Crime and Punishment in American History - Lawrence M. Friedman [91]
It is “established beyond controversy,” wrote Henry Boies in 1893, that “criminals and paupers, both, are degenerates, the imperfect, knotty, knurly, worm-eaten, half-rotten fruit of the race.”72 But if this were so, if criminals were really these primitive, misformed subhumans, then how was the system of criminal justice to handle them? What, in short, was to be done?
The new eugenics movement provided one answer; it led to the idea that criminals should be sterilized. Society had to get rid of the “gangrened” members of the “body politic.” “Discoveries” in “anesthetics and antiseptics,” said Boies, “have rendered it possible to remove or sterilize the organs of reproduction of both sexes without pain or danger. This is the ... most effectual solution.”73 In the 1890s, Dr. F. Hoyt Pilcher, an unsung hero of American history, superintendent of the Kansas State Home for the Feeble-Minded, castrated forty-four boys and unsexed fourteen girls who were under his wing—for eugenic purposes. Public disapproval put an end to this noble experiment; the development of vasectomy, for males, and salpingectomy (the cutting and tying of the fallopian tubes) for women made less drastic methods available.74 This scientific weed came to full flower, however, in the twentieth century, as we shall see.ad
The Insanity Defense
In modern states, the criminal justice system punishes only those people who are “responsible” for committing a crime.75 It is not only the result but the motive that makes a crime; simple carelessness or accident are not crimes, no matter what happens as a consequence. To commit a crime requires a certain minimum amount of mind; animals cannot be guilty of crimes, and the same is true of babies. Neither of these two propositions is the least bit controversial, or consequential. But there are problems at the borderland of adulthood (should a fifteen-year-old be held to the same standards as a twenty-year-old?); and also at the borderland of mental health.
It was established law, as Blackstone put it, that “idiots and lunatics are not chargable for their own acts, if committed when under these in-capacities; no, not even for treason itself.”76 But how do we tell who is an idiot and who is not? The legal meaning of insanity became an important issue in the nineteenth century, particularly contested because “insanity” had become a medical question, a question of mental illness or disease, as well as a legal conundrum. The nineteenth century was an age of rampant science. Science was not unembattled (the fate of Darwinism is an obvious example); but science had prestige and persuasive power nonetheless.
The most important legal definition of insanity was the so-called right-or-wrong test. It was formulated by an English court in 1843. The test is often called the McNaghten test, commemorating one Daniel McNaghten, who shot and killed Edward Drummond, private secretary to the prime minister, Sir Robert Peel. According to the high court judges of England, ruling in the McNaghten case, a defendant was insane if and only if, at the time of the crime, he 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.”77
This famous formulation, quite obviously, stressed cognition, the act of knowing. It tied in fairly well with other dominant themes of nineteenth-century thought (and law), notably the stress on discipline and self-control. If you were aware of