Diminished Mental Capacity As A Criminal Law Defence
| Author | Herbert Fingarette |
| Published date | 01 May 1974 |
| DOI | http://doi.org/10.1111/j.1468-2230.1974.tb02381.x |
| Date | 01 May 1974 |
DIMINISHED MENTAL CAPACITY
AS
A
CRIMINAL LAW DEFENCE
I. INTRODUCTION
MY
remarks pertain to a congeries of
ad hoc
defences: insanity,
diminished responsibility, drunkenness and other forms of chemi-
cal intoxication, mental defect, automatism,
“
unconsciousness.”
It
is intuitively evident that all these notions appearing
in
criminal law belong in some one large but significant category.
Roughly, each rests on the thesis that aberration of mind may
partly
or
wholly negate criminal guilt. This underlying unity is
not coherently reflected in current law.
The establishment of the Butler Commission suggests that the
time is ripe
€or
a
review of the law in this area.
I
shall focus
primarily upon the conceptual issues, though
I
do not deny that
there are other important problematic issues-not only other legal
ones, but also medical, administrative, social and political issues.
What
I
do in the following may be thought of as an attempt
at
a
rational restatement, and in some details as
a
proposal for
rational reconstruction, of a core doctrine unifying this particular
area
of
the criminal law.
It
will be seen that to a substantial
extent the actual law
in
its effects does fall within the logical
format here outlined. However, the actual law is more restrictive,
more of a patchwork, an$ in a few instances positively inconsistent
with the proposed doctrine.
I
will begin with some introductory
remarks
to
sketch the direction
I
will
take, and then proceed in
sections
I1
and
I11
to a more precise and systematic discussion.
The concept which
I
propose as central, as generic to the
entire domain
of
the relevant law, indeed as defining that domain,
is
“
diminished mental capacity.”
A
second, related concept, also
basic to the analysis, is that of the
‘‘
content
of
origin
”
of the
diminished mental capacity. Both these concepts take their sense,
as will be seen, in a legal context, the context of assessing criminal
responsibility. They are not medical concepts, though medical
evidence may be relevant.
The entire legal doctrine based on these concepts is,
I
believe,
an elaboration of deeply rooted and entirely reasonable common
sense intuitions. These might be rendered explicitly, though some-
what formally, as follows.
A
person’s mind may be deranged in
ways that make him unable to conduct himself rationally with
1
The
Times,
June
29,
1972.
264
MAY
1974
DIMINISHED MENTAL CAPACITY
AS
A DEFENCE
265
respect to some standard.
If
so,
he is not responsible in his con-
duct with respect to that standard.
If,
when we look to the
context in which this irrationality had its origin, we find that he
became irrational in this way through no fault of his own, he
should not be held responsible at all for the conduct
in
respect of
that standard. Therefore he cannot be in that respect culpable.
However, if he was culpable with respect to the origin of this
condition of diminished mental capacity, then he cannot totally
escape responsibility and culpability for his
off
ending conduct. In
the latter case, the specific kind and degree of ultimate culpability
will depend, systematically, on the way in which his originating
culpability is related to the impaired state of mind, to the resulting
offending act, and to the relevant standards. Finally, whether the
verdict is that the diminished mental capacity originated through
the accused’s own fault or not, this prior irrationality with respect
to a criminal law standard warrants appropriate court imposed
restraints and medical regimen unless and until the likelihood of
any further such diminished mental ,capacity is past.
This central intuition, which will be explored and elaborated
in the remarks that follow, is the proper basis on which to achieve
doctrinal coherence and realism in assessing culpability where
there is diminished mental capacity.
It
also allows a significant
simplification of the forms
of
verdict, and hence of trial strategies
-but not at the expense of fundamental legal rights and principles.
Thus justice requires that the jury should be concerned with
any
aspect of the accused’s state of mind as
it
bears on his culp
ability, but
only
as
it
bears on culpability. As
I
shall show, this
means that the jury need not be compelled, as
it
is by the law
at present, to decide the medical and pseudo-medical questions
built into such concepts as
‘‘
insanity,”
“
automatism,” and
“
diminished responsibility.” Juries should not need to answer
arcane and medically dubious questions such as whether the con-
fusion caused by an arteriosclerotic condition is a genuine
‘‘
disease,”
or
whether
it
is
a
st
physical
)’
or
“
mental
”
disease.
The jury’s question in the latter case, for example, should be
whether, in the light of the behavioural, circumstantial, and medi-
cal evidence, the accused was in fact gravely confused about what
he was doing and was
so
without culpability on his part.
The diminished mental capacity doctrine implies that once
culpability has been assessed, and provided the verdict as to this
rested on a finding of diminished mental capacity, all further
questions of exact diagnosis, prognosis, post-verdict restraint and
medical regimen, should be explored fully and without the in-
appropriate restraints of the adversary proceedings in a trial as
to culpability. After the verdict and prior to sentence, the court
can take advantage of the fullest professional advice, and include
its own judgment with respect to any appropriate punishment or
restitution.
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