Criminal Responsibility

AuthorEric Y. Drogin
Criminal Responsibility
Eric Y. Drogin
Criminal Responsibility or sanity is probably one of the most misunderstood
concepts in the criminal justice system. Contrary to popular belief, an insanity
defense is only mounted in a small number of cases, and of them, only a
small number are successful. Part of the reason that the insanity defense is
seldom successful may be that the legal definition of insanity does not have a
precise medical counterpart. Indeed, the legal definition is narrow and varies
from jurisdiction to jurisdiction. At the same time, the term “insanity” seems
inappropriate for someone with an intellectual/developmental disability such
as Asperger’s Disorder. Thus, in advocating for our clients with mental disabil-
ities, we must not only be as precise as possible with our terminology, but we
must also be as specific as possible when describing our client and his or her
individual characteristics in order to fully humanize that client before the court.
• • •
Of all the various legal constructs concerning clients with mental disabil-
ities, a lack of criminal responsibility—historically termed “insanity”—
is the most controversial, and the most difficult to assert successfully.
Criminal responsibility defenses are often invoked to excuse what are
seemingly the most heinous of alleged offenses, and they typically rely on
evaluations that were conducted weeks, months, or even years subsequent
to the events in question. In these cases, counsel may feel like he or she is
combating not just the prosecution, but also the entrenched skepticism of
the court, the jury, and even the client, given the latter’s likely concerns
regarding the stigma of mental illness.

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