This article was published under the name Carol Gallo
Human Events, the conservative Washington, DC publication (September 1981); republished in
Criminal Justice Report, a periodical of the National Association of Attorneys General (October 1981);
and republished again as the lead article in a special "Insanity Defense" edition of
The Prosecutor,
the journal of the National District Atorneys Association (Spring 1982)

The Insanity of the Insanity Defense
by Carol A. Valentine

How psychiatry has undermined
the criminal justice system in America by justifying crime
and propagandizing through the redefinition of words

Even before John W. Hinckley III had been indicted for the attempted assassination of President Ronald Reagan his defense attorneys were already lining up psychiatrists and the controversy over Hinckley's "sanity" had started.

The Hinckley affair, as well as a number of other notorious criminal cases, has focused national attention on the insanity defense, and the extent to which psychiatry has undermined justice in the United States by justifying criminality. As a result, a growing number of lawmakers, jurists, and even psychiatrists themselves are suggesting sweeping changes in insanity pleadings, at both the state and federal levels.

"Not guilty by reason of insanity" is a special verdict of acquittal in a criminal trial. The verdict grants that although the accused committed the act in question, he cannot be held legally responsible because he was not sane at the time of the crime. Defendants thus acquitted are then usually committed to a mental institution for an indeterminate period and released upon the recommendation of institution psychiatrists at such time the psychiatrists consider the person "sane."

Since the insanity defense originated almost 200 years ago, definitions used to describe insanity have broadened, and new variations of the defense have been developed, giving criminals ever-increasing chances of escaping the legal consequences of their acts.

Thus the insanity defense is a major concern to law enforcers, and was given special attention by Presidential Counselor Edwin Meese III when he addressed the California State Sheriffs' Association last year:

"If we are really sincere about the protection of the public, the mental condition of the individual at the time he committed the crime is immaterial. A good portion of criminal trials is taken up with hot and cold psychiatrists running in and out for both sides telling what is wrong with the accused. The way psychiatrists are now pushed and tugged … in order to provide testimony for one side or the other is a disgrace to their profession."

Jeffery Harris, executive director of the Attorney General's Task Force on Violent Crime, makes a similar criticism. Says Harris, "What amazes me is that in any trial I've ever heard of, the defense psychiatrist always says the accused is insane, and the prosecution psychiatrist always says he's sane. This happened invariably, in 100 per cent of the cases, thus far exceeding the laws of chance. You have to ask yourself, `What is going on here?' The insanity defense is being used as a football … and, quite frankly, you'd be better off calling Central Casting to get `expert psychiatric testimony' in a criminal trial."

That the insanity defense is used consciously to escape the penalties of the law is common knowledge.

Sen. Orrin Hatch (R-Utah), who recently introduced insanity reform legislation (S 818), pointed to a telling case in Chicago in which Thomas Vanda, then 18 years old, was convicted of stabbing a neighbor, a teenage girl, as she lay asleep in her bed. While he was on probation from that conviction and receiving psychiatric care, he killed a 15-year-old girl with a hunting knife, and was found not guilty of that crime by reason of insanity. He was committed to a mental institution but released 15 months later by psychiatrists as cured.

In 1978 Vanda was again charged with stabbing another young woman to death, and again pleaded "not guilty by reason of insanity." During these escapades, and while an inmate in Cook County jail, Vanda took time out to advise a fellow inmate on "how to beat a murder rap" by pleading insanity. He advised "acting crazy" in front of doctors, such as claiming to hear voices or openly performing indecent acts.

"It's the defense of last resort," says Assistant U.S. Attorney for the District of Columbia Percy Russell. "The only time it's used is when there is no question the accused committed the act, and the defense can think of nothing else to exonerate his client."

Even more insidious is a variant of the insanity plea, the "diminished capacity" defense, where psychiatric testimony is used to argue that the accused, although clearly sane, still should not be held responsible for his acts because a "mental condition" diminished his capacity to harbor the criminal intent required for conviction.

This was the basis for the so-called "Twinkie Defense" of Dan white, whose controversial trial for the murder of two San Francisco city officials drew national outrage and has resulted in current attempts at major legislative overhaul of allowable criminal defenses in California.

White was employed as a San Francisco city supervisor in 1978. Under financial pressure, he resigned his job, then changed his mind a few days later. He started to negotiate for reinstatement, but Mayor George Moscone decided against rehiring him.

