Courts and Criminals

Nearly two years had elapsed since the homicide; over a hundred thousand dollars had been spent upon the case; every corner of the community had been deluged with detailed accounts of unspeakable filth and depravity; the moral tone of society had been depressed; and the only element which had profited by this whole lamentable and unnecessary proceeding had been the sensational press. Yet the sole reason for it all was that the law of the land in respect to insane persons accused of crime was hopelessly out of date.

The question of how far persons who are victims of diseased mind shall be held criminally responsible for their acts has vexed judges, jurors, doctors, and lawyers for the last hundred years. During that time, in spite of the fact that the law has lagged far behind science in the march of progress, we have blundered along expecting our juries to reach substantial justice by dealing with each individual accused as most appeals to their enlightened common sense.

And the fact that they have obeyed their common sense rather than the law is the only reason why our present antiquated and unsatisfactory test of who shall be and who shall not be held "responsible" in the eyes of the law remains untouched upon the statute-books. Because its inadequacy is so apparent, and because no experienced person seriously expects juries to apply it consistently, it fairly deserves first place in any discussion of present problems.

Thanks to human sympathy, the law governing insanity has had comparatively few victims, but the fact remains that more than one irresponsible insane man has swung miserably from the scaffold. But "hard cases" do more than "make bad law," they make lawlessness. A statute systematically violated is worse than no statute at all, and exactly in so far as we secure a sort of justice by evading the law as it stands, we make a laughing-stock of our procedure.

The law is, simply, that any person is to be held criminally responsible for a deed unless he was at the time laboring under such a defect of reason as not to know the nature and quality of his act and that it was wrong.

This doctrine first took concrete form in 1843, when, after a person named McNaughten, who had shot and killed a certain Mr. Drummond under an insane delusion that the latter was Sir Robert Peel, had been acquitted, there was such popular uneasiness over the question of what constituted criminal responsibility that the House of Lords submitted four questions to the fifteen judges of England asking for an opinion on the law governing responsibility for offences committed by persons afflicted with certain forms of insanity. It is unnecessary to set forth at length these questions, but it is enough to say that the judges formulated the foregoing rule as containing the issue which should be submitted to the jury in such cases.11

Question 1.—"What is the law respecting alleged crimes committed by persons afflicted with insane delusion in respect of one or more particular subjects or persons, as, for instance, where, at the time of the commission of the alleged crime, the accused knew he was acting contrary to law, but did the act complained of with a view, under the influence of insane delusion, of redressing or revenging some supposed grievance or injury, or of producing some supposed public benefit?

Answer 1.-"Assuming that your lordships' inquiries are confined to those persons who labor under such partial delusions only, and are not in other respects insane, we are of opinion that, notwithstanding the accused did the act complained of with a view, under the influence of insane delusion, of redressing or revenging some supposed grievance or injury, or of producing some public benefit, he is, nevertheless, punishable, according to the nature of the crime committed, if he knew at the time of committing such crime that he was acting contrary to law, by which expression we understand your lordships to mean the law of the land.

Question 4:—"If a person under an insane delusion as to existing facts commits an offence in consequence thereof, is he thereby excused?

Answer 4.—"The answer must of course depend on the nature of the delusion; but, making the same assumption as we did before, namely, that he labors under such partial delusion only, and is not in other respects insane, we think he must be considered in the same situation as to responsibility as if the facts with respect to which the delusions exist were real. For example, if under the influence of his delusion he supposes another man to be in the act of attempting to take away his life, and kills the man, as he supposes in self-defence, he would be exempt from punishment. If his delusion was that the deceased had inflicted a serious injury to his character and fortune, and he killed him in revenge for such supposed injury, he would be liable to punishment.

Question 2.—"What are the proper questions to be submitted to the jury when a person, afflicted with insane delusions respecting one or more particular subjects or persons, is charged with the commission of a crime (murder, for instance), and insanity is set up as a defence?

Question 3.—"In what terms ought the question to be left to the jury as to the prisoner's state of mind when the act was committed?

Answers 2 and 3.—"As these two questions appear to us to be more conveniently answered together, we submit our opinion to be that the jurors ought to be told, in all cases, that every man is presumed to be sane, and to possess a sufficient degree of reason to be responsible for his crimes, until the contrary be proved to their satisfaction; and that, to establish a defence on the ground of insanity it must be clearly proved that at the time of committing the act the accused was 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 he was doing what was wrong." (The remainder of the answer goes on to discuss the usual way the question is put to the jury.)

