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The Insanity Defense: Effects of Abolition Unsupported by a Moral Consensus

Published online by Cambridge University Press:  24 February 2021

Lynnette S. Cobun
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Abstract

The insanity defense reflects the moral judgment that some criminal defendants do not deserve criminal sanctions because of mental incapacity. This Note examines the alternative formulations, such as guilty but mentally ill and diminished responsibility, that some states have enacted in the face of growing controversy over the insanity defense. It observes that the alternatives, if used in lieu of the insanity defense, distort the criminal law and do not comport with the legal doctrine of responsibility, which eschews punishing mentally ill defendants. The Note concludes that the insanity defense should not be abolished unless the moral consensus changes regarding the criminal responsibility of mentally ill defendants.

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Notes and Comments
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American Journal of Law & Medicine , Volume 9 , Issue 4 , Winter 1984 , pp. 471 - 500
Copyright
Copyright © American Society of Law, Medicine and Ethics and Boston University

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References

1 See generally Bazelon, Foreword—The Morality of the Criminal Law: Rights of the Accused, 72 J. CRIM. L. & CRIMINOLOGY 1143 (1981).CrossRefGoogle Scholar

2 Use of the exclusionary rule to enforce the sanctions of the fourth, fifth and sixth amendments exemplifies constitutional protection of the defendant's rights. See generally Y., KAMISAR W., LAFAVE & J., ISRAEL BASIC CRIMINAL PROCEDURE (5th ed. 1980)Google Scholar. The sixth amendment right to jury trial and the eighth amendment prohibition of cruel and unusual punishment and preservation of the defendant's right to effective counsel illustrate the Bill of Rights’ emphasis on protection of the individual from governmental oppression through criminal prosecution. See H., PACKER THE LIMITS OF THE CRIMINAL SANCTION 149-73 (1969)Google Scholar.

3 The accusatorial system is premised upon respect for the defendant's rights. See In re Winship, 397 U.S. 358 (1970).

4 The Justice Department reported a 61% increase, from 1971 to 1981, in the total number of crime index offenses (murder, forcible rape, robbery, aggravated assault, burglary, larceny-theft, motor vehicle theft, and arson). During the same period, violent crimes increased by 58%. FEDERAL BUREAU OF INVESTIGATION, U.S. DEP'T. OF JUSTICE, UNIFORM CRIME REPORTS FOR THE UNITED STATES 39 (1981) (percentages calculated from numerical data).

5 See generally Arenella, Schmerber and the Privilege Against Self-Incrimination: A Reappraisal, 20 AM. CRIM. L. REV. 31 (1982)Google Scholar; Dressier, Substantive Criminal Law through the Looking Glass of Rummel v. Estelle: Proportionality and fustice as Endangered Doctrines, 34 SW. L.J. 1063 (1981)Google Scholar; Note, 4th Amendment: Automatic Standing for Defendants Charged with Possessory Crimes is Overruled, 55 TUL. L. REV. 250 (1980); Note, Right to Counsel Limited to Postindictment Lineups, 14 SUFFOLK U.L. REV. 601 (1980).

6 Proposals for reform have been put forth on both state and federal levels. There has been much debate in Congress over reform with numerous separate bills. H.R. 6497, 6653, 6673, 6661, 6702, 6709, 6717, 6718, 6726, 6737, 6742, 6768, 6783, and S. 2572, 97th Cong., 2d Sess. (1982). See Arenella, Reflection on Current Proposals to Abolish or Reform the Insanity Defense, 8 AM. J.L. & MED. 271, 280-83 (1982).CrossRefGoogle Scholar Abolition was proposed in the Violent Crime and Drug Enforcement Improvements Act of 1982, S. 2572, 97th Cong., 2d Sess. § 4242 (1982); See Note, The Insanity Defense: A Review of Recent Statutory Changes, 3 J. LEGAL MED. 617, 629 (1982). President Reagan has advanced a similar proposal that virtually eliminates the insanity defense. Bandes, Developments in the Insanity Defense, 10 BARRISTER 41, 44 (Spr. 1983)Google Scholar; Reagan Offers Bill to Tighten Rules on Criminal Defendants, N.Y. Times, Sept. 14, 1982, at Al, col. 3.

7 For debate over abolition of the insanity defense, see generally Annot., 37 F.R.D. 365, 369 (1964) (Weintraub, C.J.); Dershowitz, Abolishing the Insanity Defense: The Most Significant Feature of the Administration's Proposed Criminal Code, 9 CRIM. L. BULL. 434 (1973)Google Scholar (commenting on Criminal Code Reform Act of 1973, S. 1400, 93rd Cong., 1st Sess. (1973)).

8 See supra note 6 and infra note 11; Arenella, supra note 6, at 280-82; Craig, & Pasewark, Changing Insanity Plea Statutes, 11 U.C.L.A.-ALASKA L. REV. 173 (1982)Google Scholar; Fullin, Jr. Insanity Defense: Ready for Reform?, 55 Wis. B. BULL. 13 (Dec. 1982)Google Scholar; Note, The Insanity Defense: A Review of Recent Statutory Changes, 3 J. LEGAL MED. 617 (1982); Note, Recommendation for Changing the Massachusetts Insanity Defense Statute, 8 NEW ENG. J. PRISON L. 155 (1982); Note, M'Naghten: Right or Wrong for Florida in the 1980s? It Flunks the Test, 6 NOVA L.J. 125 (1981); Note, People v. Drew—Will California's New Insanity Test Ensure a More Accurate Determination of Insanity?, 17 SAN DIEGO L. REV. 491 (1980) [hereinafter cited as Note, People v. Drew]; Comment, Reforming Insanity Defense Procedures in New York: Balancing Societal Protection Against Individual Liberty, 45 ALB. L. REV. 679 (1981).Google Scholar

9 The American Bar Association estimates that only one percent of all felony defendants successfully invokes the insanity defense. Memorandum from National Conference of State Legislatures (Aug. 10, 1982).

