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The Durham Rule in Action: Judicial Psychiatry and Psychiatric Justice

Published online by Cambridge University Press:  01 July 2024

Richard Arens
Richard Arens*
Affiliation:
McGill University
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Exercising its right to frame a new standard of criminal responsibility, the United States Court of Appeals for the District of Columbia declared in Durham v. United States: “An accused is not criminally responsible if his unlawful act was the product of mental disease or defect.”

Type
Research Article
Information
Law & Society Review , Volume 1 , Issue 2 , June 1967 , pp. 41 - 80
Copyright
Copyright © 1967 by the Law and Society Association

Footnotes

Author's Note: The author is grateful to Professor Harold D. Lasswell of Yale University, Professor Jackwell Susman of George Washington University and Dean J. E. Richardson of the National University of Australia, who have read the manuscript and provided comment, criticism and suggestions. They are of course to be absolved from the limitations of the work.

References

1. The United States Court of Appeals for the District of Columbia is entrusted with the formulation of a test of criminal responsibility to be applied in the District. Durham v. United States, 214 F. 2d 862, 874 (D.C. Cir. 1954) ; Fisher v. United States, 328 U.S. 463, 476–77 (1945).

2. Durham v. United States, supra at 874–75. In developing its basic theme the Court of Appeals further states:

The legal and moral traditions of the western world require that those who, of their own free will and with evil intent (sometimes called mens rea), commit acts which violate the law, shall be criminally responsible for those acts. Our traditions also require that where such acts stem from and are the product of a mental disease or defect as those terms are used herein, moral blame shall not attach, and hence there will not be criminal responsibility. Id. at 876.

As stated, the Durham Rule does appear at first glance as “a peculiar mixture of Aristotelian Faculty Psychology, Metaphysics, Mysticism, and Medieval Theology.” See C. Savage, Discussion, 116 Am. J. Psych. 295, 296 (1959).

Until the Durham case, the District of Columbia was governed by the M'Naghten Rules and the “irresistible impulse” test.

The M'Naghten Rules provided that it “must be clearly proved that, at the time of the committing of the act, the party accused was labouring 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.” M'Naghten's case (1843), 8 E.R. 718. The M'Naghten Rules have been supplemented by the irresistible impulse test in the District of Columbia. That doctrine, as stated by the Court of Appeals, is that the degree of insanity which will relieve the accused of the consequences of a criminal act must be such as to create in his mind an uncontrollable impulse to commit the offense charged.

This impulse must be such as to override the reason and judgment and obliterate the sense of right and wrong to the extent that the accused is deprived of the power to choose between right and wrong. . . . The accepted rule . . . is that the accused must be capable, not only of distinguishing between right and wrong, but that he was not impelled to do the act by an irresistible impulse, which means . . . that his reasoning powers were so far dethroned by his diseased mental condition as to deprive him of the will power to resist the insane impulse to perpetrate the deed, though knowing it to be wrong. Smith v. United States, 36 F. 2d 548, 549 (D.C. Cir. 1929).

Significantly, upon the introduction of “some evidence of insanity” the burden devolved upon the Government to prove sanity beyond reasonable doubt if it was to secure a conviction. See Davis v. United States, 160 U.S. 469 (1895).

3. Durham v. United States, supra at 876.

4. Id. at 875. It is questionable whether the Durham Rule, as thus stated, represents any significant innovation. Cognition need not be the only criterion of culpability under an enlightened interpretation of the rules of M'Naghten's case (1843), 8 E.R. 718.

See, e.g., People v. Schmidt, 216 N.Y. 324, 110 N.E. 945 (1915) ; Stapleton v. The Queen, 86 Commw. L.R. 358 (Aug. 1, 1952). Dr. Frederic Wertham has made the point in these words:

Judge Bazelon's . . . conclusion is . . . based on . . . psychiatric vagaries. . . . He substitutes a new test for the M'Naghten rules. In essence it requires that the plea of legal insanity must be based on a demonstration that the crime was the product of mental disease. If he had had better psychiatric advice, Judge Bazelon would have known that this is precisely how the M'Naghten rule has been interpreted in practice by experienced psychiatrists. F. Wertham, Psychoauthoritarianism and the Law, 22 U. Chi. L. Rev. 336 (1955).

For a more recent demonstration of the susceptibility of the M'Naghten Rules to enlightened psychiatric usage see F. Wertham, A Sign for Cain 229–86 (1966).

5. Durham v. United States, supra at 876 (emphasis supplied).

6. For a good description of evolving Durham doctrine see A. Krash, The Durham Rule and Judicial Administration of the Insanity Defense in the District of Columbia, 70 Yale L.J. 905 (1961).

7. See Durham v. United States, supra at 869–74.

8. Id. at 867.

9. Biscoe v. United States, 248 F. 2d 640, 641 n. 2 (D.C. Cir. 1957).

10. Carter v. United States, 252 F. 2d 608, 616, 617 (D.C. Cir. 1957) (emphasis supplied).

11. Id. at 617. Dr. Thomas Szasz observed that, absent a clear and objective finding of crime, not provided for under Durham jurisprudence, such “description and explanation” was not psychoanalytic but pseudo-psychoanalytic in character. He referred to Freud's strictures on the psychiatric mismanagement of testimony in the Halsman case. Szasz, Law, Liberty and Psychiatry 104–05 (1963). Cf. United States v. Arduini, Criminal No. U.S. 10749–66 (D.C. Gen. Sess. 1967) for a judicial opinion affirmatively holding that acquittal on the basis of a reasonable doubt of mental illness was in no way inconsistent with the finding that a defendant at the time of a crime may “very well [have been] . . . without mental disease or mental disorder . . . .”

