Law Commons^™

Imperfect Insanity And Diminished Responsibility, Lea Johnston

UF Law Faculty Publications

Insanity’s status as an all-or-nothing excuse results in the disproportionate punishment of individuals whose mental disorders significantly impaired, but did not obliterate, their capacities for criminal responsibility. Prohibiting the trier of fact from considering impairment that does not meet the narrow definition of insanity contradicts commonly held intuitions about mental abnormality and gradations of responsibility. It results in systemic over-punishment, juror frustration, and, at times, arbitrary verdicts as triers of fact attempt to better apportion liability to blameworthiness.

This Article proposes a generic partial excuse of Diminished Responsibility from Mental Disability, to be asserted as an affirmative defense at the …

Severe Mental Illness And The Death Penalty: A Menu Of Legislative Options, Richard J. Bonnie

Washington and Lee Journal of Civil Rights and Social Justice

In 2003, the American Bar Association established a Task Force on Mental Disability and the Death Penalty to further specify and implement the Supreme Court’s ruling banning execution of persons with intellectual disability and to consider an analogous ban against imposing the death penalty on defendants with severe mental disorders. The Task Force established formal links with the American Psychological Association, the American Psychiatric Association, and the National Alliance on Mental Illness and the final report was approved by the ABA and the participating organizations in 2005 and 2006. This brief article focuses primarily on diminished responsibility at the time …

The Relationship Between Schizophrenia Spectrum Disorder And Criminal Responsibility, Taylor A. Chille

Psychology Doctoral Specialization Projects

This original contribution to practice explores the significance of schizophrenia spectrum disorder, one of the most severe psychiatric disorders recognized in the DSM-5. This condition affects over 50 million people worldwide and is amongst one of the most common psychiatric illnesses diagnosed in criminal responsibility evaluations to date. Nonetheless, there is limited comprehensive literature specifically examining the relationship between schizophrenia and the insanity defense. Information provided in this literature review aims to fill that gap and act as a resource for clinical forensic practitioners who may encounter related cases. Specifically, this document will begin by introducing schizophrenia spectrum disorder and …

The United States Supreme Court’S Enduring Misunderstanding Of Insanity, David Dematteo, Daniel A. Krauss, Sarah Fishel, Kellie Wiltsie

New Mexico Law Review

Within mental health law, the legal defense of insanity has received a disproportionate amount of attention. Classified as a legal excuse, the insanity defense generally negates legal blameworthiness for criminal defendants who successfully prove that at the time of the offense, they did not know right from wrong or were unable to conform their conduct to the requirements of the law, due to an underlying mental health condition. The insanity defense has a lengthy history in the United States, with several different formulations and numerous court decisions addressing various aspects of the defense. Despite its firm entrenchment in U.S. criminal …

Delusions, Moral Incapacity, And The Case For Moral Wrongfulness, Lea Johnston

Indiana Law Journal

Responsibility is a legal—not medical—construct. However, science can be useful in exposing faulty assumptions underlying current doctrine or practice, illuminating changes in practice or evidentiary standards to better effectuate the law’s animating purpose, and even suggesting updates to legal standards to account for modern understandings of functionalities of concern. This Article uses the science of delusions to assess the law regarding, and practice of establishing, criminal irresponsibility for defendants with psychosis. Over the last two decades, researchers from the cognitive sciences have compiled strong evidence that a host of cognitive and emotional impairments contribute to the origin and maintenance of …

Individualizing Criminal Law’S Justice Judgments: Shortcomings In The Doctrines Of Culpability, Mitigation, And Excuse, Paul H. Robinson, Lindsay Holcomb

All Faculty Scholarship

In judging an offender’s culpability, mitigation, or excuse, there seems to be general agreement that it is appropriate for the criminal law to take into account such things as the offender’s youthfulness or her significantly low IQ. There is even support for taking account of their distorted perceptions and reasoning induced by traumatic experiences, as in battered spouse syndrome. On the other hand, there seems to be equally strong opposition to taking account of things such as racism or homophobia that played a role in bringing about the offense. In between these two clear points, however, exists a large collection …

“Champion Man-Hater Of All Time”: Feminism, Insanity, And Property Rights In 1940s America, Magdalene Zier

