Commentary Magazine

The Insanity Defense, by Abraham S. Goldstein

Mental Illness & the Law

The Insanity Defense.
by Abraham S. Goldstein.
Yale University Press. 289 pp. $6.00.

The Anglo-Saxons have an obsession with insanity as a legal issue. I have often thought it would be a good idea if we were to pursue the conscientious and enterprising Mrs. Dorothy C. Tompkins and induce her to devote her next learned bibliography to the multitudinous writings on the subject since the days of the unfortunate M'Naghten. I shudder to think of the monstrous proportions of such a volume, of the interminable pages of debates, cases, pamphlets, books. Rash would be the man who would set a limit to its future growth. Even the spelling of M'Naghten's name has produced a nice little clutch of articles. And remember the new outpouring produced by the Durham Rule. Who can say that in a few years' time we shall not have another? The British are no better than the Americans: indeed, their formulations have done much to exacerbate the controversies.

On the continent of Europe the whole subject has been kept in better balance and perspective. It is not that they have more (or fewer) criminal lunatics and borderline cases than the English-speaking countries; why, then, the difference? These possibilities occur to me. First, in the English-speaking world, the issue of insanity was, until recently, hopelessly entangled with that of the death penalty. Consequently, any attempt to widen the legal criteria of insanity was seen as a backdoor attack on capital punishment. In England much of the steam has gone out of the issue since the death penalty was suspended—as it has in the United States, where capital sentences, though still imposed in some fifty cases a year, are hardly ever carried out. A second possible factor is that the criteria of insanity under the M'Naghten Rule were laid down at the outset in rather rigid and compartmentalized terms. And a third has been the lack of any alternative way of permitting an offender's mental abnormality to influence the verdict. The plea of diminished responsibility has now largely by-passed that of insanity in English courts. But until that happened the main fury of the controversy over criminal responsibility was concentrated upon the single issue of insanity.

In Europe, on the contrary, diminished responsibility, like complete irresponsibility, is a concept of general application, which affects liability to conviction and punishment for all crimes alike, not only for murder or capital offenses. It can be applied to any form of mental abnormality.


One issue of much greater importance than the insanity defense is the move to establish, as part of the normal machinery of criminal justice, provision for inquiries into the mental state of a wide range of offenders. Another is the whole spectrum of facilities for mental treatment provided, or not provided, for those in need of it, whether or not insane. In the whole of the United States there are no more than a dozen or so full-time psychiatrists in all the prisons, and although the position in England has been improved of late, it still falls far short of what is needed. Civil commitment raises a third issue of at least equal importance. It can be no more than a sort of false labeling,, a deception in terms of cure as well as of justice. As Professor Goldstein warns, “the balance of benevolence is at present against the medical approach, because it brings with it the specter of indeterminate commitment.”

Frankly, the last advice I would give to any able scholar today would be to entangle himself in the dense and thorny undergrowth of debates about legal insanity. Yet Professor Goldstein strode into it with his eyes open. Or perhaps I should say that he was already in when he started, as the work was undertaken at the suggestion of Judge Bazelon to whom he was clerk in the years 1949-51.


Professor Goldstein cuts his way through any remaining illusions that there are clearly definable categories of the normal, the psychotic, the psychopathic, or the neurotic, which the psychiatrist can identify on purely medical grounds. He cites evidence to challenge the assumption of lawyers and psychiatrists alike that interpretations of the M'Naghten and other Rules by the courts have been unduly restrictive. He finds part of the explanation of their limited utility in this very misunderstanding. He recognizes another part of it in the well-founded reluctance of the defendants to resort to the plea of insanity at all. He recognizes, too, the “phenomenon of jury disregard of law, sometimes amounting to nullification.” Beyond that he recognizes that “public attitudes regarding crime and mental illness limit the practical utility of the insanity defense, in whatever form it is cast and however freely evidence may be admitted.” And beyond that again he faces the fact that, while provision for treatment in prisons and hospitals remains so scanty, the verdict often makes little difference to the defendant's fate.

Nevertheless, since Professor Goldstein was committed at the outset to an examination of the insanity defense, his central chapters are devoted to an examination of the intrinsic merits of the various defenses which have been formulated over the years. Should insanity be left an open question, to be decided by the jury without the guidance of any set formula? I remember vividly how a few of us on the Royal Commission on Capital Punishment wrestled with this problem, and how we had to oppose the majority of our colleagues. Their first choice was to abrogate the Rules and leave it to the jury. We insisted that it was essential to have a legal standard of responsibility to limit arbitrary decisions on the part of the jury, to promote uniformity, and to help them decide between conflicting testimonies. We could not help a feeling of satisfaction when it turned out that our minority report got the majority support of public opinion and that, in fact, not much has since been heard in England about leaving the question open.


Much the same sort of thing seems to be happening in America. The Durham formula would have left it to the jury to decide whether the crime was the product of mental disease or mental defect. It falls short both in failing to give adequate guidance to the jury and in insisting on a very direct causal relationship between the mental defect and the criminal conduct. Professor Goldstein notes that court after court has refused to adopt the Durham Rule. He believes it is already clear that “the effort to eliminate functional definitions deprives the jury of an essential concreteness of statement.”

I still think that the formula adopted unanimously by the Royal Commission as its second choice was sufficiently enlightened and elastic to serve the interests of justice and of the individual defendant. It directed attention both to the defendant's knowledge of what he was doing and to his capacity to restrain himself. The formula since evolved, on similar lines, in the Model Penal Code seems to me even better, and this appears also to be Professor Goldstein's view. Although there is always scope for tinkering with details, it is a formula as good as any that is likely to evolve in the next fifty years.

The attractiveness of this book lies in the way it is presented and written. It deals with a somber subject, yet it is a pleasure to read. Casebooks, digests, technical dissertations, are inexorably killing the art of writing; it is good to know that Professor Goldstein has escaped such influences. The Insanity Defense, then, fulfills a double function. It can be understood and appreciated by any intelligent reader. Yet it should also be recommended to advanced students, both in law and in psychiatry.

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