1. LAW AND MEDICINE REGARDING MENTAL HEALTH AND LEGAL CULPABILITY
BY ALISSA KATZ
BIOETHICS AND MEDICAL MALPRACTICE, FALL 2016

2. 1
It is the mind that makes the body
- Sojourner Truth
INTRODUCTION: THE RELATIONSHIP BETWEEN LAW AND MEDICNE
The law and medicine are complementary yet antagonistic— the law remains firmly
rooted in constitutional antiquity and medicine progresses with scientific advancement. Lawyers
and doctors interact most frequently under the constraints of adjudication. Doctors provide
didactic testimony as an integral part of some civil and criminal trial proceedings. Medical
researchers and practitioners educate both the judge and the jury regarding the complexities
associated with laymen terms such as “insanity” or “incompetence” as they may apply to the
party in question. From these testimonies, judges and juries draw conclusions interrelating the
facts, medicine, and the law to reach a legal verdict. Courts treat this as a “home court
advantage,” often times giving deference to the lawyers and non-experts including the judges and
juries. Ultimately, the court has the power to either confirm or refute the scientific testimony and
opinions brought in by doctors and other medical experts. The legal verdict may in no way
reflect the medical verdict or diagnosis as prescribed by the expert.
The particularly controversial topic of mental illness finds relevance in both the law and
medicine. Of course both have their own definitions of, tests for, measurements of, and agendas
for mental illnesses—we will see them both overlap and conflict. The law considers mental
abnormality as a defense, and when the defense is inapplicable, it is considered like any other
departure from society’s moral expectancies that cause harm: criminal and therefore punishable.
Alternatively medicine considers mental abnormalities as diseases of the mind rooted in the
brain that are intricate, evolving, individualistic, and in need of treatment.

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The following paper illustrates the combative relationship between the judiciary system
and medical field regarding the topic of insanity and specifically mental illness in the context of
criminal law. The first section introduces the fundamental concept in which both the law and
medicine can root common grounds: autonomy. The second section titled, “Attaching
responsibility,” will introduce the medico-legal topic of insanity as well as the conceptual and
professional limitations of both the law and medicine in relation to insanity. The third section
describes a specific class of individuals that experience a lesser capacity of autonomy—they are
the defendants that fall under the insanity defense. The final section examines relevant criminal
statutes including legislation from the Insanity Defense Reform Act and Model Penal Code,
some specific state penal codes, and policy statements related to the issue of mental abnormality
and departure from legal responsibility.
Throughout this paper, we see tension between judges and the medical experts invited
into their courtrooms and the effect it has on case law. This ongoing rivalry between law and
medicine can be at worst detrimental, as ultimately the burden of these outcomes falls onto
society when a blameless offender is incarcerated or a blameworthy offender is set free and
causes more harm. I put emphasis on particular decisional language where the dissonance is most
obviously at play. I contrast the language of the justices with that of medical experts to
emphasize the sharp and at times offensive disparity.
In concluding, this paper suggests how the preceding sections elicit an obvious
discrepancy between jurisprudence and medicine while simultaneously intertwining an inevitable
dependency between them. Ultimately and at most, both the courts and doctors reach only
speculative conclusions regarding the defendant’s state of mind. So then the question is this:
Whose speculation is more relevant and taken as reason? And in the future, can our judicial

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system and the medical field work together to succeed speculation to come to more definitive
conclusions for the betterment of society?
I. PRESUMPTIONS AND A PHILOSOPHICAL ASIDE
The law and medicine begin with presumptions. It is only once an actor exhibits
departure from standards of health or legality that these presumptions lose weight and inquiries
ensue. The most fundamental presumption of both law and medicine is that of full and
unconditional capacity to make decisions regarding either one’s personal well being or the well
being of society at large. Immanuel Kant recognized this theory in a philosophical maxim of
autonomy.
Kant philosophized that individuals inherently exercise a “self-rule” and “self-
governance” in interacting with society.1
Further, Kant asserts that it is the autonomous
individual’s responsibility to conduct oneself in accordance with society’s governing
parameters.2
Autonomy is therefore a two-fold concept—it is both a freedom and a
responsibility. With autonomy—the innate right to make decisions and govern oneself
individually and most organically independent of governmental ceilings or social implications—
comes an obligation to assimilate and tailor the expression of those rights and decisions to the
confines of societal rules and expectations. “Responsibility” is then not only the obligation but,
“the ability to accept the consequences of a choice, and a person is said to be responsible to the
extent that he can be said to have such an ability as a result of his capacity for understanding.”3
1
DR. KIM TREIGER-BAR-AM, IN DEFENSE OF AUTONOMY: AN ETHIC OF CARE, 3 NYU J.L. & LIBERTY 548, 555
(2008).
2
Id. at 567.
3
DONALD H. J. HERMAN, THE INSANITY DEFENSE: PHILOSOPHICAL, HISTORICAL AND LEGAL PERSPECTIVES 79-80
(1983).

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In the context of criminal law, courts and medical experts recognize an individual’s
capacity for autonomous decision-making from different perspectives4
. The judicial system
recognizes capacity for purposes of attaching responsibility to those criminally autonomous
expressions that harm society. Medicine recognizes capacity for the purpose of diagnosing a
degree of departure as a reason for withholding responsibility for those same actions. Rudolph
Joseph Gerber, former Judge of the Superior Court of Arizona, articulates three philosophically
rooted issues underlying this struggle for common ground:
“[F]irst, whether there can be any reconciliation between the determinism of medical
science and the free will postulate of the criminal law; secondly, whether mens rea or
“criminal intent,” necessarily involves the postulates of freedom of the will and sanity;
thirdly, whether the determination of sanity, and hence moral responsibility, is more
properly a role for experts such as psychiatrists than for history’s “twelve good men” of
the jury.”5
In the courtroom, judges consider statutory definitions and stare decisis as the talisman of
decision-making. In the medical field, scientific theories demonstrated by data, case studies, and
diagnoses are the floor with an infinite ceiling of discovery. The discrepancy in these thresholds
threatens a society that is stuck in the middle and looking for answers, remedies, and rules.
Medicine and law are necessarily entangled by society’s need for both to work together and keep
them safe.
II. ATTACHING RESPONSIBILITY
“The legal and moral traditions of the western world require that those
who, of their own free will and with evil intent (sometimes called mens
rea), commit acts which violate the law, shall be criminally responsible
for those acts.”6
4
DWIGHT G. MCCARTY, PSYCHOLOGY FOR THE LAWYER 435 (1981) (“The law has regard for the good of society,
irrespective of the individual; medicine always considers the welfare of the individual.”) (internal citations omitted).
5
RUDOLPH JOSEPH GERBER, JUDGE OF THE SUPERIOR COURT OF ARIZONA THE INSANITY DEFENSE 2 (1938).
6
Durham v. United States, 214 F.2d 682, 874 (D.C. Cir. 1954).