White was convinced that a political enemy, City Supervisor Harvey Milk, influenced Moscone in his decision and on Nov. 27, 1978, White concealed a gun, took along extra ammunition, and went to City Hall. Avoiding the metal detectors by climbing through a basement window, White sought out Moscone, revealed his gun, and shot the mayor four times.

As Moscone lay sprawled on the floor, White pointed the gun at the mayor's head and fired two more shots. He then reloaded the gun with the extra bullets he had brought along, sought out Harvey Milk and killed him in the same fashion — several bullets to the body, then, bending over, two more to the head.

When the case came to trial, White's defense argued he was not guilty of murder because he suffered from "diminished mental capacity," and thus was unable to formulate the required criminal intent. Dr. Martin Blinder, one of the psychiatrists who testified for White, told the jury White had been depressed before the crime and had been eating junk food, which led to further depression and more junk food, and the sugar made White violent.

"Whenever he [White] thought that things were not going right, he would abandon his usual program of exercise and good nutrition and start gorging himself on junk foods — Twinkies, Coca Cola. He'd hit chocolate, and the more he consumed, the worse he'd feel and he'd respond to his depression by consuming ever more junk food. He just sat there before the TV, bringing on the Twinkies …"

The jury was persuaded of White's "diminished capacity" by the arguments of the aptly named Dr. Blinder and the other psychiatric witnesses and refused to find White guilty of murder. Instead, they let him off with a light scolding by finding him guilty of the lesser offense of voluntary manslaughter (killing in the heat of passion). He is now serving a seven-year sentence and will be eligible for parole in about three years.

The facts of the case were never in dispute. White concealed the gun and took along extra bullets. He climbed through the basement window to avoid the metal detectors. Demonstrating what most of us would call premeditation and malice, he killed the two men execution-style. But, if, as the jury found, Dan White did not commit premeditated murder, who or what did? Using Blinder's analysis, the answer has to be "Cokes and cupcakes."

Dr. Thomas Szasz, professor of psychiatry at the Upstate Medical Center in Syracuse, N.Y., commented in Inquiry magazine:

"There is no question that a travesty of justice occurred in the trial of Dan White. How could the killer of San Francisco Mayor George Moscone and Supervisor Harvey Milk — who fired nine bullets into his victims and shot each one twice in the back of the head, execution-style — not be found guilty of murder? The answer is: Easily. Anything is possible in human affairs if one has the power to redefine basic concepts — to say that day is night, that two plus two make five — and get away with it."

The situation is growing worse, as the number of successful insanity defenses is on the increase. While there are not national figures, psychiatrist Abraham Halpern, clinical professor of psychiatry at New York Medical College and a leading critic of the insanity defense, points to a New York study which reveals a 500 percent increase of successful pleading between the years 1965 and 1976.

As well, all sorts of crime, murder, rape, even bank robbery and housebreaking, are being justified by "insanity."

How did psychiatry gain its stranglehold on the criminal justice system? The answer is by two major but distinctly different routes, which must both be understood before a practical way out can be found.

The first and best-known method is in the insanity defense per se. Let us trace its historical development:

In the Anglo-American legal tradition, before a person can be convicted of a crime, two questions must be answered. The first is, did the accused perform the act in question? The second is, did he have criminal intent? An example will illustrate the point the law is trying to make:

A man is driving a car when a small child darts out in front of him. He tries to avoid hitting the child but cannot do so, and the child is killed. Hypothetically, if this man were tried for murder, he would be found not guilty, because he did not intend to kill. Thus he would be distinguished from a man who saw his enemy on the street and deliberately ran him down.

Criminal intent (mens rea) is also important in distinguishing the severity of the crime. For example, two men have a sudden, heated brawl and during its course one is knocked down and killed. If brought to trial, and the survivor showed he did not kill with malice aforethought, he would be found guilty of manslaughter.

"Prior to 1800, `legal' insanity, as a special verdict of acquittal, did not exist," writes Dr. Halpern in the April 1980 Journal of Legal Medicine. "An individual was acquitted because of the failure of the prosecution to prove its case or because the jury chose out of sympathy to find the defendant `not guilty.' In any event, he was immediately set free. If guilty, and extenuating circumstances existed (which could include lunacy), a special recommendation of a pardon was included in the verdict."

A special point that should be observed is one that is glossed over by many legal scholars: Care for the language was observed. A lunatic who committed a crime — a sub-human "wild beast," or someone who could not tell the difference between right and wrong — might be pardoned, but he very clearly was found "guilty" first.