Michigan Journal of Gender & Law

Legions of law students in property or trusts and estates courses have studied the will dispute, In re Strittmater’s Estate. The cases, casebooks, and treatises that cite Strittmater present the 1947 decision from New Jersey’s highest court as a model of the “insane delusion” doctrine. Readers learn that snubbed relatives successfully invalidated Louisa Strittmater’s will, which left her estate to the Equal Rights Amendment campaign, by convincing the court that her radical views on gender equality amounted to insanity and, thus, testamentary incapacity. By failing to provide any commentary or context on this overt sexism, these sources affirm the …

Recognizing The Need For Mental Health Reform In The Texas Department Of Criminal Justice, Kara Mchorse

St. Mary's Law Journal

The ways in which mental health care and the criminal justice system interact are in desperate need of reform in Texas. The rate of mental illness in Texas is higher than the current state of mental health care can provide for. While state hospitals were once the primary care facilities of those with mental illness, the Texas Department of Criminal Justice (TDCJ) has taken on that role in the last few decades; and when the criminal justice system becomes entangled with mental health care, it often leads to “unmitigated disaster.” If Texas continues to allow the TDCJ to act as …

The Devil In Recent American Law, L. Joe Dunman

Pace Law Review

Despite its secular aspirations, the American legal system is permeated by Christian and other religious ideas. One of the religious ideas that frequently appears in recent American law is the devil—the unholy antithesis of all that is good in the world. Called by many names, such as Satan, Lucifer, or the Antichrist, the devil is no stranger to the United States court system. The devil arises from the hot depths primarily in five contexts: (1) as a source of injury to reputation in defamation cases; (2) as a prejudicial invocation made during criminal trials to secure conviction, harshen sentences, or …

Unreasonable Revelations: God Told Me To Kill, Linda Ross Meyer

Pace Law Review

This Article focuses on one extreme example of the law’s response to unreasonable revelations that is starkly presented in a series of unsettling murders: those involving criminal defendants who claim they committed their crime because God told them to do it—known as “deific decree” cases. This example of the conflict between revelation and reason tests the limits of law’s ability to understand and countenance revelation when the stakes are highest. The deific decree cases also present the hardest epistemological problems, because the defendant claims that the experience of God’s command is self-authenticating—a position fundamentally at odds with both scientific and …

Contractual Incapacity And The Americans With Disabilities Act, Sean M. Scott

Dickinson Law Review (2017-Present)

The doctrine of contractual incapacity allows people with mental disabilities to avoid their contractual liability. Its underlying premise is that the law has an obligation to protect people with such disabilities both from themselves and from unscrupulous people who would take advantage of them; mental incapacity provides this protection by rendering certain contracts unenforceable. The Disability Rights Movement (“DRM”), however, has challenged such protective legal doctrines, as they rest on outmoded concepts about people with mental disabilities.

This essay argues that the mental incapacity doctrine undermines the goals of the DRM and the legislative goals of the Americans with Disabilities …

Mental Disorder And Criminal Justice, Stephen J. Morse

All Faculty Scholarship

This paper is a chapter that will appear in REFORMING CRIMINAL JUSTICE: A REPORT OF THE ACADEMY FOR JUSTICE BRIDGING THE GAP BETWEEN SCHOLARSHIP AND REFORM (Erik Luna ed., Academy for Justice 2018). The criminal law treats some people with severe mental disorders doctrinally and practically differently at virtually every stage of the criminal justice process, beginning with potential incompetence to stand trial and ending with the question of competence to be executed, and such people have special needs when they are in the system. This chapter begins by exploring the fundamental mental health information necessary to make informed judgements …

Criminal Responsibility: Meta-Analysis And Study Space, Lauren E. Kois

Dissertations, Theses, and Capstone Projects

Criminal responsibility (CR; i.e., sanity) has garnered significant research attention over the years. While some variables predicting insanity outcomes are consistent, others are not. Study-level characteristics, such as sample selection, variability in the operational definition of insanity, or other unknown influences may explain discrepant findings. It is critical to consolidate these variables and systematically assess differences in methodology to understand the state of the literature and to guide future research. As such, I conducted the first meta-analysis and study space analysis (see Malpass et al., 2008) in this area. Only 16 studies met inclusion criteria for the meta-analysis. Summary effects …