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Our inquiry then begins at the formal gateway of criminal prosecution, the Sixth
Amendment.7
The defendant, although denied certain liberties, enjoys a variety of rights
throughout his criminal proceedings. Most importantly, the defendant maintains a presumption
of innocence, placing the burden on the prosecution to attach any responsibility.8
Integral to the
attachment of responsibility and to further the theory of retribution is the presumption of the
defendant’s capacity for culpability: sanity.9
Sanity is a state of mind made apparent through
self-expression. Through these expressions, the suggestion of insanity is born.10
The defendant
can overcome the presumption of sanity by proving enough evidence of insanity, whether it is a
question of sanity at the time of the offense or sanity to stand trial. Yet this is merely the
touchstone of the defense.11
A. The Pre-trial determination to stand trial: Medicating to compensate for
capacity
In Ake v. Oklahoma12
, defendant Ake was arrested and charged with murdering a family.
Due to Ake’s abnormal behavior while in custody and at arraignment, the judge ordered that
further adversarial proceedings be postponed pending a psychiatric evaluation concerning his
“present sanity.”13
The examining psychiatrist diagnosed Ake with probable paranoid
schizophrenia and deemed him incompetent to withstand the proceedings until further
7
U.S. CONST. amend. VI (“Rights of the Accused” as follows: “In all criminal prosecutions, the accused shall enjoy
the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been
committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause
of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining
witnesses in his favor, and to have the Assistance of Counsel for his defen[s]e.”).
8
Coffin v. United States, 156 U.S. 432, 453 (1895).
9
See Cannon v. Commonwealth, 777 S.W.2d 591 (KY 1989); Williams v. State, 885 P.2d 536 (1994);
Commonwealth v. Keita, 699 N.E.2d 1243 (1998).
10
DWIGHT G. MCCARTY, PSYCHOLOGY FOR THE LAWYER 425 (1981) (“Insanity … is a disorder of the process of
adjusting the self to the circumstances, and … it is primarily manifested in disorder, not of mind, but of conduct.”).
11
See Blocker v. United States, 288 F.2d 853, 854 (1961).
12
Ake v. Oklahoma, 470 U.S. 68 (1985).
13
Id. at 71.

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observation.14
A month after Ake was admitted to a state hospital, the chief forensic psychiatrist
made a more detailed diagnosis and confirmed that Ake’s state of incompetency to stand trial
was foreseeably continuous and severe.15
But six weeks later and with 200-milligram dosage of
an antipsychotic drug three times daily, Ake was deemed competent to stand trial.16
The forensic psychiatric assessments of competency to stand trial and the Oklahoma trial
judge’s conclusions regarding Ake’s capacity are disturbing. In its decision to reverse and
remand Ake’s conviction, the Supreme Court notes that the court considered Ake competent,
“only on the condition that he be sedated with large doses of Thorazine three times a day during
trial.”17
For medical purposes, “sedation” is necessarily a therapeutic tactic in instances of severe
distress, agitation, or irritability that lessens a person’s ability to respond and react to cognitive
processes. But for the purpose of criminal proceedings, sedating an individual suggests an
intentional reduction that actually enhances a person’s abilities to the extent that they can then
stand trial. The antipsychotic drug did not medically fix Ake—it pacified a severe mental
disorder in order to satisfy the capacity requirements to withstand criminal proceedings.18
Ake
demonstrates the judiciary’s insensitive approach to mentally ill individuals and the exploitation
14
Id.
15
Id. at 71 ("[Ake] is a psychotic . . . his psychiatric diagnosis was that of paranoid schizophrenia -- chronic, with
exacerbation, that is with current upset, and that in addition . . . he is dangerous. . . . [Because] of the severity of his
mental illness and because of the intensities of his rage, his poor control, his delusions, he requires a maximum
security facility within -- I believe -- the State Psychiatric Hospital system.").
16
Id. at 72.
17
Id. at 86.
18
See MODEL PENAL CODE § 4.04 (“No person who as a result of mental disease or defect lacks capacity to
understand the proceedings against him or to assist in his own defense shall be tried, convicted or sentenced for the
commission of an offense so long as such incapacity endures.”); 18 U.S.C.S. § 4241 (“(a) … the defendant may
presently be suffering from a mental disease or defect rendering him mentally incompetent to the extent that he is
unable to understand the nature and consequences of the proceedings against him or to assist properly in his defense
… (d) the court shall commit the defendant to the custody of the Attorney General. The Attorney General shall
hospitalize the defendant for treatment in a suitable facility-- (1) for such a reasonable period of time, not to exceed
four months, as is necessary to determine whether there is a substantial probability that in the foreseeable future he
will attain the capacity to permit the proceedings to go forward; and (2) for an additional reasonable period of time
until-- (A) his mental condition is so improved that trial may proceed, if the court finds that there is a substantial
probability that within such additional period of time he will attain the capacity to permit the proceedings to go
forward; or (B) the pending charges against him are disposed of according to law; whichever is earlier.”).

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of medicine and treatment for purposes far short of rehabilitation: retribution.
B. Insanity: An illustration of legal and medical rivalry
In Blocker v. United States, Judge Burger concurred in his opinion by outright denying
the existence of insanity or disease of the mind.19
While doctors are quick to diagnosis departures
from sanity to even the slightest degree, the law is interested in upholding the integrity of the
criminal justice system even if that means denying intricate diagnoses as established by
psychology. The medical jargon and different diagnosis offered by medical experts have been
deemed somewhat irrelevant and all too subjective for the judicial system that is geared,
“towards generalization, towards conceptualization, towards the laying down of hard and fast
rules based upon precedent and entrenched in the doctrine of stare decisis.”20
These stubborn
legal conclusions are based on not only what the actor manifested through criminal actions but
on what the judges and juries can see in the outward appearance of the defendant i.e. disposition
in court and lay witnesses that know the defendant through personal interactions. The medical
jargon and different diagnosis, however, delve into a realm outside not only the care but also the
capacity of the courts: science.
Dr. Charles W. Burr, Professor of Mental Diseases at University of Pennsylvania
describes the antagonistic relationship between law and psychiatry as it stems from their
opposing views on criminality.21
The law punishes people based on criminal acts therefore
suggesting that acts and not necessarily people themselves are criminal. Nevertheless, it is the
people that perform these acts who will be punished for their actions. Psychiatrists, on the other
hand, define criminality as, “a state of mind … [T]herefore, the criminal’s act is of secondary
19
Blocker v. United States, 288 F.2d 853, 859 (1961) (“I will say there is neither such a thing as ‘insanity’ nor such
a thing as ‘mental disease.”).
20
MCCARTY, supra note 10, at 416 (internal citations omitted).
21
CHARLES W BURR, CRIME FROM A PSYCHIATRIST'S POINT OF VIEW THIRTEENTH ANNUAL MEETING OF THE
EUGENICS RESEARCH ASSOCIATION (1925).

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importance; his mental make-up, impelling him to it, is the primarily important thing, which
stamps him as belonging to a species mentally unlike his fellow men. The act is, therefore,
merely a symptom to be interpreted …”22
Medical experts and judiciaries are competing for jurisdiction in the courtroom. Although
the medical experts are called in and treated as “guests” to the adjudicative process, the judiciary
is threatened by their presence and the depth of their knowledge as it surpasses the courtroom
ceilings that are capped by stare decisis and static legislature.23
The judiciaries have become
resistant and distrustful based on the inevitable medical inconsistencies that merely parallel their
own inconsistencies amongst the federal circuits and various state jurisdictions.24
Judiciaries have a particularly limited place in the adjudicative process for medical
testimony and elicit intolerance for anything beyond that function. In this sense, the law limits
medicine—and in turn, may be limiting itself. The courts have unrealistic expectations like the
predictability of future dangerousness and the ability to characterize a person suffering from a
highly complex mental illness as simply either “capable” or “incapable” of knowing right from
wrong.25
Psychiatrist Edward de Grazia illustrates the disproportional weight given to medical
testimony and its rules specific to the discipline outside of the courtroom: "How [does one]
translate 'psychosis' or 'psychopathy' or 'dementia praecox' or even 'sociopathy' or 'mental
disorder' or 'neurotic character disorder' or 'mental illness' into a psychiatric judgment of whether
22
Id.
23
MICHAEL L. PERLIN, UNPACKING THE MYTHS: THE SYMBOLISM MYTHOLOGY OF INSANITY DEFENSE
JURISPRUDENCE, 40 CASE W. RES. 599, 700 (“The law remains paradoxically fascinated and repelled by and
overwhelmingly ambivalent about psychiatry’s role in the adjudicative process.”) (internal citations omitted).
24
Blocker, 288 F.2d at 860 ("[N]o rule of law can possibly be sound or workable which is dependent upon the terms
of another discipline whose members are in profound disagreement about what those terms mean.").
25
Describing the, “unrealistically tight shackles” of the M’Naughten test. See United States v. Freeman, 357 F.2d
606, 619 (1966).

