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  • Michael Mullan

Arguments why the insanity defense should be abolished and counter-arguments.

Certain academics believe that the insanity defense should be abolished. Such abolitionists believe as a matter if equality, offenders with a mental illness should be treated the same as offenders without a mental illness. They believe that the insanity defense undermines the decision-making capacity and autonomy of such defendants. They are approaching the situation from a human rights perspective, in particular from the point of view of the UN Convention on the Rights of Persons with Disabilities (CRPD).

Michael Perlin believes that what these abolitionists find most troubling is the discriminatory consequences of the insanity rather than the insanity defense per se. These consequences include indefinite detention, involuntary treatment and stigma.

Christopher Slobogin of Vanderbilt Law School has said that “if the decisions they make violate a criminal law, they are to pay the consequences to the extent everyone else does.” Tina Minkowitz the founder of the Center for the Human Rights of Users and Survivors of Psychiatry has commented that “capacity to be held accountable for harm... is a corollary of the capacity to exercise rights” and is a corollary of our “mutual obligations towards others”. These commentators have found great support in the UN Office of the High Commissioner on Human Rights who has found that the CRPD and the “recognition of the legal capacity of persons with disabilities requires abolishing a defence based on the negation of criminal responsibility.”

One of the alternatives put forward by the abolitionists is known as the mens rea alternative. This approach has been undertaken in 5 U.S. states and by the jurisdiction of Sweden. Under such a model, evidence of a mental illness will only become admissible and relevant in a criminal trial in so far as it negates the mens rea element of the crime in question, such as intention for murder. There would be no special defense for those with a mental illness in this model, but also in the alternative model known as “integrationism” put forward by Slobogin. Under integrationism, a defendant with a mental illness will only be able to avail of the generic defenses available to all defendants, which as disability-neutral. However, if due to a mental illness, for example due to schizophrenic hallucinations a defendant subjectively feels they are under threat, they would be able to avail of the self-defense doctrine or the duress defense.


Michael Perlin is leading the way in providing counter-arguments to abolitionism. He believes that the insanity defense is well intentioned and is actually required under the CRPD is a holistic interpretation is taken. He believes that the abolitionists and th UN OHCHR are approaching the problem by focusing solely on certain CRPD articles in isolation.

More generally, Bonnie has said that the insanity defense is central to our “beliefs about human rationality, deterrability, and free will.” The U.S. courts have held in State v. Curry that the insanity defense “goes to the very root of our criminal justice system.” Perlin believes that the insanity defense undermines the fair trial rights and due process concerns of defendants with mental illnesses and that it goes against “millennia of experience.”

Perlin argues strongly that abolitionism will lead to a reduction in the amount of times mental illness evidence will be introduced in U.S. criminal trials. This in turn will result in an increase in conviction rates and imprisonment of persons with mental illness. Interestingly, he also argues that abolitionism will also result in increased torture of prisoners with mental illnesses. He makes this argument based on current existing data that prisoners with a mental illness are disproportionately physically and sexually abused by prison guards and other prisoners.

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