by Rachel Sharma

The insanity defense has a long history in many different countries; however, in the United States, it holds water through the 8th Amendment of the Constitution: “Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.”[1] The insanity defense fits under the umbrella of “cruel and unusual punishment”. Due to the fact that those who use the insanity defense successfully are seen as not knowing what they were doing or not understanding the moral implications of their actions, it would be “cruel and unusual” to give them the same punishments as those who do not suffer from these mental illnesses.

There are four different rules or tests for the insanity defense; each with its own circumstances and relevance to our view and accepted insanity defense today. The first defense comes from the 1840s in Great Britain: the trial of Daniel McNaughtan. In January of 1843, McNaughtan shot a man named Edward Drummond in broad daylight. Five days after he was shot, Drummond died. However, even though it was Drummond that McNaughtan shot, his anger was found to be directed at Drummond’s employer, Prime Minister Sir Robert Peel. McNaughtan was operating under a delusion that the Tories, a political party at the time in Great Britain, was persecuting him. At his trial, McNaughtan was found not guilty by reason of insanity. The reasoning behind his defense became a part of British law. It basically states that if it is because a mental defect, disorder, or disease, the defendant did not understand that their actions were wrong at the time of the specific action. This is also called the ‘cognitive test’ as it refers to what the defendant knows. This defense also defines what the defendant must know in order to be guilty: the “nature and the quality of the act” and that the act “was wrong”. This defense had a negative reaction from the British people.[2] There were those who believed that the new defense open to the insane would be overused. This is evident by a popular poem by Thomas Campbell. “They’re a privileg’d class, whom no statute controls /And their murderous charter exists in their souls. / Do they wish to spill blood – they have only to play/ a few pranks – get asylum’d a month and a day”.[3]

The second defense is the irresistible impulse test. In January 1885, Nancy Parsons’s daughter shot her father, and Nancy’s husband, at her mother’s urging. At the time of the murder, Nancy thought her husband had a natural power to hurt her and “inflict her with disease”.[4] The standard for insanity set forth by McNaughtan, was adopted by the American legal system. However, this test made no allowance for the case of Nancy Parsons and her daughter. Therefore, she was convicted by the city court of Birmingham, Alabama. This case pointed out a hole in the McNaughtan defense. “Freedom of will” was not a part of the original equation. In the Alabama Supreme Court, Justice Somerville wrote the court’s opinion in this case and sought to rectify this wrong. The irresistible impulse test states that a mental defect or disorder, if overriding the free will of the defendant at the time of the action, then the knowledge of the defendant about their actions is irrelevant. It is almost as if the defendant is held under duress by their mental state.[5]

The third defense is the Durham test, which came about as the result of a 1954 case, Durham v. United States. Monty Durham was convicted of housebreaking, which we would called breaking and entering today. Durham had a history of mental disorder when he was discharged from the navy, institutionalized in 1948, was in jail, and institutionalized again in 1951. Durham was convicted without a jury and his defense was that he “was of unsound mind at the time of the offense”.[6] In the judge’s questioning of a witness, a psychiatrist named Dr. Gilbert, the Durham defense was born. The Durham test, also known as the product test, is very broad. If the act is the result of a mental disorder, disease, or defect, at the time of the action then it is justified under the insanity defense. However, this test is not used as much today because it is seen as too broad.[7]

The fourth test is the Model Penal Code. It is widely used today and combines the other three defenses. “A person is not responsible for criminal conduct if at the time of such conduct as a result of mental disease or defect he lacks substantial capacity either to appreciate the criminality of his conduct or to conform his conduct to the requirements of the law.”[8] This was tested in the case of John Hinckley, Jr. Hinckley attempted to assassinate President Ronald Reagan in 1982. At his trial, two experts went back and forth on their beliefs of Hinckley’s mental state at the time of the attack and whether he had a mental disorder. Dr. Parker Dietz, who testified for the prosecution, believed that Hinckley did not meet the legal standard of insane. He made it clear that Hinckley “did not meet the criteria for any psychotic disorder” and “did appreciate the wrongfulness of his act(s)”.[9] Dr. William Carpenter, who testified for the defense, made it clear that Hinckley “met the criteria for schizophrenia”.[10] Dr. Carpenter also set forth that Hinckley could not “appreciate the wrongfulness of his acts”[11] because of his mental impairment. This disagreement over the word “appreciate” came to a head in this case. While the prosecution argued that “appreciate” meant “knowing” right from wrong, like in the McNaughtan test, the defense argued that “appreciate” is more complex and made up of “cognitive and emotional factors”. The judge ruled in favor of the prosecution. However, Hinckley was found not guilty by reason of insanity. The public was outraged, similar to the reaction after the verdict in the McNaughtan case came down. Some suggested getting rid of the defense altogether or barring psychiatry from being considered in criminal proceedings.[12]

These four cases make up the precedent for the insanity defense today. Four states in the United States, Utah, Idaho, Kansas, and Montana, have abolished the insanity defense and the burden of proof lies with different parties in different states.[13] The importance of the insanity defense cannot be overstated. As result of this history, I believe that the insanity defense serves a necessary purpose in our country because if we did not have this defense, then what recourse would those convicted because of mental illness have? Odds are, they would be put in prison with the rest of the prison population and have adverse outcomes. They would not receive the treatment they need in prison. With the insanity defense, the courts make sure that the country does not treat anyone cruel and unusually.

[1] U.S. Const. amend. VIII

[2] Andrea Alden, Disorder in the Court 38-46 (1st ed. 2018).

[3] Andrea Alden, Disorder in the Court 44 (1st ed. 2018).

[4] Andrea Alden, Disorder in the Court 50-51 (1st ed. 2018).

[5] Andrea Alden, Disorder in the Court 52-56 (1st ed. 2018).

[6] Andrea Alden, Disorder in the Court 66-67 (1st ed. 2018).

[7] Andrea Alden, Disorder in the Court 68-74 (1st ed. 2018).

[8] Andrea Alden, Disorder in the Court 76 (1st ed. 2018).

[9] Andrea Alden, Disorder in the Court 81-90 (1st ed. 2018).

[10] Andrea Alden, Disorder in the Court 85 (1st ed. 2018).

[11] Andrea Alden, Disorder in the Court 87 (1st ed. 2018).

[12] Andrea Alden, Disorder in the Court 81 (1st ed. 2018).

[13] Andrea Alden, Disorder in the Court 95 (1st ed. 2018).