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the accused knew 'right' from 'wrong.'"26
Dr. Lawrence Kolb describes this court supplied
medical testimony as committing, “professional perjury.”27
i. Psychiatry vs. criminology
Doctors and judiciaries have different agendas. “The modern science of psychology is
concerned with diagnosis and therapeutics and not with moral judgments.”28
The DC Circuit
Court of Appeals noted a similar distinction when trying to establish a relevant legal definition
of mental disease or defect where the medical definition was insufficient and displaced: “…
[M]ental disease or defect has various meanings, depending upon how and why it is used, and by
whom. Mental disease means one thing to a physician bent on treatment, but something different
to a court of law.”29
Medication has become a heated topic in both psychiatry and law—are doctors
overmedicating and are courts unconstitutionally medicating?30
In prescribing medication or
hospitalization, psychiatry rests on a standard of “therapeutically appropriate”—then it becomes
the patient’s or the patient’s guardian’s decision as to administration. As illustrated by Ake,
courts institute involuntary medication or hospitalization for rather nontherapeutic purposes that
are less related to the individuals’ medical interest and more concerned with society’s interest in
seeing the individual stand trial. Court-appointed involuntary medication and hospitalization
invoke constitutional issues and threaten the liberties that therapeutic medication and
hospitalization attempt to strengthen and protect.
26
Id.
27
Id.
28
Holloway v. United States, 148 F.2d 665, 667 (1945).
29
United States v. Brawner, F.2d 969, 978 (D.C. Cir. 1972).
30
See Riggins v. Nevada, 504 U.S. 127, 136-38 (1992); Washington v. Harper, 494 U.S. 210, 212-22 (1990).

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The courts are also very reluctant to accept psychiatric testimony on the overly
metaphysical concept of capacity as related to mental defect.31
In the case of In re Buchanan, for
example, the California Supreme Court decided that in the face of expert testimony the “most
conclusive evidence,” regarding defendant Buchanan’s disposition was that bearing on the
judge’s casual observations and interactions with him in court.32
The court relied on personal
observations of the defendant’s outward manifestations, which appeared contrary to any “sign”
of insanity. Judges and jurors look for the most obvious and stereotypical manifestations of
insanity or, “flagrant psychotic symptomatology.”33
In Connecticut M. Life Ins. Co. v. Lathrop,
Justice Harlan contends that the mere, “appearance and the conduct of insane persons, as
contrasted with the appearance and the conduct of persons of sound mind, are more or less
understood and recognized by everyone of ordinary intelligence who comes in contact with his
species.”34
Justice Harlan suggests that laymen are capable of reaching the same conclusions as
medical experts.
ii. Science vs. Stare decisis
“The great obstacle in the way, from a legal and judicial point of view is of
course, the doctrine of stare decisis.”
- Dr. S. Sheldon Glueck, Mental Disorder and the Criminal Law
Science, unlike the law, keeps pace with modern medical needs. The law and its tests
regarding the internal workings of the mind are composed of, “antiquated and outworn medical
31
STEPHEN J. MORSE, CRIMINAL LAW: UNDIMINISHED CONFUSION IN DIMINISHED CAPACITY, 75 J. CRIM. L. &
CRIMINOLOGY 1, 44 (1984).
32
In re Buchanan, 61 P. 1120, 1122 (1900). (“ … [H]e showed a perfect possession of his faculties and complete
ability to conduct his defense. He gave a connected and rational account of his whole life. He showed that he
understood his position with respect to the criminal charge pending against him, and that so far as his conduct is
defensible or mitigable he is master of his defense. He sustained a long and searching cross-examination with
perfect self-possession, and was not betrayed into the slightest inconsistency of statement This being so he claims
the right, and the law clearly sustains him in his claim, to a trial upon the criminal charge.”)
33
PERLIN, supra note 23, at 700.
34
CONNECTICUT M. LIFE INS. CO. V. LATHROP, 111 U.S. 612, 619 (1884).

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and ethical concepts, which have become crystalized, in the course of time.”35
Although the
judicial system sees new cases everyday, its decisions remain disturbingly consistent, as they are
bound by the chains of stare decisis. In his opinion in Parsons v. State36
, Judge Somerville
reversed the murder conviction of a wife and a daughter who shot and killed husband and a
father, Bennett Parsons. Judge Somerville describes the fault in courts that are stuck in the
thickets of prior decisions, and in doing so completely ignore the progress that science and
medicine contribute to society. In reversing the convictions, Judge Somerville describes the trial
court as having, “… blindly follow[ed] the unsteady footsteps found upon the old sandstones of
our common-law jurisprudence a century ago.”37
He further assesses the animosity between
jurisprudence and medical advancement, settling on the side of progressivity and noting the
limitations of antiquated case law:
The question, then, presented seems to be whether an old rule of legal responsibility shall
be adhered to, based on theories of physicians promulgated a hundred years ago, which
refuse to recognize any evidence of insanity, except the single test, of mental capacity to
distinguish right and wrong, or whether the courts will recognize as a possible fact, if
capable of proof by clear and satisfactory testimony, the doctrine, now alleged by those
of the medical profession who have made insanity a special subject of investigation, that
the old teat is wrong, and tout there is no single test by which the existence of the disease,
to that degree which exempts from punishment, can in every case be infallibly detected.
The inquiry must not be unduly obstructed by the doctrine of stare decisis, for the life of
the common law system and the hope of its permanency consist largely in its power of
adaptation to new scientific discoveries, and the requirements of an ever advancing
civilization. There is inherent in it the vital principle of juridical evolution, which
preserves itself by a constant struggle for approximation to the highest practical wisdom.
38
Judge Somerville admits that like the law, medicine has some deep-rooted theories as well. The
difference, however, between the theories of science and medicine and the theories of law is that
those of science are evolving—theories of law, however, are rigidly stubborn.
35
MCCARTY, supra note 10, at 435 (internal citations omitted).
36
Parsons v. State, 2 So. 854 (1887).
37
Id.
38
Id.

