G. Insanity

• Library: The Criminal Law of South Carolina (SCBar) (2014 Ed.)

G. Insanity

1. The Definition of Insanity

a. The Basic South Carolina Definition

Until 1984 South Carolina defined the defense of insanity by strict adherence to the M'Naghten rule which, quoting from the original, states:

[T]o establish a defense on the ground of insanity, it must be clearly proved that, at the time of the committing of the act, the party accused was laboring under such a defect of reason, from disease of the mind, so as not to know the nature and quality of the act he was doing; or, if he did know it, that he did not know he was doing what was wrong.

M'Naghten's Case, 8 Eng. Rep. 718, 722 (1843). See State v. Cannon, 260 S.C. 537, 548, 197 S.E.2d 678, 682 (1973) cert. denied, 414 U.S. 1067, and cases cited therein. Cannon is discussed in 26 S.C. L. Rev. 185 (1974).

Effective May 16, 1984 the insanity defense was changed by statute which, as subsequently amended, presently provides:

(A) It is an affirmative defense to a prosecution for a crime that, at the time of the commission of the act constituting the offense, the defendant, as a result of mental disease or defect, lacked the capacity to distinguish moral or legal right from moral or legal wrong or to recognize the particular act charged as morally or legally wrong.
(B) The defendant has the burden of proving the defense of insanity by a preponderance of the evidence.
(C) Evidence of a mental disease or defect that is manifested only by repeated criminal or other antisocial conduct is not sufficient to establish the defense of insanity.

S.C. Code Ann. § 17-24-10 (2003).

The 1984 act initially provided for the abrogation of the common law defense of insanity, S.C. Code Ann. § 17-24-90 (1985), but that section was repealed in 1988 by 1988 Act No. 323 § 5, effective February 24, 1988. In South Carolina the common law is not repealed by implication. Nuckolls v. Great Atl. & Pac. Tea Co., 192 S.C. 156, 161, 5 S.E.2d 862, 864 (1939). See Chapter I.C.2, Common Law and Statutory Offenses supra. Consequently, the net effect of the adoption of a statutory definition of insanity, the explicit abrogation of the common law insanity defense, and finally the repeal of that abrogation leaves the common law as it was. This means that South Carolina now has two definitions of the insanity defense, M'Naghten and the statute.

M'Naghten, therefore, remains important in its own right as well as for the light it sheds on interpretation of the new statutory provision, given that the statute was based in part on the nineteenth century case. Indeed, in a case, the facts of which occurred in 1986 (when the statute abrogating the common law was still in effect), the Court stated that the statute "is the M'Naghten insanity defense . . . ." Davenport v. State, 301 S.C. 39, 40, 389 S.E.2d 649, 649 (1990).

M'Naghten provides alternative definitions of insanity, not knowing the nature and quality of one's act or not knowing that the act was wrong. Not knowing the nature and quality of one's act means not realizing what one is doing. The classic example is a person who thought she was squeezing a lemon but in fact had her hands around someone's neck. If she did realize what she was doing, killing someone, M'Naghten would still excuse her if, because of her mental disease or defect, she did not know that killing that person was wrong. For example, if because of an insane delusion she believed that the person was about to kill her, she therefore believed that she was acting in self-defense. In both instances, there is no intent to murder, or even to commit a criminal offense. Therefore, an essential element of the crime, criminal intent, is missing.

The statute reflects these alternative definitions of insanity. First, it excuses one who "lacked the capacity to distinguish moral or legal right from moral or legal wrong." By explicitly referring to "moral or legal" right and wrong the statute obviates the necessity for what has sometimes proved to be a difficult task of statutory interpretation. See People v. Serravo, 823 P.2d 128 (Colo. 1992) (a split decision, concluding that "incapable of distinguishing right from wrong" refers to moral as opposed to legal right and wrong).

Second, the statute's reference to one who lacked the capacity "to recognize the particular act charged as morally or legally wrong" reflects M'Naghten's reference to not knowing the "nature and quality of the act." One could not have recognized the particular act charged as right or wrong without having realized what the particular act actually was.

The statute does depart from McNaghten by substituting "lacked the capacity to distinguish" right from wrong for "know." The substituted language appeared to have been influenced by the language of Model Penal Code § 4.01 (1962). Prior to wholesale statutory amendments to the law of the insanity defense in 1984 in response to the acquittal of John Hinckley for the attempted assassination of President Reagan, the Model Penal Code definition of the insanity defense had been adapted in all of the federal circuits and by statute in a majority of the states.

