People who lack a strong conceptual understanding of psychosis-spectrum disorders (and that characterizes most of the humans on the planet) will fail to see what is wrong with this legal test of insanity.

 

This wikipedia entry for M’Naghten’s Rule gives an account of the history of this legal test as it has been applied in western criminal law.

https://en.wikipedia.org/wiki/M%27Naghten_rules

The application of M’Naghten’s Rule is the instrument by which many thousands of people have been unjustly convicted and punished by the criminal justice system.  Four states in the U.S. have outright abolished the insanity defense and the Supreme Court let them get away with it, concluding that there was no right to a defense of insanity.  No one on the face of this earth can abolish a brain disease or disorder- but a legislature sure can abolish a legal instrument.

Most of the other states use either M’Naghten’s Rule or the Model Penal Code (MPC) and there may be at least one that uses the Durham Rule.  M’Naghten’s and abridged or modified versions of it is the most dissonant with the realities of SMI, but that is on account of the letter of the law only (so to speak).  In a world where mankind was not engineered to understand psychosis, all roads lead back to M’Naghten’s Rule.  M’Naghten’s Rule is said to be strict, in that it requires jurors and judges to evaluate an element of mens rea not required by tests that are more lenient.  Under the other two definitions of insanity, jurors and judges will ultimately examine behavioral evidence to ascertain whether the accused “knew what he or she was doing”.  Evidenced by the fact that a verdict of NGRI is a rare outcome across all the states, in the few cases where attorneys dare attempt the defense, it really doesn’t seem to matter what rule is adopted by a given state.   Why do attorneys rarely raise the insanity defense in states that do not use M’Naghten’s Rule?  -Partly because they’ve been bullied by society out of using it and partly because they know that it won’t be successful in this operating environment.

Judges often assert that they were compelled by M’Naghten’s to find mentally ill defendants guilty based on evidence of knowledge of wrongfulness.  This examination is not so arbitrary to a someone who has depth perception on psychosis.  A set of behaviors that appear to be evidence of “knowing right from wrong” to the common juror or judge may not be incriminating when evaluated by a person who understands psychosis.  Serious “mental illness” is something people don’t know that they do not understand.  This conundrum functions like a pseudo-anosognosia in the populace.

M’Naghten’s Rule came about as a backlash (in similar fashion to the Hinckley trial and the Insanity Defense Reform Act of 1984) to the just acquittal of a man who was insane at the time that a violent crime was committed.  The acquittal enraged the populace and Queen Victoria.  The petulant Royal was not given to deference toward learned men on account of their expertise any more than the “commoner” today who finds him or herself on a jury hearing testimony from a medical expert for the defense.  The underlying reasons for this lack of deference in the populace are complex and worthy of examination apart from this commentary.  Suffice to say at this time, that common folks (and imperious but common-minded queens) have a tendency to judge the judge when they feel that justice has been egregiously abrogated.  These are the minds that rule our world.   In the case of serious mental illness, misunderstanding and ignorance of the nature of this particular type of brain dysfunction is the antecedent of “righteous” indignation.  In the case of the Queen, her personality produced her reflexive activism.  A biography short says of her ‘she constantly tried to meddle in politics and used her status to maximum effect’.  The Queen ordered the court to develop a stricter test for insanity.  The expert testimony of competent physicians and the wisdom of a judge was disrespected and held in contempt.  So the House of Lords held an inquiry with a panel of judges and and M’Naghten’s Rule was the outcome of their conference.

The law does not conflate insanity with mental illness – as most lay persons do.  Theoretically, there is wisdom in the law on this account, but in practice, this approach permits the law and its practitioners to run amok.  The law finds no reason to respect medical science where SMI relates to criminal responsibility.  The wiki entry states that the legal definition of insanity has not advanced significantly since 1843.  Across the pond…in 1953 evidence was given to the Royal Commission on Capital Punishment that doctors even then regarded the legal definition to be obsolete and misleading.  The Royal Commission ultimately condemned the “manifest absurdity of the M’Naghten test” and recommended that the rules be abolished.

We all might have progressed by now in our sensibilities on these matters – and even neuroscience itself might have made more significant inroads except for a particulary destructive influence on the entire world – the psychological theories of Freud, Jung, Adler and others.

Human beings may not be engineered to intuitively understand how we work, but we are equipped with intellect, optimized in some us for the enterprise of scientific discovery.  Neuroscience has a long way to go in understanding the semblance of the human mind, but it knows enough now to cause the law and criminal justice to progress beyond the foolishness of M’Naghten’s Rule.  However, the ideas of the psychoanalysts imprinted on mankind so deeply that their theories of personality and behavior have nearly become part of our DNA, making incompetent folk psychologists of all of us.  Psychoanalytical theories when integrated with our ancient religious notions of good and evil enable us to create a supra-reality that is imposed upon the mentally ill defendant.  The competent medical expert for the accused may attempt to free the minds of jurors from those beliefs, but folk psychology and reverence for the institution of criminal justice has empowered the common juror to put the medical expert in his or her place.

