The insanity defense presents many difficult questions for the legal system. It attracts attention beyond its practical significance (it is seldom used successfully) because it goes to the heart of the concept of legal responsibility. “Not guilty by reason of insanity” generally requires that as a result of mental illness the defendant was unable to distinguish right from wrong at the time of the crime. The many difficult and complex questions presented by the insanity defense have led (...) some in the legal community to hope that neuroscience might help resolve some of these problems, but that hope is not likely to be realized. (shrink)
"An American psychologist, Daniel N. Robinson, traces the development of the insanity plea...[He offers] an assured historical survey." Roy Porter, The Times [UK] "Wild Beasts and Idle Humours is truly unique. It synthesizes material that I do not believe has ever been considered in this context, and links up the historical past with contemporaneous values and politics. Robinson effortlessly weaves religious history, literary history, medical history, and political history, and demonstrates how the insanity defense cannot be fully understood (...) without consideration of all these sources." Michael L. Perlin, New York Law School "Daniel N. Robinson has written a graceful history of insanity and the law stretching from Homer to Hinckley. He attempts no final theory as to how the law should cope with the insane; he seeks, rather, to use the shifting notions of when madness exculpates criminal activity to illuminate the core self-perceptions of the cultures developing ever-evolving resolutions of the problem...[T]he grandeur of the theme...commands attention and respect." --Neal Johnston, The Nation . (shrink)
In this article I argue that insanity defences such as M’Nagten should be abolished in favour of a defence of failed agency. It is not insanity per se, or any other empirical condition, which constitutes the moral reason for exculpation. Rather, we should first recognize the conditions for being a responsible moral agent. These include some capacity to direct and control one’s behavior, a non-delusional component, and the capacity to recognize that one’s behavior is expressive of what they (...) have reason to be doing. When either of these fail in a case involving alleged criminal behavior the defence of failed agency may be appealed to. There may be many causes, including and besides insanity, that give rise to use of the defence of failed agency. (shrink)
I distinguish three evolutionary explanations of mental illness: first, breakdowns in evolved computational systems; second, evolved systems performing their evolutionary function in a novel environment; third, evolved personality structures. I concentrate on the second and third explanations, as these are distinctive of an evolutionary psychopathology, with progressively less credulity in the light of the empirical evidence. General morals are drawn for evolutionary psychiatry.
This paper attempts to set forth, in the context of Anglo-U.S. criminal law, the meaning of the concept of insanity, its necessary relation to absence of responsibility, and its bearing on some relevant psychiatric concepts and legal controversies. Irrationality is a distinctive and necessary (but not sufficient) condition for insanity. Irrationality consists in failure even to grasp the relevance of what is 'essentially' relevant. To that extent there obviously can be no responsibility. A mental makeup which renders one (...) (who would not normally be so) substantially incapable of rational conduct constitutes insanity, and in that respect renders the person non-responsible. Much more broadly and roughly speaking, the mind that is ill is the mind that is irrational (and hence in that respect non-responsible). (shrink)
The determinative issue in applying the insanity defense is whether the defendant experienced a legally relevant functional impairment at the time of the offense. Categorical exclusion of personality disorders from the definition of mental disease is clinically and morally arbitrary because it may lead to unfair conviction of a defendant with a personality disorder who actually experienced severe, legally relevant impairments at the time of the crime. There is no need to consider such a drastic approach in most states (...) and in the federal courts, where the sole test of insanity is whether the defendant was “unable to appreciate the wrongfulness of his conduct at the time of the offense.” This is because the only symptoms that are legally relevant in such jurisdictions are those that impair reality-testing and thereby affect the person's capacity to understand the nature and consequences of her actions. However, if the test of insanity includes a “volitional prong” (inability to control one's behavior), some way must be found to limit the scope of the defense to the core cases (involving psychotic conditions) to which it has traditionally been applied, and to prevent a shift toward a deterministic account of criminal conduct — i.e., “people can't help being who they are and doing what they do.” The best way of accomplishing this is to limit the definition of mental disease to severe disorders characterized by gross disturbances of the person's capacity to understand reality. (shrink)
The traditional legal verdict of not guilty by reason of insanity as well as the more recent verdict of guilty but mentally ill rest on often unquestioned epistemological assumptions about human behavior and its causes, unjustified reliance on forensic psychiatrists, and questionable, if not deplorable ethical standards. This paper offers a critique of legal perspectives on insanity, historical and current, based on the altermative epistemological and ethical assumptions of Thomas S. Szasz. In addition, we examine Szasz''s unique rhetorical (...) analysis of mental illness and its implications for forensic psychiatry. (shrink)
Insanity is identified with irrationality, while rationality is considered to be the mark of sanity. Yet we want to say that rationality could be the cause of insanity. We can see a subtle kind of insanity inherent in an institution believed to be highly rational. Rationality in an ideological belief also turns into rational insanity when the ideology itself works for the interest of the advantaged as a tool of deception. We believe in the rationality of (...) open communication. We believe that information technology has given us the most rational means for open communication. The Internet revolution or Internet democracy is expected to become the most rational means for the institutional goal of democracy. However the rationality of Internet communication has demonstrated a serious tendency to cause Internet insanity. We have been proud of being 'rational animals'. But now we are concerned because 'rational animal' could mean 'rational but animal-like' or 'rational but impulsive', which in turn could mean 'rational but violent' or 'rational but mad and insane'. Perhaps it is time for us to think seriously about the possibility of mass insanity through rational insanity, and seek the way beyond such rational insanity. (shrink)