Mental health experts had often found their efforts to communicate with the jury hampered by M'Naghten's black/white standard of whether the defendant knew right from wrong. The Model Penal Code's language of "substantial capacity to appreciate the criminality of conduct" was thought to provide a more realistic and effective vehicle for the mental health expert to relate her assessment of the defendant to the jury. The current South Carolina statutory formulation of "lacked the capacity to distinguish" right from wrong suggests a degree of cognition somewhere in between M'Naghten's "know" and the Model Penal Code's "substantial capacity to appreciate."

M'Naghten and its South Carolina statutory version are limited to those cases in which the mental deficiency impairs only cognitive ability, cases in which the defendant is unable to know or realize something. This approach to insanity excludes cases involving impairment of only volitional abilities.

The crux of the defense is the inability to distinguish right from wrong or to recognize the act charged as wrong. Consequently, one who had been diagnosed by doctors at the State Hospital as lacking the ability to distinguish right from wrong was denied effective assistance of counsel when she was advised to, and did, plead guilty but mentally ill. Davenport v. State, 301 S.C. 39, 389 S.E.2d 649 (1990). One who lacked the ability to distinguish right from wrong at the time of the offense is not criminally responsible. Id.

Because the crux of the insanity defense is the inability to distinguish right from wrong, one is not entitled to instructions on the defense absent evidence of such an inability, regardless of the extent of lay and expert evidence about other manifestations of mental illness. State v. Lewis, 328 S.C. 273, 494 S.E.2d 115 (1997). To the extent that State v. Campen, 321 S.C. 505, 469 S.E.2d 619 (Ct. App. 1996), authorized insanity defense instructions in the absence of evidence of an inability to distinguish right from wrong, Campen was overruled. Lewis, 328 S.C. at 280 n.7, 494 S.E.2d at 118 n.7.

South Carolina does not recognize the doctrine of diminished capacity, sometimes referred to as partial responsibility. Gill v. State, 346 S.C. 209, 552 S.E.2d 26 (2001). Under this doctrine, recognized in a minority of jurisdictions, a defendant who does not meet the definition of insanity may have the jury instructed that his mental condition may have precluded his having the state of mind requisite for commission of the crime. Partial responsibility is discussed in LaFave, 475-87 (5th ed. 2010).

b. Volitional Aspects of Insanity

Some jurisdictions modified the basic M'Naghten formulation by adding an irresistible impulse component first prominently discussed in the nineteenth century Alabama case of Parsons v. State, 2 So. 854 (Ala. 1887). The irresistible impulse test recognizes that while an individual may be cognitively sane in the sense of M'Naghten, that is, be aware of the nature and quality of his act and its "wrongness," nonetheless some such individuals may be unable to control their conduct.

The year before Parsons the South Carolina Supreme Court noted the possibility of an irresistible impulse insanity defense but concluded that it was not raised on the facts and approved the trial court's basic M'Naghten instruction to the jury. State v. Bundy, 24 S.C. 439, 444-45 (1886). In State v. Allen, 231 S.C. 391, 98 S.E.2d 826 (1957), the Court expressly rejected the suggestion that it alter M'Naghten, by adding to it the irresistible impulse test: "[T]he doctrine that a criminal act may be excused or mitigated because prompted by an irresistible impulse, where the offender has the mental capacity to appreciate his legal and moral duty in respect to it, has no place in the law." 231 S.C. 399, 98 S.E.2d at 829-30 (quoting State v. Fuller, 229 S.C. 439, 444, 93 S.E.2d 463, 466 (1956), which quoted still earlier authority).

The influential Model Penal Code includes volitional abilities within its definition of insanity, a lack of substantial capacity "to conform his conduct to the requirements of the law." Model Penal Code § 4.01(1) (1962). However, when jurisdictions amended their insanity defenses following the acquittal of John Hinckley for his attempted assassination of President Reagan (which acquittal was explicable, in the authors' view, entirely in terms of burden of proof) a number of them dropped the volitional component. E.g., 18 U.S.C. § 17.

As noted above, the irresistible impulse test, or other concerns about volitional capacity, has never been a part of South Carolina's insanity defense. Consequently, evidence of impaired volitional capacity does not even raise an issue of an insanity defense, although it may raise an issue of whether the act was voluntary. See State v. Morris, 307 S.C. 480, 415 S.E.2d 819 (Ct. App. 1991)...