Can Insanity Be Used as a Defense?

Abstract

No topic in criminal law has aroused more discussion than the question of the responsibility of the insane for a crime. The discussion breaks out with renewed violence every time that this defense is raised in a criminal case. It has long been the cause of a war of great feeling between the medical and legal professions. The doctors refer to the bench and bar as judicial murderers. In reply, the lawyers shift the blame to the medical profession. In all of these discussions, the chief difficulty seems to lie in the fact that there is either a failure to recognize at all, or at least to recognize sufficiently, the fundamental principle underlying mental incapacity. The question of insanity is really not a question of law; it is essentially a question of fact. The legal question is responsibility. In this paper we will explain the utilization of insanity as a defense, from a survey of the history of insanity as a defense in the earlier law, if we may draw a deduction from the scant evidence; insanity is apparently a question of fact not gauged by strict rules. This changes, however, and later we find insanity gauged by inflexible legal tests. Recent tendencies indicate a development towards recognition of insanity not as a question of law, but as one of fact.

Introduction

It was not until the late eighteenth and early nineteenth centuries that the medical profession began to study insanity with any degree of thoroughness. Before that time but few of the psychoses were known and recognized. The medieval notions that insanity was a visitation from the Almighty, or that the insane were possessed with demoniacal influences, were not confined to the laymen alone, but were generally current among all classes. Insanity as a disease, known and treated as such, did not get recognition until the last century. It seemed absurd to all but a few medical men that the insane person should be treated as a sick person. Mr. Justice Doe in State v. Pike2 gave a striking example of this, quoting a declaration of the Lord Chancellor, made in the House of Lords in 1862: Into this subject has proceeded upon the vicious principle of considering insanity as a disease.” In commenting on this statement, Mr. Justice Doe said: “This remark indicates how slowly legal superstitions are worn out, and how dogmatically the highest legal authorities of this age maintain, as law, tests of insanity, which are medical theories differing from those rejected by the same authority, only in being the obsolete theories of a progressive science.”

All this is perhaps not so striking when we consider that even at the present time the average person would regard a visit to an insane asylum in much the same light as a visit to the Zoological Gardens. The subject of mental aberration may be grouped under two great heads; mental insufficiency and mental perversity. The first term comprehends those whom the law knows as idiots and the second, those whom the law knows as lunatics. The difference between these is that in the first group there is a lack of something in the mental make-up, whereas in the second there is a disorder of that mind which the subject possesses. Just what persons should be included in these groups ought to be left solely to the psychiatrist for determination. His determination must change necessarily with the increased progress and knowledge of medical science in the study of mental conditions. The following classes of persons who are mentally defective shall be deemed to be defectives within the meaning of this Act:

1. Idiots; that is to say, persons defective in mind from birth or from an early age as to be unable to guard themselves against common physical dangers;
2. Imbeciles; that is to say, persons in whose case there exists from birth or from an early age mental defectiveness not amounting to idiocy, yet so pronounced that they are incapable of managing themselves or their affairs, or, in case of children, of being taught to do so;
3. Feeble-minded persons; that is to say, persons in whose case there exists from birth or from an early age mental defectiveness not amounting to imbecility, yet so pronounced that they require care, supervision, and control for their own protection, or for the protection of others, or, in the case of children, that they by reason of such defectiveness appear to be permanently incapable of receiving proper benefit from the instruction in ordinary schools;
4. Moral imbeciles; that is to say, persons who from an early age display some permanent defect coupled with strong vicious or criminal propensities on which punishment has had little or no effect.” The distinction between idiots and lunatics was important in early times after the Statute de Prerogative Regis, for by this statute the king was given the lands of the idiot, and was to take the profits without waste or destruction to these lands, and was to provide necessaries for the idiot. In the case of lunatics, however, the king takes the profits of the lunatic’s lands and maintains the lunatic and his family, but does not reserve any part of the profits for the royal revenues.

One of the most striking things about the early law is the number and variety of terms used to describe the mentally abnormal. These terms are in Latin, Law French and English, and may be divided into two classes; those denoting the idiot, and those denoting the lunatic. Those denoting the idiot are apparently used as equivalents for the terms which we today apply to the lower grades of mental defectives, and would therefore; include the idiot and the imbecile. Of the terms denoting idiot, we find “idiot”° in its various forms, ‘fatuous”,” “stultus”, “fool” or “foole natural”, and “sot.” All these denote a mentally deficient condition that existed from birth. Fitzherbert gives a definition of idiot in Novel Natura Brevium: of Statistics of the National Committee for Mental Hygiene; see Statistical Manual for the Use of Institutions for the Insane; see also Kidd and Ball, The Relation of Law and Medicine in Mental Disease.

Terms de Ia Ley defines idiot as a natural fool from birth. Regist rum Brevium,, in writ number three, speaks of “Ideota et fatuus a nativifate Though the early law excused the insane offender from the punishment of the felon, it did not in all cases let him go free. There are some cases where he was acquitted and allowed to go home. Another case allowed a release on pledges until more should be known. The usual practice, however, was similar to the treatment of those who had committed homicide by misadventure or in self-defence. In these cases the man was imprisoned and stayed in prison until the king gave him a charter of pardon. Whether or not the lands and chattels of the insane offender were forfeited appears to be doubtful. The common law provided that where a felon had committed a crime, and had become insane before trial, he would not be called upon to answer, or if after judgment he became insane, he would not be executed. In the case of high treason the insane person, whilst originally not held liable, was held liable for it by the statute of 33 Hen. VIII. c. 20 (1542), but this act was soon repealed, and so finally the lunatic could not be held liable even for high treason. The treatment of this defence by the early institutional writers is very fragmentary and unsatisfactory. Bracton devotes merely a couple of sentences to it. Fitzherbert discusses it in connection with the writs of Durn non fuit corn pos mentis and De Idiota inquirendo et ezaminando. Coke’s treatment is brief and scattered “The king is to be consulted about an insane man who is in prison because in his madness he confesses himself a thief, whilst really he is not guilty.”; Hale, Pleas of the Crown, I, p. 35; 2 Stephen, History of the Criminal Law, 151, where the king promises that he will pardon felony only in those cases where pardon was anciently granted, viz., homicide through misadventure, self-defence, and lunacy.

Fitzherbert, Abridgment, “Corone” No. 412, gives a case of forfeiture of chattels where a lunatic wounded himself, and later recovered his sanity, and then died of the wound. In “Corone” No. 244, under a similar state of facts, the lunatic not only had the rights of the church, but his chattels were not confiscated. Gives several situations, some in which the chattels of the lunatic were forfeited, and some in which they were not. Hale reached the result that whenever the madness was such as to deprive the offender of his use of reason, he was excused from capital crimes. “And it is all one, whether the phrenzy be fixed and permanent, or whether it was temporary by force of any disease, if the fact were committed whilst the party was under that distemper.” At this time there were two sorts of trials to determine idiocy, lunacy, or madness. The first was by inquisition which was taken especially in reference to whether the idiot’s or lunatic’s lands should be taken by the king. The other was on the trial of a lunatic for a capital offence. Upon the defendant’s plea of not guilty, the jury considered his incapacity and whether it was of such a degree as to excuse him. When we consider the general ignorance of the professions as to the nature of insanity, at the time of Hale, his treatise can be considered as remarkable. He apparently recognized the main divisions of the subject and defined them fairly well. Expressions in some of the later cases might even force a conclusion that Hale was in advance of his time. The next great treatise on the criminal law was The Pleas of the Crown by Hawkins. Hawkins’ treatment of insanity as a defence is not confined to a definite chapter as is Hale’s, but is scattered under various heads.6′ It is interesting to notice the test he lays down for such disability:

“Sect. 1. As to the first point (in respect of their want of reason) it is to be observed that those who are under a natural disability of distinguishing between good and evil, as infants under the age of discretion, ideots and lunaticks, are not punishable by any criminal prosecution whatsoever.” In this text apparently lies the beginning of the famous “right and wrong” test. The one is healthy immaturity, the other diseased maturity, and between these there is no sort of resemblance.”

