Criminal Law and Insanity Defense Research Paper

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1. United States

The United States criminal law presumes that a person must generally act in accordance with the acceptable range of norms of conduct adopted by society. A person exercising free will should be held accountable for his actions, because individuals do in fact have at least a minimum capacity for making the voluntary and rational choices required for criminal responsibility. Thus, the ordinary criminal defendant is viewed as ‘culpable,’ ‘blameworthy,’ or ‘responsible’ because that person could have chosen to abide by the dictates of the law. But there are a few individuals who cannot be held accountable. A mental disability or disease deprives them of even the minimal capacity for rational and voluntary choices on which the law’s expectation of responsibility is predicated. Because of their inability to comply with the law, such persons are not held culpable, and are not criminal sanctions invoked or applied consequent to their conduct.

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The insanity defense, therefore, is the exception that ‘proves’ the rule of free will. Supporters of the defense view it as vital to a healthy society, which uses its criminal law to build and buttress self-reliant action on the part of its citizens. Eliminating the insanity defense would remove from criminal law and public conscience the vitally important distinction between ‘illness’ and ‘evil.’ Throughout history, it is this vision of law that has rallied supporters to resist efforts to abolish the insanity defense. There is a deeply entrenched human feeling, as old as recorded history, that persons who are grossly disturbed (whether called ‘madmen,’ ‘lunatics,’ ‘insane,’ or ‘mentally disordered’) should not be punished as ordinary criminals would be.

The insanity defense also conforms to our ideas about the purposes of punishment. For the few who cannot be held accountable because of mental disability or disease, social control may be best served by confinement in a secure hospital setting (especially in the case of those who are dangerously insane). Similarly, the general deterrence theory underlying punishment suggesting that a person’s awareness and fear of unpleasant consequences will restrain him or her from engaging in criminal behavior will not apply to the insane. Deterrence is effective only with persons who can understand the signals directed at them by the criminal code, who can respond to warnings, and who can understand the significance of sanctions imposed on violators. Thus, punishment is not likely to deter seriously disturbed individuals from future antisocial conduct.

Finally, the insanity defense is seen by supporters as quite consistent with the notion of specific deterrence or restraint. If the defense is invoked successfully, the defendant is not merely incarcerated for a fixed period of time, but instead can or should be committed until such time as he or she is no longer dangerous.

Those who favor abolishing or severely limiting the insanity defense have advanced the following arguments: (a) the key terms in the various insanity tests are so vague as to invite speculation and intuitive moral judgments in the guise of factual determinations; (b) there is little or no basis in psychiatry for allowing expert witnesses to testify—as they often do, in conclusory terms—concerning the differentiation between persons who are personally blameworthy and those who are not; (c) it is therapeutically more desirable to encourage treatment of persons as actors responsible for their conduct, rather than as in-voluntary victims ‘playing a sick role,’ (d) the insanity defense discriminates against persons who commit crimes because of influences on their personalities other than mental disease or defect. In addition, opponents of the defense argue that, if it be therapeutically desirable to provide a medical-custodial disposition, then such a decision should be made directly—immediately following the defendant’s conviction, rather than indirectly during the trial. Finally, opponents of the insanity defense claim that, in practice, it is a ‘rich person’s defense’ because usually it is only the wealthy who can afford the array of experts needed to mount a convincing defense. These scarce psychiatric resources, they argue, should be spent in treatment of those who have been committed or imprisoned.

Of the 47 states in the United States that allow a defense of insanity (Idaho, Montana, and Utah have abolished it), about half apply the American Law Institute (ALI) standard, first adopted in 1962; the others continue to apply the M’Naghten standard originally adopted in England in 1843 and then in federal and most state courts in the US in 1851. The ALI test states: ‘A defendant 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 of his conduct or to conform his conduct to the requirement of the laws.’ The M’Naghten rule states: a person cannot be convicted if, at the time the criminal act was committed, that person was laboring under such a defect of reason (from a disease of the mind) as not to know the nature and quality of the act he or she was doing—or, if that person did know it, as not to know that the act was wrong.