This respect for language, absolutely essential to justice, received a severe blow in 1800. "In that year, James Hadfield, a war-injured British ex-soldier, believing he had been called by God to undergo self-sacrifice, took a shot at King George III. As Hadfield did intend to shoot at the king, and did know the difference between right and wrong, he would have been found guilty. So his lawyer had to invent a new defense."

Hadfield's attorney had numerous witnesses testify on Hadfield's deranged, delusional mind. Physicians were called to establish that his derangement had been caused by the head injuries he'd received in the war. The argument then put forward was that Hadfield's delusional state, not his intention to commit the crime, should be the deciding factor for the jury.

The jury found Hadfield "not guilty" and added to that verdict, "the prisoner appearing to have been under the influence of insanity at the time the act was committed." Hadfield was committed to a lunatic asylum "until His Majesty's pleasure be known." Although officially "not guilty," Hadfield was not freed, and died in incarceration, now being called a "patient" instead of a prisoner.

"This decision was important for many reasons," says Dr. Halpern. "In effect from that time `not guilty by reason of insanity' became a separate verdict of acquittal. Secondly, from that time forward, the jury's attention was increasingly focused on the definition of insanity, rather than on the question of whether the accused committed the act and had criminal intent. Lastly, the concept of insanity in the law became intertwined with `science,' and effectively taken out of the purview of the layman jurors."

From that time on we can trace the continuing and gradual erosion of the concept of criminal responsibility as the perversion of the language became embedded in the legal system.

Criminals were not individuals who had simply violated the rules of the culture, but people who suffered from some form of sickness called "mental illness." Once ethics were redefined in terms of medicine, it was easy continuously to widen the definitions so that any kind of criminality could be excused.

What is at stake here, of course, is our viewpoint on the nature of man. Is he a sentient, essentially spiritual being who makes choices in life? Or is he a material object, acted upon by genes and past experiences, whose choices are predetermined — an object that can neither be praised nor blamed? The evolution of the definitions of insanity reflects the latter, determinist approach.

The McNaughten rule, adopted in England some 43 years after the Hadfield case, used a "cognitive" test for insanity. In order for the accused to be found insane under McNaughten, "… it must be clearly proved that, at the time of the committing of the act, the party accused was laboring under such 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, he did not know he was doing what was wrong."

America's first major contribution came in 1834 with the "irresistible impulse" test. As the label would suggest, this is the `just couldn't help it" approach, which assumes free will does not exist, that impulses to act in certain ways sometimes can be resisted, and sometimes can't be. Thus a person under the influence of an irresistible impulse cannot be held responsible for his actions, even though he knows what he is doing, intends to do it and knows it is wrong.

There were no major redefinitions until the 1954 Durham decision was made by Judge David L. Bazelon in the U.S. Court of Appeals for the District of Columbia: "… An accused is not criminally responsible if his unlawful act was the product of mental disease or defect," and, in 1966, the U.S. Court of Appeals for the Second Circuit handed down the American Law Institute definition was accepted. "… A person is not responsible for criminal conduct if at the time of such conduct as a result of mental disease or defect he lacks substantial capacity to appreciate the criminality of his conduct or to conform his conduct to the requirements of the law."

Yet these wildly deterministic definitions of insanity still placed too many restrictions on the psychiatric-ization of justice. A second inroad was consequently developed, "diminished capacity," the basis of the Dan White "Twinkie defense." It was designed for the use of those criminals who clearly were not insane by even the above definitions. Here the accused pleads "not guilty" as distinguished from "not guilty by reason of insanity" and uses psychiatric testimony to show that, because of a mental condition (depression after having eaten too many Twinkies, for example), the required criminal intent did not exist.

"Diminished capacity" was largely developed and popularized by psychiatrist and law Prof. Bernard Diamond, who outlined his case in the Stanford Law Review, December, 1961:

"Central to the difficulties with any definition of legal insanity is the all-or-none conceptualizations of the law. A defendant is either sane and totally responsible or insane and not at all responsible. Such all-or-nothing concepts are peculiarly foreign to modern psychiatric thinking."

The trouble with the above restrictive definitions, says Diamond, is that they force the psychiatrist to be either the "tool of vengeance" (i.e., to testify a defendant is sane, thus opening the door to possible punishment for murder, etc.) or to perjure himself and convince the jury the accused is insane when he really isn't (in order to help the defendant avoid punishment).

With commendable frankness, Diamond gives an example of how he committed perjury and recalls a case where he testified for the defense in the murder trial "of a very nice and respectable middle-class woman, the young mother of two children. The defendant, with care and precision, had strangled her second child when he was eight weeks old. He had been crying incessantly and the mother thought she was not able to properly care for the child and that it would be better off dead.