The defense is unattractive … because of the typical consequences of its success: compulsory indeterminate confinement in a maximum security mental hospital. The defense is also difficult to substantiate by a defendant who cannot afford expert psychiatric assistance in preparing and presenting it. Thus, although the defense of insanity is part of the law in all states, in practice it is seldom used, as our field observations and data make clear.

A., MATTHEWS MENTAL DISABILITY AND THE CRIMINAL LAW: A FIELD STUDY 24 (1970).Google Scholar See also Morris, The Criminal Responsibility of the Mentally III, 33 SYRACUSE L. REV. 477 (1982).Google Scholar

10 See Bulmash, Irony of the Insanity Defense: A Theory of Relativity, 10 PSYCHOLOGY & L. 285 (1982)Google Scholar; Clanon, Shawver, & Kurdys, Less Insanity in the Courts, 68 A.B.A. J. 824 (1982)Google Scholar; diGenova, & Toensing, Bringing Sanity to the Insanity Defense, 69 A.B.A. J. 466 (1983)Google Scholar; Robinson, Insanity Defense: Does it Serve Justice? Does it Protect the Public? 71 III. B.J. 306 (1983)Google Scholar; Smith, Limiting the Insanity Defense: A Rational Approach to Irrational Crimes, 47 MO. L. REV. 605 (1982)Google Scholar; Weiner, The Sane Approach to Protecting the Public from the Person Found Not Guilty by Reason of Insanity, 62 CHI. B. REC. 196 (1981).Google Scholar

11 MONT. CODE ANN. §§ 46-14-102 to -313 (1983); IDAHO CODE § 18-207 (1982). Prior to abolition, Montana's insanity defense was similar to, but somewhat stricter than, the Model Penal Code. Compare REV. CODE MONT. ANN. § 95-50l(a) (Smith 1947 & Supp. 1977) (“unable … to appreciate… .“) (repealed 1979) with MODEL PENAL CODE § 4.01(a) (1962) (“lacked substantial capacity to appreciate… .“); see State ex rel Krutzfeldt v. District Court, 163 Mont. 164, 172, 515 P.2d 1312, 1316 (1973). Montana repealed its statutory insanity defense as an anti-crime measure. See Note, supra note 6, at 628 n.58. Prior to 1982, Idaho applied a Model Penal Code insanity defense. IDAHO CODE § 18-207(1972) (repealed 1982); see Insanity Defense Barred in Idaho, 68 A.B.A. J. 531 (1982). Initially, the Model Penal Code formulation was adopted by the Idaho Supreme Court, and the burden of proof was placed on the state (contrary to the Model Penal Code). State v. White, 93 Idaho 153, 160, 456 P.2d 797, 804 (1969). Prior to the legislative enactment, the Idaho Supreme Court shifted the burden back to the defendant. State v. Myers, 94 Idaho 570, 579-80, 494 P.2d 574, 578-79 (1972).

Abolition has been attempted in a third state, Alabama. Alabama Public Act No. 82-888 (3d Sp. Sess. 1982) attempted to repeal ALA. CODE § 13A-3-1 (1982) (Alabama's insanity defense), but the acts passed by the Alabama legislature in the Third Special Session were found to violate the procedural requirements of art. V, § 125 of the Alabama Constitution. See State v. Eley, 423 So. 2d 303 (Ala. Crim. App. 1982), cert denied, 423 So. 2d 305 (1982).

Washington, Louisiana and Mississippi abolished the defense in the early 1900s. Each state subsequently found the abolition unconstitutional under its state constitution. See Note, The Insanity Defense: A Review of Recent Statutory Changes, supra note 6, at 635. See also State v. Strasburg, 60 Wash. 106, 110 P. 1020 (1910); State v. Lange, 168 La. 957, 123 So. 639 (1929); Sinclair v. State, 161 Miss. 142, 132 So. 581 (1931).

12 See generally G., Dix & M., SHARLOT CRIMINAL LAW CASES & MATERIALS 172-73 (2d ed. 1979)Google Scholar; Robinson, & Grace, Element Analysis in Defining Criminal Liability: The Model Penal Code and Beyond, 35 STAN. L. REV. 681 (1983).CrossRefGoogle Scholar

13 Homicide is often discussed as having a “result” element, as opposed to an actus reus. For the purpose of this Note, it is sufficient to treat result elements as a subcategory of actus reus. G. Dix & M. SHARLOT, supra note 12, at 346.

14 For example, the “at night” requirement of the crime of burglary is a circumstance. See, e.g., MODEL PENAL CODE § 221.1(2).

15 For an argument that disposition following acquittal removes the doctrine from defense theory, see Goldstein, & Katz, Abolish the “Insanity Defense“—Why Not?, 72 YALE L.J. 853 (1963)CrossRefGoogle Scholar. See also Note, Commitment and Release of Persons Found Not Guilty by Reason of Insanity: A Georgia Perspective, 15 GA. L. REV. 1065 (1981).