Hale, Pleas of the Crown, I, p. 33, where Hale gives a case of 1668, where a woman temporarily insane at childbirth killed her child. She was imprisoned, and whilst in prison recovered her sanity. She was then tried for murder. The jury were given the direction, “that if it did appear, that she had any use of reason when she did it, they were to find her guilty; but if they found her under a phrenzy, though by reason of her late delivery and want of sleep, they should acquit her ;“ The jury found her not guilty. In discussing suicide, Hawkins says (Pleas of the Crown, I, 102) “Sect. 2. But here I cannot but take notice of a strange notion, which has unaccountably prevailed of late, That every one who kills himself, must be non corn pos of course; for it is said to be impossible, that a man in his senses. It should do a thing so contrary to nature and all sense and reason” Pleas of the Crown, I, p. 1. Blackstone in his Commentaries devotes a chapter to the treatment of persons capable of committing crimes. He speaks of the defect of ‘idiocy and lunacy as follows: “The second case of a deficiency in will, which excuses from the guilt of crimes, arises also from a defective or vitiated understanding, viz., in an idiot or a lunatic.” “In criminal cases, therefore, idiots and lunatics are not chargeable for their own acts, if committed when under these incapacities: a, not even for treason itself.” “ a total idiocy, or absolute insanity, excuses from the guilt, and of course from the punishment, of any criminal action committed under such deprivation of the senses ;“ Whilst Blackstone’s treatment of the subject is meagre and taken over largely from Coke and Hale, it is by no means so unsatisfactory as later tests.

The cases in which insanity was offered as a defence to crime, which were tried in the eighteenth and early nineteenth centuries, are interesting from two standpoints. We are able to learn from the reports a good deal about the prisoner’s mental condition and iii addition they illustrate the tests by which the incapacity was determined. Of these cases, the first of importance is Arnold’s Case.65 Arnold was indicted for feloniously shooting and wounding Lord Onslow. The prisoner had been known as a madman for years. He was suffering from a delusion that Lord Onslow was the author of all tumults, noises and disturbances in the country. Mr. Justice Tracy, in the course of his charge to the jury, said : “When a man is guilty of a great offence, it must be plain and clear, before a man is allowed such an exemption; therefore it is not every kind of a frantic humour or something unaccountable in a man’s actions, that points him out to be such a madman as is to be exempted from punishment; it must be a man that is totally deprived of his understanding and memory, and doth not know what he is doing, no more than an infant, than a brute, or a wild beast, such a one is never the object of punishment; therefore I must leave it to your consideration, whether the condition this man was in, as it is represented to you on one side, or the other.

Legal Assumptions about Jury Decision Making

The legal system assumes that jurors are “blank slates” who objectively decide on the facts of a case and apply the law to those facts to reach a legally appropriate verdict. However, jurors are not blank slates. Research consistently indicates that laypeople have experience-based “knowledge structures” that strongly influence their case judgments. These include stereotypes of offenders (Stalans, 1993), prototypes of offences (V. Smith, 1993 52-56), case-relevant attitudes (Moran, Cutler, & DeLisa, 1994; Roberts & Golding, 1991 161-66), and knowledge about everyday events (Bennett & Feldman, 1981; Pennington & Hastie, 1986). Judging from the size of the jury selection literature and the booming trial consultant industry, legal professionals have long known that jurors’ preconceptions and attitudes affect their legal decision making (see Adler, 1989, 1994; Gross, 1986; W. Lambert, 1994 184-88). However, explicitly acknowledging this fact would open a Pandora’s box of challenges based on defendants’ constitutional rights to an impartial jury. Thus, in Lockhart v. McCree (1986), Justice Rehnquist, speaking for the majority, argued that an impartial jury is not defined by “balancing the predispositions of individual jurors” (p. 178): Prospective jurors come from many different backgrounds, and have many different attitudes and predispositions. But the Constitution presupposes that a jury selected from a fair cross-section of the community is impartial, regardless of the mix of individual viewpoints actually represented on the jury, so long as the jurors can conscientiously and properly carry out their sworn duty to apply the law to the facts of the particular case. (p. 184)

As this quote suggests, a juror is biased when her 1 state of mind in reference to any person or issue involved in a case might substantially impair her performance of her duties as juror (Adams v. Texas, 1980), such as following judicial instruction on the law (Dillehay & Sandys, 1996 22-27). The Court assumes that the routine procedural safeguards it applies sufficiently neutralize juror bias. These include conducting a special voir dire to allow the prosecution and defence to identify and excuse from service prospective jurors who may be biased, instructing jurors on their duty to apply the law objectively, and eliciting oaths that they will do so (see Dressler, 1991; Shuman, 1994; Tanford, 1990 25-96). According to the Court, represented by Justice Powell, “it is fair to assume that the method we have relied on since the beginning usually identifies bias” (Patton et al. v. Yount, 1984, p. 1038, citations omitted) There are reasons to doubt this assumption, however. First, attorneys often do not identify biased jurors (Hastie, 1991 41-49), in part because they rely on “stereotypic rules of thumb” (MacCoun, 1989, p. 1047) to identify bias that is based on non-specific demographic and attitudinal variables (Abbott, Hall, & Linville, 1993; Hastie, Penrod, & Pennington, 1983; Shuman, 1994 51-54).

Second, even when attorneys do effectively identify and eliminate jurors who are strongly pro-defence or pro-prosecution, the resulting juries do “not differ much from one that would have been selected randomly or by accepting the first 12 names that came to the box” (Johnson & Haney, 1994, p. 498). Johnson and Haney found that, during perfunctory questioning of jurors during voir dire, a hesitant juror’s answers were often short-circuited by the judge, who insisted that she give a “formal assurance” that she would set her biases aside during the trial and render a verdict on the basis of the evidence (Huber v. State, 1996, p. 1080). At the conclusion of trial, however, fully half of jurors admitted that they “could not set aside their personal opinions and beliefs in reaching a verdict, despite their agreement to do so” (p. 502). In keeping with this fact, mock jurors’ attitudes and preconceptions have been shown to affect their verdicts even when they are instructed to lay them aside and swear to do so (English & Sales, 1997; V. Smith, 1993). Thus, despite legal assumptions, “jurors do not so much find reality as construct it” (Finkel, 1995, p. 63). Although jurors’ application of “commonsense justice” may often result in well-reasoned, highly contextualized case judgments (Finkel, 1995, 1997 22-27), it is likely, under some circumstances, to result instead in legally incorrect or even highly prejudicial ones (English & Sales, 1997; V. Smith, 1991 481-88).

Literature review

Importance of Legal Assumptions to Insanity Defence Cases

Jurors’ reliance on their attitudes and preconceptions is particularly likely to be detrimental in cases where defendants raise the controversial defence of insanity. First, a substantial body of research indicates that negative attitudes toward the insanity defence are prevalent, change resistant, and highly influential on jurors’ verdicts. Although studies sometimes find support for the abstract rationale of the insanity defence, they consistently document strong negative attitudes toward the defence (Ellsworth, Bukaty, Cowan, & Thompson, 1984; Golding, 1992; Hans, 1986; Hans & Slater, 1984; Homant & Kennedy, 1987; Roberts & Golding, 1991; Steadman & Cocozza, 1978 421-56). Laypeople often express a belief that the insanity defence is a frequently abused “loophole” in the law that allows many guilty criminals to escape punishment (Golding, 1992; Hans, 1986; Pasewark, 1981; Perlin, 1994, chaps. 3 and 5 547-85). This concern is grossly inaccurate as well as inflexible. For example, although Pasewark and Seidenzahl (1979) found that laypeople believed the insanity defence was raised in approximately 37% of cases, Silver, Circione, and Steadman (1994) found that the actual rate across eight states was less than 1%, which is 41 times less than the public estimate. When provided with correct information about the limited proportion of defendants who enter insanity pleas and are acquitted by reason of insanity, approximately half of laypeople maintain their overblown misconceptions (Jeffrey & Pasewark, 1984; see also McCutcheon & McCutcheon, 1994; Perlin, 1994, p. 230).