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Courts are most hesitant to abandon case law and adopt modern scientific reasoning
because it invites so much change. 39
It threatens the essence of law: history. Judges are capping
the abilities of science and medicine at which point they seem to threaten the way things were.40
Judges also negate much of scientific and medical testimony as they feel it does not fit meanings
tailored directly to legal issues. Behaviorists have specially formulated a series of assessment
tools in an attempt to, “standardize and empirically-base” the determination of criminal
responsibility,41
but the law is resilient. In his article, “Unpacking the Myths: THE
SYMBOLISM MYTHOLOGY OF INSANITY DEFENSE JURISPRUDENCE,” Perkins says
that society rejects the ability to potentially understand far more than the law currently allows for
when it comes to criminality and the insane.42
Society fears that a terrifying proportion of
criminal defendants will actually be found to be insane and therefore not criminally responsible,
severely threatening the “crime control” model.43
Society then bears the burden of future
dangerousness, as the criminal justice system has failed to protect them.
III.WHO ARE THE INSANITY DEFENDANTS?
“… [M]odern medical theory does not regard insanity itself as a
disease but as a symptom of disease which may manifest itself by disorders of
conduct, disorders of bodily function or disorders of the mind.”
39
3-14 MENTAL DISABILITY LAW: CIVIL AND CRIMINAL § 14-1 (2015) (“It is simply not yet the time to write into
the Constitution formulas cast in terms whose meaning, let alone relevance, is not yet clear … to doctors … Though
we certainly do not ‘condem[n] mental-disease evidence] wholesale’ … the consequence of this professional
ferment is a general caution in treating psychological classifications as predicates for excusing otherwise criminal
conduct.”) (internal citations omitted).
40
Dr. S. Sheldon Glueck criticizes California courts in their Gardner v. Jones, 59 P. 126 (1899) and In re Buchanan,
61 P. 1120 (1900) opinions, in which judges remain consciously and purposefully ignorant to scientific and medical
discoveries: “Unfortunately, this type of legal ancestor worship is still common in judicial tribunals. The fact that
when Blackstone wrote, insanity meant raving madness or stark idiocy and that the California law reenacted the
common law does not of itself justify adherence to a philosophy of mental disease which is a few hundred years out
of date. That judges continuously legislate by putting a contemporary content into an ancient form of law … it is
reasonable to ask why a modern content, based upon modern scientific knowledge, should not be put into the ancient
forms, ‘insanity’ and ‘lunacy’; why, in other words, contemporary knowledge and practice should be shackled by
views that were in vogue several centuries ago, and which, when in vogue, themselves expressed still older medical
opinion.” SHELDON GLUECK, MENTAL DISORDER AND THE CRIMINAL LAW 76 (1925).
41
PERLIN, supra note 23, at 655-58.
42
Id. at 665.
43
Id.

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– Edward F. Streit44
The insanity defense as codified under 18 U.S.C.S § 17 (The Act) and under the Model
Penal Code – statutes to be detailed in a subsequent section – implies a broad application for
protection to any, “mental disease or defect,” where the person lacks a, “substantial capacity.”45
The American Bar Association describes mental disease or defect as, “impairments of mind,
whether enduring or transitory; or, mental retardation, either of which substantially affected the
mental or emotional process of the defendant at the time of the alleged offense.”46
Psychiatry has
diagnosed these illnesses down to the very degree, which is partially complimentary to the
particular legal objective of identifying substantial impairment.47
But as case law suggests, these
scales are not similarly calibrated.
Defendants that plead the insanity defense suffer from any of the following impairments:
mental illness, intellectual disabilities, physiological and developmental disorders, genetic
abnormalities, or a host of new age cultural and syndrome-based insanities.48
Of these categories,
“mental illness” has proven to be the most consistently disputed. The ultimate question becomes,
“What clinical disorders are of legal significance?”49
For purposes of identifying the modern
laymen psychiatric conditions as they affect the requisite criminal capacity from 18 U.S.C.S § 17
and the MPC, Alec Buchanan directs us to consider these conditions in light of altered mental
44
EDWARD F. STREIT, CONFLICTING VIEWPOINTS OF PSYCHIATRY AND THE LAW ON THE MATTER OF CRIMINAL
RESPONSIBILITY, 8 NOTRE DAME L. REV. 146, 182 (1933).
45
MODEL PENAL CODE § 4.01. See also MODEL PENAL CODE § 4.04 regarding the lesser but nonetheless significant,
“capacity to understand the proceedings against him” most relevant to pre-trial proceedings.
46
AMERICAN BAR ASSOCIATION, CRIMINAL JUSTICE MENTAL HEALTH STANDARDS 330 (1989).
47
STREIT, supra note 44, at 184. (“Insanity is a matter of degree and those who are insane are not necessarily
entirely insane … Between the two extremes of sanity and insanity lies every shade of deficient mental condition,
grading imperceptibly one into another.”).
48
See 3-14 MENTAL DISABILITY LAW: CIVIL AND CRIMINAL § 14-1 (2015).
49
Id.

15. 14
processes including consciousness, emotion, impulsiveness, perception, thought and belief, and
attention.50
These processes impair the actor’s ability to choose actions and decipher between what is
right and what is wrong, the touchstone of criminal responsibility.51
There are three “major
mental illnesses” recognized by the legal community— schizophrenia, major depression, and
bipolar disorder—as well as other categorical disorders that courts consider reluctantly. In the
following sections, we will briefly explore each mental process and its associated mental defects
as well as recognizable disorders and their hybridizations. We will otherwise avoid describing
these defects in terms of particular medical terminology, as the courts are less receptive to that
information in testimony anyway.
A. Consciousness
Consciousness is the gradation of awareness, ranging from full alertness to comatose,
resulting in, “a partial or complete loss of the normal integration between memories of the past,
awareness of identity and immediate sensations and control of bodily movements.”52
Consciousness affects the ability to think, attend, perceive, and remember. Loss of consciousness
may excuse states of automatism (‘automatic behavior’), hypoglycaemia, intoxication, sleep
walking, different classes of schizophrenia53
, and a series of dissociative states including
personality disorders, amnesia, trances and states of possession, convulsions, and paralysis.54
50
ALEC BUCHANAN, PSYCHIATRIC ASPECTS OF JUSTIFICATION, EXCUSE AND MITIGATION IN ANGLO-AMERICAN
CRIMINAL LAW 63-76 (2000).
51
PAUL H. ROBINSON, SUPREME COURT REVIEW: FOREWORD: THE CRIMINAL-CIVIL DISTINCTION
AND DANGEROUS BLAMELESS OFFENDERS, 83 J. CRIM. L. & CRIMINOLOGY 693, 699 (1993).
52
Buchanan, supra note 50, at 64, 67 (internal citations omitted).
53
There are three notable symptoms of schizophrenia that affect consciousness: Perplexity (“the oppressive
awareness of one’s inability to cope with a given internal or external situation; this awareness being experienced as
something which cannot be explained; something that has to do with one’s own self,” depersonalization (“a state in
which the individual feels completely changed from what he was previously”), and less commonly oneirophrenia (“a
condition in which the subject’s experience is said to be pervaded by a dream-like quality”). Id. at 64-65.
54
Id.

16. 15
Intoxication, a state of altered consciousness come at through the voluntary
administration of toxins such as drugs or alcohol, has been deemed insufficient for purposes of
the insanity defense. By itself, intoxication is an insufficient excuse for clouded judgment.55
However it has been said that where the intoxication is caused by a separate existing mental
illness, the court can consider both the substance abuse and mental illness in assessing the
defendant’s responsibility and his ability to appreciate the criminality of his actions.56
Both the
Second and Ninth Circuits insanity claims, however, have rejected this hybridized claim in
furtherance of the Act.57
In United States v. Knott, the Ninth Circuit held that, “A mental disease or defect must be
beyond the control of the defendant if it is to vitiate his responsibility for the crime
committed.”58
Defendant Knott, who had engaged in a spree of kidnapping and steeling, claimed
that his schizophrenia in combination with voluntary intoxication rendered him legally insane at
the times the crimes were committed.59
The court instructed the jury as follows:
“ … if you find that at the time in issue the defendant had a severe mental disease
or defect and that the disease or defect gave rise to an inability to appreciate the
nature or quality or moral wrongfulness of his acts, then the defendant’s
subsequent consumption of drugs or alcohol, whether voluntary or involuntary,
cannot preclude his defense of insanity.”60
55
S.REP.NO. 225, 98TH CONG., 1ST SESS. 222, 229 (1983) (“… [T]he voluntary use of alcohol or drugs, even if they
render the defendant unable to appreciate the nature and quality of his acts, does not constitute insanity. . . .").
56
United States v. Garcia, 94 F.3d 57, 60 (2d Cir. 1996).
57
Id. at 62 ("… [C]ombining a mental disease or defect that is itself insufficient under the IDRA, with the
impermissible consideration of voluntary substance abuse, to result in a valid defense of insanity under the IDRA, is
wholly illogical. This would constitute nothing short of rewarding the voluntary abuse of drugs and alcohol in direct
contradiction of the intent of Congress in passing the IDRA.").
58
United States v. Knott, 894 F.2d 1119, 1122 (9th Cir. 1990).
59
Id. at 1120.
60
Id. at 1123.