16 “Responsible” is defined as “[ljiable, legally accountable or answerable. Able … to discharge an obligation which he may be under.” BLACK's LAW DICTIONARY 1180 (5th ed. 1979). The insanity defense is a test of responsibility—it determines whether a defendant is able to discharge his obligation to conform to the criminal law. Responsibility standards are usually conceived as absolute concepts; they create a threshold above which the defendant is accountable and below which he is exempt from culpability. See generally D., JONES CRIME AND CRIMINAL RESPONSIBILITY 41–71 (1978).Google Scholar

17 Id. at 46.

18 See generally Mundle, Punishment and Desert, in THEORIES OF PUNISHMENT 58 (S., Grupp ed. 1971)Google Scholar [hereinafter cited as THEORIES OF PUNISHMENT].

19 See generally A., GOLDSTEIN THE INSANITY DEFENSE (1967).Google Scholar

20 10 Cl. & Fin. 200, 8 Eng. Rep. 718 (H.L. 1843).

The M'Naghten rule … embodies conclusions about human psychology which derive from [much earlier sources]. Thus, in the Eirenarcha [Handbook for Justices of the Peace] of 1582, William Lambard of Lincoln's Inn set forth the test of whether the man had “knowledge of good or evil.” Arnold's Case, 16 State Trials 695 (1724), set forth the so-called “Wild Beast” test of whether the defendant “doth not know what he is doing no more than … a wild beast.“

State v. White, 93 Idaho at 157, 456 P.2d at 801.

21 10 Cl. & Fin. at 210, 8 Eng. Rep. at 722 (emphasis added).

22 214 F.2d 862 (D.C. Cir. 1954).

23 Id. at 874-75.

24 MODEL PENAL CODE § 4.01(1) (1962). The Model Penal Code has been adopted in several states. MATTHEWS,supra note 9, at 15 n.12. The American Bar Association has recently advocated the abolition of the volitional component of the insanity defense. See Margolick, Changes Endorsed on Insanity Pleas, N.Y. Times, Feb. 10, 1983, at A18, col. 1Google Scholar. Under the Model Penal Code, the burden of proof lies with the defendant. MODEL PENAL CODE § 4.03 (1962).

25 The term “special treatment” is used throughout this Note to refer to the exculpatory or mitigating consequences of taking a defendant's mental incapacity into account. While the insanity defense is one example of special treatment, the term is used to encompass all possible implementations of the moral impulse.

26 See generally J., BIGGS THE GUILTY MIND 111-17 (1965)Google Scholar. See also THEORIES OF PUNISHMENT, supra note 18; J., GIBBS CRIME, PUNISHMENT AND DETERRENCE (1975).Google Scholar

27 For a discussion of rehabilitation, see J., GIBBS supra note 26, at 72–79Google Scholar; Weihofen, Punishment and Treatment: Rehabilitation, in THEORIES OF PUNISHMENT, supra note 18, at 255.Google Scholar

28 For a discussion of incapacitation, see J., GIBBS supra note 26, at 58–67.Google Scholar

29 In 1983, the chairman of an American Psychiatric Association committee on the insanity defense stated that “psychiatrists have great difficulty in predicting dangerous behavior” and that the best indicator of future violence was a past record of violence, not psychiatric diagnosis. Psychiatric Group Urges Stiffer Rules for Insanity Plea, N.Y. Times, Jan. 20, 1983, at A18, col. 1. See Mullen, & Reinehar, Predicting Dangerousness of Maximum Security Forensic Mental Patients, 10 J. PSYCHOLOGY & L. 223 (1982).Google Scholar See also Note, ABA Panels, Psychiatry Association Issue Reports on Insanity Defense, 32 CRIM. L. REP. 2365, 2366 (1983).

30 For a discussion of specific deterrence, see J., GIBBS supra note 26, at 34–55.CrossRefGoogle Scholar

31 See MATTHEWS, supra note 9.

32 For a discussion of general deterrence, see J., GIBBS supra note 26, at 32–33Google Scholar (discussing “absolute” deterrence); Andenaes, General Prevention—Illusion or Reality?, in THEORIES OF PUNISHMENT, supra note 18, at 138; Miller, Public Knowledge of Criminal Penalties, in THEORIES OF PUNISHMENT, supra note 18, at 205.

33 See supra note 18 and accompanying text.

34 E.g., purposefully, knowingly, with intent to kill. See generally W., LAFAVE & A., SCOTT HANDBOOK ON CRIMINAL LAW 195 (1972).Google Scholar Actus reus is generally interpreted not to include, in itself, any element of intent, despite intimations to the contrary in Robinson v. California, 370 U.S. 660 (1962). Robinson suggests that the Constitution might require a volitional element in the actus reus, 370 U.S. at 666, but Powell v. Texas, 392 U.S. 514 (1968), explicitly abandoned any such notion. See Justice Black's concurring opinion noting this revision of Robinson, id. at 540. See also Lynch, Mental Element in Actus Reus, 98 LAW Q. REV. 109 (1982).Google Scholar

35 See, e.g., State v. Powers, 96 Idaho 833, 847, 537 P.2d 1369, 1383 (1975).

36 In re Winship, 397 U.S. 358, 364 (1970) held “that the Due Process Clause protects the accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged” (emphasis added). See also Morrisette v. United States, 342 U.S. 246, 274 (1952), where the Court implied a mens rea where the statute did not explicitly include one.

37 Sandstrom v. Montana, 442 U.S. 510 (1979); Patterson v. New York, 432 U.S. 197 (1977); Mullaney v. Wilbur, 421 U.S. 684 (1975).