Now, with that commendable reverence for judicial utterance which is so characteristic of the English nation, and is so conspicuously absent in our own country, it was assumed until recently that this solemn pronunciamento was the last word on the question of criminal responsibility and settled the matter once and forever. Barristers and legislators did not trouble themselves particularly over the fact that in 1843 the study of mental disease was in its infancy, and judges, including those of England, probably knew even less about the subject than they do now. In 1843 it was supposed that insanity, save of the sort that was obviously maniacal, necessitated "delusions," and unless a man had these delusions no one regarded him as insane. In the words of a certain well-known judge:

"The true criterion, the true test of the absence or presence of insanity, I take to be the absence or presence of what, used in a certain sense of it, is comprisable in a single term, namely, delusion.... In short, I look on delusion .... and insanity to be almost, if not altogether, convertible terms."12

This in a certain broad sense, probably not intended by the judge who made the statement, is nearly true, but, unfortunately, is not entirely so.

The dense ignorance surrounding mental disease and the barbarous treatment of the insane within a century are facts familiar to everybody. Lunatics were supposed to be afflicted with demons or devils which took possession of them as retribution for their sins, and in addition to the hopelessly or maniacally insane, medical science recognized only a so-called "partial" or delusionary insanity. Today it would be regarded about as comprehensive to relate all mental diseases to the old-fashioned "delusion" as to regard as insane only those who frothed at the mouth.

But the particular individual out of whose case in 1843 arose the rule that is in 1908 applied to all defendants indiscriminately was the victim of a clearly defined insane delusion, and the four questions answered by the judges of England relate only to persons who are "afflicted with insane delusions in respect to one or more particular subjects or persons." Nothing is said about insane persons without delusions, or about persons with general delusions, and the judges limit their answers even further by making them apply "to those persons who labor under such partial delusion only and are not in other respects insane"—a medical impossibility.

Modern authorities agree that a man cannot have insane delusions and not be in other respects insane, for it is mental derangement which is the cause of the delusion.

In the first place, therefore, a fundamental conception of the judges in answering the questions was probably fallacious, and in the second, although the test they offered was distinctly limited to persons "afflicted with insane delusions," it has ever since been applied to all insane persons irrespective of their symptoms.

Finally, whether the judges knew anything about insanity or not, and whether in their answers they weighed their words very carefully or not, the test as they laid it down is by no means clear from a medical or even legal point of view.

Was the accused laboring under such a defect of reason as not to know the nature and quality of the act he was doing, or not to know that it was wrong? What did these judges mean by know?

What does the reader mean by know? What does the ordinary juryman mean by it?

We are left in doubt as to whether the word should be given, as justice Stephens contended it should be, a very broad and liberal interpretation such as "able to judge calmly and reasonably of the moral or legal character of a proposed action,"13 or a limited and qualified one. There are all grades and degrees of "knowledge," and it is more than probable that there is a state of mind which I have heard an astute expert call upon the witness stand "an insane knowledge," and equally obvious that there may be "imperfect" nor "incomplete knowledge," where the victim sees "through a glass darkly." Certainly it seems far from fair to interpret the test of responsibility to cover a condition where the accused may have had a hazy or dream-like realization that his act was technically contrary to the law, and even more dangerous to make it exclude one who was simply unable to "judge calmly and reasonably" of his proposed action, a doctrine which could almost be invoked by any one who committed homicide in a state of anger.

Ordinarily the word is not defined at all and the befuddled juryman is left to his own devices in determining what significance he shall attach not only to this word but to the test as a whole.

An equally ambiguous term is the word "wrong." The judges made no attempt to define it in 1843, and it has been variously interpreted ever since. Now it may mean "contrary to the dictates of conscience" or, as it is usually construed, "contrary to the law of the land"—and exactly what it means may make a great difference to the accused on trial. If the defendant thinks that God has directed him to kill a wicked man, he may know that such an act will not only be contrary to law, but also in opposition to the moral sense of the community as a whole, and yet he may believe that it is his conscientious duty to take life. In the case of Hadfield, who deliberately fired at George III in order to be hung, the defendant believed himself to be the Lord Jesus Christ, and that only by so doing could the world be saved. Applying the legal test and translating the word "wrong" as contrary to the common morality of the community wherein he resided or contrary to law, Hadfield ought to have achieved his object and been given death upon the scaffold instead of being clapped, as he was, into a lunatic asylum.

On the other hand, if the word "wrong" is judicially interpreted, it would seem to be given an elasticity which would invite inevitable confusion as well as abuse.

Moreover, the test in question takes no cognizance of persons who have no power of control. The law of New York and most of the states does not recognize "irresistible impulses," but it should admit the medical fact that there are persons who, through no fault of their own, are born practically without any inhibitory capacity whatever, and that there are others whose control has been so weakened, through accident or disease, as to render them morally irresponsible,—the so-called psychopathic inferiors.

