physical disease or was simply the perverse conduct of a moral libertine. As is so often the case in analogous breakthroughs in the history of 4. Stephen's discussion provides a good example, based as it is on a review of the relevant medical literature deemed authoritative by him (1883, 2:133-134). The statement in Ray's classic text, much cited by lawmen, is representative: "Insanity is a disease. . . . To distinguish the manifestations of health from those of disease, requires the exercise of special learning and judgment; and if no one doubts this proposition, when stated in reference to the bowels, the lungs, the heart, the liver, the kidney, etc., what sufficient or even plausible reason is there, why it should be doubted when predicated of the brain?" (1838, p. 39). In 1833 Shelford stated in his text: "Insanity is essentially a bodily disease, and the moral causes operate in producing it, as they do in other complaints. . . . "The moral causes include those emotions which are conceived to originate from the mind itself, and which, from their excess, tend to distort the natural feelings; or, from their repeated accessions, and over-strained indulgence, at length overthrow the barriers of reason and established opinion: such are the gusts of violent passion, and the protracted indulgence of grief; the terror impressed by erroneous views of religion; the degradation of pride; disappointment in love; and sudden fright. . . . The moral cause, therefore, is always the remote cause; the physical, the proximate, or that state of the cerebral functions which immediately precedes the peculiar action denominated maniacal" (p. xliv). 5. See, e.g., Green, 1940, p. 1201.

22

The Meaning of Criminal Insanity

ideas, of science, and of technology, so also it was the case that this dramatic new progress, resulting from a new approach to physical disease, generated a new doctrinal optimism. Many forward-looking persons expected a kind of universal resolution of all disorders in the individual as a result of the new approach; more than this, the new optimism blinded many judges and legal scholars to legal and moral problems that would remain unresolved even if the postulated physical causes of mental disease were demonstrated to exist and were identified. However, the first difficulty, a difficulty that renders all the others more pressing than ever, is that to this day no such general physical explanation of mental disease has been demonstrated. What is the significance of this fact? Is it that no demonstrable physical explanations of all mental diseases will ever be forthcoming? Neither the current state of our analysis of the concept of mental disease nor the continuing rapid progress of science can at present logically or empirically warrant such a negative claim.6 Does the lack of success to date signify that the law must perforce mark time, continuing to get along as best it can in a makeshift way, until the new day dawns? Too much time has passed, too much is involved in the way of human destinies, of legal doctrines and institutions, to continue purposely to patch and paste out of respect for century-old but as yet unfulfilled expectations. I would like to suggest that we can gain productive insight by reexamining this very cul-de-sac. For, looking at it all from a different angle, what we can see is that for centuries the law intuitively apprehended that there is something about insanity ("lunacy," "madness") that makes it a prime ground for excluding the afflicted person from criminal responsibility, and that mental disease is a necessary element in criminal insanity. We see that this has been apparent to all, to the common folk as well as to legal authorities and moralists; and it has been apparent regardless of the many differing hypotheses over the years regarding specific causes of insanity—whether physicalistic in 6. Diamond, 1961, makes a flat prediction, admittedly his personal opinion, that a chemical understanding of mental disorder will be forthcoming by 1971! However, the probability that there is logical confusion in such optimism is great, even aside from any unresolved empirical questions. The discussion of the concept of mental disease in Part I of this book brings this logical confusion out in a variety of ways.

The Concept of Menial Disease

23

orientation or not. In other words, we are dealing with a long history, which spans the lives of many different judges, medical men, and scholars living in different communities and adhering to a wide variety of (unverified) suppositions concerning the causes of insanity; yet, throughout, it has been a dominating intuition that insanity should be a defense to criminal charges, and that mental disease is essential to the defense. Though they have never been able to specify the purported physical pathology underlying insanity, the courts, medical men, and laymen have for centuries been able to identify cases of insanity (with near universal agreement in the more extreme cases). Likewise, without any knowledge of the physical aspects of insanity, the courts, medical men, and laymen have appreciated and have nearly universally acknowledged that insanity precludes responsibility. All this surely suggests, indeed it almost certainly proves, that the concepts of insanity and mental disease, as relevant to the criminal law, must have a meaning and a rationale that are not tied to any specific causal or physical hypothesis at all. The meaning and rationale must be rooted deeply and widely in the ethical-legal notions of our culture, in our everyday notions of human nature and human relations, rather than a special, esoteric, or technical notion tied to some particular causal hypothesis or technical formulation. Indeed, as I shall argue later, the notion in question amounted, roughly speaking, to the idea that the person whose mind is such that he lacks the capacity to act rationally cannot be a responsible person and hence cannot fairly be held morally responsible. And "act rationally" is here a notion underlying and in a way governing our everyday dealings with each other; it is not a notion belonging to some philosophic doctrine or scientific theory. What can easily tend to confuse the modern reader is that he will take the very broad concept of capacity for rational conduct as equivalent to certain relatively narrow concepts such as intellectual capacity, or certain quasitechnical concepts such as cognitive capacity. But rational conduct is a notion that alludes to far more than the purely intellectual or cognitive powers. Acts may be irrational by virtue of excess or defect of emotion, or by virtue of bizarreness of mood, or from defect of will, as well as by virtue of intellectual flaw. To regain a sense of the deep-lying everyday concept of rational conduct and to strip

24

The Meaning

of Criminal

Insanity

away the confusions generated by intellectualistic distortions of the notion will be important tasks in a later chapter. But I think it desirable at least to mention the matter here, even at the risk of leaving the false impression that a mere shift of terminology is to be offered as a solution to our problems. Indeed it has been fashionable for medical men, too, to insist that insanity is in truth not a medical term but journalese, 7 a quaint popular term, a term now used formally only in such folk institutions as the law. So we shall not dwell on that term for the present, but turn instead to that of "mental disease." In the case of this notion, it has seemed to many in modern times that here, at least, we do have a secure medical basis for the concept. Let us therefore examine in specific and contemporary terms the question: Is mental disease a medical concept? 8 It has been widely though not universally held that "mental dis7. Schmideberg speaks of "the journalese term 'sick'" in this connection, 1962, p. 21. Psychiatrists commonly avoid the term "insanity" except in the legal context, and they use it then in what they take to be a legal sense. See note 11, below. 8. "Our hospital received a patient, pre-trial, for about a three-month observation period. It was our consultant's opinion (a psychiatrist of thirty years' experience), concurred in by a staff physician and myself, that the patient had "no mental disorder.' For some reason, the court also appointed two local private psychiatrists to examine the man, one of whom found him to be a schizophrenic, paranoid type, and the other called him a paranoid state. At the trial, two psychiatrists from the hospital testified as to the fact we found no mental disease, and the two court-appointed psychiatrists, of course, testified as to their findings of mental disorder. Then, the prosecution put on the stand a fifth psychiatrist who had examined all the reports of the four experts and had listened to their testimony, and he expressed the opinion that on the basis of all the 'facts' presented he could find no basis for the finding of a mental disorder which would diminish the defendant's responsibility. The jury thereupon found the man 'not guilty by reason of insanity' and 'still insane' and committed him to the hospital which had just testified it had found him without mental disorder." A footnote to the preceding adds the rest of the story: "the patient, within two months, petitioned for a writ of habeas corpus. The hospital took the position that it was the jury's responsibility to determine insanity, and that this took precedence over the hospital's previous findings of no mental disease. We further stated that, in view of the conflicting evidence as to the patient's mental condition, we needed further time for observation and study. As time has gone on, we have reversed ourselves, and

The Concept of Mental

Disease

25 9

ease" is (obviously) a medical term, more particularly a term within the special purview of those medical men charged with the study and care of behavioral abnormalities—the psychiatrists.10 Turning to the psychiatric literature to explore this general thesis reveals, however, that there is no authoritative or generally accepted it is now the hospital's finding that this patient is suffering from a type of paranoid psychosis and requires further hospitalization." (Baur, in "Forensic Psychiatry Symposium," 1962, p. 15.) The gap between claim and fact in psychiatry can be wide; Glueck's claim in 1954 about the ability to diagnose and explain stands in sharp contrast to Baur's not at all untypical report above. Glueck says, "It is, I suppose, a reflection of the relative youthfulness of psychiatry as a medical science, that creates the present inequality between our ability to diagnose and define in rather exact fashion the existence of emotional illness, including fairly accurate speculation about the causes, and our relative inability to change these patterns with present therapeutic methods" (1954, p. 132). See also the pessimistic conclusion of the distinguished British psychiatric expert, Henry Rollin (1969, summarized on p. 121). 9. For example, "When the McNaghten judges used the term 'insanity' ('by reason of insanity') they could not possibly have meant anything but a reference to a medical condition, and this remains true today. The only legal meaning of insanity, as far as the criminal law is concerned, must be that of an absence of mens rea or an absence of actus reus by reason of a medical condition, whether we call it a mental disease or a mental illness, or madness, foolness or lunacy" (Mueller, 1961, p. 110). "Mental disease, on the other hand, is a medical problem" (Keedy, 1952, p. 933). "Mental illness is a medical concept and so it would seem self-evident that its definition should come from the medical profession" (Weihofen, 1960). "Mental illnesses . . . are the subject matter of medical science" (Carter v US, p. 617). "We do not insist on a legal formula in diagnosing other disease; why in this instance?" (Sobeloff, 1955, p. 795). See also note 10, below. 10. "There is no written or unwritten law which presumes to tell us what appendicitis is. The doctor's diagnosis in such a case is accepted, as well as the doctor's method of demonstrating how he made the diagnosis and how he confirmed it. There is not a lawyer in the world who would challenge such a doctor by confronting him with a legal definition of appendicitis and forcing him to prove or disprove the presence or absence of legal appendicitis, regardless of the clinical, pathological condition known in medicine as appendicitis. "On the other hand, for centuries jurisprudence has claimed that it was able to make its own diagnosis of its own conception of so-called legal insanity, and by means of statutory formulas impose both the legal pseudo-diagnosis and the legalistic criteria upon the medical clinician who stands as witness"

26

The Meaning

of Criminal

Insanity

11

medical definition of mental disease. Indeed, the single most impressive fact is a negative one: the phrase "mental disease" is notable by its absence in most of the theoretical, textbook, clinical, and dictionary literature. In short anyone who uses the term, be he psychiatrist or not, can claim no decisive professional authority as the basis for his use. When the problem of defining mental disease is raised explicitly, it is in fact resolved by some personal decision, or at times a hospital decision, and in any of the following very different ways: ( 1 ) There is no such medical entity as mental disease, or w e would do well not to use the phrase. 12 ( 2 ) Mental disease is psychosis but not neurosis. 13 ( 3 ) Mental disease is any significant and sub(Zilboorg, 1955, pp. 331-332). In a similar vein to the comments of the psychiatrist, Zilboorg, are those of Judge Sobeloff: "If on an issue whether someone had typhoid the pathologist were told that he must not consider the laboratory tests, but only one symptom, temperature, which is solemnly declared legally conclusive, who would have confidence in such testing or such procedure?" (1955, p. 795). See also SobelofFs comment note 9, above. 11. See, generally, Blocker v US, pp. 859-862. See also the American Psychiatric Association's 1952 Diagnostic and Statistical Manual, Mental Disorders; it explicitly drops the term "mental disease," which is found in early editions of the manual. "Mental disorder" is used as the generic term for mental pathology. The manual speaks of "mental deficiency" as "a legal term, comparable to the term insanity, [which] has little meaning in clinical psychiatry" (p. 10). 12. "I will say there is neither such a thing as 'insanity' nor such a thing as 'mental disease'" (Roche, 1958, p. 240). See note 11, above. In their dictionary entry under "Mental Disease," English and English say, "the term is unfortunate" (1958, p. 317). Under the entry "psychosis," Hinsie and Campbell's dictionary states that "It is not considered in keeping with available facts to refer to psychosis as a disease" (1960, p. 602). See Frohlich, in Encyclopedia of Mental Health (1963, p. 1032). 13. For testimony of psychiatrists to this effect, see, e.g., Lyles v US, p. 735: "The Witness [Dr. Paretti]: A psychotic person, a person who has a psychosis, is insane. A person who has a neurosis is not insane." Davidson, 1956, remarks, "only psychoses are species of insanity" (p. 2); " 'mental disease' (which means insanity)" (p. 3); "a person with a definite psychosis (actual insanity)" (p. 4). A. Goldstein reports the "long-existing tendency to treat insanity, mental disease, and psychosis as synonyms" (1967, p. 235). Waelder is more cautious and says that the "central core of the concept" of mental disease includes the psychoses, but that there is "a vast fringe area of conditions which may, or may not, be considered to be diseases of the mind" (1952, p. 384). See also, Krash, 1961, p. 925.

The Concept

of Mental

Disease

27

stantial mental disturbance, or is any condition at all that is authoritatively dealt with by the psychiatrist or physician treating mental conditions. 14 ( 4 ) Mental disease means substantial social maladaptaReid reports that under the New Hampshire practice (where, as he says, the hospital's findings are accepted by the courts "with hardly an exception"), "It seems to be virtually a policy that a person will not be certified as criminally insane unless he is a psychotic" (1960, p. 18). Bromberg and Cleckley report that, "In practice, psychiatrists have utilized a rough standard which states that if a prisoner was clearly psychotic at the time of the act, he was also irresponsible, i.e., he did not know wrong from right and did not know that he was doing wrong" (1952, p. 731). 14. See, e.g., psychiatrists' reports and testimony in US v Currens, pp. 754756, 762. See generally, American Psychiatric Association, A Psychiatric Glossary, p. 47, wherein it is stated that "mental disease" in effect serves as a pragmatic label for a miscellaneous totality of classified conditions at any time. English and English's dictionary speaks of "disabling disorder" as including psychosis and neurosis, but as turning on social maladjustment. See Alexander's position in Kruse, 1957, p. 138. Diamond, 1962, pp. 192-193, says, "It is true that there are many voices in psychiatry who protest that no type of deviant psychological behavior is a mental disease, that there is no analogy between disease of the body and disease of the mind or emotions, and that the terms disease and illness should not be applied even to the conceptualization of psychological abnormality. Although the adherents of this view have much logic on their side, it is unlikely that any sizable proportion of psychiatrists agree. Most of us still regard psychiatry as a specialty of medicine and we look upon the various categories of mental abnormality as divisible into entities properly called diseases. Such abnormalities, be they manifested by disorder of mind, emotion, character, or behavior, are correctly considered to be illnesses in a sense analogous to the use of the term in describing the pathology of the body." Another writer states, "The nomenclature criterion of disease is a variant of the treatment criterion. Its proponents argue that mental disease should be defined as that which comes within the classificatory system of accepted psychiatric nomenclature, such as is found in the Standard Nomenclature of Disease and Operations. But again the definition is circular. What should be included in psychiatric nomenclature? The only answer is mental disease" (Swartz, 1963, pp. 400-401). Menninger has said, "to say that this is an illness, to say that this is a sickness, was not originally a medical decision. It merely meant 'I have something in the way of trouble for which I do not go to the blacksmith. I do not go to the tax collector. I do not go to the agricultural expert.' And, This is a condition for which I go to a doctor'; and this is the only consistently defensible definition of illness, sickness, disease, et cetera" (Proceedings 10th Circuit, 1962, p. 567). Then Judge Burger reports with some irony that "Since that time St. Elizabeth's [Hospital in Washington, D.C.] psychiatrists have taken two other great leaps forward in

28

The Meaning

of Criminal

Insanity

15

tion, or incompetence, or both as judged by legal criteria. (5) Mental disease is the failure to realize one's nature, capacities, or true self.18 A review of the literature in psychology reveals similar results: there is neither a clear definition of mental disease nor agreement on how best to approach such a definition.17 Turning to the legal literature on the question, we again find inconsistency and no help toward providing an appropriate medical the minds of some; not so forward in the minds of some of the rest of us. They have decided that a person with an emotionally unstable personality has a mental disease in another case, Campbell against the United States. And, in yet another case they have decided that a man with an inadequate personality has a mental disease in these terms" (Proceedings 10th Circuit, 1962, p. 562). 15. See English and English, note 14, above; Group for the Advancement of Psychiatry Report, 1954, p. 8; Frohlich (note 12, above), pp. 1038-1039. Leifer states: "In psychiatry, the characteristic of behavior which negates its intentional nature and qualifies it for the designation 'illness' is precisely that it is unconventional; that is to say, no acceptable conventional explanations can be offered by the actor. It is therefore a history of unconventional behavior of a socially disruptive nature which defeats the ascription of both mental health and intention" (1964, p. 830). Livermore and Meehl state that "mental health usually involves, among other things, 'adjustment to a particular culture or to a particular set of institutions,' mental disease or disorder involves slight incremental gradations of nonadjustment" (1967, p. 799). The definition proposed by the report of the Group for the Advancement of Psychiatry is in effect oriented to social maladjustment as the criterion of mental illness: " 'Mental Illness' shall mean an illness which so lessens the capacity of a person to use (maintain) his judgment, discretion and control in the conduct of his affairs and social relations as to warrant his commitment to a mental institution" (1954, p. 8). Roche says, "Now, when I say, 'This person has a mental illness,' as a qualified observer, I am merely reporting that the subject is so changed and so alienated from his fellow community that we must do something about it" (1958, p. 240). 16. See, e.g., K. Goldstein, 1959, pp. 1334-1335; Jahoda, 1963, pp. 1067 ff. 17. See, generally, Scott, 1958. See also the remarks of Livermore, Malmquist, and Meehl, 1968, footnotes 11 and 19. They say, "A fair statement of the present situation in psychiatry and clinical psychology with regard to 'disease entities' would be that nobody knows whether or not such entities exist outside the domain of the 'organic' psychoses associated with demonstrable damage to the brain by trauma, toxins, infections, vascular disorder, senile changes, etc. The conceptual and statistical problems involved are difficult, recondite, and highly technical."

The Concept

of Mental

Disease

definition of mental disease.

18

29

In the course of its ground-breaking

comments o n this question since the Durham

decision, the District of

Columbia Court of Appeals concluded both that mental disease is a medical c o n c e p t 1 9 and that as such it is not restricted to the psychoses. 2 0 O n the other hand, the Report Capital

Punishment

flatly

of the Royal

Commission

on

stated that the phrase "mental disease"

should explicitly exclude the neuroses and certain other disorders and thus should be broadly the equivalent of psychoses. 2 1 Pennsylvania, a state whose legislation in this area reflects much recent professional thought, defines mental disease in terms of social maladjustment and legal incompetence. 2 2 S o m e authorities recommend leaving the n o tion undefined, 2 3 which is done in various jurisdictions either explicitly or tacitly. 18. A. Goldstein (1967, pp. 47-48) reports that "There has been almost no judicial definition of mental disease in cases concerned with the M'Naghten rule. The reason commonly advanced is that the more detailed part of the rule—dealing with knowledge—makes it plain that only a limited number of psychoses and the most extreme forms of mental defect can qualify. In any event, the words are usually presented, without explanation, as part of the charge to the jury." See, e.g., Hawkins v US; US v Currens, pp. 771-773; Blocker v US, pp. 859-863. See also US v Smith (1954) for a general discussion of military law. Krash (1961, pp. 921-929) and Rome (1964, pp. 106107) discuss the problem as it arose in the District of Columbia after Durham. See also Fox, 1963, pp. 666-667. Swartz (1963, p. 391) says, "To a large degree the meaning of mental disease is personal to each practitioner." He cites E. Stengel, "Classification of Mental Disorders," Bulletin of the World Health Organization 21:601 (1959) as follows: "Everybody who has followed the literature and listened to discussions concerning mental illness soon discovers that psychiatrists, even those apparently sharing the same basic orientation, often do not speak the same language. They either use different terms for the same concepts, or the same term for different concepts, usually without being aware of it. It is sometimes argued that this is inevitable in the present state of psychiatric knowledge, but it is doubtful whether this is a valid excuse." 19. Carter v US, p. 617. 20. Briscoe v US, p. 641, n. 2, and p. 644. See also US v Currens. 21. Report of the Royal Commission on Capital Punishment, 1953, p. 131. 22. Pennsylvania Mental Health Act of 1951, Pa. Stat. Ann., tit. 50, sec. 1072 (11) (1954). 23. A. Morris (1968, p. 620) says in a footnote, "This leaves the 'mental disease* notion undefined; but here I follow Professor [A.] Goldstein: 'It is now apparent that a precise definition of insanity is impossible, that the effort to eliminate functional definitions deprives the jury of an essential concreteness

30

The Meaning of Criminal Insanity

It will repay us to examine in slightly greater detail perhaps the most extensive modern legal Odyssey in the quest for a definition of mental disease—the series of cases in the District of Columbia Appellate Court consequent on the Durham decision. In retracing this road, we can see more deeply, and in a practical context, basic features of the logic of the concept of mental disease. In 1954, in the landmark Durham decision, the United States Court of Appeals in the District of Columbia abandoned the M'Naghten test. The court adopted in its place as the crucial test question whether the offending act was "the product of mental disease or defect." 24 In Durham the court elaborated on its basic formulation only to the extent of distinguishing between disease and defect in that the former term was used "in the sense of a condition which is considered capable of either improving or deteriorating," whereas the latter was a nonchanging condition "which may be either congenital, or the result of injury, or the residual effect of a physical or mental disease." 25 In effect, the terminology employed in this definition looks medical, but it is also quite vague. If it were intended to provide any guidelines at all, even to experts before the court, it certainly never achieved that purpose.26 In Carter v United States,27 three years later, the case was remanded for a new trial, and the court felt called upon to discuss the of statement and that it is entirely sensible to leave "mental disease" undefined, at least so long as it is modified by a statement of minimal conditions for being held to account under a system of criminal law' (p. 87). The basic reasons are that there is no disease, qua disease, that automatically exculpates its sufferers from criminal responsibility (see Carter v US 252 F. 2d 608, 617 [D.C. Cir. 1957]): thus the concept of criminal insanity does not function to raise medical questions, but, rather, it raises questions of social policy, functioning to state the criteria under which official criminal condemnation shall not take place, identifying why that condemnation shall not take place, rather than upon whom. See Fingarette, The Concept of Mental Disease in Criminal Law Insanity Tests, 33 U. Chi. L. Rev. 229 (1966)." See also Reid, 1962, p. 741: "The principle of leaving as questions of fact words, definitions and elements, which other approaches to criminal insanity require be spelled out and explained to the jury, is not only a characteristic which the New Hampshire doctrine shares with Scotland, but is the unique feature which separates them from M'Naghten, from the irresistible impulse test, from the Model Penal Code rule, and, most notably, from Durham." 24. Durham v US, p. 875. 25. Ibid., p. 875. 26. See, e.g., McDonald v US. 27. Carter v US, 1957.

The Concept of Mental Disease

31

insanity test for purposes of guidance in the second trial. The court stated, "Mental 'disease' means mental illness. Mental illnesses are of many sorts and have many characteristics. They, like physical illnesses, are the subject matter of medical science. . . . The problems of the law in these cases are whether a person who has committed a specific criminal act—murder, assault, arson, or what not—was suffering from a mental disease, that is, from a medically recognized illness of the mind."28 While the court was careful to indicate that the testimony of psychiatrists is only one form of evidence and that the ultimate determinations and inferences are for the trier of fact, there was an underlying assumption not only that medicine properly has authority, that it can define mental disease, but also that it has in fact exercised this authority. And implicit in these suppositions was a further presupposition: the court tacitly assumed that the grounds on which a particular definition would be adopted are substantially medical grounds; for if there were relevant and important nonmedical considerations involved, we should hardly expect the medical specialist alone to be qualified to decide on a definition. Since the court insisted on "mental disease" as a central term but gave no clue to its meaning except to say that it is a medical term, many psychiatrists, desirous of cooperating responsibly with the law, felt compelled to decide the meaning of mental disease. Predictably, in the course of reaching such decisions, the psychiatrists tacitly had to anticipate what in practice the court would accept as a definition for purposes of excusing from criminal responsibility. As a result, psychiatrists often made a pragmatic judgment that the courts would not accept every officially classified disorder as a mental disease; 20 instead, most psychiatrists utilized a psychiatric category that they supposed would roughly serve—at least serve better than any other single psychiatric category—to bring out the mental condition relevant to criminal responsibility. The general tendency of the psychiatrists under Durham was to equate mental disease with psychosis.30 Of course, in so doing the psychiatrist was making a judg28. Ibid., p. 617 [emphasis added]. 29. See, e.g., Donnelly, Goldstein, and Schwartz, 1962, p. 782 (quoting

from record, Lyles v US). 30. A. Goldstein (1967, p. 59) says, "The preconceptions of the participants may be as important as the rules of law in determining the effective scope of the defense.

32

The Meaning

of Criminal

Insanity

ment about criminal responsibility—a judgment that he was not authorized to make and with respect to which he is, of course, not expert. 3 1 In effect, the courts thus gave the medical men a kind of judicial authority in matters of vital importance to the court. Analogous effects, more extreme yet, have been reported from N e w Hampshire and Scotland, where psychiatrists settle the question o n their o w n because of the lack of judicial definition. 3 2 In 1 9 6 2 the District of Columbia Court of Appeals, in McDonald

v

"The most important of these preconceptions is the operative assumption of psychiatrists and lawyers that the law regards insanity and psychosis as identical." See, generally, Hall, 1956, pp. 784-785; Reid, 1960. See also Donnelly, Goldstein, and Schwartz, 1962, pp. 758-769 (quoting from record, Durham v US). Judge Bazelon's comments in his opinion in Briscoe v US reflect the awareness of the problem that had developed only a few years after Durham: "If, by testimony that the accused either was or was not suffering from a 'mental disease' or a 'mental defect,' a psychiatrist would be expressing a judgment that the accused should or should not be acquitted, that would be a legal rather than medical judgment and would usurp the function of the trier of the facts. While the state of the accused's mental health is a proper subject of medical opinion, no purpose is served by giving the fact trier a doctor's version of a legal opinion. To that end, if the psychiatrists were to testify in terms embodying legal conclusions, the lawyers, by examination and cross-examination, would seek to bring out the medical facts. The same is true if the psychiatrists were to testify in such ambiguities as 'sound mind' or 'unsound mind.' "The statement of the psychiatrists . . . that petitioner was free from 'mental disease' could have been intended to mean that he was of normal mental health—a medical judgment within the witnesses' competence and useful to the fact trier. They could also have been intended to mean that petitioner's illness, not being a psychosis, was not such a 'disease' as discharges of guilt— a legal judgment not within the witnesses' competence and of no use to the fact trier" (p. 644). 31. See Rubin, 1965, p. 81; Reid, 1960, pp. 15-16; Szasz, 1958, p. 189. 32. "In Scotland, as in New Hampshire, the prosecution, whenever it suspects that either past or present insanity may be a factor, seeks a medical determination of the issue and acts according to the medical advice which it receives. No New Hampshire case has been found in which the State has challenged the report of court-appointed psychiatrists, and so long as the present atmosphere of cooperation exists it is unlikely that a report ever shall be challenged. Admittedly there are flaws in this. For one thing it has led New Hampshire lawyers to rely blindly on the experts without looking behind their reports" (Reid, 1962, p. 735).

The Concept United

States,

of Mental

33

Disease

reversed and remanded the appellant's lower court

conviction for manslaughter, apparently because the trial judge did not properly instruct the jury o n the meaning of the insanity defense. 3 3 However, by this time the court finally felt compelled also to set out a judicial definition of mental disease. 3 4 T h e court seemed at last to have appreciated that in some way its previous use of this term was not simply the medical use and that it could not leave the issue of mental disease to the medical men. 3 5 Although the court still seemed to think there is some definite "clinical" use, it asserted that "a 'mental disease or defect' for clinical purposes . . . m a y or may not be the same as mental disease or defect for the jury's purpose in determining criminal responsibility."

36

A t last, the focus was re-

moved from psychosis or other broad psychiatric categories 3 7 and placed o n "mental disease" as a phrase requiring "a judicial defini33. See discussion by J. Miller, dissenting and concurring. McDonald v US, p. 852. 34. "[T]he court does take [in the majority opinion] two important, much needed and long overdue steps: (a) it says, for the first time, what we mean by the term 'mental disease or defect' in connection with criminal responsibility; (b) it rules quite clearly that the jury is the sole and final judge of the credibility of all witnesses, including those who testify as experts, and that it is to be so instructed. Heretofore, these two elements have been sadly lacking in this court's opinions" (ibid., p. 861). 35. In this connection, see subsequent explanations of McDonald in Gray v US, pp. 727-728; Hawkins v US, pp. 851-852. 36. McDonald v US, p. 851. Perhaps the court even appreciated that there is no systematic medical use, for it also referred to "ad hoc definition or conclusions as to what experts state is a disease or defect" (ibid.). 37. See the Royal Commission on Capital Punishment, 1953. Cf. Carter v US, p. 617, where the court, after generally stating that mental disease is properly the subject of medical science, notes that "unexplained medical labels —schizophrenia, paranoia, psychosis, neurosis, psychopathy—are not enough. Description and explanation of the origin, development and manifestations of the alleged disease are the chief functions of the expert witness." See note 8, above, for an example of the unreliability of the mere diagnosis by medical men according to psychiatric labels or categories. Wallinga, 1956, in a study of diagnostic labeling in military psychiatric hospitals reports that "Not infrequently, a majority of the diagnoses assigned are inappropriate and require subsequent modification" (p. 1312). For a nightmarish case of mis-diagnosis, see Egan v US. For a continuing series of shifting diagnoses by a series of psychiatrists, see Jenkins v US.

34

The Meaning of Criminal Insanity

tion, however broad and general, of what is included in the terms 'disease' and 'defect.' " 38 The definition proposed was verbally simple and concise: "[F]or the jury's purpose in determining criminal responsibility . . . [it] should be told that a mental disease or defect includes any abnormal condition of the mind which substantially affects mental or emotional processes and substantially impairs behavior controls." 39 This definition constitutes in effect a reversion to a form of the old familiar pie-Durham formulae. The elements of (1) lack of knowledge and (2) lack of self-control, as (3) due to mental disease, here appear in the far vaguer and broader form as (1) "mental . . . processes" that are "substantially affect[ed]" and (2) "behavior controls" that are "substantially impair[ed]," (3) owing to "any abnormal condition of the mind." 40 The inclusion of substantially affected "emotional processes" constitutes the addition of a new element whose logical role is exactly the same as other familiar elements but whose meaning widens the substantive scope of the test beyond anything ever allowed in M'Naghten or probably any of its modern variants and expansions such as the ALI Model Penal Code test. The McDonald decision is so vague and so broad in its meaning, taken in itself, that it can hardly be said to constitute an explanation of what mental disease is. In truth it amounts to a suggestion of general categories of relevant types of data ("emotional processes," "mental processes," "behavior controls," "abnormality," "impair," "affect"). But there are no internal indications of where and how to draw the crucial boundaries among types of processes and controls or degrees of abnormality, nor are there any criteria offered for application of the boundary term "substantially." 41 Indeed, as a prac38. McDonald v US, pp. 850-851. A. Goldstein describes the trend we are here concerned with: "Even under Durham, the phrase 'mental disease' has begun to look less and less medical, more and more normative, as close attention has been directed to it" (1967, p. 89). 39. McDonald v US, p. 851. 40. See pp. 14-15. 41. Livermore and Meehl (1967, p. 829) say, "The chameleon 'substantial' does not provide an effective limitation; necessarily, it must bear the meaning the user wishes. The effect on processes is substantial enough to consider the individual diseased. How can one answer how much more substantial, if at all, the effect must be before it is substantial enough to qualify as a mental disease for McDonald purposes? How can the jury decide that issue? If the

The Concept of Mental Disease

35

tical matter, this definition was advanced not as a device to make the notion of mental disease more precise and specific, but as a device for accomplishing just the opposite. It was aimed at eliminating the problem that the court had been having as a result of the continuing tendency of psychiatric expert witnesses and some of the lower court judges to equate mental disease with some particular official medical category, usually psychosis. McDonald was in effect an attempt to make it plain that "mental disease" was a term that ranged over the entire realm of mind and mental disorder, to emphasize that what was decisive for legal application of the term was not any particular term of medical doctrine but. . . . And here, with this negative emphasis, McDonald in effect stops; beyond this it provides only obscure and ambiguous hints in the form of such terms as "abnormal," "substantially," and "impairs." If, for example, we ask what sort of abnormality is acceptable, we have several options. Either we must take McDonald at its word and accept as abnormality any abnormality—in which case we must allow as a basis for an insanity plea any abnormality of personality 42 or any such abnormal conditions of mind as are induced, for example, by physical exhaustion, voluntary intoxication, and accidental or wilfully inflicted brain concussion—or if the latter alternatives are unacceptable, as they surely are, we must not take the word "any" strictly and instead must somehow limit the types of abnormalities that are acceptable. But how do we set the limits? One way would be to say we will allow only those abnormalities that justify excusing a person from criminal responsibility. This would clearly be a questionbegging approach, since the point of the mental disease test is to provide an independent criterion of the absence of criminal responsibility. Another possibility is to say we will allow only those abnormalities that are genuine mental diseases. This would plainly be jury is permitted to say to the expert that what is substantial enough for you is not for us, are we not again simply covertly asking the jury to intuitively apply its own sense of justice? If we want to do this we should do it openly." See also, for example, the concern expressed about the vagueness of "substantial" in the ALI test by Judge Trask in his minority opinion in the closely split (7-6) Wade v US (9th Circuit) decision. Judge Trask calls this word in the ALI test "a worm in the apple" (p. 77). 42. See Campbell v US.

36

The Meaning of Criminal Insanity

question-begging as well, since the attempt to define mental disease is precisely what is at issue. Another approach would be to specify explicitly those independently specifiable legal and moral conditions that we tacitly have in mind as essential to legal-moral responsibility; then we could say that the kind and degree of mental abnormality must be such as falls outside the bounds of this essential legal-moral condition of responsibility.43 But McDonald gives no such legal or moral criterion for laying down a boundary within the domain of the psychological data. M'Naghten and its extended variants, and the Model Penal Code test, seem to propose such legal-moral criteria—for example, that the person must have been unable to refrain from the act or must have been without knowledge or appreciation of its wrongness. Unfortunately, these alone will not do the job; it is clear that one might lack knowledge or self-control for reasons other than insanity. Therefore, M'Naghten and its later variants specify mental disease as a further necessary condition of legal insanity, the mental disease being the distinctive reason for the lack of knowledge or self-control. Thus, we are left with the original problem: What is meant by "mental disease"? In summary, while the presence of the mental disease element in criminal law insanity tests would seem to presume the existence of an objective definition, and especially a medical definition, none seems to exist. This is true not only in psychiatry, but also in the nonmedical area of psychology. Despite a series of explicit or tacit assumptions that mental disease is a medical concept, the law does not 43. It is something of this kind that is at issue in the comment of Krash (1961, p. 933): "If psychiatrists are allowed to testify whether symptoms constitute a 'disease,' the jury must be carefully instructed that in applying the Durham test it may accept or reject expert testimony—that it is not deciding whether the defendant should be considered 'diseased' for medical purposes. The court should make plain that the jury renders what Durham itself characterized as a 'moral judgment,' or, in any event, a judgment of a highly complex nature in which the medical testimony is only one of many operative factors. As one District Judge has aptly put it: '[W]hether a given defendant's condition amounts to a "mental disease" is a question of fact which is determined by a trier [of fact] after asking some questions which are particularly medical in orientation, and other questions which may not be necessary to a strictly medical diagnosis.'"

The Concept of Mental Disease

37

supply any answers and, in granting to psychiatrists broad authority in the guilt-finding process, has tended to defer the responsibility to the personal opinion of the psychiatrists in the particular case. The attempt to give a legal definition of mental disease results in a formula so vague as to leave all the key questions unanswered and to translate Durham into a vaguer version of the more traditional tests. Nevertheless, a definition of mental disease is important where so central a concept is involved. One may well wonder whether there may yet be some objectively identifiable medical condition that ought reasonably to be classified as mental disease on the basis of accepted medical doctrine. It remains possible that the medical data and generally accepted medical doctrine logically allow such a classification even though no one has yet managed to set out the concept in such a manner as to gain general acceptance. In any case a more constructive attack on the problem will help us to detect the true logic of the concept of mental disease. To attempt such a constructive inquiry requires a more explanatory and synthesizing approach to the problem than can be provided by any mere inventory of dictionaries and authoritative texts.44 MENTAL DISEASE: A CROSS-DIMENSIONAL CONCEPT

The absence of a generally accepted and authoritative definition of mental disease is not an accidental embarrassment of the historical moment but a reflection of the fact that there are no fundamental grounds in medical doctrine for justifying a definition of the term. We shall now see why this is so. Let us suppose we were to try to discriminate from among all classified mental conditions or disorders those that ought to be set apart as a medically significant group aptly specified as "mental disease." Given the many specific diagnostic categories, what criteria would help to decide which ones in particular are to be classified as mental disease and which not? Or, to put the question in other words, 44. Some portions of this section and the following section of chapter 1 appeared in similar form in an article previously published (Fingarette, "The Concept of Mental Disease in Criminal Law Insanity Tests," 1966). However these passages have not only undergone editorial change but, in some respects, substantive rethinking.

38

The Meaning of Criminal Insanity

for what medical purposes would a psychiatrist have to be able to classify a person as having a mental disease or not? The problem is not merely the verbal one of deciding what set of conditions to term "mental disease." The problem is to find decisive medical reasons for making the decision in one way rather than another. Let us put the problem more concretely. Suppose, for example, we were to follow the line taken by some of those cited earlier and propose labeling the psychoses and only the psychoses as mental disease. We must ask, What medical reason is there for excluding, for example, the psychoneuroses? To say that the psychoses involve a break with reality in a way that the psychoneuroses do not is to present an important psychiatric reason for classifying psychoses and psychoneuroses differently—which is in fact done and is reflected in the use of just those two words. But what additional reason is there for calling one a disease and not the other? The same reason cannot be given, for the classification "psychosis-psychoneurosis" already takes care of the break-with-reality factor. A consideration of any other medically relevant factor will be found to be expressible in medical terms other than "mental disease." In each case the further classification "mental disease" will provide no additional medical information and thus will be either empty or redundant. Hence, the use of mental disease turns out to occur in a meaningful way only in contexts where nonmedical issues such as those of law, public welfare, social planning, or actuarial analysis are crucial. Since it is difficult to establish the negative aspect of this proposition, it will be helpful to attempt an indirect analysis of the notion of mental disease. We can most readily commence such an analysis if we turn to an analogy. Then, after discussion of the analogue, we can verify whether what the analogue suggests concerning mental disease is in fact warranted. Let us compare the idea of mental disease to the idea of inadequate vision. At first, inadequate vision seems to be a medical concept. Further reflection reveals, however, that although the oculist can provide important and relevant information, he cannot justifiably say, either in purely ophthalmological terms or even in general biological terms, whether vision is adequate. There is no need, for the oculist's purposes alone, to define adequate vision. All he needs to know is to what degree and in what ways a person's vision deviates

The Concept of Menial Disease

39

along a standard scale from some base point on the scale. The oculist also wishes to know about the bodily conditions, and sometimes the environmental conditions, that make it possible for the person to see or not to see in specific ways. Finally, the oculist would like to know what he can do to induce specific changes. Yet none of this, important as it is, settles the question whether vision is adequate or inadequate. The question whether vision shall be considered adequate depends on the context of the use of that vision. Adequate vision for a ditchdigger may not be adequate for a jeweler; and even a jeweler may have tunnel vision, a condition that does not substantially hinder his repair work but renders his vision inadequate for driving a vehicle. The medical condition of the eyes in each case may be the same, but the social task varies. Inadequate vision is thus in part an occupational concept. It is also a concept that can be rooted in public policy. For example, Jones may have adequate vision to drive in a community that is willing to take great risks and that has poor public transportation; whereas he may have inadequate vision in a community where public transportation is excellent and cheap, and where public policy favors minimizing risk. In either case the medical condition of Jones is the same. Given these kinds of grounds for defining inadequate vision in one way or another, the authority to establish the definition for, let us say, the purposes of the motor vehicle bureau is in effect the authority to resolve a policy question, not merely the ability to discover a matter of medical fact. The policy decision calls for an evaluation and synthesis, or at least a compromise, involving medical, legal, occupational, and other issues. Neither the oculist nor the traffic engineer alone is competent or authorized to decide the issue, although both can present expert testimony to be used in reaching such a decision. The decision itself must derive from an authoritative interpretation of public policy in the light of the technical information. The definition is in this sense a governmental one, not a medical one. A fundamental logical feature of this situation is that a boundary is defined within a dimension. What is distinctive and potentially confusing is that the purposes for which the boundary is laid down, and hence the proper authority to set the boundary itself, derive from the context of civil government; whereas the dimension on which the

40

The Meaning of Criminal

Insanity

boundary is laid down—that is, vision—is in the domain of medical expertise. The same logical heterogeneity is found in the case of political boundaries. The political authorities establish a boundary for mixed reasons having to do with politics, military posture, history, population, and natural resources. The boundary is in a dimension, however, which is the domain of one specific expertise, cartography. The basic categories and principles of the science of cartography have no systematic relation to these matters of state. This kind of cross-dimensional boundary concept is not uncommon. And in the case of mental disease, we have just such a concept. There are many different nonmedical or not entirely medical contexts in which we use the phrase "mental disease" as a handy device for accomplishing nonmedical purposes 45 by defining a boundary in the dimension of mind. For example, if we wish to withdraw certain groups, such as addicts, homosexuals, and alcoholics, from the punitive approach of the law, we may so use the phrase "mental disease" as to include these groups among the mentally diseased.46 The phrase may also be used to refer to those persons for whom public care or treatment is thought desirable. As public standards of comfort, safety, and money expenditures change, the line dividing health from illness (whether mental or physical) is shifted. Medical data are clearly relevant, but they do not decide where the line will be drawn; the public by its attitudes, laws, and institutions does this, and for a 45. See Swartz, 1963, pp. 395-396. 46. "Illness and disease have been used as labels to increase public acceptance of what doctors consider to be the full potential of medical and psychiatric treatment to create well being. In order to mark out the neuroses and behavior problems as legitimate areas of psychiatric concern, it is simplest to refer to them as disease. To the extent that this designation is accepted by the rest of society, the sick role will apply. When someone is considered ill, pressure is put on him by his fellows to seek medical help. As a result, the anxious person, the alcoholic, and the parent of a child with a behavior problem, instead of relying on nonmedical alternatives for dealing with his difficulty, will feel compelled to seek the assistance of a physician" (Swartz, 1963, p. 407). See also the various personality disorders listed in the official Diagnostic and Statistical Manual of the APA. See also Seeley's discussion of moral and institutional purposes that determine the application of the disease concept (1962, p. 593). And see my own study on the disease concept of alcoholism (1970).

The Concept of Mental Disease

41

variety of reasons. Physicians may use the phrase to emphasize to the layman that in the physician's opinion a certain person needs or might profit from psychiatric care.47 For actuarial purposes, the phrase may be useful to single out groups that have a relatively high incidence of occupational or other insurable disability without discoverable organic basis. In all these cases, the language itself ("disease") and the fact that it ranges over a domain where the medical man is expert can give the impression that this is a medical question per se. But in each case the grounds for defining the boundary as lying along a certain line and the appropriate authority for adopting this definition are largely nonmedical. From this latter perspective, "mental disease" is not a medical term, but may be a moral, legal, actuarial, or political one. In each case "mental disease" is a term used to introduce various nonmedical issues into a context where the factual dimension is in itself the domain of medical expertise.48 We have already seen how the use of the notion of mental disease and formulations along the lines of McDonald reflect a recognition of the obvious fact that the insanity plea concerns in some critical way the domain of mental abnormality; furthermore, we noted the increasing but not universally approved tendency to emphasize that the locating of the relevant boundary within the domain of mental abnormality ultimately rests not on psychological science but on awareness of the moral and legal conditions of responsibility. Yet an explicit analysis of the particular relevant moral-legal conditions has as yet not been offered by anyone. Another way to put the same point is to say that M'Naghten, the Model Penal Code formula, and DurhamMcDonald all require an explicit reference to mental disease whatever else they may specify. But instead of stating the legal rationale on which to settle the boundary location between disease and absence 47. See Swartz, 1963, p. 399. 48. See note 46, above. Swartz states flatly that "any definition of mental disease will involve value choices of social philosophy" (1963, p. 392). A. Goldstein says that "the concept of 'mental disease' unquestionably conceals competing social purposes" (1967, p. 91). Green states, "the term 'insanity' is used in different contexts with so many diverse and contradictory meanings that it becomes practically useless as an efficient symbol. One can never be sure what the word means when it is encountered, unless the context in which it is used is carefully analyzed" (1940, pp. 1190-1191).

42

The Meaning of Criminal Insanity

of disease, they offer only the labels themselves, "mental disease" or "abnormal condition of mind." I shall eventually propose a substantive solution to this problem in terms of the person's mental makeup and his capacity for rational conduct. But for the present it will be appropriate to let the matter rest with an understanding of the correct nature of the problem— that the ultimate answer to what mental disease must mean will come essentially from an awareness of the legal purposes of the insanity plea. Inquiry into medical theory or facts alone will never resolve the issues. If we recognize that the mental disease question and the insanity issue involve the laying of a boundary in the psychological dimension, but that the boundary serves and is justified by legal, ethical and social needs, this in itself provides material for reflection on some practical issues central to certain debates and controversies in this area of the law. For example, it is understandable (but not justifiable) that a psychiatrist should say that characteristic "psychological" terms used in law, such as "mental disease" or "insanity," have "no meaning" or "no reality." 49 The logical confusion here is akin to that of an oculist's were he to protest that inadequate vision has no meaning or reality in terms of the pure science of vision. In a way the charge is strictly correct, but the implications are not at all what the scientist who might make such a protest would suppose. It is true that the purposes for which these boundaries are laid down, the reasons and 49. One of the leading authorities of forensic psychiatry, and a principal consultant to the American Law Institute in connection with Section 4 of the Model Penal Code, stated, "The psychiatrist . . . believes that the present criteria of responsibility have no reality in mental life as far as he is able to analyze individual thought processes in mental disorders" (ALI, Model Penal Code, draft 4, 1955, p. 170). Another distinguished forensic psychiatrist, the late Philip Q. Roche, said, "The words of the M'Naghten rule relate to n o surrounding reality" (1955, p. 321). Dr. Karl Menninger has said, "I think [the psychiatrist's] competence does not relate to discussion that I understand occupies the mind of the Judge and jury, that is, . . . mens rea" (Proceed. 10th Cir., 1962, p. 567). Among the number of judges who have taken up this theme, Justice William O. Douglas has been one whose comment is typical: "The rule of M'Naghten's case became an arbitrary fixed rule though it had little relation to the realities of life" (1956, p. 487).

The Concept of Mental Disease

43

the authority behind them, do not belong within the oculist's science; hence from that standpoint the boundaries are meaningless. But this clearly does not imply that boundary lines between adequate and inadequate vision are meaningless from any and all rational standpoints. There may be no basis in pure cartographic science for laying down a political boundary in one place rather than another, but this does not imply that from any standpoint political boundaries have no reality. Analogously, the law lays down boundary concepts such as insanity or mental disease for the purpose of assessing moral and legal responsibility, and its reasons for establishing the boundaries in certain ways rather than others derive from this context of morallegal responsibility assessment, not from the sciences of physiology or of mind. (Exactly what the nature of this moral-legal boundary is and what are the specific grounds for it are questions we must postpone.) We must go further and look at the same point from another angle. The technical consultant who maintains that he dare not, as an expert, venture judgments on matters outside his "pure" art or science is a nonconsultant. The oculist, if he is to be a consultant, must attempt to understand the driving situation and the relevant governmental criteria of acceptable risk in order to advise how rationally to set a boundary in the purely visual dimension. The oculist does not have to be an expert on driving. And in the last analysis it is the bureau of motor vehicles and not the oculist who will decisively determine whether the suggested boundary is where it should be, since it is a boundary generated by the bureau's needs and designed to serve its purposes. The cartographer, as consultant, must attempt to understand the military, historical, and other political considerations in order to advise how rationally to translate these into a cartographically precise boundary that in fact will fulfill the political requirments. Ultimately, it is the government, however, and not the cartographer who will decide where on the map the boundary is to be drawn. The psychiatrist, as an expert witness testifying on the issue of criminal insanity, must attempt to understand the broad issues of concern to the law and to try to offer information from the perspective of his own discipline that will be helpful in enabling the lawful

44

The Meaning

of Criminal

Insanity

trier of fact to apply boundary concepts established by law and for the purposes of the law.50 This is the essence of consultantship.61 50. Menninger does not appreciate the full significance of his own remark when he says, characteristically of psychiatrists, "I can tell you that he hears noises. I can tell you that he thinks his wife wants to poison him. I can tell you that he can't remember where he was born or when. Whether this constitutes competence in your courts, you have to decide, not me, and I think it is presumptuous for we psychiatrists to attempt to decide legal questions" (Proceed. 10th Cir., 1962, p. 571). Of course, he is right as far as he goes. But what he does not see is that he has already judged that hearing noises, thinking one's wife wants to poison one, being unable to remember one's birthdate, etc., are psychiatric data that may be relevant to a determination of legal competency. If he truly put out of his mind all awareness, even of a common-sense kind, of the general drift of the concept of competency, his testimony would amount largely to absurdities. The questions of an attorney can do only so much in the way of directing and focusing the witnesses' testimony. A witness, who genuinely had no understanding of the broad meaning of the competency issue, or who refused to pay attention to it, would provide bizarre answers no matter how skillful the questioning. This is particularly true where the complex testimony of a psychiatrist is involved. Diamond forgets or fails to see the significance of the fact that the psychiatrist is, perforce, a rational layman as well as a psychiatrist: "In the courtroom, no less than in his own office and hospital, the psychiatrist can apply only his own skills and knowledge and be oriented by his own medical values and goals" (1961, pp. 59-60). Here the same confusion is present as in Menninger's comment: there is a failure to realize that the psychiatrist's lack of expertise (as to law and courtroom procedure) is not the same as pure witlessness about such matters. No more does the oculist's lack of expertise as a traffic or driving specialist imply that to preserve his professional purity he must refuse to take any cognizance whatsoever—even common-sense cognizance— of the way in which his medical data might be of value in these generally familiar nonmedical problems of driving cars in traffic. To do this is not to offer one's common-sense views as expert opinion; that would be improper. Rather, it is to try to present one's expert knowledge in such a way as common sense tells one is relevant to the questioner's purposes. 51. A. Goldstein remarks concerning the drafters of the ALI Model Penal Code: "While recognizing more than earlier commentators that the test questions are not entirely medical in nature, they feel the psychiatrist can still be useful, particularly if the limits of his competence are noted and he is permitted to testify in terms of probabilities. Yet by requiring answers to the test questions, they have ignored the experience under Durham and retreated from their general view that the test of criminal responsibility is more normative than it is medical" (1967, p. 103). Similar considerations apply in the closely related concept of (mental) competence to stand trial. Krash, for ex-

The Concept of Menial Disease

45

The mutually accusatory stand-off between lawmen and psychiatrists is akin to a situation we might imagine in which the oculist would insist he cannot properly testify because "defective vision" is meaningless in his science; whereas we may imagine that the court would insist that the oculist is the best person to testify, eminently qualified to do so because, after all, the question at issue is the quality of a person's vision, which is a question clearly falling within the field of ophthalmology. When the criminal law asks questions concerning mental disease and insanity, it is concerned with the defendant's mental capacities with respect to the law. In whatever way this concern is precisely formulated, it is one that by its very nature cannot be cast in purely psychiatric categories. For psychiatric categories are not generally designed with an eye specifically to the requirements of law. It will not do, for example, to try to settle the matter by announcing that the person has some specific disorder listed in the Diagnostic Manual. Most schizophrenics do not commit murder or theft or rape. Most neurotics do not commit crimes. And most patients in mental hospitals are as capable of committing crimes as anyone but, like most other people, they refrain from doing so. The question of a person's mental capacities with respect to the law is a special question, one that has no place in a rational general psychiatric doctrine. That does not mean it is not a meaningful and ample, says, "Competence to stand trial is not a psychiatric syndrome: it is a legal concept. The symptoms displayed by the patient must be related to the legal standard. For example, the psychiatrist may have followed the view that if the accused presently suffers from psychotic symptoms he is incompetent to stand trial. But there is no necessary correlation between psychosis and the relevant legal standard—capacity to understand the judicial proceedings and to assist in one's defense. A psychotic defendant conceivably could meet this standard; on the other hand, a nonpsychotic defendant might well be incapable of assisting in his own defense by reason of his mental condition" (1961, p. 914). From still another standpoint, we see how the physician inevitably acts as consultant and takes into account nonmedical layman's language in trying to use his medical knowledge to help others: "Now, remember the patient, the applicant, the subject, had his notion what was the matter with him from his standpoint, his headache or his head hurt. The doctor wouldn't accept that. The doctor would say, 'Well, but this has to be interpreted in different language. We have to see what causes that'" (Menninger, in Proceed. 10th Cir., 1962, p. 567).

46

The Meaning of Criminal Insanity

important question, nor does it mean psychiatric information is irrelevant. What makes the specific question of mental capacity with respect to the criminal law even more complex is the fact that "capacity" is a matter of degree. The cut-off line is determined by considerations, not always clearly understood, of retribution, deterrability of the individual, rehabilitation, effect on the public, the felt need to express public condemnation, and attitudes concerning psychology, psychiatry, and the nature of mind. Obviously, not all such considerations are of systematic concern to psychiatry. The psychiatrist is no more obligated to develop a general doctrine that systematically reflects all the theoretical and practical concerns of the law than is the law obligated to develop a doctrine that is systematically harmonized and adapted to the concerns of the psychiatrist. Thus, the psychiatrist must cease supposing that any of his categories will or even should in general answer directly such questions as whether or not there is a certain mental capacity with respect to law or whether one or another degree of such capacity suffices. The task of the psychiatric expert in connection with the insanity plea is to develop specific information about the person in question so that this special kind of question, arising in the context of law, can be decided by the trier of fact. This decision, as has been stated by others, is neither a purely psychiatric nor purely legal task, but is one that calls for a combination of psychiatric and legal and moral judgment.52 52. The decision concerning the presence of insanity is of course a decision, in effect, concerning responsibility. Jerome Hall's remark is pertinent: "In our view the question of responsibility is not primarily a question of medicine, any more than it is a question of law. It is essentially a moral question, with which the law is intimately concerned and to whose solution medicine can bring valuable aid, and it is one which is most appropriately decided by a jury of ordinary men and women, not by medical or legal experts" (1964, p. 1049). A characteristic confusion in connection with these medical-legalmoral issues is evident in the Report on Criminal Responsibility of the Group for the Advancement of Psychiatry. This report (p. 5) implies that the psychiatrist who states the defendant knew what he was doing and that it was wrong is compromising his professional conscience if he also believes the defendant to have been seriously mentally disordered. To say that the defendant knew what he was doing and knew that it was wrong is to imply that the defendant was not insane (under the M'Naghten rule), and to imply that

The Concept

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47

There is also reported in the literature a general dissatisfaction of another kind among psychiatrists. This dissatisfaction concerns particularly the "trial procedures, as they relate to psychiatric testimony." 63 Actually, in Guttmacher's own survey, a large minority he was not insane seems to belie the medical opinion that he is seriously mentally disordered. But the latter point is a non sequitur. For insanity is a legal concept and pertains to the conditions for criminal responsibility as defined, e.g., by the M'Naghten rule; whereas mental disorder is a medical term generally covering all mental conditions officially recognized by the medical profession as pathological. A person who is seriously mentally disordered may be viewed as criminally responsible in law; there is no inconsistency here. True, the psychiatrist may not personally approve of the conditions set by law for criminal responsibility. He is then in the same sort of position as the oculist who knows that a person has a specific disease of the eye, but who testifies truly that according to the criteria for adequate driving vision set forth by the motor vehicle bureau (criteria the physician personally disapproves of), the person does have adequate vision. Each is entitled to his opinion, but not entitled to testify falsely in order to impose his opinion on the court surreptitiously. Nevertheless, Dr. Bernard Diamond has written bluntly and favorably concerning the "justified perjury" (his words) that he and other psychiatrists commit in connection with the problem raised here. He says they perjure themselves in order to slant their testimony favorably to the defendant when in their own opinion the defendant should not receive capital punishment. (Diamond, 1961, pp. 61 ff.). Bromberg and Cleckley asserted that there existed in this context what "amounts almost to a cold war between the two disciplines" (1952, p. 729). See the blunt reports along these same lines of Matthews (1970, pp. 51-54 and 86-87). 53. See Guttmacher's discussion in the ALI Model Penal Code, draft 4, 1955, pp. 170 ff. Guttmacher says elsewhere, "most psychiatrists who have had courtroom experience feel that they have been as greatly hampered from giving honest and effective assistance to the court by the methods and rules of legal procedure as they have been by working in the M'Naghten strait jacket. Doubtless, the adversary method of trial has proved through the centuries to be an effective way of presenting factual evidence, but it seems to this author a far less satisfactory method for the presentation of opinion testimony. This is particularly true in the field of psychiatry, where one is in large measure dealing with complex concepts and imponderable entities. The same criticism may be made in regard to the insistence on 'yes or no' answers. Psychiatrists share the opposition of most other expert witnesses to the hypothetical question as a means of ascertaining truth" (1955, p. 329). Another representative version of this complaint is that of the committee of the Group for the Advancement of Psychiatry in its report on criminal responsibility: "The law, however, does not allow the psychiatrist to communicate

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( 4 0 percent) of psychiatrists polled expressed themselves as satisfied with the opportunity offered by present legal procedures for presenting their views. A majority, however, expressed dissatisfaction, 54 though the dissatisfactions range over a wide variety of specific complaints. The gist of the matter seems to boil down to the fact that psychiatrists are often unaccustomed to the adversary context and attendant style of developing testimony. Many psychiatrists find it not only difficult to get their views across but at times uncomfortable or embarrassing personally. 65 These complaints are linked to the mathis unique understanding of psychic realities to the Court and Jury. More often, the mutual quest for the 'whole truth' cannot get past a barrier of communication which leaves the psychiatrist talking about 'mental illness' and the lawyer talking about 'right and wrong'" (1954, p. 2). See SobelofFs discussion (1955) along similar lines, representative of legal views clearly influenced by this line of thought as expressed by many psychiatrists. In his remarkably prescient analysis, Dession sees that psychiatrists have a special problem with regard to testifying; however he sees that it stems not from the complexity or subtlety of the psychiatric material but from a "distinctive attitude" of the psychiatrist, an attitude "quite at variance with the attitude finding expression in our criminal law as a whole" (1938, p. 325). So far as the law itself is concerned—as distinguished from what many psychiatrists think of the law—A. Goldstein's comment is pertinent: "There is virtually no support in law for the view that M'Naghten is responsible for inhibiting the flow of testimony on the insanity issue. Wigmore states the rule to be that when insanity is in issue, 'any and all conduct of the person is admissible in evidence'" (1967, pp. 53-54). On the other hand this must be contrasted with the views of Judge Biggs as expressed, for example, during the 1962 Proceedings of the 10th Circuit Symposium on criminal insanity, where he refers to the M'Naghten rules as having "no relation to reality" (p. 547) and constituting a "straightjacket" (p. 551). See also Wertham, 1950; Burger, 1964. 54. See Guttmacher, note 53, above. 55. Warren Burger, when judge of the Appellate Court of the District of Columbia, remarked in 1962: "the adversary process is not ideally suited to determine the terribly sensitive and terribly important issue of criminal responsibility" (Proceed. 10th Cir., 1962, p. 558). On the other hand, the views of some psychiatrists are represented in the remarks of Cavanagh: "Psychiatrists have praised the Durham decision because it allows them to speak in a psychiatric frame of reference without limitation by arbitrary rules of testimony set up by the M'Naghten rules. Personally, I have never felt this restriction and have seldom been limited in my direct testimony. . . . "There is little doubt that many psychiatrists are offended by the adversary

The Concept of Mental Disease

49

ters discussed previously in this chapter. But a few further words may be relevant. These complaints are for the most part such as any medical man or any expert witness at all might make. Indeed one might add that most of these sources of dissatisfaction are operative in the case of any witness at all, expert or not. They are, in short, the discomforts attendant on the trial process, a process in which the contest generated by adversary procedures is basic and in which these procedures are in turn stringently controlled by complex rules designed to balance such considerations as the protection of the rights and privileges of the interested parties, the eliciting of the relevant facts, the control of the flow of information to a jury of laymen, and the forming of a culminating decision by essentially disinterested parties. This is a complex and stressful process; it is at times very uncomfortable for various parties involved. Though attempts at improvements are made, it is inherendy a difficult situation for the witness, who in all good faith may have his own view of matters and who would like to be able to express that view fully and freely as he can often do in other contexts.66 These problems are no doubt particularly acute for the physician —but not because of any conceptual problems peculiar to his discipline. In the usual office consultation there is a community of interest between patient and doctor, not an adversary relationship. The interest is essentially a medical one, and the physician is the expert, the final authority. He is accustomed to presenting his remarks and being atmosphere of the courtroom. They cannot tolerate some of the methods of cross-examination which threaten their feelings of omnipotence. Strong feelings of self-confidence are necessary for success in the practice of medicine. When, however, this feeling rests on an insecure foundation, it is easily toppled. Psychiatry has not yet reached such secure foundations that psychiatric opinion can be offered with apodictic assurance. It cannot be proved with the accuracy of a mathematical formula. A psychiatrist who approaches the court with a proper degree of humility will experience little difficulty in testifying. 'Humility* is used here in the proper meaning of the word, i.e., freedom from pride and arrogance. It does not imply any feelings of inferiority or obsequiousness. He should testify as to his honest opinion based on his interpretation of the case" (Catholic Lawyers Symposium, 1958, pp. 320-322). 56. See the excellent discussion of these problems by Judge Burger, 1964, pp. 6-7.