38 Hopt v. People, 104 U.S. 631, 634 (1881); Arenella, The Diminished Capacity and Diminished Responsibility Defenses: Two Children of a Doomed Marriage, 77 COLUM. L. REV. 827, 833 (1977).CrossRefGoogle Scholar

39 Diminished capacity is often confused with diminished responsibility, but for the purposes of clarity, this Note adopts Professor Arenella's distinction: true diminished capacity is a strict mens rea defense, limited to the question of whether the defendant has the requisite mental state. Arenella, supra note 38, at 833. See generally Dix, Psychological Abnormality as a Factor in Grading Criminal Liability: Diminished Capacity, Diminished Responsibility Defenses and the Like, 62 J. CRIM. L., CRIMINOLOGY & POL. SCI. 313 (1971)CrossRefGoogle Scholar; Morse, Diminished Capacity: A Moral and Legal Conundrum, 2 INT‘L. J. L. & PSYCHIATRY 271 (1979)CrossRefGoogle Scholar; Sparks, Diminished Responsibility in Theory and Practice, 27 MOD. L. REV. 9 (1964)CrossRefGoogle Scholar; Wootton, Diminished Responsibility: A Layman's View, 76 LAW Q. REV. 224 (1960).Google Scholar

40 Bonnie, & Slobogin, The Role of Mental Health Professionals in the Criminal Process: The Case for Informed Speculation, 66 VA. L. REV. 427, 448 n.58 (1980)CrossRefGoogle Scholar; Morse, Failed Explanations and Criminal Responsibility: Experts and the Unconscious, 68 VA. L. REV. 971, 976 n.14 (1982)CrossRefGoogle Scholar; Robinson, Criminal Law Defenses: A Systematic Analysis, 82 COLUM. L. REV. 199, 206 (1982)CrossRefGoogle Scholar. For example, in State v. Linn, 93 Idaho 430, 462 P.2d 729 (1969), the defendant made out a diminished capacity defense based on his intoxicated condition at the time of the crime. The Idaho Supreme Court affirmed the following trial court jury instructions:

You are instructed that no act committed by a person while in a state of voluntary intoxication is less criminal by reason of his having been in such condition. But whenever the actual existence of any particular purpose, motive or intent is a necessary element to constitute any particular species or degree of crime, the jury may take into consideration the fact that the accused was intoxicated at the time in determining the purpose, motive, or intent with which he committed the act. 93 Idaho at 437 n. 12, 462 P.2d at 736 n. 12. Thus, while a state of intoxication was not allowed to comprise an affirmative defense, it still bore on the requisite state of mind to be considered by the jury. The introduction of evidence of mental illness to disprove mens rea should have the same effect.

41 Bonnie & Slobogin, supra note 40, at 448.

42 A permissive inference is not unconstitutional, but a presumption is. See Sandstrom v. Montana, 442 U.S. 510 (1979).

43 See infra notes 48-51 and accompanying text. Crimes are “scheduled” when they have the same actus reus, but varying levels of mens rea.

44 Common law courts often subdivide criminal intent, or mens rea, into specific and general intent. Bentil, Jurisprudentially Obscure and Confusing Distinction Made by the Superior Courts Between Crimes of Basic Intent and Those of Specific Intent, 10 ANGLO-AM. L. REV. 129 (1981).CrossRefGoogle Scholar By and large, a given statutory mens rea is one of general intent when it requires only the intent to do the act with which the defendant is charged. Thus, when an offense requires the defendant to act purposefully, knowingly, or recklessly, the mens rea is one of general intent. When the requisite mens rea requires more than the intent to commit the proscribed act, such as a murder statute requiring malice, or premeditation, courts have called the additional mens rea specific intent. Id. at 133; see also Arenella, supra note 38, at 828 n.7. The distinction between specific and general intent has been criticized. However, in relationship to the difficulty of proof, and the use of inference, the distinction is valid. The Model Penal Code illustrates the trend away from distinguishing between specific and general intent crimes: “We can see no virtue in preserving the concept of ‘general intent,’ which has been an abiding source of ambiguity and of confusion in the penal law.” MODEL PENAL CODE § 2.02 comment (Tent. Draft No. 4, 1955).

45 Courts often state that diminished capacity is only available when the defendant is charged with a specific intent crime:

[E]vidence of the condition of the mind of the accused at the time of the crime, together with surrounding circumstances, may be introduced, not for the purpose of establishing insanity, but to prove that the situation was such that a specific intent was not entertained—that is, to show absence of any deliberate or premeditated design.

Batalino v. People, 118 Colo. 587, 594, 199 P.2d 897, 901 (1948) (emphasis deleted), cited in United States v, Brawner, 471 F.2d 969, 1001 (D.C. Cir. 1972).

46 Cases in both Montana and Idaho illustrate the use of inference to prove mens rea. In State v. Lukas, 149 Mont. 45, 423 P.2d 49 (1967), a Montana court gave a diminished capacity instruction in a prosecution for first degree assault, a specific intent crime. The court held that even where a specific intent is required, ajury may infer the mens rea. Id. at 55, 423 P.2d at 54. The defendant was intoxicated at the time of the crime, but the court found there was sufficient circumstantial evidence of the defendant's mental state to support the finding. Id. Similarly, in an Idaho homicide case, the court stated: “The necessary elements of deliberation and premeditation may be inferred from the proof of such facts and circumstances as will furnish a reasonable foundation for such an inference … .” State v. Powers, 96 Idaho 833, 847, 537 P.2d 1369, 1383 (1975).

47 For example, the mens rea of premeditation could be inferred from acts such as buying a gun, or writing threatening letters.

