Stare DCisis: The Best Offense Is a Good Defect
Tom Cruise may think psychiatry is bunk, but luckily for today's mentally ill defendants, one D.C. court is responsible for reminding us of its place in the law. Judge David Bazelon (at right), one of the greats of the D.C. Circuit Court of Appeals, single-handedly reshaped the insanity defense. The old rule, a British import, simply did not fit with the state of medicine in 1954. Though Bazelon's new rule placed great faith in science, history has shown that Americans today are still not quite comfortable accepting it.
Monte W. Durham was charged with breaking into a D.C. house in 1951. Durham had been arrested on other charges before but had been committed to St. Elizabeth's Hospital, where he was diagnosed as psychotic. Though eventually discharged from the hospital as mentally sound, Durham claimed he still suffered hallucinations and tested again as psychotic after he was indicted. He was nevertheless judged competent to stand trial and was convicted.
The trial court, sitting without a jury, applied what had been the standard insanity test since 1843. The M'Naughten rule, as it was called, was a product of Victorian morality and psychological theories. It held that the accused could only claim insanity as a defense if, at the time of the crime, he didn't know the difference between right and wrong. As psychiatry became a more developed field, the M'Naughten rule became increasingly difficult to apply. Expert witnesses, with better information on mental diseases, spoke only in terms of shades of gray. The expert in Durham's trial could not conclusively answer whether Durham knew right from wrong at the time. The prosecution's burden of proof had been met.
The appeal featured two of America's great legal practitioners in their prime. Durham was represented by Abe Fortas, who would later sit on the Supreme Court, and Judge David Bazelon, a great innovator in the field of defendant's rights, delivered the opinion reversing the conviction.
Bazelon recognized the shortcomings of the M'Naughten "right-wrong" test:
The science of psychiatry now recognizes that a man is an integrated personality and that reason, which is only one element in that personality, is not the sole determinant of his conduct. The right-wrong test, which considers knowledge or reason alone, is therefore and inadequate guide to mental responsibility for criminal behavior.
The "right-wrong" test considered only the defendant's cognitive abilities. As a result, juries and judges received inadequate, and often completely contorted, testimony from psychiatrists. A defendant could know right from wrong but be unable to act in accordance with his morals, for example. Even a newly developed test, which allowed a defendant to be acquitted if he had acted under an "irresistible impulse" failed to capture the fact that mental illness comes in many forms other than spontaneous, outbursts of impulsive actions. Scientific experts were clamoring for a change in the law.
The new test, fashioned by Bazelon, held that a defendant could not be criminally responsible if his unlawful act was the product of mental disease or defect. Under this standard, psychiatrists could testify openly and honestly, and juries could still, theoretically, determine blameworthiness, though guided strongly by the medical evidence.
Bazelon's opinion met with great acclaim initially - Supreme Court Justices Brennan and Douglas praised the rule as a "meeting ground for lawyers and psychiatrists" in various law review articles. As one judge later wrote, the disease and defect test "swept away the intellectual debris of a century and articulated a test which was as simple in its formulation as its sources were complex."
Nevertheless, state courts and even federal courts, including the D.C. Circuit, have since ignored or replaced the rule. They have gone back to tests that resemble the older M'Naughten rule or draw from the Model Penal Code, which recognizes both a cognitive ("right-wrong") and volitional ("irresisitible impulse") element.
The reason for the rule's demise: it took away decisionmaking power from juries and gave it to psychiatrists serving as experts at trial. Any disease or defect, and the jury had to acquit. In a way, one judge noted, Bazelon's test was almost as black-and-white as the ones it replaced. We may chide Mr. Cruise-Holmes for his arrogant dismissal of psychiatry, but, when it comes to criminal trials in this country, we do not necessarily have high horse left to ride.