Monday, 28 August 2006

"Not guilty by reason of insanity." Really?

I haven't followed the case at all, but I understand there was a recent verdict of 'not guilty by reason of insanity' in the case of a Hawkes Bay mother who killed her six-day-old son by smashing his skull.

I'll just pause for a moment and let that news and the verdict sink in.
In the High Court in Napier yesterday [Friday] Justice Paul Heath found the mother not guilty of murdering her baby on the grounds of insanity and ordered she be detained as a special patient, as her lawyer Bill Calver had requested...

The crown prosecutors did not challenge the five psychiatric reports presented to the court, all of which pointed to the woman being legally insane at the time.
The woman was "legally insane at the time," and the court concluded this provided a reason to declare her not guilty of murder.

What do you think? Do you think being insane makes you any less culpable? Do you think being declared insane by psychiatrists -- however many of them declare it -- somehow absolves someone of responsibility for their actions?

I don't. I'm all in favour of abandoning the 'insanity defence' altogether.

If you can commit murder, it might be said that at first sight that was already proof of insanity. But the main point surely is that people must be held responsibility for their actions. Drunkenness, drug-taking, PMT, post-natal depression, "my team just lost," etc. -- none of these provide an excuse for theft or assault, for beating the kids, for kicking the cat, or for bludgeoning to death your new-born son.

Allowing a defence of 'not guilty on the grounds of insanity' makes a murder victim no less dead, and is an injustice to their memory.

That said, I'm not in favour of state treatment of 'mental illnesses' either. In my view, the only reason to lock someone up is when they have committed a provable crime -- an actual initiation of force or fraud against another. In that, I'm entirely in agreement with psychiatrist Dr Thomas Szasz who in books like The Myth of Mental Illness questions the idea of mental illness altogether, and in The Therapeutic State challenges the state's role in locking people up for no more reason than having been declared "mentally ill."

In Szasz's view, there are certainly organic conditions that cause brain problems that in many cases can be cured relatively easily with medication -- and the illness then is a specific and curable physical illness, not a mental condition which is often only a symptom of the illness itself.

"True brain diseases," says Szasz, "are the province of neurologists, not psychiatrists." Labelling as "mental illness" the symptoms of an organic physical condition is as wrong as calling 'thinking problems' or 'problems with living' "illnesses," and declaring that the state can or should somehow cure or treat or lock people up for these afflictions.

As Szasz points out, such a thing is very, very dangerous indeed.

The state's only case for locking people up, says Szasz, should be for some crime they have actually committed, not for being, by the state's definition, "mentally ill." I agree with him. And murder is very much something for which they should be locked up.

You can read a good interview with Szasz here in Reason Magazine: 'Curing the Therapeutic State.'

LINKS: Baby-killing mother was insane - Hawkes Bay Today
'Curing the therapeutic state' - Reason Magazine
The Thomas Szasz Cybercenter for Liberty and Responsibility -- Thomas Szasz's official website
'The Myth of Mental Illness' - Text of the original 1960 paper that formed the basis of Szasz's first book - Psych Classics, York University
The Therapeutic State - Amazon.Com
The Myth of Mental Illness - Amazon.Com

RELATED: Law, Science, Politics-NZ, Health


  1. The insanity defence (to paraphrase and simplify) is available to people who are unable to determine right from wrong because they have a "disease of the mind". To ask the question of whether the insanity defence should exist is to ask why we punish people with the criminal law. At Common Law, the basic ingredient of criminality is the choice to do wrong. That is to say, we punish people for their choices and excuse people in situations where they could not have chosen to do differently (again, a simplification but essentially accurate). If a person has a "disease of the mind" and because of that disease cannot make the right choice (because the person cannot know what is the right choice or the wrong choice), why should they be treated the same as the person who was able to make the choice and chose to do wrong?

    Incidentally, without knowing all the specifics of the case in question, it is probably that the mother in this case will spend longer in an institution as a 'special patient' than she would have spent in a prison as a murderer (because the release system for people under 'special patient' orders is governed by the responsible Minister (off the top of my head I cannot recall whether it is the Health or Justice minister), making her release a political decision rather than a medical decision - conceivably, she may never get out). As a murderer in regular prison, she would be eligible for parole after 10 years (subject to increase by the sentencing judge - but note what other murders have been getting in the last few years - say a likelihood of 12-15 years).

    In the NZ context, being found insane is not the easy option we see on US tv shows.

  2. "To ask the question of whether the insanity defence should exist is to ask why we punish people with the criminal law."

    I argued the other day that the primary purpose of criminal law is not punishment, it is protection for the rest of us from those who have shown they are happy to have victims, and to ensure they don't have any more. Would you agree with that?

    You also ask: "If a person has a "disease of the mind" and because of that disease cannot make the right choice (because the person cannot know what is the right choice or the wrong choice), why should they be treated the same as the person who was able to make the choice and chose to do wrong?"

    I'd say it is because the risk to us is the same. The person who had the choice chose to do wrong, and is just as much of a risk to us as the hypothetical person you say has no knowledge of morality.

    The penalty should be the same for both, and should imposed for the crime, not for any supposed "disease" -- in other words they should be neither a political nor a medical decision, but a judicial one.

  3. I have pondered the point of criminal punishment for some time and I did note your comments several days ago that punishment should not be the purpose of criminal sanctions - protection of everyone else should be the point of the criminal justice system.

    That's fair enough, and in a simplistic sense I agree with you.

    However, it is not hard to think of circumstances where a person might commit a terrible act (say, killing someone) yet be totally unlikely to ever offend again. (The example that comes to mind is the sexual abuse victim who later kills the abuser. This person has killed someone - for a bloody good reason - yet there is no reason to think they will do anything similar again.) On that basis, should they escape criminal sanction, because there is no further risk to anyone else? If they are to be sanctioned, for what purpose? To punish? To deter? To denounce? To incapacitate? To rehabilitate? To compensate?