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listened to as the friendly but final authority. This status and the role associated with it are of great psychological importance in the physician's dealings not only with patients but with nurses, aides, and even other physicians. The trial setting, however, is one of conflict of interest, and it is both natural and proper that each side should have the right to question anything or anyone presented by the other.57 It is important, therefore, to distinguish complaints based on genuine inability to present important and relevant testimony from essentially peripheral complaints based on such factors as the awkwardness of having to present medical opinion by means of answers to carefully controlled questions from an attorney, the displeasure at having those views or the methods of arriving at them put in question, the possible embarrassment at having questions raised about one's own credentials as an expert, the frustration at not being "one's own boss," at not being in a position to speak without challenge and to be heard with unquestioning, even fearsome, respect as in the physician's own office. It is easy to understand such reactions, and it is reasonable to assume that something of substance may be lost when lawyers, judges, or psychiatrists are inexperienced and confused. But surely this is in 57. "The essence of the adversary system is challenge. The survival of our system of criminal justice and the values which it advances depends upon a constant, searching, and creative questioning of official decisions and assertions of authority at all stages of the process" (Bazelon, 1964, p. 6). "Disagreement is frequent even among experts in well-established sciences. In a sensational English trial for poisoning by strychnine, the principal question was whether very small quantities of that poison leave traces in the body. The most eminent authorities in England flatly disagreed concerning the possibility of detecting such quantities six days after death. In a leading American case, famous experts on handwriting and inks were in direct conflict on the question crucial to the genuineness of a will—whether a certain ink was available on the market at the relevant time. "It is for these reasons that the law uses objective methods of clarifying and testing the testimony of the experts. One of these methods is cross-examination; and despite the repugnance of some psychiatrists, unaccustomed to having anyone check their diagnoses, much less criticize them, there is no doubt that cross-examination is necessary and helpful. The principal method of evaluating the expert's testimony is to submit the factual questions to a representative group of intelligent laymen who are guided and, within limits, controlled by the trial judge and appellate courts" (Hall, 1956, p. 771). See the effective discussion of this issue by the psychiatrist, Bernard Diamond, 1959.

The Concept of Mental Disease

51

some degree the ineradicable price the witness must pay if the interested parties are to have the right to defend their interests. Guttmacher, it is true, says that problems are compounded in the case of psychiatry as compared with other medical specialities: "psychiatry, because of its complex nature is less capable than any other medical specialty of having its conclusions reduced to yes or no answers or to have them brought out satisfactorily through questioning by non-medically trained attorneys." 58 The implication that the law compels "yes-or-no answers" from the psychiatrist seems unwarranted either by the statutes, or the ruling case decisions, or general practice in the courts. No doubt there are instances where some combination of factors—which may include an excessively partisan examination, an inadequate opposing attorney, a too passive or naive psychiatric expert witness, or an insufficiently skilled judge—results in evoking yes-or-no answers to questions the psychiatrist believes cannot truly be answered "yes" or "no." 89 58. Guttmacher, ALI Model Penal Code, draft 4, 1955, p. 180. See also, for a representative statement, Baur's comment in "Forensic Psychiatry: Uses and Limitations: A Symposium," 1962, p. 16: "Another area of difficulty in communication between lawyers and psychiatrists (and in fact between lawyers and medical men in general) is the fact that, professionally, we have a different orientation. Lawyers are trained in an adversary type of approach to a problem in an effort, it is said, to arrive at the 'facts.' Once a person has been found 'not guilty' or 'guilty,' that is the end of it, if sustained on appeal, of course. It seems to me, at least, that the law tends to operate on the basis of black or white, guilty or not guilty, verdict for or against, etc. In medicine, on the other hand, we are constantly dealing with shades of gray." Weihofen, representing a legal perspective, also comments along these lines: "Even when he tries to answer the question that the law chooses to regard as all-important, he is expected to do so categorically; his interpretations and explanations are likely to be ignored. Did he know right from wrong—yes or no? That's the question, and the answer is all that really counts. This is an over-simplification that dismays the doctor" (1955, p. 357). 59. In his textbook, Forensic Psychiatry, Davidson (1965) says, "Occasionally an attorney barks out a short question and then demands: 'answer Yes or No.' The witness is not bound by this. He has the right to explain what he means, and if the attorney insists on a one-word answer, he can turn to the judge and say that a simple 'Yes' or 'No' answer would be misleading. His Honor will almost certainly tell the doctor to explain or amplify" (p. 374).

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The Meaning of Criminal Insanity

As for the complexity of psychiatry as compared with other medical disciplines, there is no clear measure of this, nor does Guttmacher adduce any evidence. It is plausible that the amount of data needed for adequate psychiatric diagnosis is greater than, say, for a fracture of a limb. But perhaps just as often the complexities are purposely withheld by the psychiatrist for the reason that he feels a judge or jury would be incredulous.80 And, finally, Guttmacher's reference to the complexity of psychiatry is surely in part a euphemism for the inability of the psychiatrist, in the present state of the art, to justify too definite or conclusive statements about the mind of man. In this respect the uncertainty or positive disagreement over the psychiatric diagnosis that often appears in the courtroom reflects not an artificial product of courtroom procedure but the actual condition of psychiatric knowledge. The perspective of the trial law is different from almost any other perspective one may find in life, whether it be that of psychiatry, engineering, religion, politics, advertising, sports, or whatever. To point out this difference of perspective does not constitute an objection to the law; it is merely a way of noting that trial court procedure is a distinctive procedure designed for distinctive purposes. Indeed, it is the necessity to appreciate and to understand this distinctiveness and legitimate autonomy of the legal orientation which is the recurring theme of this first part of my essay. An important and representative court statement on this issue is the one in Carter v US: "The chief value of an expert's testimony in [the psychiatric] field, as in all other fields, rests upon the material from which his opinion is fashioned and the reasoning by which he progresses from his material to his conclusion; in the explanation of the disease and its dynamics, that is, how it occurred, developed, and affected the mental and emotional processes of defendant; it does not lie in his mere expression of conclusion" (p. 618). See Matthews (1970), pp. 44-46, for an excellent discussion supporting, in effect, Davidson and Carter. 60. This seems to be the purport of the comment in the Report of the Group for the Advancement of Psychiatry on Criminal Responsibility: "The task of the psychiatrist is to perceive the unconscious basis of the unlawful act and the nature of the inner conflict, but in action the law would confine his exploration to the familiar territory of the conscious" (p. 6).

2 The Relation Between Psychiatry and Law

THE SCIENTIFIC VERSUS THE MORALISTIC: A FALSE OPPOSITION

As I have noted in the preceding chapter, one of the common complaints in forensic psychiatry is that the categories of the criminal law—and especially those dealing with the insanity plea—"make no sense" in psychiatric terms, that they are archaic and unscientific. I have already discussed in a very general way some of the reasons for this sort of charge: the expert is called on to give an opinion in connection with boundary concepts justified by considerations external to his discipline but applying to data within his discipline. Now we shall examine more specifically the nature of legal concepts as compared with psychiatric ones and certain critical aspects of this relationship that are widely misunderstood. Controversy in the area of law and forensic psychiatry often seems to center on what appears as a rivalry between the psychiatric ("scientific") approach and the traditional "moralistic" approaches to criminality. A variety of slogans, symbols, and terminological trademarks signal this controversy. We read of the archaic folklore embodied in the criminal law; 1 of the "modern," "scientific" truths 1. "[T]he common folkways expressed in law are yet anchored to a prescientific orientation in matters related to crime and mental illness" (Roche, 53

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2

of psychiatry; of the "punitive," "moralistic" approach of the l a w 3 and the rehabilitative and nonjudgmental approach of psychiatry; 4 of "common experience" 5 and our "inherited ideas of moral responsibility"; 6 and of the controversy-ridden doctrines of psychiatry. 7 Technical terms like "ego," "drive," and "schizophrenia" collide with common-sense and legal terms such as "intent," "will," "knowledge of wrong," and "insane." 8 A t times we see a condescending scientism rail against an often defensive and admittedly unscientific legalism; on other occasions we see a confident legal traditionalism and com1958, p. 225). Roche continues: "This leaves M'Naghten as a kind of folktheorem of the mind, outside of science, supernatural" (p. 226). "The law has at its disposal the accumulation of centuries of trial and error, a sort of common sense psychology. I think that a defensible case can be made against common sense generally, because, among other things, it includes bias, prejudice, emotionalism, and uncritical observation" (Modlin, 1956, p. 351). 2. "Like his fellow colleague in medicine, the psychiatrist is committed to a disciplined objectivity" (Roche, note 1, above). 3. "To say that the law is ponderous, suffers from inertia, is ultra-conservative, is punitive, is anachronistic, is in a great many connections appropriate and valid" (Modlin, 1956, p. 350). "[C]riminal responsibility seems inextricably entangled in a morass of ethical and moralistic issues which defy objective analysis" (Campbell, 1965, p. 33). 4. This view, pervasive within psychiatry, is strongly favored over the morally oriented approach of the law by many nonmedical students of society; a typical and flat expression of it is Barbara Wootton's: "any attempt to distinguish between wickedness and mental abnormality was doomed to failure; and that the only solution for the future was to allow the concept of responsibility to 'wither away' and to concentrate instead on the problem of the choice of treatment, without attempting to assess the effect of mental peculiarities or degrees of culpability" (1963, p. 66). 5. See Hall, 1956, p. 765. 6. Holloway v US (opinion of T. Arnold), p. 423. 7. Hakeem (1958) presents a lengthy and extremely critical characterization of psychiatric controversies, inconsistencies, and evidential weakness. Hall, more moderately, says, "It can at least be said, therefore, that psychiatric knowledge is far from having reached the point of unimpeachable scientific certainty. Neither in using expert psychiatric witnesses nor in developing the legal formulas that govern the determination of punishable conduct need the law bow to any unassailable authority in the bailiwick of the psychiatrists. That psychiatrists have knowledge to offer to the law cannot be doubted; but that knowledge must be carefully selected and fitted into the framework in which it can be made useful" (1956, p. 773). 8. See the discussion in chapters 6 and 7, below.

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monsensicalness too ready to denigrate a would-be science, a science frustrated by division within its ranks, by a lack of universally accepted proofs, and by powers of cure that fall far short of ultimate promise. 9 T h e beginning of wisdom in these matters, I suggest, is to recognize that the psychiatric critics mistakenly take it that the criminal law and forensic psychiatry are merely alternative means to the same end. The psychiatric critics of the criminal law argue that the psychiatric approach could be an eminently effective approach to the task of minimizing antisocial conduct, and that therefore it ought to replace the less effective "punitive" approach inherent in criminal law. They argue, further, that this "moralistic" legal approach, being inherently a nonscientific approach to reducing criminal conduct, is therefore inherently inappropriate and outmoded, and should be abandoned. W e can distinguish several issues here. First, are w e to evaluate the criminal law and forensic psychiatry as, essentially, two different 9. For further discussion, generally, see Hall, 1945, for an extensive discussion. See also Diamond, 1959. Hakeem, 1958, p. 651, contrasts K. Menninger's shift of attitude by quoting the latter's 1945 comment, "The scientific attitude as shown in psychiatry must sooner or later totally displace existing legal methods," and then noting in a footnote, "Since making this statement, Menninger apparently has had some second thoughts. He now confesses that it is 'an open professional secret' that psychiatrists do not know how to treat offenders. He also concedes that they cannot predict the possible dangerousness of such offenders. And he points out that psychiatrists are not even available for such work or for even doing research on the problem. See Menninger, Book Review, 38 Iowa L. Rev. 697, 701-2 (1952)." The following two radically contrasting points of view by psychiatrists are published side by side (Hakeem, 1958, pp. 630 and 636, respectively): [Andrew S. Watson, M.D.] "It is just not true that we have no knowledge of how to treat the criminal members of our society. All criminal behavior can be understood; almost all criminal individuals can be handled therapeutically with less risk than our current techniques afford; many criminals can be rehabilitated by therapeutic intervention." [Manfred S. Guttmacher, M.D.] "As far as crime is concerned, whether it be normal criminality, which is essentially a social disease, or crime dependent on mental morbidity, its pathology is poorly understood and its aetiology is essentially unknown. We find ourselves in a position similar to that of the systematists of the eighteenth century; we must be satisfied largely with description and classification." See also, for example, Waelder, 1952, p. 382.

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The Meaning of Criminal Insanity

means to the end of minimizing certain kinds of antisocial conduct? Second, is a nonscientific approach one that is, perforce, superficial, false, or conceptual nonsense? Let us begin with the first question. It is, I believe, a fatal mistake to assume that the criminal law is essentially a mere means to some ultimate end, such as minimizing antisocial conduct. Because of this mistake, many reformist arguments and proposals based on assessing comparative efficiency toward this end founder from the start. There are, no doubt, various means of minimizing antisocial conduct. One method is tyranny, and it has at various times and places in history been at least temporarily effective in minimizing what the tyrant held to be antisocial conduct. We might imagine a Brave New World of citizens maintained in a constant state of euphoria and trained by conditioning to function in an orderly and reasonably productive way under the directives of a governing group. Or one might even imagine the community as a social unit in equilibrium, an ant society, and needing no special intervention by any directing agency. A world with somewhat more appeal than a tyranny and with somewhat more reality than the Brave New World of human ants would be a slave or serf society, in which enlightened, or at least effective, policies maintained maximal social order with a relative minimum of positive discontent by the slaves. There have been such slave or serf societies in the history of man, and they have by no means been totally evil; indeed they have at times been the locus of great spiritual and cultural achievement. Our task here is not to argue the merits of any of these possible societies or variants on them, nor is there any need to deny the possibility of their achieving a condition of minimal antisocial conduct. My sole aim is to make entirely explicit the obvious: these are not our society. It is plain that our criminal law, in its fundamental orientation, reflects and embodies certain fundamental values of our society.10 In 10. See, for example, Hall, 1964, p. 1066: "We acknowledge the origin of the common law of crimes in popular custom and belief. But those ideas, patterns, and goals did not cease to exist when the legal profession set out to construct a system of law. They are operative today, influencing and being clarified by the criminal law. The final emphasis must therefore be on the social reality of the criminal law, manifested in the conduct of the members of society. Once the perspective is thus enlarged, it becomes evident that one does not comprehend the full significance of criminal law if he views it only in

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particular, it embodies a fundamental and characteristic resolution of the community that normally the state shall deal with all members of the community as responsible persons under law. In short, it is a central value, and not a mere utilitarian convenience, that socialization of conduct in our society shall normally be through

responsi-

bility under law. 1 1 Our criminal law, founded as it is on the principle of individual responsibility, is not a mere means toward reducing antisocial activity; the institution is itself an essential end for the society. For we d o not want merely an orderly society; w e want an order of responsible persons, responsible under law. 1 2 And, of course, terms of prohibitions or commands or as a coercive apparatus or even in the usual connotations of 'protection of society.' All of this is significant but what is most important is the moral life and its connection with the criminal law." See also Kadish's discussion, especially on p. 287; however, Kadish, like so many others who take this view, assumes (mistakenly) that it rests on the ancient "myth" of "free-will." 11. Hall makes the point this way: "So long as that legal institution survives in its essential rational and ethical character, even the least of men is given some assurance of human worth. By like token, if people come to believe that the foundation of the criminal law is unsound, a new strange era in our history will have arrived" (1964, pp. 1045-1046). "Not only were custom and public opinion the original sources of the common law but laymen also participated in the processes of criminal law as members of legislatures, grand and petit juries, and the police force. Lawyers, judges, and the writers of treatises mediated between science and the flow of daily life. Unlike the physical sciences and technologies, the law of crimes therefore represents the layman's thought and values clarified by the sensitivity of bench and bar to the progress of knowledge. "This law expresses the meaning of freedom and responsibility in careful distinction among such concepts as intention, recklessness, act, negligence, mistake, and coercion. It clarifies the values of personality, property, and association in its classification of types and degrees of harm-doing; and in its systematic side it represents a high achievement of disciplined imagination" (Hall, 1964, p. 1045). Hall comments subsequently, "The moral life, like any work of art or science, is not an unorganized gush of sentiment. It, too, has form, manifested in the system of legal ideas which express the meaning of 'responsibility'" (p. 1056). 12. H. L. A. Hart, the distinguished English philosopher of law, has expressed this point more fully as follows: "Underlying these separate points there is I think a more important general principle. Human society is a society of persons; and persons do not view themselves or each other merely as so many bodies moving in ways which are sometimes harmful and have to be

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the essence of this idea is that individuals shall normally be held responsible and so assessed when charged with transgressing the law. If I am not treated as responsible when I break the law, then I am not responsible even for keeping the law. prevented or altered. Instead persons interpret each other's movements as manifestations of intention and choices, and these subjective factors are often more important to their social relations than the movements by which they are manifested or their effects. If one person hits another, the person struck does not think of the other as just a cause of pain to him; for it is of crucial importance to him whether the blow was deliberate or involuntary. If the blow was light but deliberate, it has a significance for the person struck quite different from an accidental much heavier blow. No doubt the moral judgments to be passed are among the things affected by this crucial distinction; but this is perhaps the least important thing so affected. If you strike me, the judgment that the blow was deliberate will elicit fear, indignation, anger, resentment: these are not voluntary responses; but the same judgment will enter into deliberations about my future voluntary conduct towards you and will colour all my social relations with you. Shall I be your friend or enemy? Offer soothing words? Or return the blow? All this will be different if the blow is not voluntary. This is how human nature in human society actually is and as yet we have no power to alter it. The bearing of this fundamental fact on the law is this. If as our legal moralists maintain it is important for the law to reflect common judgments of morality, it is surely even more important that it should in general reflect in its judgments on human conduct distinctions which not only underly morality, but pervade the whole of our social life. This it would fail to do if it treated men merely as alterable, predictable, curable or manipulable things" (1962, pp. 29-30). There is a view that sometimes is offered as the equivalent of this but is based on a "deterministic," purportedly "scientific" rationale. It is the view that the moralistic approach of the law is, from a purely deterministic, psychological standpoint, an effective technique for reducing antisocial activity. The criminal law is here viewed as one psychological determinant among other, but a powerful one. See, for example, Livermore and Meehl, 1967, p. 798. Appealing as this view may be to some who would like the best of both worlds, it is fundamentally at odds with the view I argue for here. What is at issue, I maintain, is whether or not the law views others fundamentally as responsible agents and respects them as such, or whether the law abandons this view. The utilitarian view of the criminal law, which views it as fundamentally no more than a psychological technique for curbing antisocial conduct, rests entirely on the supposition that it is psychologically effective. There is little clear evidence of a scientific kind that this is so. If it should turn out that persuasive negative evidence is amassed, or if some other manipulative technique—whether psychiatric or political—should be demonstrably more

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It makes sense to talk of reforming or improving the criminal law in order to increase the effectiveness with which it reduces antisocial conduct—but only if the reform accomplishes this at least as the concomitant, and preferably by means of generally treating individuals as responsible (and, of course, there are many such reforms to be desired). It makes sense to reform the law in order, specifically, to increase the degree to which the law treats persons who come before it as responsible. (Here, too, it is obvious that much can be done to improve matters.) Insofar as science—psychiatric or otherwise— can help achieve such reforms, as it surely promises to do, a fruitful partnership is possible. Such a partnership does not require that the scientist per se adopt the moralistic responsibility orientation, for he may in his own nonmoralistic way develop information of use to those who do adopt that orientation. But the psychiatric thesis that we are here considering is the idea that psychiatry is a science, and that as such it has no place for moralistic concepts such as responsibility, and that, furthermore, it could do a better job of reducing criminality than the criminal law based on such moralistic notions, and that, finally, it therefore makes sense to substitute such a psychiatric approach for the traditional criminal law based on responsibility. Not every psychiatrist subscribes to these views.13 Many psyefficient, the consistent utilitarian would have to abandon support for the law. This utilitarian rationale for criminal law is therefore only superficially akin to the view that the legal concept of responsibility reflects in itself a basic moral-social value, not merely a psychological technique for reducing antisocial conduct. 13. A characteristic statement of the contrary point of view by a leading psychoanalytic psychiatrist, Robert Waelder, would find support among individuals ranging over the spectrum of mental health experts of the various schools and techniques: "The emancipation [of law] from traditional moral sentiments, begun at first for humanitarian purposes, may eventually have consequences not so humanitarian. Once everything can be done that appears to be socially useful, i.e., that is so considered by those who have authority to define social usefulness, a course has been charted that may well end in despotism" (1952, p. 387). This comment parallels, in part, Hall's: "If unfettered administration by psychiatrists supplants the rule of law, what will be the consequences for civil liberties and other presently protected values? "At the root of current criticism of criminal responsibility is a conflict between the values of a very small minority of the 15,000 or more psychiatrists

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chiatrists are no doubt ready to acknowledge loyalty to the fundamental commitment of our society to responsibility under law. Some psychiatrists will even acknowledge that to bring the patient to the point where he can fully assume responsibility is a goal of psychiatric therapy. Some psychiatrists hold that the therapeutic process is itself in some way rooted in responsibility.14 Such psychiatrists, it would seem, ought either to forego the kind of criticism of the criminal law that we have been discussing, or face the paradox of holding the criminal law to be outmoded by virtue of its moralistic responsibility orientation, while adopting this orientation in their own therapeutic practice. But there are those who hold that psychiatry, as a science, abjures all such moral concepts as responsibility and its associated concepts. To these we must emphasize that it is an illegitimate assumption, confused in its very core, to suppose that an institution which abjures the responsibility orientation could do a "better" job in our society and successfully replace an institution, such as the criminal law, which remains committed to that orientation. Evidence showing superior effectiveness in reducing criminality would be irrelevant. No evidence could possibly suffice to justify such a substitution, since it in this country and the values of the criminal law. The values of these psychiatrists are shared by many other scholars and the implications are serious" (1964, p. 1059). It is interesting to compare these comments with Justice Douglas' ambiguous statement: "There is increasing opinion that a system of treatment may as effectually deter criminality as a system of penalties. One lawyer recently observed that 'the psychiatric hand may prove as fearful as the jurist's ever was.' Hospitalization of the dangerous may lay as heavy a hand on the victim as life imprisonment. It may indeed be as severe a form of punishment as incarceration in prison" (1956, p. 491). 14. Kubie (1960) quotes approvingly Zilboorg's statement that in psychoanalysis, "The patient . . . obtains relief from feeling guilty about things of which he is not guilty at all, and he continues to feel guilty about those things of which one usually does and should feel guilty" (p. 191). Kubie then goes on to say, "Yet the very existence of [psycho-] analysis, as a joint undertaking of a patient and an analyst, is an acknowledgment of the fact that, whether or not we are responsible for getting ourselves into trouble, the responsibility for getting ourselves out of trouble rests with each one of us." See also the extensive discussion, in the spirit of Kubie's comment, in my The Self in Transformation, chapter 4.

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is the responsibility orientation that is a central value and not the mere reduction of criminality. It must certainly be granted that we pay a price, and that there are grave problems attendant on our efforts to control antisocial conduct by institutions that are rooted in the concept of individual responsibility. Science may help us to resolve many problems and to reduce this price; or it may not, and we may have to live with the problems. But it is radical confusion to suppose that the proper road to reform lies in ceasing to deal generally with antisocial persons as responsible for their deeds and placing them automatically under "expert care." This would not be merely a technical reform aimed at greater efficiency but an abandonment of one way of life for another. It is a proposal susceptible to debate, but the debate is misconceived from the start if we suppose that we are debating a merely technical question concerning the relative efficiency of two different means to the same end.15 I spoke at the outset of this chapter of two distinct questions, either one of which may be at issue when the charge is made that the law is outmoded by science and should be replaced by a scientific approach. One of these questions I have now discussed—whether science could do a "better" job of keeping social order, of controlling men's conduct. The second question, calling for separate consideration, is whether a nonscientific approach such as the law uses to understand human conduct is perforce superficial, false, or meaningless. 15. See, for example, discussions by D. Bazelon, 1964; A. Goldstein, 1967, pp. 223 ff.; H. L. A. Hart, 1962; H. Morris, 1968; Livermore and Meehl, 1967; and, of course, J. Hall's writings cited in various notes above. "Modern psychiatry to the contrary, the criminal law is grounded upon the theory that, in the absence of special conditions, individuals are free to exercise a choice between possible courses of conduct and hence are morally responsible. Thus, it is moral guilt that the law stresses. "At least one purpose of the penal law is to express a formal social condemnation of forbidden conduct, and buttress that condemnation by sanctions calculated to prevent that which is forbidden. . . . "Much of the conflict over the rules of criminal responsibility is attributable to a basic misconception as to the nature of the problem. Criminal responsibility is a legal not a medical question. Involved is legal consequence, not medical diagnosis." (Sauer v US, p. 648.)

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There is ambiguity in the charge that the responsibility-oriented criminal law is archaic and unscientific. A claim to the effect that the moral psychology of the criminal law "makes no psychiatric sense" might be meant merely as a relatively mild claim. It might simply mean that, although the moral psychology of the law is internally coherent and viable in the legal context, it does not make sense—that is, it is unintelligible and inapplicable—in the psychiatric context. Or the claim in question might be the stronger one that the moral psychology of the criminal law, making no psychiatric sense and hence no scientific sense, perforce makes no sense at all as a way of characterizing and assessing the mind and the deeds of men.16 On the first interpretation—that the moral psychology of the criminal law is nonscientific but makes legal sense—the criticism is not fundamental; it is more like a cry of displeasure over a practical inconvenience. Taken in this sense, the criticism merely reminds us that the psychiatrist faces the annoying difficulty of trying to make his specialized information intelligible in a language that is, from a psychiatric standpoint, at times a foreign language. This, as we have seen, is no more than the predicament of the expert consultant generally. It was considered at some length in the preceding chapter, and we saw that it is essentially a technical problem, not a philosophical Grand Divide. On the other hand, if we take the second interpretation—to the effect that the moral psychology of the criminal law, because it makes no psychiatric (scientific) sense, perforce is superficial, false, or even makes no real sense at all—then we are indeed faced with a fundamental criticism. And it is this criticism and certain deep issues it raises that I will take up next. In the first place we must isolate a very generalized and fallacious presupposition that contributes to this criticism. This false presupposition consists in assuming that any statement characterizing human 16. See, for example, the assertions of psychiatrists like Roche, cited in chapter 3, below. This may be the purport also of a comment such as that in the opinion in US ex rel Smith v Baldi, p. 567: "A very large part of the confusion which almost invariably results in the trial of the criminal defendant alleged to be insane, lies in the fact that the law insists that the psychiatrist deal with mental states and conditions which do not exist save as legal conceptions."

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affairs that is not itself a scientific statement must be either a relatively inferior ("common sense") approximation to such a scientific statement or else must be abandoned as false, irrational, or meaningless.17 An analogy drawn from a noncontroversial area will help bring out the falseness of this assumption. We shall see that the scientific description of some matter, however true it may be, may also be irrelevant; whereas a different account of the matter, though cast in terms which "make no sense" scientifically, may be relevant, rational, and correct. It is plain that, although a physicist might be able in principle to give a full and true description, in terms of masses, forces, and space, of the moves of the chess pieces in a game, this description would normally be pointless. It would be irrelevant to anyone who wanted to play chess or even merely to understand the moves as chess moves. In answer to the question, "Why was red's pawn moved?" an answer pointing out correctly the physical forces that impinged on the pawn and caused it to move would normally be absurdly beside the point. The sort of answer—of explanation and hence of understanding—we normally want is an explanation in chess terms, for example "to threaten black's queen" or "it was the only move that would avoid checkmate." We should note, first, that the description of what was done— red moves his pawn—is in terms of chess nomenclature, rules, and conventions, which "make no sense" in terms of physics. "Pawn" need not refer to any definite shape and mass, and in fact we can and do modify the physical shape of the chess pieces (or even play the game "mentally" and make no physical moves at all). This by no means implies that "pawn" is a concept which makes no sense at all. For the purposes of chess playing, it is unambiguous, precise, objective. 17. A dogmatic but often echoed statement embodying this assumption is that of Hoedemaker who asserts that "freedom of choice" and "knowledge of right and wrong" are "untenable in the light of present day understanding of human behavior. . . . Modern psychiatry . . . regards all criminal acts as products of abnormal personality structure and development. . . . It is hoped that the day will come when all offenders will be regarded as sick and treated as such" (1948, pp. 6 - 7 ) . Another version of this conceptual confusion is taken up in Hall's comment, note 18, below.

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In short, a description that makes no scientific sense may make perfect sense. For in this case the criteria of what makes sense derive from the game of chess and not from the practice of science. There is nothing mysterious or "subjective" about the matter, and certainly there is nothing antiscientific about it. Science is irrelevant to the description. 18 Note also that the explanation, though it refers to "threatening" black's queen, is not therefore a psychological explanation, scientific or otherwise. To say that the move is done in order to threaten black's queen does not normally purport to represent the results of psychological inquiry; it is a chess idiom, and it informs us, in essence, that the move is justified by reference to the positions of the pieces at the moment and the strategic aims peculiar to chess. Indeed it is one criterion of a good chess player that the explanations he gives for his moves do not consist of deliverances on his subjective, mental state but of statements of objectively good reasons justifying the move. As chess players we evaluate such explanations on the basis of whether they are indeed good reasons, whether they do justify the move (in chess terms), and not on the basis of whether the explanations reveal the psychic state or brain state of the individual player. Whatever his mental state, if a player can consistently explain his moves in ways justified by the goals of chess, he is a good chess player. The poor player's explanations are bad ones, on the other hand, not because they are bad psychology or bad science of any kind, but mainly because they do not set out reasons justifying his moves within the frame of chess rules, goals, and strategies. Thus, in sum, we see here that one can have clear, objective, and relevant ways of describing and explaining human conduct—descriptions and explanations subject to rational criticism, which nevertheless do not amount to scientific statements or even to approximations of scientific statements. 18. This is the point Hall is getting at, too, when he says: "There is an everyday world in which desks and sidewalks are solid material things; and the fact that physicists say they are unstable, moving clusters of atoms does not detract from the significance or the validity of the common sense perception of these matters in the everyday world. Indeed, in the perspective of daily life, the common sense view is the correct one, and theories of the structure of matter are irrelevant" (1964, p. 1947).

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Of course, one might say that these chess explanations are not "true" or "genuine" or "deep" explanations. But what does one mean by this? Is it just another way of saying that they are not scientific explanations? The labels "true," "genuine," and "deep" mislead. For the chess player, the deep explanation will be one in chess terms; whereas an explanation in terms of physics would not only not be deep, it would be beside the point. Needless to say, chess is not the only case in which the relevant and correct explanation is not a scientific one but one that satisfies other intelligible criteria. In military affairs: "Why did you remain at your post?" "My captain ordered me to do so." What is primarily at issue here is not psychology, or scientific explanation or prediction. This answer is in part a way of giving the military justification for the act (regardless of my personal motives, regardless of the state of my brain). I am not speculating about what went on in my head, but stating a fact that constitutes a good reason under military rules for what I did; and I am offering this reason as my defense. If I was in fact ordered to stay at my post, I may not be punished. Yet one who was dominated by the psychiatric orientation might suppose this to be simply an attempt at psychological explanation of my act, and he then might understandably consider it to be a superficial kind of explanation, unworthy of scientific respect and, therefore, of any intellectual respect. Similar analyses, proliferating in complexities but never undermining the basic principle at issue here, could be developed for any of the innumerable areas of daily life in which we have more or less autonomous sets of concepts, rules, goals, and recognized strategies: business, the forms of courtesy, family life, political organization, and, of course, law.19 19. A typical example of the conceptual confusion discussed above is reflected in the remark of Louisell and Diamond: "For the difference between the two disciplines' approaches proceeds not so much from irreconcilable philosophic principles as from pragmatic judgment as to the particular chains of determinants to emphasize. The law's emphasis is a function of commonsense psychology; psychiatry attempts to add deeper and more comprehensive insights from systematized observation and study" (1965, p. 231). The problem has been explored at length in recent philosophical discussions. There is a very extensive literature on this and related topics in the field of

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Needless to say, these activities are not utterly isolated from one another, and at times the categories peculiar to an activity do not suffice. Ideas or techniques peculiar to some other activity become relevant. Thus at times it may be appropriate for the psychiatrist, even in the course of carrying on his profession, to account for an action by reference to business practices and language ("I sent the bill because you owed the money"); or it may be relevant for him to recognize that his patient did have a good business reason for some act rather than any significant unconscious motive, and this business reason might be considered sufficient by the psychiatrist for explaining that act. (In more psychiatric terms, one might say that the therapist views the act as governed by the Reality Principle.) On the other hand, a businessman who normally explains his business transactions primarily in business terms might at some point decide that no business explanation of his partner's conduct is adequate, and that the latter's conduct must be accounted for as due to "personality problems," that is, as a matter for psychiatric description, explanation, and treatment. Thus, the autonomy of chess language and practice, or of the military or business languages and practices, or of any particular scientific language and practice do not imply that the other approaches never overlap within any of the others. The lines are not so sharply delineated. The many strands of our social institutions and of our language are often loosely but complexly interwoven. We should think of the single fabric of communal life as exhibiting identifiable patterns and subpatterns, at times isolated from one another, at times slightly overlapping, and at times so deeply, subtly interpenetrating that the task of analysis is immense. The relation of all this to psychiatry and the criminal law—especially in the area of the insanity plea—is close. The criminal law is plainly an institution with a distinctive language and procedures. These are concerned preeminendy with human conduct. Psychiatry, contemporary philosophy, especially so-called analytic and linguistic philosophy. From a plethora of works, it may suffice here to select for mention such basic sources as the works of Ludwig Wittgenstein, J. L. Austin, and Gilbert Ryle, and—as secondary references—Alan White's Philosophy of Mind (New York: Random House, 1966), or any of the now goodly number of anthologies of contemporary analytical philosophy.

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too, is concerned with human conduct, and it is evident that it has its share of distinctive concepts and procedures. Psychiatric description and explanation are clearly not identical with description and explanation in the criminal law. This is a good part of what the forensic-psychiatric critic of the criminal law is getting at—in a misguided way—when he charges that the descriptions and explanations of conduct allowed in the criminal law "make no sense," "have no reality," or are hopelessly "archaic" or "superficial" from the standpoint of psychiatry. The same charges would apply for the same (bad) reasons against the chess player who explains his move as a "threat" to black's queen. It may be that it is psychiatric nonsense for a court to ascribe criminal intent to a defendant (who could provide evidence that he did not know the law) and to justify this on the ground that it must be legally presumed that he did know the law. But the fact that it is psychiatric nonsense is beside the point. This comment on what the defendant is legally held to have known or to have intended is not designed, and there is no good reason why it must be designed, to make psychiatric sense (any more than the word "threatening" in "I'm threatening your queen" must refer only to my personal aggressiveness). Such legal statements about knowledge and intent are to be understood within the context of legal language and procedures. And it is in terms of the concept of criminal responsibility that a fact finder (in the legal sense of that term) is entitled to characterize the person as "guilty." Here, guilt is clearly not a psychiatric concept any more than intent or know were in the earlier statement.20 The law, then, can make sense even though it does not make scientific sense. In this it reflects nothing unique but only a phenomenon that is a commonplace of human life. We are now prepared to go one step further and recognize explicitly an additional reason why some forensic psychiatrists think 20. Again Hall makes the point concisely: "How can a layman, however intelligent, presume to set his opinion against that of an expert?—the answer is not in the indiscriminate terms that the so-called expert is not really an expert because his discipline is not a science, for there is the realm of informed insight. It is that the layman is not challenging the expert in areas where the latter may properly claim expert knowledge. Where the issue depends mostly on ordinary experience and the common morality expressed in the criminal law, it is a very different matter" (1964, p. 1051).

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that the moral psychology of the law is nonsense because it is unscientific. The law uses terms such as "knowledge," "intent," "guilt," "mind," and "motive"; and the psychologist also uses these words. The psychologist, however, gives them a modified and technical sense, and he weaves them into a larger body of doctrine of his own, developed for his special purposes, just as the lawyer weaves these same words, with differently modified, technical senses, into his legal terminology for his legal purposes. But the psychiatric and the legal uses of these words are not utterly different, not utterly unrelated; there is not only overlap in the technical meaning, but the words still reflect their common derivation from the context of use in everyday life. Hence, whenever a person's conduct is characterized in these terms, the psychiatrist spontaneously, and understandably enough, presumes they are being used with the same basic intent that he would have. It is not only that the words are the same, but that the uses of the words are in so many ways akin. However, when he hears the court use these words, he is aware of the absence of that rich background of psychiatric inquiry and theory which would justify and control the use of these words for his purposes. He is also aware that the court's use differs from his—that is, he sees the court's usage as misuse, artificiality, and legalistic distortion, or sheer error, for he is largely unappreciative of the rich background of legal procedure and doctrine that control and justify their use in the legal context. In all good faith he urges that the law root itself in good psychiatry and abandon what he mistakenly thinks to be bad psychiatry and mythology. It is as if the physicist were to charge that the chess player who claims to make a move in a game of mental chess is indulging in myth and fantasy, since there is in the physicist's sense no move at all. The lesson generally to be learned from the preceding is that we cannot assume that, where criminal law characterizes human conduct in ways inconsistent with or unintelligible in terms of science, the criminal law characterization is for that very reason to be found wanting.21 To be more concrete, we must refuse to allow that, when 21. The typical psychiatric confusion on this point is succinctly manifested in the following comment by Louisell and Diamond: "It appears to us that the psychiatrist, the sociologist, and other behavorial scientists are doing essentially, the same thing as the lawyer when they offer their explanations of the criminal

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the criminal law speaks of such matters as intent, knowledge, guilt, choice, will, act, responsibility, or motive, it either is attempting or seeking a scientific or psychiatric account of conduct; nor should we assume that the law ought to be attempting or seeking such an account on pain of falling into myth or nonsense if it does not. No such general obligation exists, and the enterprise of law would probably founder if it accepted such an obligation. Of course, one may raise legitimate questions about the internal coherence of legal concepts, the value of particular aspects of law, or the value of the institution in its main outlines. But generalized criticism of law based essentially on the nonscientific character of the legal view of man's conduct simply misses the point. PHILOSOPHICAL RED HERRINGS IN LAW AND PSYCHIATRY: DETERMINISM, FREE WILL, THE INACCESSIBILITY OF MIND

We have established the fact that in general there is no good reason why the legal descriptions and explanations of conduct must be scientific if they are to be rational. We can now focus on specific issues related to such notions as will, compulsion, voluntary, and choice, intend, know, and wrong. For it is not enough for us to know only generally that the legal and the psychiatric uses of such terms can differ from each other and yet can each be rational. To understand act. They too believe the crime to be determined, and not a random act. If they are sincere believers in their own professional, scientific knowledge, they will sometimes prefer to think that the determinants which they emphasize provide a superior, a more authentic, explanation of the criminal mind and deed" (1965, pp. 230-231). Given this blindness to the different roles played by legal characterizations of conduct as distinguished from psychiatric characterizations, Louisell and Diamond go on to make the obvious inference that the current "breach between law and science" is "largely due" to the lack of "convincing demonstrations of the validity" of psychiatric explanations. But lack of provability would not account for what they subsequently describe as psychiatry's inability to provide any "answer whatsoever to the questions which most concern the criminal law" (1965, p. 231). An inability to demonstrate the validity of an answer is not the same as no answer whatsoever. The heart of the matter lies in the absence of answers, for legal questions must ultimately be answered in legal language, not psychiatric.

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these concepts better, we need to explore in more depth certain controversies that arise in connection with them. This section examines a cluster of what I call "metaphysical" questions intimately associated with the idea of will, and also with such related terms as "compulsion" and "choice." I am concerned with these questions here only insofar as they do arise—and cause much confusion—in the legal-psychiatric debates concerning the insanity plea. More particularly, we shall begin here by looking at two familiar and opposing doctrines that often enter into the controversies between law and forensic psychiatry: determinism and free will. Oddly enough, both these opposing doctrines are usually taken to imply that there is no sense to such purported distinctions as that between an act one chooses to perform and an act one is compelled to perform. We shall subsequently examine another familiar metaphysical doctrine to the effect that, in the very nature of things, we cannot look into another person's mind and discover whether he "really" tried as hard as he could to refrain from the harmful act. All three of the doctrines in question are of a metaphysical sort.22 Fortunately, however, we shall not have to engage in or depend on abstruse metaphysical reasoning. For our purposes, the best philosophizing will consist in avoiding Metaphysics. My aim here is to show that all three doctrines are in fact irrelevant to the criminal law. Many who deal with the law in practice have dismissed such metaphysical notions on pragmatic grounds; they see intuitively that to get on with the business of the law, such metaphysics must be 22. I have called these doctrines "metaphysical" not as a technical or precise appellation, but as a suitable label that does, broadly, suggest their claim to completely general truth. The metaphysical uses, though they often are claimed as scientific, and thus, presumably, empirical, are at least in this important respect unempirical: they each propose a thesis that purports to hold for all relevant cases, regardless of particular differences and similarities in the act or in the practical context of the action. If anything is a human act, it is free —say the free-willists. On the contrary, it is causally necessitated—say the determinists. We can never directly observe what goes on in another's mind— say the "privacy of the mind" proponents. In each doctrine, the thesis is a "wholesale" one, calling for no inquiry into particular cases and contexts. But in the legal use of concepts of will and choice, it is of the essence to discriminate case by case, to examine the facts peculiar to the case. This I contrast with the metaphysical approach and call empirical here.

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abjured. But our aim here is to go behind this rather defensive pragmatic rejection, and to see clearly why and how these doctrines are genuinely irrelevant to the law. In this way we shall better understand the law. The labels "determinism" and "free will" are vague, and they are used in noticeably different senses. It will be relevant here to consider under the heading "determinism" doctrines which include the thesis that every event is completely causally determined, that is, that everything that happens is an effect of—necessitated by—(a) the conditions present just prior to that effect and (b) certain universal, unchanging laws of nature that govern all change and that are essentially mathematical-logical in nature rather than purposive. According to determinist views, the conditions at any moment, taken together with the relevant laws of nature, necessitate (nonpurposively) the conditions that will obtain at the next moment. The contrasting doctrine of free will is relevant to our concerns here when it is held to imply at least this, that when the will operates it is never causally necessitated (in the above deterministic sense) to operate as it does. In Aristotle's words, "For what lies in our power to do, lies in our power not to do." 23 There is an intermediate or compromise position to the effect that the will may sometimes or in some ways be causally necessitated, but that sometimes or in some ways it is not. This compromise often finds favor among those who wish to avoid metaphysical dispute by making a bow in the direction of determinism but then turning to get on with the business of making judgments concerning freedom of choice in our everyday life.24 23. Nicomachaean Ethics, Book III. 24. This tendency to evasive slurring of the issue is evident in such representative statements as those of Guttmacher and S. Glueck, respectively: "[Freud's] investigations, and those of his followers, showed that even the actions of intelligent and apparently healthy minded men are infrequently under full conscious control of the intelligence" (1961, p. 662). "[T]hose who, under the impact of psychiatric, psycho-analytic, sociological, and anthropological views insist that man's choices are the product of forces largely beyond his conscious control" (1962, p. 78). See the distinguished psychiatrist, J. Whitehorn's statement in his Memorial Lecture, in Hoch and Zubin, 1955, pp. 144 ff. See Guttmacher, 1958, pp. 634-635, and 1963, pp. 103-105, for review of positions on these issues.

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Both these doctrines (and the compromise as well), far from having profound implications for the law, are almost entirely irrelevant to it. It is easy to demonstrate this fact; but a mere formal demonstration, however valid, will not suffice to produce understanding or subjective conviction. Nevertheless we can begin by demonstrating that these doctrines must be irrelevant to criminal law, and then we can go on to develop a more detailed understanding of why. A brief statement of a typical determinist argument, in the context of the psychiatric-legal debate, might go like this: It is a fundamental truth of science that every event, and therefore every human act, is the necessary effect of a set of prior conditions, and these latter conditions, in turn, came into being as the necessary effects of conditions prior to them. Thus, although I may not know all the causes of my act or the laws governing the processes in question, every act of mine is in fact completely necessitated. Therefore, I never truly have a choice; but I am compelled to act as I do by virtue of a context of causes that determine the act. More specifically with respect to the law; It is senseless to ask concerning any defendant whether he was compelled to act as he did; for in reality he could not help doing it, since his act was causally necessitated under the circumstances. 25 25. A representative prodeterminist view by a psychiatrist is Hoedemaker's: "At the present time, psychiatry has rightfully taken its place among the other medical specialities and can now apply to the understanding of human behavior the rigid determinism which is a fundamental tenet of all science. All of the phenomena of human thought, feeling and behavior, all of the development of personality structure, both in health and in disease, must be capable of explanation and understanding as being the direct result of causal factors of heredity, early psychological conditioning, or later experiences in life. In this there is no place for the fortuitous. Whatever appears to be the result of 'freedom of choice' can be demonstrated to be rigorously determined and, in the scientific sense, understandable. By the same token, freedom of the will,' as the term is used in philosophy, has no place here, and what appears to be action taken as the result of a free choice is action directly the result of specific determinants" (1948, p. 3). The distinguished psychoanalyst, and disciple and biographer of Freud, Ernest Jones, has said, "from the point of view of scientific objectivity this belief [in free will] is illusory" (1951, vol. 2, pp. 186-187). Alexander and Staub stated, "Psycho-analysis considers the human psychic apparatus as a system which is fully, and without a single gap, determined by psychological and biological causative factors" (1931, p. 71). But this is characteristically qualified: "we may for practical purposes hold the individual

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The contrasting metaphysical argument based on free will might run briefly as follows: Each of us has a free will, a power of governing responsible for his acts; that is to say, we assume an attitude as if the conscious Ego actually possessed the power to do what it wishes. Such an attitude has no theoretical foundation, but it has a practical, or still better, a tactical justification" (1931, pp. 72-73). S. Glueck has put the issue sharply: "A basic ethical and psychological stumbling block in an analysis of crucial problems of substantive Criminal Law and of sentencing policy is the ancient enigma about whether man possesses 'freedom of will' or is instead the deluded plaything of deterministic forces completely and always beyond his control" (1962, pp. 5 - 6 ) . The eminent forensic psychiatrist Bernard Diamond has shown a professionally typical but conceptually incoherent combination of doctrinal dogmatism and practical flexibility on this issue: "Freud, in 1904, brilliantly demonstrated by analysis of slips of the tongue, forgetting, and trains of association that what we call free will or voluntary choice is merely the conscious rationalization of a chain of unconsciously determined processes. Each act of will, each choice presumedly made on a random basis, turns out to be as rigidly determined as any other physiological process of the human body. Yet all of us continue to live our lives, make our choices, exercise our free will, and obey or disobey the law as if we actually had something to say about what we are doing" (1957, p. 27). This ambiguity comes out in a statement by Louisell and Diamond in 1965: "On the other side, it is a mistake to assume that the Freudian psychoanalyst with his emphasis on the specific psychodynamic determinants of behavior abrogates all concept of individual responsibility. Actually, it is an essential part of the value system of psychoanalytic therapy that the individual be willing to accept more responsibility for himself and his behavior than society ordinarily assigns. The psychoanalyst insists that the individual must accept responsibility for his own unconscious as well as for his conscious thinking" (p. 219). Among authorities on this question (as distinguished from lawyers, or psychiatrists or others who may be practitioners of one or another science but who are not specialists in the logical, linguistic, or philosophical problems of scientific method), there has long been debate over the meaning of the deterministic thesis and over the nature of its validity or invalidity. There is still controversy even on the question of how to formulate such a thesis. There is near general agreement that such a thesis, once plausibly formulated, could not turn out to be a proven empirical truth of science, and that it would, if valid at all, have the status of a necessary presupposition or a useful assumption for the sake of doing science. But there is grave doubt whether any such assumption is necessary or implicit in the sciences. How such a thesis could be ultimately related to such questions as moral freedom remains a topic still further fraught with controversy and obscurity. Volumes continue to be published, at a fairly rapid rate, on this matter—a fact one would not surmise

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our actions. Of course, w e do not have the power to d o

anything;

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some things happen or happen to us, and w e can do nothing about them. But our axiom is that there are also some things that do not merely happen; they are things we ourselves do. N o w when it is a case of our doing something, w e necessarily also have the power of choosing to do otherwise—or at the very least, of choosing to refrain from the act. For if we did not have the power to choose to d o otherwise than what w e are doing or to refrain from doing it, then w e would not have been free, and this contradicts our initial axiom, that w e d o have a free will. Thus the axiom of free will implies that whenever the will operates at all, it would have been possible for the person to have willed otherwise; nothing necessitated the choice. This doctrine has in effect been endorsed by s o m e w h o wish to defend the concept of criminal responsibility against the attacks of determinism. It implies, they say, that it is senseless to ask whether a defendant who performed a certain action was compelled to act that way, whether his impulse to act that way was irresistible. T h e will is by its very nature uncompelled. If the act was not a mere physical reflex or from some of the flat and confident statements made by some psychiatrists, and by some lawmen as well, as to the "established" scientific truth of determinism in its bearing on moral issues. It seems only fair, though perhaps blunt, to say that most of the remarks about determinism and its implications for moral freedom that one sees in the literature of forensic psychiatry, even the remarks of leading experts in that field, show almost total naiveté about the contemporary literature by experts in logic, linguistics, ethics, and in philosophy generally, who have studied the problem in depth. The confidence with which some forensic psychiatrists announce that determinism is a modern scientific truth, or a necessary psychiatric assumption, reflects the sad fact that in this matter clichés and slogans of the nineteenth century have been allowed too long to do duty for scholarly and scientific analysis. The irony is that the dogma so insistently announced in certain polemical contexts is frankly abandoned in psychiatric practice, as the citations above suggest. The "common sense" which allows a "little bit of freedom" or treating the patient "as i f he is responsible is an intellectually feeble device for adopting the very perspective that is so haughtily denounced as mere folk belief. Regardless of particular arguments pro or con, the very fact that the specialists in this area of philosophy of science and scientific methodology are so widely engaged in published controversy decisively refutes the claims that determinism is established as a central tenet of science. There are many recent anthologies of articles, as well as book-length studies. See, for example, Hampshire (1965), Pears (1963), Berofsky (1966), Hook (1961).

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direct effect of a causal process, if it was an action performed by him—that is, willed—then he necessarily had the power to refrain from doing it, "for what lies in our power to do lies in our power not to do." Fortunately, as I have said, we need not enter into the nest of double meanings, non sequiturs, and unfounded assumptions of which these arguments largely consist.26 Our task at this point is to note that the conclusions, whether valid or not, are fundamentally at variance with the criminal law, to see, in fact, that they are irrelevant to the criminal law. The determinist and the free-willist claims are, of course, contrary ones. Yet both lead to the claim, though for opposing reasons, that any attempt to distinguish those acts a person did freely from those he could not refrain from doing is a misguided attempt that must lead to error. The attempts in courts of law to make such distinctions thus fall suspect. How can we interpret this claim which oddly enough follows from either of two opposing viewpoints? Could it amount to the claim that, in making such distinctions through the centuries, the courts have had nothing in mind at all, that they had no reasons whatsoever for deciding one way or another? This reading of the claim would amount to a reductio ad absurdum; the conclusion taken in this way would be incredible. No, we must assume the courts have had something in mind. That is, we must assume they have had their reasons for classifying some acts as freely done and others not. If we allow this to be the case, then the metaphysical claims would have to allow that the courts have had reasons on which they based their conclusions, but it would presumably be held by the metaphysicians that these reasons did not really justify the courts' conclusions. Now once one allows that the courts have had reasons for their decisions, it becomes an open question whether the courts have in mind what the determinist and free-willist have in mind when speak26. For general references, see the anthologies cited in note 4, above. The doctrine is often discussed, not infrequently with sympathy, in the many court opinions rendered in connection with a plea of insanity by virtue of irresistible impulse. See, in this connection, the annotation to Smith v US in 70 ALR 654, 659 ff. (1929). See also Keedy's review (1952).

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ing of freedom and compulsion. If they all mean to be talking about essentially the same thing, then either the reasoning of the courts has indeed been in error or else the claims deriving from determinism and free-willism rest on error. But there is another possibility: They may not have had the same concepts in mind. The reasons the courts have had for deciding that some acts were freely done and others not may have been reasons that justify the courts' conclusions in terms of the concepts of volition proper to law, but which are inadequate reasons if one shifts to the very different concepts used in the metaphysical doctrines. One might be tempted to argue that if this were indeed the case, then the legal concepts must surely be more "superficial" and the metaphysical concepts "deeper." Or one might say that the legal concept is a "fiction," whereas the metaphysical concept is the "true" one, the one that reflects reality. But such appellations confuse the issues. We have noted previously that what is relevant, or "deep," or "truly so" depends on context and purposes. What is a deep chess insight may seem superficial, inadequate, or irrelevant to the scientist. One could say, for example, that in a deeper, religious sense all men are brothers. But this does not mean that, when the law distinguishes between brothers and nonbrothers (which in the case of adopted children involves purely legal criteria), the law is making a meaningless distinction or an unimportant one. From a religious standpoint the legal distinction may be a humbler, more superficial, or unreal distinction; from a legal standpoint it can be a fundamental distinction. Given such sources of logical confusion, it is understandable that to a psychologist a profound legal truth may look like a naive psychological analysis. It depends on one's purposes. Putting aside the value bias inherent in words like "superficial" and "deep," what remains is the possibility that there are different concepts here, that there is a set of legal concepts and a different set of metaphysical concepts. And if it turns out to be a matter of different concepts, then the fact that the determinist or free-willist uses the words "free" or "compelled" should not mislead us into thinking that he is talking about the issues that are relevant in law. We must now examine the concepts in question to see whether they do differ in the way suggested. In the metaphysical uses of "free" and "compelled," the definition

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centers on the question whether an act was causally necessitated. For both the determinist and the free-willist arguments rest on the tacit supposition that when we say "uncompelled" or "free" we mean "not causally necessitated." But is this what we mean in the law? The legal use derives from everyday uses in assessing responsibility. It will be helpful to begin by seeing how the metaphysical use is, from almost any other standpoint, an eccentric one. A businessman says, "I had to pay up by the first or else surrender title to the goods, and since I'd already paid out a good deal, I chose to pay the rest." When he says "I chose to pay," is he referring to or making claims about causal determinism? Is the concept of choice, as he uses it, tied to the concept of absence of causal necessity? Is he maintaining that this act was uncaused, "free-willed"? Surely such metaphysical propositions are the farthest thing from his mind. In fact he may even be totally unaware of such issues. (How many must have been the persons through the centuries who have used and understood this idiom of choice without ever having heard of such questions as determinism or free will, much less having any opinion on the matter!) The topic of determinism and free will is simply not the businessman's topic; and if one were to challenge his statement by saying, "You say you chose to pay, but in truth all things are causally determined," he would find the comment bizarre and perhaps reply, "That isn't what I was talking about; I'm talking business, not philosophy. I was making no claims one way or another about universal causation." It is clear, when we disperse the metaphysical fog, that what the businessman is talking about are certain property rights that he possessed at the time, and the fact that of two possible alternative legal developments in connection with those rights, the actual outcome would legally depend on whether he paid up. He is also calling attention to a further consequence of this legal-business status: he would suffer an economic loss if he surrendered his equity in the goods. His remark informs us it was just these matters that he considered in connection with his paying up; and he proposes that the way to understand (in the business context) his action is to understand that in his mind his reasons for paying derived from such considerations. He implies that he had not been given an order by a higher authority or a threat. Notice that in bringing out all these implications of his remark,

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implications the listener is entitled to draw as intended by his remark, there has been no reference to such issues as determinism or free will. One could draw no proper inferences about this man's views on determinism or free will, nor could one properly infer whether he is even aware of these doctrines and issues. Certainly he is not saying anything about universal causality or its absence. In short, when we use the idiom of choice in most areas of everyday life, we are communicating something important, but it is not our commitment to one or another of these metaphysical doctrines. Therefore, the truth or falsity of one or another metaphysical doctrine has no bearing on the intelligibility or truth of the particular comment we are making. The use of such a word as "choose" is subtle and complex—not because it deals with deep issues of metaphysics or science, but because, like all key terms in morals or law, it is used in somewhat different ways in different contexts. There is no point in pretending matters are simple. Our businessman, when he says that he chose to pay, may in a particular context be mainly meaning to deny that coercion was involved, that threats were made to him. In another context, he may be mainly meaning to say that the legal options depended on what he did. In another use, he may be stressing that he reflected on the matter rather than acting inadvertently or by mistake. To say "I chose to pay" can be intended to convey a variety of messages, but never (in a business context) the meaning "my act was not causally necessitated." In a game of chess, "I had no choice" may mean, "According to the rules, no other move was permissible." In a political context, "I had no choice" may be used to mean, "Any other tactic would surely, by my estimate, have lost me the election." In neither case does "I had no choice" mean "My act was causally necessitated." Part of the skill of using such words consists in the skill of suiting word, context, and purposes. But to suppose that "I chose" means or even implies "My act was not causally necessitated" is to misrender grossly the meaning of the English words. The metaphysical use of "choice" and "compulsion" as referring to universal causality is an odd use, odd from the standpoint of almost any everyday context of use or almost any use in specialized contexts. Specifically, the legal uses of such terms are closely related

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to their ordinary uses, especially in contexts of moral assessment. And this is why it makes sense to have a jury of laymen judge the matter, with a bit of legal guidance.27 Consider the case of one who pleads not guilty to a criminal charge by virtue of absence of mens rea. He does so, let us suppose, on the ground that he was subjected to duress and was compelled to act as he did. We see at once that questions of ultimate causal determinism are irrelevant to the legal issues raised. To ask in this context if the act was or was not compelled is to ask a very different question than, Is it the case that all acts are strictly causally determined from a scientific standpoint, and that therefore this act, too, was strictly causally determined from that standpoint? Instead, the question of compulsion here amounts to asking whether the defendant was threatened in such a way as to give him good reason to think he was in "imminent and impending" "present" danger of "death or great bodily harm" if he did not act as he did.28 The inquiry about whether the defendant was compelled to act as he did will then proceed to an investigation of such questions of particular fact as, What was said to the defendant by the 27. One can see the failure to appreciate these fundamental issues, and the deep-lying but tacit supposition that the only problem is a technical one, in the comment of Louisell and Diamond: "There is still lacking in the psychoanalytic, psychiatric or psychologic literature a simple and comprehensible statement of the problem of individual choice, decision, volition and moral responsibility which could be applied directly to the decision-making processes of the law" (1965, p. 220). It does not seem to occur to the psychiatrist that the legal uses of "choice," "decision," "volition," and so forth may be specific to the legal context and the moral context rather than being vague folk concepts which should, ideally, be translated into the concepts peculiar to psychiatry. The confusion here is analogous to saying: "There is still lacking in the science of kinetics a simple, comprehensible statement of the various kinds and strategies of chess moves." 28. "[A] well-grounded belief in impending death or great bodily harm . . . the actual or apparent danger must be imminent or impending . . . the threatener must be, or be believed to be, present except that one armed is 'present' for this purpose if in such a position as to be within the effective reach of his weapon" (Perkins, 1957, pp. 845-846). Notice that there is (of course) no reference one way or another here to the issue of universal causal determinism. The law, said Cardozo, "is guided by a robust common sense which assumes the freedom of will as a working hypothesis" (Stewart Machine Co. v Davis, p. 590).

