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  • Michael Mullan

Why the Insanity Defense Should not be Abolished

At the beginning of April I made my last presentation of my first year of my SJD at American University Washington School of Law. The title of my presentation was: “Calls to Abolish the Insanity Defense: An American Criminal Law and Human Rights Perspective”. I believe it is imperative, and arguably constitutionally required, that the insanity defense is maintained in U.S. criminal law.


As a matter of equality, defendants with a mental illness are situated differently than defendants without a mental illness and so they should be treated differently through the insanity defense. The insanity defense recognizes that those with a mental illness do not have the same culpability or blameworthiness as defendants who don’t have a mental illness. As a matter of law, and as expressed by the different insanity defense, by definition defendants with a mental illness do not understand what they are doing, do not understand what they are doing is wrong or cannot control their behavior. Our criminal justice operates on the assumptions that criminal actors act out of free will and that they are rational actors. This is simply not the case for those with a mental illness. Often their mental illness will compel them to commit crime, for example if a defendant who is schizophrenic suffers from auditory hallucinations and subjectively believes God is commanding him or her to commit a crime. Their mental illness often also means they are acting irrationally.



When we apply the traditional rationales of punishment to these defendants, we can really appreciate why they are deserving of special treatment by the criminal law through the insanity defense. In terms of retribution, the desert principle requires that we punish according to differing levels of culpability and deservedness. The U.S. courts have found in the Tison case that: “[t]he heart of the retribution rationale is that a criminal sentence must be directly related to the personal culpability of the criminal offender.” Defendants with a mental illness are simply not as deserving of a prison sentence as those who commit crimes free of mental illnesses. The retributive rationale also requires proportionality between similar offenders. As a corollary of this, there should be different treatment for differently situated offenders. In terms of deterrence, due to a lack of control and understanding, defendants with mental illnesses are simply not as effectively deterred when compared to ordinary potential offenders. In terms of crime control, the deterrence objective can be achieved through less intrusive means such as civil commitment. The same can be said for incapacitation. Even if a defendant with a mental illness commits a serious crime and so poses a danger to the community (the statistical likelihood of this is low), then civil commitment can ensure the defendant is safely institutionalized and receiving treatment. The insanity defense, and in particular its consequence of sending defendants to psychiatric hospitals, is essentially rehabilitative in nature. It allows for the defendant to be diverted away from prison into receiving treatment in a psychiatric institution. Here the defendant is more likely to be reformed through medication and counselling.

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