In 1984, largely in response to the public outcry at the jury’s acquittal of John Hinckley, Jr., the attempted assassin of then President Ronald Reagan, the US Congress enacted the Insanity Defense Reform Act. It represents the first federal codification of the insanity defense. The new standard provides for the affirmative defense that ‘the defendant, as a result of a severe mental disease or defect, was unable to appreciate the nature and quality or the wrongfulness of his acts.’ This formulation does not allow an insanity defense based on a defendant’s inability to conform his conduct to the requirements of the law, as provided by the American Law Institute standard.

The act also shifts the burden of proof from the prosecution to the defendant, who must prove insanity by clear and convincing evidence. It changes the verdict form to ‘not guilty only by reason of insanity’ and establishes a federal procedure for commitment of persons who have been found not guilty only by reason of insanity. The act also limits the role of experts: No expert witness testifying with respect to the mental state or condition of a defendant in a criminal case may state an opinion or inference as to whether the defendant did or did not have the mental state or condition constituting an element of the crime charged or of a defense thereto. Such ultimate issues are matters for the trier of fact alone (Simon and Aaronson 1988).

Although the insanity defense is introduced in fewer than one percent of all criminal trials, it has provoked on intense amount of interest and attention. Allen said of it: ‘The issue of criminal responsibility has attracted more attention and stimulated more controversy than any other question in the substantive criminal law’ (Allen 1964).

The defense of insanity attracts so much attention because it touches on ultimate social values. It was founded on the concept of individual responsibility as a prerequisite for criminal punishment. In the words of Stone: ‘The defense of insanity purports to draw a line between those who are morally responsible and those who are not, those who are blameworthy and those who are not, those who have free will and those who do not, those who should be punished and those who should not, and those who can be deterred and those who cannot’ (Stone 1975).

2. European Countries

The following paragraphs provide a brief review of the legal criteria and procedures surrounding the defense of insanity in Western European and selective other societies (Simon and Aaronson 1988).

2.1 Great Britain

Great Britain still uses M’Naghten as the criterion of nonresponsibility but the defense is invoked very rarely. More popular is the partial defense of ‘diminished responsibility’ for persons charged with firstdegree murder. Mental illness (which does not involve use of the M’Naghten right–wrong criterion) is introduced as a partial defense—to reduce a charge of first degree homicide to manslaughter—manslaughter does not result in mandatory life in prison anywhere. This is true for murder, not manslaughter.

A convicted criminal defendant who is considered mentally ill, although not legally insane, can be sent either to a prison or to a hospital. If a person is sent to a mental health hospital, it is usually for an indeterminate period. The court can and usually does impose a ‘restriction order’ on such a person if it considers him or her dangerous. If a person is not subject to a restriction order, he or she can be released by the hospital staff, subject to a determination that he or she can safely return to the community. But if a person is subject to a restriction order the Home Secretary must concur in the decision to release. Thus, the release of a mentally ill offender from a psychiatric facility or from a prison in England is usually a combined medical–political decision. Courts have virtually no control over the decision.

2.2 France

Article 64 of the French Penal Code provides: ‘If the person charged with the commission of a felony or misdemeanor was then insane or acted by absolute necessity, no offense has been committed.’ The defense need not establish any causal relationship between the mental illness and the behavior.

If insanity is raised as an issue, the court appoints an attorney as an officer of the court to conduct an inquiry into the state of the defendant’s mental health at the time of the offense. The court-approved psychiatrists make their evaluations as to the sanity of the defendant and report their findings to the judge. The judge has the final say as to the defendant’s sanity or insanity. The defendant found to be insane then undergoes further examination to determine whether he or she is mentally ill and dangerous at the present time. The defendant so found is sent either to a prison or to a hospital, where he or she remains until both the medical experts and the civil authorities give approval for release.

2.3 Germany

The German Penal Code drafted in 1972 reads much like the criteria spelled out in the ALI test. It states: ‘Whoever is incapable, at the time of committing the offense, of appreciating the wrongfulness of the offense or of acting according to such appreciation because of a pathological mental defect, a seriously disturbed consciousness, feeblemindedness, or another serious form of mental deviance, acts without blameworthiness.’ The code also allows for diminished responsibility: it states: ‘If the actor’s capability to appreciate the wrongfulness of the offense or to act according to such appreciation is, at the time of committing the offense, significantly reduced for one of the reasons named in Article 20, the punishment can be reduced in accordance with paragraph 49.’

If the defendant meets the criteria defined in Articles 20 or 21, the court will order an evaluation of his or her act and a determination of his or her dangerousness to the public. If the offender is found to be dangerous, he/she will be committed to a psychiatric hospital.