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purported threatener? What gestures and demeanor did the latter have? What potentially mortal weapon or potentially dangerous physical force did he show? Was the threatener in a position to apply that force with reasonable chance of success against defendant? Did defendant have a reasonable escape route from or obvious defense against such present and imminent danger? The court of course will not entertain testimony designed to establish compulsion based on the theory of universal causal determinism—not because the law places courts in a philosophical straitjacket, but because "he was compelled" in this legal context simply does not mean "his act was causally determined." But it does mean, roughly, "he acted in accordance with a command associated with a believable threat of impending and immediate mortal danger if the command were not obeyed." We do often excuse actions done under threat of mortal danger. The concept of compulsion belongs here not to science but to the legal practice, derived from the moral practice, of excusing; that is, the concept of coercion marks out certain features of the context of conduct such that we can single out certain cases in law or morals that we wish to treat as excusable from the nonexcusable cases. This distinction is irrelevant to science and to the question of universal causality. Excusing is not a practice of science or even of metaphysics. Why do we excuse by reason of coercion? Surely this excuse arises in connection with our practical attempts to deal with conduct under threat, not our philosophical or scientific debates about universal causation. It is because we recognize human frailty, and do not normally expect resistance to imminent mortal threat, that we excuse. Resistance in such circumstances, when it occurs, is heroic; it is the rare exception and draws special praise. It is because our blame and praise are attuned to man as we can ordinarily expect him to be that we do not condemn one who gives in to genuine coercion; one cannot realistically ask more of him. This is a truth of common sense and plays its role in common practice; it is neither based on nor commits one to any particular view, one way or another, concerning whether, or in what degree, or in what manner, universal causality entered into the picture. That issue is beside the point. Whatever the "secret springs" of man's behavior may turn out

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to be, they cannot be inconsistent with this truth about man as we have known him until now; we cannot effectively demand that resistance to imminent mortal threat be a common norm. Therefore we excuse the failure to resist. Now it is sometimes said by judges or lawyers that the criminal law rests on the (metaphysical) postulate that we all have a free will.29 This is an understandable but philosophically inappropriate way to express the fact that the law is founded on the necessity to distinguish between the actions of a man (which, it is normally presumed, he could have refrained from doing) and what happens to him, between his free choices and that which he does inadvertently or involuntarily, between what is done freely and what is done under compulsion. The assumption that such distinctions presuppose some metaphysical doctrine involving the free will is common in legal circles, but it is a false assumption. I have tried to show in my earlier remarks some reasons why it is false. When one finds reference to free will in an occasional judicial dictum, it is not because it helps make the particular legal decision in the particular case. The motive is to parry a philosophical attack, usually an attack on determinist grounds, by affirming what is thought to be the respectably philosophical counterdoctrine. But no such metaphysical counterdoctrine is needed, since the wholesale attack based on determinism is unwarranted in the first place, as we have now seen. There is unfortunately a kind of Gresham's law operating here: Bad philosophy generates more bad philosophy. If no one ever mentioned free will or determinism again or if either or both doctrines were seen to be unsound, this would no more preclude the courts from looking for compulsion, in the legal sense, than if it were proved tomorrow by physiologists that at the very center of every human brain there is a core of green cheese. There is still another metaphysical source of difficulties in dealing with such idioms as "he was compelled" or "he could not control himself" or "he tried to resist the impulse to do it, but it was irresistible." 29. People v Gorshen, p. 498, is also a case in point. See also, for example, People v Wolff, p. 959, where the court states that "the basic behavioral concept of our social order is free will." See Kadish's sympathetic reference in this context to the "myth" of "free will" (1968, p. 287).

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In essence, the viewpoint in question consists in supposing that in saying these things we are trying to describe certain states or processes within the person's mind or "inside another's skin." 30 Being internal, these states or processes are necessarily unobservable by others. Therefore, we ought not to try to judge what in the nature of the case we cannot know. Such a line of argument has devastating implications. For it can be generalized to cover all mental states or processes. One can argue with equal force that not only our attempts at self-control, but all our thoughts, feelings, wishes, hopes and fears—in short, all the things that go on "in" our minds—are inherently unobservable by others. And if it follows in the case of self-control, it follows in all these other cases that we cannot make reasonable judgments in such matters and, therefore, ought not to try to do so. Such a line of argument is devastating in its implications because, were we to accept it and act on it, it is plain that all interpersonal intercourse would thereupon cease. There is no need to belabor the point that our ability to understand what is in another's mind is a necessary condition for us to be able to converse with one another, to engage in cooperative endeavors or social relationships, to coordinate even the simplest of our movements with others. Of course, each such judgment of another's mind has its particular limits, obstacles, and sources of deception. We never know everything that is in another person's mind at any time. But this does not imply that we know nothing of what is in his mind ever. We are not always confident in our judgment, but this does not mean we never are. In fact, in the moment-to-moment routine of everyday living, we are usually entirely confident of our judgments in these matters. The fostering of an image of all these happenings locked up inside a person's mind, and the tendency to emphasize the occasional problematic case where we are in doubt about what some30. See, e.g., Wootton, 1963, p. 74: "The propositions of science are by definition subject to empirical validation: but since it is not possible to get inside another man's skin, no objective criterion which can distinguish between 'he did not' and 'he could not' is conceivable." The position in question, in the larger philosophical context, is discussed at length in the influential contemporary work of Gilbert Ryle, The Concept of Mind, and even more influentially, but more obscurely to the nonphilosopher, in the later work of Ludwig Wittgenstein.

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one has in mind, lead to the impression that we are always forced to guess, that we always and necessarily are forced to engage in "mere" (that is, unreasonable) inference in these matters. The undue emphasis on our fallibility nourishes the utterly unwarranted inference that our judgments should always be challenged because they are always in principle challengeable. But the impression that we can only speculate or guess about these matters is a temporary illusion produced by emphasizing the metaphor of an inaccessible interior. In actual fact we do not usually have to guess or speculate about such unobservable events. We make our judgments according to all that we do see and hear, what we know about the surrounding circumstances in the particular case, what we know about life in general, and what we have learned in our own experience and inner life. We are very often warrantedly confident, not merely guessing, in making such judgments. As to the metaphysical denial that such a judgment can ever attain to absolute certainty, that it is always challengeable and therefore always dubious because, whatever our indirect evidence, we can never make the final check and look directly into another's mind, the law need not concern itself with such an abstruse and controversial doctrine. For the law has no need to claim, nor does it claim, that it is making a "metaphysically certain" judgment, whatever that might be. It is enough—indeed it is the usual and proper thing— for the law to judge a man's mind in the usual ways, in the only way we can and do judge, by reference to what men can observe and what men can know of life. If there is a reasonable doubt because of lack of adequate information, this establishes no metaphysical crisis but only one of the commonplace outcomes in a criminal trial. Concerning metaphysical certainty, the law is concerned with what has often been aptly termed "moral certainty," not the metaphysical kind. Our concepts do have their elements of vagueness. Our language cannot automatically cover all possible eventualities. Not all practical doubts or uncertainties in our judgments are due merely to lack of sufficient information about the particulars of a case. There is no escape in law (or in everyday life) from having occasionally to make decisions, decisions about how to extend the application of a concept to new kinds of cases, or decisions about how to render

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a concept more definite in borderline cases. The question whether a person is to be held to have had any choice or not is not always simply a matter of evidence; we may have to choose what to hold in some borderline cases. Metaphysical doctrines avoid this difficulty; their concepts, being entirely general, apply to all possible cases because the concepts say nothing in particular about any one case. In this respect the metaphysical orientation is antithetical to the legal orientation. The law is as deeply rooted in the careful examination of the differentiating particularities of cases as it is in bodies of statutes, rules, and general principles directed to the similarities among cases. It is tempting, in our occasional conceptual frustration, to be attracted by certain seductively general views which give hope that we can entirely wash our hands of a complex problem rather than having to deal with it piecemeal. Such metaphysical siren songs include the thesis of determinism (which assures us that all acts are compelled), the thesis of free will (which assures us that no act is compelled), and the thesis of the privacy of the mind (which assures us that no reasonable judgment can ever be made one way or the other). If we forego such wholesale pseudosolutions, we are left to continue with our more painstaking task—in the present instance, our attempt to explore specific ways in which the law uses such concepts as choice, will, compulsion, and voluntary. We are left with the need to attempt to see how these uses bear specifically on the legal concepts of insanity and criminal responsibility and to relate all this to the language and practice of psychiatry. THE ESSENTIAL ROLE OF TELEOLOGY IN PSYCHIATRIC EXPLANATION

In the preceding discussions, the focus of attention has been on the autonomy of the concepts of the law relative to a cluster of other doctrines and institutions loosely classed under such headings as "psychiatry," "science," "determinism," and "metaphysical doctrines." It is now appropriate to discriminate and to focus our attention on psychiatry in particular, on features of its actual doctrine and practice as distinguished from generalities about science and

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determinism that have until now occupied us. Now we shall see how, examined more closely, the psychiatric perspective is in some very important ways akin to that of the criminal law approach. Indeed, we shall find such kinship precisely in certain areas where some forensic psychiatrists have most vociferously insisted that there is a radical gap. The emotions associated with the word "science," the slogans and clichés of the ideology that "psychiatry is a science" and "science is deterministic," and also certain aspects of psychiatric technical terminology, have all served to genuinely confuse many psychiatrists (and lawmen) working in the area of forensic psychiatry. There is anxiety evoked by the thought that, if one were to admit psychiatry is not basically the same kind of inquiry as physics, one would also in effect be admitting that psychiatry is invalid. This anxiety hinders objective description of important, valid insights that psychiatry does offer. For some of its most illuminating insights and most significant therapeutic techniques do have a radically different logical structure from physical science. This section is still mainly concerned with concepts pertaining to will. I have not until now challenged the assumption that psychiatry is deterministically oriented. I have merely argued that determinism as a metaphysical doctrine is irrelevant to criminal law. As a purported universal axiom in psychiatry it is in practice explicitly admitted by psychiatrists themselves to be inapplicable.31 Now, however, we must examine whether the assumption that psychiatry is inherently deterministic in its orieatation is sound, and whether what psychiatrists call "psychic determinism" is essentially the same as determinism in the area of the natural sciences. Is contemporary psychiatric understanding like physical science in abjuring teleological concepts—such concepts as purpose, will, and intent—as explanatory? When psychiatry uses terms borrowed from natural science—cause, structure, process, energy—does it use these and all other theoretical terms in a nonteleological sense (as is strictly the case in natural science)? These questions are central to a genuine understanding of the relation of psychiatric explanations to such everyday explanatory concepts as will, choice, and intent, concepts central to the moral-legal perspective. 31. See note 4, above, and text related to it.

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The following section examines the question whether psychiatry abjures the use of moral concepts, such notions as right and wrong and knowing what is right. Thus, this section and the next in effect examine those particular psychiatric concepts that have direct relevance to two elements—willpower and knowledge of wrong— which are at the heart of the insanity tests in the United States. The questions asked by the law in connection with mens rea are essentially teleological in character. They ask for accounts of human conduct in terms of the reasons a person had, his choices, his purposes, and, in short, the meaning of what he did. If psychiatry is at bottom a nonteleological science of energies, structures, causes, and effects, and if questions of will make no sense psychiatrically, then there is indeed a profound logical gap between the answers psychiatry can give and the questions posed by the law. When the criminal law asks questions, for example, concerning self-control, it is asking about the person's thoughts, aims, wishes, about the efforts he made or only pretends to have made; and these are all concepts of a teleological kind. The physicist does not ask if a certain electron tried hard enough to jump its orbit. The physiologist does not ask if the blood sugar tried hard enough to keep at a certain level of concentration. These are not matters of will and purpose but of cause and effect. Will and purpose are absent from causal analyses in terms of mathematical relationships among quantities of energy. Some forensic psychiatrists have insisted that since their analyses are cast in terms of balances of mental forces and strength of mental structures, there is exactly such an unbridgeable logical gap, and the questions posed in law make no sense psychiatrically.32 However, even a preliminary glance at the circumstances typical in many cases where insanity is pleaded reveals that such a gap does not exist. The psychiatrist, along with the court and the layman, relies heavily on teleological concepts of a familiar kind in order to describe and explain what a person has done. In fact his explanation to a good extent consists precisely in showing us the purposes, the meaning in familiar teleological terms, of behavior whose teleological meaning had not been apparent to the layman. 32. Again see note 4, above.

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His suspicious jealousy was clearly in response to repressed homosexual fears. . . . He felt inadequate, sexually and in all other ways. 33 His chief defense mechanism against total loss of ego identity and self-destructive annihilation appears to be the formation of an aggressive "bad" identity, rebellious and defiant, revolving about the central idea of "I will never submit to authority. I am strong, I am dangerous. No prison will ever break my spirit. It is not true that I am not potent and masculine." 34

Here, in typical courtroom statements, made by a distinguished forensic psychiatrist about two different defendants, we have technical terms such as "repressed," "ego," and "defense mechanism." But most of what is said in these statements is cast in terms of our everyday, inherently teleological concepts: the explanation is in terms of what the defendant thought, his emotions, fears, and purposes, the reasons in terms of which he justified or thought to justify certain conduct and intentions. The concepts and the form of explanation are for the most part familiar even though they add up to an unusual, even bizarre combination; but then it is precisely because the conduct is unusual, bizarre, apparently irrational, that the psychiatrist is called on to explain it. The illuminating character of this explanation does not come from showing that the phenomena conform to relations entirely expressible in certain mathematical formulae. The sense of illumination afforded by such an explanation comes from showing us, to our surprise, that behavior which had seemed merely bizarre, arbitrary, or incoherent takes on the aspect of meaningful, intelligible, purposeful conduct in terms of our ordinary understanding of human beings and human conduct. We see it as something one might well do, if one had the peculiar set of thoughts, emotions, aims that the psychiatrist proposes the defendant had. Moreover, we see (when we study the entire case history) that a person of this temperament and life history might well be led to have such thoughts, emotions, and purposes. In short, the psychiatrist does not use a radically different mode of explanation from our usual one; on the contrary, he reveals that he is more skillful than we in grasping the meaning, in familiar and teleological terms, of 33. Diamond, 1957, p. 25.

34. Ibid., p. 18.

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conduct which is on its face meaningless, bizarre, or

extreme.

The fundamental reliance of psychiatry on these everyday forms of explanation—teleological and mentalistic as they are—is strangely overlooked at times by psychiatrists themselves, especially when they feel harried or frustrated by legal procedures or when they feel their scientific status threatened. The use of a technical language that is derived from the terminology of mechanics makes it easier to present psychiatric theory as if it were logically of the same type as a mechanical-mathematical analysis of energies and structures. N o tions like psychic causes and psychic determinism help further to confuse the issues in this context. 3 5 This confusion about the nature of psychiatric explanation has deep historical sources. It will be well at this point to recall our earlier recognition of the influence of nineteenth-century materialism and physical medicine on psychiatric thinking. We saw that the very 35. Diamond (1957, p. 27) makes a characteristic comment suggesting that psychiatry is essentially a natural or experimental science: "Modern neuroanatomy, neurophysiology, cybernetics, animal psychology and the other natural sciences create the climate in which psychoanalysis exists today. Inevitably this affects its context, or, as some might say, the 'field' of its operation." That there is truth in what he says obscures the rest of the truth— namely, that the characteristic explanations of dynamic psychiatry, the explanations he himself gives in his expert testimony, are essentially teleological and rely on the everyday categories of explanation as indicated in the text. There is much truth in Leifer's comment, though it tends to go to the other extreme: "The psychiatrist merely makes it sound as if he is dealing with scientific information by using technical psychiatric jargon to describe behavorial events which could be described with ordinary language" (1963, p. 573). A fundamental source of confusion, historically speaking, is Freud's insistence that his doctrines were based on the assumption of determinism— "psychic determinism." His scientific learning encouraged him to suppose that he was showing the pervasiveness of causal determinism even in the "psychic" realm. But his characteristic honesty and insight into what he was doing concretely led him to say repeatedly that what he was getting at was the presence of "sense," "intention," "purpose," "meaning" in behavior that on its face seemed senseless. The topic is complex and important. It is considered at further length on pp. 90-91, below. But see, for example, Freud's Introduction to Psychoanalysis, the opening paragraphs of lectures 3 and 4; see also chapter 1 of my The Self in Transformation. See also Waelder's discussion, in which he brings out explicitly the teleological character of fundamental psychiatric concepts (1960).

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notion of mental disease was developed on the analogy of physical disease. We noted that the widespread acceptance of the notion of mental disease was closely related to the surge of optimism at that time concerning the prospects of physical understanding for curing man's physical diseases. The impulse nourished by these trends was to try to develop a study of mind that would be a science in its method; and "science" at the time meant not only a method but also a set of materialistic, deterministic concepts and assumptions. All change was presumed to be a change in matter and energy patterns strictly conforming to mathematical relationships and therefore without reference to purpose. Any reliable knowledge, it was supposed, would have to aspire to explanation in such terms. Against this background, any claim that psychiatry was a science had to be buttressed by showing that in psychiatric theories strict nonteleological determinism was assumed, and that what was determined was describable ultimately in terms of "matter" and not "mind." Plainly, a psychiatric science, according to the views just outlined, would have to develop a new language for describing and explaining the mind, or else it would have to reinterpret and to give a materialistic meaning to old language. In fact, both of these happened. And thus a set of terminologies came into use which, having been in the first instance designed to suggest the physical realm, reinforced the sense that psychiatry was indeed using physical forms of explanation rather than teleological, mentalistic ones. As noted in chapter 1, a variety of such psychiatric terminologies arose. In earlier years, the theories were cast in terms of "humors," "bile," "excess of blood," and brain pathology. For the sake of economy, I shall here restrict myself to considering only some representative and influential contemporary concepts.36 And in partic36. I shall be referring throughout to the sorts of psychiatric approaches known broadly as depth or dynamic psychiatries. Historically, these derive largely from Freud's work. There have been many developments since. In quite a few instances, other psychiatrists and psychologists have proposed doctrines, concepts, and techniques based on criticisms of Freud and on new or different insights or emphases. Yet a fundamental orientation of Freud remains: All these schools view human conduct for the most part in terms of motives, purposes, and intentions, in terms of desires, emotions, moods, thoughts, hopes, and fears. Attempts at primarily physical, mathematical, bio-

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ular we are here concerned with the technical concepts in their relevance to such issues as will, intention, and self-control. One such cluster of technical concepts consists of paraphysical terms such as "drive," "impulse," and "psychic energies," and of the conception that there is a psychic structure—the ego—whose function is to control and channel these energies in ways that maintain an equilibrium. The hope was present from the inception of this language that these psychiatric terms would, if not directly at least in some indirect way, ultimately be translatable into terms of the physical structures and the patterns of physical energies within the body. 37 Paradoxically, there was associated with this language an illuminating new approach that was avowedly mentalistic and teleological. It was new not in its mode of explaining but in the respect that a whole region of hitherto unintelligible human behavior—"madness," "insanity," "eccentricity"—was found to be intelligible in terms of the everyday modes of explaining human conduct by reference to motives, reasons, purposes, emotions, and so on. It began with Freud. One of Freud's earliest classic papers consisted in a demonstration, based on detailed clinical and neurological analysis, that an important category of illness (hysterical paralysis) cannot be explained in "organic" terms, that is, in terms of local bodily neurological lesion.38 On the other hand, he showed that such paralysis can be explained as purposeful conduct. He showed how the paralysis is rooted in the person's common-sense ideas about his body and in recognizable logical, or other nonteleological forms of understanding are rarely made by dynamic psychiatrists except for routine examinations for certain forms of organic defect; the latter, even when demonstrable, may yet have no clear implications with respect to responsibility. The great preponderance of psychiatric testimony on criminal insanity seems to be a varying mixture of (1) descriptive labels, classifying the personality or mental condition of the defendant in terms of official diagnostic general categories, and (2) specific analyses in depth of the particular motives and other elements of personal history, personality, and state of mind in the situation, in terms of which the particular act in that situation is (teleologically) explained. 37. See the latter part of note 14, above; and see also, e.g., Freud's Outline of Psychoanalysis, chapter 4. 38. Freud, 1893.

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emotions and motives which provide the person with understandable reasons for not wanting to move the "paralyzed" limb, not wanting to admit even to himself that he has such motives. Freud's distinction between conscious and unconscious helps bring out the self-deceiving aspect of the matter, but it does not change the fact that what are unconscious or conscious are ideas or wishes or aims. He showed that what was happening was not alien to the realm of ideas, wishes, and aims, but was in fact governed by ideas, wishes, and aims about whose role and very existence, however, the person had succeeded in deceiving himself. Freud spoke of such odd behavior as meaningful conduct whose meaning, however, was unconscious. This return to explanation in terms of what Freud called the "meaning" of the conduct—that is, the intentions, reasons, motives, and wishes shaping action—was central to his approach. It remains central to dynamic psychiatry today. Freud held that all conduct has meaning in this sense. And he spoke of this thesis as the axiom of "psychic determinism." Here the word "determinism" was designed to carry the implication that science and causality were not abandoned by the new psychiatry; and the word expressed his faith that all conduct would indeed be explained causally. He liked to use language that had a causal, medical look—he spoke of "functional" or "psychogenic" disorders as well as "psychic determinism." But the word "psychic" in the phrase "psychic determinism" (and "psychic cause") reflected the fact that what he was calling "causes" were not the nonpurposive physical forces and bodies of physics but purposes, aims, and intentions themselves. Whether or not we call these "causes" is a secondary issue. No logical miracle is performed by calling a person's purposes the "causes" of his behavior, and then claiming to have given a "causal" analysis of behavior. What is critical is that we realize that this psychiatric way of explaining conduct is not a radical break with our everyday understanding in terms of hopes and fears, aims and wishes, reasons and intentions, desires and conflicting desires; on the contrary it represents the extension of this kind of everyday understanding to comportment that formerly had seemed unintelligible in this way. To be specific, it is since Freud that we understand in very different ways the blind flailing about of an epileptic in a grand mal

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seizure, as contrasted with the skillful execution of a complex plan by a paranoid schizophrenic. We are now far more appreciative of the radical difference between the aphasic who says something he didn't intend to say because of a lesion in the brain and the person who makes a slip of the tongue that reveals an attitude or purpose he was trying to repress. We see the radical difference between one who loses consciousness as the direct effect of a bodily blow, and who thereupon falls and damages a vase, and one who wants to do something destructive but is afraid to admit his destructive wish even to himself, and who thereupon "accidentally" knocks over a vase. What is the nature of this radical difference in the forms of explanation? It is not a matter of irrational conduct as against rational conduct. For in none of the cases at all do we have rational conduct. But in the first examples in each pair, the critical event is not conduct at all; it is the direct effect of a physical malfunction or physically based incapacity. The epileptic's body is moving, but he is not engaging in conduct; the defect in the brain-damaged person's speech is not conduct but is a symptom of the breakdown of intelligible conduct; the one who knocks the vase over when falling from the blow is not engaging in conduct. On the other hand, in the other cases we do—since Freud—see the behavior as conduct. For what happens is to a significant extent intelligible in terms of purpose and motive; it has meaning. But it is irrational conduct. "Functional mental disorder" and "psychogenic mental disorder" are locutions which announce that we are dealing with intelligible but irrational conduct, as distinguished from intelligible and rational conduct on the one hand, and on the other behavior which, like the epileptic's, had no "psychological meaning" at all. One might suppose it would change the picture if we suppose that eventually psychiatrists will be able to translate all the explanations they now give into explanations of a different form, a form logically of the same nonteleological type as that in the physical sciences. Notions like psychic determinism and psychic cause express this historic hope; and notions like ego structure, psychic energy, and defense mechanism are designed to promise something of the sort. But even if the concepts are ultimately translatable into a clearly nonteleological causal language, the teleological account does not then become false,

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or meaningless, or unreal. On the contrary, the teleological account would remain psychiatrically valid. This can be easily seen as follows. If a teleological explanation can be translated into a nonteleological explanation, then it necessarily follows that the nonteleological explanation is translatable back into the teleological one. If one is true, both are true. If one is false, both are false. Therefore, if the contemporary explanations in terms of psychic determinism—that is, everyday teleological concepts—are valid at all, they remain no less valid if translatable into nonteleological language. Of course, if such translations turn out not ever to be possible, or to the extent they are not, then the psychiatrist must still acknowledge the validity of the teleological explanations since it is on these that he himself actually relies at the present time. It might appear that at least such a technical concept as ego is already a nonteleological concept, one that is not even initially a concept defined in teleological terms. This assumption will not hold, however, for "ego structure" and other such psychiatric terms designed to suggest the physical turn out to have uses that are inherently teleological, which rest, in fact, on the making of assessments in terms of the same everyday purposive categories the layman uses. Let us see how this is so. The psychiatrist reports of a defendant that "his suspicious jealousy was clearly a response to repressed homosexual fear." This may suggest, because of the technical term "repressed," that there is some inner machinery here, a "causal process" whose operation, we perhaps suppose, necessitated the act, a process whose existence would preclude the possibility that the person acted purposefully. But such is not the case. This psychiatric comment is a technical means of characterizing the way in which the person in question responds to intense fears of homosexuality. What is implied in this remark is, in substance, that the defendant is so anxious, so intensely fearful when homosexual inclinations are aroused in him by another man, that, as a selfprotective maneuver, he deceives himself in a complex way. He gets himself to see his relationship with the other man as aggressive, competitive. An aggressive attitude helps ensure against allowing any affectionate relationship to develop. Such an attitude also helps him to account for the anxious fears he feels whenever he thinks

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of or is near the other man. His self-deception is more complex yet: he ascribes this aggressive antagonism to his being heterosexually jealous, fantasying that the other man is paying court to his own wife. In this way he accounts for the fact that there is an erotic aura that dominates his feelings whenever he thinks of or is near the other man. Furthermore, heterosexual jealousy provides an "acceptable" ground for being antagonistic. Such an explanation for a certain kind of pathologically suspicious jealousy is ingenious and has clinical confirmation; 39 and it is one we can understand, whether or not we think it a correct explanation in any particular case. But we understand it just because it places the formerly bizarrely suspicious jealousy in the context of a distinctive and unusual pattern of familiar sorts of fears, anxieties, motives, and capacities for self-deception. Seen in this way, the technical concept "repression" does not reflect a radically different approach to understanding the mind but a more concise and profounder use of the familiar approach. In the second psychiatric statement cited above, we have such phrases as "loss of ego identity" and "formation of an aggressive 'bad' identity." Here again we need not suppose that facts of some esoteric kind, quite untranslatable into the common idiom, are at issue. There has been no observation in the clinic of an internal structure of the ego that "causes" the conduct in question.40 Rather this is a way of characterizing in technical language certain observations about this person and his conduct that are of the sort we all typically observe—though we might not in fact be keen enough to have made these observations on our own. We are being told, in effect, that this man has never developed a clear idea of himself in his own eyes; unsure, anxious, he shifts from being one type of person to being another, from one role to another, and he is full of 39. See, e.g., the account in Fenichel's textbook, 1945, p. 433. 40. Diamond admits that, "In truth, today, we do not have a sufficient foundation of scientific knowledge about the ego functions of decision, choice, and determination of action to justify the formulation of any general principles which could be applied to the law" (1957, p. 27). Diamond thinks of this as essentially an empirical lack, a gap in psychiatric factual information. But it is in part a conceptual gap: decision and choice are not causal concepts, and so the expectation of a "scientific" (i.e., causal) analysis may well be based in part on logical confusion.

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destructive inclinations which he senses he could easily turn against himself. As a self-protective device to defend himself against the anxieties associated with his failure to come to terms with himself, he manages, as a desperate maneuver, to make a "virtue" of his defects; he manages to establish himself in his own eyes not as one who merely fits nowhere in particular but in the more dramatic, "positive" role of one who is against everybody else, a rebel. The additional benefit of this stance is that he then quite "naturally" has reason constantly to be aggressive and destructive against everyone else, and in this way he is able to turn his destructiveness away from himself.41 We could make similar remarks about such a phrase, for example, as "breakdown of ego controls due to ego weakness." Such a remark seems to refer to some inner structure (conceived on the model of a physical structure) whose breakdown under pressure causes the act in question. But of course no such inner machinery has been observed, no chain of causation has been observed. What the psychiatrist is telling us, in a language originally derived from discourse about machines, is that (very roughly speaking) the person lost his self-control and indulged certain immature and unrealistic wishes, and that this is a characteristic tendency of his.42 Since such tech41. See Erikson's discussion: "The sense of ego identity, then, is the accrued confidence that one's ability to maintain inner sameness and continuity [one's ego in the psychological sense] is matched by the sameness and continuity of one's meaning for others. "The ego identity develops out of a gradual integration of all identifications, but here, if anywhere, the whole has a different quality than the sum of its parts. It is the integration of the whole, not the quality or strength of the parts, which makes the difference. . . . "The emerging ego identity, then, bridges the early childhood stages, when the body and the parent images were given their specific meanings, and the later stages, when a variety of social roles becomes available and increasingly coercive. "The danger of this stage is role diffusion: as Biff puts it in Arthur Miller's The Death of a Salesman, 'I just can't take hold, Mom, I can't take hold of some kind of a life.' Where such a dilemma is based on a strong previous doubt of one's ethnic and sexual identity, delinquent and outright psychotic incidents are not uncommon." (E. H. Erikson, cited in Katz, Goldstein, Dershowitz, 1967, pp. 346-347.) 42. For example, in their recent textbook, Redlich and Freedman explain: "The ability to plan realistically and carry out such plans is called judgment.

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nical phrases take their meaning from the everyday idiom in which we assess human conduct in inherently teleological terms, and not from scientific measurements or observations of inner forces or structure in any physical sense, it is no wonder that those who assume the phrases to have a physicalistic reference find the problem of selfcontrol insoluble. 43 It involves not only cognitive processes but the capacity to select or channel and to initiate action or make decisions. Psychiatrists have been, for practical reasons, quite interested in man's ability to plan and to make unambiguous and unimpulsive decisions that are based on realistic and not on wishful thinking. The capacity to do this is referred to in psychodynamic parlance as ego strength, a vague but useful term" (1966, pp. 100-101). The other side of the picture is described later on in their text as follows: "In general, the more infantile and immature the patient, the more difficult the treatment. Psychological sensitivity, intelligence, and what is vaguely referred to as ego strength —and 'motivation*—are what therapists hope for in their patients" (p. 363). Another textbook statement is interesting precisely because it confuses exactly the issue we are here concerned with. The following statement looks as if it postulates a piece of mental machinery that causes one to be able to do certain observable everyday things, such as tolerating intense emotion, and recognizing their rationality or irrationality: "The concept of ego strength is an empirical construct that is useful in estimating prognosis. The ego may be conceived of as an integrating force that permits of a mobilization of adaptive resources. The ability in insight therapy to face inner conflict, to tolerate the intense emotions and anxieties liberated in the relationship with the therapist, to recognize the irrationality of these emotions, to understand their genetic origin, to abandon the spurious values and secondary gains of a neurosis, and to establish patterns of behavior in line with mature goals, calls for a relatively strong ego structure" (Wolberg, 1954, p. 234). The language might lead one to suppose that the psychiatrist has identified such an "ego structure" or "integrating force," and that he has further discovered that it plays a causal role in giving a person the abilities described in the third sentence of the quotation. But in truth no such structure or force has been independently identified or is ever independently assessed: "strong ego structure" is the technical and concise name given to the complex of abilities that Wolberg lists. See, for example, psychiatric testimony in US v Carter (1970), p. 205. 43. Wootton, revealing a typical and widespread confusion on this issue, does seem to think that the concept of self-control is to be understood finally in terms of the inner and invisible "structures" which only science—if any discipline at all—could study. Not realizing that such concepts as self-control or ego are at bottom references to conduct as understood by common sense in certain everyday contexts, she remarks with some sarcasm on the demand that juries resolve these questions: "Apart from admiration of the optimism

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I should also note here, in view of the reluctance of many forensic psychiatrists to use words like "choice" in their technical formulations, that the concept of choice is embedded in their doctrine nevertheless. The ego is postulated as a psychic agency or system with a number of crucial functions. Among these are such key functions as perceiving, remembering, thinking, relating external conditions to inner ones, projecting plans, establishing goals, and control over affect and motility in accord with such plans and goals. These so-called perceptual, reality-testing, synthesizing, and executive functions—as the most casual glance at the literature will reveal—amount to what we would ordinarily speak of as the capacity of a person to assess his situation, to work out (whether laboriously or with instant spontaneity) a way of conducting himself in that situation, and having decided on such a way to follow it through.44 The psychiatric tendency to redescribe purposeful conduct in a technical language derived from nonteleological forms of discourse obscures the fact that this language is used in psychiatry in a way that is teleological, that rests on our usual categories of will and purpose, and that does not rest on nonpurposive, mathematicallogical calculations.45 THE CENTRAL ROLE OF MORAL CONCEPTS AND ISSUES IN PSYCHIATRY

In exploring the relationship between psychiatry and criminal law in the context of assessments of responsibility, my initial aim was which expects common sense to make good the deficiencies of science, it is only necessary to add that the problem would seem to be insoluble, not merely in the present, but indeed in any, state of medical knowledge" (1963, p. 74). Of course the problem is medically insoluble; it is not a medical (physical) problem. That is, the answers lie not in physiology but in the principles (moral, legal, social) that define "the rules of the game" for everyday social life. The jury, as a group of disinterested laymen, is eminently the right group for this task. 44. See any psychoanalytic or psychiatric textbook discussion of ego functions, e.g., Redlich and Freedman, 1966, p. 56. 45. The psychoanalyst Waelder, having reviewed Freud's last definition of the ego (along the lines indicated at text to note 23, above), says, "In such words ('in control'—'task'—'avoiding*—'dealing with' . . .) the ego is described as a problem-solving agent. It is a teleological concept" (1960, p. 169).

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to bring out the logical and moral autonomy of the responsibility orientation. By autonomy I meant not that the responsibility orientation stands in total isolation from all other points of view, or from psychiatry in particular. The point is rather that the value and validity of the responsibility orientation do not require that responsibility concepts be translatable into psychiatric language, or into scientific language generally, or into the terms of any special metaphysical doctrine. However, I then proceeded to show that, contrary to the claims of many forensic psychiatrists, psychiatric understanding of human conduct does in fact use key explanatory concepts which are the same as, or closely related to, the mental concepts of common sense and of law. These are the concepts that, broadly speaking, pertain to will, purpose, and choice—to what I spoke of generally as the everyday teleological mode of understanding. Now I wish to show, once again contrary to vociferous protestations by many a forensic psychiatrist, that the contemporary psychiatrist is also deeply concerned with questions of moral values and moral judgment. Indeed moral concepts and issues are as central to psychiatric doctrine and practice as are teleological concepts of wish and purpose. A typical psychiatric criticism of the moral element in the criminal law runs as follows: Psychiatrists are scientists, and therefore it is not within their professional competence to ofier judgments in matters of morals. This being so, a legal test of insanity such as the M'Naghten test is inherently misguided. The law asks the psychiatrist in his capacity as expert a question about knowledge of right and wrong, a question he can only answer by going beyond, indeed by betraying, that moral neutrality and objectivity which belong to the essence of his claim to expertise as scientist.46 46. Thus, the report of the Group for the Advancement of Psychiatry states, "There is no developed scientific method of determining the existence of such 'knowledge' of the nature and quality or the right and wrong as related to an act, or the lack of it. Nevertheless, the law in effect compels answers to invalid questions of 'knowledge,' which cannot be met" (1954, p. 6). The report states in its summary conclusions, "[The psychiatrist] cannot testify in any manner in terms of moral judgment" (p. 6; italics in original). A strong but not unrepresentative statement of this point of view is that of the eminent psychiatrist, Laurence C. Kolb, at a judicial conference panel on Insanity as

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The issue is an emotional one. The validity of the criticism seems (to many of those who make it) nearly self-evident. As a consequence, we often find that rather than any attempt at careful analysis of this thesis, the proponents of it offer only varying dogmatic formulae containing the words "psychiatry," "science," "objectivity." The attitude is partly understandable in light of the historical origins of modern psychiatry in the nineteenth-century idea that psychiatry should be a medical science, that science is by definition interested in objective truth and must therefore eschew moral, religious, or other value orientations. The attitude is also understandable in terms a Defense (1964): "may I declare at the same time that answers supplied by a psychiatrist in regard to questions of Tightness or wrongness of an act or of 'knowing' its nature almost constitute a professional perjury." The well-known forensic psychiatrist, the late Philip Q. Roche, put matters this way: "I stated that the development of medical science has come about only in the measure that the physician has succeeded in removing himself from the moral descriptions of sickness. . . . "To testify that an accused does or does not possess the requisite knowledge to define a crime is to speak in the language and concepts of a moral system, a language which cannot be translated from the substance of science. . . . As I see it, the psychiatrist's stand is supported by the observation that science provides no method of determining 'knowledge' of right and wrong in another. A method is not taught in medical schools or in institutes of psychiatry" (1958, pp. 229-230). The psychiatrist Hoedemaker says, "One of the foundations upon which criminal law is based is the concept that criminal acts are morally wrong and that the offender should be punished. Modern psychiatry, with its theory of human behavior, regards all criminal acts as products of abnormal personality structure and development. It is evident that this constitutes a fundamental difference between the disciplines of law and psychiatry" (1948, p. 7). This general point of view has been picked up and accepted by legal authorities and expressed both in the journal literature and in judicial opinions. See, e.g., Judge Bigg's assertion in his opinion in US ex rel Smith v Baldi: "The law, when it requires the psychiatrist to state whether in his opinion the accused is capable of knowing right from wrong, compels the psychiatrist to test guilt or innocence by a concept which has almost no recognizable reality" (p. 568). And see the statement by Sobeloff (1955): "The McNaghten rule requires medical witnesses to testify in terms that to them are artificial and confining. A doctor can offer expert judgment when he talks of illness, disease, symptoms and the like. When he is forced to adopt the vocabulary of morality and ethics, he is speaking in what to him is a foreign language and in an area in which he claims no expertness" (p. 877). *

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of a characteristic feature of certain psychiatric therapies, therapies in which the therapist carefully abstains from expressing his moral judgment to his patient or giving him explicit moral guidance. But to say all this is not to end the matter; it is only to begin it. My own arguments resolve into three main elements. The first and most modest thesis I want to propose is that the legal tests in question do not in fact require a moral judgment by the psychiatrist—a judgment that some act is right or wrong. What is required is a description that a scientifically oriented psychiatrist could easily view as logically akin to that given by the anthropologist or sociologist. The latter can legitimately report that certain kinds of acts are or are not in fact viewed with a distinctive repugnance or approval, called "moral," by some person or group of persons. The psychiatrist can report that a certain person does or does not share such attitudes, is or is not aware of their existence in the community and embodiment in the law. Second, I wish further to bring out that making such assessments of another person's awareness of communal moral views, or his commitment to them, is not merely consistent with but is required by psychiatric doctrine; and moreover that such assessments are part and parcel of everyday psychiatric practice. This amounts to saying that, contrary to the protestations cited earlier, the psychiatric expert by virtue of his professional doctrine and training ought to be peculiarly well equipped to assess a person's knowledge "that he was doing something wrong." Finally, I wish to argue that in fact the psychiatric expert must possess and constantly use in the course of his work his own moral sensitivity and awareness, ideally a well-developed moral sensitivity. Indeed he even relies on certain of his own definite moral judgments—though, as we shall see, these are judgments about which there would normally be no controversy.47 47. Although in some respects it is important, and surely it is obvious, I do not intend to develop here a further fourth point: that the psychiatrist necessarily makes specific moral judgments of his own goals. The notion of mental illness, as noted earlier, is value laden, and so are the notions of mental health, cure, and improvement. It is only by reference to certain values accepted by the therapist that any change can be labeled therapeutic "improvement." It is only by reference to certain values that he can call anything "illness." Specifically, in setting his therapeutic goals, he has to estimate not only the capacities for change in the patient, but the costs (emotional and moral as

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test poses the question whether

the defendant knew at the time of his act that the act was wrong. T h e first question I shall take up here is whether the psychiatric expert must make his o w n moral judgment and commit himself o n the Tightness or wrongness of the act in question in order to give responsive testimony under the M'Naghten N o w it is true that, if the M'Naghten

rule.

question is taken in a certain

way, it does in effect call for a moral judgment by the answerer. But this is so only if w e indulge in linguistic technicalities that are easily avoided. We can see this by examining a peculiar feature of the way w e use the word "know." For example, suppose I state that "John knows that the door is locked." B y using the word "know," I tacitly grant that in m y judgment the door is locked. For if I myself did not think it was locked or if I did not want to commit myself o n the point, I would normally use a different verb than "know." I would say, for example, "John well as financial) and the risks in attempting any particular degree or kind of change. It is a commonplace of psychiatric therapy that the "ideal" cure, however defined, is rarely attempted; instead the psychiatrist must, more than any other physician, decide in his own judgment what would be most worthwhile to attempt. He must weigh, evaluate, the probabilities of achieving what he values against the risks of what he disvalues. For example, he may in his own mind decide to accept a modestly adaptive neurotic trait rather than leading the patient into the risks—in emotional, moral, and financial costs—of trying to dissolve the neurosis and have the patient "face reality." Talking about these complex human issues in a technical language carefully purged of words with obvious moral relevance does not purge the issues of their moral relevance. However, it does tend to blind some psychiatrists to the fact that they are making, among other things, what we ordinarily mean by moral judgments. In the specifically legal area, the writer has heard a psychiatrist testify that he had refused to cooperate voluntarily with the plaintiffs attorney because in his judgment, after having examined the plaintiff and decided he was a malingerer, the litigation was deleterious to the patient's mental health. He had full authorization from all parties to cooperate in any relevant legal matters in the case. It was thus precisely as a professional that he made the (moral) judgment that he would not voluntarily cooperate in a legal proceeding. (No one was suggesting that he should testify falsely or on any issues other than the "purely medical" ones.) I am not saying that his decision was not based on what he viewed as medical considerations; I am only adding that he was also forced to make a moral judgment in his professional role.

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believes that the door is locked." Coming back to the

Insanity M'Naghten

question, if I say, "The defendant knew he was doing something wrong," I a m tacitly granting that it was indeed wrong. Thus, I am tacitly expressing a moral judgment. If I d o not wish to commit myself, even tacitly, to any such judgment, I should say, for example, "The defendant believed that what he was doing was wrong." There is little reason to suppose that a court would refuse to accept it as responsive if the psychiatrist, out of a certain scrupulosity, avoided the word "know" and said of the defendant, "He believed his act to be wrong" or "In his eyes, he was doing something wrong" or "In his mind there was something wrong about it." Or in a slightly more objective way yet, the psychiatrist might say, "He knew that it is generally considered to be wrong, that it is contrary to l a w . " 4 8 A n d if such replies are responsive, then the question in n o way asks for the moral views of the psychiatrist but asks instead for information about the defendant's beliefs and attitudes o n these matters. 48. Guttmacher does see this issue and expresses it in his comments appended to draft 4 of the ALI Model Penal Code: "A common objection among psychiatrists to the present chief criterion of responsibility is that it is couched in ethical terms. To the question in the Group for the Advancement of Psychiatry questionnaire: 'Does the defendant's knowledge of right and wrong imply to you a question of ethics (morals)?', the replies were, 'yes,' forty-six, 'No' twenty-five, 'Don't know' fifteen. It is maintained that knowledge of right and wrong is a problem for the theologian and not for the physician. Furthermore it is charged that such discernments necessitate value judgments that must be taboo to scientists. The general tone of such plaints is that the poor psychiatrist is being put upon by being miscast. He is being ordered to forsake his objective and permissive role. This has never had much meaning for me. We are not being asked whether a defendant acted according to our accepted standards of morality or whether his own theoretical standards were the generally accepted ones. What we are asked is whether the defendant had sufficient intellect or a sufficiently clear mind at the time of the crime to know what these generally accepted standards were" (p. 173). Guttmacher then adds that, as he sees it, the problem in this area lies in the psychiatrist's "inability to measure" these matters "with any degree of accuracy" (p. 173). But this latter issue I consider, in effect, in the remarks that follow in the text. It might be noted here, however, that it is a dubious scrupulosity which feels free to pronounce on innumerable matters psychological, with very often no faintest evidence, that "accurate measurement" is involved (other than whatever the psychiatrist's "clinical intuition" tells him), but then boggles at any comment whatever on this one issue because of lack of accurate measuring techniques.

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The questions that typically arise in connection with the insanity plea do not require the anthropological, sociological, or legal expertise of the psychiatrist any more than they require his moral judgment. For the use of the insanity plea typically concerns acts that are blatantly criminal, blatantly wrong, and patently considered so by the community. The psychiatric expert is, therefore, not being asked to give a professional opinion concerning the nature of the community's moral attitudes or of the law. A n y rational person knows that society generally condemns such things as killing and thieving, and that these are generally forbidden by law—and indeed many irrational persons know this much, too. The psychiatric expert is giving a professional opinion on whether the defendant knew even as much as any rational person would know. 4 9 Indeed, as I shall 49. An early expression of this point is the substance of Stephen's comment: "In the third place, I understand by morality, and right and wrong, the positive morality of our own time and country; that which, as a fact, is generally regarded as right or wrong by people of average education and sensibility. No doubt there are moral differences of the deepest importance between large classes of educated people. Systems of morality may be based upon theories of life not only different from but contradictory to each other. Loyola and Bentham, for example, would have admired very different kinds of people. Such differences colour the whole of human life, but I do not think they greatly affect the administration of criminal justice" (1883, 2:96). Ellenbogen makes essentially the same point: "Now although everyone is to some extent ignorant of the law, there are certain ideas current in society of which every sane man is presumed to be aware; and foremost among these are the current ideas of 'right' and 'wrong.' They are 'common knowledge.' These ideas may be founded upon a substratum of religious or philosophical doctrine; but whether they are or not (and let us remember that 'the use of the words right and wrong preceded metaphysics, and extends into classes of society which know nothing of them') they are objective in the sense that they are facts, just as a 'custom of the trade' is a fact. A man may disagree with them, but provided he is sane he will not be heard to say that he does not know of their existence. He is not permitted 'non intellegere quod omnes intelligunt.' It has been stated that 'in modern times criminal liability is no longer based upon a moral standard when the wrong-doer is deemed to be sane. The case of a wrong-doer who is insane has presented problems which cannot be said yet to have been solved.' It is submitted that there is no external 'moral standard' in the case of the insane wrong-doer either; the question is simply, did he know what every sane man is presumed (not merely in law, but for all purposes) to know, viz., that the act he committed is not approved by society? Or was he so affected by mental disease as 'non intellegere quod omnes intelligunt'? If he was so affected, then he is not responsi-

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argue later, w e ask whether the defendant knew it, too, because such knowledge rationality.

is one of the essential

marks

of the capacity

for

A n d if the psychiatrist were genuinely ignorant of the

criminal character of killing and thieving, he would be unqualified to testify at all! U p to this point, I have been discussing the psychiatric expert's task in basically nonpsychiatric terms. It may, however, be helpful to lawmen and to psychiatrists to see h o w the identification and assessment of moral knowledge and moral attitudes play a systematic and central role in psychiatric doctrine. T h e ambiguous and highly general claim that psychiatric science does not indulge in moral judgments obscures the detail of the warp and woof of psychiatric doctrine. For although the legal question in M'Naghten

does not

require a moral judgment to be expressed by the psychiatrist, the latter's o w n doctrines do require him to exercise moral sensitivity and even to make moral decisions or assessments. 6 0 ble, because he lacks an indispensable condition of mens rea; he is mistaken as to a fact which every sane man is presumed to know—of which the presumption is so strong as to be implied and not expressed in the ordinary conditions of mens rea" (1948, pp. 198-199). 50. Waelder states, "Moral attitudes have always had their part in the story of inner conflicts as psychoanalysis had described them" (1960, p. 187). Kubie states that the "analyst studies in his patients the genesis of both their moral and their amoral behavior. . . . [He] attempts to bring the feelings of guilt and of moral responsibility into harmony with reality" (1960, pp. 155-156). Wolberg states, "One of the chief aims of rational psychotherapy is to render the conscience less tyrannical and to modify its values so far as to permit the expression of impulses essential to the mental health of the individual" (1954, p. 516). The eminent psychiatrist, John Spiegel, has remarked, "If the expert says that a person's behavior is immature, it is not clear whether this judgment is based on fact or is made on the basis of the expert's own morals or values. Similarly, all the other conceptual matters with which the psychiatrist must deal are loaded with value confusions. When the psychiatrist talks about sexual behavior, he arouses all sorts of emotions and conflicts from religious, ethnic, and other groups that have all manner of different attitudes toward sex. When he talks about hostility or guilt, he arouses similar conflicts. In fact every element of personality that the psychiatrist must discuss is loaded with values that are at present in a state of flux and confusion. Psychiatrists as well as the public they are trying to reach are in conflict about these values" (1956, p. 17).

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The psychiatric references to moral values are usually tacitly subsumed under certain key technical concepts and formulae. Such key technical concepts are: reality principle, adaptation, ego, superego, and id. There are related formulae, such as "loss of contact with reality," "severity of the superego," "ego weakness," and "irruptions of the id." These and other technical notions embody tacit reference to the individual's moral views and attitudes, to his capacity to apprehend the moral views of society, and even to the psychiatrist's own moral assessment of the conscience of a particular person.51 It is against the background of such statements as the preceding (of which many more could be cited) that we must weigh such (equally typical) sweeping statements as that in the report of the Group for the Advancement of Psychiatry: "[The psychiatrist] cannot testify in any manner in terms of moral judgment. Any testimony beyond professionally recognized medical data descriptive of the defendant's mental status, and informative to the court and jury, is beyond the province of the psychiatric expert testimony. Any expert testimony containing value judgments, viz., statements imputing the Tightness or wrongness of behavior, of dislike, disapproval, disgust, or of defense, approval, or acceptance, has authoritative impact upon those charged with the making of verdicts. T o be of social utility, and to be scientifically valid, all expert testimony should be free of moral and value statements" (1954, p. 6). This statement becomes puzzling indeed when viewed in relation to the definition of mental illness finally proposed in the report. Mental illness is there defined in terms of the lessening of capacity to use "judgment, discretion, and control in the conduct of . . . affairs and social relations" (p. 8 ) . But could one possibly testify about a person's judgment, discretion, and control in his affairs and social relations without testifying "in any manner in terms of moral judgment"? The report blurs the distinction between assessing a person's capacity to recognize, discriminate, and respond to the moral values of the society and offering one's personal judgment on the soundness of those values. The psychiatrist is not asked to testify on the latter issue but on the former. Even so, the report is in its spirit inconsistent with the comments of Kubie and Wolberg; for they are saying (as I do in the text that follows) that the psychiatrist does and must make his "judgments of value" as well as assessing the patient's (or defendant's) capacity to make such judgments. 51. I shall be citing material related more specifically to these concepts individually, but here is a characteristic general comment, in which it is plain that moral values are at issue, though the language and tone tend to "sanitize" the issues by framing the whole in a quasi-biological account of "functions" in an "organism": "Dynamic psychiatry regards all behavior as a manifestation of the human organism's attempt to maintain the psychological balance, which we term homeostasis. The organism at any given time, is attempting to adjust,

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Because of the central roles of such concepts and formulae, tacit references to moral values permeate the propositions of psychiatric doctrine. A s will be seen, however, such references need not undermine the moral objectivity of the psychiatrist. I shall examine specifically several of the notions I have mentioned, beginning with the psychiatric concept of reality. 52 There has been remarkably little theoretical comment in the psychiatric literature on the concept of reality. There is no question that it is fundamental to psychiatric theory and practice. The capacity to perceive reality ("reality testing") and to adapt realistically (adapt to reality) are cardinal psychiatric criteria of mental health and maturity.®3 A reconcile, and balance numerous forces or stresses bearing upon it. First, there are forces coming from the biological instinctual core of the person. We all have fundamental instinctual drives of great intensity; drives toward the satisfaction of personal needs, toward reaching out for love, toward defending ourselves and attacking our real or supposed enemies. These instinctual drives more or less disdain the welfare of the organism, seeking expression at almost any cost. Within the organism there is another set of functions which have to counteract, impartially inhibit, control, or otherwise handle these instinctive drives, bargaining between them and the inescapably real pressures exerted by the external cultural, economic, and social strains, restrictions, demands, and temptations. There is still another aspect to the organism which is the conscience, the repository of self-criticism, self-observation, and selfpunishment. Sometimes and in some persons this self-critical, self-punishing aspect of the organism becomes deficient, excessive, or distorted, again to the ultimate detriment of the organism as a whole. Consequently, at any given time the healthy human organism is automatically struggling to obtain and hold a tolerable balance based upon concepts of reality, self-preservation, moral percepts, social group memberships, legal authority, and personal need satisfactions" (Modlin, 1956, p. 353). 52. I shall discuss these issues with particular reference to concepts closely associated with psychoanalytic theory, though their use is by no means restricted to psychoanalysis. The language of psychoanalysis, and especially of certain of its key ideas such as I deal with here, has become a kind of psychiatric lingua franca. Those familiar with contemporary psychiatric doctrines will readily recognize the very general reference of my remarks in the following comments on reality, ego, superego, and so forth. My argument does not depend here on any meanings or implications of these concepts which are restricted only to the "orthodox" psychoanalytic doctrines. 53. Thus Freud, in explaining the concept of the ego, spoke of the ego's "exercise of the function of 'reality-testing'" and said in this connection, "The relation to the external world has become the decisive factor for the ego; it has taken on the task of representing the external world to the id" (22:75).

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loss of contact with reality is a distinctive mark—in some views it is the distinctive mark—of the psychoses.54 But in subtler ways, a denial of reality is the psychiatric criterion of all defense mechanisms and of all psychoneuroses, too. It is the capacity to regulate one's life by the reality principle, rather than purely by the pleasure principle, which marks the movement from human animal to civilized human person.55 Thus, the notion of reality early becomes central in the work of Freud, and it remains for psychiatry a crucial notion right on up to the present.66 We must now inquire into what is meant by this profoundly important diagnostic and analytical concept. Psychoanalysts, and psychiatrists generally, have by and large avoided direct analysis of this concept. No doubt this avoidance has been encouraged by the fear that to try to explain reality would be to enter upon one of the grandest, most complex, and most treacherous of perennial philosophical problems. But in truth the psychiatric concept of reality has been a usable one precisely because it skirts such murky issues. Its use typically requires only the most noncontroversial and self-evident criteria. I shall try to show why this is so. 54. Freud, in his classic paper on "Neurosis and Psychosis," enunciated the thesis that in some substantial degree still represents the substance of current psychiatric thinking: "one of the features which differentiate a neurosis from a psychosis [is] the fact that . . . in a psychosis [the] ego . . . withdraws from a piece of reality. . . . In a psychosis, a loss of reality would necessarily be present" (19:183). 55. "In that way [the ego] has dethroned the pleasure principle which dominates the course of events in the id without any restriction and has replaced it by the reality principle, which promises more certainty and greater success. . . . To adopt a popular mode of speaking, we might say that the ego stands for reason and good sense while the id stands for the untamed passions" (Freud, 22:76). 56. "It does seem that to determine and locate what comes from the internal world and what comes from the external world requires more than consciousness. Certain additional operations—discriminative functions—must be acquired, and these clinically are described as reality- and value-testing. "Much of the world of a psychotic and to a lesser degree of the neurotic remains entirely private, infantile, and idiosyncratic. "E. Bibring pointed out that there is an inherent gradient in all human beings toward approximating the requirements of reality and toward valuing what is expedient, and therapists, indeed, always count on this trend. On the other hand, in virtually all behavior disorders the slope of this gradient is shifted" (Redlich and Freedman, 1966, pp. 84, 86).

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What needs to be said about psychiatric reality can be said in exceedingly simple terms. In this usage, to perceive reality is to recognize a stone as a stone, a house as a house, an auto as an auto, water as water. To perceive and adapt to reality is to identify persons and to distinguish them from animals and stones, to converse with persons and not with stones. The standard psychiatric tests of orientation to reality call for the ability to give obvious information such as the current date, one's present physical location, the days of the week, and so on. The list of such banalities is endless, of course, and it is essentially to banalities that the psychiatrist refers when he uses "reality" as a psychiatric touchstone. The concept of reality is a highly useful one just because it directs our attention to the question whether a person is capable of certain elementary kinds of mental activities, and whether he has an adequate fund of the banal truths that are the essence of ordinary life. Such capacities and knowledge of the banally self-evident are critical signs of rationality; their absence is distinctive of irrationality. 87 We are now prepared to add to our list of sample banal truths some further banalities of particular interest to us here. We must recall that there are, after all, moral banalities. These, too, are included in psychiatric reality. The taking of another's life for trivial reasons, out of mere irritation or personal distaste, for example, is profoundly condemned as morally wrong by society. The psychiatrist knows this; we all know it. But what if his patient is actually unaware of this? Unawareness of this fact is a psychiatric indicator of grave psychopathology, 57. "From a clinical point of view we are concerned with such abilities [relevant to assessing intelligence] as (1) the capacity to learn and perform logical operations and solve abstract problems; (2) judgment, or the capacity to discriminate, perform correctly and relevantly in practical and especially social situations, as well as the capacity to plan and to make realistic choices in which thinking precedes or underlies action; (3) fund of knowledge; ( 4 ) memory, attention, concentration, and the primitive capacity for orientation. In any case, intelligence is essential for the assessment of reality" (Redlich and Freedman, 1966, p. 107). See the specific discussions of conducting initial psychiatric interviews and assessing the patient's orientation to reality, id., chapter 7. Hall notes, quite correctly, "The first wing of the M'Naghten Rules— the accused's knowledge of the 'nature and quality of the act he was doing'— is an ordinary way of specifying what, in part at least, is meant by the psychiatrist's 'reality principle"' (1956, p. 773).

