Why not Punish the Insane? Consequentialist It is futile to do so. Insane people can’t be deterred by threat of punishment. But, the insanity defense can weaken the deterrence of the sane, if it can be faked.

Deontological Reasons  No fair warning. Insane people cannot understand, appreciate the warning.  Desert and responsibility. Insane offenders could not help but violate the law, so are not responsible for their actions.  Pity rather than anger is the enlightened response.

Versions of the Defense  M’Naughten rule:  “laboring under such a defect of reason, from disease of the mind, 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 what we was doing was wrong.  ALI Model Penal Code  “As a result of mental disease or defect, he lacks substantial capacity either to appreciate the criminality (or wrongness) of his conduct or to conform his conduct to the requirements of the law.”

Three prongs of the ALI code:  Intellectual (A failure to know that what he was doing was wrong.)  Affective/emotional (A failure to appreciate emotionally the wrongness of the act.)  Volitional (An inability to resist the impulse to perform the act.)  Presupposes: due to mental illness or defect.

Abolition (the Mens Rea approach) Due to some mental disease, the offender did not have the knowledge or intention required by the definition of the offense.

More alternatives  Loss of control (Parsons v. State, Alabama 1887): (i) loss of (some) power to choose between right and wrong (ii) so far as to destroy “free agency”at the time, (iii) due entirely to mental illness or distress.  Durham rule: the unlawful conduct was the product of mental disease or mental defect.

Consequentialist Objections to the ALI Model Code  Insanity defense weakens deterrence: criminals can avoid punishment through fakery.  Psychopathy (lack of normal feelings) is not really a mental disease, is virtually untreatable. Psychopaths can be deterred by threat of punishment.  Undermines respect for the law. Expressive and educative functions are suppressed. Need for vengeance unsatisfied.

Another objection  It is impossible to decide the volitional prong on scientific or commonsense grounds. Expert testimony on this point is amorphous, inconsistent. (Bonnie)

Deontological objections  Ineffectiveness of deterrence is not a sufficient reason to bar punishment: some sane offenders are so determined in their purposes that no threat can deter them.  There is no principled reason for singling out one cause of behavior (mental illness) as exculpatory. If caused behavior should be excused, a better case could be made for an excuse based on social deprivation. (Morrison)  Treats mentally ill as sub-human.

Is Causation of Behavior a Valid Excuse?  Compatibilists believe that we can distinguish between what an agent is responsible for and what he is not, even if all behavior is caused/determined by prior conditions.  Incompatibilists deny this.

Compatibilists: The Utilitarians  British Utilitarian tradition: Bentham, James Mill, John Stuart Mill  Whether behavior has a cause doesn’t matter; what matters is that it has effects.  The test of responsible behavior: could it be affected by threat of punishment or offer of reward?

Incompatibilists: Hard Determinists  B. F. Skinner, behaviorism.  Believe that freedom and responsibility are pre-scientific myths.  Deny the existence of the “autonomous self”  Replace theories of desert and blame with effective behavior technology.

Incompatibilists: Metaphysical Libertarians  Believe that responsible, free behavior does exist, and is not determined by prior conditions.  The will makes some irreducible and ultimately mysterious contribution.  Some believe in “agent causation”: actions caused by the agent, and not by any states or conditions of the agent/environment.

The Transfer Argument for Incompatibilism  We are not responsible for conditions prior to our birth.  If determinism is true, these conditions necessitate all of our choices.  Transfer principle: if x is not responsible for A, and A necessitates B, then x is not responsible for B.  So, none of us are responsible for any of our choices, if determinism is true.

A Problem for Hard Determinists  If there is no basis for the idea of desert, then there is no reason to incarcerate only the guilty.  Preventative incarceration of people who can be predicted to be dangerous would be justified.  Mandatory behavior modification: A Clockwork Orange?

A Problem for Libertarians  Is indeterminism sufficient for responsibility?  It would seem that one who breaks the law, as a result of an uncaused eventuality, is simply unlucky.  If it is merely a matter of chance which impulses are acted on, why hold the individual responsible? If not chance, mustn’t there be some sufficient condition?

Irresistible Impulses?  The model of irresistible impulses seems to draw on implausible picture of our mental life.  As if we had in our heads a little person (homunculus) who decided which impulses to resist, and how vigorously.  An infinite regress: are there irresistible impulses inside the homunculus?  For libertarians, any action that is pre-determined is due to an irresistible impulse, and so not truly voluntary.

Compatibilist Accounts of Loss of Responsibility  Motives which are bizarre or odd. (Hinckley?)  Impulses so powerful, one must act on them, no matter how strong one’s reasons to do otherwise. (Do either of these require illness?)  Actions whose true motive is hidden from the agent himself (neurotic compulsion)  Actions whose motives do not cohere harmoniously with the agent’s other motives and interests. (Even if not due to illness?)

 Acting on a motive the agent wishes he did not have (conflict with second-order desires).  Acting on the basis of beliefs or decision- making processes that are disrupted by a mental disorder. For example: delusions (beliefs that are immune to usual kinds of evidence). What if the immunity is due to stupidity or educational deprivation?  Can we find a unifying theme or themes? Irrationality? True/false self?

Problems for Compatibilists  Are bizarre desires any stronger, less resistible than normal ones?  Criminals often act irrationally, against their own interests: e.g, revenge.  Many ordinary people have incoherent desires, or desires they would rather not have.  Self-concealed motives: also common in ordinary people. Why exculpatory?

More questions  Illness alone cannot constitute the difference between sane and insane.  Many criminal acts are both sick and voluntary: e.g., child molesters, exhibitionists, sadists.  The punishment of the ill can deter.  Is there a viable compatibilist account of insanity?

Procedural Issues  Should the burden of proof be shifted to the defense?  If the truly insane defendant is innocent, can such a shift be justified?  Limiting the role of expert witnesses?

Limiting the Role of Experts  Excluding testimony about childhood hardships, because of undue emotional impact.  Exclude speculative theories about diagnosis: simple descriptions of beliefs, intentions and feelings only.  How to deal with ideological bias and gullibility? Special training, qualifications?

Is limiting expert testimony justifiable?  Can we deny defendants the use of favorable expert testimony?  Would this violate their constitutional rights?

Disposition of the Criminally Insane  Does it lessen the stigma to label them "innocent", rather than "guilty but mentally ill"?  Mandatory treatment vs. "punishment”  Insane can be held indefinitely: Jones v. U.S. 463 US 354 (1983).

Term of Confinement  Confinement until cured: how is this measured?  A lower bound, equivalent to the sentence of sane offenders?  The same limit, as an upper bound?  If terms of confinement are synchronized with criminal desert, is the distinction between guilty & innocence obliterated?

The Joy Baker case  Would Baker have been found guilty, applying only the mens rea test?  Would she have been found guilty, applying the M’Naughton rule? The ALI code?  Is it morally outrageous to punish someone like Joy Baker? Would “guilty but mentally ill” be appropriate? Does it unfairly stigmatize the innocent?

Mental illness vs. social deprivation  If it is true that social deprivation is a better predictor of criminal activity than mental illness, is it reasonable to defend the insanity defense but not an equivalent defense from social deprivation?

The Volitional Prong  Should compulsive disorders (kleptomania, pyromania) be covered by the insanity defense? Why or why not?  Is it ever possible to prove that an impulse was “irresistible”? Does the question have a clear meaning?  Is it relevant (as Bonnie claims) that acquittal in these cases is “out of touch with commonly shared moral intuitions”?