Crime and Punishment in American History - Lawrence M. Friedman [256]
There was certainly a sensible idea behind the concept. The law seemed to assume insanity was something either/or, black or white: you are or you are not. But this seems wrong, both logically and as a matter of experience. There are all sorts of shades of gray between normal (whatever that means) and a state of complete, hopeless, obvious insanity. A defendant, of course, ends up either guilty or not guilty, a kind of all-or-nothing fate. But, in fact, there are all sorts of way stations between the two poles: conviction on a lesser charge, for example. Murder is murder and not manslaughter because, among other things, the murderer has a certain frame of mind—“malice aforethought” is the technical phrase. It is certainly possible for a person to have some weakness or defect of mind that affects his ability to form that intent, even if he is not actually “insane” in the clinical sense.
In State v. Padilla, a New Mexico case of 1959,69 the charge was first-degree murder. Padilla’s lawyer tried to get the trial judge to instruct the jury on diminished capacity. He wanted the judge to tell the jury that they might consider second-degree murder (instead of first-degree) if the defendant was “incapable of thinking over the fatal act beforehand with a calm and reflective mind (or with a fixed and settled deliberation and coolness of mind)” because of a “disease or defect of the mind,” even if he was not technically insane. The judge refused, and the jury convicted.
The Supreme Court of New Mexico reversed the trial court decision. The judge should have given the instruction. Under New Mexico law, a defendant could be so drunk or so befuddled with drugs as to be unable to “premeditate” a first-degree murder (this was a familiar doctrine; see Chapter 6). If so, said the Court, why not provide the same rule for “mental disorders”? A substantial number of courts agreed. A rule of this type, however, was a kind of back-door attack on the “right or wrong” test.
A frontal attack came in 1954, in the District of Columbia. Judge David Bazelon, dissatisfied with the state of the law, boldly struck out in a new direction. The case concerned a certain Monte Durham, convicted of housebreaking. Durham had a long history of instability; in fact, he spent his whole adult life in and out of jails and mental hospitals—a revolving-door life of “lunacy inquiries,” suicide attempts, convictions for crime, commitments to St. Elizabeth’s Hospital, releases. The trial judge, sitting without a jury, had applied the standard “right or wrong” test and convicted Durham. The circuit court, speaking through Bazelon, reversed. Bazelon had harsh words for the McNaghten rules, which did not “take sufficient account of psychic realities and scientific knowledge.” His opinion in Durham was peppered with citations to psychiatric literature. Bazelon laid down a new “test” for insanity cases, presumably more scientific and enlightened than the older ones: “an accused is not criminally responsible if his unlawful act was the product of mental disease or mental defect.”70
The Durham rule was controversial from the day it was born. It was supposed to be clearer, more modern, more scientific than what preceded it. But in practice it proved troublesome and confusing. Its critics also blasted it because it put too much power in the hands of psychiatrists; it turned a moral and legal judgment into what seemed to be a medical judgment. Perhaps this was unfair to the impulses behind the Durham case, but history and evolution have nothing to do with fairness. Many judges became convinced that the “insanity defense was going haywire” and was leading to a “psychiatric dictatorship combined with procedural anarchy.”71
Statistical evidence does suggest that something was going awry.