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of ego or superego defect. True enough, the psychotherapist at certain stages in the course of therapy may refrain from overtly expressing to his patient the society's (or his own) moral condemnation of such killing. But this is a therapeutic tactic.58 It would be absurd to suppose that since he may elect not to express overtly his moral disapproval of such acts, he is therefore professionally uninterested in his patient's unawareness of this social attitude toward killing. Analogous comments could be made about thieving, constant lying and cheating, rape, arson, and so on. One who is unaware of certain broad types of moral condemnation by society in these matters (and of certain types of exceptions and excuses), one who is unable even to take these attitudes into account in conducting himself, is thereby marked out as suffering some psychopathology; he is out of touch with reality just as much as if he were unaware of the general nature and purpose of houses, money, or policemen and the laws against crimes.59 58. Kubie says, "It is quite true that the analyst never 'moralizes'; but for this there are several simple reasons. In the first place he wants the patient to develop his own conscience, and not a borrowed facsimile of the analyst's. Secondly, he knows that his patients have heard plenty of moralizing all through their lives, from infancy on. The analyst may be quite certain, therefore, that if moral exhortation could have been effective it would have done its job long before the patient ever came to him for help. Furthermore, if the analyst were to moralize, in the patient's unconscious processes he would at once be identified with those individuals out of the patient's past whose moral authority the patient had long since rejected. Equally automatically, this tendency to reject adult authority would be transplanted into the analysis, so that any naive efforts at moral indoctrination on the part of an analyst would of necessity be spurned. Therefore, the most fundamental task of the analyst is to give the patient insight into the unconscious sources of his anti-social behavior, without injecting any moral judgments into the picture. It should be emphasized, however, that this elimination of moral judgment is a specific element in therapeutic technique, and has nothing to do with the processes of education, or with the nature of the moral values of analysis or of analysts" (1960, pp. 159-160). 59. Eissler defines and discusses delinquency (in an anthology devoted to psychiatric analysis of delinquency), and classifies it as a disease: "We have assigned the generic term delinquency to all these thoughts, action, desires and strivings which deviate from moral and ethical principles" (1949, p. 3; emphasis added).

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While reality refers to the banal facts of the world around a person, the ego is a concept that refers to the system or agency within his psyche whose key function includes the task of perceiving reality. In addition, an important ego function is to bring into intelligible relationship (to synthesize) the elements of what it perceives in the course of ongoing conduct. Thus, the use of the concept "ego" has implicit reference to the moral attitudes of the group and explicit reference to the capacity of a person to take these into account and appreciate their significance. The psychiatrist, in assessing the person's e g o — a n assessment that is absolutely fundamental to any psychiatric assessment of the individual—is therefore, among other things, assessing the person's knowledge of and capacity to deal with the moral views of society. 60 This would include, of "Yet in spite of the initial identity of physical and value stimuli in the child's life, society and psychiatrists take qualitatively different attitudes towards disturbances related to the one or the other. If a child lacks the ability to integrate the behavior pattern necessary for his protection from physical dangers, e.g., if a child persists in reaching toward fire or in cutting himself with knives, we assume a basic impairment of his intelligence. It is diagnostically labelled with a term running the gamut from moron to idiot. And mental deficiency is considered a medical problem. A person so afflicted might continue to act that way throughout his adulthood due to a defect in the structure of the brain and he will never lose the status of a patient deserving medical attention. If, however, a person as a child is deficient in his capacity or ability to integrate the behavior patterns necessary for his dealing with values and therefore persists in that deficiency throughout adulthood, he is not granted the status of a patient but the police and the courts are expected to deal with him. Yet, there is no theoretical justification for this marked difference in approach towards the two categories of disturbances. Integration of the behavior patterns necessary to physical preservation and those based on the acceptance and integration of social values, are both fundamental prerequisites for survival in the larger sense of the word. "Both are pathological reactions, disturbances in the relations of the individual to essential spheres of human existence and, therefore, are to be classified as disease threatening the survival of those suffering from them. Delinquency—and this is the first point of our definition—refers to behavior, thoughts, and feelings that tend to infringe upon values" (pp. 6-7). 60. "[The ego] may be defined as the group of mental functions which in one way or another have to do with mediating between the demands of the id and those of the outer world" (Arlow and Brenner, 1964, p. 41). Menninger comments more informally on the need for psychiatric assessment of what are in effect ego and superego functions: "We want to know this man thoroughly. We want to know his memory capacity, his thinking capacity, his inte-

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course, such related matters as the person's knowledge of, and capacity to deal with, those rudimentary and generally understood elements of criminal law that we have already mentioned. In sum the psychiatric assessment of the ego includes assessing just the sorts of facts referred to in traditional legal language as the person's knowledge that what he was doing was "against the law and against the commonly accepted standards of morality and conduct." 61 In the preceding remarks concerning reality and the ego, I have been concerned primarily with the person's awareness of moral attitudes in society, not the question whether the person himself shares these attitudes or acts in conformity with them. For he may be aware of them but uncommitted to them; and he may take them into account, but only in order better to plan how to violate the communal morality without being detected or punished. Nevertheless, the awareness of those moral attitudes and laws, the ability to discriminate among them in order to conduct a minimally prudent daily life, even if not a moral one, is a prime psychiatric criterion of contact with reality and of an intact ego. 82 We turn now to another fundamental concept in psychiatric docgration capacity, his ideas of right and wrong, certainly, but certainly more than right or wrong. What kind of right and what kind of wrong. There are all kinds of rights in everybody's life and a few wrongs. And what is his value system. What is the scale upon which he makes decisions, moral scale. Regardless of whether or not they are normal, they are very moral. And some of our colleagues have risen up on their hind legs and say we have no moral judgments. Certainly we have moral judgments. Most of us psychiatrists think it is somewhat better to be painting a picture than beating children, for example" (Proceed. 10th Cir., 1962, p. 572). 61. People v Wood, p. 50. 62. See, e.g., Hartmann: "The consideration of the conflict-free ego sphere leads us to the functions which are more or less closely related to the tasks of reality mastery, that is, adaptation. Now adaptation—though we do not discuss its implications frequently or thoroughly—is a central concept of psychoanalysis" (1958, p. 22). "Thus the crucial adaptation man has to make is to the social structure, and his collaboration in building it" (p. 31). "Social compliance is a special form of the environmental 'compliance' which is implied by the concept of adaptation. This social compliance plays a role not only in the development of neurosis, psychopathy, and criminality (though it by no means suffices to explain them) but also in normal development" (pp. 31-32). See also Hall's perceptive comment that "Reality also refers to knowing the nature and quality of the act" (1945, p. 694).

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trine, the superego. And here we do touch on the question of the person's own moral views and attitudes. The superego is postulated as a system within the psyche that embodies the moral and quasimoral commitments and attitudes of the individual. It is because of the superego's condemnation of an act that the person feels guilt for having done it. 63 Guilt feeling is conceptualized in theoretical terms as the specific kind of anxiety experienced by the ego when an act (or even a wish) is counter to the demands of the superego. 64 A great deal of psychopathology is understood by psychiatrists as intimately linked with the "content" of the superego, or with the "severity" of the superego, or with "gaps" in the superego. 65 T o say 63. We see in Freud's own words that he recognized that in presenting his new concept of the superego he was talking in a new way about things that are "universally known": "I might simply say that the special agency which I am beginning to distinguish in the ego is conscience. But it is more prudent to keep the agency as something independent and to suppose that conscience is one of its functions and that self-observation, which is an essential preliminary to the judging activity of conscience, is another of them. And since when we recognize that something has a separate existence we give it a name of its own, from this time forward I will describe this agency in the ego as the 'superego.' "I am now prepared to hear you ask me scornfully whether our egopsychology comes down to nothing more than taking commonly used abstractions literally and in a crude sense, and transforming them from concepts into things—by which not much would be gained. To this I would reply that in ego-psychology it will be difficult to escape what is universally known; it will rather be a question of new ways of looking at things and new ways of arranging them than of new discoveries" (22:60). Brenner states, "the superego corresponds in a general way to what we ordinarily call conscience. It comprises the moral functions of the personality" (1955, p. 125). 64. "Since the superego represents the moral standards of a person, this conflict [between the ego and the superego] is of a moral character; it is a conflict of conscience. The intensity of this conflict depends, on one hand, on the sharpness of the criticism of the superego, and on the other hand, on the power of resistance of the ego. The traces left by this conflict take the form of a feeling of guilt" (Nunberg, 1948, pp. 192-193). 65. "The defensive situation with which we have been longest familiar in analysis and of which our knowledge is most thorough is that which forms the basis of neurosis in adults. The position here is that some instinctual wish seeks to enter consciousness and with the help of the ego to attain gratification. The latter would not be adverse from admitting it but the superego protests. The ego submits to the higher institution and obediently enters into a

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this is to say that a great deal of psychopathology is conceived psychiatrically as due to the moral attitudes of the person,

whether

because of their immaturity or irrationality, or their absence, or their excessive severity. W h e n the psychiatrist speaks of an antisocial superego, for example, he is tacitly referring to a conscience whose moral values are contrary to or deviate markedly from those that are dominant in society. T h e values in question are especially those having to do with harming other persons or lack of respect for property rights. 86 Thus struggle against the instinctual impulse, with all the consequences which such a struggle entails. The characteristic point about this process is that the ego itself does not regard the impulse which it is fighting as in the least dangerous. The motive which prompts the defense is not originally its own. The instinct is regarded as dangerous because the superego prohibits its gratification and, if it achieves its aim, it will certainly stir up trouble between the ego and the superego. Hence the ego of the adult neurotic fears the instincts because it fears the superego. Its defense is motivated by superego anxiety" (A. Freud, 1948, pp. 58-59). 66. See, e.g., Messinger and Apfelberg: "On the other hand, the delinquent or criminally inclined person tends to have a weak conscience (or underactive superego) which does not interefere significantly with his search for immediate satisfaction of his impulses. His conflict arises out of the curbs placed on these impulses, not by his own conscience, but by society's legal restrictions. Thus, without feelings of anxiety, he seeks some means of circumventing legal curbs. He may suffer apprehension and fear over the possibility of being caught and punished for his behavior, but he is not plagued by feelings of guilt and remorse" (1961, pp. 348-349). The authors continue their discussion by defining the "Anti-Social Type" of "Sociopathic Personality": "I. Major Character and Behavior Disorders: Pathologic (Sociopathic) Personalities 1. Antisocial Type These persons are morally and ethically blunted; they lack sympathy or concern for their fellow men. They are irritable, arrogant, unyielding, and brutally egotistical, and they rarely regret the most serious offenses against persons or property. They are cynical, devoid of a sense of honor or shame, and lack affection, gratitude, or other similar sentiments" (p. 350). "We estimate that 40 per cent of the psychopaths we encountered from 1953 to 1957 were best listed as antisocial" (p. 351). Redlich puts the distinction between the antisocial character and the neurotic in this way: "In most of our psychiatric patients, we will be able to discern some dysfunction in all three spheres [id, ego, superego]; in the

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in this case, we have a technical concept that not only is defined by reference to moral values, but that tacitly embodies a moral judgment by the psychiatrist who uses the concept. For the fact that a person does not share certain moral attitudes held in his society is here taken as the psychiatric sign of pathology. 87 For example, one w h o knows it is generally held to be wrong and is legally forbidden to commit assault and battery at will, but who nevertheless often feels psychologically quite comfortable in doing just that, has an "antisocial superego." (Of course, in a group whose mores are more tolerant of physical assault, the superego of someone in the community whose conduct conforms with those mores will not be diagnosed as antisocial.) Frequent references are made in the psychiatric literature to an "overly severe" or "archaic" superego. These phrases represent in effect the observation of the psychiatrist that certain of the patient's inner conflicts are generated in part by superego demands which, in the judgment of the psychiatrist, are irrational or inappropriate moral

antisocial character, the dysfunction will be primarily, though never exclusively, in the deviation from social and ethical standards; in the neurotic, the dysfunction will be expressed more in frustration and failure and selfpunishment" (Redlich, 1957, p. 150). 67. The point is made bluntly by Dr. Russel O. Settle in his remarks in the Proceedings of the 10th Circuit Judicial Conference, 1962: "Psychiatry certainly endorses the application of controls to those 'who lack the capacity to conform their conduct to the requirements of law'; for, indeed, the development of that capacity is one of the goals of psychiatric treatment" (p. 555). The same moral judgment is implicit but, in more characteristic psychiatric style, is immersed in technical language in the statement of Eissler in Searchlights on Delinquency (1949, pp. 9-10): "Psychiatric disorders may be classified on this basis into two groups: the autoplastic and the alloplastic. . . . Delinquencies . . . are genuinely and primarily alloplastic. The adolescent who steals, the gangster who kills, the clerk who embezzles, they all in their actions primarily impinge on external reality. . . . This dependency of the delinquencies on social realities does not militate against a psychological theory of delinquency since the mechanisms underlying alloplastic disorders are parts of the personality inventory. . . . The definition of delinquency as an alloplastic infringement of values needs further qualifications. Man is often forced, for the sake of self-preservation, to act in a way offensive to his value system. A typical example is the act of killing in the course of self-defense. For theoretical reasons such aggressions cannot be rightly classified as symptoms of delinquency."

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demands and which ought to be modified or abandoned. Let us consider the oversevere superego in a typical "obsessive-compulsive" syndrome: The person's superego is so strict that only the most exaggerated, crippling, and increasingly meticulous cleanliness in conduct make it tolerable for him to indulge in purely private fantasies of "dirty" things. This is a kind of unconscious compromise in which the purity of the conduct serves as a bribe to abnormally severe superego. The point here is not that one would argue over the moral assessment that this person's moral attitudes in this area are unreasonable; such an assessment seems obviously correct. The point is that it is a moral assessment, however noncontroversial it may be. The concept of the severe superego involves, then, not merely observing the person's moral attitudes but judging them.69 We turn, finally, to one more formula, and we shall again bring out the built-in reference to moral values. When the psychiatrist speaks of "irruptions of the id," he is in effect referring, among other things, to conduct in which the person is indulging wishes that are condemned by his superego, and which his ego therefore generally curbs. In the case where id impulses erupt, the ego has become weakened in its control or the impulses have become stronger. In ordinary language, the person lost his self-control either because his resolution weakened or because his wish had become so much greater.70 Such instances correspond to one form of what is vaguely 68. "The intransigence of a person who values work, prudence, saving for higher education, and who therefore refuses to take his family on a single holiday on these moral grounds, may merely mask his anger at giving anything to anyone and his revenge for not being given something he wanted but would not openly request. In brief, much infantile behavior can lurk behind morality, and morality can be used as a weapon for sado-masochistic needs. In analytic terms, the unconscious need for self-punishment is linked with the existence of an abnormally severe superego" (Redlich and Freedman, 1966, p. 380). 69. "It is this process of pushing ethical conflicts into the dynamically charged unconscious which is called repression. . . . Thus out of the repressed and unconscious residues of ethical conflicts, both neurotic symptoms and immoral conduct arise, sometimes in an individual who may be wholly devoid of conscious evil intent. Actually, the very fact that both the drives and the conflicts over them become unconscious is prima facie evidence of the fact that the child has been engaged in an ethical struggle" (Kubie, 1960, p. 158). 70. A good summary example of the preceding points about the moral judgments built into the technical psychiatric concepts, including the id and

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referred to as "irresistible impulse." But the question whether the person lost the capacity to resist or did not try hard enough to resist is no more clarified by putting it as a relative weakness of the ego than by putting it as a weakness of will. In general, the capacity of the ego to synthesize these current id impulses (basic needs, desires) with the superego demands, and with the ego's perceptions of external reality, amounts to what we would in everyday language refer to as the person's capacity for rational conduct, his capacity to act responsibly. 71 But of this we shall have much more to say later in this essay. its irruptions, is from Hoedemaker: "Before proceeding, perhaps a brief summary of three basic concepts in dynamic psychiatry may be of help: (1) The concept that in each individual there is an unconscious and unorganized mass of instinctual impulses, most open to observation in the young child, and composed of both sexual and aggressive drives, the uninhibited expression of which would be unacceptable to society; (2) that with time and the influence of inherited and environmental factors there develops from the first an organized part of the personality termed the Ego which exercises the functions of learning, perception, intelligence, judgment, memory, and discrimination; (3) there occurs rather early an internalization of the restricting and restraining attitudes of the parents which is set up within the personality structure. Dynamic psychiatry terms this the Super-Ego, a good practical synonym for it being the 'conscience.' . . . A harmonious interrelationship between these three forces is present in mental health. It follows that a sense of freedom is a result of such harmonious interrelationship and is a natural byproduct of maturity. Instinctual forces seeking expression are allowed to enter consciousness and reach motility or action only if acceptable to the Ego. The Ego is strong enough to exercise such control and is guided by a set of dicta represented in the Super-Ego. The final result is behavior which gratifies instinctual demands on the one hand, and the requirements of conscience and society on the other" (1948, p. 5). The contrasting neurotic condition is succinctly put by Messinger and Apfelberg: "Neurotic syndromes usually appear in individuals who are emotionally labile and who have strong hedonistic and instinctive drives which are held in check, thwarted, or frustrated by an overly strict conscience. In Freudian parlance, this means that these persons have a conflict between the active demands of the id and the excessive restraint of the superego" (1961, p. 348). 71. Hartmann says, "Freud's sentence, 'where id was, there shall ego be,' indicates in a general way the aims of psychoanalytic therapy. It certainly does not mean that the rational functions, or the ego interests, and so forth, could or should ever totally replace the functions of the other systems. He

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To sum up, then, the psychiatrist is constantly and subtly making complex discriminations of various sorts concerning the moral concerns of the patient and the patient's perceptions of the most obvious sorts of communal attitudes and laws. The psychiatrist also tacitly makes certain essentially noncontroversial moral judgments. How, then, can the psychiatrist rise in righteous objection to the request by the courts that he testify concerning the moral perceptions and attitudes of a person and the ability of that person to integrate these perceptions and attitudes into his total conduct? 72 thought mainly of guidance by the ego, of supremacy of its organizing function" (1964, p. 67). The report of the Group for the Advancement of Psychiatry (1954) concludes emphatically that the psychiatrist "cannot testify in any manner in terms of moral judgment. . . . [T]o be scientifically valid, all expert testimony should be free of moral and value statements" (p. 6; emphasis in original). The report then continues in the very next paragraph to say: "The severity of ego impairment manifest in symptoms or in acts appears to be a measure of lessened responsibility, but psychopathological features do not lend themselves to the making of a reliable and teachable guiding scale" (p. 6). In an appended footnote, the remark is made that "the ego impairment would appear to be a direct measure of responsibility. Ego impairment implies lessened control in maintaining behavioral norms of social interaction. In law, such would be the basis of exculpation. The offender with impaired ego is said to have diminished responsibility. On this level of abstraction the lawyer and psychiatrist can agree. The psychiatrist can determine that ego impairment exists and the lawyer can transpose the fact into his terms of intent and responsibility" (p. 6, note 21). The report then repeats that no scale for measuring degrees of ego impairment (lessened responsibility) have been developed by psychiatrists. There is a certain disingenuousness here. For the absence of precise scales does not prevent the psychiatrist from constantly using his estimate of the degree and nature of ego impairment as a critical diagnostic and therapeutic indicator in his own professional work. Why, then, should he be so unwilling to report this approximate assessment to the court, and thus—in the words of the report—give testimony directly bearing on responsibility? 72. With respect to the generalized views on these questions, it is of interest to run over some representative comments by various authorities. We may begin with a characteristic statement of the legal point of view which takes as established what is in fact—at the very least—a gravely controversial matter among psychiatrists. Sobeloff says flatly, "The McNaghten rules require medical witnesses to testify in terms that to them are artificial and confining. A doctor can offer expert judgment when he talks of illness, disease, symptoms and the like. When he is forced to adopt the vocabulary of morality

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and ethics, he is speaking in what to him is a foreign language and in an area in which he claims no expertness" (1955, p. 877). This statement reflects the statement of the influential forensic psychiatrist, Dr. Manfred Guttmacher, in his comments in the appendix to draft 4 of the ALI Model Penal Code: "as yet, no one has even suggested a test or a method for measuring the specific capacity of the individual to make ethical judgments" (p. 171). Another example of such a conclusion is reported by Thomsen (1959, p. 290), in his citation of a Maryland committee report: "The Committee says, 'The psychiatrist in his daily work with his office or hospital patients is not called upon to determine whether they can distinguish right from wrong. This is completely outside of his area of consideration, and he feels no special competence in assisting the court in making such judgments.'" And, finally, Robitscher says, "Psychiatrists can describe, diagnose, and treat mental illness; they cannot crawl into a defendant's cranium and determine for the court information as subjective as whether the defendant knew or appreciated the difference between right and wrong or whether the defendant had a substantial capacity to conform" (1967, p. 47). On the other hand, the psychiatrist Cavanagh (1962, pp. 480-481) says: "The value of the 'right and wrong' concept is that the ethical sense is a more easily measurable aspect of the personality than any other except intelligence. One cannot as accurately measure affect, or imagination, or will, but we can measure ethical values and estimate the accuracy of the individual's subjective evaluation of reality." And, of course, we should recall that the classic psychiatric statement of an important form of criminality was due to psychiatric ability to identify and assess the nature of a person's inner sense of guilt. "Analytic work then brought the surprising discovery that such deeds were done principally because they were forbidden, and because their execution was accompanied by mental relief for their doer. He was suffering from an oppressive feeling of guilt, of which he did not know the origin, and after he had committed a misdeed this oppression was mitigated. His sense of guilt was at least attached to something" (Freud, 14:332). The words of the influential psychoanalyst, Heinz Hartmann (1960), represent the views of a wide spectrum of psychiatrists, psychoanalysts and nonpsychoanalysts: "It is generally accepted in analysis that moral codes testify not only to the cultural environment, but also to the personality of the individual who holds them. The knowledge of his ideals and his 'oughts' and 'ought nots' is in normal as well as in pathological life a fruitful approach to his psychology [p. 39]. . . . [Men] learn about [moral values] not so much by studying ethics, but, as I just said, in real life situations and, more clearly than anywhere else, in analysis. "Certainly, one learns that many moral motivations are pretenses and excuses which serve to conceal quite different aims. That much has always been known, though less subtly, less convincingly, and less systematically. But one learns also to realize that in addition to moral pretenses there are moral motivations which have the full dynamic significance of independent

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forces in the mental economy. In so far as they are demands, they have the form not only of 'this is demanded of me,' but also of 'I demand this of me' [p. 40]. . . . "As we present the problem here, the recognition of acts of moral valuation, and of their imperative character as dynamically relevant, often decisive, aspects of personality, is part of self-knowledge in the same way as is the recognition of the instinctual drives and their aims in the id, and the recognition of the aims and functions of the ego [p. 41]. . . . "The recognition of one's authentic values, and their distinction f r o m those which are not authentic, is not infrequently sharpened in the course of the analytic process [p. 92]. . . . "I spoke of the broadened vista on moral phenomena which is owed to analysis; and of how it leads, among others, to a fuller recognition of ideals and imperatives as psychologically real aspects of our inner world [p. 95]. . . . "On principle, then, we possess in the analytic process a method for ascertaining a person's moral system in a fairer and more subtle way than is accessible to other methods; but this way is, alas, severely limited in its range. "We meet serious difficulties if we try to use on interpersonal relations outside of it the cues and the checks which have proved their value in applying the psychoanalytic method in the analytic situation. Outside, the cues are frequently not available and the checks are mostly not applicable. Still, this stricture is not absolute. Psychoanalytic psychology can often be used to considerable advantage beyond the analytic situation in order to determine how far moral actions and motivations are genuine and how far they correspond to a given standard. Of course, in these cases our judgment on the psychological background of the actions can sometimes be a matter of guesswork only. . . . But the analytically informed judgment will often be not only more complex but also more subtle [pp. 97-98]." Jerome Hall goes to the heart of the issue when he says, "the psychiatrist's job is to marshal the patient's potentialities to help him overcome his difficulties. Therapy looks to the future, and it assumes that at least some patients can assist their recovery—which, to a large extent, requires them to cope with moral problems. Thus, it seems arbitrary to insist that psychiatrists can tell a jury nothing whatever about the capacity of the defendant to appreciate the moral significance of his conduct" (1956, p. 782). A. Goldstein comments on the psychiatrists' reluctance to acknowledge the relevance of their testimony to the issues in dispute in court: "one must look for deeper reasons for the effort of psychiatrists to back away f r o m the test question. The probability is that the psychiatric disclaimers come less f r o m a feeling of incompetence than f r o m a deep hostility both to M'Naghten and to the imposition of criminal liability. GAP, and others, speak quite openly of defying 'legal' requirements in order to communicate 'psychiatric truth,' of answering the test questions in accordance with a 'tacit convention' which gets the result the psychiatrist thinks desirable. Moreover, in the advice to avoid 'value judgments, viz., statements imputing the Tightness or wrongness

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of behavior, of dislike, disapproval or disgust, or of defense, approval or acceptance," one senses the view that therapeutic effectiveness may ultimately be impaired if psychiatrists participate too freely in the criminal process" (1967, p. 102). This latter fear is surely an element in the controversy. But it is not the only important one. The motivations are complex.

3 Legal Interpretations of Insanity

INTRODUCTION It is surprising, but: I believe it to be essentially true, that, in spite of the long history of the insanity plea and the flood of discussion in recent decades, very little attempt has been made to explore carefully the legal-moral rationale for this plea and the heart of its meaning. The desirability of even raising these questions

seems

hardly to have been noticed: "the purpose of the insanity defense either has been assumed to be so obvious as not to require articulation, or has been expressed in such vague generalizations as to afford no basis for evaluating the multitude of formulae."

1

1. J. Goldstein ancl Katz, 1963, p. 859. The authors continue: "Neither legislative report, nor judicial opinion, nor scholarly comment criticizing or proposing formulations of the insanity defense has faced the crucial questions: 'What is the purpose of the defense in the criminal process?' or 'What need for an exception to criminal liability is being met and what objectives of the criminal law are being reinforced by the defense?'" (p. 859). They note that, "Until a purpose is uncovered, debates about the appropriateness of any insanity-defense formula as well as efforts to evaluate various formulae with respect to the present state of psychiatric knowledge are destined to continue to be frustrating and fruitless" (p. 855). Goldstein and Katz comment on the references in the Durham decision concerning the "legal and moral traditions of the Western world" and the "collective conscience" of 123

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That children and the insane are not to be held responsible as are normal adults has appeared intuitively plain. 2 So far as children are concerned, this intuition plus a dash of common sense have sufficed for practical purposes. That is, no profound conceptual problems have been forced on the courts. 3 But in the case of insanity, the need for systematic understanding of the rationale is attested by the confusion, controversy, and patchwork character pervading doctrines and rulings, the typical and extreme stretching of the meaning of words, the reliance on the jury's common sense to make up for the patent inadequacies of the legal tests, the persistent polemics and misunderstandings of the medical community vis-à-vis the legal community, and finally the growing tendency to argue for entire abandonment of the insanity plea in spite of its roots in tradition and in fundamental law. Past attempts to indicate the meaning and rationale of the insanity that world: "the court, though not blinded by precedent, left unasked and therefore unanswered: 'What underlies the "legal and moral traditions" in "our collective conscience" which prevents us from inquiring why a rule is required?'" (p. 860). In this same connection, Goldstein and Katz cite the Report of the Royal Commission on Capital Punishment (1953), p. 98 (CMD 8932) : "We make one fundamental assumption, which we should hardly have thought it necessary to state explicitly. . . . It has for centuries been recognized that, if a person was, at the time of his unlawful act, mentally so disordered that it would be unreasonable to impute guilt to him, he ought not to be held liable to conviction and punishment under the criminal law. Views have changed and opinions have differed, as they differ now, about the standards to be applied in deciding whether an individual should be exempted from criminal responsibility for this reason; but the principle has been accepted without question." 2. See, e.g., Stephen, 1883, 2:97: ". . . it may, I think, be said in general that in order that an act may by the law of England be criminal, the following conditions must be fulfilled:—1. The act must be done by a person of competent age. . . . 6. Each of these general conditions (except the condition as to age) may be affected by the insanity of the offender." Stephen devotes only a sentence to the rationale for this provision: He asserts flatly that the harm of punishment would be out of proportion to the good. 3. It may be, however, that the recent and growing recognition of the defects of the juvenile court approach to young offenders will reveal a nest of conceptual problems hitherto unsuspected. The problem is to determine the extent of the rights of the young offender to due process, while taking into account his lesser responsibility and his as yet not fully formed character. This increasingly pressing problem may force us to deal finally with basic conceptual problems here.

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plea largely failed to detect the distinctive meaning and rationale of the idea. There has in consequence been a widespread readiness to assimilate it to other defenses that are already well established in law, defenses based on absence of mens rea, compulsion, involuntariness, and ignorance.4 Scattered through the literature on the topic of insanity are a variety of suggestions and assumptions—rarely more—concerning (1) what insanity is and (2) why, being what it is, it precludes criminal responsibility. Yet there has been since the early nineteenth century general agreement on at least one important point (the meaning of which is, however, obscure): the legal concept of insanity means at least "mental disease such that. . . ." How the phrase is completed remains a matter of disagreement both in the scholarly literature and in the case and statute law. What is meant by "mental disease" is also—as we have already discussed in earlier chapters— an obscure point. I shall have more to say on this latter point, but for the time being we must examine the ways in which the rest of the formula has been filled in. Filling in the definition and thus saying what we mean by "insanity" will naturally tend to determine the answer to the second question, the question of the rationale for the insanity plea, the reason why insanity exculpates from criminal responsibility. Perhaps the simplest full formula for legal insanity is the one used in substance in the famous Hadfield case in 1800, in New Hampshire in 1870,5 and in the Dictrict of Columbia Appellate Court since DurhamIt is in effect that legal insanity is mental disease such that it in fact produced the offending act. In this formula, the rationale for exculpating the insane person of responsibility must lie in the very notion of mental disease itself. Why should one whose act was produced by mental disease be 4. We shall discuss these in detail below. An example, however, of the move in this direction is Stephen's comment: "The different legal authorities upon the subject have been right in holding that the mere existence of madness ought not to be an excuse for crime, unless it produces in fact one or the other of certain consequences" (1883, 2:125). The "certain consequences" in question turn out, in Stephen's mind, to be consequences affecting the "voluntary" character of the act as legally conceived—specifically, some defect of "knowledge" or "power," which, he says, are the two elements of voluntary action. 5. State of New Hampshire v Pike, 1870. 6. Durham v US, 1954.

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held nonresponsible? To some, the answer may seem so intuitively plain, the connection between mental disease and nonresponsibility so direct and intimate, as to render the question perplexingly redundant. One may be tempted to explain, "But of course the person is not responsible for his act if it really was the product of mental disease." I think we would be in error to dismiss the quality of selfevidence here as mere dogma. There is truly something self-evident about this thesis, and we shall have to account for it and show, later, precisely what it is. But for the present we need to explore the many aspects of this obscurity and error. In our earlier examination of the notion of mental disease, we saw that it is not a medical concept. That is, it is in fact not defined by current medical doctrine, could not even in theory have any systematic role within purely medical doctrine, and moreover is now increasingly recognized by the courts as a legal rather than a medical concept. We saw more precisely that mental disease, like defective vision as used by the motor vehicle bureau or like the concept of a national territorial boundary, is inherently a cross-dimensional boundary concept. I mean by this that for reasons pertaining to the discipline that originates and uses the concept, a boundary is defined in a field belonging to the expertise of another discipline. In the present instance, mental disease is a concept that, for reasons deriving from the context of law, defines a boundary in the dimension of psychology. We also saw that such boundary concepts can be valid and are not uncommon. Hence, in order to understand why mental disease, as legally construed, should exculpate from criminal responsibility, we must turn not to medicine but to the law; we must ask what the law would mean by mental disease. Clearly, synonyms or quasi synonyms will not help: "sick," "ill," "disorder," "unsound"—all these terms leave us with the same questions. Where would the criminal law wish to put the boundary between mental illness and its absence, and why? These are the questions we need to answer, since, as we saw, they cannot be answered by the expert in the field of medicine or psychology. Nor do we gain any new insight if we are told that what the law requires is for mental disease to be defined in such a way that it should be a condition of mind which precludes criminal responsi-

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bility. The question is, What is such a condition? How does it differ from other mental conditions establishing legal innocence? And why should this as yet unspecified condition preclude responsibility? No doubt when we speak of mental disease in the context of criminal law we do have in the back of our minds some unique condition or set of conditions that we intuitively appreciate as insanity and as therefore excluding criminal responsibility. It is because of this notion that we think, intuitively, that "of course" an act due to mental disease cannot justify criminal conviction. But the task we have never yet adequately faced up to is to bring out explicitly and clearly what it is that we have in the "back of our minds," and to see explicitly rather than intuitively how that condition is related to responsibility status. Supporters of Ihe Durham point of view have urged as one of their main arguments that the other traditional tests, especially M'Naghten, have focused too narrowly on one or another symptom of mental disease rather than on mental disease per se. But the motive of those who have stressed the need for these more specific formulae has been in good part the awareness that the phrase "mental disease" alone has been assigned no clear, legally relevant meaning. It has been widely felt that what is needed is some more specific clue to what is legally relevant in the concept of mental disease. The proponents of Durham, however, can plausibly argue that no single such specification yet proposed, or any combination, has been adequate to cover all the kinds of cases we intuitively would characterize as involving both insanity and nonresponsibility. In short, the opponents of Durham have seen that we must say more than merely "mental disease," while the advocates of Durham have seen that every proposal concerning what more should be said has been too restrictive to cover all the types of cases we want covered. The issues have; been further obscured because of the widespread supposition that what is at issue is a general medical concept and a list of medical symptoms, when in truth we are dealing with a legal concept and with legal criteria. I propose now to examine the various specific criteria that have been proposed as completions of the formula, "Insanity is mental disease such that. . . . " I propose to show that none of them really does bring out what we have "in the back of our minds," and that

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they therefore cannot cover the paradigm cases of insanity—unless we gravely stretch the natural meanings of words or ignore them entirely and tacitly substitute the trier of fact's common sense. I want ultimately to show that what is needed is not a mere Durhamlike reversion to the vague notion of mental disease—a tactic now proven hopeless even in the District of Columbia—but a specification of the authentic criterion, centering on the notion of a mental makeup such that there is incapacity for rational conduct, that we have in mind when we think of criminal insanity. I shall then be able to show that this criterion does fit the paradigm cases, that it does enable us to see why criminal insanity should preclude criminal responsibility. It will enable us to assign a definite meaning to mental disease as well. The topic of this chapter, then, will be the study of past proposals concerning the legal meaning of insanity, and the reasons for their inadequacy. In the next chapter I will develop the constructive alternative that I believe to be the authentic meaning of our intuitive concept of criminal insanity. INSANITY AS ABSENCE OF MENS REA

It has been urged that the heart of the insanity plea rests in mental disease (or derangement) such that the person is not blamable.7 7. "Our collective conscience does not allow punishment where it does not allow blame" (Holloway v US, 666-667). This passage is cited at the end of Durham. Again in Washington v US, p. 447, the D.C. Appellate Court says in the context of the insanity issue that it is required that "trial judges and appellate judges ensure that the jury base its decision on the behavioral data which are relevant to a determination of blameworthiness." In the broad context of criminal law, the requirement that punishment apply only where there is blamability is a familiar doctrine (though not universally accepted). Henry M. Hart has said of criminal conduct that "It is conduct which, if duly shown to have taken place, will incur a formal and solemn pronouncement of the moral condemnation of the community" (1958, p. 405). Judge Barnes, in Sauer v US, p. 648, stated, "Whatever we may conclude to be the objectives of the criminal law, one traditional result has been punishment. Functioning under such a system, our society does not assess punishment where it cannot ascribe blame. It is inimical to the morals and ideals of an organized social order to impose punishment where blame cannot be affixed." Wechsler says, "I rather think that the distinctive feature of the entire criminal process is the element of condemnation that it marshals"

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Here the rationale for the plea is incorporated explicitly into the meaning of the plea. That is, the question why such a person should be judged innocent is already answered, at least verbally, b y the definition. This, of course, leaves open the substantial question of what are the specific kinds of mental conditions that render a person not blamable. 8 But let us first consider the formula for what it does tell us. T o say that a person committed a certain act but was suffering from a mental disease such that he cannot be blamed is very much (1964, p. 382). The late Judge Learned Hand (1955) in his letter to the University of Chicago Law Review symposium seemed to be getting at the same point in discussing the question of criminal responsibility: "My own ideas, insofar as I have any, are that there are two controlling factors to consider. One is how far imprisonment is effective as deterrent. . . . The other factor is that most people have a feeling that 'justice' requires a law breaker to suffer, just as they think that sin should entail suffering in the sinner" (p. 319). With respect specifically to the insanity issue per se, the comments in Durham and Washington v US cited above are echoed in such statements as the following ones aimed at elucidating the fundamental rationale for the insanity plea: "Yet underlying all, as the single constant element, is the concept of blame" (A. Goldstein, 1967, p. 15). "It is here that I would find the source of much of the significance, perplexity, and fascination of the issue of criminal insanity. For it would appear that we cannot in handling the marginally insane criminal readily avoid the profound and pervasive educating impact of law. In deciding publicly whether Monte Durham goes to jail or goes to a mental hospital the legal system touches deeply our sense of where the blameworthy, and the praiseworthy, begins and ends in our daily life" (Kalven, 1955, p. 318). An earlier legal commentator states, "Insanity, which robs one of the power to make intelligent choice between good and evil, must negative criminal responsibility if criminality rests upon moral blameworthiness" (Sayre, 1932, p. 1004). The psychoanalyst, Waelder, who had worked extensively in the area of forensic psychiatry, said of the mentally ill, "we feel that offenders of this group are not 'guilty' in the usual sense" (1952, p. 379). 8. Brett (1963) has discussed the notion of blamability in this context at length and proposes that the assessment of blame, after having put oneself imaginatively in the other person's shoes, is the critical test of criminal responsibility in the context of mental disease. He says, "In essence [the law] has asked whether the defendant is one who excites blame or compassion in the minds of reasonable men" (1967, p. 89). See the comment in note 27, p. 869, Blocker v US, noting that Durham never answers why no moral blame shall attach for acts resulting from mental disease.

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like saying in more specifically legal terms that his mental disease precluded mens rea, the "guilty mind." This specific legal analogue to the nonblamable thesis is also and not infrequently presented explicitly in the literature as the rationale for exculpating the insane. 9 But like the thesis in terms of blamability, the thesis that insanity is mental disease such that mens rea is absent is too general to serve as an adequate answer to our questions. But both have an element 9. Warren Burger, then judge in the Appellate Court, District of Columbia, said in 1962 in connection with the question of insanity and criminal responsibility: "I will conclude by saying that the precise words of any formulation on criminal responsibility are not particularly important. The important thing that we must remember is that mens rea, criminal intent, is the center of it. That is the inquiry the law is making, and any test or any formulation is adequate if it is based upon the concept of cognition, that is, recognition of the nature of the act and its wrongness, and volition or capacity to control conduct. If the standard has those elements the particular words are not important. If it doesn't have those elements, it breaks continuity with all of the law of the past" (Proceed. 10th Cir., 1962, p. 564). Burger here explicitly associates the mens rea issue with the questions of knowledge and volition. We shall take up these latter issues in the subsequent sections of this chapter. A reference to mens rea that explicitly puts emphasis on mens rea rather than any other issues is that of Chief Justice Weintraub (1964) in his remarks to the 2nd Circuit Judicial Conference Symposium on "Insanity as a Defense": "If because of mental illness a man could not tell right from wrong, he lacked capacity to commit crime. In other words, the mental illness met head-on the state's charge that the evil act is done with an evil mind. And although we sometimes speak of insanity as a defense, it is not a separate defense, as we lawyers use that concept, to a case that the state has otherwise established but, rather, it is essentially a denial of the state's main case, a denial of mens rea" (p. 370). Professor Wechsler (1964) in his comments at the same symposium remarks that, "the criterion of responsibility as affected by disease or defect parallels the traditional mens rea rules in requiring a determination of blameworthiness in the ordinary moral sense" (p. 381). Judge Biggs also in effect criticizes the Durham formula because in it there is no explanation of how that formula "expresses a relationship between mental disease and guilty mind, or mens rea" (Proceed. 10th Cir., 1962, p. 551). See also, for example, Mueller, 1961, pp. 105-106 and 115. An expression of the central constitutional role of mens rea in this context as viewed in a recent court opinion is that expressed in 1962 by the court in Stale v White when construing the 1910 State v Strasburg decision: "the only reason insanity is a defense to crimes in Washington is that the minimum [constitutional] requirements of mens rea have been held by this court to compel it" (p. 965).

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of profound truth, a truth that points to something quite distinctive of the notion of insanity. Even this element of truth, however, is obscured by a systematic ambiguity that runs through all discussion of the issue. To this element of truth, and the ambiguity in it, we now turn. As I see it, the absence of mens rea in insanity is of a more profound or radical kind than in the more typical cases where a person lacks what Kadish calls mens rea in its special sense—the mental state required by the definition of a particular crime, for example, the knowledge and unlawful intent essential to larceny. What, specifically, is this more profound, more radical kind of absence of mens rea? In the more common case of absence of mens rea (and blamability), it is implicitly acknowledged that the defendant, though perhaps not criminally guilty, was nevertheless a responsible agent under the law. In the case of the insanity plea and in the case of childhood, the thesis of absence of mens rea cuts deeper than this: rather than amounting to a claim to be a responsible person under law who acted without guilty intent, it is in effect a claim that the person was not a responsible agent.10 From the moral standpoint, it is intelligible and it may be morally fitting to judge a responsible agent for his deeds and to ascribe such 10. See Kadish (1968, pp. 274 ff.) for a clear discussion of these distinctions which are so often confused. On occasion, the rationale for the insanity plea is phrased in terms of "criminal intent." See, e.g., State v Keerl, US v Fore. In this context, it seems that criminal intent amounts to the legal concept of mens rea rather than to any strictly psychological concept of subjective intent. See Dubin's comments: "Where the early law already included the requirement of intent in the definition of an offense, that requirement was frequently reemphasized and subsequently particularized. "Third, there was a growing tendency to establish as general defenses to criminal liability specific personal conditions, such as insanity and infancy, based upon the absence of evil intent. If proved, these general defenses would free the accused from moral (and hence legal) guilt" (1966, p. 349). The comment of Judge Burger in 1962 is pertinent: "I would suggest as a premise to any discussion on the subject of criminal responsibility that any formulization or test or standard be judged on whether or not it is based directly upon the concept of mens rea and whether it presents the intent element plainly and clearly to the jury so they can understand that that is what they are to decide" (Proceed. 10th Cir., p. 558).

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qualities to him as guilt or innocence, blameworthiness or praiseworthiness, viciousness or virtuousness. It may be fitting to call on him to repent, to condemn him or honor him, to punish him or reward him. But where the individual is not a responsible agent, as in the case of a small child, he is not a fit subject of moral judgment at all. Of one who is a responsible agent, we may say, after reviewing the facts, that he did not have a criminal intent in doing what he did, and we may therefore judge him not guilty. But of one who is not even a responsible agent, though we may say he is not guilty, we mean by this not to express a moral judgment of him but to indicate that one must abstain from judging such a person morally. The word "responsible" itself has a confusing ambiguity here, an ambiguity that runs parallel to the ambiguity of absence of mens rea. Sometimes when we say a person was responsible for something that happened or was done, we mean to say that he in fact did it; and we often mean to imply, further, that it was wrong to do and that he was guilty. But we may also say of a person that he is responsible and not mean that he did a certain deed or is guilty; we mean to raise a prior and more fundamental issue, and to say that he is a fit subject for moral judgment. The two senses appear in such a dialogue as: "Who is responsible for breaking that vase?" "Johnny is." "He's a wicked boy!" "Oh no, you mustn't say that of such a tiny tot; he's not responsible. If you leave him alone near such fragile pieces, you must expect the possibility of damage." Johnny is innocent in the sense that he is one who cannot be guilty; and he cannot be guilty not because he is by nature a Little Lord Fauntleroy, but simply because it isn't appropriate to judge him morally in the first place. Plainly this whole range of terms—"responsible," "innocent," "absence of mens rea," "not guilty"—has a systematic ambiguity related to two quite different contexts of use, a moral and a nonmoral context. And this ambiguity pervades the legal discourse in which such terminology is used. After all, the legal terminology is derived from and modeled on the moral use of these terms, though the words do take on special nuances, limits, or extensions of meaning peculiar to the legal context. In the case of the insanity plea in criminal law—as well as in the

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case of the absence of criminal responsibility of the child—the same basic distinctions hold as in the straightforwardly moral sphere. The standard American form of verdict where the insanity plea is successful—not guilty by reason of insanity—can be misleading. It tends to be assimilated to the usual "not guilty." It can then lead to pseudoquestions and misguided criticisms based on the assumption that the defendant has been found innocent in the same sense as one who is responsible and who is as such judged innocent.11 On this assumption, both ought in all justice to be treated the same, that is, given their liberty with full rights restored. But in most jurisdictions this is not the case today, and both moral scruples and troubling questions of legal philosophy are therefore raised.12 Yet as the preceding discussion implies, the innocence of the person whose insanity plea is successful is the innocence of one who cannot be guilty. And this, again, is not a judgment of inherent virtue or of virtue at all. This is not the innocence of the free and 11. This confusion lies at the center of the main issues raised by J. Goldstein and Katz in their probing inquiry into the rationale for restraining, often indeterminately, those who have been found "innocent" of crime on the ground of insanity. The paradox, as they formulate it, is this: "If the suggested relationship between mens rea and 'insanity' means that 'insanity' precludes proof beyond doubt of mens rea then the 'defense' is designed to authorize the holding of persons who have committed no crime" (1963, p. 865). They go on to say that, "Though unpleasant to acknowledge, the insanity defense is an expression of uneasiness, conscious or unconscious, either about the adequacy of such material elements of an offense as 'mens rea' and 'voluntariness' as bases for singling out those who ought to be held criminally responsible" (p. 868). As they see it, "The plea to care for the 'sick' muffles the call to segregate the 'dangerous' whom the criminal law can not hold. With the real problem so disguised, the fruitless and frequent searches for new formulae and the frustrating and fighting exchanges between law and psychiatry become somewhat understandable. Thus, another low visibility purpose of the insanity defense emerges. That purpose is to keep sufficiently ambiguous the consequences of the defense, whatever the formula, so as to prevent at least conscious recognition that the prerequisites of criminal liability have been abandoned" (p. 870). What I am proposing here is that the issue concerns those who are not responsible persons with respect to law, who are thus not guilty in criminal law, but who are not the contrary either. Hence the usual contrasting dispositions—conviction or acquittal—are not appropriate. 12. The highly controversial writings of Dr. Thomas Szasz have often focused on these matters. See, for example, 1960a and 1960A.

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responsible citizen who has abided by the law. It is a radically different kind of innocence. It is the innocence of one who is held not to have had the capacity to act as a free and responsible citizen. We are easily confused because the verdict "not guilty" simpliciter signals the absence of moral-legal fault. This leads one to suppose that "not guilty by reason of insanity" also does so. But the verdict "not guilty by reason of insanity" does not signal absence of fault, not even absence of fault for a specified reason. On the contrary, "not guilty by reason of insanity" is a unitary judgment expressly intended to signal the presence of a profound and distinctive morallegal fault—not in itself a blameworthy fault, to be sure, but nevertheless a grave fault in capacity, at the time of the offending act, to respond to the requirements of morality and law.13 In short the wording of the plea obscures the fact that we have not two verdicts, one of which exists in a qualified form, but three fundamentally different verdicts here: (1) responsible under law and innocent of crime, (2) responsible under law and guilty of crime, (3) not responsible under law and hence neither guilty nor innocent. On the basis of the preceding discussion it is now easy to see that there is a fundamental and rational legal basis for denying to those held not guilty by reason of insanity that immediate freedom we grant to those held simply not guilty. This is so even though the trial and verdict came later in time than the commission of the offending deed and the related mental incapacity. Here we must recall the aims of the criminal law, such as just condemnation and punishment, deterrence of the individual and of others by his example, restraint of the harm doer for protection of the public from further harm, and rehabilitation of the harm doer. Not all of these aims are directly relevant in the case of the person who may have been insane at the time of the harm, but most are. The nonresponsible person does not warrant condemnation or punishment. However, though he may not have the fault of blameworthiness, he does have the fault of incapacity. A deterrent effect may or may not be possible—though this issue poses complex problems in practice, since the person may have regained his rationality subsequent to the deed, and because some types of potential insane harm doing can be in significant degree forestalled by sanctions or the threat of sanc13. But not a finding of total lack of mind. See Green, 1941, pp. 561-562.

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tions while the person is still rational or even when he is insane. However, other aims—those of general deterrence by example to the public, of restraint of the harm doer for protection of the public, and of rehabilitation—are all relevant in the case of the nonresponsible harm doer as well as in the case of the guilty responsible person. In both instances, even though the policy or court action may be well after the offending deed, the effect on the public of seeing that the harm doer does not go scot-free may be presumed significant and salutary. In both types of cases, though the police action or court action may come much later than the offending deed, it may be of value to restrain the person at least for some minimum period for the protection of society. Therefore, as in the case of guilt for a past deed, so in the case of a past criminally insane deed, the court should have the option of restraining the person after fuller inquiry into circumstances and personality, and subject to appropriate limits on this power. And in each type of case, in spite of the time gap, it may seem reasonable after a review of the specific circumstances and personal character of the harm doer to require rehabilitative measures. The point here is not that institutional commitment, restraint, or rehabilitative measures are or should be mandatory, but that the past adjudicated fault is the legitimate ground for giving the court authority, at its option, to investigate the circumstances and to impose, within limits and consistent with the aims of the law, a set of conditions. In short, where guilt or grave incapacity under law is at issue, the person who has been proven to have offended should not go immediately free as a matter of right. Thus, there need be nothing ad hoc, no "low visibility" or surreptitious objectives, in the determination that a person found not guilty by reason of insanity should be subject to further constraining conditions rather than instantly set free. In particular such a determination might or might not be based on facts that would justify commitment for mental illness or incompetency under civil commitment proceedings. As is well known, the determination of incompetency calls for invoking differing criteria in law, depending on the varieties of contexts and tasks at issue. Were it not for the confusion generated by the words "not guilty" in the insanity verdict, it would not be at all plausible to suppose, as is

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increasingly the tendency, that the criminal law should refrain from developing its own criteria for dealing with the criminally insane and should instead advert solely to the criteria for civil commitment of dangerous persons. Though the preceding discussion takes us forward, it by no means answers either of our principal questions: What is the specific meaning of insanity (that is, what are the specific mental conditions that constitute mental disease "such that there is not responsibility status")? Why do these conditions preclude responsibility status? The answer to the first question may throw light on the answer to the second, or may even render the latter answer obvious. But as yet we have only got so far as to see that a characteristic of insanity is that it does preclude blamability or mens rea, but it does so in the radical sense that it precludes responsibility status and hence any moral or quasi-moral legal judgment at all. This distinction, however, while it does not answer these questions, throws light on a certain prevailing mistake made in the usual attempts to give more specific and complete definitions of insanity. The mistake in question has been based on the tacit equating of the absence of mens rea in insanity with what we might call the normal kinds of absence of mens rea, the kinds where responsibility status is present. It is then natural to suppose that the specific conditions that normally show absence of mens rea are also the ones that must be shown to be present where there is insanity. That is, absence of mens rea is in effect viewed as a familiar legal status which in the case of insanity happens to be "caused" by "mental disease." It is then mental disease that becomes the distinctive element of insanity but only in the sense that it is viewed as the relatively uncommon cause of a very common and independently identifiable status, absence of mens rea. The remaining task, after specifying mental disease as cause, is then (on this line of thinking) essentially simple: One selects some one or combination of the general legal conditions that normally show absence of mens rea, for example, involuntariness and ignorance of material fact. We see these expressed in such familiar qualifying phrases as "does not know the nature and quality of his act" (M'Naghten), "incapacity to conform to law" (Model Penal Code), "irresistible impulse," 14 "lacks substantial appreciation 14. This phrase, though frequently mentioned in the journal literature on the insanity plea, has in fact relatively rarely been used in actual court rulings

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of the criminality of his act" (Model Penal Code), "substantially impaired behavior controls" (McDonald). All of these, and almost all their variants, amount to attempts to assimilate critical grounds for exculpating a person as insane to such familiar grounds for ascribing absence of mens rea as compulsion or involuntariness, or as absence of specific intent or ignorance.15 (That these conditions are present nonculpably is implied by their being due to mental disease. And this implication becomes the distinctive legal contribution of the concept of mental disease, and it then becomes the only distinctive element in insanity.) I shall try to show here, however, that in fact the typical insanitytest phrases associated with absence of mens rea are all excessively vague or often inapplicable, that the usual criteria for absence of mens rea only infrequently obtain in the typical case where the insanity plea is used. And indeed, as courts and commentators have found, the serviceability of these traditional formulae has rested on the readiness of courts and juries to use common sense, to stretch plain meanings of words, to amplify them or to ignore them, when— as is common—the legal formulae taken straightforwardly would fail to satisfy common sense. By now we have become so accustomed to the discrepancies between these phrases and the facts of the insanity cases being tried that we hardly notice the discrepancies. Even among thoughtful students of the problem, it seems often that instead of thinking about what the familiar words mean, there is a tendency to let the formulae act as cues; these cues trigger judgments of insanity that are actually based on tacit, intuitive criteria rather than the meaning of the words in the formula. In order to refresh our perception of the situation, it may be well to note how unsatisfactory on their face are these familiar criteria when straightforwardly applied to several paradigm types of insanity. Then in the following sections we can consider more carefully how each of these criteria could be defended against such prima facie criticisms and why these defenses fail in turn. Paranoid delusion is a classic paradigm of insanity, both historor statute law. A phrasing more commonly used in decisions of the courts has been some variant of "destroyed the governing power of his will" (see US v Davis, 1895; US v Davis, 1897), or, more recently, "incapacity to conform to law." See note 38, below. 15. These will be discussed in detail in the following sections.

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ically, as the occasion for historic and leading legal rulings, and practically, as representing a sizable proportion of the symptoms of mental disorder at issue when the insanity plea is raised. Let us consider briefly two historic cases, Hadfield and M'Naghten. Hadfield 1 8 suffered from the delusion that he was destined to be another Christ, sacrificed by the state and a martyr to human salvation. In order to arrange his sacrificial death at the hands of the state, he purchased a gun and ammunition, arranged to be in a theater audience on an occasion when, as he knew, King George III would be attending; then, at a moment when the king was standing in his box in full view of the audience, Hadfield deliberately fired his gun in the direction of the king. It is clear that in a plain and natural sense of the words Hadfield knew he was attempting a kind of murder that is legally and morally condemned with peculiar intensity, namely, high treason. Thus, if he were, retrospectively, to be judged under the terms of the subsequent M'Naghten test, he would have to be held sane. 17 Furthermore, he was engaged, at his own leisure and without compulsion, in a complex course of conduct which he himself planned and ex16. Hadfield's case. See also the account in Keeton, 1961, chapter 1. 17. This point was plain to Stephen in the nineteenth century and equally plain to Judge Biggs in 1962: "To take a single glaring instance, the delusion under which Hadfield laboured was thus stated by Erskine. 'He imagined that he had constant intercourse with the Almighty Author of all things, that the world was coming to a conclusion, and that, like our Blessed Saviour, he was to sacrifice himself for its salvation; and so obstinately did this morbid image continue, that you will be convinced he went to the theatre to perform, as he imagined, that blessed sacrifice, and because he would not be guilty of suicide, though called upon by the imperious voice of Heaven, he wished that, by the appearance of crime, his life might be taken away from him by others.' In this case Hadfield clearly knew the nature of his act, namely, that he was firing a loaded horse-pistol at George IIJ. He also knew the quality of the act, namely, that it was what the law calls high treason. He also knew that it was wrong (in the sense of being forbidden by law) for the very object for which he did it was that he might be put to death so that the world might be saved; and his reluctance to commit suicide shows that he had some moral sentiments" (1883, 2:159). "Hadfield, indubitably mad, would have been found guilty under the M'Naghten formula for he deliberately broke the law of England in order to evoke capital punishment so that he might be executed, return like Christ, and save the world" (Proceed. 10th Cir., 1962, p. 550).

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ecuted; he had a well-formed and specific intent, indeed a plainly criminal intent if one takes the words at their everyday face value. Thus, in any plain and straightforward use of the language, he was not acting under an "irresistible impulse" nor was the "governing power of his will destroyed." What we have is irrational conduct, true enough, and based on an irrational belief. But the act was not involuntary, nor was Hadfield unaware of what he was doing.18 M'Naghten 19 held the delusionary belief that there was widespread Tory plotting aimed at his ultimate destruction. In "selfdefense," M'Naghten attempted to assassinate the Tory leader, Prime Minister Pitt. Unknown to him, it was the prime minister's secretary, Drummond, and not Pitt himself, who happened to be riding in the prime minister's carriage at the time of the assault; M'Naghten, not knowing this, shot and killed Drummond. Here, as in the Hadfield case, if we take the language in its direct and plain meaning, we should say that the defendant knew he was attempting the assassination of a high government official and knew this was treason, a crime prohibited by law and by the moral views of his fellows; and M'Naghten did this because of his irrational belief, but without being coerced or otherwise caused to act nonvoluntarily. In the language of the Model Penal Code, we must say (I believe) that he did have the capacity to conform to law and to refrain from the killing. In fact he generally did conform to law; but in this case, for his own insane reasons, he did not want to conform to law but wanted, quite consciously, to "take the law into his own hands." We are familiar with the attempt by many courts, legal commentators, and psychiatrists to "save" one or another of the criteria mentioned by arguing that Hadfield and M'Naghten did not really know what they were doing, did not appreciate fully and properly or did not understand the nature or the wrongness of their acts; or 18. A. Morris in effect makes this point in stressing the modernity of the point of view of Hadfield's counsel, Erskine, who "argued that a man could know right from wrong, could understand the nature of the act that he was about to commit, could manifest a clear design and foresight in planning and executing that act; yet, if he had a defective mental condition that produced or was the cause of the act, then he ought not be held criminally responsible for it" (1968, pp. 590-591). 19. M'Naghten's case. See also the account of Keeton, 1961, chapter 2.

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by arguing that such persons could not really be considered to be acting freely or voluntarily or could not have criminal intent. But such tactics, as we shall shortly see, amount to a confession that we cannot take this language at its face value but must give it a special or unusual—and unclear—meaning, whether we call this a "deeper" meaning or not. We do not have such classic historic cases as Hadfield's and M'Naghten's when we turn to certain other paradigms of insanity— psychotic depressive states and other psychotic destructiveness. Nevertheless, one can see that comments analogous to those I have made above are appropriate here, too. For example, Professor Diamond reports a "rather typical" case of infanticide.20 With the birth of her first child, the defendant had suffered a postpartum psychosis, including delusions, hallucinations, and psychotic behavior. She had had destructive thoughts toward the child, but was so disorganized she could do nothing to act on these. Within a few weeks she had recovered, after experiencing a delusional ecstasy of rebirth herself. Until the birth of her next child four years later, she had lived a relatively normal life and the first child had thrived. Eight weeks after the birth of her second child, the mother strangled it. The infant had been crying incessantly. The mother thought she was not able to care for it properly and that it would be better off dead. At the time of the killing, the mother did not suffer from delusions or hallucinations, and there was no grossly visible evidence of mental abnormality. There was, however, an extensive history of schizophrenia in her own family background, and psychological testing shortly after the killing justified a diagnosis of schizophrenia. Professor Diamond points out that "This case is rather typical, for seldom do mentally ill persons commit crimes at the height of their psychotic disorganization." 21 Livermore and Meehl describe a typical case of infanticide and attempted suicide in the course of a psychotic depression.22 Here, too, the psychotic depressive state, having just begun to lift, was no longer so crippling as to make action impossible. There were no delusions or hallucinations. The mother made careful arrangements to 20. Diamond, 1961, pp. 61-62. 21. Ibid., p. 62. 22. Livermore and Meehl, 1967, case 7, pp. 844 if. See also, Comm Woodhouse.