Especially troubling is the robust finding that attitudes toward the insanity defence exert considerable influence on mock jurors’ verdicts in insanity cases (Bailis, Darley, Waxman, & Robinson, 1995; Cutler, Moran, & Narby, 1992; Ellsworth et al., 1984; Homant & Kennedy, 1987; Poulson, Brondino, Brown, & Braithwaite, 1998; Roberts et al., 1987 273). For instance, Roberts and Golding (1991) found that jurors’ attitudes toward the insanity defence were more strongly associated with their verdicts than were manipulations of case facts and available verdict categories. Jurors’ reliance on their own knowledge structures in insanity defence cases is also of concern because jurors abide by their own conceptions of insanity to a greater extent than they do case facts and the law. Empirical studies repeatedly demonstrate that mock jurors often do not apply judicial instruction on legal definitions of insanity in rendering verdicts (Finkel, 1989, 1991; Finkel, Shaw, Bercaw, & Koch, 1985; Ogloff, 1991; Ogloff, Schweighofer, Turnbull, & Whittemore, 1992; Simon, 1967 562). This suggests that they rely on their own conceptions of insanity to decide whether a defendant is insane. For more than two centuries, the language of legal standards for insanity has been intensely debated. When a high-profile “case produced a ‘wrongful’ verdict, pressure for a new test grew” (Finkel, 1995, p. 179). 2 For instance, after John Hinckley Jr. was acquitted by reason of insanity after attempting to assassinate President Ronald Reagan (U.S. v. Hinckley, 1981 231-35), public outrage ensued and Congress passed the IDRA (1984). At the time of Hinckley’s trial, the ALI standard for insanity had been the following:

A defendant is not responsible for his criminal conduct if, as a result of mental disease or defect, he “lacks substantial capacity either to appreciate the criminality of his conduct or to confirm his conduct to the requirements of the law.” (ALI, 1962, p. 74, emphasis added) The IDRA excised the volitional prong of this standard (italicized above), thereby returning to a version of the “cognitive” standard that had been in effect for 150 years (Regina v. M’Naghten, 1843 114-19). Although proponents expected that this test would produce fewer insanity verdicts than the ALI standard, the IDRA standard did not work “as advertised” (Finkel, 1995 18-27). Using a case vignette design, Finkel (1989) found no significant verdict differences between mock jurors who were given IDRA instructions and those who were given ALI instructions or even the narrow “wild beast” test, which requires that an insane defendant be “totally deprived of his understanding and memory, and doth not know what he is doing, no more than an infant, … a brute, or a wild beast” (Arnold’s Case, 1724, as cited in Walker, 1968, p. 56).

These results have been replicated with a variety of markedly different insanity tests that span more than 250 years of insanity defence jurisprudence in North America (for reviews, see Finkel, 1995; Ogloff et al., 1992 148-68). Thus, despite recurrent, heated debate about the language of insanity defence standards, the test of insanity ultimately selected seems to make no difference to jurors. 3 In fact, it often makes no difference whether jurors are given any test or not. Mock jurors who receive no insanity test instructions, or who are explicitly told to use their own “best lights” to decide the case, produce verdict patterns similar to those of mock jurors who receive various insanity test instructions (Finkel, 1989; Finkel & Handel, 1988; Ogloff, 1991; Simon, 1967 254-84). The reasons jurors do not use insanity instructions remain unclear. Although some evidence indicates that jurors have trouble recalling and understanding instructions, other research suggests that jurors interpret instructions differently in light of their own experiences. 4 Regardless of its basis, jurors’ determinations of insanity without guidance suggest that they rely on their own conceptions of insanity. “For if jurors are setting the legal test aside, and then they must be falling back on their commonsense notions of insanity. And if they reconstruction the test, their commonsense notions must be giving their reconstructions shape and form” (Finkel, 1995, p. 286).

An additional line of research also suggests that jurors rely on their own conceptions of insanity in deciding cases and that these conceptions are associated with their attitudes about insanity. Jurors often draw different inferences about defendants’ cognitive and volitional impairments on the basis of identical case descriptions (Bailis et al., 1995; Poulson et al., 1998; Roberts et al., 1987; Roberts, Sargent, & Chan, 1993; Simon, 1967 55-57). For instance, Roberts and Golding (1991) presented mock jurors with case vignettes in which available verdict categories and the defendant’s mental state at the time of the offence were manipulated, and then they measured jurors’ construal of case information (e.g., perception of the extent to which the defendant was capable of acting differently). They found that the ways in which jurors construed the case were associated with their attitudes toward the insanity defence and were the strongest predictors of verdict choice. In fact, case construal explained substantially more variance in verdicts than the case as “objectively given”: When defendants were perceived as being more disordered, as having less knowledge that their victim was a person, less appreciation of the wrongfulness of their conduct, and less capacity for … reasoning logically in their situation and understanding reasonable alternative conduct, then subjects strongly “voted” in favour of an insanity verdict. (Golding, 1992, p. 9)

Using a different case vignette methodology, Finkel and Handel (1989) also found that mock jurors construed cases in complex, discriminating ways that were consistent with their verdict choices. Similarly, Simon’s (1967) qualitative analyses of mock jury deliberations suggest that jurors construed identical case facts differently. In one vignette, a defendant was caught “hiding” in a house he had burglarized by crouching in the middle of a room with a newspaper over his head. Mock jurors who thought this defendant was insane viewed these actions as irrational or “crazy,” whereas jurors who thought the defendant was guilty believed his behaviour was typical of a clever criminal. 5 Again, jurors’ perception and interpretation of the case facts seemed driven by their knowledge structures. Substantial evidence suggests that jurors’ case-relevant attitudes and preconceptions affect their judgments in insanity defence cases. Negative attitudes toward the insanity defence are prevalent and strongly predict insanity case judgments.

Moreover, jurors do not apply legal definitions of insanity in rendering verdicts, but instead rely on their own conceptions of insanity to interpret case information and decide whether a defendant is sane or insane. Although little is known about these conceptions, preliminary evidence suggests that they are associated with attitudes toward the insanity defence. Any adverse influence of these knowledge structures on jurors’ judgments may often go undetected, based on limitations in current knowledge and in legal procedures for identifying and eliminating juror bias. These points have critical implications, considering that a defendant does not obtain a fair trial if some of the jurors empanelled are unwilling to entertain his 6 established legal defence of insanity (Cutler et al., 1992). The series of studies presented below initiated a program of research designed to advance understanding of how jurors determine whether a defendant is insane and to provide methods for identifying and reducing juror bias. The chief purposes of these studies were to determine the nature and variability of jurors’ conceptions of insanity assess their relationship to case-relevant attitudes, and explore their relationship to case judgments.

Intuitive Conceptions of Insanity Guide Verdicts, But What Are They and How Do They Work?

Although several scholars have argued that jurors render insanity case verdicts on the basis of their commonsense notions or implicit theories of insanity (Bailis et al., 1995; Finkel & Handel, 1989; Roberts et al., 1987 22-74), this hypothesis has not yet been directly tested. As an adjunct issue to their central focus, several researchers have attempted to discern the nature of jurors’ conceptions of insanity and the extent to which they reflect the impairments stressed in various legal tests. These studies have produced conflicting results. Some evidence suggests that jurors have a “wild beast” notion of insanity, such that the defendant “doesn’t know what he is doing” (Hans & Slater, 1984, p. 107) or is “furiously insane” (Roberts et al., 1987, p. 24). Other results suggest that jurors’ representations of insanity extend more broadly to defendants with less severe cognitive and volitional impairments (Bailis et al., 1995; Robinson & Darley, 1995 28-37). Still other results suggest that all of these constructs, impairment in awareness, cognition, and volition come into play depending on the case given but that no single construct is determinative across cases or describes the essence of insanity (Finkel & Handel, 1989). These conflicting results may partially be based on methodological limitations.

