NCJ Number
95531
Journal
Northern Kentucky Law Review Volume: 11 Issue: 1 Dated: (1984) Pages: 1-18
Date Published
1984
Length
17 pages
Annotation
The only practical solution to the problem of how to achieve a workable defense of insanity is not to recast the definition of insanity, but to remove the issue from the courtroom.
Abstract
Judges, lawyers, and legal scholars have labored to create a workable definition of legal insanity, as evidenced in Judge Bazelon's rule in the 1954 Durham case, the American Law Institute's (ALI) Model Penal Code, and the American Bar Association's (ABA) decision, after the Hinckley case, to withdraw its approval of the volitional prong of the ALI test. The ABA position holds that since it is too difficult to distinguish 'good' from 'bad' mentally ill defendants, it is better not to try at all. This is a retreat from responsibility; as long as we retain the insanity defense, we are compelled to retain the volitional test, even though it assumes the existence of free will. Hypotheses regarding the difficulty of defining culpability are based on an analysis of the dynamics of human volition. The simple solution is to treat mentally ill offenders rather than punish them. The first step is determining whether the defendant is mentally ill at the present time. If and when the defendant is found competent to stand trial, he or she should be tried, and mental condition at the time of the offense should not be an issue. If a defendant is found guilty or pleads guilty, he or she should be referred to a State mental facility for a psychiatric evaluation. If this shows that the defendant was mentally ill at the time of the offense or would not have committed the offense if it had not been for that condition, the trial court should commit the offender indefinitely to a State mental institution. The guilty-but-mentally-ill laws are an in-between option, but at least they ensure treatment for mentally ill offenders instead of prison. The paper includes 44 footnotes.