The Mentally Ill in Criminal Cases: the Constitutional Issue

Date01 September 1963
Published date01 September 1963
Subject MatterArticles
University of California, Los Angeles
the Anglo-American legal system has consistently provided spe-
~L cial protections to the mentally ill in criminal cases, the Supreme
Court has never maintained that they should receive this special
treatment as a constitutional right. This observation is clear from even the most
cursory examination of the law affecting the insane in criminal proceedings. The
important three areas in which mental illness and criminal law intersect, i.e., in-
sanity as a defense, insanity as a barrier to trial, and insanity as a barrier to exe-
cution, are treated as grants of privilege by state and federal legislatures and
courts, and not as fundamental rights. The mentally ill do not have a constitu-
tional right to plead insanity as an excuse from criminal responsibility. Nor do
they have a constitutional right not to be tried while they are mentally deranged.
Finally they are not constitutionally protected from execution while they are
mentally disordered. In this light, it is clear that to date the &dquo;Constitution&dquo; has
not recognized the mentally ill as a special class.
The mentally ill do, however, represent, in point of fact, a special class of
individuals. They are special in the sense that ordinary participation in the or-
dinary affairs of ordinary men is for them impossible. While equal treatment and
protection can, in most cases, be achieved by uniformity and consistency, if this
uniformity extends so as to make no allowances for peculiarities of responsibility
and behavior in the mentally ill, then the sought-after equal protection and treat-
ment is not achieved. The mentally ill comprise at least one class of persons to
whom lack of special consideration must constitute unfair treatment.
In this paper I will attempt to substantiate three general statements. The first
is that to date there has been no recognition by the Supreme Court of any peculiar
constitutional status for the mentally ill in criminal cases. The law, in this con-
nection, in the many particular jurisdictions which deal with criminal cases, has
developed a myraid of protections and variations of protections which affect the
mentally ill accused of crimes. Second, recent developments both on the Court
and elsewhere suggest that in the future there is a greater likelihood that the
Court will show a willingness to extend special constitutional protections to the
mentally ill. The development of psychological knowledge in combination with
more and more sensitive interpretations of substantive due process are cases in
point. Third, there are a number of arguments which point to the need for
greater recognition of the special nature of mentally ill defendants and to the
moral considerations, both individual and social, which make such recognition
incumbent upon a civilized, twentieth-century society.

Perhaps no other legal attitude persists so universally in Anglo-American
jurisdictions as the recognition of a peculiar relationship between the mentally
ill, their criminal acts, and the subsequent legal proceedings. The common law
has long recognized that the insane are to receive special treatment and, with-
out exception, Anglo-American jurisdictions allow the plea of insanity to operate,
if proven, as a total defense. In this light it is at once strange although understand-
able that the United States Supreme Court has never brought the rights of the
mentally ill under the protection of the Constitution. If all, or almost all, juris-
dictions recognize the special nature of the insane, there is little reason and little
opportunity to extend constitutional protections to them. On the other hand,
this very universality raises the question as to why they are not subsumed under the
rubric of the Due Process clauses of the Fifth and Fourteenth Amendments.
While it is clear that there has been no explicit recognition of the constitu-
tionality of such rights by the Court, it is equally clear that without such recog-
nition the question whether or not such rights are constitutionally protected must
remain unanswered. Where the Court has not spoken or has spoken with mixed
and sometimes unsure direction, the question of constitutionality remains vague
and transitory.
It is necessary at the outset to make more elaborate distinctions among the
three points of intersection of the criminal law and mental illness.’ Insanity as a
defense is concerned with the criminal responsibility of the individual at the
time of the commission of the crime. The question is whether or not the individ-
ual had sufficient intent (mens rea) to commit a criminal act.2 To answer this
question several rules for determining criminal responsibility have been created.
The most popular is the M’Naghten Rule3 or the &dquo;right and wrong&dquo; test. This
test turns on the question of whether the individual was capable, at the time of
the commission of the crime, of making a distinction between good and evil, and
of acting on the basis of such a distinction.4
Recently, another important rule
has been adopted. This is the Durham Rule5 which, being an outgrowth of the
famous New Hampshire Rule resulting from the efforts of Justice Doe and Dr.
Ray to analyze the question of criminal responsibility and mental diseases is
Two other breakdowns are in point here. Henry Weihofen, in his Mental Disorder as a Criminal
Defense (Buffalo: Dennis & Co., 1954), maintains a dual separation, distinguishing the role
of mental illness (1) at the time of the commission of the crime, (2) thereafter, during
the trial, during sentencing, and as a barrier to execution. In Lyles v. United States, 254
F.2d 725, 729 (1958), a division was made which distinguished between three points in
time at which the issue of insanity influences criminal proceedings: (1) at the time of the
trial; (2) at the time of the offense; and (3) at the time of possible release after acquittal
by reason of insanity.
Weihofen, op. cit., pp. 478ff.

