Farewell to Insanity a Return to Mens Rea
| Publication year | 1997 |
| Pages | 38 |
| Citation | Vol. 66 No. 05 Pg. 38 |
66 J. Kan. Bar Assn. May, 38 (1997). FAREWELL TO INSANITY A RETURN TO MENS REA
May, 1997
Copyright (c) 1997 by the Kansas Bar Association; Raymond L. Spring
For nearly 2,000 years there has been legal recognition that only conduct that is the product of a blameworthy state of mind is appropriately classified as criminal and that blame can only be affixed where the mind is capable of understanding the law's commands. Just over 150 years ago, in poorly charted waters on a troubled sea, law's course took a monumentally wrong tack, sailing into a storm of controversy over this basic principle that has continued to this day. Ever since the trial of Daniel M'Naghten in 1843 the so-called separate defense of insanity has generated confusion and frustration with the law as well as suspicion that the law's processes do not serve public objectives. In 1995 the Kansas Legislature took a heading out of the storm, enacting K.S.A. 22-3220, which declares:
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"It is a defense to a prosecution under any statute that the defendant, as a result of mental disease or defect, lacked the mental state required as an element of the offense charged. Mental disease or defect is not otherwise a defense. The provisions of this section shall be in force and take effect on and after January 1, 1996." Thus ended the separate defense of insanity in Kansas, represented by the M'Naghten rule since at least 1884. [FN1] In taking this action, Kansas has joined sister states Montana, [FN2] Idaho [FN3] and Utah [FN4] in a serious attempt at reform.
The roots of the insanity defense
The principle of blameworthiness, or mens rea, was clearly spelled out in the sixth-century Code of Justinian:
"There are those who are not to be held accountable, such as a madman and a child, who are not capable of wrongful intention. . . . " [FN5] Even earlier, the second-century Talmud contained the same idea, providing that deaf mutes, imbeciles and minors were not culpable "for with them only the act is a consequence while the intention is of no consequence." [FN6] With the fall of the Roman Empire, however, the principle of blameworthiness, like much of the scholarly work of classical antiquity, became obscured. Largely this came about because crime, as we think of it today, was subsumed by ideas akin to what we now call tort; thus one who suffered harm at the hand of another was recognized as having the right to respond in kind, without reference to niceties such as fault or blame, much less a forum to resolve the dispute.
Medieval Europe gave birth to the feudal system of private armies engaged in blood feuds. It may well be that the latter gave rise to the former. In any event, this was the law brought to Britain by the Saxons in the latter half of the first millennium. Still, as Justice Oliver Wendell Holmes once observed, "even a dog distinguishes between being stumbled over and being kicked." [FN7] By the latter days of the Saxon period, possibly through the influence of Christian ethics and Roman jurisprudence left with the subject Britons, a recognition that different treatment of seriously mentally disordered offenders was necessary crept back into the law. At first this took the form of clemency, but by early in the 13th century, as the common law was gaining ascendency under the Normans, Bracton would write:
" . . . for a crime is not committed unless the will to harm be present . . . And then there is what can be said about the child and the madman, for the one is protected by his innocence of design, the other by the misfortune of his deed. In misdeeds we look to the will and not the outcome. . . . " [FN8] The criminal trial of Bracton's day was a far cry from that which we know today, however; the focus of the law was upon what should be done with the mentally disordered offender. There was no need for the articulation of tests for determining who fell into that category. The law dealt with the clearly deranged.
Searching for definition
As the common law developed, the role of the jury evolved. Originally the jury was called as a body of "twelve good men and true" who would inform the king's justices of the facts in any case through their knowledge of the people and events of their community. By the 15th century, however, the jury's role had become that of trier of the facts, much as we know it today. And since the king and his justices were still rulers of the law, it was necessary to advise the jurors on the law to be applied in finding the facts and in reaching a verdict. In short, the new role of the jury gave rise to the need for instructions by the court; a need which, in its turn, sometimes gave rise to a tendency "for the learned and great judges to bestow their learning very liberally upon the ignorant and degraded jury. . . . " [FN9] Easy it was for these judges to find statements of learned scholars at law decrying the conviction of non compos mentis; harder, much harder, to find the means of identifying who he was! The justices themselves had little experience with the subject and thus seized upon any available means that seemed logically to explain the principle of mens rea as applied in such cases. The theme most often sounded was one taken from the Christian ethic: the ability to distinguish good and evil. Without this ability, judges reasoned, it was impossible to exercise free will and this was fundamental to mens rea. A 13th-century comment by Bracton expressing the idea that a "madman lacks mind and reason, and is not much removed from a brute" [FN10] found its way into an instruction given by Justice Tracy some 500 years later:
" . . . it is not every kind of 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 does 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 . . . " [FN11] Thus the idea of total deprivation of capacity to reason, though successfully challenged by the brilliant Lord Erskine
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in his defense of James Hadfield, continued to dominate the ideas expressed in judicial instructions to juries through the reported English cases well into the 19th century. But it remained for the case of Daniel M'Naghten to provide the catalyst for standardization.
The M'Naghten rule
On Jan. 20, 1843 a 28-year-old Glasgow woodturner named Daniel M'Naghten walked up behind Edward Drummond on a London street, placed a pistol in Drummond's back and fired, inflicting a wound from which Drummond died three months thereafter. Immediately apprehended by a nearby policeman, M'Naghten was placed on trial just more than a month later. The case attracted wide attention, because M'Naghten clearly had mistaken Drummond for England Prime Minister Robert Peel and had intended the bullet for Peel. The defense was insanity, and nine medical witnesses described the defendant as suffering from extreme paranoia "entangled in an elaborate system of delusions," [FN12] through which he believed the Tory party responsible for all of his personal difficulties. The crown offered no medical opinion to the contrary. Lord Chief Justice Tindal, after virtually (but not quite) directing a verdict of acquittal, submitted the case to the jury with the following language:
"The point I shall have to submit to you is, whether on the whole of the evidence you have heard, you are satisfied that at the time the act was committed . . . the prisoner had that competent use of his understanding as that he knew what he was doing, by the very act itself, a wicked and a wrong thing? If the prisoner was not sensible at the time . . . that it was a violation of the law of God or of man, undoubtedly he was not responsible for that act . . . If on balancing the evidence in your minds, you think the prisoner capable of distinguishing between right and wrong, then he was a responsible agent and liable to all the penalties the law imposes. If not . . . then you will probably not take upon yourselves to find the prisoner guilty. If this is your opinion, then you will acquit the prisoner." [FN13] The verdict was not guilty on the ground of insanity, and M'Naghten was committed to a mental institution where he spent the rest of his life as a model patient.
If the verdict was satisfactory to Tindal, it certainly was not so to the Queen. She had been (and would again be) the target of assassination attempts, as had the Price Consort and other high ranking members of the government. "The law may be perfect," she complained, "but how is [it] that whenever a case for its application arises, it proves to be of no avail." [FN14] Public sentiment, as evidenced in the press, was on the side of the queen and the matter came before the House of Lords to consider whether Parliament should act to define insanity. The 15 judges of Queen's Bench were summoned to answer a series of questions regarding the law as...
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