17. 16
While the court recognized schizophrenia as a serious mental illness falling within the realm of
the Act, the court reasoned that the defendant’s voluntary intoxication and not his schizophrenia
caused his clouded judgment. This was an insufficient combination for the insanity defense.61
In United States v. Garcia, Garcia was arrested, charged, convicted, and indicted with
possession of a firearm by a convicted felon.62
Garcia suffered from both a series of mental
diseases and defects and voluntary alcoholism and substance abuse.63
Garcia’s friend Maldonado
testified at trial that on the day of the incident, Garcia acted disturbed and devilish, threatening to
blow up the block. He also said paranoid things about Hitler and Communism including,
"They're going to get you, they're going to get me," and, "demons are going to get you."64
Defense psychiatrist Dr. Amble confirmed Garcia’s behavior to be an episodic expression of his
mental disease, a manic phase of delusional thinking resulting from severe bipolar disorder.65
However ultimately, the court concluded that the nine to ten vials of crack cocaine and half pint
of brandy precluded Garcia’s insanity defense, as psychiatric testimony could not consider
defendant’s listed behaviors as necessarily symptomatic of bipolar but as someone obviously
highly intoxicated.66
For legal purposes, multiple personality disorders (MPD) account for the brunt of failed
defenses.67
The court will look at the, “primary, law-abiding personality to know what the
secondary, law-breaking personality was doing,” discounting defendant’s baser states of mind
61
Id. at 1122 (“Insanity that is in any part due to a defendant's voluntary intoxication is not beyond his control.”).
62
Garcia, 94 F.3d at 59.
63
Id. at 60. Garcia also suffered from various other mental defects including organic brain syndrome, secondary
substance abuse, anti-social personality disorder, and substance abuse disorder.
64
Id.
65
Id.
66
Id.
67
Buchanan, supra note 50, at 67.

18. 17
for the purpose of attaching responsibility to the primary.68
The slippery slope is that neither the
doctors nor the judges or fact finders can know which state of mind the defendant was honestly
in at the time the crime was committed or during the trial, as the defendant may be taking
advantage of his condition to evade responsibility. But where the defendant exhibits obvious
symptoms consistent with a MPD diagnosis but yet may not have exacting evidence that his/her
primary personality which is capable of understanding was in control at the time of the offense,
the Tenth Circuit has found that such evidence is enough to at least assert the defense.
In United States v. Denny-Shaffer, defendant Bridget Shaffer appealed a trial court
decision that refused her insanity defense on the grounds that the experts could not identify
whether or not the host personality or the tributary personality reigning at the time of the offense
was unable to appreciate her actions. On appeal, however, the appellate court was persuaded by
the fact that Shaffer’s expert Dr. McCarty could identify five alter-egos by name, clearly
exhibiting the debilitating nature of Shaffer’s condition.69
The court found that the trial court
expert Dr. Conroy’s failure to say definitively whether or not those personalities could or could
not appreciate the wrongfulness of the conduct should not deprive Shaffer’s opportunity at an
instruction of the defense.70
It is unsettling that where a medical expert can say with medical
certainty that a person is severely and seriously ill, a court can choose to overlook such a
blatantly effective illness.
B. Emotion
Bernard Glueck describes the effect of emotional disposition as follows:
68
Id. at 66; See United States v. Denny-Shaffer, 2 F.3d 999, 1016 (10th Cir. 1993) (“Where the evidence would
permit a jury to find that a defendant suffers from multiple personality disorder and that the host personality was
unaware of the criminal conduct at issue and did not participate in or plan that conduct, the jury may … thus return a
verdict of "not guilty only by reason of insanity.").
69
Denny-Shaffer, 2 F.3d at 1007.
70
Id. at 1013.

19. 18
The motives for all indulgence or abstinence in behavior are derived from
emotional tones (pleasurable unpleasurable imagery, attraction and repulsion,
strivings and counter-strivings.) Upon the strength of these feelings depends the
intensity of the emotive, and by the same token, the urge for action. In the battle
of motives, the decision rests with the side which possesses the preponderance of
affectivity.71
Emotional disturbances include those “affective disorders” known as depression and mania, and
are even characteristic of schizophrenia, where mood shifts and beliefs sometimes amounting to
delusions may result in the commission of a crime.72
Again, courts are less empathetic towards
someone with emotional disturbances, as the effects will often include mundane actions like
omissions in everyday life activity. To then excuse the commission of an extraordinary activity
like suicide combined with murder would be unfair.73
C. Impulsiveness
Impulsiveness can best be understood in terms of philosopher and psychologist Johann
Hoffbauer’s description of people who are, “for the main part entirely reasonable persons, with
sound judgment in all matters and without a trace of erroneous sentiment, yet are impelled by an
irresistible force to commit certain actions.74
The most commonly recognized disorder is
obsessive-compulsive disorder (OCD). OCD has its place in everyday, nonviolent compulsions
known as “washing and checking rituals.”75
Regarding compulsions that are criminal in nature,
OCD affects a person’s ability to either resist a criminal impulse or the ritualistic behavior itself
is criminal.76
D. Perception
71
BUCHANAN, supra note 50, at 67-68 (internal citations omitted).
72
Id. at 68-69.
73
Id. at 68.
74
Id. at 70.
75
Id. at 71.
76
Id.

20. 19
Altered perception also results in affective psychoses including depression and
schizophrenia. Perception is the consideration aspect that occurs during cognitive realization. It
allows people to feel emotionally, consider, and then recognize the emotion for purposes of
further acting on it, whether it results in happiness, sadness, anger, or confusion.77
As a result of
altered perception, people may experience hallucinations, which compel actions that may be both
displaced and even criminal.78
E. Thought and belief
Abnormalities resulting from thought and belief can begin at birth or throughout the
lifetime of any given predisposed individual, whether genetically or environmentally. Mental
retardation and autism are the most common disorders and are attributed to abnormal brain
developments or deviations.79
Those that develop dementia during seniority experience a
decreased thought and belief system.80
Other delusionary illnesses will also affect a person’s
thought and belief system.81
F. Attention
Attention includes the capacity to rest the mind (vigilance), focus the mind for particular
spans of time in concentration, pick the focus of those attention spans, and the ability to
terminate those spans and begin anew.82
Schizophrenics and depressed patients report affected
attentions.83
VI. DETATCHING RESPONSIBILITY
77
Id. at 72.
78
Id.
79
Id. at 73.
80
Id. at 74.
81
Id.
82
Id. at 75.
83
Id.