The rest of this article will comment on passages from the above referenced Wikipedia entry for M’Naghten’s Rule.  This exercise does not cast aspersion on the contributors to the wiki entry, they did a fine job at documenting the history and application of the topic.  (excerpts are indented and in italics).

The insanity defense absolves the accused of liability…it applies public policies in relation to criminal responsibility by applying a rationale of compassion…

The insanity defense is an exercise of moral reason and principle; therefore, no one has ownership over its purpose philosophically.  DueJusticeProject asserts on the home page that it has nothing to do with compassion.  Compassion would lead society to extend mercy toward the guilty –  guilty on account of mens rea and actus rea.  Compassion might be expressed via an application of diminished responsibility or diversion from harsh punishment for the guilty.  An insanity defense construes philosophical innocence, on the basis that it is morally wrong to punish someone who cannot (neurally) conform his or her behaviors to the requirements of the law.

… accepting that it is morally wrong to punish a person if that person is deprived permanently or temporarily of the capacity to form a necessary mental intent that the definition of a crime requires…

The notion that someone who is truly insane lacks capacity to form intent is a troublesome concept.  It never seems to be quite clear what is meant by “capacity to form intent”.  Someone who cannot form some type of thought or stream of consciousness or form intent out of that stream of consciousness is a mindless vessel.  Insanity is definitely not mindlessness, it is a form of mentation that is gravely disordered.  Law enforcement professionals, criminologists, and legal practitioners use the term capacity very casually and one has to wonder if they all mean the same thing when they use it.

Schizophrenia, for example, is characterized by what is known as thought disorder.  Clearly, people diagnosed with Sz who engage in goal-directed behaviors to harm others are forming intent.  Does this verbiage mean to say that formed intent is not construed as criminal if that intent arises out of mental disease, or defect of reason?  Does the law excuse a violent act if the intent was formed out of psychosis?  Clearly, an insane person (as neuroscience would define insanity if it needed to) can form intent, and moreover, intent to harm someone.  The biological state of psychosis actually produces a stream of consciousness containing strange  thoughts that would not be produced in the absence of the medical condition.  Punishment of intent formed out of psychosis is captured in the title of Dr. Fuller Torrey’s book “The Insanity Offense”.  Psychosis can also disengage the self-auditing capacities that are needed for self-regulation.  Automisms and anosognosia are attendant symptoms to psychosis and raise the risk for symptomatic violence .  Anosognosia in the context of SMI signals that a human being is disarmed of the capacity to know that his or her thoughts and behaviors are disordered (or “wrong”).  An interrogation or questioning of the anosognosic person under arrest is intended to investigate mens rea, but the answers produced are likely to be a thread spun from psychosis-type confabulation.  Does the law even care?

Medical science knows all of these impairments are real, but practitioners in the criminal justice system believe that they can poke and prod to sort out guilty mind from psychosis.  They have even devised an axiom to condition the populace to believe that practitioners in the criminal justice system and forensic medical experts have these powers:  You can be mentally ill and still know right from wrong – a phrase that incorporates a few strains of fallacy, exploits the generic property of “mentally ill, and creates a red herring by inference.  No one can reach into the unreality produced by the brain consumed by psychosis to separate out criminal intent coexisting with psychosis intent.  Psychosis takes command and control over all mental processes.  Practitioners in law and criminal justice invoke the expression “lacks capacity” without having a clue as to what impairments and incapacities SMI actually causes in relation to criminal responsibility.  In similar fashion to the functional “anosognosia” suggested above, this type of reasoning that laypersons engage in becomes a type of pseudo-confabulation.

Continuing on…Does this expression mean to say that “criminal” is assigned to any intentional act to harm, that if evidenced by behaviors and interrogation that intentional, goal-directed behavior caused the crime, does that make mental defect irrelevant?  If this expression means to equate insanity to mindlessness, or intellectual incapacity to form intention, then this concoction of folk beliefs is a material set of fallacies.  Clearly, people who qualified medical doctors would deem to be insane, are capable of forming intent to harm.  The defendant who killed someone because they believed the devil was dwelling in that person’s body clearly intended to kill the subject, yet he is neurologically detached from reality.  The criminal justice system refuses to accept the narratives produced by clinical delusion and consciousness disorder, choosing to interpret the bizarre and unhuman-like thoughts of psychosis as a type of criminal thinking.

…since they are without sense and reason and can no more commit a tort or a felony than a brute animal, since they are not far removed from brutes, as is evident in the case of a minor, for if he should kill another while under age he would not suffer judgment.