First, these studies rarely assess individual differences in conceptions of insanity, which may produce unstable and less meaningful aggregate results (Finkel, 1997 11-14). Roberts et al. (1987) found that individual differences in “social-moral cognition” were critical in determining the extent to which jurors were willing to find “not guilty by reason of insanity” any defendant who was not obviously insane. Second, in virtually all of these studies, investigators attempted to infer the nature of jurors’ conceptions of insanity on the basis of jurors’ judgments about insanity case vignettes (Bailis et al., 1995; Finkel & Handel, 1989; Roberts et al., 1987; Robinson & Darley, 1995; cf. Hans & Slater, 1984 412-45). These inferences typically were based on the independent variables in the vignette that predicted jurors’ verdicts. 8 Because the number of variables that can be manipulated in these vignettes is limited, investigators must choose which variables to manipulate. Thus, the results of these studies arguably reflect the investigators’ insight about a few important factors in jurors’ decision making more than they capture the essence of jurors’ conceptions per se. In addition, because jurors’ judgments may be bound to the case vignettes used to elicit them, it may be difficult to expose jurors to a broad enough stimulus domain to detect key dimensions of their conceptions.

The closest approximation to a direct study of jurors’ conceptions of insanity was conducted by Finkel and Groscup (1997), who explored undergraduate students’ insanity case stories. The authors asked students to create typical and atypical case narratives about defendants who successfully or unsuccessfully plead insanity in a jury trial. They found that students often described a young, male defendant with a psychiatric history who committed a crime against an unknown male victim on the basis of either grandiose delusions (successful plea) or revenge (unsuccessful plea). Notably, there were no differences between students’ “typical” and “atypical” case stories. 9 Both story types tended to be extraordinary and to reflect “obvious news media, TV, and Hollywood influences” (p. 216). These “ghastly,” “macabre” results may be attributable to study methodology. Students were asked to “use their imagination” to create insanity case stories for a jury. In doing so, they may have accessed and embellished recent media stories to which they had been exposed. These students were not asked to access, and arguably did not describe, their personal conceptions of insanity. Thus, despite abundant evidence that jurors’ intuitive conceptions of insanity affect their case judgments, the nature of these conceptions and the process by which they affect verdicts are unknown. What determines how individuals construe, for instance, the degree of control a defendant had over his criminal actions? How do these inferences affect ultimate verdicts? An established theory of cognitive categorization and its recent application to general legal decision making provide promising leads for addressing these issues.

Applying Prototype Theory to Illuminate Conceptions of Insanity

The prototype theory of categorization was first formally proposed by Eleanor Rosch (1975; Rosch & Mervis, 1975 147-54) and has since been extended through recent empirical observations (see Hampton, 1993; MacLaury, 1991; Schneider, 1991; E. Smith & Medin, 1981 57-66). According to prototype theory, knowledge about any category is structured around and represented in memory by a prototype, or quintessential member. This prototype is defined by a set of abstract features commonly associated with members of a category that capture the category’s meaning (Cantor, Mischel, & Schwartz, 1982 96-99). Category membership is based on a similarity matching process; as the number of features that the object shares with the category’s prototype increases, so does the likelihood that the object is deemed a member of the category. Because some objects in the category share more critical features with the prototype and are thus more “typical” of the category than others, the category is internally graded rather than uniform and discrete. 10 Prototype theory has been supported by empirical evidence that demonstrates that people naturally represent categories of concrete objects (e.g., animals, vehicles) and abstract concepts (e.g., social situations, art) with prototypes (for reviews, see Hampton, 1993; MacLaury, 1991; Rosch, 1977; E. Smith & Medin, 1981 47-88).

Vicki Smith (1991, 1993; V. Smith & Studebaker, 1996) demonstrated that people also represent crime categories like “burglary” with prototypes. Smith conceptualized selecting a verdict as a prototype-relevant categorization task; when a juror is asked to decide whether a defendant is guilty of a certain crime, she must decide whether “the defendant’s actions qualify as a member of the crime category charged” (V. Smith, 1991, p. 858). She found that mock jurors had naïve conceptions of crime categories that differed from legal definitions, 11 manifested “typicality effects” characteristic of prototypes, and were more determinative of their verdicts than judicial instructions. Even though an entire set of case descriptions should have produced guilty verdicts on the basis of the legal definition given for the crime, mock jurors were substantially less likely to judge defendants guilty of a crime as the number of features in a case description shared with their crime prototype decreased. Thus, jurors judged whether a defendant was guilty by determining the degree of similarity between a case description and their crime prototype, rather than by assessing whether the necessary and sufficient features of the crime, as legally defined, were present. Vicki Smith’s primary findings have important implications for jurors’ decision making in insanity defence cases (Bailis et al., 1995; Finkel, 1995 32-95). 12 Determining whether a defendant is guilty of a particular crime is similar to deciding whether a defendant was insane at the time of an offence; both are categorization tasks well suited for the natural process of prototype matching.

Just as jurors represent verdict categories in general criminal cases with crime prototypes, so too may jurors represent verdict categories in insanity cases with prototypes of insanity. Jurors may rely on their prototypes of insanity to construe the facts of the case and render a verdict on the basis of a prototype similarity matching process. A juror may make attributions about a defendant’s cognitive and volitional impairments by comparing the defendant’s characteristics to those of her prototype of the criminally insane defendant. The more closely the defendant’s attributes match those of her prototype, the more likely she is to judge that defendant a member of the category “insane.” The hypotheses that jurors have prototypes of the criminally insane that organize the piecemeal information that they informally encounter about insanity and that these prototypes guide their legal decision making is consistent with several empirical findings. First, people represent a wide range of insanity-relevant categories with prototypes, including people with psychopathology (e.g., schizophrenia, bipolar; Cantor, Smith, French, & Mezzich, 1980; Genero & Cantor, 1987 275-96), identifiable social groups (e.g., the elderly, homosexual people; Brewer, Dull, & Lui, 1981; Cantor et al., 1982; Lord, Lepper, & Mackie, 1984; Rothbart & Lewis, 1988 96-104), and personality types and traits (e.g., introverts, shyness; Buss & Craik, 1983; Cantor & Mischel, 1979b; see also Anderson & Sedikides, 1991 52-114). In fact, one study directly suggests that laypersons have prototypes of the “criminal madman” (Cantor et al., 1982).

13 Second, even where the law defines black-and-white categories (e.g., guilty, not guilty, not guilty by reason of insanity), jurors’ see shades of grey when rendering insanity verdicts (Finkel, 1995 53). Mock jurors often construe cases across various responsibility dimensions as neither clearly sane nor insane and, when available, use unclear categories (guilty but mentally ill) and intermediate categories (diminished responsibility) as “compromise” verdicts for these cases (Finkel & Duff, 1989; Roberts & Golding, 1991; Roberts et al., 1993 234-56). These results are consistent with the prototype approach, which specifies that category members vary in the number of critical features they share with the prototype. Thus, category members range from very typical or clear cases (i.e., insane or guilty) to unclear, atypical cases (i.e., guilty but mentally ill, diminished responsibility). Third, because prototype features are correlated with, but not necessary for, category membership, there may be considerable heterogeneity among category members such that “equivalently clear cases … [are] characterized by different subsets of the features” (Genero & Cantor, 1987, p. 60). Thus, Finkel and Handel’s (1989) finding that the constructs revealed in jurors’ explanations for their verdicts shifted from case to case May partially reflect the fact that each case was characterized by different features of an insanity prototype. For instance, when a lack of control over impulses and a lack of evil intent were salient features in a case in which the insane defendant was epileptic, a “paranoid schizophrenic” was deemed insane on the basis of distorted thinking and incapacity to make responsible choices.