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be left alone with the two children in order to be able to kill them, and she then did so. It is a manifestation of their psychoses that both these mothers made their plans, took appropriate precautions, and then deliberately executed those plans. They knew that what they were doing was morally and legally condemned by society. True, they based their conduct on irrational beliefs, moods, or attitudes, just as the paranoid bases his conduct on an irrational belief. The irrational mood leads to views on life very different from what a rational person would accept. But given this dark mood, the person then acts purposefully, voluntarily, knowingly. Here, again, the temptation is strong to "deepen" (that is, alter) the meaning of the words in order to get the result one intuitively knows to be right: The person in a state of depression does not really know the wrongness of what he's doing; he does not appreciate it truly; or he cannot really be said to act voluntarily for his mood is so strong that it is irresistible; or he cannot justly be said to have criminal intent because he's insane. This felt need to deepen or amplify the meaning of the phrases derives from the feeling that these phrases must be saved and an awareness that iri their plain sense they do not apply. And this felt need to save the words arises, in turn, because one stays with the tacit presumption that, if insanity exculpates, it must somehow or other be assimilable to one of the standard and familiar forms of absence of mens rea. Of the familiar forms of absence of mens rea, ignorance and involuntariness seem the best candidates to apply to insanity. But, as we see, they are inadequate on their face. My conclusion, however, is that insanity is in this respect like childhood; both are conditions that exculpate in a more radical way than the ignorance or involuntariness of the otherwise responsible person. Insanity and childhood both preclude responsibility status, and they therefore preclude moral judgments and legal judgments of criminality. In these conditions, questions of knowledge or appreciation of what one is doing or of its wrongness, or questions of voluntariness, self-control, or intent become beside the point. Indeed this is part of what we mean when we say someone is not responsible. Of a small child, for example, it is in certain respects beside the point to say that he knew what he was doing, just as it would be beside

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the point to say that he didn't; and it is in certain respects beside the point to say that he did what he did intentionally, just as it would be to say that he did it unthinkingly. Our inclination is to say, "Of course he knew (in the way a child does) what he was doing, but he's just a child! What can you expect? Of course he did that intentionally and without being compelled to do it, but he's just a child!" I believe the point of characterizing someone as insane is essentially the same in this respect. It is somehow beside the point that M'Naghten knew he was attempting to murder Pitt, and that he did it of his own will. What is at issue when we call him insane is something else. And this something else, among other things, renders him nonresponsible. It infects his will and his knowledge and his conduct, just as childishness qualifies a child's will and knowledge and conduct. Some further dimension of mind is absent, a dimension that makes mere absence of compulsion or mere knowledge of what one is doing insufficient for establishing responsibility. I shall have more to say of this further dimension in the next chapter. But here, against this background, we can now examine in slightly more detail the specific attempts to elaborate, to deepen, or to amend the meaning of ignorance and involuntariness as specific criteria of insanity in the attempt to save them from their prima facie inadequacy to cover the paradigm cases.

THE KNOWLEDGE-OF-WRONG

CRITERION

The M'Naghten formula fixed into a durable phrasing a traditional element of the criminal insanity test in English law. The formula required that to be judged criminally insane, it is a necessary condition that the person "not know the nature and quality" of the act or else "not know that it was wrong." The nature-and-quality wing of this pair of alternatives is usually omitted from the insanity tests used by United States courts. However, a finding that there was lack of knowledge of the wrongness of the act due to mental disease has long been sufficient to establish criminal insanity in United States courts; and in numerous jurisdictions this finding (or some obviously minor variant of it) remains essential. The persistence of this knowledge criterion is no doubt due in

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good part to the view that mental disease in itself does not suffice to exculpate, that what is necessary is that the disease produce some further condition, independently recognizable, which is the immediate legal basis for exculpation. Now ignorance of material fact can be such a basis for establishing absence of mens rea and, hence, for exculpation. Putting this more informally, if through no fault of his own a person does not know something about what he is doing, and if what he does not know is in some way material to its being a crime, then he lacks a guilty mind. Customarily, the ignorance that is allowed to exculpate is characterized as ignorance of fact rather than of law. The nature and quality of the act referred to in M'Naghten may well be supposed to pertain to ignorance of fact. But the ignorance of the wrongness of the act would seem to pertain more to ignorance of law. Thus, it might seem that M'Naghten does exculpate where there is ignorance of law "because of mental disease." 23 As we shall see shortly, this whole line of interpretation is misguided. In spite of the persistence of a knowledge-of-wrong test, there has been much controversy over it.24 As a necessary preliminary to my 23. Ryu and Silving (1957) interpret M'Naghten this way: "the ruling in M'Naghten's Case, which apparently held error, whether of law or in fact, to be the ground exempting insane persons from punishment. Such persons, the case suggests, do not deserve punishment because they are incapable of acquiring knowledge of the nature of the act or of its wrongfulness" (p. 4 3 0 ) . Silving reaffirms this interpretation in 1960-61, p. 28. 24. We have noted some of the controversy in connection with the discussion in chapter 2 of psychiatry and morality. A brief review of the objections to the knowledge of wrong test is presented in Weihofen, 1954. In the Durham decision, Judge Bazelon put the matter this way: "The fundamental objection to the right-wrong test, however, is not that criminal irresponsibility is made to rest upon an inadequate, invalid, or indeterminate symptom or manifestation, but that it is made to rest upon any particular symptom. In attempting to define insanity in terms of a symptom, the courts have assumed an impossible role, not merely one for which they have no special competence. As the Royal Commission emphasizes, it is dangerous 'to abstract particular mental faculties, and to lay it down that unless these particular faculties are destroyed or gravely impaired, an accused person, whatever the nature of his mental disease, must be held to be criminally responsible. . . .' In this field of law as in others, the fact finder should be free to consider all information advanced by relevant scientific disciplines" (pp. 238-239).

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own critique, I wish briefly to examine some current criticisms and defenses of this criterion. The controversies tend to focus o n one or the other of the two key words, "know" and "wrong." Let us turn first to a discussion of "know." There is a widespread and pedantic tendency in theoretical discussions of these problems to substitute the latinate word "cognition" for the everyday word "knowledge." And we also find, often in tandem with "cognition," the latinate words "affective" (referring broadly to feelings, emotions, moods) and "volitional" (referring broadly to will, intention, purpose, motive, desire). The trio "cognition," "volition," and "affect" seem to suggest some authoritative tripartite division of the mind. Such verbalistic reconstructions of the mind also tend to suggest that the M'Naghten test deals with only one of the mind's three "functions," the cognitive function. 2 5 And this, in turn, leads to one of the principal criticisms of the M'Naghten knowledge test, namely that the test is too one-sided, and that an adequate test of insanity should also take into account disturbances of the affective and volitional "spheres." 2 6 T o this end, there have been proposals to 25. Weihofen (1955), for example, speaks of M'Naghten's "misleading emphasis on the cognitive function" (p. 357), and then goes on to use the medicallooking language cited from Durham, note 24, above, about making a "particular symptom" a decisive test for criminal nonresponsibility. See, e.g., US v Freeman, 1966, p. 618: "M'Naghten focuses only on the cognitive aspect of personality." 26. As soon after M'Naghten as 1856, Bucknill wrote, "The doctrine which derives responsibility from the knowledge of right and wrong, and the knowledge of law, necessarily fixes our attention on the condition of the intellectual faculties alone. But neither the observations of fact, nor probabilities educed from the nature of the thing, in the slightest degree indicate that this portion of the mind is exclusively liable to pass into a diseased condition. On the contrary, a sound philosophy points to the emotive part of our nature, as the common, if not the only source of disease" (p. 38). The comment of Zilboorg (1943) is often cited in the literature: "except for totally deteriorated, drooling, hopeless psychotics of long standing, and congenital idiots—who seldom commit or have the opportunity to commit murder—the great majority and perhaps all murderers know what they are doing, the nature and quality of their act, and the consequences thereof, and they are therefore 'legally sane' regardless of the opinion of any psychiatrist" (p. 273). The report of the Group for the Advancement of Psychiatry (1954) states, "The [M'Naghten] Rules place a premium on intellectual capacity and presuppose

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use such additional criteria of insanity as irresistible impulse, incapacity to conform to law, and impaired emotional processes. I shall postpone further discussion of such proposals until the following section, in which the criterion of involuntariness will be explored in detail. For the present, my aim is to concentrate on what can or cannot be accomplished by use of the knowledge-of-wrong criterion or by the proposed variants and improvements of it. Another type of criticism that has been made concerning the that behavior is actuated exclusively by reason and untrammeled choice. On the one hand, this overemphasizes the importance of the intellect, reason and common sense; on the other hand, it underemphasizes the emotional pressures that energize behavior" (p. 4). A. Morris says that the M'Naghten test is "heavily intellectualistic, and from a psychological point of view, narrow" (1968, p. 605). In a recent leading opinion in England (Reg. v Byrne, p. 251), the court said of the M'Naghten test: "The test is a rigid one: it relates solely to a person's intellectual ability to appreciate: (a) the physical act that he is doing and (b) whether it is wrong." By way of rebuttal, Hall cites Diamond's comment that "psychiatrists of high caliber" in their own appraisals of mental illness "give cognitive defects small measure" and then cites Diamond's further comment a few pages later in the latter's discussion to the effect that disturbance in integrating "thought and feeling" and "malignant alterations in . . . ability to conceptualize" are basic in schizophrenia (Hall, 1966, p. 10; citing from Diamond, 1962, pp. 189190, 195). However, while Diamond is inconsistent as to the importance of the "cognitive" disorder, he does in any case emphasize at least equally, in the context from which Hall cites, the importance of affective, emotional pathology. Moving, however, to the other extreme from Diamond's and Zilboorg's playing down of the cognitive disorder as a mark of illness, we should note the words of an eminent theoretician and clinician, Paul Meehl: "Moreover, this criticism implies that cognitive functions have been relegated to a minor status in diagnostic psychiatry. The opposite is true. For example, in diagnosing psychosis, the extent to which the patient's cognitive ego functions are intact is the single most important basis for distinguishing the psychotic from the nonpsychotic" (Livermore and Meehl, 1967, p. 816). And with respect to the thesis that M'Naghten restricts testimony to the intellectual functions only, Hall expresses a view not uncommon in the literature of forensic psychiatry: "It seems to me both unproved and highly doubtful that psychiatric testimony is limited by the M'Naghten rule or that injustices occur in the administration of that rule in this country" (1964, p. 1063). In 1956, Hall put this point as follows: "Although the M'Naghten Rules are phrased in terms of cognition, they are generally interpreted broadly by the courts, with the result that all psychiatric evidence relevant to the defendant's mental condition is admitted" (p. 774).

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knowledge-of-wrong criterion is that such matters are not susceptible of scientific determination. Here, too, w e can omit extensive discussion, but in this case we do so because these objections have already been discussed at length in Part I in connection with discussion of psychiatry and moral concepts. We have seen how ambiguous and downright erroneous is the claim that questions concerning knowledge of right and wrong are questions the psychiatric expert, as a scientist, is not qualified to answer. Another kind of criticism that has been frequently made, and that we shall now proceed to explore, is that the interpretation of the word "know" must be broadened 2 7 significantly if it is to be applicable to a criminal insanity test. A related alternative proposal is that language explicitly introducing the broader meaning be used in addition to, or instead of, "know." Examples of such substitute language have included "appreciate," "understand," "understand fully," "realize in its full meaning." 2 8 27. Although Hall, for example, defends M'Naghten, he does so because in his view it should be and generally is interpreted broadly with respect to the knowledge-of-wrong criterion. (See note 26, above.) 28. The word "appreciate" is a key change in wording, as compared with M'Naghten, in the ALI Model Penal Code insanity test. This word is now used in a number of jurisdictions that have adopted some version of the ALI test. A. Morris (1968) says that "Most courts that have considered the question of 'knowledge' in M'Naghton interpret it more broadly than does Washington's court. California's Supreme Court has observed that 'our trial courts place a commendably broad interpretation upon the M'Naghton "knowledge" test.' The broader interpretation is followed in Canada, Scotland, and possibly, Australia" (p. 608). He adds, "To insure a broad interpretation and to achieve the above mentioned result, the word 'know' ought be dispensed with and the word 'appreciate' substituted" (p. 609). Wechsler says, "I think there's general agreement—it goes back to Stephen's history, written in the 1880's—there's general agreement that the word 'know' must be taken with what the Germans call verstand; it is not an all or nothing word, it can't be" (2d Cir., Jud. Conf., 1964, p. 385). Weihofen says, "The person who is able to say that his act was wrong, but whose knowledge is not 'fused with affect' and assimilated by the whole personality, who is not able to 'identify' with his victim and who has no real appreciation of the enormity of his act, may be declared by the psychiatric expert witness not to understand the nature and quality of his act or that it was wrong; or the doctor may simply equate the law's concept of 'insanity' with 'psychoses,' and declare any person suffering from a major form of psychosis to be insane. As a result of this stretching process, and probably also of a growing humanitarianism, the

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The need for this broadening or deepening of the meaning of "know" is supposed to arise from the danger of interpreting that word in such a narrow fashion as to make the criterion patently irrelevant as an insanity test. The fear is that if a person charged with crime is simply asked, "Did you know you were doing something wrong?" the utterance of the word "yes" in response, even if it reflected merely an ability to parrot the appropriate words, might be held to establish the requisite knowledge. 2 9 Almost anyone, whether established right-and-wrong test is probably a good deal less strictly interpreted in practice today than it was even a generation ago, even though the wording has not changed" (1955, p. 365). Professor Diamond reports that he and the other psychiatrists who gave testimony at the trial of the mother whose case is described in the preceding section testified that she did not "really" know what she was doing: "There was no difficulty in convincing the court that the defendant was legally insane and did not know right from wrong because of mental disease." But Professor Diamond is blunt in telling his readers that in truth "She knew the nature and quality of her act and that it was wrong." The psychiatric testimony was, he felt, a form of "perjury." This perjury can be justified and explained away by all sorts of rationalizations: the defendant "didn't really know what she was doing"; she did not "realize in its full meaning," did not "appreciate" or "comprehend" the nature of her act. The problem the psychiatrist faces here, he says, is that "If he tells the truth" . . . he becomes an expediter to the gallows or gas chamber" (1961, pp. 61-62); "the word 'know* in the M'Naghten formula doesn't mean what it says, but rather means 'to appreciate,' or 'to comprehend,' or 'to realize in its full meaning.' Professor Jerome Hall and Dr. Gregory Zilboorg both endorse this widening of the scope of the word 'know.' I endorse this too, but I don't like having to take refuge in such semantic devices" (p. 62). Mueller says that, although "know" may not have been too restrictive in 1843, "To correctly incorporate the findings of depth psychiatry, the word 'know,' as defining only a surface knowledge on the level of verbal response, should have been changed to something more expressive of the participation of preconscious and unconscious forces in human behavior. Perhaps words like 'appreciate' or 'understand' would fulfill that function" (1961, p. 112). And Bromberg and Cleckley say: "When no longer dismembered and falsified in one-dimensional aspect, but considered in all that we sometimes imply by 'appreciation,' 'realization,' 'normal evaluation,' 'adequate feeling,' 'significant and appropriate experiencing,' etc., the term 'knowing' does not restrict us solely to a discussion of the patient's reasoning abilities in the abstract" (1952, p. 737). 29. See Weihofen's comment, note 28, above. Thomsen, for example, says, "The fact that a defendant can verbalize, at the time of examination, the difference between right and wrong, may be wholly misleading. An individual,

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a defender of the M'Naghten wording or a proponent of some substitute wording, would grant that someone like Hadfield, or the psychotically infanticidal mother, would qualify as sane under such a very narrow, verbalistic interpretation of "know." For each of these clearly insane persons could give verbally correct answers if questioned about their acts. Indeed, there is general agreement that almost any psychotic who is likely ever to reach trial could give verbally "correct" answers. Moreover, there is good reason to think that the population in the mental hospitals is by and large able to make moral discriminations even of an authentic kind, and to do so substantially better than the prison population.30 Hence, there is near universal agreement that if the M'Naghten criterion is to have any relevance, "know" must be interpreted more broadly than mere ability to give a verbally correct answer. The actual controversy on this issue concerns how to effect this broader reading—whether to keep the original M'Naghten wording but to stress as implicit in it a broad interpretation of "know," or whether explicitly to change the language and substitute a word like "appreciate" for "know." The aim in either case is to broaden the scope of the criterion so that it will identify as insane, for example, a Hadfield or the infanticide mother, to broaden it so that such persons will be found insane because they do not in this broader sense "really" know, do not "appreciate," "do not realize in its full meaning" what they are doing and the wrongness of it. who is mentally seriously disordered may have the hypothetical knowledge to make such a discernment but may be incapable of incorporating it into his own being, so that it becomes part of the system of values that directs his actions" (1959, p. 289). In her report of her jury studies, James cites the following colloquy from Durham: "In response to the question of whether the defendant could distinguish right f r o m wrong at the time of the crime, the first doctor stated: 'If the question of right and wrong were propounded to him, he could give the right answer.' At this point the court interrupted: 'No. I don't think that is the question, Doctor; not whether or not he could give the right answer to a question, but whether he himself knew the difference between right and wrong in connection with governing his own actions'" (1959, p. 6 5 ) . 30. But, we know that most inmates of institutions for the insane, if examined in regard to their knowledge of right and wrong, would pass the test perfectly. Otherwise, it would be impossible to have wards with a hundred inmates and one or two attendants, "as is all too often the case in many of our state hospitals" (Guttmacher, 1955, p. 328).

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My own criticism of the knowledge criterion is more radical than this. I maintain that no version of it can do an adequate job as a generic criterion of insanity. True, there are cases of insanity where mental disintegration is so great that the individual does not know, in any sense of "know," the nature of his act or that it is wrong. But such cases very rarely come to trial. My point is that in the cases which do come to trial, the criterion of lack of knowledge rarely applies, even where it is intuitively plain—as with Hadfield and M'Naghten—that the person is insane and not responsible for his conduct. Would a broadened version of the knowledge test suffice? What would such a version be? It is admitted by all that "knowledge" in a purely verbal sense is not what is at issue. And in our original discussion of the paradigms of M'Naghten and Hadfield, and of the infanticide mothers, we saw that even if "know" is interpreted in a broader sense, in what is in fact the straightforward and natural sense, the criterion still does not work. A man like Hadfield, for example, not only can say that his act was murder, that it was illegal and contrary to the public's moral views; he can elaborate on it, too, discuss it with some intelligence, see many of the implications, and govern his acts in the light of all this. Indeed, this is what he did do. He prepared secretly, because he realized that his act was illegal and that his aims would be frustrated if found out; he was aware (and acted in accordance with the awareness) that there would be a public outcry of indignation when he carried out his plan, that his act would lead to arrest and to the clear danger of conviction and capital punishment. It was precisely public condemnation and execution that he desired. To say that he knew what he was doing and that it was wrong is not a narrowly verbalistic use of "know" but it is a natural and proper use.31 Yet if we do apply the 31. The slippery feature of this, it bears repeating, is that we feel uncomfortable about saying that Hadfield knew he was doing something wrong, and dropping the matter there as if that settled the issue. Our discomfort arises from an intuitive recognition that this answer does not settle the issue of what we are at bottom trying to get at. The reason it does not, however, is not that we are misusing "know," but that the question whether, in the ordinary everyday sense, Hadfield knew he was doing wrong is not the proper, critical question to raise if one is trying to get at the issue of insanity. Rather than tampering vaguely with the word "know" and talking of "true" or "full" knowledge, we need to identify just what it is we are looking for.

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knowledge test to him in this plain and natural sense, we should have to find him sane. But although he does not fit the legal test, he is surely a paradigm of what we would mean ordinarily by insanity; and, moreover, it is intuitively plain that he is a paradigm of what has been intended in the formation of our law concerning criminal insanity and the absence of criminal responsibility. And much the same comments apply in the cases of the psychotic mothers. Thus, the only remaining possibility for saving the criterion is to interpret "know" so broadly that it goes even beyond what we normally mean by "know," or to substitute language like "appreciate" or "realize in its full meaning" in order to make it explicit that we do want to go beyond even the normal meaning of "know." One then says that Hadfield knew what he was doing but not fully, that he didn't "fully appreciate" the nature or wrongness of his act. But what precisely is this additional characteristic over and above ordinary knowing? The substitute phrases may be evocative, suggestive; but what specifically do they evoke or suggest? The phrase "to realize in its full meaning" or such a phrase as "to understand fully" can be taken to require of the responsible person something that in fact even the sanest of men rarely if ever accomplishes. For who among us understands "fully" the nature of his conduct and its moral quality? Surely such phrases can be reasonably interpreted here only if they are taken to mean no more than "realizes adequately," "understands adequately." But what is the criterion of adequate understanding? Hidden here is the issue we need to identify. What, in addition to ordinary knowing, would be Of course, one might say that Hadfield or the infanticide mother did not know they were doing wrong because in their own judgment what they were doing was right—that is, what they did was in accord with their personal conscience even though known by them to be illegal and contrary to public morality. But this objection really shifts the issue to the meaning of the word "wrong"; the objection rests on a particular definition of wrong which has in fact never been accepted by the courts—"contrary to the individual's conscience." We shall discuss this interpretation of wrong very shortly and show that it is untenable for the purposes of the insanity test as well as for legal use generally. At the present point in the text, however, we are focusing on "know" and assuming the usually accepted interpretations of wrong in this context, that is, either "contrary to law" or "condemned morally by the community," or both.

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adequate understanding for purposes of being responsible? What are we supposed to be looking for? Perhaps, one might suppose, a "real" understanding or appreciation of the nature of one's act and of its wrongness might entail that one refrained from the act. But surely this would be much too stringent a demand. A person may be responsible, may adequately understand his act to be wrong, and yet do what is wrong. (If this were not so, all lawbreakers would be nonresponsible because they would by definition lack appreciation or adequate understanding of the criminality of their act!) Perhaps, one might suppose as an alternative, appreciation requires not that the person refrain from doing what is wrong but that his knowledge of its wrongness be "fused with affect," that he have strong feelings, or strong feelings of repugnance in connection with the contemplation of such an act, even if he does go ahead and commit it. But this, too, is a demand that even plainly sane men at times do not meet. We do not all, always, have strong feelings of repugnance or even strong feelings of any kind when we contemplate acts we consider to be wrong. We do not in fact do the many wrong things that in theory we could do all during the day, but this is not because we constantly experience crises of "affect"! It is not too uncommon to contemplate the doing of wrong acts with pleasure and to experience largely pleasurable feelings during and subsequent to such acts. "Fusion with affect" is thus both too vague when it has relevance, and too often irrelevant to the question of whether the person knows something is wrong.32 32. The ambiguity and vagueness of these points of view are embodied in their statement in draft 4 of the ALI Model Penal Code, p. 157; the draft refers to "the view, strongly put forth by Stephen, that 'knowledge' requires more than the capacity to verbalize right answers to a question; it implies capacity to function in the light of knowledge." (Does "function in the light of knowledge" mean "act rightly"? If so, then anyone who acts wrongly lacks "knowledge"; if not, then it can only mean that the person takes some steps which are intelligible as, for instance, maneuvers designed to avoid detection, or punishment, etc. But this, we have seen, many plainly insane persons do.) The draft continues, quoting Zilboorg, saying that, "In modern psychiatric terms, the 'fundamental difference between verbal or purely intellectual knowledge and the mysterious other kind of knowledge is familiar to every clinical psychiatrist; it is the difference between knowledge divorced from affect and knowledge so fused with affect that it becomes a human reality.'" "Affect,"

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So far as I can see, those who propose replacing "know" with "appreciate" or comparable language fail to give any specific and acceptable meaning to the new terms. 3 3 T h e new language is an improvement over the old only because, being quite vague, it gives the trier of fact a free hand to make his own intuitive judgment as to insanity and then to claim without fear of contradiction that he has applied the legal test. However, such "improvements" do not aid us in understanding what w e mean by "insanity." In summary of the discussion of "know," then, it would appear that all the interpretations or revisions of the formula are either obviously irrelevant or fatally vague. Let us turn now to a consideration of the word "wrong" as it occurs in the M'Naghten

test. What does "wrong" mean when w e say

of course, is not "action," nor is it clear that it amounts to "functioning in the light of knowledge." In any case, the presence of affect varies in normal persons, and if affect is present, the kind of affect varies. Weihofen supports such a broadened interpretation of know—so broadened that if his requirements are taken with any strictness, many normal persons would fail the test: "If the word 'know' were given this broader interpretation, so as to require knowledge 'fused with affect' and assimilated by the whole personality—so that, for example, the killer was capable of identifying with his prospective victim— much of the criticism of the knowledge test would be met" (1954, p. 77). See also, for example, Diamond, 1961, p. 62. 33. Of course, one can resolve the problem—verbally, at least—by taking the view expressed by Wertham: "If a crime is really the product, the result, the symptom of a psychosis, it is inevitable that the person who committed it cannot sufficiently distinguish between right and wrong and/or sufficiently know the nature and quality of his act" (1955, p. 337; emphasis added). But this is just a way of redefining words arbitrarily in order to eliminate any test except the presence of psychosis—since, as we noted, there is not, in the ordinary meaning of the words, good reason to say that one whose act is a manifestation of his psychosis cannot know what he is doing and that it is wrong. The word "sufficiently" here appears as the vague, allpurpose qualifier playing the same role as "really," "truly," or "fully." It evades exactly the issue we need to raise. Wertham is not alone among psychiatrists in taking this stand. "In the non-judgmental view of the psychiatrist, such mentally diseased defendants will almost invariably be considered as lacking 'substantial capacity to conform' their conduct to the requirements of the law" (Diamond, 1962, p. 193). See also Davidson, 1956, p. 8. Davidson's all-purpose qualifier phrase is "appreciate, in any meaningful sense."

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that the defendant did or did not know his act was wrong? There have been controversies and differing proposals o n this issue. 34 I wish to show that on no reasonable interpretation of wrong could the knowledge-of-wrong test be a satisfactory critical test when applied to various paradigm cases of insanity. If, as some courts have held, "wrong" means "contrary to law," then the test becomes inapplicable in almost any case that comes to trial; for clearly all the paradigm cases previously described involve persons w h o were quite aware that they were acting contrary to law. If the word means something akin to "condemned by society as morally wrong," then my preceding comments would hold equally well. Rare indeed is the person who pleads insanity and who is not 34. We have already considered at length the many criticisms centering around the thesis that this portion of the M'Naghten test requires psychiatric experts to express moral (or legal) judgments in their testimony. All discussion of this issue is therefore omitted here. See pp. 97-120. Some courts have taken the stand that "wrong" in this context means prohibited by law. See, for example, People v Nash, Harrison v State, State v Foster, State v Andrews. See also the leading English case on this issue, Reg. v Windle. Some courts have held that "wrong" in this context means "moral wrong." See, for example, State v Carrigan, State v Davis, People v Schmidt; see also Wion v US. In Sauer v US the court recommended leaving the definition unspecified and remarked that the jury would then in fact make a moral judgment. In State V Kirkham the Utah courts established the meaning of wrong in Utah as meaning either legal or moral wrong. In People v Wood the court ruled that wrong means both legal and moral wrong. The ALI Model Penal Code proposes that "wrong" means "legally wrong." Hall says that this phrase refers to the capacity to make "commonplace social valuations" (1958, p. 281). A. Morris says, "As a practical matter the way in which a court interprets the word 'wrong' may have little effect on the eventual outcome of a case. When the accused is asked if he knew that the act he did was wrong in the moral sense, the reference is probably to society's views on morality, not the defendant's subjective morals. Because the insanity defense is usually pleaded only when fundamental crimes are involved and because fundamental crimes are both legally and morally wrong (according to society's morals), the 'legal' test and the 'moral' test are almost identical in actual operation" (1968, p. 604). A. Goldstein says that "In the United States, the issue has seldom been raised. The word is generally given to the jury without explanation" (1967, p. 52). But see the issues raised by Kato (1970) in the case of witchcraft beliefs and culture conflicts.

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aware at the time of the offending act that society morally condemns such acts.35 If the word "wrong" means something like "judged to be morally wrong by the person's own conscience," we then have an interpretation that is surely in itself an unacceptable legal test for absence of mens rea. It would undermine the foundations of the criminal law to allow that a person who violated the law should be excused from criminal responsibility just because, in his own conscience, his act was not morally wrong. There is, however, a further and at least a plausible line of defense one might pursue in trying to save this last interpretation. It leads to interesting and unexpected conclusions. One who wishes to defend the interpretation of wrong in this context as "contrary to the individual's own conscience" might proceed as follows. Admittedly, one might say, we cannot generally allow a person to be exculpated of criminal responsibility simply because in his own mind, for whatever reasons, he believed his act not to be wrong. Admittedly, it is generally true that criminal conviction is appropriate if the criminal law was violated, regardless of the offender's personal moral view of the matter. But is there not a crucial difference, this argument would run, if the person's own moral view of his act comes from mental disease? Can we blame or condemn a person who acts in a way that is morally justified as he sees it, if he is led to see it this way from mental disease? Must we not recognize that such a person should not be held responsible? There is, I believe, a certain plausibility to this line of argument. The thesis can be slightly expanded by suggesting that we normally do not allow a person's moral convictions to serve as a defense to criminal charges because we normally and tacitly assume that a person is not acting out of mental disease. No doubt a good many criminals believe even in their own minds that they did wrong in violating the law as they did; but other criminals—whether because of social, economic, political, religious, or other reasons—judge their 35. See Stephen's remark on the knowledge-of-wrong test: "It may be said that this description would apply only to a person in whom madness took the form of ignorance of the opinions of mankind in general as to the wickedness of particular crimes, murder, for instance, and such a state of mind would, I suppose, be so rare as to be practically unknown" (1883, 2:163).

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conduct to have been morally right even though illegal. Nevertheless, regardless of his personal moral views, the average citizen must expect to have to "take his medicine," to suffer the consequences if he violates the law and is apprehended. For the law generally presumes men to be sane, and it is this tacit presumption that makes it seem right to us to hold him responsible for his law violations. We do not say his moral views cancel the law but that they call for him, in his opinion, to do what violates the law; and the moral person stands, and should be ready to stand, responsible for what he does. But if the moral views on which the person acts are due to mental disease, should we not then consider him insane and refrain from blame and condemnation? Is not the question of normality or disease somehow always in the back of our mind? Such a line of argument tacitly involves an important but somewhat obscured shift in the issues. It directs our attention to the way in which a person comes to his moral views rather than to the views themselves. In fact I would like to show now that this shift to emphasis on mental disease rather than on the moral views per se leads inevitably to the conclusion that the person's moral views, whatever they are and whether he be sane or insane, are irrelevant rather than being a crucial test of insanity. We can see this clearly if we perform a "thought experiment" by applying the spirit of the proposal to suitable variations of one of our paradigm cases. For example, we can assume that the psychotically schizophrenic mother saw her child as so miserable and herself as so incapable of helping the child in its misery that, in her own mind, the mother felt she was doing what was right when she spared her infant further suffering and killed it. Thus, if we interpret "wrong" as "contrary to one's own conscience," we might say she did not know herself to be doing what was wrong. This would indeed seem to entail that she was insane under the M'Naghten rule as interpreted. But now let us introduce a single change in the assumed facts. Let us suppose that everything in the circumstances is the same as before except that in the psychotic mother's own view it is a grave sin to kill a child. In spite of this, her (psychotic) agony as she broods over the prospect of the child's suffering in this life leads her to decide to free the child of further and continuing misery. According to her own conscience, then, she has given in to the temptation to com-

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mit a sin, a wrong. Using this same interpretation of M'Naghten, we should have to find her sane because under these circumstances she does know her act to be wrong. But such a conclusion runs squarely counter to our intuitive judgment. A woman who has such a blatant recent background of hallucination, delusion, psychotic disorganization, and infanticidal thoughts, who has a family background filled with overt schizophrenia, who kills her own infant for the reasons mentioned, and who shows up on current psychiatric tests as definitely schizophrenic is surely to be held insane and nonresponsible if anyone at all is. The question whether, among all else, she thought herself to be doing what was morally right or morally wrong is surely beside the point: she is insane, not responsible for her acts or her moral judgments. What is relevant is the way in which she comes to form her views and, more importandy, her conduct, not the degree to which her conclusions on moral issues coincide with ours. The general lesson taught by the thought experiment proposed above is that it is not the person's own moral view that identifies insanity but something defective about the way in which he comes to decide to think and act as he does. The verbal cue or label we use to denote this defect in the way he comes to act as he does is the phrase "because of mental disease." We can conclude that on no interpretation of "wrong"—whether as "contrary to law," or "contrary to public morality," or "contrary to one's own conscience"—is the person's knowledge of wrong a suitable critical legal test for assessing the validity of a plea of insanity.36 And the same is true for any plausible interpretation of "know." But we have also learned something from this critique; we have a clue, a clue that takes us back to mental disease. True, it is only a 36. I have used the qualifying adjective "critical" several times in this context because I am concerned here with refuting the view that the knowledgeof-wrong test concerns that effect of mental disease which is the specific, legally relevant effect, akin to "ignorance" in other criminal law contexts where mens rea is at issue. On this view, it is not disease that is of the essence but ignorance, and it is this view I here argue against. In my last chapter, I do leave room, however, for use of the knowledge-of-wrong test, or variants thereof; but the role it there plays is quite different, almost peripheral and in any case not of the essence.

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clue, for as we have already observed at length in Part I the concept of mental disease remains as yet an open one. It is not a medical concept but a legal one; yet nowhere in the literature of law has anything approximating an adequate legal definition been provided. 37 Now, however, and working from an entirely different angle than in Part I, we have once again been led back to mental disease as a concept pointing to what is central. Although we have not yet explored in detail the tests relating to involuntariness or impaired behavior controls, it is appropriate to suggest here that we shall find much the same result—that it is not what a person wills, or intends, or what he actually does which is of the essence for identifying insanity. Instead, it is something defective (namely the incapacity for rationality, as I shall argue) in the way he comes to these decisions, intentions, and actions. And whatever is the specific nature of this defective way of forming intention and action, it is closely related to what we mean when we advert to the now traditional phrase, "mental disease," and say that the person suffers from mental disease. Our task will shortly be to identify explicitly, specifically, and in some detail the nature of this defect, and in so doing we will also have taken the major step toward providing, in effect, the legal substance of the concept of mental disease. In the meantime we may summarize the main constructive suggestions up to this point in our critique of the legal concept of insanity as follows: (1) To impute insanity is to deny responsibility status (and thus to preclude as inappropriate a moral judgment of guilt or innocence); (2) To impute insanity is to refer not so much to the person's knowledge or ignorance, his beliefs or intention, or even his purportedly law-violating conduct per se, as it is to refer to a certain defect in the way he comes to these, a defect to which we allude when we use the phrase "mental disease" in this context. 37. As noted in chapter 1, the McDonald definition, which is the only candidate for such a legal definition, begs the question of the specific nature of the exculpatory condition by speaking merely of "abnormality"; beyond this it merely sets forth a set of general categories explicitly intended to be viewed as broadly comprehending the entire range of the mental functions, any or all of which could be impaired.

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IRRESISTIBLE IMPULSE AND INCAPACITY TO CONFORM TO LAW In the preceding section w e have seen that the concept of insanity cannot be assimilated to the concept of absence of mens rea grounded in ignorance. N o w w e turn to the other wing of the typical insanity test, the apparent reference to an absence of mens rea grounded in defect of will. Characteristic phrases in insanity tests that refer in one way or another to defect of will are: "the governing power of the will was destroyed," "irresistible impulse," "incapacity to conform behavior to the law," "impaired behavior controls."

38

In the present section, I propose to examine these variant formulae dealing with what I shall call generally "loss of

self-control." 3 9

Broadly speaking, I wish to explore the tacit—and erroneous—assumption that the loss of self-control w e at times ascribe to insane persons is to be assimilated to a legally exculpating condition akin to absence of volition or free will. 4 0 38. See, generally, State v Harrison (annotated) (1892); State v Maish (annotated); Keedy, 1952; Weihofen, 1954, pp. 81 ft; Davidson, 1956; A. Goldstein, 1967, chapter 5 (with listing of relevant cases in note 1, chapter 5). 39. "[T]here is no monolith called the 'irresistible impulse' test. Most of the cases do not even use the phrase. It is much more accurate to describe the rules as concerned with lack of control and to use the shorthand designation 'control' test (as I shall do hereafter). The phrase 'irresistible impulse* is in considerable part a text-writer's caption which has gained currency through the years as it has been uncritically used to describe all the 'control' tests rather than a subgroup among them. Yet, more than any other factor, the phrase has become the focus of criticism of the rule and the principal reason for finding the test inadequate. If the criticisms of the 'control' rules are to be discussed sensibly, it will be necessary to separate those which assume there must be an 'impulse' from the ones directed at 'control' tests generally" (A. Goldstein, 1967, pp. 69-70). 40. This is the point of Stephen's remark, "In order that an act may be criminal it must be a voluntary act done by a person free from certain forms of compulsion" (1883, 2:99). Dubin (1966, p. 389) seems to be getting at the same basic idea when he speaks of the "right" to present evidence of incapacity to conform to the requirements of the law (Model Penal Code) as part of due process. Wechsler (1955) brings out sharply the idea that it is the lack of self-control as the "specific legal consequence" which exculpates, rather than

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There is n o doubt that insanity test phrases such as "irresistible impulse" do readily suggest something in the nature of involuntariness. A n d w e shall see shortly why they d o so. But the suggestiveness is misleading, and I wish to show that insane conduct involving loss of self-control due to mental disease should not be thought of as exculpating because of involuntariness. Insanity, as I have suggested earlier and intend to show later, constitutes in itself a distinctive exculpating condition; the loss of self-control aspect in this context is at most ancillary. Concerning self-control, volition, and irresistible impulse, more pseudopsychology has confused the issues than in almost any other area of the criminal insanity controversies. There is n o doubt that these phrases allude to important features of human conduct, features that have generated a variety of vivid and useful metaphors and analogies incorporated into familiar idioms. W e speak of being "overwhelmed" by passion, "dominated" by a m o o d or an emotion, of "surrendering" to desire, of "weakness of will," of "losing control of oneself." The criminal law has long wrestled with the issues in an mental disease per se: "Is it the law that mental disorder ipso facto establishes irresponsibility? Could anyone embrace it as the law without assuring himself that the term disorder would imply the relevant impairment of capacity? As courts and commentators have repeated to the point of tedium, the criteria are addressed to the question of when disorder or defect should be accorded the specific legal consequence of a defense to criminal conviction, with the specific differences in dealing with the individual that this specific legal consequence entails. Thus the criteria are not concerned with the indicia of diagnosis of disease; they are concerned with the effects that a disease must have on the defendant if it is to work the exculpation claimed. The effects they make material are those that bear, as I have shown, on the capacity of the actor for self-control" (p. 373). Sobeloff puts the issue in terms of free will: "To put it in general terms, the jury will, as heretofore, be called on to distinguish whether the act was done with evil intent (mens rea) for which there is criminal responsibility, or was the product of a mental condition that makes the act not one of free will, and hence not criminally punishable" (1955, p. 796). Wootton says that the decisive measure of a person's responsibility is the degree to which he was capable of "having acted otherwise than he did." She states, further, that there is no reliable way to make this measurement (1963, pp. 74-76). The connection with free will is evident in such phraseology as that of People v Wolff, p. 971: "The doctrine of 'irresistible impulse' as a defense to crime is, of course, not the law of California; to the contrary, the basic behavorial concept of our social order is free will."

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effort to respond adequately to the element of truth here. It has not been easy. One difficulty arises as soon as there are serious legal issues at stake; these informal and metaphorical idioms are then treated with a formalistic seriousness and too often elaborated in a literal way until they form a self-stultifying pseudopsychology.41 The postulation of metaphorical inner entities of the mind doing battle with one another, conquering, losing control, surrendering, dominating, or of inner mental machinery simply breaking down leads to a cul-de-sac. For when efforts are made by the courts to apply these "doctrines" to a particular case in order to discover whether "the will" was really destroyed or "the reason" incapacitated, or whether these inner homunculi surrendered, it becomes acutely evident that no one has ever observed such processes, that no one can. 42 It is not that these idioms are nonsense; they are usually useful and intelligible enough in their everyday contexts. But they are idioms. The mistake is to take them literalistically, concentrating on verbally elaborating the imagery in the idiom rather than on specifying the objective considerations that cue our use of the idiom. One source of error connected with the metaphors or analogies involved in these idioms lies in analogizing desire, mood, or emotion to "forces," forces that can be quantitatively too great for the "governing power of the will" to curb, and which therefore destroy the will or drive the person against his will. The particular analogy I have in mind here is that of an external physical force that drives the 41. See the discussion on pp. 84-97, above. The conceptual confusion and inadequate medical understanding in this area are implicit in the contrast between the confident assertion of Keedy in 1952, "That an impulse, resulting from mental disease, may be irresistible is supported by a mass of medical opinion" (pp. 988-989), and the summary of the situation as of 1967 by A. Goldstein: "The "irresistible impulse' rule was widely heralded by many lawyers and psychiatrists as the way to remedy all that was wrong with M'Naghten. More recently, however, in a remarkable reversal of position, the rule has been dismissed summarily by most commentators on the theory either that it adds little to M'Naghten ('merely a gloss'), or that it expands the insanity defense far too much, or that it is impossible to apply, or that it is without scientific basis" (p. 68). 42. "The modern science of psychology does not conceive that there is a separate little man at the top of one's head called reason whose function it is to guide another wrong little man called instinct, emotion, or impulse in the way he should go" (Holloway v US, p. 423).

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person before it, a force acting on his body and greater than any counterforce he can apply. This analogy calls to mind an important and obvious legal basis for claiming exculpation from criminal charges. Seen in terms of this image, loss of self-control appears to imply that volition, an essential element of crime, is lacking. However, careful reflection on the conduct we have in mind when we use the idioms of loss of self-control in connection with criminal insanity reveals that this analogy is fatally inappropriate for legal purposes. A mere physical force is purposeless, nonintelligent. Such a force may have direction, but this is purely spatial direction; it is not the "psychological" kind of direction that we call "purpose" or "intent" or "meaning." Were there merely such physical forces acting on a person or on his internal motor apparatus, we should see the kind of thing we do see in the random flailing or convulsive motions of the epileptic during a grand mal seizure. Here purpose is absent, and motion is not coordinated in terms of skill, intent, or motive; this motion is to be understood in terms of physico-chemically induced energies activating individual muscles to increase or decrease the physical tension of the muscle fibers. Here the person is not "conquered" by a desire or mood or passion; rather he is in a condition in which desire, mood, and passion, as well as thought, purpose, and intention, play no role. 43 43. The confusing attempt to assimilate the purposeful and often skillfully executed plan of the psychotic to the involuntary Sailings of a convulsion is plain in the remarks of the forensic psychiatrist, Davidson: "It seems to me that a person with a definite psychosis (actual insanity) who does an act because of that insanity, and does it specifically because of a compulsion rooted in the psychosis, is not acting voluntarily. Mens tea means guilty mind, or intent to commit the act. If there is no mens rea, there is no crime. Obvious examples would be injuries caused by movements during convulsions, sleepwalking or chorei-form twitches. . . . A sane defendant would be acquitted if he performed an otherwise unlawful act because of physical infirmity, convulsion, severe duress, hypnotism, sleepwalking or mechanical obstacle. If a sane defendant is thus excused, presumably and a fortiori a psychotic person would not be responsible" (1956, p. 4 ) . A. Morris takes a similar line: " N o person can be considered a legitimate object of criminal or moral blame for his acts, if he lacks the ability to control himself. We do not hold that a man is rightfully blamed for his acts when he has no power over them. In such a situation, lacking volition, his 'acts' are akin to a muscular spasm. We hold him blameless" (1968, p. 612).

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Where the insanity plea is at issue, however, the person's comportment is typically purposive. The offending act typically manifests the characteristics of conduct initiated, coordinated, and carried out with some skill by the person to achieve some end. The conduct, however irrational it may be, is radically different from mere physical motion without psychological "meaning." That this psychological meaningfulness is central from the legal standpoint is evident from the fact that without the supposition of such purposiveness all the controversy or doubt regarding nonresponsibility would disappear.44 No one would raise the question of responsibility for mere physical motions of the body. It is only insofar as we see bodily motion as an aspect of self-initiated conduct, of purposeful action, that we can raise questions whether, possibly, the person may be nonresponsible in spite of this. We may find it congenial to speak idiomatically of the insane person as one who is driven, or seized, or overwhelmed, or possessed by fear, anxiety, emotions, or delusions. Yet there is one literal truth we must never lose sight of: it is the person himself who initiates and carries out the deed, it is his desire, his mood, his passion, his belief which is at issue, and it is he who acts to satisfy this desire, or to express this mood, emotion, or belief of his. Even if his motive is unconscious, it is his motive, and it is he who acts out of this motive. Putting matters as I have been doing raises acutely the puzzling question of what we are getting at when we deem it appropriate to characterize the insane person's conduct with idioms of loss of selfcontrol. But although putting matters this way raises the question acutely, it precludes certain familiar kinds of reply. It precludes the reply which postulates, in effect, that it was not he who did this but some alien agency which compelled or possessed him. It precludes the reply that some alien force drove him whether he would or not. And it precludes therefore the implications that his act was, in the usual legal senses, involuntary or compelled.45 44. Something of this point is evident in the comment in US v Baldi, p. 568: "it is conceivable that the drooling, quaking imbecile has no quality of mind whatsoever and therefore would not or could not know the difference between right and wrong. Such an individual would be unlikely to commit a crime since the commission of crime and some activity of mind and body seem inseparable." 45. See Stephen's acute comments: "The following are the only forms of compulsion, which, so far as I know, can come under legal consideration: 1.

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In order to answer the question as to the true meaning of the idioms of loss of self-control when applied to the insane person, we should first examine the uses of these idioms in ordinary circumstances, in circumstances where insanity is not at issue. Jones is a heavy smoker. He would like to quit smoking. He knows that continuing to smoke will probably shorten his life, probably hasten the onset of degenerative circulatory and lung function, and increase greatly the probability of lung cancer. He views smoking as an expensive and dirty habit. It is only rarely a pleasure for him any longer. Jones reflects on all this and says to himself with an air of decision, "I'm quitting right now!" He throws away the pack that happens to be in his pocket. A half hour later, after a stressful conference, he wants a cigarette badly; he hesitates, says to himself that the weekend, being more relaxed, is a better time than now to quit smoking. He takes a pack from the carton in his desk and lights a cigarette. That weekend he hesitates, talks to himself about the matter, reflects on various aspects of his decision to quit; but he wants a cigarette so badly that at last he snatches one, hating himself, and smokes it. "I couldn't help it. The habit just overpowers me; I can't control myself," he says subsequently. And, in the circumstances, we understand him perfectly well. He uses the idiom with complete propriety. Can we generalize on what we observe to happen here without letting the idiom and its latent imagery lead us into pseudopsychological myth or metaphysics? We see that this person has reflected on a variety of considerations that would call for quitting smoking. He Compulsion by a husband over a wife. 2. Compulsion by threats of injury to person or property. 3. Compulsion by necessity. Some forms of madness have some resemblance to compulsion, though I think the resemblance is superficial" (2:105). "IT]here is no opposition between voluntary action and action under compulsion. The opposite to voluntary action is involuntary action, but the very strongest forms of compulsion do not exclude voluntary action. A criminal walking to execution is under compulsion if any man can be said to be so, but his motions are just as much voluntary actions as if he was going to leave his place of confinement and regain his liberty" (1883, 2:102). Stephen is quite clear that if the act were truly involuntary, this would settle the legal issues (2:100), though his remark cited above indicates clearly that he does not see the insane person as acting involuntarily and thinks that the resemblance of madness to compulsion is superficial.

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knows of no important considerations—no good reasons except the desire itself—that would be reasons for continuing to smoke. He even takes steps to make smoking impracticable (throws his pack away). His wish to quit derives not only from what he is thinking but also from his actual attitudes, habits, values. He is a thrifty person, a person who appreciates cleanliness, and who generally cares for and enjoys greatly his physical health. He typically values his health for the sake of his family and job as well as for the direct satisfaction and the freedom from anxiety it brings him. Typically, he acts in accordance with such values, such knowledge, and such characteristic traits. In spite of all this, he desires to smoke. This desire is not a casual whim, an occasional mild appetite. He desires intensely, persistently, distractingly, and to his distress, to smoke a cigarette. When it comes to the point of acting, Jones acts to satisfy his desire to smoke, and perforce acts contrary to almost every other relevant inclination, character trait, or value. We say he is a victim of his habit. We say that at the particular moment he is dominated, driven by his desire for a cigarette. But who is "he"? Is it not he who smokes, after all? And does he not do so of his own initiative and not under external duress? Here we have in statu nascendi the idiom of the divided person. He was overcome by his desire. Why do we split off, at least idiomatically, "he" from "his desire" or "his habit"? The answer is not that we have looked inside his mind and seen some governing agency destroyed or overpowered. To say his desire overpowers his will is not to turn the topic of discussion to interior and invisible mental processes about which we speculate; it is to focus attention on a certain aspect of the familiar features of the situation we have already observed. To apply the idiom is to adopt a particular way of looking at what we observe, and a particular style of response to what we have observed. The idiom puts it: He is conquered by the desire. The plain unidiomatic fact is that he, Jones, acts so as to satisfy his desire, and he does so in spite of the fact that almost every other usual inclination of his and almost every other consideration to which he would characteristically give weight call for action other than what he in fact chooses to do.46 The idiom is thus not a proto-scientific explana46. See, for example, Dr. Davidson's remark (so atypical of the usual psychiatric language in these matters): "Thus, the power of self-control means

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tion of how he comes to act as he did; it is, rather, a way of characterizing from a certain standpoint the fact that he did act that way. The idiom is a useful characterization because the analogical image in it has the important role of suggesting dramatically what our stance toward Jones should be, how we should respond to Jones and his conduct. One who is dominated or conquered is a victim at the mercy of his conqueror. He is a slave. To a great extent, the conduct no longer reflects the man. And in the case in question, there are good reasons to treat Jones in a manner that does have analogies to (but is not the same as) the manner in which we respond to one who is a victim. For by the hypothesis, Jones's conduct does not reflect his own nature as he is by and large; indeed it is inconsistent with that nature. Therefore, if we took this particular action as a basis for an overall judgment of Jones as a person, we would necessarily be in error. Thus, the idiom is a tacit admonition to view this particular act as not expressive of his character. Of course, unlike the conduct of the conquered slave, Jones's conduct does not derive from some other person's will. This act is Jones's act. Indeed, when Jones says, "I couldn't help doing it," this is a tacit confession that he did do this of his own initiative, that he and not someone else is responsible. The idioms of loss of self-control are also used in connection with moods. And the uses of the idioms have the same general features as in the case of actions due to habit or desire. Normally, a mood gives a certain limited tone or color to experience, and establishes a certain limited bias in the way the person assesses matters. The limits to this mood bias are to be found within the totality of the person and his awareness of context. But when, at some moment or period of his life, the person indulges a particular mood even though it is inconsistent with the main pattern of all he formerly did, thought, or valued, the idiom of being "dominated" or even "overwhelmed" by the mood may be apt. The idiom tacitly acknowledges that this is his mood, that it is he who initiates the mood-related conduct and not someone else; but the imagery of the divided person helps to a power to attend to distant motives and general principles and connect them rationally with the act under consideration" (1956, p. 5). This is strongly reminiscent of Stephen's discussion of will, strength of will, and weakness of will in volume 2, p. 104, of his History; and it is, almost verbatim, Stephen's comment on p. 107.

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emphasize that one would be in error to assess and judge the man as a whole by reference to his comportment at the moment. We may perhaps pause to discuss here for a moment a certain ambiguity in the "control" idioms that can be gravely misleading. The tendency to mislead is evident as one shifts from a phrase like "loss of self-control" to the superficially similar phrase "lack of control." 47 In conduct such as that discussed above, where we speak idiomatically of a habit, or desire, or mood "dominating a person," of his being "unable to help doing what he does" or "unable to control himself," the literal truth is that what he does is often perfectly well controlled. There is not in general a lack of control. That is, though the conduct is irrational, it is skillfully and often deliberately carried out to achieve a clearly conceived aim. Thus when we say idiomatically in these cases "he couldn't control himself," what we are getting at is that, although he literally could and did control what he was doing, he was doing something that was to a significant extent inconsistent with most of his other usual inclinations and objectives; he did it in spite of them rather than as a result of a deliberate resolution to put them aside or abandon them. The imagery of a phrase like "breakdown of psychic controls" lends a spurious intelligibility because of its allusion to physical processes; but this is pure metaphor since the psychiatrist has no independent knowledge of physical processes or methods that can be applied here. All he observes is no more than we can observe who see what is right before our eyes. Much the same sorts of general remarks as have been made about habit, desire, and mood can be made in connection with impulses 47. Thus, A. Goldstein in attempting to develop a more general phrase to cover the sorts of issues involved in rules that refer to irresistible impulse, destruction of the governing power of the will, etc., says, "It is much more accurate to describe the rules as concerned with lack of control and to use the shorthand designation 'control' test" (1967, p. 69). The forensic psychiatrist Roche also presents the issues (as do many psychiatrists) in terms of "the breakdown of psychic controls" or "the insufficiency or breakdown of the built-in controls," and the "release of latent anti-social drives" (1955, pp. 322-323). Terminological confusion and a trust in the reparative magic of technical jargon seem evident when we find Roche saying that "The rejection of this [irresistible impulse] test does not imply the rejection of valid observations that certain individuals do struggle with and succumb to unlawful impulses" (p. 321). Roche then proceeds to the analyses cited above in terms of "breakdown of psychic controls."

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that are "irresistible," passions that "grip" a person, and emotions that may "seize" him or "drive" him. Of course, much of what w e have been considering can be subsumed under the popular rubric of "irresistible impulse," but some have held that this phrase should apply only where the word "impulse" has the connotation of "impulsive," that is, a sudden and intensive eruption. The restriction of the phrase in this way has been opposed by other commentators. In any case, there is something distinctive about sudden, impulsive loss of self-control which calls for further special comment.' 18 When we think of passions or impulses not as enduring but as sudden and intense, when we think, for example, of impulsive con48. On the confusion in psychiatry about the problem of irresistible impulse, it is of interest to note the utterly contrasting claims—typical of many others to be found in the literature of the past twenty-five years—expressed in the following comments by psychiatrists: "Every tenet of modern psychiatry points toward the acceptance of the 'irresistible impulse' plea as a proper defense in criminal law" (Hoedemaker, 1948, p. 7). "I do not suppose that any educated person denies the existence of neurotic obsessions and compulsions. . . . But is such a compulsion irresistible? In any 100 per cent sense, no. If the patient will pay the price in terms of his anxiety, he can resist—and in the presence of others, he often does hold his hand back. Assume an obsessive-compulsive about to set a fire. A bystander walks by. The patient abstains. If the by-passer remains, the patient waits. His anxiety may mount, he may get palpitations, he may feel faint, he may wellnigh drown in his anxiety. But he can and does wait. The impulse is resisted: It is, therefore, not irresistible" (Davidson, 1956, p. 6). See Roche's comment, however, that the irresistible impulse test "never gets out of the category of the abstract and cannot be reduced to operational definition" (1955, p. 321). Guttmacher, in his comments on p. 174 of Appendix B of the ALI Model Penal Code, draft 4, reports that a majority of the members of the American Psychiatric Association believe the concept of irresistible impulse is not psychiatrically and legally sound, and that 93 percent of the Group for the Advancement of Psychiatry agree that there are cases in which offenders are "incapable" of controlling the "impulse" to commit harm! See also Keedy, 1952, p. 989. With respect to the restricted sense of irresistible impulse as against the broader interpretation which includes loss of self-control other than the surrender to an impulse of the moment, see the representative views in A. Morris, 1968, pp. 611-612, who cites cases in which courts held that the impulse must be one which is sudden, but himself argues that, for example, in melancholia, an irresistible impulse to suicide and murder may lead to cool and careful preparation of a crime rather than crime committed in a sudden access of emotion.

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duct, we use the idiom "impulse" to draw special attention to the circumstances of the act as well as to the inclinations and values of the person. We mean to stress that not only does the act stand in contrast to the other usual inclinations of the person, but that there was not even opportunity to evoke these, to bring them to bear in the situation. When a person has thus not even had opportunity to deliberate, we assess the conduct differently for some moral and practical purposes than when the conduct reflects a deeply rooted and persistent inclination that is inconsistent with the rest of the personality. The final point I wish to make about our everyday use of the idioms of loss of self-control concerns "unconscious" motives. Hie notion of being driven by the unconscious, of being a victim of unconscious conflicts and motivations, by now has a certain degree of general use in the layman's assessment of himself and others, as well as its extensive use in psychiatric discussions. This cluster of words and idioms centering around the word "unconscious" is easily conducive to suggesting that what is due to unconscious motives is not voluntary but compelled and irresistible.49 However the issues are at bottom no different here than in the preceding discussion. First we must recall the discussion in Part I of the nature of psychiatric concepts such as repression, defense, and unconscious. We saw that although the language is often borrowed from mechanics, the use is teleological. We saw that in effect the psychiatrist is observing and describing the person's comportment in terms of desires, fears, and aims, in terms of values, obligations, and prohibitions taken as bona fide by the person. Here, as in many other contexts already explored, we must beware of interpreting "unconscious" as referring to inner mental machinery, forces, or agencies that "drive" the person. As in the case of loss-of-control idioms, so also in the use of unconscious, no such machinery is observed or need be observed. Finally, we must ask what we do observe about a person when 49. Viz., "What [the law] wants to know is whether, in the case of the particular individual on trial, did the criminal action result from a voluntary, deliberate choice such as normal, reasonable persons appear to make in their daily lives, or was it the result of pathological forces arising far below the conscious level over which the defendant had little power of control" (Diamond, 1957, p. 29).

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we say he is motivated by unconscious wishes or fears, or has reasons of which he is unconscious for doing what he does? The answer, in its outlines at least, 50 is clear enough. When we say he is unconsciously motivated to do as he does, we mean that he has reasons for doing what he does, that he acts as he does in order to gratify his wishes or allay his anxieties; 51 but we also are emphasizing that he will not think explicitly about these reasons, wishes, or anxieties, nor will he admit them to himself, or acknowledge them as his, not even if the issue is pressed. But the fact that a person refuses to admit even to himself the reasons he has for doing what he is doing does not amount to absence of volition. On the contrary, it presupposes volition. The uses of these loss-of-self-control idioms are still more complex than I have indicated, and they vary from context to context. I certainly do not mean to imply that I have given a comprehensive, definitive, and precise account of the uses of these idioms. I have only wished to establish an orientation toward the sorts of facts and issues that are genuinely relevant to such uses. And I have wished to show that speculation about purported invisible inner mental processes is irrelevant to using and understanding the idiom. When we compare the use of this idiom in many everyday contexts with the use in the specific context of a criminal trial (where insanity is not at issue), the practical implications often turn out to be very different. In many an everyday situation, if we accept the loss-of-self-control characterization as apt, we then do feel justified in granting the appeal for tolerance implicit in the idiom; we ignore or at least excuse conduct that the person "couldn't help." We recognize it as an aberration, as untypical and even unworthy of the person, and —provided no substantial harmful consequences follow—we may agree to "forget" the matter. For when no great harm has been done, we are often interested more in the person and in his usual conduct than we are in an isolated and atypical act for itself. However, in the trial of a criminal charge, the situation is quite the reverse. The 50. See Fingarette, 1969, chapters 3, 4, 6. 51. Davidson, in his discussion of the psychology of the irresistible impulse and its unconscious motivations, is clear on this point when he says, "A person in the grip of a neurotic impulse does intend the crime. He intends to steal, or to expose himself or to set a fire" (1956, pp. 8 - 9 ) .