This outmoded language would be considered insensitive and coarse…in likening an insane person to a brute animal, however, it is less dangerously opaque in meaning than “capacity to form intent or criminal intent”.

…The next major advance occurred in Hadfield’s Trial 1800 27 How St. Tr. 765 in which the court decided that a crime committed under some delusion would be excused only if it would have been excusable had the delusion been true. This would deal with the situation, for example, when the accused imagines he is cutting through a loaf of bread, whereas in fact he is cutting through a person’s neck.

Presumably, this passage cites this as an advance in a historical context, nevertheless, this reasoning is deeply problematic on multiple levels.  Any attempt to excise a clinical delusion out of the realm of unreality and into the external realm of sanity for examination and judgement is a treachery.  For example, there was a case of a floridly psychotic young man who reported that he killed his mother because she was neglecting her health.  How would the thought-disordered delusion-driven intent hold up to inspection under the “Hadfield Principle” in this case?  The second part of this passage presents a common conceptualization of ‘not knowing what one is doing’ – a phrase that is often used interchangeably with the ‘knowing right from wrong’ verbiage in M’Naghten’s Rule.  Attorneys of law often create hypothetical narratives like this to explain the law to lay persons.  The problem is that they are creating a fallacy in order to reconcile with another fallacy.  The underlying fiction is that the insane person kills a human being without knowing that he was killing a human being, so a narrative must be spun to depict this notion.

The “lay person’s” notion of insanity:  

The condition of not being able to produce actionable thoughts or have “capacity” to act upon those thoughts.  The cognitive incapacity to “know what one is doing” ( The accused person believed that he or she was killing or attacking an inanimate object rather than a human being.). – Which translates to mindlessness and absence of executive functioning.

The law and criminal justice has been operating on this dangerously fallacious notion for over one and a half centuries (since M’Naughten’s) and unjustly punishing hundreds of thousands of people on this basis.

A person who mistakes something human for an inanimate object would more likely be experiencing a visual hallucination; however, this concocted narrative may not be typical of hallucinations.  Hallucinations are sometimes dream-like, surreal experiences with frightening imagery.  Delusions often involve disturbance of thought production and processing that deform the contextual identities and associations that are linked to things, the self and others.  A person may believe they are God or that they have a special mission to carry out.  A police officer is believed to be an alien.  The CIA is believed to be engaging in persecutorial surveillance activities against the afflicted person.  These individuals are not mistaken for inanimate objects but their meanings and a host of other properties attached to these individuals are outside the realm of reality (Fregoli Syndrome in Schizophrenia for example).  Cognition is happening but it is in an critical state of disarray, operating on a disordered internal sense of logic, cobbled together from stored elements of memories and narratives – and perceptually distorted external element.

This is not the autonomic thinking produced by a healthy brain.  If a well person did think they were being persecuted or surveilled, they would probably have internal conflict produced by self-auditing mechanisms, i.e self doubt, reflection, and reality-testing mechanisms.   There is no self-doubt about clinical delusions.  Psychosis/thought disorder, anosognosia, extreme unaudited paranoia…these symptoms are the manifestation of an incapacitation of those regulatory controls that people need to dispel errant strange or irrational thoughts.

Clinical delusions are often taken lightly by people who do not understand the grave and complex neurocognitive/neuropsychiatric dysfunctions that produce them.  Clinical delusions are different than the type of delusions we speak of in the common vernacular, i.e. psychological separation from reality.  In fact, media reports about accused or convicted killers often sneeringly put the word delusional in quotes (e.g. sentencing date set for “delusional” killer).

Excerpting from ‘Irreconcilable Differences: Mens Rea and Mental Illness, a superb essay/research paper written by student C.  Schwarz who was pursuing a career in psychiatric medicine:

Identifying the neural substrates of “knowing” is critical to the verdict, but human consciousness is not a sequential process with easily identifiable components.  The mechanisms that govern deliberate, premeditated execution of an act do not necessarily precede its initiation.  For defendants whose mental illness manifests itself by an inability to self-govern, it is unjust that their knowledge of the act’s guilty nature denies them reprieve.

…picking up at a point further in the passage (which includes a citation) …neuroscience approaches brain function as “a series of interacting mechanisms” that converge and diverge.  Intent formation, having the express purpose of committing the crime, and awareness, appreciating the illegality of the crime committed, work in a feedback loop, but they are neurally distinct.

…Uninhibited intent leads to unregulated actions, so assessing a defendant’s awareness is not enough to understand his mental state..

