Anti Insanity Defense Essay Research Paper Attacks (стр. 2 из 2)

strikes indirectly at the mens rea requirement, introducing the

slippery notion that the accused had partial, but not complete,

criminal intent. Second, it creates a lesser and included offense that

judges and juries may choose as simply a compromise verdict.

They believe the accused probably did something wrong and

deserves some punishment, but they are unwilling to bring in a

verdict of guilty on the top charge. The GMI verdict would allow

them to split the difference. Finally the GMI verdict is fraudulent on

the issue of treatment. As proposed, it makes no provision for

treatment of the person who has been declared mentally ill.

The GBI option has already proved to be a bogus reform. A 1981

Illinois law added the GMI as an additional verdict, retaining the

traditional insanity defense. In Cook County, verdicts of not guilty

by reason of insanity actually increased from 34 to 103 between

1981 and 1984. At the same time GMI went from 16 in 1982, the

first year the option was available, to 87 in 1984. There has been

much evidence of a “hydraulic” effect that was contrary to the law’s

intent. In both Illinois and Michigan, GMI verdicts involved people

who would otherwise have been found guilty, not defendents who

would have been found not guilty by reason of insanity (Walker,


The real function of the GBI option is to appease public opinion.

The public has little concern for the details of what actually

happens to a mentally ill criminal defendent. Basically, it wants a

symbolic statement of “guilty.” In practice, the GMI verdict has as

much meaning as “guilty but brown eyes.”

How dangerous is the GMI verdict? As we say with the NGI

verdict, many extremely dangerous mentally ill criminals were

simply released onto the streets where they committed the same

crimes. Does the GMI verdict solve this problem? We have some

“natural experiments” on this questio rising from some court

decisions. A 1971 decision forced to reassessment of 586 inmates

of Pennsylvania’s Fairview State Hospital for the Criminaly Insane

who were placed there under the GMI verdict. Over two-thirds

were eventually released. Over the next four years, 27 percent

were rearrested. Eleven percent were rearrested for violent crime.

Including some others who were rehospitalized for a violent act, a

total of 14.5 percent of those released proved to be dangerous.


Abolishing the insanity defense is easier said than done for the

simple reason that the mens rea requirement remains a fundamental

legal principle. The proposal that “mental condition shall not be a

defense to any charge of criminal conduct” could be interpreted in

one of two ways. The broader interpretation would mean that

absolutly no aspect of mental condition could be taken into

account. In effect, this interpretation would abolish the mens rea

requirement altogether. The prosecution would not have to prove

anything about the accused’s mental state. This is unneccessarry.

For one thing, it would wipe out the distintions that separarte

first-degree murder, second-degree murder, and manslaughter. It

is doubtful that anyone againt the insanity defense would choose to

take this approach. So sweeping, in fact, would be it’s effect, that

it would probably be declared unconstitutuional.

A more limited reading of the wording “mental condition shall not

be a defense to any charge of criminal conduct” would mean that

an affermative plea of “not guilty by reason of insanity” could not

be raised. The crucial distinction here is drawn between

affermative and ordinary defenses. An ordinary defense is simply

an attempt to shown that the prosecution has failed to connect the

accused with the crime, a defense used in everyday law. An

affermative defense is raised when the prosecution has connected

the accused with the crime, as in an example of self-defense. The

defense argues that, yes, the accused did shoot and kill the person

and did so intentionally, but because the act was commited in

self-defense the accused does not bear criminal responsibilty for it.

The same is true in the case of a criminal act commited under

duress. The insanity defense, in this respect, is an affermative

defense. It is this usage that needs to be abolished. In cases such

as self defense it may be an adequate and totally acceptable

defense, for in how many cases do you hear of a man being

aquitted due to a self-defense plea returning to the streets in order

to kill again? To draw a comparison between the two and argue

that both defenses are neccessarry to the total order is naive and



The law of insanity involves the conceptes of mens rea and

punishments, as does the criminal law in general. Insanity is a legal

concept, not a medical concept, and insanity is defined within the

context of an adversary system wherin psychiatrists and lawyers

battle one another over the meaning of terms such as “right and

wrong” and “ability to control one’s behavior.”

Mental illness and mental disease are psychoanalytic concepts, not

scientific concepts. Mental illness is defined by talking to people or

by giving them written tests, and there is no agreement among

psychiatrists as to the meaning of this illness or whether or not it

really exists. Some psychiatrists call mental illness a myth. The

psychoanalyst has not been successful in treating or predicting

mental illness.

The psychoanalyst has never established a casual relationship

between mental illness and criminal behavior. The insanity defense

would require both a mental illness and a relationship between the

illness and the criminal behavior, neither of which could be

scientificly established.

Of the criminals both aquited and convicted using the insanity

defense, a good number have shown conclusive evidence of

recidivism. Many dangerous persons are allowed to return to the

streets and many non-dangerous persons are forced into facilities

due to an insanity plea adding further confusion and injustice

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