Discussion

Most prototype research focuses on a “consensus prototype,” or composite prototype composed of the features that are most frequently listed across individuals. Similarly, most research on jury decision making focuses on aggregate results. Unlike past studies, 14 our research focuses explicitly on assessing individual differences in personal conceptions of insanity and their relationship to verdict selection, this focus is based on both conceptual and pragmatic concerns. First, because “categorization results from a learning process” (Taylor, 1981, p. 87), individuals with different life experiences are likely to develop substantially different knowledge structures In fact, a substantial body of evidence indicates that individuals differ in prototypes and stereotypes on the basis of differences in their life experiences, cultures, and attitudes (Eagly & Mladinic, 1989; Kempton, 1981; A. Lambert & Wyer, 1990; Lord et al., 1984; Stangor, Sullivan, & Ford, 1991; see also Ashmore & DelBoca, 1981, p. 19; MacLaury, 1991, pp. 59–60). For example, when asked to identify their prototype of a “boot,” a Londoner may identify an army boot whereas a Texan identifies a cowboy boot. These prototype differences would guide different decisions about what shoes do and do not classify as boots. These findings are likely to extend to prototypes of insanity. Prior research suggests that there are important, often attitude-related differences in how jurors interpret insanity cases. These differences may be associated with differences in prototypes of insanity.

Individual differences in conceptions of insanity should be investigated for pragmatic reasons as well. Although aggregate findings are helpful in quantifying the nature and extent of biases across jurors as a group, they do not aid in differentiating prospective jurors with prejudicial, caricatured, or incorrect prototypes from those with relatively sophisticated prototypes that may be in accord with the law. Thus, our research was designed to develop a measure to characterize individual prototype differences that may be used to make such differentiations. Despite legal assumptions and safeguards, jurors rely on their knowledge and experiences to actively interpret case information and render judgments. Given the controversial nature of the insanity defence, this reliance may particularly jeopardize a defendant’s rights in insanity defence cases. Abundant evidence suggests that jurors have and rely on their own, intuitive conceptions of insanity to determine whether a defendant is sane or insane. However, these conceptions of insanity and the process by which they affect verdicts are poorly defined.

This research applies prototype theory and methodology to address these issues. We have presented hypotheses (a) that jurors represent criminal insanity with prototypes that guide their case judgments and (b) that there are critical individual differences in prototypes of insanity. This research begins to test these hypotheses but focuses explicitly on describing the nature and variability of laypeople’s conceptions of insanity and exploring their relationship to case-relevant attitudes and case judgments. Future research can extend these studies by testing whether jurors render verdicts in insanity defence cases using a prototype matching process and determining the extent to which reliance on biased prototypes can be reduced

Research Design

We present three interconnected studies that comprise the original research and a fourth study that attempts to replicate its results. The first three studies modify traditional prototype methodology to measure individual differences in conceptions of insanity and assess their relationship to case judgments. In the first study, we elicited the characteristics or features of jurors’ conceptions of insanity. In the second study, we condensed this large group of features and developed it into a measure of individual differences in conceptions of insanity. In the third study, we administered this measure along with measures of attitudes and an insanity case vignette to a sample of jurors to identify individual differences in prototypes and assess their relationship to attitudes and case judgments. Participants in the first three studies (“jurors”) were former venire persons, or members of the jury pool. In the fourth study, we attempted to replicate the results of the third study with an undergraduate sample. The studies described below are presented in a comprehensive manner appropriate to a social science audience. For readers who do not wish to wade through methodological and statistical details, we present a synopsis of the method, findings, and implications of each study at the end of each section.

Study 1: Who Is Insane? Eliciting the Features of Jurors’ Conceptions

Method

Juror Sample and Procedure

Participants in this study were 81 former venire persons (jurors) who were called to appear for one of nine randomly selected criminal and civil 15 cases of the Third District Court, which represents approximately 40% of Utah’s population (Utah Population Estimates Committee, 1998). Almost all participants were White (99%) and approximately half were women (54%). Participants’ average age was 45 years (SD = 14.25), and their average educational level was just below a bachelor’s degree (M = 15 years, SD = 2.54). Only 21% of study participants actually served as jurors on the index case randomly selected for study inclusion. Prospective participants were invited to take part in the study either in court on their first day of court service or by telephone or postcard 2–4 months following their service. Jurors who agreed to take part in the study were mailed the study materials and, if necessary, contacted by telephone 2 and 4 weeks later and asked to return their responses. Study participants were similar to venire persons who did not complete the study across a range of characteristics. Of the 228 venire persons called for selected cases and invited to take part in the study, 81 returned the study measures, for a rate of completed participation of 36%. Study participants did not differ from non-participants with respect to gender, χ2(1, N = 229) = 0.84, p =.41; age, t(210) = –0.68, p =.50; or selection as jurors, χ2(1, N = 232) = 2.36, p =.14. Because non-participants’ race and educational level were not available, they were estimated from county census statistics (Census of Population and Housing, 1990; Utah Department of Employment Security, 1998), which probably overestimate the proportion of racial minorities found in jury pools and underestimate the educational level (see Abbott et al., 1993; Bueker, 1997). This stringent test of the sample’s representative ness indicates that study participants attained higher levels of education than census estimates, χ2(4, N = 160) = 21.69, p <.001, but did not differ from census estimates in race and ethnicity, χ2(4, N = 162) = 9.02, p <.10.

Defining the nature and number of prototypes

As noted above, most investigators have attempted to infer the nature of jurors’ conceptions of insanity on the basis of their judgments about insanity case vignettes that differ across a necessarily limited set of independent variables. Because of the limitations of this approach (see the section Intuitive Conceptions of Insanity Guide Verdicts, But What Are They and How Do They Work?) and its questionable compatibility with prototype theory, we applied a different method in this study. Since Rosch’s (1975; Rosch & Mervis, 1975 23-26) formulation of prototype theory, prototypes have been studied extensively as sets of abstract features associated with members of a category that capture the category’s meaning (Cantor et al., 1982; Reed, 1972; E. Smith & Medin, 1981 24-95). For several reasons, 17 we investigated prototypes of insanity as traditional, abstract feature sets that are operationally defined as lists of features that individuals generate when asked to describe the typical member of a category (Cantor et al., 1982; Hampton, 1981; Rosch, 1978; V. Smith, 1991 63-64). This operational definition is based on two prototype premises: (a) knowledge about categories is based on one’s perception of the natural co-occurrence of their attributes, and (b) to represent knowledge most economically, one emphasizes the attributes that are most distinctive to each category (Rosch, 1977, 1978 84-89).

Applying Finkel’s (1997) typology, prototypes of insanity are arguably prototypes of people and human nature because insanity defence cases pivot on the mental state of a defendant. In this research, prototypes of insanity were operationalized as contextualized prototypes of a person, or a “person in a situation” (e.g., an insane person before, during, and after committing an offence; Cantor et al., 1982 145-49). On the basis of past theory and research, we chose to study only one prototype of insanity per juror. Given that subtypes develop as one becomes more familiar and experienced with a particular social group (see Cantor & Mischel, 1979b; Taylor, 1981 19-84), the modal layperson is unlikely to have highly differentiated subtypes of criminal insanity. Although laypeople have been shown to have subtypes of familiar, “everyday” groups like the elderly (Brewer et al., 1981), they typically have little experience with the mentally ill (Daniel Yankovich Group, 1990, as cited in Wahl, 1995 96-99), and even less with the “criminally insane.” Thus, laypeople probably represent the criminally insane at a relatively broad level.

Eliciting prototypes

The features of jurors’ prototypes of insanity, as defined above, were elicited using a structured instrument derived from that of Cantor et al. (1982) and refined on the basis of a pilot study. The instrument exemplifies traditional prototype methodology. First, the instrument asks jurors to spend a few minutes forming a complete, detailed, and vivid mental image or representation of the typical person who is not responsible for his criminal actions because of mental illness. This exercise is designed to activate and make prototype-relevant information more accessible (MacRae, Stangor, & Milne, 1994 11-17). Jurors are then asked to candidly describe the characteristics that are common to their conception of the typical insane person. To aid them in this task, we provided rough ideas about the sort of components their images might include (e.g., the persons’ behaviour, beliefs, feelings, attributes) and examples of responses for unrelated prototypes, including a bird and a person in a situation (i.e., the typical extrovert at a party, based on Cantor & Mischel, 1977; Cantor et al., 1982 158-89).