The condition of disordered waking consciousness is another aspect of SMI that furthermore, should make “knowing” suspect in the case of SMI.  People have described the state of acute psychosis as being a dream or nightmare-like state.  There are neural capacities that are disengaged when consciousness is in a reduced or abnormal state, yet people are known to carry out complex behaviors while in abnormal states of consciousness.  How is it just to hold a human being criminally responsible and liable on account of mens rea when they are making decisions in an abnormal state of waking consciousness?

Returning to the wikipedia entry, under Criticisms, there is commentary on the Butler Committee, which was set up by the United Kingdom in 1972.  A wiki entry on this committee indicates that this committee arose out of some of the same turbulence that is going on in these times.  At present, in the U.S. there is growing frustration within the ranks of wardens and sheriffs of prisons and jails who are overwhelmed with the large population of severely mentally ill inmates under their watch.  Advocates and human rights activists  are calling out the injustice of criminalization of SMI.  There has been some limited responsiveness from legislatures, but on the whole, the malignant indifference toward this issue preserves the status quo.

Most of this activism at present centers on mitigation of criminal liability, increased access to treatment, and diversion when possible.  However, few voices will be heard at present calling for the Insanity Defense to be justly applied.  The U.S. is a loose (in many respects) unification of what might as well be fifty sovereign countries.  The Supreme Court has failed to provide moral guidance in these matters and left it to the individual states to define insanity for themselves.  This is a high court that is still permitting the execution of people that should have never been held criminally liable in the first place.  The future looks bleak.

The findings of the Butler Committee in the U.K. confronted these matters head on.  It is unfathomable that a similar committee in the U.S., given its national character and consciousness, would have dared criticized M’Naghten’s with such independence and integrity.

-The Final Report made numerous recommendations, including for reform of the psychiatric hospital system, of forensic psychiatry, and the insanity defence.

-The Butler Committee subjected the wording of the insanity defence to intense criticism, noting that the rules were “based on too limited a concept of the nature of mental disorder”, highlighting “the outmoded language of the M’Naghten Rules which gives rise to problems of interpretation” and arguing that the rules were “based on the now obsolete belief in the pre-eminent role of reason in controlling social behaviour… [the rules] are not therefore a satisfactory test of criminal responsibility”.

At the time that this blog post is written, the full Butler Report is not available. It would be ill-advised to rely on any interpretation as reflected in the content of a review, abstract, or wiki entry. Insight into psychosis-spectrum/consciousness disorders is rare and some ideas are likely to be found archaic by now in a document produced in 1975. It is the intent of Due Justice Project to obtain a printing of the original report in its entirety.

As would be expected, given the nature of mankind, with its powerful instinct to prosecute and punish, and the profound misunderstanding of SMI, very few of the recommendations of the committee were instituted into law.  Approximately ten years later in the U.S. the backlash Insanity Defense Reform Act of 1984 became law, arresting what little progress had been made toward more just treatment of mentally ill persons in the criminal justice system.

What the law should be examining, when a person with SMI or other brain disorders commits a felony offense is whether or not the individual has a mental defect, disorder, or disease that is known to cause neurological separation from reality or whether it otherwise deprives someone of the neural capacity to conform their behaviors to the requirements of the law.  Instead of seeking to reconcile the law to the realities of SMI, the law puts blinders on.

People with SMI are being abused relentlessly by public policies that are designed to drive mentally ill persons into the prison system.  The Olmstead Ruling is exploited by state governments to excuse themselves from funding supported housing with 24/7 onsite staff for the most seriously ill.  Yet, state governments are spending extravagant amounts of tax dollars to adjudicate people through the courts, prepare them for prosecution and ram them to prison under the brute force of M’Naghten’s Rule.  Why are we doing this?  What is achieved by this? We are not saving tax dollars in case that is the only craven interest of legislatures.  There are mentally ill people in prison who do not have a rational understanding of why they are there – or why they are on death row.

Meanwhile…stories like this emerge in the media:

Joliet Illinois – The deparment of corrections “shows off” what will soon be the state’s largest residential facility for mentally ill inmates.  …The facility and smaller ones like it are opening as a consequence of a 2007 class action lawsuit involving improper treatment of mentally ill inmates.

“Nobody ever thought we’d become the state’s mental health system”, Illinois Department of Corrections Director said…”But we are, and it’s time we started acting like it”. 

Well Director, a lawsuit propelled the state to act, but what would be more meaningful is if you would state why your SMI inmates are unable to conform their behaviors to the requirements of the law yet they were convicted and punished.

It is the hope of DueJusticeProject that the nation who gave us this criminally unjust legal test will see fit to take heed of the wise counsel of those who have studied these matters and made recommendations for reform. Purveyors of injustice run in packs, taking cover for their own indefensible conduct within the safety of consensus. On the matter of M’Naghten’s Rule, the ones who started this nonsense that has condemned many thousands of the philosophically innocent to punishment -even death, should be the ones to take leadership to fix it.