"At the time the deed was committed, the mother knew perfectly well what she was doing. She was not suffering, at that time, from delusions or hallucinations, nor was there any grossly visible evidence of mental abnormality. She knew the nature and quality of her act and that it was wrong. Nevertheless, at the moment of the killing, she believed it to be the only course of action open to her … There was no difficulty in convincing the court that the defendant was legally insane and did not know right from wrong because of mental disease."

Wishing to avoid committing perjury, Diamond went about finding the soft underbelly of the law through which the role of "modern psychiatric thinking" could be expanded even further, and found the "ideal bridge" in the concept of criminal intent.

Piggybacking his idea on a 1867 Scottish decision, his solution was for psychiatrists to testify that this or that mental condition caused the defendant "diminished capacity" to harbor criminal intent, which, or course, only the psychiatrist could "diagnose." This approach undercut the traditional question whether the defendant had criminal intent, and focuses attention on how able the defendant was to formulate intent.

"Thus we arrive at a legal spectrum of an infinitely graduated scale of responsibility which corresponds, or could be made to correspond closely, to the psychological reality of human beings as understood by 20th Century medical psychology," wrote Diamond.

But Diamond does not believe in free will anyway and all this is academic. "I concede that his whole business of lack of mental capacity to premeditate, to have malice or to entertain intent, is a kind of sophistry which must not be allowed to remain an end in itself. Right now we must utilize these legal technicalities to permit the psychiatrist to gain entrance into the trial court …

"The next step … is to expand the principle of limited or diminished responsibility of the mentally ill offender to include all definitions of crime. It was easier to introduce this principle in the crimes of homicide because there already existed the legal structure of graduated responsibility for homicide.

"But when the courts, and particularly the public, get used to the idea of giving full consideration to the mental and emotional abnormalities of the homicide offender, there will be little difficulty in having the same principles and practices applied to all crimes. We would then have diminished responsibility in its true meaning extending throughout the penal code and no longer bound to the technicalities of the degrees of homicide."

The rationale used by Dr. Diamond has even found its way into California's definition of "premeditation." Stephen Morse, professor of law and psychiatry and the behavioral sciences at the University of California, describes the legal background of the broadened definition in a 1979 article in the International journal of Law and Psychiatry. The case concerned the murder trial of Dennis Wolff, a young man convicted in the ax murder of his own mother.

"For a year prior to the crime, Dennis Wolff had been obsessed with sex and planned to kidnap women for sexual purposes. He believed he needed to bring them to his house to carry out his plans and therefore decided that it would be necessary to do away with his mother first. He carefully planned the homicide and, after one foiled attempt, he killed her by beating her with an ax handle that had been carefully hidden away for that purpose. He was tried and found guilty of first-degree murder."

"When the case got to the California Supreme Court," Morse told HUMAN EVENTS, "the Court overturned the verdict, arguing that premeditation meant to `maturely and meaningfully reflect' on the gravity of the contemplated act.

"How could one ever prove that a decision to murder your mother with an ax was arrived at in a mature and meaningful way … we would have no chance of convicting anyone for anything if that is the language used."

Morse has been testifying before the legislature in California, pressing abolition of the "diminished capacity" defense. Other groups working on that behalf include the California State Sheriff's Association, the California District Attorney's Association, and the anti-psychiatry Citizens Commission on Human Rights.

Another leading anti-psychiatry activist is psychiatrist Dr. Lee Coleman of Berkeley, who heads the Institute for the Study of Psychiatric Testimony. Dr. Coleman, who works with law enforcement officials debunking psychiatric courtroom testimony, believes psychiatrists have no place in the courtroom at all, and takes an empirical approach:

Psychiatry is not a science. It can have no legal expertise. The labeling of a procedure as 'examination' as in mental status examination, or to `test' as in Rorschach test, doesn't render the effort scientific. The plain fact is that in all of psychiatry and psychology there is not a single scientific test.

"Despite our fond hopes, no one has a way of `examining' someone's state of mind, past or present. There are so many tests for ability to meaningfully and maturely premeditate, deliberate, or harbor malice, as in the diminished capacity defense, or for the presence of an 'irresistible impulse' or for knowledge or right and wrong. The best anyone can do is to draw inferences as to mental state, based on behavior or speech."

Not only is psychiatric testimony scientifically worthless and irrelevant, says Dr. Coleman, but it serves to confuse and perplex a jury.