48 See supra note 43.

49 See supra note 13.

50 See, e.g., United States v. Brawner, 471 F.2d 969 (DC. Cir. 1972);seealso Arene\la,supra note 38, at 828.

51 Carey v. State, 91 Idaho at 711, 429 P.2d at 841.

52 MONT. CODE ANN. § 46-14-102 (1982); IDAHO CODE § 18-207(c) (1982).

53 MONT. CODE ANN. § 46-14-102 (1979). This provision is virtually identical to REV. CODE MONT. ANN. § 95-502 (Smith 1947) (repealed 1979) which existed prior to the abolition of the insanity defense in Montana. See infra notes 56-67 and accompanying text.

54 IDAHO CODE § 18-207(c) (1982).

55 See infra notes 99-106 and accompanying text.

56 REV. CODE MONT. ANN. § 95-502.

57 State v. McKenzie, 177 Mont. 280, 325, 581 P.2d 1205, 1231 (1978) (citing REV. CODE MONT. ANN. § 94-2503 (Smith 1947) (repealed 1979) (current version at MONT. CODE ANN. §§ 45-5-101 to -104 (1983)).

58 MONT. CODE ANN. §§ 45-5-101 to -104 (1983).

59 Although a second degree of homicide, mitigated homicide, still exists, it requires t he same mens rea (purpose or knowledge) as deliberate homicide. Id. at § 45-5-103.

60 171 Mont. 278, 557 P.2d 1023 (1976), vacated, 433 U.S. 905 (1977), aff'd, 177 Mont. 280, 581 P.2d 1205 (I978),vacated, 443 U.S. 903 (197'9),modified, 186 Mont. 481, 608 P.2d 428, cert, denied, 449 U.S. 1050 (1980).

61 REV. CODE MONT. ANN. § 95-502 (1967).

62 REV. CODE MONT. ANN. § 95-501(a). Montana's insanity defense had not been repealed at the time McKenzie was charged.

[U]nder Montana law in effect when section 95-502 R.C.M. 1947, was enacted [codifying a diminished capacity defense], evidence of a defendant's mental disease or defect was admissable to prove, or disprove, for example, that although a defendant committed an unlawful killing with malice aforethought, he had not the capacity to form the specific intent—deliberation or premeditation—which was an element of first degree murder.

McKenzie, 177 Mont, at 325, 581 P.2d at 1231.

64 Id. at 326, 581 P.2d at 1231.

65 Id. The prosecution accepted this logical result, but distorted the law by arguing that, as a consequence of diminished capacity's potential to exculpate the defendant, the defense “merged with the insanity defense of section 95-501.” Id. The prosecution was presumably hoping that if such a “merger” occurred, the diminished capacity defense would no longer be available once the insanity defense had failed.

The McKenzie court did not accept the prosecution's argument, holding that failure of the insanity defense had no bearing on the defendant's ability to show that “he lacked mental capacity to form the intent to ki\\.” Id. at 326, 581 P.2d at 1232. However, the court distorted diminished capacity in its own fashion. See text accompanying notes 66-67.

66 McKenzie, 177 Mont, at 326, 581 P.2d at 1232. The Montana definition of aggravated assault reads: “(1) A person commits the offense of aggravated assault if he purposely or knowingly causes (a) serious bodily injury to another … .” MONT. CODE ANN. § 45-5-202 (1981).

67 McKenzie, 177 Mont, at 333, 581 P.2d at 428.

68 636 P.2d 1377 (Mont. 1981).

69 Id. at 1380.

70 MONT. CODE ANN. § 46-14-102; See supra note 11.

71 See supra notes 34-40 and accompanying text.

72 “The only difficulty with the mens rea model is its assumption that psychiatric analysis is directly relevant to the criminal law's state of mind elements. This premise is usually erroneous because most expert testimony does not speak to the criminal law's conception of intent.” Arenella, supra note 38, at 833. “Doney, 636 P.2d at 1380.

74 Id.

75 Id.

76 See supra note 40 and accompanying text.

77 See, e.g., Patterson v. New York, 432 U.S. 197, 205 (1977) (placing burden of proof on defendant since defendant was not disproving any element of the crime).

78 State v. McKenzie, 171 Mont. 278, 557 P.2d 1023 (1976), vacated, 433 U.S. 905 (1977), aff'd, 177 Mont. 280, 581 P.2d 1205 (1978), vacated, 443 U.S. 903 (1979), modified, 186 Mont. 481, 608 P.2d 428, cert, denied, 449 U.S. 1050 (1980).

79 177 Mont, at 3 1 1, 581 P.2d at 1221.

80 Id. at 308, 581 P.2d at 1221.

81 Id. at 324, 581 P.2d at 1230. The court subsequently found, contrary to defendant's arguments, that the instructions did not place the burden on the defendant, thereby rendering the case's outcome immune to constitutional challenge:

The instructions which were given to the jury in this case not only protected defendant within the ambit of Montana law, but indeed posited a more liberal burden of proof than that to which defendant was entitled. The instructions, when read together, also required defendant to establish his diminished capacity merely by raising a reasonable doubt, rather than by proof by a preponderance of the evidence.

McKenzie, 186 Mont, at 530, 608 P.2d at 456. Thus, although the Montana court held in McKenzie that, in theory, the burden of proof of diminished capacity could be placed on the defendant, the trial court had not actually done so.

82 432 U.S. 197 (1977), cited in McKenzie, 433 U.S. 905 (1977).