M’Naghten’s Case, 10 Clark & Fin. 200 (1943); See also 45 A.L.R. 1430ff.
"The established legal rule is, of course, the so-called right-and-wrong test: was the accused so
mentally disordered ’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 that he was doing wrong.’
" Henry Weihofen, The
Urge to Punish (New York: Farrar, Straus, and Cudahy, 1956), pp. 11-12; See also Sobeloff,
"From McNaghten to Durham and Beyond," 15 Md. L. Rev. 93, 97-101 (1955).
Durham v. United States, 214 F.2d. 862 (1955).

State v. Pike, 49 N.H. 339 (1869); See Isaac Ray, A Treatise on the Medical Jurisprudence of
Insanity (5th ed.; Boston: Little, Brown, 1871). See also 45 A.L.R. 1430ff.

really not a &dquo;test&dquo; at all. The only question which the jury is called upon to
answer is whether at the time of the commission of the crime, the defendant was
suffering from mental illness and whether the crime was the result of that mental
Insanity as a barrier to trial is concerned with the ability of the defendant to
contribute to his own defense, and turns on the question of his mental capacity
to understand the nature of the proceedings against him. This rule applies, in
most jurisdictions, to arraignment and sentencing as well as trial.7
In these in-
stances, the mental illness of the defendant operates to prohibit his being tried at
all, so long as the condition persists. The chief difference between insanity as a
defense and insanity as a barrier to trial is in the nature of the mental illness or
the definition of it that operates in each case. In the former, the question is one
of &dquo;responsibility&dquo; for one’s actions. In the latter, the question is not of the ability
to know right from wrong, nor is it simply of the existence of mental disorder;
but it is whether the individual can participate meaningfully in the proceedings
agianst him, whatever his condition be, technically.8
Insanity also operates to preclude execution while a mental condition exists.
This is to be distinguished from the other two applications in that, although the
primary rationale (borrowed from Blackstone)9 is that the individual might at
the last moment be able to clear himself if he were sane, he cannot if he is not,
the clearly determining consideration is a moral one. When an insane individual
is executed it is &dquo;a miserable spectacle ... and of extreme inhumanity and cruel-
ty, and can be no example to others.&dquo;10 Thus, the arguments in favor of this pro-
vision must necessarily be less legalistic than those in favor of insanity as a de-
fense and insanity as a barrier to trial.ll
Insanity as a Defense
In cases where the Supreme Court has dealt with the question of insanity
as a defense the issue has been one of approving a particular definition of criminal
responsibility given to the jury by the trial court,l2 or of questioning a procedure
for pleading the defense when the state has provided it.13
Providing the defense of insanity has been the domain of the State Legisla-
tures and Congress. The rule adopted in most jurisdictions has been the M’Nagh-
ten Test, with a few exceptions.&dquo; New Hampshire among the states, and the
District of Columbia among the federal circuits have adopted the Durham Test
An explanation of the Durham Rule can be found in Stewart v. United States, 366 U.S. 1
4 Blackstone Commentaries, 24,...

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