Crime and Punishment in American History - Lawrence M. Friedman [92]
The right-or-wrong test was formulated in England; but it corresponded to American notionsae, and it became standard in the United States as well. In some states it was frozen into statute law. Thus, New York, in the penal code of 1881, laid down that no one was excused from criminal liability as “an idiot, imbecile, lunatic, or insane person,” without proof that the person was “laboring under such a defect of mind” as not to know “the nature and quality of the act he was doing” or that the act was “wrong.” A mere “morbid propensity to commit prohibited acts” was not a defense.79
There is little hard information about how the insanity defense played out at the level of the trial courts. The right-or-wrong test is, at bottom, nothing but words, which a judge can read or recite to a jury. What a jury made of these words in the nineteenth century is hard to tell. Folk concepts of sanity and insanity probably played more of a role than the official concepts. Some criminals, those who seemed obviously deranged, probably never reached the jury at all; they were let go at an earlier stage—or locked in an asylum.af
Almost from the start, there were those who criticized the right-or-wrong test as inadequate, or unscientific. In Kentucky, in 1845, Abner Baker, Jr., a doctor, killed his brother-in-law. The dead man had, Baker thought, debauched Baker’s wife—a belief most people took to be completely lunatic. Baker was convicted, despite strong evidence of “monomania,” that is, wildly irrational thought on one particular subject. Eight members of the jury signed a petition, requesting a pardon: “they believed that the prisoner labored under insane delusion ... but ... had capacity enough to determine between right and wrong generally.” Baker went, nonetheless, to the gallows.81
In some states, a second formulation came to supplement McNaghten, by adding the concept of “irresistible impulse”; this test was sometimes called the “wild beast test.” There was a medical basis for this test, too, which applied the concept of “moral mania”; some courts and doctors even spoke of “moral insanity.” The idea was that certain conditions had the power to affect human emotions without necessarily destroying cognitive functions. The person is in the helpless grip of a force outside himself, borne along by a tornado of instinct or drive. As Joel Bishop put it, “a man may be conscious of what he is doing, and of its criminal character and consequences, while yet he is impelled onward by a power irresistible.”82
In State v. Felter, an Iowa case of 1868, Felter was on trial for killing his wife; his defense was “homicidal mania.”83 Felter was a farmer, about forty years old, married, and with a child. He smashed in his wife’s skull, mutilated her, and tried to bum down the house. His little daughter saw the crime: “he struck [mother] ... it was because she poured the buttermilk out; I left because he was going to kill me.” Felter finally tried to slit his throat with a razor, but failed. The appellate court reversed his conviction, because the trial court had used the right-or-wrong test: medicine and law, the opinion said, “now recognize the existence of such a mental disease as homicidal insanity”; the trial court should have instructed the jury about the defense of “irresistible impulse.” The jury, in other words, had to decide whether the crime was due to insanity or to mere “passion,” the “outburst of violent, reckless and uncontrolled passion in a mind not diseased.”
As this case suggests, the irresistible-impulse test, too, was consistent with the nineteenth-century theme of control. A defendant is insane if he lacks the ability to keep his impulses, his desires, his wild emotions under control, either because of some lesion in the brain or some deep-seated flaw in the neurons. The opposite of insanity is passion, that is, strong emotion. A human being has the duty to keep urges, drives,