Most of us are only too familiar with the state of a person just falling under the influence of an anesthetic, when all the senses seem supernaturally acute, the reasoning powers are active and unimpaired, and the patient is convinced that he can do as he wills, whereas, in reality, he says and does things which later on seem impossible in their absurdity. Such a condition is equally possible to the victim of mental disease, where the knowledge of right and wrong has no real relevancy.

The test of irresponsibility as defined by law is hopelessly inadequate, judged by present medical knowledge. There is no longer any pretence that a perception of the nature and quality of an act or that it is wrong or right is conclusive of the actual insanity of a particular accused. In a recent murder case a distinguished alienist, testifying for the prosecution, admitted that over seventy per cent. of the patients under his treatment, all of whom he regarded as insane and irresponsible, knew what they were doing and could distinguish right from wrong.

Countless attempts have been made to reconcile this obvious anachronism with justice and modern knowledge, but always without success, and courts have wriggled hard in their efforts to make the test adequate to the particular cases which they have been trying, but only with the result of hopelessly confounding the decisions.

But, however it is construed, the test as laid down in 1843 is insufficient in 1908. Medical science has marched on with giant strides, while the law, so far as this subject is concerned, has never progressed at all. It is no longer possible to determine mental responsibility by any such artificial rule as that given by the judges to the Lords in McNaughten's case, and which juries are supposed to apply in the courts of today. I say "supposed," for juries do not apply it, and the reason is simple enough—you cannot expect a juryman of intelligence to follow a doctrine of law which he instinctively feels to be crude and which he knows is arbitrarily applied.

No juryman believes himself capable of successfully analyzing a prisoner's past mental condition, and he is apt to suspect that, however sincere the experts on either side may appear, their opinions may be even less definite than the terms in which they are expressed. The spectacle of an equal number of intellectual-looking gentlemen, all using good English and all wearing clean linen, reaching diametrically opposite conclusions on precisely the same facts, is calculated to fill the well-intentioned juror with distrust. Painful as it is to record the fact, juries are sometimes almost as sceptical in regard to doctors as they always are in regard to lawyers.

The usual effect of the expert testimony on one side is to neutralize that on the other, for there is no practical way for the jury to distinguish between experts, since the foolish ones generally look as learned as the wise ones. The result is hopeless confusion on the part of the juryman, an inclination to "throw it all out," and a resort to other testimony to help him out of his difficulty. Of course he has no individual way of telling whether the defendant "knew right from wrong," whatever that may mean, and so the ultimate test that he applies is apt to be whether or not the defendant is really "queer," "nutty" or "bughouse," or some other equally intelligible equivalent far "medically insane."

The unfortunate consequence is that there is so general and growing a scepticism about the plea of insanity, entirely apart from its actual merits, that it is difficult in ordinary cases, whatever the jurors may think or say in regard to the matter, to secure twelve men who will give the defence fair consideration at the outset.

This is manifest in frequent expressions from talesmen such as: "I think the defence of insanity is played out," or "I believe everybody is a little insane, anyhow" (very popular and regarded by jurymen as witty), or "Well, I have an idea that when a fellow can't cook up any other defence he claims to be insane."

The result is a rather paradoxical situation: The attitude of the ordinary jury in a homicide case, where the defence of insanity is interposed, is usually at the outset one of distrust, and their impulse is to brush the claim aside. This tendency is strengthened by the legal presumption, which the prosecutor invariably calls to their attention, that the defendant is sane. Every expert who has testified for the defence in the ordinary "knock down and drag out" homicide case must have felt with the prisoner's attorneys, that it was "up to them" not so much to create a doubt of the defendant's sanity as to prove that he was insane, if they expected consideration from the jury.

Now let us assume that the defence is meritorious and that the prisoner's experts have created a favorable impression. Let us go even further and assume that they have generated a reasonable doubt in the mind of the jury as to the defendant's responsibility at the time he committed the offence. What generally occurs? Not, as one would suppose, an acquittal, but, in nine cases out of ten, a conviction in a lower degree.

The only usual result of an honest claim of irresponsibility on the ground of insanity is to lead the jury to reduce the grade of the offence from murder in the first, entailing the death penalty, to murder in the second degree. The jury have no intention of "taking the chance" involved in turning the man loose on the community and their minds are filled with the predominating fact that a human being has been killed. They have an idea that it is as easy to get "sworn out" of a lunatic asylum as they suppose it is to get "sworn into" one, and they know that if the prisoner is found to be insane when sent to State's prison he will be transferred elsewhere. They, therefore, as a rule, waste little time upon the question of how far the defendant was irresponsible within the legal definition when he committed the deed, but convict him "on general principles," trusting the prison officials to remedy any possible injustice. The jury in such cases ignore the law and decline either to acquit or to convict in accordance with the test. Their action becomes rather that of a lay commission condemning the prisoner to hard labor for life on the ground that he is medically insane.