    The other conundrum is: if we impose criminal sanctions for community protection from people who are likely to re-offend, why do we let any offenders out at all? Shouldn't every offender get a life sentence for any (real, not victimless) offence, on the presumption they continue to pose a threat to the rest of us?

    It would certainly make judge's lives easier and do away with a lot of lawyers.

  4. I forgot to ask, if you think this woman (accepting that neither of us have followed the case closely, so we are talking in generalisations) should face the same punishment as the typical run-of-the-mill murderer, what purpose is served by locking her up? What risk does she continue to pose to the rest of us?

  5. Yes, really.

    According to a different, once popular, theory of abnormal behaviour, the affected person is "possessed" by another person. If this explanation were true, then it's clear (to me, anyway) that it is the possessor who is guilty, and the possessee is "not guilty by reason of possession".

    It's not clear to me if, and to what extent, people with so-called "mental illness" can be absolved of responsibility for "their" actions, but the general idea of the insanity defence is plausible, at least.

    Consider another scenario. You get blind drunk and, with your judgement impaired and your personality altered for the worse, you commit a crime which you would not otherwise have committed. We hold you responsible for the crime, despite the fact that your judgement was impaired and that what you did was out of character, because it was your decision to get drunk in the first place. What if it was not your decision to get drunk? What if we forced you to drink beer? What if you had an incurable, congenital disease which made you "drunk" all the time?

  6. PC - "But the main point surely is that people must be held responsibility [sic] for their actions."

    This begs the question of whether insanity-induced movements are truly "actions". Compare: if a nervous twitch jerks my arm into the air, that is not the same thing as me raising my arm. To count as an action, the behaviour must have appropriate causal links to my rational faculties. Moreover, it must be voluntary. Insane behaviour appears to violate these conditions.

    In other words: "What the other Richard said!"

    P.S. What's with your brain-mind dualism? Of course any psychological condition will have some physical (neural) basis. But it's probably far too complex for present-day neurologists to identify. If psychologists have better luck overcoming impediments to the rational faculties [and it's surely undeniable that (1) such impediments exist; and (2) that's a bad thing] then why oppose them?

    (Perhaps there's some risk of professional abuse, but that's no less true of neurologists who would interfere directly with your brain! At least influence at the psychological level is mediated by our own cognitive processing mechanisms!)

  7. I'll just add: philosophers love to talk about free will and moral responsibility, and this seems to be one area where they have an especially valuable contribution to the public sphere.

    One key idea that gets raised in such discussions is that of "responsiveness to reasons". That is, we can understand the core element of moral agency to be (roughly) a kind of behavioural sensitivity to the reasons that count for or against various actions.

    To act is to act for reasons, i.e. considerations that one takes to "count in favour" of that action, or that cast it in a favourable light. Take those reasons away, or counterbalance them with opposing reasons, and the agent would no longer perform the action.

    If one's behaviour is insensitive to the presence or absence of such reasons, as the behaviour of the insane appears to be, then it is not truly "action". The behaviour does not stem from the evaluative discrimination of a moral agent, who can weigh reasons for and against behaving so. Given this lack, it would plainly be inappropriate to blame or punish the non-agent. (You might isolate them for others' safety, like a rabid dog. But you wouldn't punish the dog, and ideally you would hope to treat it so that it could be safely released. This should likewise be our attitude towards criminals -- at least those who aren't in full control of their rational faculties.)

    PC, do you find this view convincing? If not, and if you think you can defend your position, I'd be very interested to hear you spell out in greater detail your views on the basis of moral responsibility, perhaps in a new post...?

  8. Richard,

    What is it about alcohol that has the causal power to make someone commit a crime? Committing a crime requires intentionality and creative thought. Alcohol may slow your thinking and alter your perceptions, but it is certainly not capable of the intentionality and creative thought necessary to commit a crime.
    No drug is.

    Question for you: Would you classify the refusal of a mentally ill person to undergo treatment a symptom of the disease or an expression of the content of that person's thought? And how do you distinguish the former kind of refusal from the latter kind?

  9. Richard,
    The problem is that that IS the situation. people who get drunk DO have that sort of problem in a sense. Our ability to diagnose sickness (ie a child sick with ADHD or lets say "law breaking disease") is to a large extent (in a sense entirely) a comment on the advancement of medicine rather than a comment on the person in question.

    Richard C,
    > if a nervous twitch jerks my arm into the air, that is not the same thing as me raising my arm.

    yes and no. This reminds me of the fairly successful trick in psychology where you isolate a certain part of yourself as "undesirable" and that allows the rest of you to consider yourself a good person. The bad part is the "nervous twitch" and the "good" part is anything good that you do. And to the individual it feels like a real division.

    > Moreover, it must be voluntary. Insane behavior appears to violate these conditions.

    clearly your problem here is "what is voluntary?" as a bit of a determinist, if I have to pick an answer, I'm inclined to answer "nothing". Then again if it is rationality that is the test maybe the answer is "any crime that benefits the person should be pushied any that doesnt shouldn't" although not sure thats really what your pointing towards.

    the other issue is are we sentencing in regard to punishment? if not then your whole argument tends towards irrelevancy, the problem being that I might put you in prison because you are dangerous and it sends the right signals and the fact your murdering someone is a "twitch" doesn’t matter at all (i.e. there is no blame or punish there but still imprisonment)

  10. Richard, I've only just noticed your comments and questions (unfortunately only the current week's comments appear on the front page of the blog), and I would like to respond.

    I'll try and get to it in the next day or so.


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