Madness and guilt
| Author | Julius Stone |
| DOI | 10.1177/000486588401700405 |
| Date | 01 December 1984 |
| Published date | 01 December 1984 |
| Subject Matter | Original Article |
AUST &NZ JOURNAL OF CRIMINOLOGY (December
1984)
17
(239-266)
MADNESS
AND
GUILT
Appalling the Freel
Julius Stone*
239
The year
1982
may prove notable for the law of insanity
as
adefence to criminal
charges. There was the trial and acquittal of John WHinckley, attempted assassin
of President Reagan, and his committal to St Elizabeth's Mental Hospital in
Washington,
DC
on August
1982,
after later psychiatric reports holding that he
remained "unpredictably dangerous . . . borderline schizoid". His case
was
given
an intriguing twist after the Reagan Administration submitted apackage ofcriminal
law proposals to Congress on
13
September
1982.
The President's occasion for the
new proposals, and for urging Congress to pass the anti-crime Bill already
introduced in 1981, was the appearance of discouraging US crime statistics. In the
words of the President on
13
September
1982:
"We live in the midst of acrime
epidemic that took the lives of more than 22,000 people last year and has touched
nearly one-third of American households, costing about $8.8 billion per year in
financial losses".
The President's proposals included arevision of the insanity defence the law of
which he described
as
"much misinterpreted and abused". Apparently in response
to this censure of the defence John Hinckley
Jr
wrote to Newsweek magazine (20
September 1982, p
40)
saying that he and his lawyers had asked to be allowed to
plead guilty to four counts of attempted murder, in exchange for four concurrent
life sentences with achance of parole in
15
years. He claimed that the Department
of Justice rejected this,
as
well
as
alater offer of asimple plea of guilty to avoid a
trial. What Hinckley appeared to be arguing
is
that the law of insanity was not the
reason for his acquittal on grounds of insanity, since he had offered to plead guilty
and it was the refusal to accept the plea, not the law of insanity, which led to his
acquittal. "I was found not guilty by reason of insanity because Ishot the President
and three other people in order to impress agirl." And he declared that the jury
who had acquitted him "deserve the Congressional Medal of Honour", and that
critics of the insanity defence are
"a
little nuts themselves". For "sending John
Hinckley to amental hospital instead of aprison
is
the American Way". The
dissatisfaction stirred by the Hinckley case, it may be added, has had four targets:
(1) the "acquittal" wording of the defence; (2) the very fact of the special defence;
(3) post-trial custodial control;
(4)
the burden of proof
as
to insanity.
This American curiosity
was
quickly matched, on 6October 1982, by the second
trial at the Old Bailey of the
by
now notorious intruder into Queen Elizabeth's
bedroom, Michael Fagan. At his first trial on 7June
1982,
for stealing wine, he had
been found not guilty by the jury. At his second trial at the Old Bailey on 5October
1982
he was convicted of taking and driving away acar. The Recorder of London,
Judge James Miskin, committed him to the new top security Park Lane Hospital at
Liverpool built to relieve overcrowding at Broadmoor, which houses some of
Britain's most dangerous criminally insane. The judge said that this was "neither a
*Professor of Law, University of
New
South Wales, Kensington,
NSW.
240
JSTONE
(1984)
17
ANZJ
Crim
punishment nor sentence -he will be received
as
apatient -not acriminal".
He
would be released when medically declared "cured". All this was not received by
Fagan as an act of humanity; he shouted "Sieg Heil!" and "This
is
afacist country"
as
he
was dragged from the dock. The Prison Officers Association subsequently
expressed astonishment that Fagan's record ofanumber
of
minor offences since the
age
of
14, and of financial and marriage difficulties, had been considered as
warranting such high level top security hospital restraint. The Prison Officers
Association statement even suggested that the decision was
"a
political one and not
wholly in the interest of Fagan".
Mr
Fagan was released within months ostensibly
as "cured", and made abid for fame as a"pop singer",his leading early recording
being
"God
Save the Queen!".
The
fact that these cases placed the problems of the insanity defence at the level
of journalists' headlines and laymen's curiosity, should remind us that they have
become also the cause
of
ever-growing anxieties among both lawyers and
psychiatrists in recent years.
Section I
"Make
Mad
the Guilty"
is
the dramatic title of one of the better known of more
than adozen book-length recent studies ofthe meaning and legal effects of the plea
ofinsanity in criminal process.2When John WHinckley
Jr
was found "not guilty by
reason
of
insanity" after unchallenged testimony (confirmed by the observation
of
millions
of
TV
viewers) that he had wounded President Reagan and his aide in an
attempt
to
murder them and others, this was rather less surprising in the District
Court of
the
District of Columbia than it might have been elsewhere. The Court
of
Appeals
of
the District of Columbia where John Hinckley was acquitted is famous
for its attempt, under Chief Judge David Bazelon, at pioneering an escape, by the
Durham
case in 1954, from the morass of the defence of insanity. In addition, the
District, like most other American states, holds that once insanity
is
pleaded as a
defence, the prosecution has the burden of proving beyond reasonable doubt
that
the defendant was sane at the time of the offence.
Durham
tried to break from the "tests" of "insanity" accepted by English judges,
which had been centred on inability to distinguish "good and evil", "no more than
awild beast", adopted in the famous 19th century M'Naghten case «1843) 8English
Reports 718) arising from an attempted assassination of
Robert
Peel. The judges
there laid down that everyone
is
presumed to be sane, and
is
therefore responsible
for his crimes until the contrary
is
proved; and second, that to establish insanity for
this purpose "it must be clearly proved that at the relevant time the accused had
such adefect
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 wrong". (What "wrong" means has come to be wider in Australian than in
English courts.) In case of "partial delusion", responsibility would be determined
on the basis of treating the delusionary facts
as
true. The special verdict required
in such cases was, according to the Criminal Lunatics Act 1800, one of
"not
guilty
on account
of
insanity", and remains so today -with an interval indicated in
Section II.
In this British M'Naghten test, the line of thought from the accused's failure
of
knowledge ofright and wrong, to his acquittal and exemption from punishment and
need for therapy,
is
theoretically quite clear.
"Our
collective conscience",observed
Judge Bazelon in Durham "does not allow punishment where it cannot impose
To continue reading
Request your trial