The court can, at any time, examine whether the further execution of detention is to be suspended on parole. Such examination would occur after the offender has been in a psychiatric hospital for one year.

2.4 Switzerland

Switzerland—like Germany—applies a criterion for determining insanity that is similar to the ALI test. It states: ‘If a defendant was mentally ill at the time of the offense and had no capacity to appreciate the wrongfulness of his act or to conform his conduct to the requirement of the law, he has a personal excuse which precludes his being punished for his conduct.’

When the insanity issue is raised, the court appoints an expert to examine the defendant. The judge invariably follows the opinion of its own appointed expert.

If the defendant is declared not guilty by reason of insanity, he or she may be released or committed to a prison or a hospital. Release is usually a medical decision, which needs approval by an executive authority.

2.5 Spain

The Spanish code drafted in 1982 has the breadth and lack of specificity noted in the French code. It states that a person who is considered mad or in a state of temporary mental confusion, and who has committed an act that the law has sanctioned as a criminal offense—is exempt from criminal responsibility. A tribunal will decree the offender’s committal into a mental hospital, where he or she will remain until otherwise authorized by the same tribunal.

3. Comparison Between US And Europe

Many of the West European Countries are less concerned about attributing specific individual blame and responsibility than the US, which emphasizes the relationship between specific characteristics of the defendant’s mental state and the act committed. The European systems tend also to focus more on treatment of the offender and on protection of society. In the US, the system works harder to establish blame or the lack of it, and expends less energy on treatment.

The West European countries are also more likely to defer to medical opinion and to extract medical testimony from the partisan system. Experts’ views have greater influence in European courts than in US proceedings—not only on the issue of the defendant’s responsibility, but also in decisions concerning commitment and subsequent release.

4. Selective Other Societies

4.1 Argentina

Argentina’s statute concerning the defense of insanity adopted by Argentina in 1963 reads much like the ALI standard. Article 34 of the penal code states that the following persons are not criminally liable: ‘Anybody who at the time of the commission of the crime could not appreciate the unlawfulness of the deed or control his actions by reason of insufficiency or diseased disturbance of his mind, or by unconsciousness, or by error of fact or ignorance for which he is not responsible.’

A defendant found not guilty by reason of insanity is automatically committed to an insane asylum. Release is dependent on a judicial hearing in the presence of a public prosecutor and on the presentation of a medical expert’s report that, in his or her view, the patient no longer constitutes a danger to self or others.

4.2 Israel

The Israeli Penal Law updated in 1983 reads as follows: ‘A person shall not bear the criminal responsibility for an act that he has committed if, by reason of a mental illness or defect, he is incapable of choosing between performing the act and refraining from doing so.’

4.3 Kenya

Kenya’s standard also reads much like M’Naghten: ‘Where an act or omission is charged against a person as an offence, and it is given in evidence in the trial of that person for that offence that he was insane so as not to be responsible for his acts or omissions at the time when the act was done or the omission made, then if it appears to the court before which the person is tried that he did the act or made the omission charged but was insane at the time he did or made it, the court shall make a special finding to the effect that the accused was guilty of the act or omission charged but was insane when he did the act or made the omission.’

If a defendant is found to be insane, the case is reported to the president; the accused is placed in custody—in either a mental hospital or a prison—and remains under the jurisdiction of the court.

4.4 Japan

The Japanese Criminal Code—amended in 1954— states simply: ‘An Act of a person of unsound mind is not punishable. Punishment shall be reduced for acts of weak-minded persons.’

4.5 South Korea

The South Korean Criminal Code—amended in 1960—reads as follows: ‘A person is not punishable if, because of mental disorder, he is unable to pass rational judgment or to control his will.’

South Korea also allows for diminished responsibility: ‘The punishment of a person who, due to a mental disorder, is deficient in the capacity mentioned in the preceding Section, shall be mitigated.’


  1. Allen F 1964 The Borderline of Criminal Justice. University of Chicago Press, Chicago, p. 105
  2. Simon R J, Aaronson D E 1988 The Insanity Defense. Praeger, New York, p. 22
  3. Stone A 1975 Mental Health and Law: A System in Transition. DHEW pub. no. (ADM) 75–176. NIMH, Rockville, MD, p. 218


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