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By Root 1707 0

In 1954, the year of Durham, verdicts of “not guilty by reason of insanity” were rare in the District of Columbia—0.4 percent of all cases tried resulted in that verdict, a pretty standard percentage. This figure mushroomed to 3.3 percent in 1958, to 6.1 percent in 1960, and in 1961, to 14.4 percent—a staggering figure.72 The D.C. Circuit Court of Appeals was itself alarmed and began to backtrack; finally, in 1972, this court junked the Durham rule, only eighteen years after it had so hopefully adopted it.73 The new rule was based on language drafted by the American Law Institute as part of a proposed Model Penal Code. Under this rule, 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 either to appreciate the criminality of his conduct or to conform his conduct to the requirements of the law.”

Whether this rule actually says anything meaningful about what constitutes insanity (or anything much different from the Durham rule, and other “tests”), it has a curiously soothing effect on conservatives, who despise the insanity defense, and anything that smacks of “excuses” for criminals. A large segment of the population positively lusts to believe that criminality is raw, naked evil, the devil in human form; that criminals are people who have sold their souls, who have brazenly, openly broken the rules we live by. At the same time, millions of people also seem to think that criminals are perhaps born that way; crime is in the blood, the genes, the bones. These two beliefs are, in several ways, inconsistent. They do have a common core. In both cases, rehabilitation, coddling, excuses, psychiatric treatment, and the like seem like a dangerous waste of time. The insanity defense, it would follow, is a trick to get people off the hook, a way to make mincemeat of morality and society’s working norms.

The Age of Backlash

In retrospect, the 1950s and 1960s represented a peak or high point in the movement to make criminal justice more humane, and to tilt the balance away from the police and prosecution. A backlash or reaction then set in. A wave of conservatism swept over the country. It had its roots in the great fear: the fear and hatred of crime. This wave led to the collapse of the campaign against the death penalty; it brought about a reaction against parole and the indeterminate sentence; it engulfed the Durham rule, and put an end to “progress” in the insanity defense.

In November 1978, Dan White, a former member of the Board of Supervisors of San Francisco, ran amok in City Hall. He shot the mayor, George Moscone, to death, along with Supervisor Harvey Milk, a leader of the gay community. White was arrested and charged, and his trial took place, quite naturally, under the klieg lights of publicity. White’s basic defense was diminished capacity; after all, White could hardly deny that he pulled the trigger. A straight-out insanity plea also seemed quite out of the question. The trial was notorious for what came to be known as the “Twinkie defense.” There was testimony that White sometimes stuffed himself with junk food, and this kind of diet tended to unbalance him mentally. (Twinkies were mentioned at the trial, as one of the junk foods White ate when under stress.) The press went to town on this very minor point in the case, blowing it up out of all proportion. The “Twinkie defense” probably played little or no role in the actual result.

In any event, the jury found White guilty, but of voluntary manslaughter, not murder. The verdict, as we mentioned (in chapter 16, above), touched off riots in San Francisco. Howls of outrage were heard in Sacramento and reverberated all over the state. California then simply abolished the defenses of diminished capacity and irresistible impulse. 74 The voters of California liked the time-tested words of the McNaghten rule better than more modern alternatives.

On March 30, 1981, John Hinckley, Jr., stood outside the Hilton Hotel, in Washington, D.C., and shot six bullets at the president,