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criminal law trial process is concerned primarily with the act, not the person. A verdict of guilt or innocence is directed to the question whether the person did culpably perform the act; the law is precluded from excusing the person by virtue of a moral assessment of his personality and quality of life as a whole. True enough, in certain special kinds of cases, loss of self-control may occasionally become relevant during a criminal trial. For loss of self-control may entail the absence of some specific mental element essential to a specific crime. For example, use of loss-of-self-control idioms may amount to the plea that a killing was not done with deliberation and malice aforethought, and this in turn may amount to the claim that the crime was manslaughter rather than murder. Commonly, however, the claim that "I couldn't stop myself from doing what I did" amounts to the admission with a plea of mitigating circumstances of having committed a criminal act, for example, manslaughter, assault and battery, or criminal recklessness. We have up to this point examined the loss-of-self-control idiom as it is used where insanity is not at issue. The question now arises, what of loss of self-control by virtue of mental disease? Does this excuse from criminal responsibility (that is, should it count as criminal insanity)? If so, why and how? A traditional answer is, as we have seen, that where the offending act reflects loss of self-control due to mental disease this does preclude criminal responsibility. But the traditional assumption underlying this view is that the loss of self-control amounts to absence of volition, and that it is in essence this supposed absence of volition which then establishes absence of mens rea and precludes responsibility. Our discussion of the loss-of-self-control idioms, however, reveals that absence of volition is not implied. On the contrary, volition is admitted; duress, compulsion, or coercion are excluded; and usually the commission of a crime is, in effect, admitted. The conduct of an insane person may in some cases properly evoke use of the idioms of loss of self-control. But since loss of self-control does not establish absence of volition, since in itself it typically amounts to an admission of crime, it is clear that the exculpating character of insanity must lie elsewhere. For insanity does regularly and necessarily (by definition) exculpate. Where does this exculpatory power lie?

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In discussing the knowledge-of-wrong test earlier, we saw from examination of various paradigm cases which one would expect to fall within the scope of the knowledge test that the test is in fact irrelevant. We saw that, if a person knows what he is doing, he yet may be clearly insane; and that if he does not know what he is doing, he also may be insane. We saw that whether or not he knows his act to be contrary to law, or to public morality, or even to his own conscience, he may be plainly insane. We saw, in short, that any of these characterizations may happen to be descriptively apt, but that they are not of the essence so far as insanity and exculpation are concerned. The same is true, we can now see, with regard to loss of self-control. These loss-of-self-control idioms may be pertinent in one way or another in some cases of insane conduct. But they do not bring out what is central to our concept of insanity, and in themselves they provide no recognizable basis for legal exculpation. There is something else than all this that is central and that we have tacitly in mind when we think of insanity. Our only clue, though a vague one, is the distinctive and ever-present phrase in all insanity tests, mental disease. The issue of nonresponsibility is authentically introduced when we turn our attention away from the mere presence or absence of knowledge or volition, to something else about the way in which the person came to act as he did, something defective in the way he came to it, something to which we allude by using the phrase "mental disease." And the defect is such that he is rendered nonresponsible. This point is glimpsed vaguely in US v Currens in the course of the argument when it is said that "an 'insane' defendant commits the crime . . . because of mental illness [such] that he has lost the capacity to control his acts in the way that the normal individual can and does control them." 52 The court, however, proceeds in the very next paragraph to state the exact language it proposes to use as the test, and in doing so shifts to what is (unwittingly, I believe) a very different formulation: "the defendant, as a result of mental disease or defect, lacked substantial capacity to conform his conduct to the requirements of the law." 83 There is a crucial difference between saying a person lacks capacity to conform to law (that is, cannot conform to law) and saying that he does not control his conduct in the 52. US v Currens, p. 774. Emphasis added.

53. Ibid.

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way a normal person does. Our argument has been designed to show that the typical nonresponsible insane person can and does control his conduct, that he may on occasion choose to act in conformity with law and on occasion contrary to law, but that what is characteristic of his insanity and nonresponsibility is the way in which he comes to adopt one or another course of action. This "way" we allude to by saying that his conduct was due to mental disease. Before proceeding to positive proposals on the nature of mental disease, of the defective way in which the insane person decides what to do, it may be well to restate in summary form the principal specific conclusions of this section: We make a radical error if we try to assimilate the insanity plea to legal defense based on absence of volition, involuntariness, or compulsion. The idioms do suggest this by virtue of the metaphors inherent in them. But these idioms employ these metaphors for purposes alien to those of a criminal trial. They normally amount to admissions of responsibility with respect to the act for which the person is called on the carpet, and they amount at the same time to emphatic pleas to view the person with compassion in the light of the compensating quality of his total character and conduct aside from the act in question. The attempt to make the idioms relevant to a plea based on absence of mens rea by virtue of absence of volition results in forcing a radical shift of meaning of the idiom. This shift is made possible by a literalistic elaboration of the metaphors. A pseudopsychology emerges which at least verbally seems to pertain to involuntariness, but which is empty of empirical content and stultifies intelligent inquiry into the issues. We must now turn from emphasizing a legally nonessential feature of conduct, whether the person lost self-control or not, to a study of what is legally of the essence—some feature of conduct vaguely alluded to by the phrase "mental disease."

The Legal Concept of Insanity: A Formulation

CONDITIONS TO BE SATISFIED BY A CORRECT ANALYSIS OF INSANITY

By a circuitous route we have arrived at a position reminiscent of Durham. The route and the reasons are, of course, very difierent in most respects from those of the Durham decision. However, the upshot is that in both cases we hold that the heart (though not the entirety) of the insanity plea is contained in the notion of mental disease rather than in any specific consequences or symptoms of the disease. Without reviewing here the faults of the Durham decision and its sequelae, let us concentrate on one central problem of immediate relevance. The errors of the authors of Durham and sequelae have been, so to speak, errors of omission: they never properly and directly faced the question of the rationale of the insanity plea. For this reason they wavered in their statements on the logical role of the concept of mental disease. Initially they did not make explicit—for they did not clearly understand—whether mental disease was a medical or legal concept. They failed, furthermore, to provide any definition of the term until, at last forced to do so, they proposed a definition that evaded the central issues where it did not simply re173

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turn to obvious variants on the traditional, pie-Durham insanity tests. Thus, the role and meaning of mental disease have remained obscure even in the formula that relies most centrally on this notion. The critics of Durham have been right in insisting, in substance, that it is not enough merely to substitute the phrase "mental disease" for "insanity," that we must have an explicit and adequate understanding of what the phrase means, its logical status as medical or legal, and the rationale on the basis of which it exculpates from criminal responsibility.1 The error of the critics has been error of commission: they have supposed that the solution to these problems lay in modernizing the language of the insanity tests, and in continuing to emphasize one or another version of the ignorance and involuntariness clauses of the other commonly used tests. I would like to attempt in this chapter to satisfy the requirement for a definition of mental disease, to show explicitly its legal role and the rationale for its exculpating character in law, and to avoid both the errors of omission and those of commission mentioned above. As a framework within which to evaluate the solution that I propose, I set forth in capsule form below a set of conditions I think such a solution ought to fulfill. These conditions are drawn from the results of the preceding discussions and from the general criteria governing this inquiry in toto. Essentially, we seek an account that will not only express traditional common usage but that will also help make more intelligible actual legal usage and the main legal controversies concerning the meaning of the insanity plea. In short, I seek to isolate the meaning underlying our everyday and our legal use of the term "insanity"—something I think has not been correctly done before this. 1. The analysis of insanity here presented should coincide with our intuitive understanding of the term, especially in the context of criminality. Marks of this would be (a) that paradigm cases of criminal insanity are discriminated readily as such, and (b) that common language characterizing insanity should be incorporated into or be clearly congruent with the account proposed. 1. See, for example, the opinion in US v Currens, which states, in the course of moving in the direction of the ALI Model Penal Code: "Our second objective is, therefore, to verbalize the relationship between mental disease and the concept of 'guilty mind' " (p. 773).

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2. Our proposed definition of insanity should designate a condition that is readily and aptly associated with such phrases as "mental disease," "mental illness," "mental derangement," and "mental disorder." 3. The condition must be such that it is obviously the case that, insofar as the person suffers from the condition, he does not have responsibility status. It must be evident that, insofar as there is insanity, it would be inappropriate to make positive moral judgments of guilt or innocence. 4. Although not done by a responsible agent, the offending act of the criminally insane as here defined should characteristically have been self-initiated, voluntary, at least rudimentarily coordinated as a means toward some aim desired by the person. It should be conduct and not convulsive or reflex or other physical motion not subject to will. 5. Although it should usually be possible to say perfectly straightforwardly that the criminally insane person knew what he was doing and that he did it voluntarily, it should also be apparent that in many of these same cases one might also feel it appropriate to say that "in some sense" the person did not have control of himself, or that in some vague broader sense he did not really know, or did not truly appreciate what he was doing or its wrongness. 6. While the definition may not be as clear and precise as we should ideally prefer, it should in any case be essentially the actual definition that people have tacitly in mind in speaking of criminal insanity. I shall begin by sketching in quickly, directly, and informally the main orientation that will guide the analysis. Gradually we shall move to more systematic examination of specific issues. INSANITY AND IRRATIONALITY: PRELIMINARY SUGGESTIONS

We say of a person who is insane that he is irrational.2 When he manifests his insanity in his conduct, it is natural to speak of his 2. Zilboorg stated that "irrationality is still accepted as a criterion of severe mental illness" (1941, p. 184). A. Goldstein implies a similar point in saying, "the swings between rationality and irrationality can perhaps be understood

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conduct as irrational. A n insane person has "lost his reason." 3 Hadfield was a man who wished to be put to death, as a scandal to his society, in order to play his God-ordained role as the new Christ. H e was an irrational man. His attempt to assassinate the king was well thought out, but it was an irrational act. The psychotic mother, agonizingly depressed, feeling that the world was filled with suffering and sin, tortured by the conviction that her child faced a life of nothing but suffering and sin, skillfully arranged matters so that she could undisturbedly put her infant to a relatively quick and painless death. She was irrational. Her mood and attitude were irrational. Her act was irrational. She had indeed lost her reason. Her conduct, however, was self-initiated, voluntary, skillfully carried out toward the clearly conceived end she had in mind. 4 One could say, idiomatically, that the mother was in the grip of an irrational mood and that she could not help what she was doing. One could say of Hadfield that he did not really understand his act, better if we bear in mind that psychoses are sometimes acute and sometimes in remission" (1967, p. 29). Hall recommends a broader interpretation of the M'Naghten rule which would in effect take into account the volitional and affective aspects of mind, but he recommends that such amended rules should continue the present emphasis on irrationality as the principal criterion of insanity" (1945, p. 717). He speaks of M'Naghten (defending it) as saying: "to be insane is to be irrational" (1956, p. 918). See further comments and definitions in this connection in various notes below. Silving (1967, p. 106) cites a German jurist, Seelig, as proposing a test of "capacity to act in accordance with rational motivation." And the report of the American Bar Foundation states that any definition of criminal irresponsibility "should be premised on the rationality of man and retain irrationality as a minimum criterion of insanity" (1961, p. 336). 3. In the earliest English reports on the issue of insanity (see, generally, Hall, 1945; "Lunacy and Idiocy," 1951; Diamond, 1962; Piatt, 1965; Piatt and Diamond, 1966), we find, for example, Bracton speaking of those who "are lacking in mind and reason," and Hale speaking of those who "act not as reasonable creatures" (Hall, 1945, p. 689). Cockburn in M'Naghten's Case refers to "that disease . . . which deprives men of reason" (Keeton, 1961, p. 86). 4. Silving says clearly on this point what we have already argued at length earlier: "Is it really true that a person who in a state of melancholia kills his children because he believes that he is thus sparing them future suffering lacks either capacity to appreciate the legal prohibition against killing or capacity to conform his conduct to this requirement of law? Such person knows that killing is a crime and has sufficient self-control to resist a temptation to kill" (Silving, 1967, p. 101).

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that he did not truly appreciate the wrongness of it. Then we might elaborate and go on to say that the mother could not help what she was doing because she was irrational, and that Hadfield did not really know what he was doing because he was irrational. However, this "because" must not confuse us. For the loss of reason is not a "cause" of the loss of self-control or the lack of true understanding. Rather, loss of self-control and lack of true understanding are idiomatic ways of characterizing the way in which these individuals manifested their irrationality. "She could not control herself" is an idiom stressing that the irrationality shows itself most dramatically in the motive, the emotion and purpose of the person; "he doesn't truly understand how wrong his action is" is an idiom stressing that the irrationality is most apparent in connection with his beliefs and attitudes. Fish,6 the complacently habitual child killer and child eater, was found sane under a traditional insanity test, but he was in fact a very paradigm of insanity. His emotional reactions and desires were in some respects so distorted that he had not the capacity to act rationally insofar as these came into play. However, his intellectual and perceptual capacities were not ever substantially impaired, nor was he, apparently, dominated by depressed or manic moods. When he ate children or stuck sharp objects into his body, he knew what he was doing, and he knew—as his actions showed—that what he was doing was contrary to law and public morality. He acted voluntarily, entirely on his own, and deliberately. Under M'Naghten, Davis, or the Model Penal Code formula, Fish was sane. He knew what he was doing, had the capacity to conform to law, but of his own volition did what he knew was contrary to law. The standard tests fail, then, for they imply he was sane. Yet we do not strain language at all, indeed it is exactly apt, to say that his conduct was grossly irrational. And it is this notion that is the ground of our intuitive but very clear perception that he is insane. In a more archaic form of idiom, we might say that in these individuals, "Reason has been dethroned"; 6 but we would not be referring to intellectual defect. In all of these individuals the intellect 5. Cf., Wertham, 1949. 6. Reik, 1953, cites a comment in an article of 1876 by Isaac Ray: "How can we speak of intact judgment and reason [in the face of phenomena that] dethrone reason" (p. 184).

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is largely intact, and for the most part it functions appropriately to guide and inform their conduct. The classic M'Naghten decision specified that there must be a defect of reason. This phrase was dropped as the years went by, no doubt because it seemed to many to be a redundancy. For it can seem to be a highly general reference to what is again said more specifically in the further M'Naghten requirement that the person "not know the nature and quality of his act or, if he did, that it was wrong." If, however, we give the high judges of England the benefit of the doubt and assume that in their joint opinion, especially in its most crucial sentences, they were not indulging in rhetorical redundance, then we may suppose that the phrase "defect of reason" had some distinctive meaning of its own in their minds. I believe that what the judges had in mind by "defect of reason" was what we also have in mind when we speak, in the context of insanity, of "losing one's reason," of being irrational, of reason dethroned. They appreciated, as we all do in practice, that lack of capacity for rationality impairs responsibility. I shall shortly bring out in more explicit detail why this is so. In general to say that a person has lost his reason is to say that there is something "mad" about the way he conducts himself. It may be that the madness in his conduct is distinguished mainly by an irrational mood which we see as permeating and dominating what he does; or it may be madness that has as its most distinctive characteristic certain delusory beliefs or hallucinatory perceptions; or it may be a madness that grows out of such a "flatness" of emotional response, so little "human feeling" or capacity to sympathize or empathize with others, or such perverse desires and tastes, that the person cannot rationally assess the significance of what he is doing. However, "irrational" and "insane" are not synonyms. It is not true that anyone who acts irrationally is insane. But the converse is true: anyone who is insane is irrational; and insane conduct is irrational conduct. When we say of someone that he has lost his reason, we are usually either saying that he is insane, or else we are using the idiom as hyperbole in connection with conduct that is irrational. In the latter use, we may say of someone who does something irrational, "He's insane to do that!" meaning thereby rhetorically to emphasize the irrationality of his conduct rather than to characterize the

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person as straightforwardly and literally insane. The emphasis comes not only because insanity implies irrationality, but also because irrationality associated with insanity is a deeper, more radical kind of irrationality. We shall have to explore more fully just what are the further conditions necessary to establish insanity in addition to mere irrationality; and we shall have to isolate, finally, the precise conditions that suffice to constitute the specific insanity that is criminal insanity. But for the moment we shall focus our efforts on irrationality itself. We need to become more precise and more clear about what it is and what it is not; and we need to unravel the conceptual tangles created by the fact that the word "irrational" is used in a number of very different senses. THE MEANING OF "RATIONAL" IN THE CONTEXT OF INSANITY

The word "rational" and its variants ("irrational," "rationality") are used in a variety of senses. To bring out this fact, I shall remark on a few different common meanings. But a comprehensive discussion of the many uses of this family of terms is both beyond the scope of this study and also unnecessary for our purposes. Mainly our task is to recognize that there are a variety of uses, a i d then to identify and become adequately clear about the particular use of "rational" that is central to the concept of insanity. "Rational" can be used to refer specifically to intellect or to intellectuality.7 In this sense, we might say, for example, "He has a 7. "The McNaughten Rule asserts that responsibility is a function of the intellect: Reason is aligned with responsibility. . . . The key to the determination hinges on an evaluation of the 'intellect'" (Leifer, 1964, p. 825). Livermore and Meehl say that, "From the psychologists' viewpoint, the noun 'reason' refers to certain psychological functions, held together by virtue of a conceptual unity. This unity lies in the fact that, in carrying out any of these functions adequately, inference takes place. That is, some sort of mental transition occurs between one mental content and another where there is a rational or logical relation between the contents justifying the inferential step. . . . In psychologese, then, a defect in reason would be a defect in the class of mental functions involved in performing psychological transitions between mental contents on the basis of a logical relation between them" (1967, pp. 800-801).

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very rational type of mind—cold and objective, fair but unfeeling." "Rational" can also be used without any nuance of "intellectuality" to mean something akin to "prudent" or "sensible": "He was a simple but sensible man, neither lavish nor stinting, taking account of the demands on his resources, and generally behaving quite rationally." "Rational" can be used to mean "wise" or "exceptionally intelligent": "We are not dealing here with the average man, but with exceptionally rational men, men whom we can depend on to probe deeply and to see far." Webster offers among many quasi synonyms of rational: "understanding," "based upon reason," "intelligent," "sensible," "reasonable," "logical." Webster also offers as a synonym of "rational" the word "sane." In connection with the antonym, "irrational," Webster lists appropriately contrary terms. In addition we are offered some further meanings that are of particular interest to us. In connection with the definition of irrational we find explicit reference not only to terms that might be interpreted as referring to intellect, but also explicit reference to conduct, emotion, and attitude. The irrational is that "which is not in accordance with reason, in its relation to practical affairs." The irrational is that which is "extravagant" or "excessive," as "a panic and irrational fear." The irrational may consist in "obstinate and unreasonable pertinacity" [italics in original]. It is when "rational" and "irrational" pertain to conduct, to the practical, and when they can be used to characterize not only intellect but also the emotions, attitudes, desires, and the person himself, that we have a use which is central to the concept of insanity.8 8. Among comments in the literature of law and forensic psychiatry we find examples such as the following which aim to stress the inclusion of the "control" element under "reason" and not just the intellectual or cognitive. Perhaps most currently relevant are the remarks of James, in her studies of mock juries applying the various insanity tests used in law today (what she is talking about is the concept of rational conduct, but she slides occasionally to the use of "cognition," which she apparently thinks of as a general and more technical term for the same thing—a common and fatally confusing error in this context): "sane behavior is differentiated thy the jurors] from insane behavior by the defendant's ability to act rationally and to commit legally proscribed acts in which personal gain might be a consideration. . . . With the jurors' criterion of insanity so dependent on cognition it is not surprising that the

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Consideration of the related word, "reason," brings this out further. We expect, of course, that Webster will set out one meaning of reason which emphasizes terms such as "intelligence," "the cognitive faculty," and the "intellectual powers." But in a separate and distinct definition, the word "reason" is explained as having a more global meaning: "A sane or sound mind . . . sanity." "Reason" is, according to Webster, "that guiding or directing faculty of the mind by discussions in the deliberations relevant to instructions are similar for both groups. The particular phrasing of the legal formulation does not appear to interfere with preconceived beliefs that the criminal who is insane cannot plan or carry out seemingly rational but legally proscribed acts" (p. 69). Going back to usage at the time of the M'Naghten opinion, we find Shelford expanding on "loss of reason" by offering illustrations in which feeling, emotion, attitude, and conduct predominate: "Of all the afflictions to which human nature is subject, the loss of reason is at once the most calamitous and interesting, and the most distressing in its consequences on social happiness, of any to which mankind is subject. . . . His thoughts and actions are diverted from their usual and natural course. The chain which connected his ideas in series and mutual subserviency, is severed. His feelings for himself and others are new and uncommon. His attachments are converted into aversions, and his love into hatred. The affections which dignify the human character are weakened or abolished by insanity; which is frequently shewn not only by a mere state of apathy towards those who formerly claimed the tenderest regards, but often an implacable hatred, or rancorous hostility, is kindled against the ties of consanguinity or the objects of friendship. Viewed through this morbid medium, the dearest friends appear as enemies, the offspring seeks to kill the author of his being, the parent meditates the destruction of his child" (1833, p. xxviii). Speaking of changing "M'Naghten's description of rational conduct by the addition of a third clause to the incapacity test," Mueller adds that "The power to control one's behavior should be regarded as an ingredient of rational action, not as something additional" (1961, p. 107). Hall insists that in the early Oxford's case "there can be no doubt on any reading of Denman's opinion that 'the power of controlling himself' is equated with or subsumed under the possession or power of reason" (1945, p. 701). In Gregg Cartage and Storage v US, pp. 79-80, it is said that, "Whatever doubts [theologians, philosophers, and scientists] have entertained as to the matter, the practical business of government and administration of the law is obliged to proceed on more or less rough and ready judgements based on the assumption that mature and rational persons are in control of their own conduct." The report of the American Bar Foundation repeatedly uses, as central to the issue of responsibility, the phrase "rational choice" (1961, pp. 330, 331). And see also the dictionary definitions cited below from Webster.

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virtue of which men are distinguished from the lower animals." It is in this sense that man has traditionally been said to be a "rational being." It is reason as the "guiding faculty of the mind" that gives rise to the concept of "practical reason." Defining "insane," Webster tells us that the word "implies . . . irrationality." As antonyms to "insane" the dictionary lists "sane, rational. . . ." As an antonym of "insanity," we are given both "sanity" and "reason." Finally, to complete our inventory, we find that "sane" is defined as "possessing a rational mind," "acting rationally," "rational." As we might expect, an antonym of "sane" is "irrational." I mention these definitions because I shall emphasize that, where there is insanity, one may also properly speak of irrationality. And I shall also stress that "irrational" need not refer only to defect of intellect but may refer to such other aspects of mind as emotion, attitude, and desires or to the conduct in which all these issue forth. I have wanted to show that in stressing these usages I am not inventing, misdescribing, or stretching language. I am emphasizing a current usage that is also traditional, a usage that is central and proper. When we speak of man as the "rational animal" or as a "rational being," we are going to the heart of the use of "rational" in which it is the case that where rationality is lacking, responsibility status is lacking.9 We do not hold animals responsible. Nor do we hold 9. "[T]he belief in the over-riding importance of man's rationality may not unfairly be regarded as one of the most powerful elements in the thought of what is known as Western civilisation. . . . ('Man is a rational animal'; not that man always behaves rationally—it is only too obvious that he does not— but that he can behave rationally, and that in doing so he behaves in a distinctively human way.) The concept of reason has therefore often been taken as the key, not merely to man's thinking in a narrow sense, i.e., to what are sometimes called his cognitive capacities, but also to his actions, and, though less frequently, to his ability to create and appreciate beautiful things" (Kemp, 1964, p. 1). Cf. generally, Murphy's The Theory of Practical Reason (1965). It is perhaps worth emphasizing that there is a pervasive tendency in psychiatric and legal literature to slide from "rational" to "cognitive" as if they were equivalent. They are not. As I try to bring out in this chapter, "rational" is a much broader term in traditional usage; "cognitive" is a relatively narrow term favored in psychological theory. The shift from the broad word "rational" to the narrow word "cognitive" purchases pseudoscientific respectability for discussions of M'Naghten while at the same time laying the test wide open to

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children responsible. In the case of animals, which in no case are presumed to have reason, we never accord responsibility status. (If we fancy, or imagine, or actually believe that an animal possesses reason, is rational, we are then prepared, to that extent, to treat it as a responsible agent. In fairy tales we do just this. And some people take this view of their pets.) In the case of children, who in the normal course of affairs gradually grow up into the age of reason, we gradually ascribe responsibility. In doing this, we are not merely concerned with the increasing intellectual competence of the young person, though that is a big factor. Intellect must be related to feeling, emotion, empathy, to certain basic values and attitudes, to an awareness of moral and other kinds of obligation, to some minimally appropriate pattern of mood and of desire, to minimal social and physical skills. The child's intellectual competence may race ahead of all the rest at times. We recognize this and see that he is not yet responsible. But when we feel that in a certain area he is at last competent to act rationally, not merely to show intellectual competence, we do hold him to be responsible in that area. In order to get away from the grave confusions inherent in reifying Reason, in thinking of the faculty of reason as a distinct and autonomous agency and one that is essentially the agency of the intellectual powers, we must emphasize the concept of rational conduct. Conduct is insane, crazy, mad, irrational when it is not shaped in the light of certain norms. These norms are not only norms of correct inference or valid argument; they are norms regarding what emotions, or moods, or attitudes, or desires are in some sense suitable or proper with respect to certain other aspects of one's situation. Clearly there is much room for variety here, for individuality and even idiosyncrasy. But there are limits. These are the limits that distinguish the irrational and unintelligible from the rational. We can note here, for example, that we would say it is irrational, its most common criticism—that it is restricted to the purely intellectual faculties. Even so astute a commentator as Jerome Hall easily slides from one term to the other: "The difficulty of proceeding on the assumption that psychosis is compatible with concomitant normal cognitive functions becomes apparent as soon as one tries to talk about emotions, drives or behavior in ways that are socially and legally significant without covertly taking account of rationality" (1966, p. 12; emphasis added).

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in the sense that concerns us, to giggle or chuckle pleasedly at the sight of a mangled human body, to feel pleasure at the death of a loved one, to feel gloomy upon succeeding in an important venture, to step nonchalantly and knowingly in front of a racing train, to desire to maim oneself. Of course one can, with more or less effort, conceive special circumstances that would make any such actions rational rather than irrational—though still, perhaps, unwise, imprudent, or immoral. For example, if we suppose that the "loved one" was so in name only and was in fact an oppressive burden, then the pleasure is not a mark of irrationality, though it might still be evidence of inhumanity and selfishness. But not anything at all will count as a rational basis for pleasure in such circumstances. "I like funerals," for example, would hardly do, and a dazed uncomprehension of our questioning such pleasure would strongly suggest gross irrationality (psychosis).10 In this basic sense of rationality, what is less than rationality amounts to the breakdown of human intercourse. It is in this breakdown that we have the context of insanity. I have tried up to this point to bring out the relevance of rationality to insanity and responsibility by using a combination of informal discussion, illustration, and dictionary reference. Unfortunately, there does not exist an adequate, systematic and comprehensive analysis of the concept of rationality, though there have been studies of one aspect or another. It would be desirable to have a reasonably complete understanding of the concept, but it is not necessary for our purposes here. It will serve our main purpose if we can arrive at sufficient systematic understanding to see why rationality is essential to responsibility, and to see how irrationality is in principle to be identified. The preceding preliminary discussion of the meaning of the term "rational" and its cognates revealed that there is a range of usage rather than a single, unambiguous one. Therefore, our task here is not to find the "one, true meaning" of the term, but to identify more explicitly that particular usage which is central to such concepts as responsibility and insanity. We can rapidly bring this into focus by running through an illustrative sequence of differing usages ranging from what I will call a strong sense through to the very weakest sense. 10. With respect to psychiatric explanations of irrational conduct, see the discussion on pp. 193-194, below.

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It is the weakest sense, incidentally, that will turn out to have been our quarry. In perhaps its strongest sense, "rational" implies proof, demonstrability, status as that which is established beyond doubt. In a somewhat less strong but perhaps more common usage, rational implies what is sound, sensible, wise, judicious, well thought-out; but it does not imply the claim of absolute demonstrability. Both these strong senses are sufficiently obvious and sufficiently far from our main concern to call for no further comment here. In a weaker sense than either of the above, the ascription "rational" may be consistent with an absence of good reasons, or absence of much reason at all, for acting in a certain way. In this usage, even foolish conduct may be rational conduct, that is, not irrational, insane. For example, Jones is a rather unintelligent person, not much given to thoughtful reflection, and concerned more with his needs and wishes of the day or week rather than great ventures spanning long periods. When Jones makes an extra few dollars on an overtime job, he is usually off to the races, hoping at least to win, perhaps some day to make a killing. We may think of him with tolerance or with scorn as simpleminded, foolish. But we would hardly argue that in living this way he shows he is irrational—where "irrational" is intended to suggest craziness, bizarreness, being "out of his mind." We acknowledge that he has his reasons and though they be few or poor reasons, even this paucity of reason, in the context, precludes saying he is irrational, out of his mind. But even having some reasons is not always necessary, in every usage, for precluding the ascription of irrationality. There is a usage in which action for no reason at all still permits the ascription of rationality. In this very weak sense of rational, we can say that Jones, in the following illustrative situation, is acting rationally, that is, not irrationally, crazily. Jones, let us imagine, is strolling idly through the woods on a gentle summer's day, enjoying the sun, the air, the natural setting. With no thought in mind, hardly heeding what he does, he leans down, picks up a rock from the ground, hefts it casually, and then, with a snap, throws it into the woods. If we grant that Jones' action is action for no reason, without a purpose, we might call it mindless, meaningless, even—in a more pedantic mood—nonrational. But we would not agree or would find

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it odd, if someone were to point meaningfully at Jones and say, "That man is behaving irrationally!" What is it that we are denying here when we deny in this last illustration that Jones' conduct is irrational? We deny there is something crazy, bizarre, odd, insane. What would the irrationality be which is implied in the concept of insanity? What more does it take, beyond acting for no reason (or for poor reasons), to justify the ascription of that kind of irrationality which is distinctive in insanity? In short, what would have to be the case before we could allow at last that Jones had lost his reason? A few variations on our illustration will help bring out the answer to our questions. Just as Jones is about to throw the rock into the woods, Smith suddenly appears out of the bushes directly in the line of fire. Jones sees Smith and refrains from throwing the rock (or he throws it in quite another direction). Here Jones' conduct is rational still. Why? As we supposed in the original version of our story, Jones had no particular reason or purpose in doing what he did. But in the situation with Smith suddenly appearing, certain physical aspects of the situation—the potential impact of the rock—and certain new interpersonal, moral, and even legal implications—the harm, the suffering, the wrongness and criminality of the harm if committed purposely—all emerge as relevant to what Jones is about to do. These implications are not merely possibly relevant; their relevance is not peripheral or subtle. This is all obvious, demanding, rudimentary, plain. I shall speak of such relevance as essential relevance. Jones clearly responds to these newly emerging essential relevancies in a relevant way. It is Jones' response which assures us that he is rational (hasn't lost his reason). Moreover, it is this that strengthens our judgment about the earlier version, when Smith had not appeared, that Jones was then rational even though he was then acting without reason or purpose. It is now evident that we tacitly (and rightly) assumed that if there were anything essentially relevant to what he was doing, he would respond—as indeed we see that in the second case he does. Even in the case of his race betting we saw that he responded relevantly, though foolishly, to his circumstances. It is this responsiveness to essential relevance which, in the last analysis, constitutes the root notion, though not the entire meaning,

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in the concept of responsibility. But we move too fast and we must explore the issues somewhat more fully. The distinctive force of this capsule formula—responding relevantly to essential relevance—becomes more evident if we construct a third version of our illustrative situation. In our third version, Jones sees Smith, pauses momentarily in mid-throw, recognizes Smith as an old enemy of his, then, with an almost invisible but malicious grin, completes the throw directly at Smith, subsequently apologizing for having seen Smith too late to stop the throw. In such a case we make a significant point by saying that, far from having lost his reason, Jones has been quite rational—but malicious. The point of introducing the case of the rational but malicious Jones is to show that a malicious response is as much a relevant response as is a morally just response. Jones' relevant (and malicious) response is to prefer Smith's suffering to Smith's welfare and enjoyment of his moral rights. What would failure to respond relevantly to essential relevance be? And why would it be a status tending to preclude moral judgments? We shall now suppose that Jones does not apprehend how his throwing the rock is relevant to the potential injury of the person in front of him; Jones happens to be drunk, too drunk to grasp even the physical implications of what he is doing. Jones perceives Smith, throws the rock, gazes—startled and bewildered—as Smith sinks to the ground. Jones slowly looks around, drunkenly shrugs his shoulders in glazed puzzlement, and staggers away. Jones failed to respond, was in fact unable to respond because of his mental state, to the relevant physical consequences of his act. Jones was in this respect acting irrationally. He did indeed act crazily, as one who was "out of his mind" (though this would not be the same as saying he was literally insane or mentally diseased). Moreover, as a result of his incapacity to respond to the physical relevance of what he saw and as a result of his intoxicated condition generally, he was incapable of responding to the relevant personal, moral, and legal aspects of the situation. In short, Jones' response-ability was plainly impaired. (Of course, in our overall judgment of him we may have to consider the fact that when he began to drink himself into

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this state he was then able to respond to such relevant aspects of his conduct as the potential for just this sort of dangerous mental state. This original responsiveness inclines us to hold him responsible. This is not the place to take up directly the legal issues in such complex cases; it is enough to note here that judgments of responsibility are centrally concerned with responsiveness to relevance.) Let us turn briefly to another version of the story of Jones. In our new hypothetical situation Jones is fully responsive to the relevance of the physical implications of what he is about to do. But he is incapable of responding to the relevant emotional-moral aspects of the situation and of his conduct. Jones, in our present version of the story, is a schizophrenic psychotic. He seems able to carry on physically and practically to a fair degree and is ambulatory, but (to a degree not fully appreciated by his protective family) he is emotionally flat and does not respond to the relevance of human suffering. It's not that he enjoys seeing suffering; he just has no capacity to react. The suffering of others, in its immediate emotional-moral relevance, is beyond his ken. It is an observable fact to Jones that Smith will be injured, but it has no emotional or moral relevance, and he cannot respond to it as such, so he throws the rock, since Smith suddenly makes a perfect target. Jones can talk about these matters to some degree and give correct answers; he can talk correctly about the legal proscriptions and the prospect of punishment; and in fact he does steal away secretly, after having injured Smith, in order to escape punishment. Thus, Jones can and does respond relevantly to the prospect of his own discomfort and to the existence of legal prohibitions. What shall we say about Jones? Insofar as humane, emotional, moral features of a situation are relevant to his conduct, Jones is irrational. In these dimensions he is not responsive to relevance, not able to respond. However, insofar as the existence of a legal rule, enforceable by sanctions, is concerned, he sees the relation of the rule to what he is doing—not the moral relation but the pragmatic fact that the "police" punish such acts. To the extent that he shows he is able to respond relevantly we are inclined to hold him responsible under law. People like Jones have been hard cases for the law of criminal insanity. The question we must briefly face here, but will not definitely re-

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solve, is, What attitude should the law take to Jones on the whole? Is the criminal law merely a rule-plus-sanctions, an expression of state power, with no necessary relation to morality? If we think so, then Jones is responsible to the law. However, if we think of the criminal law (mala in se) as rule (plus sanctions) whose basic thrust acquires its force and meaning by virtue of expressing, however imperfectly, essential and fundamental aspects of the moral conscience of the community, then the Jones case is more complex. If the meaning of law is at bottom rooted in moral meaning, then genuine responsiveness to law requires genuine responsiveness to moral meaning, to moral relevance which is plain and pressing, as in the case of throwing the rock at Smith. I do not wish to argue the issue exhaustively here, but I do believe that the conceptual distinction now introduced can help to disentangle some perennially knotty debates along the above lines. Moreover, I believe that the proper approach to the issues is to acknowledge that criminal law is in some fundamental sense an expression of community moral conscience, and that one who is genuinely incapable of responding at least to rudimentary moral issues cannot be a fit agent under that law. The professional criminal who is not insane can respond to human-moral issues and to the law viewed as rooted in moral meaning. His relevant but criminal response is an income-oriented flouting of the law. But a person like Jones is incapable of flouting the law, if we think of law as rooted in moral meaning, since he is blind to the morally relevant dimension of law, blind to what law really means. But he can disobey what to him must remain inherently arbitrary social rules. He may be restrained or deterred by threats of sanctions or by physical control, but this is neither responsiveness to law nor responsibility under law. It is mere control by fear or actual force—sheer power, to his mind. In the preceding, we have in effect been discussing irrationality and nonresponsibility as they relate to clouded mental states and to emotional-moral impairments. Let us turn to irrationality in the volitional sphere. We shall now suppose that Jones is a heroin addict, at the moment in the throes of intense withdrawal symptoms and in a state, therefore, of desperate craving for heroin and, hence, of desperate need for some ready cash. Jones does apprehend the physically, emotionally,

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morally, and legally relevant aspects of his situation and of what he is about to do (assault Smith). Although he sees their relevance and groans inwardly, he finds that he cannot respond relevantly to these. He is uncontrollably animal-like in his assault; considerations of humanity can play no part in what he does. The physical quest to grab Smith's money is the sole relevant factor to which his behavior is responsive. Suppose someone were to hold—on philosophical, psychological, or other grounds—that genuine loss of "freedom of will" in this respect is not possible. Our answer here would not be to argue the issue, but only to point out that this freewill postulate amounts to claiming that Jones always can respond relevantly to the relevant human-moral-legal aspects of his conduct, and that he elects not to show any concern for Smith's moral and legal rights. In short, selfcontrol requires the capacity to respond relevantly: if we admit the possibility of loss of self-control, we admit the possibility of incapacity to respond relevantly; whereas if we deny the possibility of genuine loss of self-control, we are denying the possibility of genuine incapacity to respond relevantly to what is apprehended as relevant. Given the circumstances as described, Jones must be judged to be acting irrationally; he has lost control over himself and in this respect has lost his reason. In terms of our formulation, he is incapable of responding to certain aspects of his situation and conduct that have essential relevance—the suffering and the moral and legal rights of Smith. If this is indeed so, he is insofar not responsible. (This does not answer the more specific question whether he is not responsible under criminal law. The latter is a question we shall take up when we turn shortly to the distinctions among irrationality, insanity, and criminal insanity.) A final version of our adventures of Jones: Jones is suffering from the delusion that he is being pursued and persecuted, and is the object of systematic attempts at assassination. He sees Smith appear in the bushes. He instantly and violently throws the rock at him. What is it that leads us to characterize Jones as deluded rather than, as in an earlier version of our story, malicious? It is that, from prior observation or knowledge of Jones, we have concluded that his belief is unaffected by relevant evidence or argument; that is, he responds relevantly to that which is consistent with his deluded belief,

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but he does not and cannot genuinely respond relevantly to anything pointing to the falsity of that belief. If we believed Jones genuinely considered and took into account what was relevant, we would view him as mistaken or stubborn. But the gross discrepancy between the belief he holds and the relevant facts as we see them, and the fanatic character of his belief in the face of everything, lead us to conclude that in this connection he is incapable of rationality, not merely a dedicated or stubborn man who is in error. When we know that a person cannot respond relevantly to what is essentially relevant in some important context of activity, we may protect ourselves by placing some control over him in that context: a parent's control over his child is based on the child's nonresponsibility, on his incapacity to respond relevantly. As the child's capacity to respond relevantly grows, to that extent (ideally) the parent acknowledges his responsibility. However, since a child is not expected normally to be rational, but is expected normally to grow into rationality, we are not likely to equate the normal nonresponsibility of the child with irrationality. We typically reserve the appellation "irrational" for those who would normally be rational but have lost their reason. Irrational thus has inherent implication of pathology, aberration from the normal. The adult, in his relations with other adults, normally presumes rationality and does not think explicitly of the issue, but he is alert to the possibility of its absence once he notices apparently senseless aberrations in conduct, departures from fundamental norms that mark more than mere differences of opinion or taste, or mere error or carelessness, departures that suggest blindness to norms. Less metaphorically stated, what is noticed is incapacity to respond relevantly in some essential respect. Where there is irrationality there is a certain kind of unreliability. This is not the unreliability of the deceiving or the immoral person, nor is it the unreliability of mere inadequacy of skill, lack of care, or lack of dedication. The sense of rational and irrational that is relevant is the sense in which it contrasts with such categories. If a person walks about in a shop knocking things over, one may assess this as clumsiness, or carelessness, or maliciousness; but one excludes these

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characterizations by saying, for instance, "No, you mustn't think of this in such terms as clumsiness, carelessness, or maliciousness; you see, the man is irrational." Thus, "irrational" in this use amounts to a rejection of descriptions in any of the familiar normative and judgmental terms which presuppose that the conduct is intelligible, relevant to relevant norms. Irrationality is not properly to be thought of as just one more category in terms of which to make conduct intelligible or to assess intelligible conduct; it is the absence of any such category. What is distinctive about irrational conduct is that it has so many of the features of purposeful human action that we do readily call it conduct rather than mere physical motion; that, as conduct, it still lacks some element essential to intelligibility.11 11. The fundamental character of the abnormality of irrational conduct is implicit in comments such as A. Goldstein's (1967): "These presumptions [of the theory of objective liability] may endow the defendant with characteristics which are not his at all. They posit as the normal man a 'reasonable man," who responds within predictable limits to the situations served up by his environment" (p. 17). "The insanity defense marks the transition from the adequate man the law demands to the inadequate man he may be" (p. 18). "More than any other subgroup within the class of mentally ill, the psychotic may be able to present symptoms sufficiently bizarre to enable the jury to give up its retributive impulses and to make it willing to spare him the role of deterrent symbol. H e comes closest to the lay conception of serious mental disorder and finds the jury more prepared to set him off from the 'reasonable' men with whom the law is principally concerned" (p. 24; emphasis added). Star (1955), in her summary of her studies of the public attitudes and ideas about mental illness, has the following summary comments to make: "The significant thing about all these explanations [in terms of mental illness], as well as other kinds which attribute problematic behavior to willful misconduct or to physical illness, is that they represent people's usual attempts to make the behavior of others intelligible to themselves. And, as long as the behavior can be made intelligible, the tendency is not to regard it as mental illness" (p. 6). James, in her experimental "jury" studies, remarks, "In making the differentiation between sane and insane behavior, the most frequent argument supporting the defendant's insanity referred to the nature of the items he was attempting to steal. The fact that they were small and of little value indicated that he was not robbing for profit—i.e., there was no rational purpose behind his behavior. As one juror said: 'Look at it this way. If you were going to go out and break into someone's house, would you take the chance of breaking into somebody's house and getting caught and spending a couple of years in jail

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It is perhaps worth digressing slightly to remark that it is characteristic of the approach in dynamic psychiatry to find ways of reconstruing irrational conduct o n the model of rational conduct, that is, as intelligible or meaningful. 1 2 Where there is irrational anger— senseless, unintelligible, unreasonable anger—the psychiatrist may, for example, seek to construe the person's comportment as based o n a covert (unconscious) fantasy or perception of having been injured by someone. Thus the observed irrationality (the anger in absence of any objective injury) is reconceived as a "rational," intelligible response—a relevant response—to a perception of having been injured by someone; but it is the ( f a l s e ) perception of having been injured that is now conceived as both covert and irrational (not relevant to what is relevant). Elaborating o n this approach to the irrational, the psychiatrist enables us to define larger and larger patterns of conduct conceived o n the model of rationality, though we always just to steal a cigarette lighter or a pair of cufflinks?'" (1959, p. 63). A good example of conduct so bizarre and excessively inappropriate as to be plainly irrational, even though the defendant could verbally identify his actions as wrong, and planned them (in part) and carried them through determinedly, is the behavior of Wolff; see People v Wolff, pp. 965, 966. An example of the raising of this issue explicitly in connection with the insanity plea is the argument of the defense as stated in Pope v US: "the whole of the defense case 'was based on the fact that there was no ostensible or rational motive for the crime."' that "Pope had absolutely no motive or reason for the robbing and killing" (pp. 718-719). Yet Pope's crime was a deliberate project and not a momentary outburst. 12. Freud again and again remarks that a fundamental postulate of his approach, "psychic determinism," is the claim that the psychoanalyst has ways of finding meaning where there appears on the surface to be none. For example, in his classic article on the unconscious, he said, "All these conscious acts remain disconnected and unintelligible if we insist upon claiming that every mental act that occurs in us must also necessarily be experienced by us through consciousness; on the other hand, they fall into a demonstrable connection if we interpolate between them the unconscious acts which we have inferred. A gain in meaning is a perfectly justifiable ground for going beyond the limits of direct experience. When, in addition, it turns out that the assumption of there being an unconscious enables us to construct a successful procedure by which we can exert an effective influence upon the course of conscious processes, this success will have given us an incontrovertible proof of the existence of what we have assumed" (14:167). See generally, the discussion in chapters 1 and 2 of my The Self in Transformation.

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end with a last key element which is covert and irrational. Because the model of rationality is pressed to its limits, however, we feel that the person's conduct is rendered more intelligible than it had been. The conduct is, in this sense, explained. But it remains irrational at bottom. For if it were relevant response to relevance through and through, it would be rational conduct ("governed by the reality principle"). It is no wonder that questions of rationality and irrationality, responsibility and nonresponsibility can become deeply ambiguous and obscure when we introduce the perspective of depth psychiatry. A GENERAL DEFINITION OF INSANITY

I believe enough has been said for the time being to have established in an adequate way for our purposes the sense of irrational that is central to our concept of insanity. We need now to go further. We shall be continuing generally to explore the relevant uses of "rational" and "irrational." But we turn now specifically to explore the distinctions between "He acted irrationally" and "He is irrational," and then between "He is irrational" and "He is insane." (Still later we shall come to the distinction between "He is insane" and "He is criminally insane.") To say that a particular man is rational is not, of course, to say that he always acts rationally. Or to say, more generally, that men are rational beings is not the same thing as to say that men always act rationally. When we say of some person—in the sense relevant to our purposes—that he is rational, we mean he has the capacity to act rationally. When we speak of men as rational beings, we mean that what is distinctive of men in general is the capacity for rationality —though some few are born without the capacity, some are born with it but lose it, and many have it but nevertheless, on occasion, do not exercise it and then act irrationally. As noted earlier, it is only a being whom we conceive generally as having the capacity for rationality that we conceive as ever acting irrationally. Of a being that we did not think of as normally having a capacity for rationality, we would not say that it acts irrationally but that it is nonrational. That is, such a being is not conceived of as having failed to meet the norms of rationality; it is a being to which these norms are not applicable.

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Even a person who is irrational, that is, who lacks capacity for rational conduct, need not be insane. A person who is intoxicated or under the influence of some drug may lack capacity for rational conduct during the period of his intoxication. During that period he not only acts irrationally, he may be said to be irrational. But he is not, therefore, insane. A person struck a severe blow on the head or suffering other severe but temporary trauma may be irrational for an hour or two, but he would not therefore be insane. Thus, when we say a person is insane, we say more than that he acts irrationally or even that he lacks capacity to act rationally. It is essential that we see what this "more" includes. When we speak of a person as insane, we mean to say of one who we would expect normally to be able to act rationally that in some sense it is now his nature, his makeup, to act irrationally. H e lacks capacity for rationality, true enough, 1 3 but this lack of capacity must now be a part of his nature and not merely the temporary effect of 13. Mueller makes the point in defining the legal conception of capacity: "Capacity is the factual ability of an individual to engage in rational conduct and to incur guilt therefor. The principal capacity excluding cause is 'insanity' " (1959, p. 84). Mueller in a later article interprets Judge Burger's concurring opinion in Blocker v US as "nothing but a reference to the age-old ingredient of any crime, rational human activity which the M'Naghten judges phrased more awkwardly in terms of knowing the nature and quality of one's act. Neither Currens nor Durham would call for a specific psychiatric inquiry as to whether there was such capacity for rational acting in the first place" (1961, pp. 116-117). The psychiatrist Modlin says that "Psychiatrists recognize that there is something very sound in the underlying philosophy t>f the law as it has been developed through the ages, that soundness being the conception of man as a rational being, one that is able to judge consequences and make choices" (1956, p. 362). The appendix to the ALI Model Penal Code, draft 4, 1955, brings out the broad scope of the concept of the capacity for rationality in the context of M'Naghten: "the attacks on the M'Naghten rule as an inept definition of insanity or as an arbitrary definition in terms of special symptoms are entirely misconceived. The rationale of the position is that these are cases in which reason cannot operate. . . . Jurisdictions in which the M'Naghten test has been expanded to include the case where mental disease produces an 'irresistible impulse' proceed on the same rationale. They recognize, however, that cognitive factors are not the only ones that preclude inhibition. . . . The same result is sometimes reached under M'Naghten proper, in the view, strongly put forth by Stephen, that 'knowledge' requires more than the capacity to verbalize right answers to a question, it implies capacity to function in the light of knowledge" (pp. 156-157).

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special circumstances. If, however, the effects of a noxious foreign substance or organism, or of a physical trauma, are enduring, and if we judge that the crippling of the person's capacity for rational conduct has become an endogenous feature of his mental makeup—a part of it rather than an extraneously induced momentary aberration—then we do speak of insanity, and we view the insanity as an effect of the noxious agent or trauma. To say that a man's mental makeup is such that his capacity for rational conduct is substantially defective is not to make an inference about some internal and invisible mental machinery that has broken down. Enough has been said in various places elsewhere in this study to emphasize the erroneousness of this approach and the cul-de-sac to which it inevitably leads. When we make a judgment of defective capacity, we are characterizing the man's mind not by reference to a hypothetical interior but by reference to the pattern of his observed conduct in the context of the known facts about his life. Whether such a pattern is asserted to exist or not reflects a judgment of practical wisdom, not a mathematically or logically demonstrable claim. Sharp lines cannot be drawn. These judgments are not merely discoveries of facts; they are in part decisions about how we choose to view the person. Even if we do happen to have information about the condition of a person's brain or neurophysiological processes, these only serve as partial grounds that by indirect reasoning help us to make our judgment. Let us consider a clear-cut but realistic example: Even if there is no known organic abnormality, a person who was unable to succeed beyond the third or fourth grade and who fails to learn manual skills beyond the level of ditch digging or floor sweeping is not capable of rational conduct in those many areas of life that impose far more complex demands on a person. It is his life pattern of observed performance that is the critical evidence here, not his organic intactness. And, on the other hand, let us suppose that a person is known to have certain organic brain damage often associated with certain incapacities for rational conduct. If, nevertheless, he in fact does generally act rationally, then we take such conduct as decisive; and in spite of the known organic defect, we say it had no effect on his rationality, and that he does have rational capacity. Information about the literal internal organic condition can at times be an important

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clue to how a person may act. However, what we are getting at essentially is not the internal organic condition but the pattern of his conduct viewed in the context of his life. In sum, then, there are several major elements that suffice to define the concept of insanity generally (but not criminal insanity specifically). One is that the person in some way acts irrationally. Another is that his irrational act is not an occasional laxity but a manifestation of some substantial defect in capacity for rational action (it is viewed as belonging to a pattern of irrationality). A third is that this defect in capacity be conceived as a characteristic of the autonomous working of his mind, a part of his mental makeup, rather than a relatively isolated and momentary effect of some cause external to his makeup (such as trauma or a condition of temporary intoxication). Although we have not yet isolated quite all the distinctive and essential features of criminal insanity, we have identified enough for us to make a few comments directly on some of the key elements in criminal insanity tests. The criminal tests all require that the person suffer from mental disease. It is obvious that this is intended at the very least as an allusion to some sort of mental abnormality that is negatively valued, pathological. I believe that the concept of irrational conduct characterizes the kind of pathology that is of the essence. Not any abnormality of mind, but that abnormality consisting in, or at least including, substantial incapacity for rational conduct—here is the heart of the responsibility-precluding character of the insanity plea. But by "mental disease" something more than this has been meant; it is further implied that this defect has become a relatively enduring part of the individual's mental makeup. Thus, the concept of mental disease in the context of insanity telescopes two principal clusters of ideas: defect in capacity for rational conduct, and the existence of this defect as at least for a time endogenous to the mind rather than as the immediate and temporary effect of some influence to it. It is possible, and I believe correct, to read the M'Naghten test as saying much the same thing that I have just been saying, except that it specifies explicitly the two elements that I have telescoped above into one. Here I follow the suggestion I made earlier that the

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M'Naghten phrase, "defect of reason," is a distinctive and essential element in the test rather than a piece of redundant rhetoric. For I believe that "a defect of reason" from "disease of the mind" is to be read in paraphrase: "substantial defect in capacity for rational conduct" as "an endogenous (pathological) condition of mind." I believe this expresses the essential core of what the M'Naghten phrase actually meant to its authors, though the phrase may also have had other nuances associated with the psychological and philosophical doctrines peculiar to the times. Once we have gone this far in grasping the meaning of the M'Naghten test, we can go further and appreciate in a new way the relevance of the rest of that test. It is a paradox, which we have discussed at length elsewhere, that the M'Naghten formula seems in modern times not to apply to Darnel M'Naghten himself because he did know what he was doing, and he did know that it was contrary to law and the public morality. The plea to interpret "know" in some broader way, or to substitute the word "appreciate," is in effect a recognition that in the common form of the M'Naghten test in use the wording doesn't seem to work, and some further criterion is needed. The "defect of reason" is in fact just this additional distinctive criterion, and it is the proper one. Because it has not been understood as such, it has commonly been dropped from the legal language actually used. But this has been a profound mistake. The defect-ofreason clause tells us that "know the nature and quality of the act" and "know that it is wrong" must be taken to apply with reference to the person's reason, his capacity for rational conduct.14 That is, one who holds delusory beliefs such as M'Naghten's does not know what he needs to know about the nature of his conduct if that conduct is to be rational. 14. Stephen, once again, is near the heart of the matter when he says, "What then is the meaning of a maniac 'labouring under such a defect of reason that he does not know that he is doing what is wrong'? It may be said that this description would apply only to a person in whom madness took the form of ignorance of the opinions of mankind in general as to the wickedness of particular crimes, murder, for instance, and such a state of mind would, I suppose, be so rare as to be practically unknown. This seems to me to be a narrow view of the subject, not supported by the language of the judges. I think that any one would fall within the description in question who was deprived by disease affecting the mind of the power of passing a rational judgment on the moral character of the act which he meant to do" (1883, 2:163).

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M'Naghten knew his act was an attempt to kill, and he knew the details of how he was going about it. But this was not enough to know about the nature of his act if it was to be a rational act. He did not know what was essential for conducting himself rationally— that he was not an object of persistent and ruthless persecution by the Tory party. He was utterly convinced of his false belief on this latter point and, furthermore, was incapable of rational reassessment of the issue (since he was mentally incapable of genuinely relevant response to the relevant counterevidence). Therefore, he did not and could not know the nature and quality of his act in the respects necessary if it was to be rational. This point has often been obscured because the issue of rationality has been lost from sight. If we are asked whether a person knows what he is doing, and if we are given no specific criterion with respect to which we are to define "the nature of the act," we may quite naturally select tacitly some narrowly conceived and stereotyped way of defining the act, for example, that M'Naghten was shooting a gun at the man he supposed to be the prime minister. And with reference to the act so defined, M'Naghten knew what he was doing. But in this case, where insanity is at issue and specifically delusional insanity, the definition of the act we have tacitly used in giving this answer is inappropriately narrow. That is, it is inappropriately narrow for purposes of an assessment of the rationality of his act. This is intuitively seen by anyone who is informed about the context, is sensitive to the issues, and appreciates the true point of the insanity test. We all want to say M'Naghten was insane and didn't really know the true nature of what he was doing. The stumbling block has been that we have not known how to specify explicitly the precise criterion of "really knowing the true nature" of an act in the relevant contexts of making responsibility judgments. We rely on such vaguely allusive language as "really know," "fully understand," "truly appreciate," "the true nature" of what he is doing. Now we can specify the issue precisely: To truly appreciate or understand fully what he was doing, M'Naghten would have had to know about his act whatever was necessary for purposes of assessing his act rationally and nothing more. In his case it was essential for a rational assessment of his act—for him to really know what he was doing— that he should know he was not being persecuted by the Tories; and this he did not know. Hence, he defined his act as an act of self-

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defense against a mortal threat; and he was wrong, and wrong because of his irrational mind rather than mere error or stupidity. On this view of the matter, it can also be argued that M'Naghten did not know he was doing wrong. For though he knew that the law generally proscribes killing the prime minister and that the public generally condemns such acts, he was incapable of forming a rational moral judgment on the relation of his own particular act to law or public morality. For it was his irrational belief that made his action appear as a last desperate act of self-defense. Hence, for him the relevant definition of his act with respect to its moral aspect was "an act of desperate self-defense" rather than "assassination of the prime minister." If a person genuinely holds such a belief and views his act in that way, irrationally and without capacity to reassess the matter rationally, that person cannot rationally assess the legal or moral status of his particular act, even though he may know that in other and more common circumstances the relevant definition of his act would be such that it was illegal and wrong. Given the criterion of rationality, we can say that he did not know the nature and quality of his act or that it was wrong. It should be evident that we are not here reverting to the thesis that "knew it was wrong" means "judged it wrong in the light of his own conscience." As noted earlier, such a definition could never be acceptable in a viable criminal law. As the courts have rightiy insisted, it is a public standard of wrong that must be used, whether public law or community morality. What we are saying here is that "knowing the nature and quality of the act or that it is wrong" in the context of insanity (and thus, rationality) means "having the capacity to rationally assess—define and evaluate—his own particular act in the light of the relevant public standards of wrong." Merely being able to say his act was wrong is then not enough. Even engaging in telltale conduct such as hiding or lying to avoid detection by police is not decisive, though it does have weight as evidence pointing to possession of relevant knowledge. Secretive conduct may occur, for example, in a case of paranoia where the individual knows he acts contrary to law and public morality and assesses his act correctly in a limited way with respect to the punitive consequences if he is caught; yet he may be decisively incapable of a rational assessment of the issue on the whole

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because he is deluded, and incorrigibly and irrationally believes that current law and public morality were designed by the Devil to oppress such persons as he, or because he irrationally believes, as did Hadfield, that he is a new Christ destined to be crucified by the established law and public morality. The preceding comments should not be taken to mean that son is not responsible if he holds irrational beliefs, for that the case, of course. The point is that if the person has a makeup which is such that he lacks even the capacity for ality, then responsibility is vitiated. If he has the capacity but fails to use it, responsibility is not precluded.

a peris not mental rationsimply

Once we see that a person is seriously incapable of rational conduct, we recognize that it makes no sense to hold him accountable according to the usual norms of autonomous human conduct. 1 6 For 15. Psychiatrists make the same point in substance, but the significance of their statements is easily missed because of their use of technical concepts and mechanical analogies centering around the notion of control (akin to "damming up" or "ability to inhibit drive discharge"). For example, the report of the Group for the Advancement of Psychiatry states that "ego impairment . . . appears to be a measure of lessened responsibility." A footnote to this passage elaborates: "Ego impairment implies lessened control in maintaining behavorial norms of social interaction" (p. 6). Now the "ego," as we have seen on p. I l l , above, is a technical term referring to what we could also characterize as the person's capacities for adaptive response in the light of his instinctual needs, his environmental circumstances, and the normative demands he makes on himself. Thus, one who is unable to assess rationally ("realistically," in psychiatric jargon) the purport of the public norms prevalent in his social environment, as these pertain to him, suffers from a significant form of ego impairment. (If he can perform this assessment rationally, then there is no ego impairment relevant to insanity.) It is in effect this form of irrationality to which the report refers when it speaks of a degree of ego impairment implying a comparably lessened responsibility. It is not that the person necessarily has lessened control in any literal or ordinary sense; for in some cases his control over his conduct is substantial and even subtle. The paranoid plotter need not have less control; he may be exceptionally self-controlled in carrying out conduct based on an irrational assessment of the significance of public standards of wrong. Though he controls his conduct, he does have ego impairment (he has lost contact with reality in some way). In sum, the point of "ego impairment lessens responsibility" is the same as my point in the text above: accountability is lessened to the extent that there is incapacity for rational assessment of the nature of one's act with respect to public norms of wrong.

