The Meaning of Criminal Insanity

By Herbert Fingarette

This title is part of UC Press's Voices Revived program, which commemorates University of California Press’s mission to seek out and cultivate the brightest minds and give them voice, reach, and impact. Drawing on a backlist dating to 1893, Voices Revived makes high-quality, peer-reviewed scholarship accessible once again using print-on-demand technology. This title was originally published in 1972.

• Language: English
• Publisher: University of California Press
• Release date: Nov 15, 2023
• ISBN: 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

Contents

Acknowledgments

Introduction

1 The Concept of Mental Disease

IS MENTAL DISEASE A MEDICAL CONCEPT?

MENTAL DISEASE: A CROSS-DIMENSIONAL CONCEPT

2 The Relation Between Psychiatry and Law

THE SCIENTIFIC VERSUS THE MORALISTIC: A FALSE OPPOSITION

PHILOSOPHICAL RED HERRINGS IN LAW AND PSYCHIATRY: DETERMINISM, FREE WILL, THE INACCESSIBILITY OF MIND

THE ESSENTIAL ROLE OF TELEOLOGY IN PSYCHIATRIC EXPLANATION

THE CENTRAL ROLE OF MORAL CONCEPTS AND ISSUES IN PSYCHIATRY

3 Legal Interpretations of Insanity

INTRODUCTION

INSANITY AS ABSENCE OF MENS REA

THE KNOWLEDGE-OF-WRONG CRITERION

IRRESISTIBLE IMPULSE AND INCAPACITY TO CONFORM TO LAW

4 The Legal Concept of Insanity: A Formulation

CONDITIONS TO BE SATISFIED BY A CORRECT ANALYSIS OF INSANITY

INSANITY AND IRRATIONALITY:

THE MEANING OF RATIONAL IN THE CONTEXT OF INSANITY

A GENERAL DEFINITION OF INSANITY

A DEFINITION OF CRIMINAL INSANITY

5 Some Implications of the Formulation

THE UNITY OF THE MIND

PSYCHIATRIC DIAGNOSTIC CATEGORIES AND CRIMINAL INSANITY

SPECIFIC INSANITY TESTS IN USE

Bibliography

BOOKS AND ARTICLES

CASES

Index

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. Radish, 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 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.⁵ 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 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 9 Or would these concerns be better served by restricting the scope of the plea® 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 definitional 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

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 14 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 proportion of the cases of antisocial mental disorder.¹⁵ 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 large- scale 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.¹⁶

The insanity plea and the controversies generated by it take their 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.

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.¹⁷

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, 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),¹⁸ 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 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 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.¹⁹ 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,²⁰ 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,²¹ 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 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. ²²

This English rule was quickly adopted in the United States federal courts, and also in the state courts.²³ 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.²⁴

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.²⁵ In 1954 the District of Columbia Court of Appeals announced a new rule for the District in the Durham case;²⁶ that rule was in most respects the formula of New Hampshire.²⁷ 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.²⁸

The Durham 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 Law Institute’s Model Penal Code.29 30 31 32 33 This new test was considered by many to be a modernized version 34 of the expanded M'Naghten test hitherto prevailing. 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. And 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 ALI test or some close variant of it.35 The District of Columbia Appellate Court, however, has remained at least verbally with Durham , 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;³⁶ 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.³⁷ 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.³⁸

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.³⁹ 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.⁴⁰

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 MfNaghten 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.

(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.⁴¹ 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.

PART I

At the Intersection of

Psychiatry and Law

1 Shelford, 1833, p. xxxiv.

2. Bucknill, 1856, p. 15.

2 American Law Institute, Model Penal Code, draft 4, 1955, p. 156. (Here

3 after referred to as ALI Model Penal Code.)

4 A. Goldstein, 1967, p. 87.

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 [P]sychiatrists [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, 1960b. 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.

8 "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.

11 Cavanagh, 1962, p. 480.

12 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 objectivity of the experts, and the expectation that judicial control could be maintained. See, e.g., Goldstein and Fine, 1962, pp. 1067 ff., 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

14 See, generally, note 18, below.

15 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. 345—348; 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.

16 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

17 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