Results

To determine the general quality and nature of jurors’ whole, unsegmented responses, we analyzed the data inductively to identify recurrent patterns and themes, using Miles and Huberman’s (1994; see also Huberman & Miles, 1994; Patton, 1990 20-31) matrix methodology the key results of this analysis are presented in this section.

Response Quality and Nature

In general, jurors’ responses were rich, thoughtful feature lists or narratives that were free of bizarre, dramatic features evoked by the experimental context of a past study (Finkel & Groscup, 1997 11-49). Each juror listed an average of 7 (SD = 4) independent prototype characteristics. Only 5% of responses referenced sensational cases presented in the media, and these cases were typically identified as non-category exemplars, or individuals that would not qualify as insane based on the juror’s conception of insanity (e.g., “Ted Bundy knew exactly what he was doing”). Jurors’ insanity-relevant attitudes were sometimes activated along with their prototypes of insanity, in keeping with prior findings that people’s prototypes of social groups are associated with their attitudes about those groups (Eagly & Mladinic, 1989; Hilton & von Hippel, 1996; A. Lambert & Wyer, 1990; Stangor et al., 1991 213-67). Whilst describing their prototypes, 20% of jurors offered unsolicited opinions on the insanity defense, mental illness, or the justice system (e.g., opinions that the insane should be kept in custody). Moreover, 7% of jurors described no prototype of insanity based on their “strict liability” orientation or strong conviction that everyone is responsible for their actions, regardless of their mental condition (see Roberts & Golding, 1991 51-89). Thus, prototypes of insanity appear to be embedded in a web of mental constructs that include case-relevant attitudes (see Way, 1997).

Juror Prototypes: Beyond Legal Tests of Insanity

An analysis of the themes that organized jurors’ responses indicated that their prototypes of insanity were multifaceted and could not be reduced to legal formulations or even to single, abstract themes related to mental state at the time of the offence (e.g., an illogical, incomprehensible, delusion-based crime). The modal response reflected a combination of two to three mental state themes that were enriched by a unique description of the prototype’s human characteristics. In general, jurors were unimpressed by historically important distinctions among the types and extent of mental state impairment required by particular legal definitions of insanity. They sometimes combined mental state themes that have fuelled bitter legal debates over insanity defence standards, and they often interpreted these standards more broadly or narrowly than intended by legal definitions. For example, several jurors combined the narrowly defined “wild beast” test with that of the more broadly written M’Naghten standard (e.g., a “dishevelled, wild- or blank-eyed person with a history of uncontrollable, erratic, violent moods and behaviour who can’t distinguish between right and wrong”).

That jurors’ conceptions of insanity often plainly contradict legal definitions of insanity is understandable. Lay sources of knowledge about mental illness and insanity overlap very little with those of psycho-legal experts (Hans, 1990; Nunnally, 1957; Schoeneman, Segerstrom, Griffin, & Fresham, 1993; Wahl, 1995 164-78). Most laypeople are unfamiliar with expert definitions of these constructs and define them differently than experts do (Chung, Chen, Lam, Chen, & Chan, 1997; Furnham & Rees, 1988; Hans & Slater, 1984; Wahl, 1995 54-77). The contours and specific nature of these lay definitions of insanity are systematically explored in the studies that follow.

Synopsis of Study 1

In this first study, traditional prototype methodology was used to ask jurors to bring to mind and to describe candidly the typical person who is not responsible for his criminal actions because of mental illness; Jurors’ responses were typically thoughtful, non-sensational descriptions of multifaceted prototypes of insanity. These prototypes often fluidly combined mental state themes that have been the subject of strident legal debate. The modal response was characterized by multiple mental state themes and a unique collection of personality and psychiatric attributes. These responses were used in the second study to develop a measure of individual differences in insanity prototypes.

Analysis

The most famous case of this time was Hadfield’s Case. Had- field was indicted for high treason in shooting at King George III. He had been a soldier and was severely wounded in the head in battle. He was discharged from the army on the ground of insanity. Lord Erskine, his counsel, in his address to the jury said that Hadfield had been suffering from delusions:

“that, like our blessed Saviour, he was to sacrifice himself for its [world’s] salvation; and so obstinately did this morbid image continue, that you will be convinced he went to the theatre to perform, as he imagined, that blessed sacrifice; and, because he would not be guilty of suicide, though called upon by the imperious voice of Heaven, he wished that by the appearance of crime his life might be taken away from him by others.” The defence was stopped by Lord Kenyon, who said that the facts showed the prisoner to have committed the offence when he was in a very deranged state of mind. As the prisoner was deranged immediately before the act, it was improbable that he had recovered his senses in the interim. The jury found Hadfield not guilty on the ground of insanity. The case gave rise to the statute of 39 and 40 George III c. 94 (1800), which provided that where the jury, in the case of any person charged with treason, murder or felony, find that the prisoner was insane at the time of the commission of the offence, they shall declare whether the prisoner was acquitted by them on account of insanity, and the court shall order him to be kept in custody till his Majesty’s pleasure be known. The interesting thing about Hadfield’s Case is the way in which the right and wrong test was slighted. Stephen, in commenting on the case, says: “In this case Hadfiekl clearly knew the nature of his act, namely, that he was firing a loaded horse pistol at George III. He also knew the quality of his act, namely, that it was what the law calls high treason. He also knew that it was wrong (in the sense of being forbidden by law), for the very object for which he did it was that he might be put to death so that the world might be saved; and his reluctance to commit suicide shows he had some moral sentiments.”

The result of the case would seem to be that where delusions dis‘Everest, Defence of Insanity in Criminal Cases place realities, and in doing so, overmaster the faculties, the defendant should not be held responsible. Another early case, Regina v. Oxford, is interesting from the standpoint of evidence received in the trial. In this case Oxford was indicted for treason in shooting at Queen Victoria with a loaded pistol. He defended on the ground of insanity. Evidence was received of insanity on the part of the prisoner’s grandfather, the prisoner’s father, as well as of insane acts on his own part. The landmark in the history of insanity as a defence to crime comes with M’Naghten’s Case.” This case arose on questions put to the judges by the House of Lords as to the existing state of the law with reference to insanity as a defence to crime. The immediate cause for the questions was the general dissatisfaction over an acquittal of Daniel M’Naghten on the ground of insanity pleaded to a charge of murder of Edward Drummond, whom he had mistaken for Sir Robert Peel.

M’Naghten was labouring under an insane delusion that Sir Robert Peel had injured him. These judges were asked five questions relating to insanity as a defence; the first and fourth with reference to delusions, the second and third with reference to questions to be submitted to the jury, and the fifth with reference to testimony of a medical man at the trial. The combined answers to the second and third questions contain the famous “knowledge of right and wrong” test. The judges said: “we have to submit our opinion to be that the jurors ought to be told in all cases that every man is presumed to be sane, and to possess a sufficient degree of reason to be responsible for his crimes, until the contrary be proved to their satisfaction; and that to establish a defence on the ground of insanity, it must be clearly proved that, at the time of the committing of the act, the party accused 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 what he was doing was wrong.”