21. 20
“… If an individual lacks the capacity to understand the wrongfulness
of his conduct and to conform to that understanding, he is not accountable for
his acts; therefore, he is not responsible.” 84
Capacity for understanding, “is central to responsibility … such capacity is a
precondition for criminal liability; such capacity lies at the ethical foundations of the finding of
criminal liability.”85
Criminal liability is the result of fault, which causes harm—without the
subjective element of fault, however, there can be no harm for purposes of responsibility. The
insanity defense, therefore, establishes that the actor is not guilty because he, “lacked the
requisite criminal frame of mind in either a specific or a general sense.” 86
Both the law and
medicine allow the defendant that exhibits signs of abnormality or immaturity the opportunity to
excuse their conduct by way of their mental deficiency.87
The insanity defense and its modern variations are only available to the defendant who
submits sufficient proof of mental disease or defect. Because the law presumes that the defendant
is sane88
, the criminal procedural proof structure starts with the presumption of sanity and must
be initially diluted by the defense. Once the defendant provides “some evidence” of mental
abnormality falling within the following statutory and legislative languages, the presumption is
no longer absolute and the government is responsible for proving beyond a reasonable doubt that
the defendant either is not sufficiently impaired by mental disease or defect or that the mental
disease or defect did not cause the defendant to act as he or she did.89
Sanity, like any other
element of a crime, becomes yet another necessary facet of the prosecution’s case.90
A. Statutes
84
DONALD H. J. HERMAN, THE INSANITY DEFENSE: PHILOSOPHICAL, HISTORICAL AND LEGAL PERSPECTIVES 78
(1983).
85
Id.
86
Id. at 4.
87
BUCHANAN, supra note 50, at 67.
88
Blocker v. United States, 288 F.2d 853, 855 (1961).
89
See Carter v. United States, 252 F.2d 608, 614-15 (1957).
90
See Wright v. United States, 250 F.2d 4, 7 (1957).

22. 21
Courts are overtly partial in the face of a statute.91
In In re Buchanan, the California
Supreme Court regards Hugh Buchanan’s sanity as a question of, “whether or not he has become
sane in the sense of the statute.”92
The court reasons that statutory insanity is founded on a
different view of insanity, one that is both distinguished from the medical view for purposes of
criminal proceedings. Ultimately, the court finds Buchanan sane, “within the meaning of the
statute,” to make a defense and stand trial. In the face of blatantly contradictory medical
testimony regarding Buchanan’s lack of appropriate sanity, the court chooses the scripture of the
statute:
The medical testimony based upon these facts is that his brain or its integument was
permanently injured by the sickness above mentioned, and that his condition, has been
such ever since, and will so remain as long as he lives … There is a very strong
preponderance of expert testimony to this effect, and we cannot doubt that the medical
gentlemen who have so testified are competent to decide such matters. But this is a
species of insanity which the statute governing this case does not contemplate.93
Statutes are static and objective. Although the statutes below allow for expert testimony so that
the defendant can plead a fair defense, they often disallow it to carry much weight if any. The
statute is a cookie cutter framework with a one-size-fits-all label for insanity. This goes against
all medical prerogative.
i. Model Penal Code: Article Four
Although each state has its own set of applicable penal codes that may depart with
tributary defenses for insanity, the American Law Institute’s (ALI) Model Penal Code (MPC)
developed in 1962 is still a nationally recognizable criminal codification.94
Article Four
“Responsibility,” establishes the following excuse criteria: “A person is not responsible for
91
In re Buchanan, 61 P. 1120, 1121 (1900) (“The statute is in affirmance of the common-law principle, and the
reason on which the rule rests furnishes a key to what must have been the intention of the legislature.”).
92
Id.
93
Id. at 1122.
94
See United States v. Brawner, 471 F.2.d 969, 984-985 (D.C. Cir. 1972).

23. 22
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 [wrongfulness] of his conduct or to
conform his conduct to the requirements of law.”95
It is noted that any manifestation as a result
of “repeated criminal or otherwise antisocial conduct” is excluded.96
In light of various mental
abnormalities, the effects must either incapacitate the actor’s appreciation for the criminal
wrongdoing or the actor’s ability to act lawfully.
The term “substantial capacity” is ambiguous to the judge, fact finder, and medical expert
alike.97
“Substantial” calls for quantification of, in this case, an intangible and unknowable but
only speculative concept at most— the science, therefore, of finding “substantial capacity,” will
only ever amount to a matter of opinion. The Ninth Circuit voiced its struggle with the
“substantial” standard in a dissent joined by five judges, declaring the ambiguity as not just
confusing but also potentially dangerous:
The modifying word creates more problems than it solves. The explanation is so mystical
that it approaches the supernatural … The difficulty is that the word goes too far and may
well have an impact beyond that intended. How is the jury to know what "substantial"
means? How does anyone know except the user? ... The jury could believe that a twenty-
five percent lack of capacity is "substantial" and acquit one who is otherwise morally
responsible.98
95
MODEL PENAL CODE § 4.01.
96
Id.
97
The “substantial capacity standard” in the MPC test is the result of the judiciary’s struggle to find an adequate,
comprehensive, and universally applicable insanity test to be appreciated by both the courts and the relevant medical
experts. The MPC test is a combination of the M’Naghten Test and the Irresistible Impulse Test. The ALI explains
the evolution in brief: "In addressing itself to impairment of the cognitive capacity, M'Naghten demands that
impairment be complete; the actor must not know. So, too, the irresistible impulse criterion presupposes a complete
impairment of capacity for self-control. The extremity of these conceptions is, we think the point that poses largest
difficulty to psychiatrists when called upon to aid in their administration. The schizophrenic, for example, is
disoriented from reality; the disorientation is extreme; but it is rarely total. Most psychotics will respond to a
command of someone in authority within the mental hospital; they thus have some capacity to conform to a norm.
But this is very different from the question whether they have the capacity to conform to requirements that are not
thus immediately symbolized by an attendant or policeman at the elbow. Nothing makes the inquiry into
responsibility more unreal for the psychiatrist than limitation of the issue to some ultimate extreme of total
incapacity, when clinical experience reveals only a graded scale with marks along the way." Comments, MODEL
PENAL CODE, TENT. DRAFT NO. 4, p. 158 (1955).
98
Wade v. United States, 426 F.2d 64, 77 (9th Cir. 1970).

24. 23
“Substantial” allows the judge, fact finder, and medical experts to all reach different conclusions
based on their conception of what amounts to “substantial capacity.”
The MPC provides further protection for the profile of a defendant outlined in section
4.01, disallowing prosecution where the defendant lacks the capacity to understand the
proceedings or make a defense against them,99
allowing evidence that could negate a state of
mind for specific intent crimes,100
and outlining the protocol for admissible psychiatric testimony
and examination that could ultimately mitigate or completely excuse criminal responsibility.101
The MPC requires a detailed report with what the ALI deems to be legally relevant medical
information.102
If the report shows that the defendant did suffer from a mental disease or defect
as to excuse criminality, the reporting psychiatrists along with other qualified psychiatrists may
take the stand for cross-examination.103
These experts can then make statements about their
examinations regarding the defendant’s mental condition and make any connections between the
condition and criminalized conduct in dispute.104
ii. 18 U.S.C.S §§ 17, 4242
Contrasted with the ALI’s Model Penal Code Article Four test, the insanity defense
99
See MODEL PENAL CODE § 4.03
100
See MODEL PENAL CODE § 4.02.
101
See MODEL PENAL CODE §§ 4.05, 4.07.
102
The report should include the following: “(a) a description of the nature of the examination; (b) a diagnosis of the
mental condition of the defendant; (c) if the defendant suffers from a mental disease or defect, an opinion as to his
capacity to understand the proceedings against him and to assist in his own defense; (d) when a notice of intention to
rely on the defense of irresponsibility has been filed, an opinion as to the extent, if any, to which the capacity of the
defendant to appreciate the criminality [wrongfulness] of his conduct or to conform his conduct to the requirements
of law was impaired at the time of the criminal conduct charged; and (e) when directed by the Court, an opinion as
to the capacity of the defendant to have a particular state of mind that is an element of the offense charged.” MODEL
PENAL CODE § 4.05.
103
Note that the qualified psychiatrist must have examined the defendant in order to testify as an expert opinion on
the defendant’s mental condition or responsibility. See MODEL PENAL CODE § 4.07.
104
The statement should touch on, “the nature of his examination, his diagnosis of the mental condition of the
defendant at the time of the commission of the offense charged and his opinion as to the extent, if any, to which the
capacity of the defendant to appreciate the criminality [wrongfulness] of his conduct or to conform his conduct to
the requirements of law or to have a particular state of mind that is an element of the offense charged was impaired
as a result of mental disease or defect at that time. He shall be permitted to make any explanation reasonably serving
to clarify his diagnosis and opinion and may be cross-examined as to any matter bearing on his competency or
credibility or the validity of his diagnosis or opinion.” Id.