Neuroscience In Forensic Contexts: Ethical Concerns, Stephen J. Morse

All Faculty Scholarship

This is a chapter in a volume, Ethics Challenges in Forensic Psychiatry and Psychology Practice, edited by Ezra E. H. Griffith, M.D. and to be published by Columbia University Press. The chapter addresses whether the use of new neuroscience techniques, especially non-invasive functional magnetic resonance imaging (fMRI) and the data from studies employing them raise new ethical issues for forensic psychiatrists and psychologists. The implicit thesis throughout is that if the legal questions, the limits of the new techniques and the relevance of neuroscience to law are properly understood, no new ethical issues are raised. A major ethical lapse …

Not Fit To Be Tried: Due Process And Mentally-Incompetent Criminal Defendants, J. Thomas Sullivan

University of Arkansas at Little Rock Law Review

A mentally-impaired accused who cannot comprehend the nature of the proceedings or assist his counsel in presenting his defense to the criminal charge cannot be tried as a matter of due process of law. In Jackson v. Indiana, 1 the United States Supreme Court held that due process concerns also bar the never-ending jeopardy resulting from an inability to restore an impaired accused to competence for purposes of proceeding to trial. When an Arkansas circuit court ordered the dismissal of pending criminal charges against an impaired accused who could not be restored to fitness for trial, the Arkansas Supreme Court, …

Contemporary Soviet Criminal Law: An Analysis Of The General Principles And Major Institutions Of Post-1958 Soviet Criminal Law, Chris Osakwe

Georgia Journal of International & Comparative Law

No abstract provided.

The Current State Of The Insanity Defense In Virginia, Jacob Gordon

The Kabod

Based upon British common law and legal precedents, the American legal system allows individuals with severe mental instability to plead not guilty by reason of insanity when charged with a criminal offense. In order to prove this claim, defendants are required to show that their mental capacity at the time of the crime was not sufficient enough in order to establish culpability and responsibility for their actions. Proving insanity is a difficult task, requiring that defendants confess to the crime, convince a jury of their insanity, and pass two independent psychological evaluations before they can be released. Because of these …

Book Review: Psychiatric Justice, Alice M. Batchelder

Akron Law Review

In an era in which extensive judicial emphasis has been placed on "due process of law" in criminal proceedings, both in the federal courts and in the state courts, Dr. Szasz's book serves as a jarring reminder that in at least one vital area of the concept of due process, much remains to be done. The emerging definition of due process has enunciated the rights guaranteed the individual by the Fourth, Fifth, Sixth, and Fourteenth Amendments; and viewed within that framework, this book, although published in 1965, remains particularly timely, for Szasz, speaking as a psychiatrist, endeavors to demonstrate how …

Book Review: The Role Of Psychiatry In Law, Leslie J. Martin

Akron Law Review

If you ask the man on the street about his views on the criminal law, typically his response will include a commentary on some notorious crime. What impresses him most about that crime? Commonly his answer will be that he was amazed that the "murderer" was able to escape conviction by invoking the defense of insanity. This view is remarkably prevalent. It is the same view which led Queen Victoria to ask Parliament to formulate the rigid M'Naghten Rule in 1843. This test of insanity survives to the present day, perplexing many members of the legal profession and alienating most …

Criminal Responsibility: Knowledge, Will And Choice, Robert J. Willey

Akron Law Review

The Court acknowledged that the M'Naghten formula was the recognized test for insanity, that it was a test of criminal responsibility rather than a medical test of insanity, that it has been followed in a classic fashion, that each doctor had compressed his final conclusion into the required M'Naghten strait jacket, and that the defense had proved by the greater weight of the evidence that the defendant was not guilty by reason of insanity.

Both of these courts claimed to be following M'Naghten, though the Colby court decried its present use, and the Keaton court approved an instruction that included …

The Soldier And The Imbecile: How Holmes's Manliness Fated Carrie Buck, John Kang

Akron Law Review

The Supreme Court case of Buck v. Bell, while never overturned, endures in infamy among those who know it. For in that case the Court had tacitly sanctioned what Adolph Hitler made unequivocally evil a few years after the Court’s adjudication: eugenics. However, the case was only partly about that. Indeed, I will argue in this essay that the Court’s opinion, written by Justice Oliver Wendell Holmes, turned perhaps more significantly on the trope of manliness as an organizing theme. In a sense Holmes was filtering the facts of Buck through his own ordeals and triumphs with manliness, particularly as …

Mentally Retarded Citizen And The Law, Thomas Shaffer, Michael Kindred, Lawrence Kane

Thomas L. Shaffer

No abstract provided.