In explaining what was meant by “wrong,” it was said:

“If the accused was conscious that the act was one that he ought

Ibid.; Everest, Defence of Insanity in Criminal Cases, 26; Russell,

Crimes, 66; Collin son, Law of Lunacy, pp. 480 ff; Shelford, Law of Lunacy,

593; Kidd and Ball, Relation of Law and Medicine in Mental Disease. A cursory examination of the McNaughtan Rules1 shows that the substantive test of insanity in English law is not concerned with the aetiology of the ‘defect of reason’ or ‘disease of the mind’. All that has to be proved is that such a condition existed at the time of the offence and that it caused cognitive impairment amounting to unawareness of the nature and quality of the act, or the knowledge that the act was wrong. Mackay (1995) thus refers to a ‘blanket exclusion of fault once the insanity defence is raised’. Although English insanity law has often been criticized for failing to provide a useful and appropriate definition of legal insanity, few of the criticisms focus on the element of prior fault in mental disorder If, however, it is a fallacy that mental disorder lacks any autonomous component, then every mentally disordered offender bears some level of responsibility for his2 level of criminal responsibility. This will henceforth be denoted by the neologism ‘meta-responsibility’ (MR) of which the need arises through inadequate language to describe the notion that a defendant’s criminal responsibility may to a certain extent be under autonomous control.3 Autonomy, advertence and autogenic in mental disorder may be seen through ‘consensual’ met responsibility (roughly equivalent to traditional problems of clinical management such as medication non-compliance, substance abuse, self-harm, ignoring medical advice, failure to divulge symptomatology dropping out of treatment, etc.) and ‘purposive’ meta-responsibility (involving acquiescence in mental disorder).

Purposive meta-responsibility incorporates the antipsychotic notion that mental disorder represents strategic and wilful behaviour on the part of the patient in an attempt to influence his personal and social situation (e.g. Laing, 1967; Szasz, 1997 56-84). Should mentally disordered offenders therefore be held culpable for their mental disorder and thus for offences committed ‘under its influence’ or are they instead ‘innocent actors’ under the influence of a condition over which they have no control? Current English insanity law takes the latter position: no element of prior fault is considered in the genesis of mental disorder or its symptomatology. Although used extremely rarely (usage may, however, increase since the introduction of the hybrid disposal order in the Crime (Sentences) Act 1997), the insanity defence is a ‘flagship’ defence and therefore its reform and fairness are of utmost importance. Such reform is especially important in ‘opening-up’ the defence to the genuinely non- culpable offender through making explicit the consideration of prior fault, a provision the current lack of which, as will be discussed, frustrates the criminal justice system. Finally, the concepts discussed here are also relevant to the much more frequently used provision for diminished responsibility contained in the Homicide Act 1957, s.2 (1). Most psychiatric evidence introduced in a court of law is mitigatory rather than excusatory (e.g. Verdun-Jones, 1989 27-34), and mock juror research suggests that judges and juries do already consider the concept of MR when making decisions. This paper explores such decision-making processes and various methods by which they might be more formally applied to the defence of insanity. To this end, an insanity test that provides for the consideration of MR is presented In the case of Davis (1881) it was recognized that although insanity may be brought about by the defendant’s own actions, he should be ‘relieved… from responsibility [as] if it had been caused in any other way’.

Consensual meta-responsibility (CMR)

In consensual MR, it is not the goal of the patient to generate or exacerbate mental disorder, but through the pursuit of sensual appetites (e.g. a wish to remain free of drugs, a wish to drink excessive amounts of alcohol) the patient consents to the genesis or exacerbation of mental disorder. For example, in the pursuit of satisfying the sensual appetite of hunger, I may cook a meal. Cooking the meal generates dirty dishes, although that is not the primary purpose of the exercise. I do not want to generate dirty dishes, but I consent to doing so rather than give up my purposes and the means I have chosen. Consent does not imply that the ‘side-effect’ (dirty dishes or mental disorder) is consciously chosen or indeed enters consciousness at all (Kenny, 1978 118-85). Slodow (1989) talks of ‘risking madness’. It is argued that madness itself is not the problem here: the ‘dirty dishes’ of the above example are, in fact, concomitant criminal responsibility. Consensual MR takes its theoretical basis from the medical model; for example, in medication non-compliance. Paradoxically, those with more severe disorder are less likely to admit they are ill (Neumann et al., 1997 176-78), which creates an inverse relationship between severity of disorder and likelihood of medication compliance (‘there’s nothing wrong with me, so why do I need to take drugs?’). Other reasons for non-compliance include:

1. unpleasant side-effects (‘These pills are hurting me, therefore I’m not going to take them’);
2. non-compliance due to the effects of mental disorder (e.g. social withdrawal away from caring family members, forgetting to take medication due to preoccupation with delusional content);
3. rebellion against psychiatric control (‘I’m not going to take pills given to me by the same person who kept me in hospital against my will’); and
4. a wish to suffer from mental disorder (‘I prefer feeling manic or having grandiose delusions to reality’).

The patient thus faced with a vicious circle of medication non-compliance and disorder exacerbation: severe disorders engender medication non-compliance, which in turn leads to exacerbation of disorder. Young et al. (1986) provide a codification system for episodes of medication non-compliance. Van Putten et al. (1976) studied patients lying at the extremes of medication compliance. Drug-refuses could not be distinguished from drug-compliers along the dimensions of side-effects, complexity of pharmacotherapy regime, social supervision, and lack of insight into illness, severity of illness, doctors’ attitudes, or extra pyramidal symptoms. Instead, it appeared that drug-refuses experienced a relapse into an ego-synchronic grandiose psychosis shortly after discontinuing medication. Conversely, those who took their medication faithfully experienced the dysphonic effects of depression and anxiety, as well as insight into their disorder. The authors concluded that a ‘wish to be crazy’ was responsible for choosing to discontinue medication; that is, through the positive reinforcing effects of a grandiose psychosis and absence of dysphonic symptoms, patients avoid the unpleasant effects of drug-induced reality contact and sobriety.

It seems the poet John Dryden (1631—1700) was right in saying ‘There is a pleasure sure, in being mad, which none but madmen know’. Where medication non-compliance is instrumental in perpetuating a mentally disordered existence then the issue becomes relevant to ‘purposive’ MR (described below). It is thus important to distinguish between those patients who fail to take medication, ignore medical instructions, or abuse substances due to a wish to be crazy and those patients whose disorder prevents them from complying with medical advice. The former group should be deemed ‘more meta-responsible’ than the latter group in that they have a greater level of responsibility for their level of criminal responsibility. Where a mentally disordered person’s illness interferes with insight, self-knowledge, medication compliance, etc., we call this ‘disorder-mediated meta-responsibility’. Such distortion or ‘clouding’ undoubtedly varies by diagnosis. Bolton and Hill’s (1996) blanket statement that ‘disruption of self-knowledge is thus involved in psychological difficulties of clinical severity’ does not hold true in every case of mental disorder. Indeed, an antipsychotic perspective holds the self-knowledge of the mentally disordered to be as intact as that of the mentally healthy, if not more so.

Increasingly recognized autonomous component some, for example, adhere strongly to the disease model of alcoholism:

Over 50 per cent of crimes involve alcohol and drug abuse. Recent studies have shown that alcoholism is a biological disease, related to the way in which the brain metabolises alcohol due to the presence or absence of 2,3—butanediol,

However, many people who regard alcoholism as a disease also see alcoholics as morally weak and personally responsible for their illness. Although it may be ‘kinder’ to alcoholics to subscribe to the disease model, ‘most people still believe that only certain (morally corrupt) individuals will develop drinking problems. The law has comported with such a view in cases such as R. v Tandy [1989] in which the court recognized that the defendant was an -‘1coholic, but convicted him of murder as it deemed his first drink of the day had been voluntary. Some academic authors acknowledge no ‘disease’ processes to alcoholism (e.g. Fingarette, 1988), seeing it instead as a disorder of volition and self-control. In the same way, whilst people may ostensibly subscribe to a disease model of mental disorder, at a deeper level they may believe the mentally ill are morally corrupt and merely fail to exert self-control over their problems.

The relationship between autonomy (free will), severity of mental disorder, and criminal responsibility is shown in Figure 2. If the heuristic in Figure 2 is actually used by judge and jury in the courtroom, Deterministic mental disorder Autogenously Severity of mental disorder mental disorder.

