Book Review

• Publication year: 1979
• Citation: Vol. 3 No. 01

UNIVERSITY OF PUGET SOUND LAW REVIEWVolume 3, No.1FALL 1979

BOOK REVIEW

John Q. La Fond(fn*)

Mental Disabilities And Criminal Responsibility. By Herbert Fingarette and Ann Fingarette Hasse. Berkeley: University of California Press. 1979. Pp. 322. $17.50.

Whether mental illness and related impairments in the human psyche should affect an individual's criminal responsibility for law-breaking behavior has always provoked intense and wide-ranging debate.(fn1) This debate clearly reflects society's lack of consensus concerning the appropriateness and scope of considering mental impairment in assessing individual criminal responsibility. Thus, it is not unexpected that recently proposals to abolish the insanity defense have been seriously suggested(fn2) or that noted scholars have urged society to place the disposition of mentally ill offenders in the exclusive hands of experts.(fn3) That this heated discussion continues unabated should come as no surprise, since legal doctrines which excuse or lessen criminal responsibility force us to reexamine the very purposes of imposing punishment through our criminal justice system.(fn4)

To date most scholars who have examined what role, if any, mental impairment should play in the criminal law have either considered the subject on broad philosophic grounds(fn5) or have focused narrowly on critiquing specific legal doctrines of excuse or mitigation based on mental disability.(fn6) In this provocative book the authors not only analyze on a systematic basis most such specific legal doctrines but also propose a comprehensive and unifying doctrine (called the "Disability of Mind" doctrine or D.O.M. for short) which would gather all excuses and defenses based on mental impairment into a single conceptual framework. They maintain that this scheme would capture and implement the "basic intuitions, moral and legal"(fn7) underlying the wide variety of common law doctrines which enable a criminal defendant to avoid or mitigate responsibility for conduct based on mental conditions while avoiding the difficulties they have uncovered in those traditional doctrines.

The authors are well suited for their ambitious undertaking. Herbert Fingarette is Professor of Philosophy at the University of California at Santa Barbara and has written extensively on the subject of criminal insanity.(fn8) His co-author and daughter, Ann Fingarette Hasse, is an attorney who works for a leading San Francisco law firm and has also written on defenses based on mental disability.(fn9)

In Parts I through IV of the book(fn10) the authors carefully examine traditional legal defenses based on mental illness or disability which exculpate, either completely or partially, criminal defendants. Focusing on the M'Naghten test(fn11) and the ALI Model Penal Code test(fn12) of insanity, the authors argue that the common law considered insanity to be a defense logically derived from, and therefore merely a special version of, broader forms of excuse based either on lack of knowledge, (such as mistake of fact or ignorance of the law) or on lack of volitional control (such as duress). After careful analysis, they conclude that the insanity defense is in fact not logically or necessarily derived from these traditional common law defenses and that, more importantly, most insane criminal acts are committed with cognitive knowledge of the nature of the conduct and with substantial volitional control. Thus, according to the authors, most criminally insane offenders know what they are doing and choose to do it.(fn13)

Furthermore, in their opinion, the insanity defense cannot be rationalized by viewing it as an opportunity for the defendant to demonstrate that the requisite mens rea, or state of mind required by the statutory definition of the offense, was absent.(fn14) For example, in the celebrated case of Daniel M'Naghten(fn15) it is apparent that the assassin in fact intended to take the life of another human being and that he had sufficient mental capacity for foresight and prediction to know that shooting a loaded weapon directly at a living person would result in the loss of human life.

Focusing on more contemporary issues, the authors examine more recent trends which would excuse or reduce criminal responsibility because of alleged incapacity of the offender to conform his conduct to the requirements of the criminal law.(fn16) Fingarette and Hasse consider criminal defenses based on use of hallucinogens, chronic alcoholism, and narcotic addiction. Relying on empirical data, the authors argue that neither alcoholism nor narcotic addiction are "diseases" as understood by the medical model and, more importantly from their perspective, that addictive, conduct is not involuntary conduct, since human beings still retain sufficient will to make difficult choices and to comply with the requirements of the law.(fn17) In their view hard choices still impose individual responsibility.

Their critique of the "diminished capacity" defense as developed by the California courts is a masterpiece of perceptive analysis.(fn18) Any lawyer or law student who has read People v. Wolff,(fn19) People v. Conley,(fn20) or People v. Hood(fn21) has probably felt unease at the damage done to doctrinal and logical consistency by this court-made defense, even though they may have been sympathetic to its goal of permitting more individualized assessments of responsibility and blameworthiness. The authors persuasively demonstrate how, in many of these cases, the defendants in fact had the necessary mens rea at the time of the offense or that, if the evidence of certain disabilities such as intoxication is relevant to negating the requisite state of mind, then such evidence should logically be admitted on all mental states, not just in...