25. 24
provided by the Insanity Defense Reform Act of 1984 (The Act)105
narrows the scope of
disorders to include only those which are “severe.” The Act shifts the burden of proof to the
defendant and excludes the defendant that could appreciate the quality and wrongfulness of his
act but lacked the ability to conform to society’s standard of safe or appropriate conduct.106
While the prosecution bears the burden of proving criminality, the defendant bears the
burden of proving insanity. The defendant must meet the two-prong test as set out in the statute
and further articulated in United States v. Knott: “First, he must establish that he suffered from a
serious mental disease or defect at the time of the crime … Second, his mental disease or defect
must have prevented him from appreciating the nature and quality or wrongfulness of his acts.”
107
Upon such a showing, the jury shall be instructed to reach any of the following verdicts
regarding the defendant’s criminal responsibility: Guilty, not guilty, or not guilty by reason of
insanity (NGRI).108
The Supreme Court recognizes these acquitees as a subclass of defendants,
“that should be treated differently from other candidates for commitment.”109
B. Expanding the Insanity Defense: From NGRI to “Diminished capacity” and “guilty
but mentally ill (GBMI)”
i. Not guilty by reason of insanity (NGRI): A floor with no ceiling
The NGRI verdict acquits a defendant from criminal liability and imposes a form of civil
liability equated with that of a tort feasor. In Jones v. United States, the Supreme Court stated
105
18 U.S.C.S. § 4242 (LexisNexis, Lexis Advance through PL 114-248, approved 11/28/16) ((a) Affirmative
defense. It is an affirmative defense to a prosecution under any Federal statute that, at the time of the commission of
the acts constituting the offense, the defendant, as a result of a severe mental disease or defect, was unable to
appreciate the nature and quality or the wrongfulness of his acts. Mental disease or defect does not otherwise
constitute a defense.
(b) Burden of proof. The defendant has the burden of proving the defense of insanity by clear and convincing
evidence.).
106
PERLIN, supra note 23, at 639 n.175.
107
United States v. Knott, 894 F.2d 1119, 1121 (9th Cir. 1990).
108
18 U.S.C.S. § 4242.
109
See Jones v. United States, 463 U.S. 354, 370 (1983).

26. 25
that, “[t]he purpose of commitment following an insanity acquittal, like that of civil commitment,
is to treat the individual’s mental illness and protect him and society from his potential
dangerousness.”110
Under a NGRI verdict, the Supreme Court finds that the defendant committed
an act that constituted a criminal offense due to mental illness that the defendant has proven,
beyond a preponderance of the evidence, existed at the time the offense was committed.111
The
Court considers commission of the act indicative of dangerousness, yet nonetheless still
considers the defendant criminally blameless.112
The Court further holds that the defendant, “whose mental illness was sufficient to lead
him to commit a criminal act is likely to remain ill and in need of treatment,” therefore validating
therapeutic versus punitive commitment followed by a series of post-commitment hearings.113
In
O’Connor v. Donaldson, the Supreme Court considered the constitutionality of indefinite
involuntary civil commitment and concluded that the duration be dictated by the defendant’s
regaining his sanity or no longer being a danger to himself or society.114
The defendant is
afforded a hearing within 50 days of his commitment. Once the defendant is harmless but
mentally ill, it is unconstitutional for any state to further restrict his civil liberties as guaranteed
by Due Process.115
The NGRI verdict is a rather paternalistic approach to criminal law that has been
ridiculed by many jurisdictions as inconsiderate towards the rest of society. Paul Robinson refers
to this as the “dangerous blameless offender” problem: defendants, who have committed
dangerous crimes yet are considered criminally blameless, have the ability to filter back into
110
Id. at 368.
111
Id. at 363.
112
Id. at 363-364.
113
Id. at 366 (“We therefore conclude that a finding of not guilty by reason of insanity is a sufficient foundation for
commitment of an insanity acquittee for the purposes of treatment and the protection of society.”).
114
O’Connor v. Donaldson, 422 U.S. 563 (1975).
115
Id. at 574-575; Jackson v. Indiana, 406 U.S. 715, 738 (1972) (Due Process, "requires that the nature and duration
of commitment bear some reasonable relation to the purpose for which the individual is committed.").

27. 26
society without facing retribution or undergoing sufficient rehabilitative measures.116
Based on
the classic theories of punishment, the criminal justice system fails to uphold its protectionist
purpose when it allows these defendants expedited access to freedom after an NGRI acquittal.
They can neither decipher between right and wrong nor can they appreciate the devastating
consequences of their actions therefore rendering them likely recidivists.
In Foucha v. Louisiana, petitioner Terry Foucha challenged the constitutionality of
Louisiana’s NGRI verdict.117
Foucha was charged with aggravated burglary and illegal discharge
of a firearm, but upon finding that he was both unable to distinguish between right and wrong
and unable to appreciate the wrongfulness and consequences of his actions due to an antisocial
personality disorder, the court acquitted him under the NGRI verdict. Because they still
considered him dangerous although criminally blameless, the court ordered that Foucha be
committed to a state forensic facility (psychiatric hospital). 118
Per Louisiana law, Foucha would
remain there until the doctors found that he was no longer a danger to himself or society and
could recommend his release. The Supreme Court held that once the State’s basis for holding
Foucha at the psychiatric facility no longer existed as supported by psychiatric assessment
rendering Foucha no longer mentally ill, continuing to hold Foucha involuntarily under civil
commitment violated Due Process.119
Some jurisdictions have adopted hybrid verdicts like guilty but mentally ill and
diminished capacity to mitigate the unsatisfactory rigidity of the verdicts listed in 18 U.S.C.S. §
4242 including the NGRI verdict as criticized above. These verdicts depart to meet the standards
set forth by certain jurisdictions and their populations’ subjective wants and needs.
116
ROBINSON, supra note 51, at 693.
117
Foucha v. Louisiana, 504 US. 71 (1992).
118
Id. at 73, 74.
119
Id. at 78 79.