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what we are saying is that the capacity for intelligible communication and human intercourse has radically broken down. In some crucial way, he does not respond to the elementary norms for intelligible human conduct. Hence, he does not respond to us; he is not responsible.18 Bromberg and Cleckley (1952, p. 744) also explicitly and directly relate "degree of ego disability" to the question whether and to what extent the person is accountable. The idea is generally common in psychiatric thought. In plainer language, Jerome Hall gets at the same fundamental point when he stresses not the decision of the person but his competence to "make the relevant moral decision" as "the crucial question from the standpoint of law" (1956, p. 780). The stress on capacity for rationality rather than on the particular conclusion or decision ultimately reached is evident in the opinion of Chief Justice Dixon in Stapleton v Reg. (1952) when he offers as the central reason for reversing a lower court decision that "it is evident that a jury although satisfied that no capacity existed in a particular accused to reason at all may think that at the back of it all was an awareness of the nature of the act and of the fact that other people might regard it as wrong." Dixon holds that the jury's failure to count the capacity to reason as essential to the requisite particular "knowledge" would be substantive error. 16. In his discussion of the aims of the criminal law, Henry M. Hart, Jr. said, "What is crucial in this process is the enlargement of each individual's capacity for effectual and responsible decision. For it is only through personal, self-reliant participation, by trial and error, in the problems of existence, both personal and social, that the capacity to participate effectively can grow. Man learns wisdom in choosing by being confronted with choices and by being made aware that he must abide the consequences of his choice. In the training of a child in the small circle of the family, this principle is familiar enough. It has the same validity in the training of an adult in the larger circle of the community. "Seen in this light, the criminal law has an obviously significant and, indeed, a fundamental role to play in the effort to create the good society. For it is the criminal law which defines the minimum conditions of man's responsibility to his fellows and holds him to that responsibility" (1958, p. 410). Ross makes a closely related fundamental point: "One might say that one of the greatest dilemmas for the law and the lawyer has been the reasoning of the unreasonable man: Since the entire system of the law, and in some cases the system of logic supported by the law, is based on the reasonable man and is by definition prescriptive, we find that the premises of the criminal law do not pertain as such to the irrational or unreasonable. . . . The law assumes men responsible and sane. It could not be 'recognized binding by supreme authority or made obligatory by sanction' unless this assumption was made; the structure of the law is founded on this assumption. The insane and the lunatic are not compatible with the law of reasonable men" (1965, p. 38).

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Briefly, what I have so far proposed for purposes of defining insanity is this: In general we all have a practical mastery of a fundamental concept, rationality. This concept refers to certain interrelations of knowledge, perception, emotion, mood, attitude, desire, and the like and the conduct that flows from these. The concept of rationality is probably no more precise or definite than many another such basic concept essential in human intercourse. It is surely no more vague, and perhaps in some applications less so, than such legal concepts as reasonable man and due process; but it is at least as fundamental as these. I have presented what I believe is an analysis of its meaning that takes us at least a substantial step beyond a merely intuitive grasp of the concept (rational = relevant response to essential relevance). In any case the concept of rationality is important not as a useful philosophical invention but because it happens to be in fact the key concept ordinary men do tacitly apply when they speak of insanity. T o summarize up to this point the proposed general definition of insanity (but not the definition of criminal insanity specifically), we combine three principal conceptual elements: 1. Insanity is (a) irrational conduct (b) from grave defect in the person's capacity for rational conduct ( c ) which is at least for the time an inherent part of the person's mental makeup. If we now substitute for the terms "rational" and "irrational" the central meaning of those terms as developed in the earlier discussions, we derive: 2. Insanity is failure to respond relevantly to what is essentially relevant by virtue of a grave defect in capacity to do so inherent at least for the time in the person's mental makeup. Since 1 and 2 make it plain that where there is insanity there is inherent incapacity to respond relevantly, it is evident that: 3. So far as there is insanity there cannot be responsibility. A DEFINITION OF CRIMINAL INSANITY With regard to the insane person, it is a thesis widely accepted today that irrationality may be particularly evident in some dimensions of mind more than others; for example, it may be most evident in the form of irrational beliefs, irrational perceptions, or irrational emo-

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17

tions or moods. A defect in capacity for rational conduct may appear in one area of conduct more than others, for example, in relation to food, sex, high places, or religion. The defect may manifest 17. The legal philosopher, H. Morris, states: "what is surely intuitively clear [is] that any framework of rights and duties presupposes individuals that have the capacity to choose on the basis of reasons presented to them" (1968, p. 499). He says again, shortly following this: "Implied, then, in any conception of rights [is] the existence of individuals capable of choosing and capable of choosing on the basis of consideration with respect to rules" (p. 500). The psychiatrist, Cavanagh, says, "Whenever a man, who because of his age is presumed to be endowed with the power of sufficiently evaluating something, is said nevertheless to have acted without sufficient evaluative cognition, that can arise either from the fact that he did not want, or from the fact that he was unable, to evaluate or weigh the proposed action sufficiently" (1962, p. 483). And he adds shortly thereafter: "Responsibility does not mean 'punishability.' It means only that the individual, whose responsibility is under examination, at the time he performed a certain act or acts, was in such a state of mental health that, barring external coercion, he was able to act freely on the basis of a proper subjective evaluation of his act or acts in accordance with objective reality" (p. 485). Of interest is the formulation in an insurance case in which it was held that a suicide was not voluntary, within the meaning of the contract, if the insured had "acted under the control of an insane impulse caused by disease, and derangement of his intellect, which deprived him of the capacity of governing his own conduct in accordance with reason" (Newton v Mutual Benefit Life Ins. Co., 76 NY 426, 429; cited in Faber v Sweet Style Mfg. Corp.). Of particular interest is the doctrine developed, in effect, by Chief Justice Dixon of the High Court of Australia in the course of two cases in which he rendered the courts' opinion. In the earlier (1933) case while sitting in a lower court, he elaborated on the meaning of "appreciate the wrongness of the particular act [the defendant] was doing at the particular time" in this way: "Could this man be said to know in [the aforesaid] sense whether his act was wrong if through a disease or defect or disorder of mind he could not think rationally of the reasons which to ordinary people make that act right or wrong? If through the disordered condition of his mind he could not reason about the matter with a moderate degree of sense and composure it may be said that he could not know that what he was doing was wrong" (Rex v Porter, pp. 189-190). In Stapleton v Reg. (1952) the preceding language was reaffirmed and expressed anew as follows: "it is enough if [the disease, disorder, or defect of reason] so governed the faculties at the time of the commission of the act that the accused was incapable of reasoning with some moderate degree of calmness as to the wrongness of the act or of comprehending the nature or significance of the act of killing" (p. 367). This latter phrasing must in turn be viewed in the light of closely preceding comments

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itself continuously or only from time to time, with interludes of sanity. The periods of insanity m a y commence at a certain point in life and have permanently disappeared by some later point. W e must take note, in short, of the obvious fact that, in most cases of mental disease involving grave impairment of the capacity for rational conduct, the impairment is far from total. True enough, mental impairment does not commonly remain utterly confined to one area, but rather tends to be reflected in some degree beyond the confines of the area in which it is most prominent. There is great variability here. 1 8 However,

where the impairment is

noticeably

grave in some areas of conduct for certain periods, this calls for precluding responsibility in that area and for appropriate special responses by others with respect to that area of conduct. Y e t a substantial impairment of the capacity for rational conduct in some area by Dixon in which he characterizes the defendant's act as having "no motive that could actuate a rational man," as "irrational," as "without any rational basis" (p. 366). 18. In a symposium on forensic psychiatry, Dr. Alfred K. Baur summarily stated the situation as follows: "A medical disorder can exist in all degrees of severity, from very mild to severe. Some people are sophisticated enough to know that schizophrenia is one of the 'major psychoses' and contributes to many in the 'insane' category. But it is very difficult to get across to lay people the idea that a person diagnosed schizophrenic may be quite competent, responsible, and not dangerous, and, in fact, a valuable member of society, albeit at times a personally unhappy one. The same can be said of every psychiatric diagnosis or so-called mental illness" (1962, p. 16). Dr. Jack Ewalt, representing the American Psychiatric Association, told a Senate subcommittee: "It must be clearly understood that the establishment of a mental illness does not, ipso facto, warrant a finding of incompetency. Throughout the legal history of mental illness there has been considerable confusion about the two concepts, and in many States commitment can act as an automatic determination of incompetency. From a medical point of view there is not, necessarily, any connection between the two, and in general, psychiatrists are much concerned that any mental patient within a hospital should exercise as many of his ordinary civil rights as he has the capacity to exercise, such capacity being determined by medical judgment. We have in mind such rights as signing checks, selling property, retaining an automobile license, making purchases, executing contracts, voting, making a will, and the like. He must also retain the right to communicate by sealed mail, to receive visitors, to the confidentiality of his case records, to habeas corpus, and the right to protest further hospitalization" (1961-63, p. 468).

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may still be so circumscribed that much or most of the person's conduct may be rational. All this, which is a psychiatric platitude, follows also as a logical possibility from the preceding definitions. For there are very many degrees or dimensions of relevance, and we are here saying that a person may be capable of varying degrees or dimensions of responsiveness or nonresponsiveness. To make the same point in more concrete terms, it is a well-known fact that most persons who suffer from mental disorder, including a substantial proportion of those who are actually hospitalized for mental illness, are able to carry on responsibly, rationally, in many areas of their life. There are, it is true, some individuals who are more or less immobilized for a period by their mental disorder. A person in a psychotic depression may simply sit all day long, quasiimmobile, taking responsible part in almost no activity whatever. A person in a catatonic state may remain literally immobile and mute for long periods of time. And there are those whose mental powers have generally so deteriorated for one reason or another that the individual has become permanently incapable of the most elementary self-care or interpersonal intercourse. By and large, however, these totally nonresponsible persons are not representative of the larger part of the population that is under medical care for mental disorder. Most of this population consists of persons who are in many important ways capable of acting with some significant degree of responsibility. Indeed the organization of the mental hospital today increasingly reflects this emphasis. Hospital routine and therapy is designed to presume and to make constant call on the larger degree of responsibility of which the average mental patient is capable. No longer do most hospitals emphasize, as in earlier years, the patient's occasional or partial nonresponsibility by confining him to near total and closely protected inactivity in ward life governed entirely by the authorities.19 19. See A. Goldstein's summary of the situation, 1967, pp. 27-28. Swartz cites the Wolfenden Committee Report (par. 33, p. 16): "We are informed that patients in mental hospitals, with few exceptions, show clearly by their behavior that they can and do exercise a high degree of responsibility and self control" (1963, p. 412). The same is true in the U.S., as is reflected in the summary of the situation in the comments appended to the American Law Institute Model Penal Code, draft 4, p. 158: "The schizophrenic, for example, is disoriented from reality; the disorientation is extreme; but it is rarely total.

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It is this limited character of the irrationality that requires us in each case to face the question: In what specific respects is the person insane, that is, in what specific respects is his mental makeup so gravely defective in capacity for rational conduct that he cannot properly be held responsible? 2 0 We need to ask this question from the standpoint of society to obtain the maximum contribution the individual can make as a responsible citizen. And we also need to ask it from the standpoint of the insane person's welfare, so that we can recognize the areas and ways in which his insanity is not present, so that we can then build on these by showing due respect for the person's mental integrity and his capacity as a responsible person. 2 1 Most psychotics will respond to a command of someone in authority within the mental hospital; they thus have some capacity to conform to a norm. But this is very different from the question whether they have the capacity to conform to requirements that are not thus immediately symbolized by an attendant or policeman at the elbow. Nothing makes the inquiry into responsibility more unreal for the psychiatrist than limitation of the issue to some ultimate extreme of total incapacity, when clinical experience reveals only a graded scale with marks along the way." Nor is this a characteristic due to modern treatment or apparent only to the psychiatry of today; Dr. Bucknill, writing in 1856, says, "The extent to which the insane are capable of controlling their actions, is conspicuous in the wards of a well-ordered lunatic asylum. The medical officers of such an institution find some two or three per cent, of the patients whom no moral influences appear to touch; but the vast majority are enabled, with a little encouragement and assistance, to control their passions and emotions with nearly as much success as the people out of doors" (p. 13). 20. To see vividly the need for discrimination in these matters, see Cavanagh's "clinical" description, factually entirely correct, of Abraham Lincoln (1962). The evident mental disturbance brought out by the case-history format, combined with what we know of the actual humanity and political genius of Lincoln as president, compel us to recognize that the existence of mental impairment in some areas of life, no matter if grave, cannot of itself establish whether there is substantial capacity for rational conduct in other areas of life. 21. The psychiatrist Modlin states the point succinctly: "Also, in the process of evaluation, the psychiatrist decides, on the basis of the personality of the patient—his impulses, his conflicts, his means of control, the stress that led to his loss of control—what responsibilities the patient can handle. Does he need to be in a hospital and if so, does he need to be restricted to his room or can he move about the grounds freely? If he can handle the responsibilities of extramural life, can he live with his family or should he be in a family care home? Can he work, or should he stay on the hospital grounds all day,

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It is also from the standpoint of justice that we need to be equally discriminating, though for somewhat different reasons. There seems no good moral reason to fail to treat as responsible one who is capable of rational conduct in a certain area of life. He is entitled to be respected as responsible insofar as he is rational; and we are entitled to hold him responsible to that extent. Indeed, if we took any sort or degree of specific incapacity for rationality whatever in a person as a reason for considering him totally nonresponsible, we should find mighty few persons we could consider responsible. For example, there seems no good moral reason why, in general, a person who is persistently irrational about food should not nevertheless be held responsible in connection with his business dealings. Of course, where food is touched on in the course of business, we might have a different attitude. But we do not excuse such a person for breaking his contract to deliver certain industrial goods because we know him to be irrationally and utterly convinced that eating meat is a sure road to an early grave. One who is irrationally fearful of heights is not therefore excused whenever he forges a check. There are, of course, more severely and generally incapacitating kinds of defect than irrationality with respect to food or heights. In particular there are the kinds that require special limiting conditions, threats of sanctions, or physical controls if the person is to be able to act responsibly; but given these special conditions, he may be perfectly capable of acting rationally and responsibly with respect to them and to other circumstances of life. For example, the individual strongly dependent on alcoholic liquors may be capable of rational and responsible conduct when not engaged in drinking, or he may be continuously responsible so long as he is a member of Alcoholics Anonymous.22 In a hospital, sanatorium, or prison he may be able to get along rationally and responsibly, without engaging or even trying to engage in drinking at all. Or, to take another kind of example, a person may have irrational fears or impulses that involve him in persistently irrational conduct unless he is (at least for a time) hospitalized and thus assured that he will not be allowed to going home only at night? Can he handle the demands of psychotherapy, or is he too disturbed to benefit very much from talking about his problems?" (1956, p. 364). 22. See, generally, my 1970 study on the disease concept of alcoholism.

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indulge his impulse, or assured that he is protected from the object of his fear. Under those hospital conditions, he may be entirely rational and responsible. The same basic principle holds for prison life; for were prisoners generally incapable of rational conduct with respect to basic demands of prison regulations, mere jail doors and a limited complement of guards could not keep even minimal order and physical safety. T o turn now specifically to the criminally insane, we should recall that in many respects Daniel M'Naghten was rational. But whatever touched on his delusory belief became infected with irrationality. And, most specifically, his defect in capacity for rational conduct included in particular an incapacity to assess rationally the criminal character of certain areas of his conduct. 2 3 Other persons who are irrational in one respect or another are often unlike Daniel M'Naghten in that they are not substantially affected in their capacity to act rationally with respect to criminal law. 2 4 It is this that has in effect 23. The highly regarded forensic psychiatrist, Roche, gave the following relevant description of a type of paranoiac: "No matter how unfounded or absurd his delusions, the paranoiac may retain an appearance of normality and react in normal fashion to matters outside his delusional system. A good illustration is the 'litigious paranoiac,' whose delusions create grievances that he feels can only be settled by judicial fiat. His career is generally touched off by a lawsuit whose outcome left him dissatisfied. Thereupon he begins a legal crusade as a civil plaintiff, ostensibly to preserve his 'rights,' but actually to strengthen his sensitive insecurity and protect the weak points of his personality. Throughout his career, he generally remains free of hallucinations, conversationally adept, and probably intellectually superior to average people. Generally pleading his own case in court, he can quote voluminously from case books and statutes, and his judgment on matters outside the field of his delusions remains largely intact. The lay juror, uninformed of the paranoiac's career, will seldom sense the presence of a disorder. And the paranoiac, adept at his business, may often win his trumped-up case" (1950, pp. 1327-1328). 24. Even one who is at one time irrational with respect to assessing the criminal character of his conduct may at another time be rational in that respect. For example, Batt, in his studies of murders committed by psychotically depressive mothers, notes that, characteristically, "the psychotics all went for aid, except one who was found immediately after the act. Often this aid was the police, relatives or friends near at hand, a doctor, or, as on one occasion, the woman ran to her husband at work" (1948, p. 788). He adds, "Some difficulties in diagnosis present themselves to the psychiatrist when dealing with these cases. Reference has already been made to the sudden improvement that

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led the courts to say that not every mental disease will excuse from criminal responsibility.26 A criminally insane person must be not merely incapable of rational conduct, but incapable of conduct that is rational specifically with respect to the criminality of that conduct. 28 may occur in the mental states immediately following the catastrophe. He will then be faced with an apparently normal subject, and his task is made the more difficult if the only means of eliciting the previous symptoms is the patient's own description" (p. 791). 25. It should be recalled that even Durham is explicit in stating that, even though a person suffers from a mental disease, he "would still be responsible for his unlawful act if there was no causal connection between such mental abnormality and the act" (p. 875). The Durham decision then appends an even more explicit excerpt from the Report of the Royal Commission on Capital Punishment (1953, p. 99) as follows: "There is no a priori reason why every person suffering from any form of mental abnormality or disease, or from any particular kind of mental disease, should be treated by the law as not answerable for any criminal offense which he may commit, and be exempted from conviction and punishment. Mental abnormalities vary indefinitely in their nature and intensity and in their effects on the character and conduct of those who suffer from them. Where a person suffering from a mental abnormality commits a crime, there must always be some likelihood that the abnormality has played some part in the causation of the crime; and, generally speaking, the graver the abnormality [and the more serious the crime], the more probable it must be that there is a causal connection between them. But the closeness of this connection will be shown by the facts brought in evidence in individual cases and cannot be decided on the basis of any general medical principle." 26. It should be recalled that insanity precluding criminal responsibility for committing an act is defined by criteria that are different from those used to define, for example, mental competence to stand trial or to make a will. "It is clear that any inquiry into such capacity for rational human action has its relevancy limitations. The defendant is charged with a specific, rational human act, a specific crime, e.g., defrauding the government, murder or exceeding the speed limit. We are at this point not interested in whether he has a capacity to make a will, to sign a contract, or to enter into a marriage, or whether he is a compulsive handwasher or doorknob wiper, though all these matters may have some probative value when it comes to ascertaining whether the defendant has the capacity to do the rational act of filling out a fraudulent income tax return. To say that because a person is a compulsive handwasher, he is therefore incapable of engaging in any rational human act—as under Durham, where the prosecution would have to prove the opposite beyond a reasonable doubt—is to make a mockery of the psychiatric theory of the integrated psyche" (Mueller, 1961, p. 117).

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That is, he must substantially lack capacity to rationally take into account the criminal implications of his act. With these final specifications, we can now formulate a complete definition of criminal insanity: The individual's mental makeup at the time of the offending act was such that, with respect to the criminality of his conduct, he substantially lacked capacity to act rationally (to respond relevantly to relevance so far as criminality is concerned). This is the general definition of criminal insanity that any legal test of criminal insanity ought in substance to embody. I shall discuss specific wordings of the legal test in the next chapter. Let it be reemphasized at once: to be able to act rationally with respect to the criminality of one's conduct is not the same as to obey the law or even to respect it. It is simply to be able to rationally take into account the implications of the act relevant to criminality. The law exists precisely because individuals who are capable of rational assessment of the criminality of their conduct on occasion (and in some cases with frequency) elect to flout the law. If all rational persons always obeyed the law, it would be pointless to have courts and punishments. On the other hand if no person had the capacity for rationality, it would be pointless to appeal to law. The criminal may be stupid, immoral, greedy, ruthless, imprudent, or impulsive; he may have nothing but contempt for the law. This may be bad judgment on his part; it may be unwise and foolish; it is immoral. But none of this implies that he has lost his reason in these matters, indeed quite the contrary. For if we do judge that he has lost his reason, we no longer think it appropriate to characterize him as being imprudent, unwise, or immoral. The opposites of "rational" in this context are "irrational," "senseless," "unintelligible." It is also essential to recall that "irrational" does not necessarily imply "loss of control" or "incapacity to conform to law" if these are taken in any everyday sense. So far as control goes, one who is incapable of rational conduct may, as we have seen, have great control over his conduct, and he may adapt that conduct skillfully to his irrational purposes, moods, or emotions. Likewise he may, by virtue of his own irrational concerns, choose to conform his conduct to the law, or he may choose not to conform—that is, he has the capacity to conform, he can choose and carry out his choice, but his

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choice concerning whether or not to conform is rooted in an incapacity for rationality. In distinguishing between the capacity to conform and the capacity to choose rationally whether to conform, I am not proposing a distinction too subtle to have an impact in the courtroom. On the contrary, these are the very distinctions that, I believe, confuse juries of laymen who are presented with the current legal tests of insanity. The layman readily sees, though he may not be able to verbalize it adequately, that the defendant who was insanely angry or depressed or aggrieved could have obeyed the law (had capacity to conform had this appeared to him warranted); but the juryman can see that the defendant, for his own insane reasons, didn't want to obey. Were the legal issue shifted to the inherent irrationality of the defendant's mind in leading him to conduct himself in a way forbidden by law, I believe that the jury member would feel much more readily justified in officially ascribing insanity in cases where its presence is intuitively evident. Definitions in terms of "knowledge" or "capacity to conform" obscure the issue. It should also be clear that to have capacity to act rationally with respect to the criminality of one's conduct in no sense implies being an expert in criminal law. The average citizen, who is presumed to be and is in fact capable of rational conduct with respect to the criminality of his conduct, does not know the ins and outs of criminal law. What is required here is the sort of common knowledge that all (rational) men have of the universally recognized crimes, often classified in law as mala in se. Ordinary rational men know that it is generally both wrong and illegal to kill, assault, rob, rape, burn, or swindle; they know there are only certain exceptional conditions that can excuse some of these actions, for example, physically injuring another as a necessary means of self-defense.27 To know an act is wrong, in 27. It is in this vein that Stephen stated: "The degree of general knowledge usually presumed in criminal cases may be inferred from the law as to madness. . . . It appears to contain two elements, first, a capacity of knowing the nature and consequence of the act done, and next, a capacity of knowing the common notions of morality current in England on the subject of crime. I say a 'capacity of knowing,' instead of knowledge, because if a man has the ordinary means of knowing certain obvious things, and does not choose to use them, or if he chooses to differ with mankind at large on the subject of the moral quality of particular acts, regarding as virtuous actions what they look

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this context, amounts to being able to assess rationally the bearing of one's conduct on the moral norms embodied generally in the criminal laws pertaining to mala in se. Beyond this knowledge, the rational man need only know that the details of law can be complex, the consequences grave, and that therefore when detailed knowledge is likely to be needed, expert help should be sought. We have now developed an account of insanity, and of criminal insanity specifically, that meets the conditions set forth at the outset of this chapter. The analysis of the concept of insanity as generally designating a mental makeup such that the person suffers some grave defect in his capacity for rational conduct conforms with usage; upon as crimes, he must take the consequences. Such a presumption differs widely f r o m the presumption that every one knows the law, for it is true in every or almost every case. Every one knows or has the means of knowing, that it is extremely dangerous to life to explode a barrel of powder in a crowded street, and that murder, theft, robbery, forgery, and fraud are generally regarded as wicked actions, whereas hardly any one except a professional lawyer is acquainted with the definitions of crimes and the punishments provided for them. . . . madness is the only cause which is recognized by law as capable of producing such incapacity as is described" (1883, 2:115). The point is equally valid today as is reflected in such a remark as Professor Henry M. Hart's: "Thus, almost everyone is aware that murder and forcible rape and the obvious forms of theft are wrong. But in any event, knowledge of wrongfulness can fairly be assumed. For any member of the community who does these things without knowing that they are criminal is blameworthy, as much for his lack of knowledge as for his actual conduct" (1958, p. 413). In my formula as developed here, I use the phrase "with respect to the criminality of the act." I think this is better than to say "with respect to the criminal law" or "with respect to the wrongness of the act." I think that what is at issue here is not a purely legal assessment of the act—for the layman cannot in any precise sense make a purely legal assessment of conduct, his thinking not being so professional as to abstract the legal aspects only. Nor is what is at issue a purely moral judgment of wrong, for morality and law do not necessarily coincide, and what may be morally wrong may also be legally permissible—even in the case of killing or aggressive taking of property, etc. What is at issue here is a mixed practical judgment of the kind an ordinary rational person makes, taking into account both of two sorts of considerations: ( a ) certain broad and commonly appreciated principles of law generally prohibiting killing, etc., and (b) certain principles of morality. The ordinary (reasonable) person's concept of criminality corresponds to this judgment. The issues here correspond, of course, to those that are central in the never satisfyingly resolved debates over the meaning of "wrong" in M'Naghten.

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it brings out the actual though tacit criteria of this usage and, consequently, serves to discriminate the appropriate paradigm cases of insanity and noninsanity in the way we would intuitively do so. The concept as here analyzed is readily associated with such notions as mental disease. It clearly goes to the heart of the responsibility status of a person, a status for which capacity for rational conduct is essential. Yet, although insanity as here defined entails lack of responsibility status, it is consistent with self-initiated conduct by the person, conduct that is both voluntary and in obvious respects knowing. Furthermore, this analysis brings out, I believe, what men have in fact meant by insanity—as is attested by the consistent and close association of terms like "irrationality" and "loss of reason" with the notion of insanity. In particular, in the criminal law, we see this close association not only embedded in the M'Naghten phrase "defect of reason" (which itself reflects prior usage), but in contemporary commentary where the use has been central but its significance inadequately elaborated or not elaborated at all.28 The analysis and the concepts in it have no more and no less precision or clarity than belong to many key concepts common to everyday speech and thought. There are gray areas, areas where we do not know whether to speak of insanity or not; we then must decide 28. Among substantive comments reflecting this awareness of the significance of rationality, and of the purport of "rationality" as relevance or "meaningfulness," the following well illustrate the definite presence of these ideas: "To be responsible means (1) to be able to recognize and discharge various duties and (2) to be morally censurable for the voluntary breach of those duties and legally liable if their violation is forbidden by law" (Hall, "Responsibility and Law: In Defense of the McNaghten Rules," American Bar Association Journal, 42:917, 984 [1956]). "Such a concept of responsibility . . . requires both the recognition that a duty exists and the competence to understand that a voluntary breach of these simple moral duties are enjoined by law" (Hill v State, p. 435). "Such a person's behavior would be 'irrational . . . lacking in reason, lacking in intent, lacking in anything that makes wilfulness of behavior meaningful to another human being.'" The court further commented that "his emotional response to a given act was either non-existent or inappropriate" (People v McDowell, p. 5). See also the closely related use of "rational" in Dusky v US (1960), p. 403. Another example: "Three lay witnesses called by the defense testified that in their opinion defendant was insane. They based their conclusion on his behavior which they considered irrational" (People v Nicolaus, p. 794).

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what, on the whole, we should say, and we cannot expect to apply the definition and automatically come up with a guaranteed noncontroversial answer. We are dealing—as we might well expect in this area—with fundamental concepts of a logical order analogous to such legal concepts as reasonable man, negligence, and due process, rather than concepts that have a relatively simple logical role and that can be formally defined with the precision of formal logic or physics.29 29. Sobeloffs remarks are apropos: "Look at such words and phrases as 'reasonable,' 'practicable,' 'obscene,' 'unfair competition,' or 'cruel and unusual punishment.' Such standards found in almost every branch of the law, are the bases for judgments of law as well as fact. They are all as capable of expansion and contraction as the subjective judgment of those who interpret them. They must derive their meaning largely from the common sense of the people who apply these terms. . . . What could be fuzzier than the instruction to the jury that negligence is a failure to observe that care which would be observed by a 'reasonable man'—a chimerical creature conjured up to give an aura of definiteness where definiteness is not possible. Have you ever tried to imagine what goes on in the minds of jurors when they are handed such a formula? No two of them would agree on what the standard of due care is. Yet it is the best possible rule, and we do quite well with it in specific situations. "What we ought to fear above all is not the absence of a definition but being saddled with a false definition" (1955, p. 796). See also, for example, the similar remarks of the court in Washington v US, p. 454, note 28.

5 Some Implications of the Formulation

We are now prepared to explore some practical applications of the definition proposed and the reasoning supporting it. My object is not to treat the problems in this area exhaustively. I aim only to make what I hope will be useful comments on selected topics. Most of what I say will concern the relation of my definition to standard psychiatric diagnoses and to the specific legal insanity tests in current use in the United States. However, I shall begin with discussion of a slightly more theoretical issue, an issue that has had a practical impact on the thinking of many authorities in criminal law and forensic psychiatry. This first topic takes up approximately where we left off in the preceding chapter; it concerns the fact that, in most cases of defect of reason, the defect is not total or general but instead has a limited or localized character. THE "UNITY OF THE MIND"

The thesis that even substantial defect in capacity for rational conduct is usually circumscribed rather than equally manifest in all conduct seems on its face to go counter to the frequently mentioned doctrine that the mind is a unity, an integrated whole.1 This doctrine 1. It is easy to find such comments as the following representative ones in the literature of psychiatry: "In fact, it is no longer possible to speak of

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has been expressed in a variety of ways. It has played a prominent, though controversial, role in so many discussions and court decisions specific abnormalities of single mental functions, such as volition. Rather, every disorder of this fluid balance of forces results in disturbances describable only in terms of the total individual and his environment" (Diamond, 1962, pp. 195-196). "It is doubtful if any psychiatrist today conceives of personality function existing except as an integrated process, as one in which no theoretically independent elements can be isolated for practical study. We do not find man 'thinking' without also 'feeling.' We do not observe acts of 'volition' altogether free of emotion" (Bromberg and Cleckley, 1952, p. 736). A. Goldstein concludes that the Report of the Royal Commission on Capital Punishment reflected "virtual agreement among the medical men that the mind functions as an integrated whole and that it is impossible to isolate the separate functions of cognition and control" (1967, p. 80). And with respect to the American scene, the ALI Model Penal Code commentary speaks of "the concept of the singleness of personality and unity of mental processes that psychiatry regards as fundamental" (p. 159). See also, Weihofen, 1955, pp. 357, 360; Biggs, 1955, pp. 132-133. Perhaps the most extreme statement of this view is Cavanagh's: "For didactic purposes the personality must be described piece-meal, but we should not picture it as a compartmented structure. It is actually a functioning unit with a constant frictionless interchange between its component parts. It is as if each component was a mirror which by its reflection activates the other parts. As long as each mirror reflects its proper degree of light in the right direction and with proper intensity there is a normal interchange. If something happens to one or more of the mirrors, it will disturb the whole mechanism. So it is with the component parts of the mind" (1962, p. 481). On the other hand, Meehl—a distinguished and rigorously empirical psychologist—has the following to say in his study coauthored with Livermore: "The M'Naghten rule has been the subject of much criticism. Consider first the claim that since modern science has shown that the mind is an integrated whole, a rule such as M'Naghten which is formulated in terms of the rational or cognitive functions is counterscientific. The first thing to be clear about is what we mean by saying that the mind is an integrated whole. If this rather imprecise expression is taken to mean that modern medical and behavioral science does not recognize the existence and operation of part-functions in mental life and behavior, in the sense that the mind or the person-in-action is conceived of by psychologists and psychiatrists as a kind of undifferentiated blob, the generalization is simply false as a summary statement of the teachings of these sciences. . . . "If we examine the conceptualizations of human behavior and experience arising from such different approaches as clinical psychiatry, the statistical analysis of performance on psychological tests (differential psychology), or the experimental study of human and animal learning, we find, in spite of

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bearing on criminal insanity that a distinguished judge who is also a noted author in this area declared in an influential judicial opinion: "It has been stated time and time again that psychiatry now regards and recognizes man as an integrated personality and that he cannot be compartmentalized and that his cognitive faculties cannot be detached from his emotions." 2 It is true that this principle of the "integrated personality" or "unity of the mind" is indeed mentioned time and time again. It is usually mentioned as being a basic scientific truth of modern psychiatry. However, the citation of evidence for it, as distinguished from mere repetition of the claim, is negligible. It is plain to anyone who examines the literature with respect to experimental, statistical, or other specific empirical supporting data that there exists nothing resembling a widely accepted empirical proof of any such basic thesis.3 Indeed, thoughtful reflection on the thesis itself—in any of the many variants proposed in the literature of forensic psychiatry— quickly reveals that the thesis is so unclear and imprecise as to preclude a scientifically definitive proof. Even the central drift of the thesis is unclear. The real task is not to prove or disprove it, but to puzzle out what it is supposed to mean and what sort of role it is supposed to play. This is a drastic criticism to make, but I believe what I have said is strictly true. Were it not that the thesis is so often invoked and that there is a genuinely important core of validity in it, we might dispense with further discussion. But, in spite of the confusion surrounding the entire matter, we can profit from some brief labor. For our purposes, we must ask: Is the thesis of the mind's unity, the vast differences in methodology and in the resulting substantive content of such theories, that they all utilize a model of the mind which postulates the existence of distinguishable processes, state-variables, part-functions, factors, intrapsychic 'structures,' and the like" (1967, pp. 810-811). And consistent with the Meehl-Livermore statement are the plain implications of the material discussed in the preceding chapter with reference to the universally acknowledged fact that mental impairment is almost always limited rather than general and complete. See pp. 203-209, above. 2. US V Currens, p. 771. And in the groundbreaking Durham decision, as A. Goldstein remarks: "The Durham court took as its fundamental principle that the mind of man was a functional unit" (1967, p. 82). 3. See Livermore and Meehl, note 2, above.

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if true, supposed to preclude the possibility of relatively localized or limited irrationality? Is it supposed to mean—as it often seems to— that if any one dimension (or function, aspect, or sphere) of the mind is affected in some determinate way, then every other dimension will register a correlative change? More specifically still, does it mean that a certain degree of cognitive failure will be reflected as an analogous degree of functional failure in every other area of mental function? Does it also mean that if this failure affects conduct in any one area of life, it will necessarily also be reflected in comparable degree and kind in conduct in every other area of life? If the thesis does take us along this road, it is already clear that it leads us astray. For then the sorts of limited irrationality we have been discussing above would be impossible; yet we know they exist, we know that relatively localized irrationality is the rule rather than the exception. Yet this does seem to be the interpretation implied by the arguments of a number of the proponents of the unity of mind. We can see that this is so because of an odd argument, familiar in the literature, in which the unity of mind is used as the premise for attacking the M'Naghten test. The argument runs: M'Naghten allows only defect in cognition to count as a test for insanity. However, the emotions and the will form a unity with the cognitive functions and cannot be detached from the latter. Therefore, the argument concludes, a test of knowledge or cognition alone, as in M'Naghten, is an inadequate test.4 This argument is pulling in the extreme. It would seem that logic would require quite the opposite conclusion. If the mind were in the sense intended a unity, then malfunction in any one dimension would 4. "Since a person is now regarded as an integrated personality whose conduct is not determined solely by reason, a misleading emphasis on the cognitive function 'requires court and jury to rely on what is, scientifically speaking, inadequate, and most often, invalid and irrelevant testimony in determining criminal responsibility'" (Weihofen, 1955, p. 357). The same line of argument is implicit in Justice Douglas' criticism of M'Naghten and his defense of Durham. For the point of his argument is that since "a disturbance in the cognitive, volitional, or emotional sphere, as the case may be, can hardly occur without its affecting the personality as a whole" the need is to have testimony regarding "all facets of the total personality" rather than the "rational being" alone (1956, p. 489).

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infallibly reflect the existence of mental malfunction anywhere else in the mind.5 Hence, if there were a defect of emotional or volitional function, there would be bound to be a comparable defect of cognition. A test of cognition alone should therefore suffice to reveal any sort of defect of mind. Therefore, the M'Naghten test should be adequate, even if interpreted as pertaining to cognitive factors alone. Professor Jerome Hall has seen that this follows 8 and at one time argued that, since the unity of mind is a "well-established scientific truth," since what affects any dimension of mind affects comparably all others, the M'Naghten test of cognition alone is therefore bound to be adequate. This, at last, is sound logic. But, unfortunately, the premiss on which it is based remains factually unsound, since in actual fact irrationality is very often unevenly reflected in the various mental "spheres." One may defend the thesis and postulate, as some writers do, that in some profound, theory-linked sense, the irrationality of one sphere is "equally" present in all. This, however, is speculative theory, not "well-established scientific fact." As yet, both common-sense observation of conduct and sophisticated scientific test of mental function show the contrary. If the unity-of-mind concept is to have any validity, then, it cannot mean that as a matter of fact every mind is either healthy in all respects or equally defective in all respects. Aware of this, some of the advocates of the unity thesis have tried to save the situation by proposing a qualification. This qualification actually changes the entire point of the thesis. The qualified thesis of the unity of mind is this: when we deal with mental pathology, with abnormality of mind, then the unity— which is typical of a healthy mind—may break down. In pathology, integration breaks down. Thus, in insanity, in contrast to normality, 5. Cavanagh, for example, says exactly this: "What affects one part affects all other parts. What is more important for our purpose is the fact that when one aspect of the personality is affected, all other aspects of the personality are affected in a proportion related to the severity of the original disturbance" (1962, p. 482). 6. Hall, 1945, p. 708. But in a later paper, Professor Hall proposes a test of insanity which in effect acknowledges that, in spite of the integratedpersonality doctrine, it is not enough to single out "cognitive function" and assume that any mental impairment whatever will also be detectable here (see 1956, p. 781).

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we may find, for example, that the emotional functions are severely pathological, but the cognitive functions are noticeably less so, or vice versa. 7 From this qualified version of the unity-of-mind thesis it does follow, of course, that a test of cognitive functions, such as M'Naghten

is asserted to be, would not be adequate as a general

test for insanity. Given this qualification of the unity-of-mind thesis, what are w e now to make of it? It n o longer purports to be an empirically verified description of minds, a description which holds universally true of all minds. It becomes, instead, a characterization of the "healthy" or "normal" mind. Or to put the same point more revealingly, it states a norm, a norm of health, which in fact may or may not be satisfied depending o n the circumstances of the particular case. 8 7. In spite of Cavanagh's thesis, cited above in notes 1 and 5, concerning the facets of the mind as mirroring each other in a "frictionless" way, he says, paradoxically, and in the very same discussion: "Each mental illness predominantly affects one part of the personality. In the schizophrenic, for example, it is the imagination, in the sociopathic personality it is the evaluative function of the practical intellect" (1962, p. 481). It is remarked by the eminent forensic psychiatrist, Manfred Guttmacher, in his comments appended to the ALI Model Penal Code: "Professor Jerome Hall of the Law School of the University of Indiana has maintained that the M'Naghten formula is adequate and special provision for the irresistible impulse is unnecessary since the mind is not functionally compartmentalized but, in keeping with the now universally accepted psychological theory of integration, the will, the intellect and the emotions are interdependent. One function can not be affected by disease without affecting the others. Certainly, this is scientifically sound but it is of doubtful practical value since the various functions of mentation are disparately affected in various diseases and in different individuals. The same may be said of disorders of other organ systems. Respiratory difficulties are present in cardiac disease but their intensity varies greatly in different pathological conditions and in sick individuals. In many serious psychiatric cases, disorders of the will may be prominent while defects of the intellect are minimal, in fact, they may be of such a minor degree that it would be stretching the M'Naghten formula beyond the breaking point to include them in its orbit" (p. 174). 8. Sobeloff verges on this insight, but seems then to lose it when he says: "The intervening years have brought abundant confirmation of the idea that responsibility implies reasonable integration of the total personality which includes the emotions as well as the intellect. Medical psychology teaches that the mind cannot be split into watertight, unrelated, autonomously functioning compartments like knowing, willing and feeling. These functions are intimately

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I believe that the unity of mind or the integration of personality is in truth a basic normative ideal which many persons approximate. 9 If we make this assumption, a number of other facts fall into place. F o r one thing, many persons do in fact approximate the norm, and it is an important practical norm of therapy, education, and everyday life. It is therefore an empirical norm, and we intuitively appreciate that it is so ( a s is reflected in the psychiatric emphasis on it as fundamental). It is empirical in that it is a norm deeply rooted in the facts of human nature. It is a norm, however, and not a universally true description of fact. H e n c e also, in spite of the justified feeling that this thesis is important, universal ( a s a n o r m ) , and empirical, it is not surprising that no one has offered anything like an empirical scientific demonstration that it is a universally true factual description. Indeed, the facts, as adduced by psychiatrists themselves, related and interdependent" (1955, p. 794; emphasis added). In the first sentence he is saying that there must be integration if there is to be responsibility. But in the second sentence he seems to be saying something quite different—that there necessarily is integration. 9. The unity of mind as a basic normative ideal rather than a descriptive generalization is not a notion peculiar to contemporary psychiatry. It was plainly formulated, and quite properly, as a norm of sanity in the first half of the nineteenth century: "what is the condition to which insanity, mental alienation, unsoundness, derangement, is opposed? It is that condition of the mind in which the emotions and the instincts are in such a state of subordination to the will, that the latter can direct and control their manifestations; in which moreover the intellectual faculties are capable of submitting to the will sound reasons for its actions. Such co-ordinate action of the faculties is termed 'sanity'" (Bucknill, 1856, p. 17). "A sound mind supposes an existence of all the mind's feelings and intellectual powers in a state of vigour, and under the subordination of the judgment, which is designed by nature to be the governing or controlling principle. And thus constituted, the mind is said to be in a state of order or arrangement. It often happens that this order or arrangement is slightly broken in upon by natural constitution, or some corporeal affection; but so long as the irregularity does not essentially interfere with the mental health, it is no more attended to than slight irregularities or disquietudes of the body. Yet, whenever it becomes serious and complicated, it amounts to a disease, and the mind is said, and most correctly so, to be deranged or disordered" (Shelford, 1833, p. xxxi). The idea that sanity lies in the proper organization and coordination of the mental faculties is the very meaning of the ancient legal phrase, non compos mentis (an un-put-together mind, an uncomposed mind, a nonintegrated mind).

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are that in cases of mental impairment we have a lack of integration of the mind. As a basic norm in psychiatric doctrine, the unity of mind represents a broad orientation of the dynamic psychiatrist. It is easily confused with a different though related orientation of the psychiatrist. For he constantly tries to see the various aspects of man's conduct and personality in relation to each other, to see how a person's thoughts are related to his desires, his perceptions to his fantasies, his fantasies to his desires, his thoughts to his fantasies, and so on through all the major dimensions of the mind's activity. And the psychiatrist then seeks to discover how all these are related to the person's actual conduct. But to seek to see how the aspects of mind are related to each other is not to affirm that they form an integrated whole. For example, if a person's beliefs are shaped primarily by his desires or fantasies, but hardly at all in their essential content by the other circumstances of his life, then he may be said to have delusions. Of course, these beliefs may have a certain important or even decisive relationship to his conduct. But this shows that not just any relations, no matter how important or influential, count as relations that "integrate." They must be the proper kind of relations. The absence of the proper kind of relations is what is characterized as a failure of integration, as disintegration. When belief is primarily determined by fantasy, there is a relation between the two; but it is the kind of relation we call mental disintegration. And, conversely, when belief does not mirror fantasy but remains reasonably independent of it (and is determined primarily by perception of fact), then this very independence of one aspect of mental function from another reflects what we call mental integration. Here, too, we see that mental integration (or integrity) really refers to certain kinds of relations among the various aspects of the mental function; it does not refer to some indiscriminate mirroring interrelation in which every change in one dimension is necessarily and to a comparable degree reflected in every other dimension. Analogous comments may be made about emotions or moods. If, for example, a person's emotion or mood is shaped largely by some fantasy in which he obsessively indulges, or if the quality of the mood or emotion is due primarily to physiological pathology, and if

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the mood is then the primary influence on what he thinks, remembers, imagines, or does, then once more the psychiatrist sees this kind of interaction as a breakdown of the normal integration of the mind and personality. This is an emotional disorder rather than a cognitive one. The person may be said to be, for example, depressive or manic. Here again we see that although mood has a relationship to the circumstances of the person's life, what is absent is the proper relation between mood and the circumstances of his life. This is not the kind of relation we speak of as constituting an integration of mood with all else. For example, the depressive mother's emotion, leading her to kill her child, is an irrational emotion. It certainly does have some important relations to her beliefs, attitudes, and conduct. If merely to be influentially related were enough to be integrated, her emotion could be said to be integrated with what she thinks, wants, and does; indeed, it decisively shapes these. But characteristically we speak of a lack of integration here, of a mood isolated from reality. This is a psychiatric way of saying that her mood is not rationally related to her life circumstances. That is why we speak of absence of integration here. The psychiatrist may detect such cognitive, emotional, or other sorts of failures of integration even when the layman misses them. This is his expertise. But often the layman notices it too, or it can be pointed out to him by the expert. In spite of somewhat different methods of observation or degrees of expertise, at bottom both layman and psychiatrist accept essentially this same norm of mental health, the norm of integration, of unity. What, then, is the criterion of integration or unity? That is, what are the proper or right relations among the various aspects of the mind's activity, the relations whose presence marks what we call integration? And what are the relations we call pathological, relations marking what we call disintegration? We have already noted elsewhere that the psychiatrist attempts to see the wholeness of the mind on the model of rationality. He tries to see or to postulate reasons, purpose, meaning, where on the face of it there seemed to be irrationality. Analysis of the meaning of conduct includes analysis of the way in which valuational and moral judgments are made by the person with respect to what he takes to be his environmental

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circumstances and his inner needs, desires, attitudes, and ideals. The relationships necessary here if the mind is to be considered integrated or unified are the very relations we ordinarily refer to most generally by the term "rational." 10 The notion of the integrated personality or mind is not, as is well known, a precise or univocal one; it can be hospitable to wide variations in application, depending on the subject's individual temperament, life style, personal values, the relevant cultural styles, and so on. But there are limits, too. We do have certain minimal, though still complex, expectations about the normal relation of mind and conduct to changing circumstances. When these minimal conditions are not met, we speak of irrationality. What are these very minimal relations, here called rationality, that allow such a wide variety of types of nonpathological personalities and yet are necessarily present in all? What are the relations that constitute the general form of the unity of mind? It is of course plain by now, from the discussion in chapter 4, that the unity is the unity of a mind in which in all its functions, internal and external, response is relevant. The wide variety of nonpathological personalities is possible because relevant responses can vary widely, depending on the personal and social background and the person's individ10. The adumbration of this thesis can be seen in such representative comments as the following: "Reason and will must function together; if they are separated be it ever so slightly we deal with serious mental pathology. Lawyers will have to learn something about the indivisibility of the human personality before they learn to apply Judge Bazelon's opinion judiciously and psychologically correctly" (Zilboorg, 1955, p. 333). "Thus, the power of self control means a power to attend to distant motives and general principles and connect them rationally with the act under consideration" (Davidson, 1956, p. 5, using the words earlier used by Stephen in his History). "The essential legal premise is that man is, in significant measure, a rational being; and a psychological theory that is not only consistent with this but independently valid as well, is that man functions as a unitary being" (Hall, 1956, p. 775). Hall is getting at substantially the same point in 1964 when he writes, "It is also clear that there is very wide agreement regarding the psychology of the integration of the various functions of the personality and that control of conduct is, therefore, as important as is understanding its nature and consequences. (In stating the facts in this way one must not forget that there are not two separate independent variables—knowledge and control—but only a single process in which knowledge and control are f u s e d ) " (p. 1063).

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uality and imaginativeness. The capacity to respond relevantly is nevertheless not an empty generality, as unity of mind tends to become, but an identifiable, fundamental norm of mental health. In a unified mind, then, the initiatives and responses of that mind are relevant to whatever is essentially relevant to them. To detect significant irrelevance to what is essentially relevant is to detect a breakdown of the unity or integration; it is to detect irrationality. And as has been said earlier, the task of explanation in dynamic psychiatry is to uncover hidden relevance where there seemed to be nonrelevance, meaning where there had seemed no meaning, pursuing the links until one arrives at the deeper, more pervasive, hidden root-irrelevancy in the unhinged mind. We can conclude, then, that the thesis of the unity of mind, insofar as it is valid, does not mean that all dimensions of mind deteriorate uniformly in relation to each other. On the contrary, the thesis is consistent with the approach we developed earlier: The norm of rationality is a fundamental norm of mental health. Defect of reason in the broad and fundamental sense is a generic feature of mental pathology. But such defect usually is not total. Thus, in order to determine whether incapacity for rational conduct with respect to the criminality of that conduct exists, one must look to see specifically; one cannot assume that insanity (incapacity for rationality) in any respect necessarily entails criminal insanity and criminal nonresponsibility. This is consistent with doctrine upheld by most courts and commentators.11 (The outstanding apparent exception may seem 11. In reaching this conclusion, we have in effect conformed to the basic requirements, as set forth by Hall, for a "sound rule of criminal responsibility." He specifies four elements to the rule (1956, p. 781): "Such a rule must (1) be consistent with the view of man as a rational being—that is, it must retain irrationality as a criterion of insanity [this, of course, is central to my own analysis]; (2) be consistent with the concept of integration of the functions [this, I maintain, is what we have now done, though the significance of that concept has been shown to be in some ways different from what Hall supposed; but its intimate connection with the principle of rationality, which he has always stressed, turns out to be more profound than ever]; (3) facilitate psychiatric testimony regarding volitional and emotional phases of personality [this now becomes an inevitable and natural consequence of appreciating that the concepts of rationality and rational conduct refer not to intellect or cognition solely, but to the total pattern in which all aspects of mental activity are related to each other and to the circumstances and conduct]; and

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to be the Durham rule. But on this point see the discussion of Durham later in this chapter.) We thus come full circle back to the definition proposed prior to our discussion of the unity of mind: Criminal insanity existed if the individual's mental makeup at the time of the offending act was such that he substantially lacked capacity to act rationally with respect to the criminality of his conduct. It is because the pathological mind is not a unity that we need to have the last clause of this definition as part of a definition of specifically criminal insanity. PSYCHIATRIC DIAGNOSTIC CATEGORIES AND CRIMINAL INSANITY

The concept of capacity to act rationally with respect to criminal law has certain important practical, though only rough and ready, implications regarding standard psychiatric diagnostic labels. These implications are summarized below, and explanatory discussion then follows. The conclusions I reach coincide with the general trends evident in actual courtroom experience. This fact tends to confirm that the rationale I am here developing is indeed the rationale underlying the intuitive but hitherto never adequately justified or explained practice of the courts and forensic psychiatrists. First let me set forth didactically the chief implications of the preceding analyses as they bear on standard psychiatric diagnostic categories: (1) For the most part, neurotic conditions should not be classified as criminal insanity. (2) If the offending act is a manifestation of a psychotic condition, it should be held to constitute criminal insanity. (3) The large and very miscellaneous category of "per(4) be stated in terms that are 'understandable to laymen* [and here, too, we have shown that this is not a mere practical condition but goes to the heart of the meaning of insanity; for the central concept, rationality, is at bottom a traditional and basic term of common morality and human relations rather than a technical concept]." In short, my analysis has shown that these four basic requirements set down by Hall are not four more or less independent requirements, but that they express four profoundly important aspects of the same central truth—that insanity is not a technical notion but is at bottom a layman's term referring to grave personal defect in the capacity to act in ways that are at least minimally intelligible or meaningful to the ordinary man.

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sonality disorder" will present the most irregular results; the category will include some cases of criminal insanity. The test will, of course, remain in each case whether in fact the person is found to have a mental or personality makeup such that, with respect to the criminality of his act, he does substantially lack capacity to act rationally. These summary remarks now require elaboration. In essence my aim will be to identify what there is, if anything, in the definition of each of these diagnostic categories that would be likely to have a uniform bearing on the legally relevant question concerning a person's mental makeup as it affects his capacity for rational conduct with respect to criminality. Neurosis is a condition that, by definition, consists in some defect in capacity for rational conduct. 12 The defect may be relatively minor. It may be more severe and yet be a socially adaptive irrationality, as in the case of a highly compulsive bookkeeper. It may be near crippling in its gravity and social maladaptiveness, as in acute anxiety neurosis or in severe obsessional neuroses. Here the panic or phobia may be so intense and so easily triggered that the person in many situations cannot even appear to act rationally with respect to important social demands or norms. Nevertheless, it is in the nature of neurosis, as a matter of explicit definition for some schools of psychiatry, that although the condition involves irrational wishes and fantasies, often perceived in distorted fashion by the individual, 12. See, generally, the discussions and citations in Part I. The concept of neurosis is defined in dynamic psychiatry by essential reference to defensive maneuvers of the ego, which is to say by a refusal (triggered by anxiety) to become aware of and to deal realistically with some impulse(s). Thus, it is in essence a form of irrationality, though not necessarily grossly irrational with respect to the capacity to take into account relevant environmental facts and social norms. In the official Diagnostic and Statistical Manual of the American Psychiatric Association, which takes a more eclectic stand generally, the issue is not at first sight so clear-cut. But in substance the same thing turns out to be true. That is, the central explicit concept used in defining neurosis in the Diagnostic Manual is anxiety (rather than defense). However, a reading of the individual definitions and descriptions under each specific form of neurosis listed reveals that in each case the element of irrationality is present and central to the definition. The qualification that the irrationality is typically not gross (as it is, typically, in psychosis) is also stressed.

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the individual will not allow himself to indulge them. He will not even admit them to himself. The reason, in technical terms, is that they arouse too much superego anxiety. In translation into ordinary English, this technical formulation amounts to saying that the neurotic does not indulge or even admit to himself his antisocial impulses because, these being so contrary to the fundamental moralcriminal prohibitions that he accepts, they arouse unbearable guilt in him. He has the requisite rationality with respect to his conduct in relation to crime; indeed, he is if anything overly sensitive to what is required of him. What he lacks is understanding of the true nature of his own desires and fantasies, and hence he is unable to transform them so that they are rational and issue in conduct that would be from a moral-legal standpoint acceptable. Therefore he represses these impulses rather than overtly gratifying them. And it is this repression of what he apprehends as immoral or antisocial impulses that is the core of his neurosis. Thus, using the definition of criminal insanity I have been developing here, we find a psychiatric-legal rationale for the common, intuitively accepted practice in the courts according to which neurosis is rarely allowed as a basis for a finding of criminal insanity. The neurotic is irrational, but not usually with respect to his conduct in its relevance to the grosser, essential norms of morality and criminal law. With respect to the latter, the neurotic, by definition, can respond relevantly; he knows enough to know what the law essentially means, and he can control his conduct in conformity with law if he wishes. Psychosis is often defined as essentially a break with "external reality," a "loss of contact with reality." 13 A contrast with neurosis can help us here. The neurotic orientation is to distort, for example, murderous impulses, to deflect them into relatively innocuous and devious channels; it is to avoid flagrant violation of moral-legal norms by engaging in disguised and symbolic forms of destructive13. See the citations in chapter 1, p. 26. And see note 15, below. Roche gets at the central issue in his comment: "Unlike the psychotic, who has usually broken with reality, the neurotic's 'inner defenses' generally remain sufficiently strong to maintain undisturbed his grasp of reality and the external world" (1950, p. 1328).

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ness rather than actual physical attack. The psychotic, however, indulges overtly the original impulse, and rationalizes 14 this conduct by gross distortion in his consciousness of even the most patent of facts and norms in the "real world." The criminal paranoid psychotic can be literally murderous because the occasional fleeting expressions of displeasure or antagonism shown to him by other people, as he sees them, reflect to his discerning eye a pervasive and deep-rooted desire by others to destroy him at the first opportunity. He may see acts of kindness as insidious traps. Mere indifference may be seen as studied rejection and enmity. Anything and everything may be seen as a ground for unleashing literally destructive impulses. He cannot respond to the relevance of certain distinctions that for the normal mind are essential distinctions. We have already commented in various places on psychotic depression, and on delusional psychosis. Here, too, where the patent facts and basic norms conflict with the mood or belief, the facts and norms are distorted until they are seen as justifying, rationalizing, the mood or belief. The conduct flowing from the psychosis may happen to impinge on areas within the scope of criminal law. If it does, then the psychotic stands in direct contrast to the neurotic: the psychotic, because he flagrantly distorts facts and norms, and cannot correct these distortions, will be unable to take the law rationally into account. Nor will he be likely to conform to law when it stands in the way of his psychotic impulses and aims. Thus, in the nature of the case, psychosis generally implies incapacity to act rationally with respect to the basic requirements of criminal law when the psychotic impulses happen to involve conduct coming within the scope of criminal prohibitions. Of particular importance in connection with assessing the psychotic's criminal responsibility is the fact that the diagnosis contains 14. It should be clear that in this common usage, "rationalization" means the proffering as justification for one's conduct what are intended to be, at least prima facie, considerations making that conduct rational, whereas in fact they do not do so, or at least do not reflect the person's own true reasons for acting as he does. The inclination to rationalization reflects how deeply man's orientation to the rational is rooted even in the pathological mind.

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—unlike other generic psychiatric diagnoses—a built-in judgment of the gravity of the defect. Neurotic conditions can exist in a wide range of degrees of severity, from so mild and adaptive as hardly to be noticeable to cripplingly irrational and maladaptive. The personality disorders, which we shall very shortly turn to consider, can also exist in relatively mild degree or in extreme degree. But psychosis is a concept that, perhaps more than any other general diagnostic concept, implies severity of mental disturbance. 15 In the language I have been using, the psychotic defect in capacity for rational conduct is generally, therefore, a substantial defect. The personality disorders have long been the stumbling block in the attempts of the criminal law to conceptualize mental disease. The 15. In their textbook of psychiatry, Redlich and Freedman (1966) say, "The term psychosis—in different contexts—has been reserved for severe and sweeping disturbances of the higher mental functions" (p. 252). English and English, in their psychiatric dictionary (1958), state under the definition "psychosis: any severe, specific mental disorder or disease process" (p. 428). The official Diagnostic and Statistical Manual of Mental Disorders of the American Psychiatric Association (1952) introduces the section on psychotic disorders generally with a brief statement that "These disorders are characterized by a varying degree of personality disintegration and failure to test and evaluate correctly external reality in various spheres" (p. 24). Redlich and Freedman state that "Some schizophrenic reactions, which we call psychoses, may be relatively mild and transient; others may not interfere too seriously with many aspects of everyday living" (p. 252). They nevertheless follow this with the statement that on the whole, "The best and possibly the only differentiating criterion [for distinguishing psychosis from neurosis] is the fact that in psychosis the higher mental faculties . . . are more deeply impaired than in neurosis" (p. 252). And the APA Diagnostic Manual uses language that expressly or by clear implication calls for severity of mental disturbance in the more specific official definitions which it gives for both the affective and schizophrenic types of psychoses, the two major types. Perhaps more oriented toward statistical and experimental approaches to clinical psychology, Meehl (writing jointly with Livermore) speaks of "conditions in which the sense of reality is crudely impaired, and inaccessible to the corrective influence of experience—for example, when people are confused or disoriented or suffer from hallucinations or delusions" (1967, p. 804). Speaking of such words as "substantial" or "gross" in the context of mental defect, they clarify their use of these words by saying that "The substantial defects we have in mind, however, correspond roughly to the present distinction between psychosis and other mental abnormalities" (p. 802).

