Irresistible impulse. There was some interest in the post-M'Naghten years in the so-called irresistible impulse exception that allowed for the acquittal of a defendant if his mental disorder moved him to be unable to resist committing an offense he fully understood to be wrong. However, this formulation was not more than a transitory detour in the development of an insanity jurisprudence. Where it has generally been applied, it has been used in conjunction with M'Naghten, rather than by itself.
Durham. The first important theoretical alternative to M'Naghten emerged in the District of Columbia in the 1954 case of Durham v. United States. Writing for the court, Judge David Bazelon rejected both the M'Naghten and the irresistible impulse tests on the theory that the mind of man was a functional unit, and that a far broader test would be appropriate. Durham thus held that an accused would not be criminally responsible if his "unlawful act was the product of mental disease or mental defect" (1874–75).
Durham was the first modern, major break from the M'Naghten approach; as a result, the District of Columbia became a laboratory for consideration of the details of insanity, in its fullest substantive and procedural ramifications. Within a few years, however, Durham was judicially criticized, modified, and ultimately dismantled by the D.C. Circuit. The test's burial was completed by the 1972 decision in United States v. Brawner to adopt the Model Penal Code/American Law Institute test.
United States v. Brawner. Brawner discarded Durham's "product" test, but added a volitional question to M'Naghten's cognitive inquiry. Under this test, a defendant would not be responsible for his criminal conduct if, as a result of mental disease or defect, he "lack[ed] substantial capacity either to appreciate the criminality of his conduct or to conform his conduct to the requirements of law" (979).
Although the test was rooted in M'Naghten, there were several significant differences. First, the test's use of the word "substantial" was meant to respond to case law developments that had required "a showing of total impairment for exculpation from criminal responsibility" (p. 87). Second, the substitution of the word "appreciate" for the word "know" showed that "a sane offender must be emotionally as well as intellectually aware of the significance of his conduct" (p. 87), and "mere intellectual awareness that conduct is wrongful when divorced from an appreciation or understanding of the moral or legal import of behavior, can have little significance" (p. 87). Third, by using broader language of mental impairment than had M'Naghten, the test captured both the cognitive and affective aspects of impaired mental understanding. Fourth, the test's substitution in the final proposed official draft of the word "wrongfulness" for "criminality" reflected the position that the insanity defense dealt with an impaired moral sense rather than an impaired sense of legal wrong.
It was assumed that the spreading adoption of Brawner would augur the death of M'Naghten, an assumption that—in the light of the attempted assassination of then-President Ronald Reagan and the subsequent passage of the Insanity Defense Reform Act (IDRA)—has proven to be totally inaccurate. Brawner, did, however, serve as the final burial for the Durham experiment.
Guilty but mentally ill (GBMI). Perhaps the most important post-Brawner development in substantive insanity defense formulations has been the adoption in over a dozen jurisdictions of the hybrid "guilty but mentally ill" (GBMI) verdict, adopted, ostensibly, in the words of a Michigan state case (People v. Seefeld), to "protect the public from violence inflicted by persons with mental ailments who slipped through the cracks of the criminal justice system" (290 Mich. App. 123, 124 (ct. app. 1980)).
The rationale for the passage of GBMI legislation was that the implementation of such a verdict would decrease the number of persons acquitted by reason of insanity, and would assure treatment of those who were GBMI within a correctional setting. A GBMI defendant would purportedly be evaluated upon entry to the correctional system and be provided appropriate mental health services either on an in-patient basis as part of a definite prison term or, in specific cases, as a parolee or as an element of probation.
Practice under GBMI statutes reveals that the verdict does little or nothing to ensure effective treatment for mentally disabled offenders. As most statutes vest discretion in the director of the state correctional or mental health facility to provide a GBMI prisoner with such treatment as she "determines necessary" (p. 65), the GBMI prisoner is not ensured treatment beyond that available to other offenders. A comprehensive study of the operation of the GBMI verdict in Georgia revealed that only three of the 150 defendants who were found GBMI during the period in question were being treated in hospitals.
Post-insanity acquittal procedures. In 1983, the Supreme Court—in Jones v. United States—made it clear that different procedural rules could apply to individuals hospitalized pursuant to an insanity acquittal than to persons who had been involuntarily civilly committed. The Jones court—over a strong and impassioned dissent—concluded that, because a successful insanity defense established beyond a reasonable doubt that the defendant committed the underlying criminal act, it was reasonable to conclude that such a person remained dangerous, mentally ill, and in need of treatment. Thus, it was not unconstitutional to force an insanity acquittee to bear the burden of proof at a release hearing, nor was it unconstitutional for such a person to be institutionalized for a longer period of time than would have been permissible had she been given the maximum sentence for the underlying crime.
Some states provide more liberal procedures. For instance, in State v. Krol (a case that predates Jones by eight years), the New Jersey Supreme Court found that there was little difference between commitments initiated through a civil process and those begun through a criminal process, and provided substantially identical procedures for both universes.
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