83 Patterson, 432 U.S. at 197, and Mullaney v. Wilbur, 421 U.S. 684 (1975), held that the burden to prove provocation cannot be shifted to the defendant when provocation is an element of the offense. In Mullaney, the Maine statute in question defined the mens rea for murder, “malice aforethought,” as cruelty without provocation. In so doing, the Maine legislature made lack of provocation an element of the crime and thereby required the state to carry the burden of proving lack of provocation. In Patterson, the mens rea for murder was intent to kill, and the mens rea for manslaughter was intent to kill under the influence of extreme emotional disturbance. Thus, under the New York statute the prosecution was not required to prove the lack of provocation in order to carry its burden of proof for murder.

84 McKenzie, 177 Mont, at 280, 581 P.2d at 1205.

85 Id. at 329, 581 P.2d at 1233.

86 McKenzie, 443 U.S. at 903.

87 442 U.S. 510(1979).

88 McKenzie, 186 Mont, at 481, 608 P.2d at 428.

89 The court held, however, that these unconstitutional instructions were harmless error:

The evidence on the issue of intent is overwhelming, uncontradicted, and permits but one rational conclusion—that defendant purposely and knowingly intended to kidnap and kill her. We conclude that a reasonable juror could not have found otherwise on the proof presented by the State, the instructions on rebuttable presumptions notwithstanding … . We declare a belief that the unconstitutional jury instructions were harmless beyond a reasonable doubt in the context of the undisputed evidence in this case, that the assigned error could not have contributed to the verdict in this case.

Id. at 535, 608 P.2d at 459. This “harmless” constitutional error holding was the subject of a dissent by Justice Shea of the Montana Supreme Court, who stated that the court “ignored State v. Sandstrom.” Id. at 543, 608 P.2d at 463. This holding was also the subject of a final appeal to the United States Supreme Court. The Court denied certiorari, but in a dissent by Marshall and Brennan, Marshall wrote: “I cannot help but be shocked that in taking this approach the Montana [Supreme Court] simply applied the forbidden presumption.” 449 U.S. at 1053.

90 McKenzie, 186 Mont, at 521-530, 608 P.2d at 451-56 (quoting McKenzie, 177 Mont, at 324-33, 581 P.2d at 1230-35).

91 McKenzie, 177 Mont, at 328, 581 P.2d at 1232.

92 McKenzie, 186 Mont, at 528, 608 P.2d at 455 (quoting Patterson, 432 U.S. at 207).

93 It is not clear what insanity standard, if any, is included in this affirmative “diminished capacity” defense. It is probable that no such separate culpability standard is provided, but that the Montana court is merely attempting to curtail the use of psychiatric evidence. The court did suggest that its burden of proof holding was partially based on the “highly subjective” nature of psychiatric testimony. McKenzie, 186 Mont, at 527, 608 P.2d at 455. If, then, the Montana court's interpretation of diminished capacity does not provide a sanity standard, but merely allows the defendant to introduce psychiatric evidence to disprove mens rea, while discriminating against such evidence by placing The burden of proof on the defendant, it violates the due process clause of the 14th amendment.

94 328 U.S. 463 (1946), cited in McKenzie, 186 Mont, at 527, 608 P.2d at 454.

95 328 U.S. at 466. See also id. at 470 n.6 (text of the denied instruction). This holding is contrary to Hopt v. People, 104 U.S. 631 (1881), which held that “a condition of mind, by reason of drunkenness or otherwise,” was a “material subject of consideration by the jury. “ 104 U.S. at 634. See also 328 U.S. at 491-92 (Murphy, J., dissenting).

96 328 U.S. at 470.

97 “(1) A person is not guilty of an offense, other than an offense which involves absolute liability, unless, with respect to each element described by t he statute defining the offense, he acts [knowingly, negligently, or purposely] … (6) Any defense based upon this section is an affirmative defense.” MONT. CODE ANN. § 45-2-103 (1983).

98 Doney, 636 P.2d at 1381.

99 61 Cal. 2d 795, 394 P.2d 959, 40 Cal. Rptr. 271 (1964).

100 Arenella, supra note 38, at 845.

101 Id. at 844-49.

102 61 Cal. 2d at 799, 394 P.2d at 961, 40 Cal. Rptr. at 273.

103 Id. at 806, 394 P.2d at 965-66, 40 Cal. Rptr. at 277-78.

104 Id. at 821, 394 P.2d at 975, 40 Cal. Rptr. at 287.

105 ‘“YO prove the killing was deliberate and premeditated, it shall not be necessary to prove defendant maturely and meaningfully reflected upon the gravity of his or her act.” CAL. PENAL CODE § 189 (West Supp. 1984). Prior to this legislative action, the California Supreme Court had embraced the Model Penal Code insanity standard and rejected the M'Naghten test. People v. Drew, 22 Cal. 3d 333, 583 P.2d 1318, 149 Cal. Rptr. 275 (1978). See Note, People v. Drew, supra note 8, at 491.

106 S. K., ADISH S., SCHULHOFER AND M., PAULSEN CRIMINAL LAW AND ITS PROCESSES 425 (1983).Google Scholar

107 See supra notes 56-59 and accompanying text.

108 United States v. Dougherty, 473 F.2d 1113, 1132 (D.C. Cir. 1972). On jury nullification, see generally Becker, Jury Nullification: Can a Jury Be Trusted?, 16 TRIAL 41 (1980)Google Scholar; Kunstler, Jury Nullification in Conscience Cases, 10 VA. J. INT'L L. 71 (1969)Google Scholar; Richardson, Jury Nullification: Justice or Anarchy?, 80 CASE & COMMENT 30 (Mar.-Apr. 1975)Google Scholar; Scheflin, Jury Nullification: The Right to Say No, 45 S. CAL. L. REV. 168 (1972)Google Scholar; Simson, Jury Nullification and the American System: A Skeptical View, 54 TEX L. REV. 488 (1976)Google Scholar; Van, Dyke The Jury as a Political Institution, 16 CATH. LAW. 224 (1970)Google Scholar; Note, Jury Nullification and the Pro Se Defense: The Impact of Dougherty v. United States, 21 KAN. L. REV. 47 (1972).