The McNaughtan Rules make provision for considering the x axis only: level of autonomy in mental disorder is irrelevant to the determination of criminal responsibility.

[1963]), the grand schemer places himself deliberately in situations that cause his own defence. For example, the character played by Charles Bronson in the ‘Death Wish’ films deliberately took late-night walks and subway trips where he would be likely to be victimized so he might then kill his assailants and muggers. Fingarette and Hasse propose extending the common law principle of criminal negligence to cover cases with a less obvious element of intent: a culpably mentally disordered defendant — one who deviates from a reasonable objective standard of care — might still is found guilty of a ‘floor’ offence of criminal negligence. The DOM doctrine is, however, flawed in its current form. A determination of guilt or innocence to a charge cannot be established independently of consideration of any DOM: presence or absence of a DOM (as well as consideration of any culpability for bringing about the DOM) has a direct bearing on the issue of guilt or innocence. Actus reus cannot equal guilt without mens rea. Separating the actus and mens rea phases of the trial cannot provide a solution to the problems of insanity if we are to consider conditions relevant to the actus phase such as automatism, epilepsy, functional split- brain patients, etc. Furthermore, Fingarette and Hasse propose that a finding of full, non-culpable DOM should be non-accusatory: Where a jury finds full Disability of Mind that is non-culpable in origin, this finding amounts to a finding of complete lack of criminal responsibility. It entails that even though the alleged act was proved, no criminal condemnation or punishment is warranted, and that the social problem posed should be resolved in a suitable non-accusatory process.

Conclusion

If the DOM doctrine provides a method by which MR may be dealt with in a court of law, it is unfortunately flawed. What other methods might we turn to in operationalizing the concept of MR? One principle already in place in the courts is the idea of transferred intent. It is clear, however, that the development of mental disorder is not in itself an illegal act. Therefore, we cannot apply the doctrine of transferred intent from the development of mental disorder to a crime committed under its influence (as in the case where a defendant has shot and missed his intended target but killed another person). There is, quite simply, no mens rea to transfer, which further creates problems if we are to determine guilt as to a floor offence of criminal negligence. However, we can say that a person may have been reckless or negligent in developing his mental disorder, just as a person may have been reckless, negligent, or intentional in getting drunk (which is not itself an illegal act). ‘Where a crime has been a product of a mental disorder, and that disorder has been culpably caused, then the defendant should not be eligible for a full acquittal (whether due to automatism, insanity or otherwise), Robinson (1985) lists six ways used currently to deal with evidence of causing the conditions of one’s own defence: (1) withholding a defence upon any causal contribution; (2) withholding a defence upon a minimum culpability as to causing the defence conditions; (3) imposing reduced liability upon a minimum culpability as to causing the defence conditions; (4) imposing a degree of liability corresponding to the level of culpability as to causing the defence conditions; (5) inconsistent approaches within the same jurisdiction; and (6) failure to consider an actor’s culpability in causing the conditions of his own defence. Such provisions cut across such defences as self-defence, ‘lesser-evils’, intoxication, or duress.

Robinson’s suggestion for reform is a doctrine by which the defendant would continue to allow the defence for the immediate conduct constituting the offence, but the court would separately impose liability on the basis of the actor’s earlier conduct in culpably causing the conditions of his own defence. Such an analysis treats the defendant as an ‘innocent actor’ who was caused to engage in criminal conduct by his prior, culpable actions. However, through the punishing of the actor based on his initial conduct in causing his defence conditions, we must also punish blameless conduct of which the defendant may not have foreseen the consequences (undermining the credibility and condemnatory function of the criminal justice system). Do we have to find a culpable state of mind with regard to the eventual offence when developing the incapacity? If so, then only the ‘Dutch courage’ or ‘grand schemer’ defendant should be held liable under Robinson’s suggestion.

A second major difficulty in operationalizing Robinson’s doctrine is in giving definition to ‘earlier’ — just how far should we look back in history to find prior fault on the actor’s part? Immediately preceding the offence to his childhood? In many cases it will be impossible clearly to delineate a causal chain. Finkel (1988) talks of a ‘historical search’, and concludes that no backwards time-limit should be imposed. Such a search is illustrated in the case of State v Gooze (1951). Gooze suffered from blackouts due to Ménière’s Syndrome, and ran over a pedestrian during such a blackout. The court reasoned that ‘whilst one cannot be liable for what one does during the unconsciousness of sleep, he is responsible for allowing himself to go to sleep’. Thus the unconsciousness of sleep might be dubbed a proximal cause, whereas allowing oneself to drive knowing the possible outcome might be termed a distal cause. It is this distal cause that constitutes the defendant’s culpability. The imposition of some time-limit on a search for such distal causes is surely necessary if the chain of causation is to be kept to any manageable and useful length.

The proposal is also clearly inadequate for the insane defendant who still suffers from mental disorder: should he be sent to hospital, but also punished? I believe that covert punishment of the insanity acquitters already occurs, and that society’s and the law’s recognition of MR may be the driving force for such ‘anti-therapeutic jurisprudence’. However, countries such as Sweden have established special psychiatric institutions for persons who have committed a crime whilst under the influence of a mental disease or an abnormality of mind on a par with it, allowing the disposal of drug and alcohol addicts to these institutions instead of prison (Boermen, in a paper presented at the World Psychiatric Association/American Psychiatric Association Regional Meeting in 1981). Such a disposal would seem suitable for the met responsible offender: the first object of the court should be to restore mental health; the punishment of culpable mental disorder should be only a secondary consideration. The novel hybrid contained in the Crime (Sentences) Act 1997 (enabled by amending s.24 of the Mental Health Act 1983) which empowers courts to impose a prison sentence whilst simultaneously directing the offender’s immediate admission to a psychiatric hospital for treatment may prove ideal for the meta-responsible offender. However, we again face the problem of (1) a ‘guilty’ finding; and (2) sentencing for a criminal act and not the distal cause (the culpable mental disorder). The introduction of the hybrid disposal may also paradoxically cause a rise in insanity. Pleas, creating the need for a ‘truer’ insanity defence that considers aspects of MR.

Could we not deal with MB under the defence of diminished responsibility (DR)?9 Although not the ‘purpose’ of the DR defence, it might enable the court to reflect its disapproval of the defendant’s high level of MR by denying total exculpation and instead bringing in a verdict of manslaughter. However, several problems remain. These include: (1) DR is only available in homicide cases and the majority of insanity trials do not involve fatal offences (Mackay, 1990); (2) the defendant is still found ‘guilty’ of a crime, inviting punitive disposal and social censure; (3) the test contains the clause that the abnormality should be due to what might be: termed ‘disease processes’, making no provision for self-causation or advertence in the development of a disorder. summarizing this study suggest that mock jurors often have difficulty in remembering or comprehending insanity test instructions: On tests asking them to recall, recognize, or interpret specific facets of insanity test instructions they had been exposed to, individuals responded correctly only 30-50% of the time. However, Robinson and Darley (1995) found that mock jurors’ verdicts based on commonsense translations of various insanity tests were highly correlated with their verdicts based on the original legal wording of the tests.

This suggests that individuals understood the differences among the tests and consistently applied their interpretations of the tests’ meanings, regardless of how they were worded. In a similar vein, mock jurors in Bailis and associates’ (1995) study were able to arrive at legally appropriate verdicts when provided with highly artificial case summaries in which only conclusion information directly matching the insanity test instructions were given. Thus, mock jurors were able to understand and apply test instructions under conditions that left no room for interpretation. In addition, Simon (1967; see also James, 1969) noted that several mock jurors in her experiment recalled and discussed insanity test criteria during deliberations but appeared to construe the criteria differently (i.e., a juror who believed the defendant was guilty construed a key M’Naghten phrase, “to know” more narrowly than a juror who believed the defendant was insane). Taken together, these findings suggest that jurors might perform poorly on traditional tests of recall or comprehension for insanity test instructions partially because they interpret the instructions.

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