Assuming that the jury take the defence seriously, there is only one class of cases where, in the writer's opinion, they follow the legal test as laid down by the court—that is to say, in cases of extreme brutality. Here they hold the prisoner to the letter of the law, and the more abhorrent the crime (even where its nature might indicate to a physician that the accused was the victim of some sort of mania) the less likely they are to acquit. The writer has prosecuted perhaps a dozen homicide and other cases where the defence was insanity. In his own experience he has known of no acquittal. In several instances the defendants were undoubtedly insane, but, strictly speaking, probably vaguely knew the nature and quality of their acts and that they were wrong. In a few of these the juries convicted of murder in the first degree because the circumstances surrounding the homicides were so brutal that the harshness of the technical doctrine they were required to apply was overshadowed in their minds by their horror of the act itself. In other cases, where either the accused appeared obviously abnormal as he sat at the bar of justice, or the details of the crime were less abhorrent, they convicted of murder in the second degree in accordance with the reasoning set forth in the foregoing paragraph. The writer seriously advances the suggestion that the more the brutality of a homicide indicates mental derangement the less chance the defendant has to secure an acquittal upon the plea of insanity.

And this leads us to that increasingly large body of cases where the usual scepticism of the jury in regard to such defences is counterbalanced by some real or imaginary element of sympathy. In cities like New York, where the jury system is seen at its very best, where the statistics show seventy per cent. of convictions by verdict for the year 1907, and where the sentiment of the community is against the invocation of any law supposedly higher than that of the State, our talesmen are unwilling to condone homicide or to act as self-constituted pardoning bodies, for they know that an obviously lawless verdict will bring down upon them the censure of the public and the press. This is perhaps demonstrated by the fact that in New York County a higher percentage of women are convicted of homicide than of men.

But the plea of insanity, with its vague test of responsibility, whose terms the juryman may construe for himself (or which his fellow-jurors may construe for him) offers an unlimited and fertile field for the "reasonable" doubt and an easy excuse for the conscientious talesman who wants to acquit if he can. Juries take the little stock in irresistible impulses and emotional or temporary insanity save as a cloak to cover an unrighteous acquittal.

In no other class of cases does "luck" play so large a part in the final disposition of the prisoner. A jury is quite as likely to send an insane man to the electric chair as to acquit a defendant who is fully responsible for his crime.

To recapitulate from the writer's experience:

(1) The ordinary juror tends to be sceptical as to the good faith of the defence of insanity.

(2) When once this distrust is removed by honest evidence on the part of the defence, he usually declines to follow the legal test as laid down by the court on the general theory that any one but an idiot or a maniac has some knowledge of what he is doing and whether it is right or wrong.

(3) He applies the strict legal test only in cases of extreme brutality.

(4) In all other cases he follows the medical rather than the legal test, but instead of acquitting the accused on account of his medical irresponsibility, merely convicts in a lower degree.

The following deductions may also fairly be made from observation:

(1) That the present legal test for criminal responsibility is admittedly vague and inadequate, affording great opportunity for divergent expert testimony and a readily availed of excuse for the arbitrary and sentimental actions of juries, to which is largely due the distrust prevailing of the claim of insanity when interposed as a defence to crime.

(2) That expert medical testimony in such cases is largely discounted by the layman.

(3) That in no class of cases are the verdicts of jurors so apt to be influenced solely by emotion and prejudice, or to be guided less by the law as laid down by the court.

(4) That a new definition of criminal responsibility is necessary, based upon present knowledge of mental disease and its causes.

(5) Lastly, that, as whatever definition may be adopted will inevitably be difficult of application by an untutored lay jury, our procedure should be so amended that they may be relieved wherever possible of a task sufficiently difficult for even the most experienced and expert alienists.

A classification of the different forms of insanity, based upon its causes to which the case of any particular accused might be relegated, such as has recently been urged by a distinguished young neurologist, would not, with a few exceptions, assist us in determining his responsibility. It would be easy to say then, as now, that lunatics or maniacs should not be held responsible for their acts, but we should be left where we are at present in regard to all those shadowy cases where the accused had insane, incomplete or imperfect knowledge of what he was doing. It would be ridiculous, for example, to lay down a general rule that no person suffering from hysterical insanity should be punished for his acts. Yet, even so, such a classification would instantly remedy that anachronism in our present law which refuses to recognize as irresponsible those born without power to control their emotions—the psychopathic inferiors of science, and the real victims of dementia praecox.