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term "personality disorder" is used in ways that are "extraordinarily inclusive." 16 Even in the strict sense authorized by the official Diagnostic Manual, the term covers a heterogeneous range of conditions partly defined on the basis of the underlying dynamics of personality development, but largely defined by reference to miscellaneous types of observable character traits. Essentially, according to the Diagnostic Manual, the personality disorders are any patterns of conduct that are deep-rooted in the person's life pattern, and that are not primarily neurotic or psychotic patterns or ascribed to organic defect. In effect this means an antisocial or unsocialized personality in which, however, neither neurotic anxiety and inner conflict nor psychotic loss of contact with reality are predominant traits. The variety of such socially unadaptive personality patterns is endless, the so-called psychopath (or sociopath) being perhaps the most frequently discussed in the context of crime. In a way, personality disorder is a kind of wastebasket category; it includes the personality maladaptations not assigned to the more specific categories of neurosis, psychosis, or organic (neurological) pathology. In connection with the problem of criminal insanity, much debate has raged over the question whether personality disorders generally or any particular subgroup of them are mental diseases. This question has taken on importance because of the fact that in all the legal insanity tests mental disease is an essential condition of criminal insanity. Some psychiatrists and psychiatric institutions have held that personality disorders are not mental disease; others have held that at least some specific subgroups are; and still others have changed their position in midstream, much to the embarrassment of the courts.17 So long as the question is viewed as a purely medical 16. English and English, 1958, p. 383. See, generally, Livermore and Meehl, 1967, for extensive discussion and bibliographical citation of material on the essential meanings of such terms as psychosis, neurosis, personality disorder. 17. See the discussion in chapter 1, above. With respect to the form of personality disorder most commonly at issue, the sociopathic personality (or psychopathic personality), Guttmacher summarizes the situation by saying, "some psychiatrists will consider psychopathy a mental disorder, and many among the more analytically oriented even a mental disease, while others, chiefly those of the old school, will slough these off as merely instances of a 'behavior disorder.' . . . on the basis of psychodynamics [this latter point of view] is probably indefensible" (Model Penal Code, draft 4, Appendix B, p. 176).

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one, the decision must remain arbitrary. For reasons we have discussed elsewhere, the criterion of disease must come from the nonmedical context in which the concept is to be applied. Using the definition developed herein, we can put the question anew, as follows: Do the personality disorders involve a grave defect in capacity for rational conduct with respect to the criminality of the act? In view of the miscellaneous character of this diagnostic label, there is nothing in the medical criteria for this class of disorders or for any subclass of them that has any uniform and general bearing on the capacity for rational conduct in question. In each individual case one would have to assess the specific nature of the irrationality, the areas of social life in which the incapacity for rationality exists, and the gravity of the incapacity. Although, therefore, the definition of criminal insanity I propose does not give us a clear-cut yes-or-no answer to the question whether persons diagnosed psychiatrically as having personality disorders will have mental disease within the meaning of the law, the definition does give a rational basis for deciding on a case-by-case basis. No doubt the decision in some cases may as a practical matter be difficult to reach; and such decisions when reached may be subject to controversy. This is inherent in the complexity of the facts relevant to assessing the capacity of such persons for rational conduct with respect to the criminality of the conduct. But at least the trier of fact who uses the definition proposed would be struggling to apply the relevant concept, a basically valid concept and one whose use he has generally mastered. An advantage of this approach is that we need no ad hoc appendix to our definition, as is the case in several of the insanity tests that have been proposed: We can dispense with the controversial provision, suggested in the ALI Model Penal Code and in the Report of the Royal Commission on Capital Punishment, that personality disorder consisting solely of repeated criminality must not, as a matter of law, be allowed to count as a mental disease. The aim of these suggested ad hoc provisions is, of course, to preclude the embarrassing possibility that the individual who commits a crime once would be punished, whereas he who commits the same crime repeatedly would be found not guilty by reason of insanity on the basis of a diagnosis of personality disorder. We need not enter into the

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debates over whether any such personality disorder, restricted solely to criminal acts, exists. Our general definition suffices to discriminate as we should wish it to: if the facts convince the trier of fact that the defendant's mental makeup was such that with respect to the criminality of his conduct he lacked substantially the capacity to act rationally, the defendant was insane. But if the triers of fact are convinced that though crime was a habit and way of life, the individual had the capacity to act rationally—and perhaps was acting rationally, though immorally and criminally—then he was not insane no matter how often he has committed crimes.

SPECIFIC INSANITY TESTS IN USE

It is of the essence that the notions involved in the definition I have proposed are notions deeply rooted in language, in tradition, in our actual, practical assessment of those around us in everyday life, whether they be our children or our adult associates. This feature of the definition provides a firm rationale for calling on a jury of laymen to make the decisive practical application of the concepts. On the whole, the concept of insanity has as its natural habitat the thought and practice of the reasonable layman. 18 No expertise, no 18. Stephen said, "In my experience . . . [the jury's] decision between madness and crime turns much more upon the particular circumstances of the case and the common meaning of words, than upon the theories, legal or medical, which are put before them" (1883, 2:186). Hall puts the point very well when he says, "But normal mental functioning is daily functioning, and serious mental disease—with the aid, sometimes, of the expert's description of the defendant's actual personality—can be recognized in the light of, and by contrast with, daily normal functioning. One should not here confuse identification of the fact of insanity with the psychiatrist's special methods of discovering it or his expert knowledge of the origin and therapy of it. Nor should one be misled by the vehement criticism of the legal test by clinical psychiatrists who have rarely studied psychoses in social contexts which are important in law. The functions of law include the social assessment of responsibility for certain conduct" (1956, p. 987). See concurring opinion of Judge Bazelon in US v Carter (1970, p. 209). An example of the tendency to confusion on these issues is Guttmacher's characteristic psychiatric comment: "The psychiatrist realizes that a psychological differentiation between the neurotic criminal, who heedlessly and persistently risks his freedom to acquire money illicitly, and the miser, who legitimately amasses a fortune and has a monument erected to his memory, may be a very fine one. The pedophile

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professional discipline—whether it be psychiatry, logic, or philosophy—has come to the point of being able to set forth explicitly, and the revered leader of the boys' club may be close relatives, indeed" (1958, p. 633). What Guttmacher means is that the psychiatrist realizes the line in these cases to be a fine one from the standpoint of unconscious psychological dynamics. But this standpoint, of great importance to the psychiatrist, is not the only important standpoint. From the standpoint of the parents of the boys, society, the law, and the boys themselves, the difference is not fine but immense between the pedophile who accosts young boys in furtive and depraving ways, and the boys' club leader who teaches them arts and crafts, and the love and lore of nature, and provides them with entertainment while inculcating social skills and moral scruples. A. Goldstein says, "But in the long meanwhile, we shall have to be content with a concept of insanity very much like the one we now have. That concept treats insanity as a legal standard, a loosely framed guide for a process in which particular cases are reconciled with the hard-to-state purposes of the substantive law. Those purposes are, in turn, fixed by bodies which are authorized, through a political process, to speak for the society—legislatures in some instances, courts in others, and juries ultimately. Stated another way, legislatures and courts have fixed the insanity standard in ways which enable jurors to make moral judgments about blame, but informed as much as possible by relevant fact and medical opinion. And because moral judgments are involved about matters calling for widespread acceptance by the public, it is entirely fitting that they be made by a jury. Thus viewed, the insanity test is merely the organizing principle of a process of decision which uses a 'political' solution to advance subtle social objectives. It is a normative standard applied to conflicting clusters of fact and opinion by a jury, an institution which is the traditional embodiment of community morality and, therefore, well suited to determining whether a particular defendant, and his act, warrant condemnation rather than compassion. "Examination of each of the tests of insanity supports the foregoing interpretation. Each of them proves, on careful analysis, to have evolved as a standard, after initial efforts to treat them as describing medical entities" (1967, p. 91). What Goldstein fails to bring out in the preceding is that it is not satisfactory to say finally that insanity is a standard whose application rests on the judgment of laymen, that blame is inappropriate and compassion is warranted. This is not a satisfactory resting place for the analysis of the insanity standard because it is not specific enough. After all, compassion rather than blame can also be appropriate where there are excusing conditions other than insanity. It is plain that insanity is a specific condition that precludes blame, not just any blame-precluding condition. To get to the specific character of insanity, we must go beyond blamelessness in general to the specific condition of blamelessness because of incapacity for rational conduct.

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systematically, and clearly the criteria of rationality in the sense relevant here. In spite of this absence of systematic definition of the concept, we could neither think nor conduct our lives if we did not use it. We must and do concern ourselves with discriminating what is rational from what is not. Our life presupposes the validity and centrality of the concept. In spite of the limits to the degree of formal clarity we can achieve in the matter, we must come to some decision concerning the specific way in which the concept of rationality should be introduced into actual legal language concerning insanity (assuming that such would in fact become an accepted goal). We must consider some practical questions concerning the way in which an insanity formula centering on this concept could be presented so that a jury of laymen could adequately understand the kind of judgment they were being asked to make. And in considering these very specific sorts of questions, we must inevitably consider the precise bearing of my analysis on the actual insanity formulae in use today in United States courts. I do not intend in this essay to propose any one formula as a recommended test for criminal insanity. There are many practical questions to be considered in settling on such a definite formula, questions not directly germane to this study. There are questions for judicial discretion in connection with adapting a test to relevant statute and case-law precedents that may be felt to be more or less binding on a particular court or jurisdiction. There are questions of public policy, involving among other issues the public policy concerning whether to expand or to contract, within principled limits, the scope of the insanity plea. There are matters of legal administration and procedure, of sentencing procedure, and penology.19 Within the limits of fundamental principle, there is always room for such varying degrees of emphasis and deemphasis as seem reasonable on other grounds than those we have here explored in detail. Since the exact wording of an insanity test may serve to implement such ancillary purposes, it cannot properly be settled here. But always, underlying, there must be consideration of fundamental principle, of the principle that at some point there shall be op19. These sorts of questions have already been touched on in the Introduction, above.

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portunity for one who is threatened with criminal condemnation to enter a plea of nonresponsibility by virtue of inherent mental incapacity to respond rationally to the demands of law. Maximal clarity on the meaning and rationale of this central issue is essential to any suitable insanity test. In a rather ad hoc way I have occasionally made comments on the bearing of my own proposals on the specific insanity tests in use in the courts. I shall now try to state in more practically oriented detail what I take to be the relation of my analysis to the specific tests already in use. I have already indicated that my analysis is in spirit and in word remarkably consistent with the M'Naghten test as far as the latter goes. However, my analysis does imply that the M'Naghten test is indeed, as many of its critics have said, narrower than it need be. I interpret the M'Naghten use of "disease of the mind" as equivalent to "mental disease," and I interpret this phrase as making explicit the requirement that the mental makeup of the person be in some serious way pathological, unhealthily abnormal; the phrase excludes, in particular, pathological states of mind that are direct and temporally limited effects of specific causes or influences external to the mind and personality—for example, mental abnormality briefly induced by alcohol or other drugs and by blows or other physical trauma. But mental disease, as pathological mental makeup, is not yet insanity. I interpret "defect of reason" in M'Naghten to be a way of singling out the specific and characteristic nature of the mental abnormality or pathology if it is to count as insanity: "Defect of reason" tells us that whatever else may be involved, there must at least be, as an element or aspect of the pathological mental condition, a substantial defect in the person's capacity for rational conduct. The element of defect of reason is of itself not enough to establish insanity. The phrase "disease of the mind" is also required. By requiring that the defect of reason be present as disease of the mind —as an inherent condition of mind—we do more than preclude such self-induced impairments of capacity as voluntary intoxication; we also establish something of the greatest practical importance: where irrationality is conceived as inherent, there is a prima facie basis for suspecting that the defect continues to exist even though some time

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has passed between the antisocial act and the criminal trial. And this presumption in turn is what morally and legally justifies holding a person who is acquitted on grounds of insanity for posttrial confinement and medical examination. The fact that the accused must be found in a mental condition such that he can understand the trial proceedings and give aid to his attorneys in order for a trial to be held at all does not preclude the prima facie assumption that he may have remained criminally insane. The test of mental capacity to stand trial is quite different from the test of criminal insanity; and we have already noted that it is the rule rather than the exception for a person who is irrational in some respect to be rational in others (see pp. 203-206, 221 n. 7). The subsequent clauses in M'Naghten requiring that the defect of reason from mental disease be "such that the person not know the nature and quality of his act or that it was wrong," I read as follows: (1) The defect of reason must be such that the person cannot be rational with respect to (cannot respond to what is essentially relevant to) the moral-legal status of his act. (2) In focusing on what the person knows rather than on what he felt, wanted, or perhaps impulsively did, the test is specifically for delusional insanity, or for other types of insanity where irrationality is most evident in cognition rather than mood, emotion, desire, or behavior per se. Here the essence, then, is the response to relevance, rather than the relevance of the response. In other words, the person who does not see the moral relevance of his deed is one who does not know it is wrong, whereas the person who does see the moral relevance of his deed but cannot shape a relevant response is one who has lost selfcontrol. In this latter connection I would add that this narrowness of the test seems to have been by design. The M'Naghten test was offered in direct response to an explicit request that the judges devise a test for delusional insanity specifically. It is therefore fair, perhaps even obligatory, to read the opinion as designed to provide a definition oriented toward delusional insanity only.20 Perhaps the judges 20. The judges who formulated the answers refer a number of times to the fact that they are responding specifically to the questions as presented to them, questions explicitly put in terms of delusional insanity. The words and tenor of their answers would all justify the flat statement that all their proposed rules were designed for delusional insanity and not necessarily any other kind

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would in any case have favored so limiting the definition. They may well have been unwilling to recognize other types of insanity which, at the time, were being much debated but had not received general acceptance. In any case, whether by conscious design, by the natural effects of inherent professional skill, or by these and happy coincidence, the framers of M'Naghten

in fact provided a formula which in its core

("defect of reason from disease of the mind") is correct and entirely general. In the qualifying clauses concerning knowledge, the test is specific, it is true, but is readily expandable to allow the inclusion of other analogous clauses pertaining to self-control or to any aspect of mental function thought relevant. Thus, in effect, it seems to m e that M'Naghten

can stand as an

adequate test if properly interpreted, retained in full, and rendered somewhat more flexible in certain respects. 2 1 T h e original explicit (see Keedy, 1952; report of the Group for the Advancement of Psychiatry, 1954); but several aspects of the matter call for caution here. For one thing, when they came to the precise formulation of the now classic test, they did not include the qualifier that the insanity which it was a test for was delusional insanity specifically. Thus the immediate passage in question, clearly a carefully formulated one, speaks of insanity without qualification. Furthermore, as Hall says, "Viewed historically, there can be little doubt that the M'Naghten Rules represented an intellectualistic psychology" (1945, p. 697). It is entirely possible that the absence of the qualifier "delusional" before the word "insanity" at the crucial point is due to the fact that the delusional aspect had already been mentioned a number of times and that the judges were not inclined to suppose that there was any other bona fide type of insanity. The debate over the so-called moral-insanity category was raging in psychiatric circles (see Stephen's excellent summary of the issues in volume 2 of his History, pp. 147-148); but the conservative view was that insanity was by nature a defect involving the intellectual perceptual faculties, that is, delusional or hallucinational. Dubin seems to think that the judges meant to be formulating a specific rule for delusional insanity rather than a general one for all insanity (1966, p. 387), and the comment by Guttmacher in draft 4 of the ALI Model Penal Code expresses the same stand (p. 173); but I believe Ellenbogen is more correct when he says, "It is clear enough, then, why the questions which the House of Lords propounded to the judges in 1843 referred explicitly to insane delusion; not only did they arise directly out of a case involving delusion (Macnaghten), but they were propounded at a time when delusion was regarded as the sine qua non of insanity" (1948, p. 192). 21. Livermore and Meehl have proposed a version of M'Naghten which they say is viable, but I believe that, while much of their discussion of the related problems is important and sound, the specific resolution they propose is

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requirement of defect of reason would be better retained explicitly. Alternatively, the sense of this phrase could be incorporated in substance by incorporating it, by means of judicial interpretation, into the concept of mental disease. The latter concept would then necessarily imply, for criminal law purposes, mental pathology involving substantial defect of capacity for rational conduct. Instructions to a jury to this effect would be necessary, and in any case the judge's instructions would have to explain the point to a jury. I shall comment later on some desirable features of such an instruction. If M'Naghten or any variant such as the Model Penal Code test is to be used, it is of the essence to have some clause or other that ties the offending act specifically to the mental disease.22 But the reference in the original M'Naghten rule to the defect as one involving knowledge (cognition) is not of the essence so far as the central meaning of criminal insanity is concerned. The defect of reason may show up primarily as a cognitive, a volitional, an emotional, or a behavior-control defect, or for that matter as any other specific mental sort of defect or any combination of defects. That there be some quite artificial and inappropriate. Their concentration on the ability to make logical inferences as the essence of reason in the context of insanity is retrogressive and is warranted by little more than the characteristic error of contemporary psychologists of leaping from complex concepts rooted deeply in common use to narrowly defined technical concepts (such as inference or cognition) which are supposed to be the meaning of the traditional term. Nevertheless, though the Livermore-Meehl approach is quite unsatisfactory, A. Goldstein's conclusion is, I believe, still valid: "It is not entirely clear, however, why a new rule is necessary. Neither M'Naghten nor the 'control' tests are as narrow as the critics would have it. Far less effort would probably be required to rehabilitate the existing rules, hopefully in combination, than to win the adoption of an entirely new one" (1967, p. 93). See Matthews (1970, pp. 44-46). In a similar vein, see Wion v US and five years later Pierce v Turner, as well as the dissenting opinion written by Judge Trask in the 7 to 6 split decision in Wade v US. 22. Weihofen gives as an example of a type of case where there could be no material connection between the mental disease and the criminal conduct: "There may be cases where the person is suffering from a very serious mental disorder, epilepsy, for example; and the criminal act was not induced by the disorder, but was a conscious and deliberately planned undertaking motivated by the hope of gain. There is no reason for permitting the mental condition to affect the question of his responsibility as a matter of law" (1955, p. 360).

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specific defect is necessary, for there cannot be mere irrationality in general; but that it always be in some one area of mental activity is not necessary.23 What is further necessary, however, is that the irrationality be with respect to the criminality of the act. In using an expanded version of M'Naghten, a version which did not specify that only one area of mind, such as cognition, could count toward insanity, it would seem desirable that the judge mention to the jury only the version of the test that was in fact relevant. For example, in a case where the putative defect clearly is predominantly one affecting self-control rather than cognition, the judge could instruct the jury that the defendant must be found insane if there was that kind of lack of self-control in his conduct which consisted in a substantial inherent mental incapacity for rational conduct with respect to the criminality of his conduct. Or, in the terms of M'Naghten, he should be held insane if he had a substantial defect of reason from mental disease, such that he could not, in acting as he did, take rational account of the criminality of his act in controlling his actions. If, however, the facts of the case clearly touched on delusion, then the more traditional versions of M'Naghten would be relevant. And if some other aspect of mental function, or some combination of aspects, seemed to be affected, the judge could use appropriate characterizing phrases. In short the judge should have freedom to adapt his words in order to characterize specifically the way in which the defendant might plausibly be held to have been mentally incapable of rational conduct with respect to the criminality of what he did. In this way the judge can help to focus the deliberations of the jury on the particularity of the purported defect. But in every case he would set forth and emphasize the heart of the matter, that 23. It might be considered wise for purposes of public or legal policy to limit the defects of reason acceptable for purposes of the insanity plea to some one or several specific areas of mental function. This would be a narrowing of the scope of the plea—as now in fact obtains in many jurisdictions —which derives from considerations extraneous to the central and generic meaning of the concept of criminal insanity. That is not to say, however, that such restriction is improper. To insist that the principle underlying the insanity plea should be clearly understood and given due weight is not the same as holding that in every respect it should always have priority over all other considerations of policy.

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in some respect(s) or other there must be defect of reason, from disease of the mind, with respect to the criminality of his act. The American Law Institute's Model Penal Code, as a number of commentators have said, is essentially a refinement and expansion of M'Naghten.2* It follows that it also can be interpreted consistently with my proposed definition. In the case of the Model Penal Code, however, the principal lack, as viewed in terms of my analysis, is that the original version and all variants omit explicit reference to the defect of reason (substantial incapacity for rational conduct). This omission leaves the test fatally vague as it stands and potentially misleading. The test is potentially misleading because it can be taken to imply that what is ultimately at issue is involuntariness or ignorance, whereas what actually ought to be at issue is irrationality.25 And since the criminally insane person usually has acted voluntarily, and since in many ways he has appreciated very well what he was doing, the test remains fatally vague until we have a criterion of appreciation. The criterion is, of course, defect of reason—that is, the person does not properly appreciate the criminality of his act if he is substantially unable to assess his conduct rationally with respect to the criminality of that conduct. The Model Penal Code test also requires for minimal clarity a proper criterion for "incapacity to conform his conduct to the requirements of law." This phrase can easily be misleading; in fact, if taken strictly, it is definitely misleading. It then apparently calls for speculation about whether there has been a literal breakdown of invisible, inner mental control machinery such that the person could not do otherwise than he did. But typically the insane person could have done otherwise if he had elected otherwise. The true issue does not concern some incapacity to conform, that is, a literal incapacity to perform the legally permissible act. Unless we engage in unveri24. See the Introduction, above, for discussion. The wording of the Model Penal Code test is: "(1) A person is not responsible for criminal conduct if at the time of such conduct as a result of mental disease or defect he lacks substantial capacity either to appreciate the criminality [wrongfulness] of his conduct or to conform his conduct to the requirements of law. (2) As used in this Article, the terms 'mental disease or defect' do not include an abnormality manifested only by repeated criminal or otherwise anti-social conduct" (Sec. 4.01). 25. See Chapter 3, above.

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fiable metaphysical speculations about "breakdowns of the will," we must see that typically there is every evidence that the criminally insane person had both the physical and mental capacity to perform a law-conforming act rather than a law-transgressing act. What he lacks is the mental capacity to elect rationally which act to perform. 26 His capacity for rationality must be ultimately assessed by 26. See, generally, the discussions on the will in Chapters 2 and 3, above. See the Australian cases mentioned in note 17, Chapter 4. Silving reports that a German legal scholar, Seelig, has proposed in Germany that "the present test of capacity to conform be replaced by a test of capacity to act in accordance with rational motivations" (1967, p. 106). Silving has reservations because such a test, she feels, would not clearly discriminate the legally insane from the legally sane in the case of the "many queer people*' who act on the basis of notions others may consider absurd, as in certain "quasi-religious sects." Such borderline vagueness of the test is not a cause for suspecting it but, rather, for strengthening one's confidence in it as a bona fide formulation of our intuitive concept of insanity. It is just such borderline bizarre conduct and beliefs that intuitively are most difficult to classify with respect to sanity or insanity. This is at the borderline of our concept of rationality. A test truly expressive of our concept of rationality ought to become uncertain of application here, and if it does not then we know it is different in meaning from what we ordinarily mean by rational. The difficulty of decision here is proper; case by case decision on such matters is what is desirable, and the formula stressing rationality leads us to rather than away from it and to some specious clarity or speciously automatized classification procedure. It is at this borderline that we need judgment, decision by dispassionate laymen, and not mere routine pigeonholing. The case of Ley as discussed in the Report of the Royal Commission on Capital Punishment presents very well the substance of the thesis I am arguing in the text: "Ley, because of his insanity, lived in a twilight world of distorted values which resulted not so much in his being 'incapable of preventing himself from committing his crime, in the strict sense of those words, as in his being incapable of appreciating, as a sane man would, why he should try to prevent himself from committing it. It seems to us reasonable to argue that the words 'incapable of preventing himself' should be construed so as to cover such states of mind; that they should be interpreted as meaning not merely that the accused was incapable of preventing himself if he had tried to do so, but that he was incapable of wishing or of trying to prevent himself, or incapable of realising or attending to considerations which might have prevented him if he had been capable of realising or attending to them. If each of Ley's acts is considered separately, it would be difficult to maintain that he could not have prevented himself from committing them. Yet if his course of conduct is looked at as a whole, it might well be argued that, at a result of his in-

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a jury of laymen. They must base their judgment on the person's known life circumstances and patterns of conduct, not on speculation about literal inner breakdowns of behavior control machinery. If "appreciate the wrongness of his act" and "incapacity to conform his conduct to the requirements of law" are interpreted expressly by reference to capacity for rational conduct, the Model Penal Code test would conform in all essentials to the requirements of my own analysis. It would still be somewhat restrictive, however; for it fails to mention explicitly that the irrationality might in some cases be most apparent in the emotional area of mental functioning or in some area other than in cognition or self-control. But this is not a fatal flaw once it is established that what is central is irrationality with respect to criminality, and not solely defect in any one or two specific mental functions involved in the irrationality. Here, as with the M'Naghten language, it would be desirable to allow the judge a certain informality and flexibility in the phrasing and selection of these ancillary clauses when he characterizes the specific kind of mental function that is most obviously defective in the case at hand. The controversial second part of the Model Penal Code test, specifying that mere repeated criminality cannot be a basis for exculpation by reason of insanity, is unnecessary. The real issue is whether sanity, he was incapable of preventing himself from conceiving the murderous scheme, incapable of judging it by other than an insane scale of ethical values, and, in that sense, incapable of preventing himself from carrying it out. If the addition to the M'Naghten Rules were construed in this way, it would serve its purpose well, and the Rules thus amended should cover most of the cases where a defence of insanity ought to be admitted" (Royal Commission Report III, cited in Hall, 1956, pp. 778-779). See also the case cited from Guttmacher by Bromberg and Cleckley, 1952, p. 735. Judge Burger, in his remarks on these problems in the Proceedings of the 10th Circuit Conference of 1962, said, "And I would draw upon Cardozo and Jackson and Pound, and a half-dozen others, who have said this, and when they said it they were restating what appears in the Talmudic law two thousand years ago, in writings of St. Augustine and St. Ambrose and St. Thomas Aquinas, fifteen hundred years, more or less. Justice Jackson restated this whole proposition in these terms: 'whatever doubts theologians, philosophers and scientists have entertained, the practical business of government and the administration of the law is obliged to proceed on the more or less rough and ready judgment based on the assumption that mature and rational persons are in control of their own conduct'" (p. 559).

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the criminal conduct is merely persistent, or whether it is a manifestation of inherent mental incapacity for rational conduct with respect to criminality. We have explored this point earlier and shown that this ad hoc appendix to the test is unnecessary once we have an adequate definition of criminal insanity.27 As for the Durham approach, it seems to me that, if the main language of the formula is to be retained and if one also accepts the analysis I have presented, what is called for is (1) an explicit interpretation of the phrase "mental disease" to mean "a mental makeup such that there is substantial defect in capacity for rational conduct with respect to the criminality of the conduct," and (2) a change or reinterpretation of the word "product" along the lines indicated below. The reason for (1) is obvious, and it seems to me entirely plausible to define mental disease this way for purposes of the criminal law. This condenses the "defect of reason" and "mental disease" into one phrase, "mental disease." I see no objection in principle to this. The main practical objection, and it is a relatively secondary one, is that centering almost the entire formal test wording on the phrase "mental disease" might tend, in spite of the further explicit interpretations, to suggest too strongly to a jury that this is essentially a purely medical test of insanity. Although the Durham formula does not mention whether the disease affects one or another area of mental function specifically, the test has never been interpreted as restrictive, as forbidding any allusion to the fact that the defect is, for example, in knowledge, selfcontrol, or emotion. Indeed, in Wright v US the discussion emphasizes that the word "disease" in Durham is not so self-explanatory as to make further elucidation superfluous but, if anything, quite the contrary. What Durham does forbid is that any one or any specific combination of such specific defects be considered essential. And in that Durham has been sound. Of course, as we have noted, there must be some specific form of legally relevant defect if there is defect; there cannot just be defect in general. But we cannot and should not make explicit beforehand what the specific nature of the defect will be or how best to characterize it in its specificity. This follows from the fact that we have no 27. See discussion on pp. 231-234 concerning the personality disorders and the question whether they should be considered as mental disease.

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systematic and comprehensive catalog of the kinds of relevance to criminality that may be essential in any possible situation. Without such a comprehensive catalog, we cannot confidently specify beforehand the ways in which defect of rationality must show itself. We must rely ultimately on the layman's practical mastery of relevance in the assessment of responsibility. Nevertheless, and in contrast to the spirit of Durham, I think that after we do see signs of irrationality in a particular case, then there is good reason to attempt to characterize specifically the area of mental function and conduct in which it exists. The pressure to be specific when assessing insanity can help to minimize a tendency to slight the particulars of the case and to rely on vague hunches or be influenced by social prejudice. Therefore, provided there is flexibility as discussed earlier, I think that additional clauses of the M'Naghten or Model Penal Code type are likely to be highly useful (even though, as I have said, they do not go to the essence). Such clauses should be cast in the terms of everyday life, the terms relevant to a layman's assessment of rationality. The language of psychiatry or medicine should not be used, since the medical testimony should have the role of evidence for or against a conclusory judgment to be cast in layman's and legal terms; medical language and medical concepts should not be conclusory. And the judge, in his instructions to the jury, should have the freedom and the obligation to select and present to the jury the specific phrasing that in his judgment is most relevant to the facts of the particular case. The Durham requirement that the offending act be a "product" of mental disease has been a major source of criticism of the test and of problems in its administration.28 For one thing, the meaning of 28. The sad history of this term, as it proceeds from Durham to Carter to Washington, has been accompanied by much discussion in the literature. In 1954, the report of the Group for the Advancement of Psychiatry stated flatly in its summary of the legitimate claims of the psychiatrist: "2. He can with fair accuracy determine the degree of disorder of the accused relating to: . . . b. The causal connection of the mental state and the act charged" (p. 6). The extreme of the claims on this score is reflected in medical testimony from Martin v US (1960), cited with irony by Judge Burger in 1962 in the Proceedings of the 10th Circuit: "Then the question was, 'Doctor, is this act, this criminal act charged, the product of disease?' And, with what I can almost

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"product" has never been made adequately clear; for another, it has seemed to many that there is something logically or conceptually odd about speaking of a mental disease as causing an act; 29 and finally, it has been so critical ¡in element in the test that psychiatric testimony on the issue has in practice tended to have an unwarrantedly conclusory effect on the final decision by a jury.30 The problem is readily resolved, however, in the light of the analysis I have been presenting. What we are concerned with in substance is not a causal relation between an internal disease entity and an external act. Instead, we have to do with the observed pattern of incapacity for rational conduct in the individual's life history. The specific issue faced by the trier of fact is not a causal one but is one of practical judgment in assessing a person. The question is whether it is fitting to view the offending act as belonging to such a pattern of irrational conduct. This is the kind of complex practical-evaluative judgment we must all make in everyday assessments of other human beings. In everyday life we typically ask and answer for ourselves such questions as: read as surprise in the response of the doctor, he said, in effect, 'Why, of course, of necessity where a man with a mental disease commits an unlawful act, the unlawful act is the product of that disease'" (p. 563). And another kind of extreme claim for complete subservience to psychiatric pronouncements on this issue is Zilboorg's remark: "The trial judge in the Monte W. Durham case tried to pin Dr. Gilbert down on the issue of whether Durham's transgressions were a result of his mental illness. The answer to such a question in this case should have been a bold and unequivocal 'Yes'—provided the court would not demand the impossible from the psychiatrist and insist that he produce 'evidence' of how this particular act was the result of this particular illness" (1955, p. 335). Once again, extreme claims were soon not only shown to be untenable but were rejected not long after Durham by some psychiatric spokesmen who now objected with scorn to the idea that one could identify mental diseases as causes of actions. See note 29, below. But perhaps this psychiatric about-face is best reflected in Washington by the court that originally introduced the term "product" as a key term in Durham. That court said in Washington, "The term 'product' has no clinical significance for psychiatrists. Thus there is no justification for permitting psychiatrists to testify on the ultimate issue" (p. 456). The court now prohibits such testimony. 29. "Mental illness does not cause one to commit a crime nor does mental illness produce a crime. Behavior and mental illness are inseparable—one and the same thing" (Roche, 1955, p. 322). 30. See, for example, Washington, note 31, pp. 455-456.

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Did this ruthless act reflect a ruthless character? or was it "out of character" and simply an isolated act to be ascribed to the special circumstances? Did this helpful deed reflect a generosity of spirit? or was it a manifestation of some covertly calculating trait of character? or was it, perhaps, an act of the occasion reflecting nothing significant about the man's traits of character or mind? Such assessments belong to the context of everyday judgments of men. They are the sort of fundamental, practical judgments exactly suited for a jury of laymen as representative of the reasonable and dispassionate members of the community. Medical information may be of indirect but substantial help, but the question is not ultimately a medical one. It is a question that arises out of the context of responsibility assessment. To come to the details of terminology, I think that the term "product" should be replaced if the main lines of Durham are retained. We could speak of an act belonging to a pattern of irrationality as an act that is a manifestation of the incapacity or that exhibits it, or, simply, that is due to it. M'Naghten uses appropriate language, since the logical connectives it uses—"from," "such that"—do not strongly suggest causality, and they are perfectly consistent with expressing the noncausal relation of a pattern to its elements. The Model Penal Code uses the connective phrase "as a result of." This suggests causality but is ambiguous enough not to require a causal interpretation. "Because of" can also take a noncausal sense which is appropriate here. But the Durham term "product" seems a bit too insistently causal. The most exact way of putting the question, fusing the spirit of the Durham formula with my own analysis, would be, "Was the defendant mentally diseased in doing the offending act?" This amounts to asking, if we substitute the full definition of mental disease that I have proposed, "In doing what he did was the defendant so mentally constituted as to have substantially lacked capacity for rational conduct with respect to the criminality of that act?" However, I can see no grave objections to using more traditional connectives such as "due to" or "from" or even "resulting from." We could ask, for example, "Was the offending act due to mental disease?" And then it would be necessary to explain, as above, the meaning of this ultra concise formula. Regardless of the exact wording of the explicit and formal legal

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test of insanity, it is plain that the interpretative remarks of the judge in his instructions to the jury (or the silent equivalent of these remarks in his own mind, if there is no jury) will have a bearing, perhaps a decisive bearing, on the application of the test to the particular case. Hence, a few words on this score of particular relevance to my own analysis of criminal insanity are in order here. The analyses I have already presented must be taken as context for the following very brief remarks. It is plain that the heart of the issue of insanity as I have viewed it lies in the notion of rationality. This fact has several implications of a very practical kind with respect to a jury's deliberations. In the first place, I think it is a substantial advantage to focus on this notion rather than on mental disease per se. Whereas the term "mental disease" alone readily suggests to a jury that the issue is simply a medical one, the notion of rational conduct, especially when explained as a term of common reason and morality rather than of expertise, puts a different cast on matters. And this everyday, nonmedical status of the test should be even more evident to a jury when they are told that rationality is not here a matter of high intelligence or intellect, or of unusual good sense; that it is a question of mental capacity to respond to what was plainly and inescapably relevant to the criminality of the act, and a capacity to respond in some relevant way, whether criminal or not. The jury should have a clear differentiation presented to it between (1) that genuine capacity to respond to the criminally relevant aspects of the conduct which may show itself as acceptance of the law but may also show itself as deliberate flouting of the law, or as careless or reckless unwillingness to exert self-control or to pay careful attention to the conduct as it might relate to the law, and (2) that substantial incapacity to respond which consists in nonawareness of, nonresponsiveness to, a blindness or tone-deafness with respect to what is basically and obviously relevant to the criminality of the act. Rationality, especially in association with mental disease, still suggests, as it ought, that testimony from medical men can be both relevant and important. But, given an adequate awareness of the use of rational and irrational here, judge and jury are less likely to be decisively influenced by expert testimony to the effect that the defendant had some medically recognized and officially labeled mental

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disorder. It would be crucial that the jury consider whether the person could fairly be said to have lost his reason so far as the demands of criminal law are concerned, and this would have to be understood in the last analysis as a practical overall judgment of the man, of his discretion,31 of his total capacity for practical purposes, not primarily as a technical query about intellectual or other specific mental functions as viewed for medical purposes.32 31. Terms like "discretion" and "judgment" in this context can be useful and have a long tradition for such use. Sayre (1932), in discussing the phase of English legal history when insanity "becomes a well recognized defense" (p. 1005), cites as evidence the statement of Fitzherbert, on p. 202 of the latter's Natura Brevium of 1534: "He who is of unsound memory hath not any manner of discretion; for if he kill a man it shall not be felony, nor murder, nor he shall not forfeit his lands or goods for the same, because it appeareth that he hath not discretion; for if he had discretion he should be hanged for the same, as an infant who is of the age of discretion, who committeth murder or felony shall be hanged for the same." However, no one such word as "discretion" can be used without further elaboration. All these words—including "rational"—that have deep roots in common usage have taken on many nuances, only some of which are proper in the context of insanity. This is not a grave difficulty if the judge, in his instructions, does something to bring out the proper use of the term in the context of insanity and law, and if he encourages the jury to supplement his remarks by using their common sense and good judgment as they apply these terms which are already familiar to them and generally suitably used by them. In addition to the phrasings mentioned above and in the text, one might also note such other examples as those cited by Reid (1962, pp. 728-729): "although he be of feeble or excitable mind, or variable temperament, driven about by jealousy, or pride, or self-consequence, or anger, or temper, moved by trifles, or indifference, to grave consequences,—he is responsible" (citing an 1876 Scottish case, H.M.A. v Macklin, 3. Coup. 257, 259). "[I]t will not suffice in law for the purpose of this defence of diminished responsibility merely to shew that an accused person has a very short temper, or is unusually excitable and lacking in self-control. . . . It must be much more than that" (citing a 1945 Scottish case, H.M.A. v Braithwaite, Just. Cas. 55, 57-58). 32. It has been suggested that we ought to come directly to the main point of all this and put the question flatly to the jury whether the defendant should be held responsible (or blamable). It is argued that since the jury is, in practical effect, making a moral judgment, it should be asked to face that moral issue squarely. I think this is a misconceived argument. It is true that the effect, in the context of a judgment of insanity, is to preclude responsibility or blamability. It is also true that the jury always knows this, and "in the back of its mind" will no doubt be testing its judgment concerning the presence

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As the preceding remarks imply, it would be critical that the judge make plain that "rational" is not here used in the sense of wise, prudent, judicious, or intelligent—in short that it is not used in any of those senses in which it is in effect a word of praise. It must be made clear that the "mere excitability of a normal man, passion, even stupidity, obtuseness, lack of self-control and impulsiveness" 33 are not to count as mental disease with defect of reason. Ordinary "drunkenness, conditions of intense passions, and other transient traits attributable either to the fault or to the nature of man" 34 are not mental disease involving defect of reason. There are many excellent and even classic phrasings of this point.35 It must be emphaof insanity by reference to its judgment of whether the person ought to be held criminally responsible. Nevertheless, if the primary question put to the jury is explicitly a moral one, then the jury will be encouraged and justified in basing its verdict on its moral judgment of the defendant. It might make such a judgment on any of a number of grounds other than mental impairment and irrationality, and would be justified in doing so if it had indeed been asked directly to make a moral judgment. It might justifiably feel no compunction in deciding the moral question on grounds of a sort the law had never contemplated as relevant. But if the issue put to the jury is the rationality of the defendant, this shifts the locus of deliberations. It does not preclude moral assessment, but it clearly calls for primary attention to be paid to questions of rationality rather than morality, which is desirable for two reasons. In the first place it is in fact rationality that is supposed to be specifically at issue here (if I am right) and not the general question, on any grounds at all, of moral responsibility. In the second place, this specific question of rationality can be complex enough for a jury to discuss without inviting them and encouraging them to move into discussions of moral responsibility generally. They will intuitively keep the moral context in mind as context, and that is the way they are, as laymen, skilled in deliberating. But the layman is not at his best and most skilled when abstract moral issues are explicitly raised. As many commentators have noted, one cannot prevent juries from using their moral judgment here; they will do so inevitably. But the law should focus their attention on what it defines as the proper grounds for that judgment, in this case rationality. Discussion of these issues can be found, for example, in the commentary to draft 4 of the ALI Model Penal Code, p. 159; in the Report of the Royal Commission on Capital Punishment, p. 116; and in Livermore and Meehl, 1967, pp. 824-826. 33. The words of then Justice Dixon in his opinion in Rex v Porter. 34. Chief Justice Dixon's words in a 1957 article (p. 260). 35. E.g., State v Andrews, 1960, p. 744: "A person of sound mind and discretion will not be exempted from punishment because he might have been

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sized that the use of "irrationality" here in question is consistent with such pronouncements; it is the familiar use in which irrationality comes ultimately to senselessness, unintelligibility, loss of reason. Furthermore, it must be emphasized that loss of reason here means loss of the very capacity for rational conduct; we are concerned with the irrationality in an act that reflects a man's irrational mental makeup, not merely his failure on a particular occasion to use his capacity to act rationally. Although ultimately the issue cannot be formulated with verbally explicit and formal exactitude, although ultimately it is an issue that must be left to the discretion of the jury to decide in the context of a criminal trial and with respect to the particular facts of the case, we nevertheless enjoy certain profound advantages in presenting the issue to the jury this way rather than in the more traditional ways. I would like to summarize some of these, with reference to obstacles avoided and paths made more accessible. By putting the question of insanity in the way I have proposed, the jury is not plunged into perplexity by being asked to decide a question that is apparently a purely medical one. The jury is not asked to speculate about inner volitions, or about mental machinery and whether it literally broke down. The jury is not asked to decide, without further specific criteria, whether the defendant knew what he was doing, thus being forced, if honest, to say that the defendant did know, and thus was sane when it may be intuitively plain that he was insane. The jury is not asked to use, without further criteria, inherently vague and puzzling words, such as "mental disease" (explained, as in McDonald, to be a legal term meaning an "abnormal" mental condition). The jury is not asked to make, as a crucial but quite unexplained distinction, the decision whether in addition to merely knowing, a man also "appreciated" what he was doing and that it was wrong. The jury is not asked to decide whether a defendant had the "capacity to conform his conduct to law" when in the typical case we identify insanity not by virtue of an incapacity to a person of weak intellect or one whose moral perceptions were blunted or ill developed or because his mind may have been depressed or distracted from brooding over misfortunes or disappointments, or because he may have been wrought up to the greatest and most intense mental excitement from sentiments of disappointment, rage, revenge or anger."

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perform or not to perform a certain act, but by virtue of incapacity to act rationally, whether coincidentally in conformity with law or in transgression of it. On the positive side, the inherent mental capacity for rational conduct (for responding relevantly) with respect to criminality is, it seems to me, a reasonable legal standard for criminal responsibility. It expresses in essence what we really mean when speaking of criminal insanity. Therefore the jury would be applying the true standard rather than an indirect or invented one. It is an intelligible and practicable standard, although—like most practical and many legal standards—it is far from being so precise or clear as to apply itself automatically. It is the standard to which legal tests have hitherto been tacitly resorting, though inadequately expressing it; and it is for this reason that each of the main currently used tests can be plausibly modified or interpreted in such a way as would correct the deficiencies and make the test conform in substance to this standard. As I have said, considerations of public policy, judicial policy, and penological policy all have a distinct bearing on the precise way in which any test of insanity would finally be worded, interpreted, and made available for use in pleading. And the correct wording of such a test will not solve or even come near to solving all our problems in connection with the treatment of the criminally insane by the law. I have tried to show various ways in which several different current tests could be brought generally into conformity with the results of my analysis. Finally, however, it is the principle, the substance of the meaning and rationale of the plea, rather than the precise form or the limitations or expansions of it in practice, that concerned me here. Without clarity on the principle, all else suffers.

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CASES

Blake v US, 407 F2d 908 (5th Cir., 1969) Blocker v US, 288 F2d 853 (1961) Briscoe v US, 248 F2d 640 (DC Cir., 1957) Campbell v US, 113 US App DC 260, 307 F2d 597 (DC Cir., 1962) Commonwealth v Woodhouse, 164 A2d 98 (1960) Carter v US, 252 F2d 608 (DC Cir., 1957) Davis v US, 160 S 469, 16 S Ct 353,40 L Ed 499 (1895) Davis v US, 165 US 373 (1897)

264

The Meaning of Criminal

Insanity

Durham v US, 94 US App DC 228, 214 F2d 862, 45 ALR 2d 1430 (1954) Dusky v US, 362 US 402 (1960) Dusky v US, 295 F2d 743 (8th Cir., 1961) Egan v US, 158 F Supp 377 (1958) Faber v Sweet Style Mfg. Corp., 242 NY S.2d 763 (1964) Feguer v US, 302 F2d 214 (8th Cir., 1962) Gray v US, 319 F2d 725 (DC Cir., 1963) Gregg Cartage and Storage Co. v US, 316 US 74 (1942) Hadfield's Case, 27 Howell 1281 (1800) Harrison v State, 69 SW 500 (1902) Hawkins v US, 114 US App DC 44, 310 F2d 849 (DC Cir., 1962) Hill v State, 251 N.E. 2d 429 (Sup Ct Ind, 1969) Holloway v US, 148 F2d 421 (1945) Jenkins v US, 307 F2d 637 (DC Cir., 1962) Leland v Oregon, 343 US 790, 72 S CT 1002, 96 L Ed 1302 (1952) Lyles v US, 254 F2d 725 (1957) McDonald v US, 312 F2d 847 (1962) M'Naghten's Case, 10 Clark and Finnelly 200 (1843) People v Gorshen, 336 P2d 492 (Sup. Ct. Cai. 1959) People v McDowell, 73 Cai Rptr 1 (Cai Sup Ct, 1968) People v Nash, 338 P2d 416 (Col. Sup. Ct. 1959) People v Nicolaus, 423 P2d 787 (1967) People v Schmidt, 110 N.E. 945 (1915) People v Wolff, 394 P2d 959 (Sup. a . Cai. 1964) People v ffood, 12 NY 2d 69, 236 NYS 2d 44 (NY App Ct. 1962) Pierce v Turner, 402 F2d 109 (10th Cir., 1968) Pope v US, 372 F2d 710 (8th Cir. 1967) Reg. v Byrne, 44 Cr. App. Rep. 246 (1960) Reg. v Windle, Q.B. 826 (1952) Rex v Porter, 55 Comm. L.R. 182 (1933) Sauer v US, 241 F2d 640 (9th Cir. 1957) Smith v E/S, 36 F2d 548 (DC Cir. 1929) Stapleton v Reg., 86 Comm. L.R. 358 (1952) State v Andrews, 187 Kan 458, 357 P2d 739 (Kan Sup. Ct. 1961) State v Carrigan, 93 NJL 268, 108 A 315 (NJ Sup. Ct. 1919) State v Davis, 108 P2d 641 (1940) State v Foster, 354 P2d 960 (1960) State v Harrison, 15 S.E. 982, 70 ALR 659 (1892) State v Keerl, 29 Mont 508, 75 P 362 (Sup. Ct. 1904) State v Kirkham, 319 P2d 859 (Utah Sup. Ct. 1958) State v Maish, 185 P2d 486, 173 ALR 391 (1947) State v Pike, 49 New Hamp. 399 (1870) State v Strasberg, 110 P 1020 (Wash. 1910) State v White, 374 P2d 942 (Wash. Sup. Ct. 1962)

Bibliography Stewart Machine Co. v Davis, 301 U.S. 548 (1937) US v Carter, 436 F2d 200 (DC Cir., 1970) US v Chandler, 393 F2d 920 (4th Cir., 1968) US v Currens, 290 F2d 751 (1961) US v Fore, 38 F Supp 140 (1941) US v Freeman, 357 F2d 606 (1966) US v Shapiro, 383 F2d 680 (7th Cir., 1967) US v Smith, 17 CMR 314 (1954) US v Smith, 404 F2d 720 (6th Cir., 1968) US ex rel Smith v Baldi, 192 F2d 540 (3rd Cir., 1951) Wade v US, 426 F2d 64 (9th Cir., 1970) Washington v US, 390 F2d 444 (DC Cir., 1967) Wion v US, 325 F2d 420 (10th Cir., 1963) Wright v US, 250 F2d 4 (DC Cir., 1957)

265

Index

Abnormal in McDonald v U.S., 32-36 ALI Model Penal Code and capacity to conform, 242-45 and defect of reason, 242 difficulty of defining criminal insanity, 1 insanity test, 13 irresistible impulse, 136 and mental disease, 41-42 as modernization of M'Naghten, 13,242 more specific instructions needed, 244 and personality disorders, 233 as vague and misleading, 242-44 vagueness of substantial, 34 use of appreciate, 146-52 uses noncausal language, 248 widely adopted, 13 Appreciate See Knowledge of wrong Blamability and mens rea, 128 Capacity in ALI Model Penal Code, 1A1-AA assessment of, 196-97 in insanity, 197-203 in M'Naghten test, 195nl3 in psychiatric terminology, 95 See Loss of self-control

Capital punishment, 6 Choice, 77-78, 97 Compulsion as intentional action, 80, 165-69 and psychic forces, 161 See Determinism Criminal insanity difficulties of defining, 1-2, 8-9 Hadfield's Case, 125 history of legal tests, 11-15 inability to act rationally, 175 ff, 203, 211, 243-44 inadequacy of tests to identify, 171, 177 legal insanity, 125 legal tests in U.S. Durham, 12-13, 15 McDonald v U.S., 32-36, 252 M'Naghten, 11-12, 14-15, 142-44,237-42 Model Penal Code, 1, 13 New Hampshire, 12 and mental disease, 24 ff, 125 and neurosis, 228-29 no one legal formula proposed, 9-10, 236, 253 and personality disorder, 231-34 proposed general definition, 211 and psychic forces, 160-61 and psychosis, 229-31 See Mental disease Criminal law determinism v free will in, 75-81

268 Criminal law (continued) moral aims of, 57-59, 188-89 and personal responsibility, 56-59 reflects society's values, 56-57, 189 scientific v moralistic views of, 53-56 Criminal responsibility and mens rea, 131-34 obscurity of meaning, 2 relation to insanity, 2, 130n9 relation to mental capacity, 45-46 Cross-dimensional concepts explanation of, 38-41 mental disease as, 40 S Defect of reason as central to insanity, 198 and rational conduct, 198 as used in M'Naghten Test, 14, 15, 178, 198 See Insanity; Irrationality; Mental disease Depression, 140-41 Determinism and compulsion, 70-81 and the ego, 94-97 and free will, 70-81 importance in law, 70-81 psychiatric views, 72n25 and psychic determinism, 85, 91 and teleology in psychiatric theory, 85-97 See Free will Durham test criticisms of, 13, 127, 173-74, 245-48 insanity test, 12, 30 ff. See also McDonald v U.S. and integrated mind, 218n2, 226-27 interpretation of, 36n43. See also McDonald v U.S. and knowledge of wrong test, 143n24, 148n29 and mental disease, 12, 15, 30, 33, 41, 125, 127, 174, 245^46 meaning of product, 246-49 modifications in later cases, see McDonald v U.S. See Criminal insanity, Legal tests in U.S. Ego definitions of, 110 and determinism, 93-97

The Meaning

of Criminal

Insanity

ego control breakdown, 95-96 ego functions, 97 ego identity, 94-95 ego structure, 93 ego weakness, 95 and moral discrimination, 110-11, 116

and repression, 93-94 synthesizing capacity of, 116 as teleological concept, 93 Expert witness See Psychiatrist Free will and coercion, 79-80 in metaphysical sense, 73-75 significance of choice, 77-78 See Determinism Freud and conduct, 91-92 his use of causal language, 91 and unconscious motives, 91 See Ego; Id; Psychic determinism; Superego; etc. Guilty plea and mens rea See Mens Rea Hadfield's case defines legal insanity, 125 Hadfield, James and irrationality, 149, 176-77 and knowledge of wrong test, 149-50 and meaning of know, 149 as nonresponsible, 139 sane under M'Naghten Test, 138 suffering from delusions, 138 Id

irruptions of, 115-16 Impulsiveness, 167-68 Insanity as absence of mens rea, 128-37 archaic legal concept, 53 and capacity for rational conduct, 175-76, 197, 203 criteria for satisfactory definition, 174-75 and irrationality, 175, 184, 197, 203, 227 and knowledge of wrong, 142-56, 240-41, 249 as layman's concept, 23, 234-36, 247-48

Index its limited scope in individuals, 203-10, 240-41 as meaningless concept, 42-46, 62-69 as medical condition, 24-28. See McDonald v U.S. and moral judgment by psychiatrist, 97-117 and nonresponsibility, 130, 203 proposed definition, 197, 203 and rationality. See Capacity; Irrationality as unscientific concept, 24, 62-69 See Criminal insanity Insanity plea broad or narrow scope, 3 and capital punishment, 6 frequency of use, 5-6 judge's instructions decisive, 249 mental disease necessary condition, 125 moral judgments required, 46, 248, 250 and nonblamability, 128-30 no single formula, 9-10, 236, 253 posttrial disposition, 134-36 rationale for, 123 ff when to raise issue, 2, 4-5 Instructions to juries, 245-53 Involuntary See Loss of self-control Irrationality as antonym of sane, 182 as central to insanity, 175-79, 184, 197, 226-27 distinguished from impetuousness, foolishness, 249-51 and Hadfield, 177 inability to respond emotionally, 188-89 meaning of, 176-94 as pertaining to conduct, 180, 201-2, 211 and volition, 189-90 See Insanity; Rationality Irresistible impulse and defect of will, 158-59 and impulsiveness, 166-68 inadequate medical understanding, 160*41 See Compulsion Knowledge of wrong, 142-57 appreciating wrong, 11-13, 14652, 244

269 and Daniel M'Naghten, 149, 200 and Durham, 143n24, 148n29 and Hadfield, 149-50 and M'Naghten test, 11-12, 14, lOl^t, 142-57, 171,212-13 in psychiatric terminology, 108-17 Law and psychiatry ambiguity of terminology, 67-69 moral contrasted with scientific, 53-55 See Psychiatrist, as expert witness Loss of self-control as breakdown of psychic controls, 166 and defect of will, 158-59 incapacity for relevant response, 190 and insanity, 170-71 and involuntariness, 159 and irresistible impulse, 158-59, 167-68 not lack of control, 166 when person is sane, 163-69 as purposive, 160-62 and unconscious motives, 168-69 and volition, 170 McDonald v U.S., 32-36, 252 See Durham M'Naghten, Daniel and knowledge of wrong, 200-201 as rational, 209 M'Naghten test an acceptable revision, 237-42 and capacity for rational conduct, 195nl3,197-201 and cognitive function, 144-52, 219-21 criticisms of, 144—49 by psychiatrists, 46n52, 98-100, 117n72 and defect of reason, 11-12, 14-15, 197-201, 237 defended, 239 definition of criminal insanity, 11-12, 14 and delusional insanity, 238-39 and Hadfield, 138-39 and ignorance of law, 143 and irresistible impulse, 160n41 knowledge of wrong, 98-104, 142-57, 171, 212-13 and meaning of wrong, 152-56

270 M'Naghten test (continued) and mental disease, 14, 29nl8, 41, 197-98, 237, 241 and rationality, 198-202 and reality principle, 108n57 too narrow, 237, 239 and unity of mind concept, 219-21 uses noncausal language, 248 Mala in se and knowledge of wrong, 212-13 Mens rea absence of, 128-37, 158 and blamability, 128-29 and ignorance of fact, 143 and insanity plea, 128-29 and irresistible impulse, 136-37 as teleological concept, 86 Mental disease as abnormality, 34-35 as cross-dimensional concept, 40 ff and defect of reason, 198 in Durham, 127 as essential in insanity tests, 19-20, 41, 125, 156-57, 173 and knowledge of wrong, 154-55 lacks definition, 28-29, 36-37 in M'Naghten, 127, 237-38, 240 Model Penal Code, 233 and personality disorders, 231-34 as psychosis, 31, 229-31 relative to law, 45, 126-27 relation to physical disease, 20-22 in U.S. v Currens, 171 Mental illness See Mental disease Mental processes as internal and unobservable, 82-83 See Determinism; Ego; Free will; Psychiatric explanation; Unity of mind Model Penal Code See ALI Model Penal Code Neurosis and criminal insanity, 228-29 and psychosis, 229-30 and rational conduct, 229 Obsessive-compulsive its moral nature, 115 Paranoia See Hadfield, James; M'Naghten test; Psychosis

The Meaning of Criminal Insanity Personality disorders and criminal insanity, 231-34 Diagnostic Manual description, 232 and mental disease, 232-33 Royal Commission provision, 233 Psychiatric explanation based on rationality, 193-94 and psychic determinism, 88 Psychiatrist and adversary process, 48-50 complexity of testimony, 51-52 as expert witness, 43-52 and moral judgments, 117 scientific v moralistic attitude, 53-55, 59-60 as therapeutically nonmoralistic, 109 Psychiatry and concept of choice, 97 and moral values, 98-117 as teleological, 85-97 Psychic determinism and causal determinism, 88, 91 its relation to Freud's theory, 91 Psychopathology and M'Naghten test, 108«57 as moral in essence, 112-14 and reality, 109-11 Psychosis and criminal insanity, 230-31 contrasted with neurosis, 228, 231 as grave defect, 230-31 schizophrenia, depression, 140-41 Purposiveness See Determinism; Irrationality; Loss of self-control; Psychic determinism Rationality as basis of psychiatric explanation, 193-94 contrasted with irrational, 180-83 and capacity, 194-97 and defect of reason, 198 and knowledge of wrong, 199-201, 212-13 not limited to medical concept, 203, 214-15, 249-52 meaning of, 179 ff and neurosis, 228-29 as pertaining to conduct, 180 ff, 211, 228-32 and psychosis, 229-31

Index related to reason, sanity, 180-82, 202-3 as response to relevance, 186-92 and responsibility status, 182-83, 203 and unity of mind, 224-27 Reality principle involves moral discrimination, 108-11 and M'Naghten, 108/i57 perceived by the ego, 110 as psychiatric concept, 106-11 Reason See Rationality Relevance See Irrationality; Rationality Responsibility innocence of the insane, 132-33 psychiatric attitudes toward, 59-60 and rational conduct, 201-2 in those who are insane, 206 See Irrationality; Rationality Royal Commission on Capital Punishment and personality disorders, 233 Sane See Insanity; Irrationality; Rationality Schizophrenia and depression, 140-41 and moral basis of law, 188-89 Sociopathic personality definition of, 113«66, 232

271 Substantial in ALI Model Penal Code, 34 in McDonald v U.S., 34-35 Superego as archaic, 114-15 definition of, 112 as moral concept, 112-15 Unconscious motives, 91, 168-69 Unity of mind and Durham, 219n4 and emotions, moods, 223-24 no empirical evidence for concept, 218 as equivalent to rationality, 225-26 integration and distintegration, 222-25 and M'Naghten test, 219 meaning of doctrine, 216 in normal minds only, 220-23 and relevant response, 225-26 requires proper mental relationship, 224-25 as traditional practical concept, 222 Volition See Loss of self-control Will See Loss of self-control Wrong See Knowledge of wrong; Mens rea