The Moral Significance of the Insanity Defence
| DOI | 10.1350/jcla.2009.73.4.581 |
| Date | 01 August 2009 |
| Author | Mark Hathaway |
| Published date | 01 August 2009 |
| Subject Matter | Comment |
The Moral Significance of the Insanity
Defence
Mark Hathaway*
Keywords
Moral aspect of insanity; Reform of insanity; Partial abolition
of insanity; Johnson; Wrongness limb of M’Naghten
It has long been accepted that the defence of insanity, in Anglo-
American law, is unsatisfactory and in need of reform. Indeed, over 80
years ago, Glueck wrote, ‘not a modern text or compilation begins the
discussion of the subject of insanity and its relation to the criminal law
without a doleful reference to chaos in this field’.1 The aim of this
comment will be to address the question of whether or not abolition of
the defence will remedy the ‘chaos’ that exists. Indeed, an alternative
argument can also be made that the insanity defence is used so infre-
quently that the question arises as to whether there is a need to retain it
in any form. However, it must be emphasised from the outset that, of
course, the debate is not a simple question of abolishing or not abolish-
ing the defence.
There are a number of tests that are currently in use in Anglo-
American law,2 although it is apparent that for the most part ‘none of the
various insanity tests has met with a great deal of approval’.3 However,
the emphasis below will be on the merits of abolishing the defence when
compared with reasons why it should be retained. The intention is to
assess the arguments of the pro- and anti-abolitionists and follow this
with an analysis of each of the viewpoints, while also taking a look at the
insanity debate in light of recent case law, and concluding with an
assessment of which argument is the stronger. Before this can be at-
tempted, it is necessary to look briefly at three key theoretical issues.
First, and simply, ‘What is the meaning of criminal insanity?’ To ascer-
tain this, it is instructive to turn to Fingarette’s seminal work, The
Meaning of Criminal Insanity. Fingarette defines criminal insanity as ‘the
* LLM, Teesside University; e-mail mark.hathaway1@ntlworld.com. The author
wishes to express thanks to Helen Howard, Teesside University, for her advice and
comments.
1 S. Glueck, Mental Disorder and the Criminal Law (Little Brown: Boston, 1925) 187–8,
cited in C. Slobogin, ‘An End to Insanity: Recasting the Role of Mental Disability in
Criminal Cases’, Olin Working Paper No. 00-3, University of Southern California
Law School, 2000, 1.
2 For further discussion of tests such as M’Naghten, Durham, the American Law
Institute—Model Penal Code, the Irresistible Impulse Test and the Justly
Responsible Test, see D. H. J. Hermann and Y. S. Sor, ‘Convicting or Confining?
Alternative Directions in Insanity Law Reform: Guilty but Mentally Ill versus New
Rules for Release of Insanity Acquittees’ [1983] BYUL Rev 499, 508–25; M. S.
Moore, Law and Psychiatry: Rethinking the Relationship (Cambridge University Press:
Cambridge, 1984) 218–20.
3 Hermann and Sor, above n. 2 at 526.
310
The Journal of Criminal Law (2009) 73 JCL 310–317
doi:1350/jcla.2009.73.4.581
The Moral Significance of the Insanity Defence
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’.4 It is contended that this definition is a
suitable starting point with which to commence discussion of the in-
sanity debate.
Secondly, and more specifically, there is the issue of the purpose of
the insanity defence. Goldstein and Katz claim that some of the pur-
ported problems with the insanity defence stem from the fact that the
purpose of the defence within the criminal law has never been properly
addressed.5 With respect, it is submitted that this view is incorrect.
While, undoubtedly, some of the language in the judicial decisions and
legislative reports that Goldstein and Katz refer to can be construed as
fairly elliptical, there is nonetheless an accepted rationale for the defence
(the argument is whether or not this rationale is correct). For example,
Brady states that ‘the purpose of the insanity defense is to exempt from
the stigma of moral blame accompanying conviction those who, because
their conduct is not voluntary, are not proper subjects of moral
blame’.6
This leads on to the third, and most important, issue, which will form
the basis of this comment—the morality of the insanity defence and
whether abolition can be justified on moral grounds.
Contrast between England and the USA
In considering the insanity defence from an Anglo-American viewpoint,
the first point to stress is the differing approaches towards the defence in
England and the USA. There are real similarities in two instances. Both
countries agree that the insanity defence forms an insignificant propor-
tion of all criminal law defences in terms of usage. In England, between
1987 and 1991, there was an average of four findings of ‘not guilty by
reason of insanity’ per year. After the enactment of the Criminal Proced-
ure (Insanity and Unfitness to Plead) Act 1991, this average increased to
8.8 per year between 1992 and 1996:7 still...
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