28. 27
i. Diminished Capacity variant
The diminished capacity doctrine is a short cut to the insanity defense—it is accessible to
the defendant who has not procedurally plead insanity and jumped through all of the loopholes
set out in the MPC and U.S.C.S. The diminished capacity defense works by showing a, “mental
abnormality at trial either to negate a mental element of the crime charged, thereby exonerating
the defendant of that charge, or to reduce the degree of crime for which the defendant may be
convicted, even if the defendant's conduct satisfied all the formal elements of a higher
offense.”120
The diminished capacity defense comes to light in 18 U.S.C.S. app. §5K2.13 but is
capped at the “non-violent” offense and only applicable to the actor with “significantly reduced
mental capacity”.121
Courts have struggled with the ambiguity of “non-violent offense.” They
have, however, defaulted to the following definition for any “crime of violence” and deviate
from there: "any offense under federal or state law punishable by imprisonment for a term
exceeding one year that . . . has as an element the use, attempted use, or threatened use of
physical violence against the person of another."122
Courts have also struggled with the
ambiguity of “significantly reduced mental capacity.” The Sixth and Ninth Circuits’
interpretations are directly opposed. The Sixth Circuit has blatantly declined to consider mental
illnesses as falling under the umbrella of “significantly reduced mental capacity.”123
The Ninth
Circuit, in light of the American Psychiatric Association’s classification system, includes both
intellectual/mental and emotional disorders as considerable impairments for purposes of
120
MORSE, supra note 31, at 1.
121
7 FED. SENT. R. 193 (“If the defendant committed a non-violent offense while suffering from significantly
reduced mental capacity not resulting from the voluntary use of drugs or other intoxicants, a lower sentence may be
warranted to reflect the extent to which the reduced mental capacity contributed to the commission of the offense,
provided that the defendant's criminal history does not indicate a need for incarceration to protect the public.”).
122
Id.
123
United States v. Hamilton, 949 F.2d 190 (6th Cir. 1991).

29. 28
§5k2.13.124
These discrepancies in statutory application highlight conflicts internal to the judicial
system. But despite how much challenge these inconsistencies undergo, they often remain
unchanged because local jurisdiction allows for infinite interpretation.
ii. Guilty but mentally ill (GBMI) variant
The guilty but mentally ill verdict is as an alternative to the NGRI verdict.125
Defendants
have challenged the constitutionality of the GBMI verdict, claiming it creates a classification for
those who are mentally ill and further restricts their fundamental liberties by imposing
mandatory psychiatric treatment.126
Michigan Supreme Court, however, has found the legislature
to be helpful and constitutional. In People v. McLeod, the court describes a rather paternalistic
agenda, which suggests that the purpose of the verdict is a more treatment-based medical
approach rather than legal and retribution-based.127
The GBMI verdict has been adopted by states
that feel society is negatively affected when someone who causes havoc, by way of otherwise
criminalized conduct but for the defendant’s mental condition, is excused from liability and then
allowed to rejoin the general population.
The GBMI verdict operates by, “by diverting mentally ill offenders from civil to criminal
commitment.”128
Like the guilty verdict, the GBMI verdict allows for criminal commitment
coupled with a treatment-like feature. The court may require these individuals to undergo
124
United States v. Cantu, 12 F.3d 1506 (9th Cir 1993).
125
See ALASKA STAT. § 12.47.040(B) (1984); GA.CODE ANN. § 17-7-131; IND.CODE ANN. §§ 35-36-1-1 to 35-36-2-
5; KY. REV. STAT. ANN. § 504.130 (Baldwin 1985); MICH.COMP.LAWS ANN. §§ 768.36, 768.29, 330.2050(1); 18
PA.C.S. § 314.
126
See People v. McLeod, 288 N.W.2d 909 (1980); People v. Sorna, 276 N.W.2d 892 (1979); People v. Darwall,
267 N.W.2d 472 (1978).
127
McLeod, 288 N.W.2d at 919 (1980) (“It is apparent that the Legislature's object in creating this new verdict was
to assure supervised mental health treatment and care for those persons convicted under the laws of our state who
are found to be suffering from mental illness, in the humane hope of restoring their mental health and possibly
thereby deterring any future criminal conduct on their part.”).
128
ROBINSON, supra note 51, at 702.

30. 29
psychiatric evaluations and treatment, and can even impose post-release treatment obligations.129
GBMI sentencing raises various Due Process issues surrounding involuntary treatment. The
Supreme Court dictates a three-part balancing test that considers the individuals’ interests, the
likelihood that these individuals will undergo “erroneous denial of those interests” in the face of
“additional or alternative procedural safeguards,” and the state’s interest in imposing
treatment.130
The First Circuit describes the GBMI verdict as a protective public vehicle against, “…
violence inflicted by persons with mental ailments who slipped through the cracks in the criminal
justice system.”131
Michigan first enacted the GBMI verdict after People v. McQuillan.132
These
various GMBI statutes address a departure from legal insanity that accommodates both the
potentially still dangerous ill offender that should not necessarily be released into prison’s
general population or be released to walk free amongst the rest of society.
CONCLUSION
The trend of mass incarceration, as illustrated by 2014 statistics, shows that 73% of
women and 55% of men in state prisons, 61% of women and 44% of men in federal prisons, and
75% of women and 63% of men in local jails suffer from mental health problems.133
Our
tendency to overgeneralize criminality and dismiss the effectiveness of alternative theories of
punishment outside of retribution is attributing to an escalating rate of incarceration that
threatens both the economic stability of society and the health of mentally ill individuals. In
129
ROGER GEORGE FREY, NOTE: THE GUILTY BUT MENTALLY ILL VERDICT AND DUE PROCESS, 92 YALE L.J 475,
476-77 (1983).
130
Id. at 480-81; See Mathews v. Eldridge, 424 U.S. 319, 335 (1976).
131
People v. Seefeld, 290 N.W.2d 123, 124 (1980).
132
MICH.COMP.LAWS ANN. §§ 768.36, 768.29, 330.2050(1) (West Supp.1986); People v. McQuillan, 221 N.W.2d
569, 579, 586 (1974). (Michigan state’s automatic commitment statute is found to be unconstitutional where a
defendant who was found to be insane at the time of the offense and is therefore excused under a NGRI verdict can
be civilly committed and then discharged at 60 days pending a subsequent sanity hearing.)
133
SARAH VARNEY, KAISHER HEALTH, BY THE NUMBERS: MENTAL ILLNESS BEHIND BARS (May 15, 2014),
http://www.pbs.org/newshour/updates/numbers-mental-illness-behind-bars/.

31. 30
United States v. Freeman, the Second Circuit said that, “none of the three asserted purposes of
the criminal law—rehabilitation, deterrence and retribution—is satisfied when the truly
irresponsible, those who lack substantial capacity to control their actions, is punished.”134
In
order for the insanity defense to truly serve its purpose within the criminal justice system, the
law and medicine must begin to accord.
The potential for not just interdependence but agreement between law and medicine
means an optimistic future for the criminal justice system. It proposes a better system that is
understandable, workable, and rehabilitative. But courts are hesitant to put the faith of a system
so engrained in history and text into a discipline that is constantly in flux and at times unwritten
and unexplainable. Medical experts are skeptical of the unsympathetic nature of the legal system
and are frustrated by the way the courts treat their professional opinions. Despite their
differences, courts and medical experts must work together to find a solution to this epidemic of
mass incarceration. Neither the law nor medicine is serving its purpose when ill offenders are not
only punished but also left untreated. While criminal law wears different hats- rehabilitation,
deterrence, and retribution- it should choose the rehabilitative hat in criminal proceedings that
deal with this particularly vulnerable subclass of individuals. And maybe then, the law and
medicine can meet halfway and come up with a hybrid medico-legal solution that treats these
individuals and still protects the rest of society.
134
United States v. Freeman, 357 F.2d 606, 615 (1966).