From a recent case he reviewed, Coleman gives us an example of evidence psychiatrists typically introduce. The crime involved the shooting of the defendant's wife followed by his killing of his two children immediately afterwards: "… Such a psychotic decompensation occurred immediately preceding the alleged offense. By his own report, Mr. X experienced a rather diffuse and global intrusion of multiple paranoid ideas of reference. This global intrusion of such paranoid ideas resulted in a psychotic dissociation in the mind of Mr. X.

"This psychotic dissociation set the stage for his rather automatic and seemingly unprovoked violent outburst against his wife, children and himself … Mr. X's recognition that there were no more bullets in the weapon precipitated in him the resolution of the dissociative reaction, which resulted in his appropriate behavior in terms of walking downstairs and attempting to seek help from his sister … His passive withdrawal in terms of his behavior following the offense, i.e., sitting on the couch until the police came, and his feelings and concern and cooperation with the police officers, would also substantiate a rather self-limited but severe psychotic reaction in Mr. X which terminated prior to his returning downstairs from his children's room.

"The above psychological formulation is clearly substantiated by the objective psychological tests conducted."

Call it what you will — mumbo-jumbo, psychobabble, black magic incantations, or psychiatric testimony — if we ask our juries to make sense of it, we must expect repeated travesties of justice.

In a decision made in June 1980, the Wisconsin Supreme Court struck down the diminished capacity defense.

"… diminished capacity inevitably opens the door to variable or sliding scales of criminal responsibility. We should not lightly undertake such a revolutionary change in our criminal justice system." It went on to question whether psychiatry can determine a defendant's intent at the time the crime was committed, and concluded it could not.

"Whether or not there should be criminal responsibility is essentially a moral issue. It is just, in light of the ethics and standards of our society, to hold a person who is insane accountable for what he has done."

The Court quoted University of Wisconsin Professor of Criminal Law Frank A Remington:

"In general, it is not at all apparent that psychiatrists know any more than does the layman about whether the defendant had an intent to kill when the act causing death was committed."

Even the hopes that psychiatry would help law enforcement officials to spot habitual murders have been dashed. Targeted by numerous malpractice lawsuits, the American Psychiatric Association has been forced to argue the case for psychiatric incompetence in the courts, and had done so most convincingly. In Tarassof v. the Regents of the University of California, via an amicus curiae brief, the APA, citing massive professional literature, disclaimed any special psychiatric ability to protect society from potentially harmful citizens. In an even more compelling brief argued before the Supreme Court (Estelle v. Smith), the APA said:

"The professional literature uniformly establishes that [predictions of future violence] are fundamentally of very low reliability and that psychiatric testimony and expertise are irrelevant to such predictions … On the issue of future criminal behavior, it only distorts the fact-finding process. The fundamental disadvantage of utilizing such testimony is that it gives the appearance of being based on expert medical judgment, when in fact no such expertise exists."

But old myths die hard, and sadly the two bills designed to handle the insanity defense and its variants on the federal level, S 818, introduced by Sen. Hatch, and S 1108, introduced by Sen. Edward Zorinsky (D.-Neb.) — while obviously well-intentioned — assumed many of the premises that first got us into trouble. The bills unfortunately swim in a sea of sliding definitions and psychiatric bogeymen, and fail to meet three simple tests that need to be met if the situation is to be corrected. These tests are:

  • First, the insanity defense per se should be entirely abolished. This is an argument for judicial conservatism, an argument to go back to the system that prevailed in jurisprudence before the modernities of 1800.

  • Second, psychiatrists should not be permitted to testify on criminal intent. They have no business speculating on how "mental illness," or even yesterday's breakfast, could explain the defendant's crime. The jury can draw more sensible conclusions about intent by first-hand inference, weighing the evidence placed before it. This would effectively end the psychiatric invasion of mens rea, abolish the "diminished capacity" excuse and return the examination of criminal intent to the jury, rather than the "experts."

  • Third, psychiatrists should be stripped of their "expert status" entirely. Should a psychiatrist be called by the defense to testify on any grounds not excluded by the above, the jury should know he has about as much understanding of the human mind (probably a good deal less) as the butcher, the baker, or the candlestick maker, and his legal status should reflect that fact.

The problem is that "insanity" is not, nor ever could be, a medical term. It is always an ethical term. Insane acts are those that are counter-survival to a person himself, his family, his country, or to the many unknown individuals we commonly called "mankind." Phonying up scientific names to describe morally and ethically aberrant behavior is anathema to justice. Questions of right and wrong are not irrelevant, they are paramount. They are not unknowable and complex; they can be reasoned and based on common sense. Our laws should reflect these simple truths.