109 Dougherty, 473 F.2d at 1140 n.5 (Bazelon, J., dissenting). This power on behalf of the jury was recognized early in Anglo-American legal history. See id. at 1136 n.53; Simson, supra note 108, at 491-502.

110 In Indiana and Maryland, the courts must allow jury nullification under constitutional compulsion. IND. CONST, art. I, § 19; MD. DECL. RIGHTS art. XXIII, § 5. Only in Indiana may the jury nullify decisions on the constitutionality of statutes. Lynch v. State, 9 Ind. 541 (1857). In Maryland, the court of appeals held that the jury had no authority under the provision to I decide constitutional questions. Franklin v. State, 12 Md. 236 (1858) (citing MD. CONST, art. X, § 5). However, in Indiana, unlike Maryland, the judge is not required to instruct juries that they may nullify the law. Bridgewater v. State, 153 Ind. 560, 566, 55 N.E. 737, 739 (1889). See Simson, supra note 108, at 521 n.143.

111 Jury nullification was a common occurrence in early English cases where mandatory capital punishment was required in a forgery conviction. Dougherty, 473 F.2d at 1136 n.53 (citing L. RADINOWICZ, THE MOVEMENT FOR REFORM, 1750-1833, A HISTORY OF ENGLISH CRIMINAL LAW 370 App. 3 (1948)).

112 Dougherty, 473 F.2d at 1130-34.

113 473 F.2d 1113 (D.C. Cir. 1972). Defendants were convicted for unlawful entry of company premises during a protest against the company's production of chemicals used in the Vietnam War. Id. at 1116-17. The court denied defendant's request for a specific jury instruction-on nullification. Id. at 1132-37. See also United States v. Washington, 705 F.2d 489 (D.C. Cir. 1983); United States v. Drefke, 707 F.2d 978 (8th Cir. 1983); United States v. Anderson, 716 F.2d 446 (7th Cir. 1983); United States v. Berrigan, 417 F.2d 1002 (4th Cir. 1969).

114 Dougherty, 473 F.2d at 1133.

115 Id. at 1138-44 (Bazelon, J., dissenting).

116 Id. at 1142.

117 See generally Gardner, Determinate Sentencing and the 8th Amendment: Excessive Punishment Before and After Rummell v. Estelle, 1980 DUKE L.J. 1103; Symposium on Determinate Sentencing, 5 HAMLINE L. REV. 161 (1982)Google Scholar; Note, Determinate Sentencing in California and Illinois: Its Effect on Sentence Disparity and Prisoner Rehabilitation, 1979 WASH. U.L.Q. 551.

118 See generally SENTENCING REFORM: EXPERIMENTS IN REDUCING DISPARITY (M. Forst ed. 1982). The sentence is usually bounded by a maximum time and a minimum time. See, e.g., MODEL PENAL CODE § 6.06 (1962); but cf. NATIONAL CONFERENCE OF COMMISSIONERS ON UNIFORM STATE LAWS, UNIFORM LAW COMMISSIONER's MODEL SENTENCING AND CORRECTIONS ACT § 3-104(4) (Approved Draft 1978) (only maximum sentences are stipulated) [hereinafter MODEL SENTENCING AND CORRECTIONS ACT].

119 See, e.g., MODEL SENTENCING AND CORRECTIONS ACT,supra note 118, at §§ 3-301, 3-401, 3-601 (providing for community supervision, restitution and fines).

120 “Excessive bail shall not be required, nor excessive fine imposed, nor cruel and unusual punishments inflicted.” U.S. CONST, amend. VIII. See Lockett v. Ohio, 438 U.S. 586 (1978); Gregg v. Georgia, 428 U.S. 153 (1976); Woodson v. North Carolina, 428 U.S. 280 (1976); Furman v. Georgia, 408 U.S. 238 (1972).

Some defendants have claimed that their eighth amendment rights were violated when they were civilly committed because of their mental illness or because they were criminally punished despite their mental illness. See L., BERKSON THE CONCEPT OF CRUEL AND UNUSUAL PUNISHMENT 105-07 (1975).Google Scholar

121 Gregg v. Georgia, 428 U.S. 153, 188-95 (1976).

122 Id. at 153. 123 Id. at 193-95 (citing MODEL PENAL CODE § 210.6 (1962)).

124 MODEL PENAL CODE § 210.6(4)(g) (1962).

125 Lockett v. Ohio, 438 U.S. 586, 604 (1978) (emphasis in original).

126 See Nagel, & Levy, The Average May be the Optimum in Determinate Sentencing, 42 U. PITT. L. REV. 583, 585-88 (1981).Google Scholar See supra note 117. See generally M. FORST, Supra note 118.

127 See Gitchoff, Expert Testimony at Sentencing, 7 NAT‘L J. CRIM. DEF. 101 (1981).Google Scholar

128 MODEL SENTENCING AND CORRECTIONS ACT, supra note 118, at § 3-104.

129 Id. at §3-108(9).

130 See Rummell v. Estelle, 445 U.S. 2 6 3, 281-84 (1980) (discussing the minimal impact of the eighth amendment); see also Hutto v. Finney, 437 U.S. 6 78 (1978); Robinson v. California, 370 U.S. 660 (1962) (where punishment on the basis of defendant's status alone was found unconstitutional); Weems v. United States, 217 U.S. 349 (1910); L. BERKSON,supra note 120, at 65-86; Dressier, supra note 5.