The McNaughton Rules, which are used when someone pleads insanity at the time of a homicide, are out of date and unsatisfactory. Suggestions have been made about how the insanity defence can be reformulated. The preference of a defence of diminished responsibility means abandoning an ancient and humane principle of not convicting those who are so mentally disordered as not to be responsible for their actions. There is a need for Parliament to consider changes to the law both (...) to prevent the mentally disordered being sent to prison inappropriately, and because the Mental Health Act 1983 has not taken account of rare cases where an offender such as an epileptic might be found legally insane but not mentally disordered. (shrink)
My intent is to paint in rather broad strokes Bill Poteat’s intellectual agenda, as I came to understand it, and how Michael Polanyi fit into that agenda for Poteat alongside other major intellectual mentors. Bill’s agenda was to expose critically and, so far as possible, to counter the fateful consequences of what he called the “prepossessions of the European Enlightenment” regarding human knowing, human doing, and human being. Although his work involved conceptual analysis, the nature of this conceptual-archaeology was far (...) more profound than what usually goes by the name “conceptual analysis” or “cultural conceptual analysis.” In effect it sought first to bring to light how the conceptual resources by which modern intellectuals reflectively consider anything, fatefully result in a state of self-abstractedness – indeed, a kind of culturally constituted insanity – that loses touch with the actual, concrete object of one’s concern, with one’s actual concrete self, and with the wellsprings of one’s intellectual passion and creativity. Second, Bill sought to cure this cultural insanity, person by person, by ushering his students and readers into re-placement of themselves into themselves, in possession of themselves, within the concrete context of their embodied personhood. Poteat called attention to the way that our powers of reflection quite systematically forget their contextual rootedness in this (multi-leveled) cultural matrix and, beneath that, in our lived bodies – ultimately in our personhood. Polanyi served to assist Poteat (and his students) in this endeavor, I believe, as much as, or more than, did any other of Poteat’s several intellectual mentors. (shrink)
Unlike the criminal law, tort law does not recognize insanity as an answer to liability. The fact that a defendant was insane at the time of his impugned conduct is essentially ignored by tort law's liability rules. It will be argued that this situation is unsatisfactory. A person should not incur liability in tort in respect of acts committed while insane. This result should be realized by providing for a generally applicable affirmative defence of insanity.
Susan Wolf objects to the Real Self View (RSV) of moral responsibility that it is insufficient, that even if one’s actions are expressions of one’s deepest or “real” self, one might still not be morally responsible for one’s actions. As a counterexample to the RSV, Wolf offers the case of JoJo, the son of a dictator, who endorses his father’s (evil) values, but who is insane and is thus not responsible for his actions. Wolf’s data for this conclusion derives from (...) what she takes to be our “pretheoretic intuitions” about JoJo. As it turns out, though, experimental data on actual pretheoretic intuitions does not seem to support Wolf’s claim. In this paper, we present such data and argue that, at least with respect to this particular objection, the RSV can survive Wolf’s attack intact. (shrink)
This essay articulates a conception of responsibility and excuse in terms of the fair opportunity to avoid wrongdoing and explores its implications for insanity, incompetence, and psychopathy. The fair opportunity conception factors responsibility into conditions of normative competence and situational control and factors normative competence into cognitive and volitional capacities. This supports a conception of incompetence that recognizes substantial impairment of either cognitive or volitional capacities as excusing, provided the agent is not substantially responsible for her own incompetence. This (...) conception helps frame the question whether psychopathy is excusing. The most common rationale for excusing psychopathy appeals to claims about cognitive incompetence. However, there are good philosophical and empirical reasons to be skeptical that psychopaths lack the relevant cognitive capacities. There is more to be said for a volitional rationale for excuse. The crucial question here is whether the problems psychopaths have with impulse control and conforming their behavior to the relevant moral and criminal norms are systematic enough to demonstrate genuine volitional incompetence. The available empirical evidence should leave us skeptical about the merits of this volitional rationale for excuse. (shrink)
The psychopathic personality disorder historically has been thought to include an insensitivity to morality. Some have thought that the psychopath's insensitivity indicates that he does not understand morality, but the relationship between the psychopath's defects and moral understanding has been unclear. We attempt to clarify this relationship, first by arguing that moral understanding is incomplete without concern for morality, and second, by showing that the psychopath demonstrates defects in frontal lobe activity which indicate impaired attention and adaptation to environmental conditions (...) which are relevant to the formation of complex intentions. We argue that these frontal lobe defects can help to explain both the psychopath's apparent insensitivity to morality and his characteristic imprudence. (shrink)
The paper describes the refusal of the liberal community to assert the right of persons accused of mental illness to be free of coercive psychiatric intrusion. It suggests that the penchant for benevolent governmental intrusion into other social problems may be at fault and recommends that intervention be abandoned in favor of a return to human autonomy as a basis of the concept of freedom.
This paper addresses Colin Holmes's suggestion that the psychopathic disorder is best regarded not as a psychiatric concept, but as an ethical one. The paper argues that the concept of psychopathy, like many other concepts, can span both psychiatry and ethics, and that it is not clear what removing if from the realm of psychiatry would entail. Also, the question of whether the concept of psychopathy is useful for psychiatrists must be separated from the question of whether psychopaths should be (...) exonerated from the moral and legal responsibility for their actions. (shrink)