The American Criminal Code: General Defenses, Paul H. Robinson, Matthew Kussmaul, Camber Stoddard, Ilya Rudyak, Andreas Kuersten

All Faculty Scholarship

There are fifty-two bodies of criminal law in the United States. Each stakes out often diverse positions on a range of issues. This article defines the “American rule” for each of the issues relating to general defenses, a first contribution towards creating an “American Criminal Code.”

The article is the result of a several-year research project examining every issue relating to justification, excuse, and non-exculpatory defenses. It determines the majority American position among the fifty-two jurisdictions, and formulates statutory language for each defense that reflects that majority rule. The article also compares and contrasts the majority position to significant minority …

Insane Fear: The Discriminatory Category Of "Mentally Ill And Dangerous", Sherry F. Colb

Sherry Colb

This article considers the constitutional and moral implications of the distinction the law draws between different classes of dangerous people, depending upon their status as mentally ill or mentally well. Those who are mentally well benefit from the right to freedom from incarceration unless and until they commit a crime. By contrast, dangerous people who are mentally ill are subject to potentially indefinite "civil" preemptive confinement. In a relatively recent case, Kansas v. Hendricks, the United States Supreme Court upheld the post-prison civil confinement of Leroy Hendricks, a man who had served prison time after pleading guilty to child molestation. …

Murder Mitigation In The Fifty-Two American Jurisdictions: A Case Study In Doctrinal Interrelation Analysis, Paul H. Robinson

All Faculty Scholarship

The essay surveys the law in the fifty-two American jurisdictions with regard to the three doctrines that commonly provide a mitigation or defense to murder liability: common law provocation and its modern counterpart, extreme mental or emotional disturbance; the so-called diminished capacity defense and its modern counterpart, mental illness negating an offense element; and the insanity defense. The essay then examines the patterns among the jurisdictions in the particular formulation they adopt for the three doctrines, and the combinations in which those formulations commonly appear in different jurisdictions. After this review, the essay steps back to see what kinds of …

Rationality, Insanity, And The Insanity Defense: Reflections On The Limits Of Reason, Theodore Y. Blumoff

Theodore Y. Blumoff

Individuals who suffer from chronic paranoid ideations live with deeply embedded conspiratorial delusions that are sometimes accompanied by unwanted visual and/or auditory stimuli, sometime neither: just psychotic delusions in which they feel as if they have lost control of their lives – and of course they have, albeit not from the performances of foreign forces. When those perceived forces persevere for even a fairly short period of time, they can dictate the performance of evil deeds that the individual ultimately feels helpless to oppose. What observations and findings from neuroscience make clear is that such individuals do not lack knowledge, …

The Effect Of Mental Illness Under U.S. Criminal Law, Paul H. Robinson

All Faculty Scholarship

This paper reviews the various ways in which an offender's mental illness can have an effect on liability and offense grading under American criminal law. The 52 American jurisdictions have adopted a variety of different formulations of the insanity defense. A similar diversity of views is seen in the way in which different states deal with mental illness that negates an offense culpability requirement, a bare majority of which limit a defendant's ability to introduce mental illness for this purpose. Finally, the modern successor of the common law provocation mitigation allows, in its new breadth, certain forms of mental illness …

Drug Induced Insanity And Unconsciousness - A Clarification Of California Law, Jerome Bleiweis

Pepperdine Law Review

No abstract provided.

The Story Of Clark: The Incredible Shrinking Insanity Defense, Janine Young Kim

Janine Kim

Criminal Law And Procedure, Aaron J. Campbell, Kathleen B. Martin

University of Richmond Law Review

This article aims to give the criminal law practitioner a succinct review of significant cases regarding criminal law and procedure decided by the Supreme Court of Virginia and the Court ofAppeals of Virginia during the past year. The authors have focused their discussion of the cases on cogent points found in the holdings. The article also briefly summarizes recent legislative enactments pertaining to criminal law.