131 ALASKA STAT. § 12.47.830 (1982); GA. CODE ANN. § 17-7-131(c)(2) (1983); III . REV. STAT. ch. 38, P.A. 82-553 H 6-2(c) (1981); IND. CODE ANN. § 35-36-1-1 (Burns Supp. 1983); MICH. COMP. LAWS § 768.36 (1979); N.M. STAT. ANN. §§ 31-9-3, 31-9-4 (1983); UTAH CODE ANN. § 77-13-1(5) (1983); See generally Stelzner, & Piatt, The Guilty But Mentally III Verdict and Plea in New Mexico, 13 N.M.L. REV. 99 (1983)Google Scholar; Note, Guilty But Mentally 111: A Retreat From the Insanity Defense, 7 AM. J.L. & MED. 237 (1981); Note, Guilty But Mentally III: A Reasonable Compromise for Pennsylvania, 85 DICK. L. REV. 289 (1981); Note, Evaluating Michigan's Guilty But Mentally III Verdict: An Empirical Study, 16 U. MICH. J.L. REF. 77 (1982) [hereinafter cited as Note, Evaluating Michigan's Guilty But Mentally 111 Verdict]. Note, Criminal Responsibility: Changes in the Insanity Defense and the Guilty But Mentally III Response, 21 WASHBURN L.J. 515 (1982); Note, Evaluating Michigan's Guilty But Mentally III Verdict]; Note, Criminal Responsibility: Changes cited as Note, The Guilty But Mentally 111 Verdict].

Both the American Bar Association and the American Psychiatric Association have rejected the guilty but mentally ill approach. See Note, supra note 29.

132 IND. CODE ANN. § 35-36-1-1 (Burns Supp. 1983).

133 Id. at §35-36-2-5.

134 Id.

135 See Stelzner & Piatt, supra note 131, at 105.

136 Id. at 110; Note, The Guilty But Mentally III Verdict, supra note 131, at 479 .

137 Stelzner & Piatt, supra note 131, at 105; Note, Evaluating Michigan's Guilty But Mentally III Verdict, supra note 131, at 79.

138 See Note, Evaluating Michigan's Guilty But Mentally III Verdict, supra note 131, at 93 (concluding that use of the guilty but mentally ill finding has not reduced use of the insanity defense).

139 See supra note 16 and accompanying text.

140 Arenella, supra note 38, at 830.

141 Id. at 853-61. See also State v. White, 93 Idaho 153, 158, 456 P.2d 797, 803 (1969), where the court rejects diminished responsibility doctrine in light of adoption of the Model Penal Code's insanity defense; Bonnie & Slobogin, supra note 40, at 450. Professor Arenella has noted that it could be used as a post-trial doctrine under which to consider mental disability at the time of sentencing. Arenella, supra note 38, at 863.

142 Shortly after the establishment of the M'Naghten insanity defense, a Scottish court formulated the British diminished responsibility rule. In H. M. Advocate v. Dingwall, 5 Irv. 466 (Scot. H.C.J. 1867), a Scottish court mitigated a murder charge and convicted for culpable homicide (manslaughter) because the defendant exhibited “weakness of mind.” Evidence that intoxication and repeated attacks of delerium tremens had affected the defendant's mental abilities was submitted. Lord Deas instructed the jury that although defenses of insanity and drunkenness were untenable, a verdict of culpable homicide could be returned if “weakness of the mind” were found:

The state of mind of the prisoner might be an extenuating circumstance although not such as to warrant an acquittal on the ground of insanity; and [the trial judge] therefore could not exclude it from the consideration of the jury here, along with the whole other circumstances in making up their minds whether, if responsible to the law at all, the prisoner was to be held guilty of murder or culpable homicide.

Id. at 479-80. The Scottish courts subsequently expanded the application of this diminished responsibility defense from murder to all crimes with lesser included offenses. H.M. Advocate v. M'Lean, 3 Comp. 334 (Scot. 1876). The British Homicide Act of 1957 restricted the defense to homicide.

143 Homicide Act, 1957, 5 & 6 Eliz. 2, ch. 11, § 2(1).

144 Id. at § 2(2).

145 Id. at § 2(3).

146 R. v. Byrne, [1960] 2 Q.B. 396, 403, 3 W.L.R. 440, 443-44, 3 All E.R. 1, 4 (C.A.).

147 R. v. Spriggs, [1958] 1 Q.B. 270, 276, 2 W.L.R. 162, 167, 1 All E.R. 300, 304 (C.A.) (per Lord Goddard, C.J.); H.M. Advocate v. Savage, 1923 J.C. 49, 51, 61 S.L.R. 13, 13 (Scot.). See H.M. Advocate v. Braithwaite, 1944 J.C. 55, 57-58, S.N. 70 (Scot.) (use of diminished responsibility limited to a showing of mental disturbance over and above personality defects within a normal range).

148 Gannage, The Defense oj Diminished Responsibility in Canadian Criminal Law, 19 OSGOODE HALL L.J. 301, 304 (1981)Google Scholar (citing G., WILLIAMS TEXTBOOK OF CRIMINAL LAW 629 (1978)Google Scholar).

149 In a diminished capacity defense, mitigation of the conviction is a byproduct of the rebuttal of a mens rea. When invoking diminished responsibility, a defendant is appealing to a separate statutory or judicial standard which provides for mitigation of the conviction if the defense is successful.

150 See Homicide Act § 2(1).