12. Rollerson v. United States, 343 F. 2d 269 (D.C. Cir. 1964).

13. The beneficiary of the insanity defense who seeks release from St. Elizabeths Hospital must meet the Draconian requirements fashioned by the Court of Appeals. He must prove, beyond reasonable doubt, his freedom from “any abnormal condition” and that he is not likely to repeat the act which had resulted in his insanity acquittal. See R. Arens, Due Process and the Rights of the Mentally Ill: The Strange Case of Frederick Lynch, 13 Catholic U.L. Rev. 22–25 (1964), and statutes and cases cited therein.

14. In Horton v. United States, Crim. No. 59–62 (D.D.C., 1962) a conviction rested essentially upon the testimony of a St. Elizabeths physician that the appellant was mentally and emotionally healthy. The Government conceded that the appellant was a chronic drug-addict involved in long-term criminality as a consequence of his addiction. It further conceded that the appellant had attempted suicide. On conviction, the appellant contended that the St. Elizabeths testimony as to his mental health was as credible as the assertion that the earth was flat. The Court of Appeals rejected this argument and declared that the St. Elizabeths testimony presented an issue to be resolved by the jury, i.e., that it could be believed by reasonable men. Horton v. United States, 317 F. 2d 595 (D.C. Cir. 1963).

15. In the case of United States v. Vincent Gilleo, criminal case no. 583–59 (D.D.C. 1960), a Government psychiatrist declared with gay insouciance that it was his psychiatric opinion that the defendant was “criminally responsible.”

16. See, e.g., Simpson v. United States, 320 F. 2d 803 (D.C. Cir. 1963) ; see also generally R. Arens & J. Susman, Judges, Jury Charges and Insanity 21 How. L.J. 1 (1966).

17. United States v. Freeman, 357 F. 2d 606, 621–22 (2d Cir. 1966). A strongly restrictive view of the insanity defense was manifested by the Court of Appeals since the turn of the decade. Trial judges who put the “right-wrong” gloss on an insanity charge could count on the support of a majority of the Court of Appeals for the District of Columbia. Thus, the court declined in Simpson v. United States, 320 F. 2d 803 (D.C. Cir. 1963) to find plain error in a jury charge which included this language:

As an example of this causal connection or relation, if a person at the time of the commission of a crime is so deranged mentally that he cannot distinguish between right and wrong, or, being able to tell right from wrong, he is unable by virtue of his mental derangement to control his actions, then his act is the product of his mental derangement.

The Court of Appeals also held that an insanity acquittal had to be predicated on an “abnormal condition of the mind which substantially affect[ed] mental or emotional processes and substantially impair[ed] behavior controls.” McDonald v. United States, 312 F. 2d 847, 851 (D.C. Cir. 1962).

The number of insanity acquittals has declined significantly since 1962 as shown by this table:

Table 1. Persons found not guilty by reason of insanity

* Source: Administrative Office of the United States Courts. [Abstracted from President's Commission on Crime in the District of Columbia, Report 535 (1966)—ed.]

† “NGI” = not guilty by reason of insanity in this and subsequent tables.

‡ The fiscal year preceding the decision in Durham v. United States. Prior to this year, insanity patients were not recorded separately from all other prisoner patients at Saint Elizabeths Hospital.

* Source: Administrative Office of the United States Courts. [Abstracted from President's Commission on Crime in the District of Columbia, Report 535 (1966)—ed.]

† “NGI” = not guilty by reason of insanity in this and subsequent tables.

‡ The fiscal year preceding the decision in Durham v. United States. Prior to this year, insanity patients were not recorded separately from all other prisoner patients at Saint Elizabeths Hospital.

18. R. Arens, D. Granfield & J. Susman, Jurors, Jury Charges and Insanity, 14 Catholic U.L. Rev., 1 (1965) ; R. Arens & J. Susman, Judges, Jury Charges and Insanity, 12 How. L.J. 1 (1966).

19. This is known to any lawyer with significant experience in the conduct of the insanity defense in the District of Columbia. Prosecuting counsel frequently couch questions in terms of the “right-wrong” test and St. Elizabeths physicians have answered such questions without difficulty. The following is characteristic:

Q. Doctor, in your opinion was the defendant Frank Horton able to distinguish right from wrong on December 15, 1961.

A. Yes.

Q. In your opinion, Doctor, could the defendant Frank Horton embrace the right and resist the wrong?

A. In my opinion I would say that he could. This is what I believe to be a temporary situation with him, that he could postpone his immediate act, a temporary postponement because drug addicts in general, if on drugs, they have a craving, a tremendous urge to obtain the medication that they are receiving and I think they can postpone temporarily this desire but they eventually have a tremendous urge and a desire to satisfy the need both physiological and psychological need to obtain the medication or narcotics.

Mr. Hantman: Thank you, Doctor, no more questions.

United States v. Horton, Crim. No. 59–62 (D.D.C. 1962), Transcript of Proceedings.

20. M. Platkin, A Decade of Durham, 32 Medical Annals of the District of Columbia, 317–319 (1963).

21. See, e.g., observation of C. J. Connolly & P. McKellar:

When questions of testimony are involved, our legal informations have the strong impression that the Court—that is to say the jury, judge, etc.—tend to be more impressed by the witness who can give his evidence with “absolute certainty.” The witness who qualified his statements and makes minor reservations for the sake of greater accuracy makes relatively less impact. This may not seem unreasonable but we know from many laboratory experiments that “certainty” is no absolute guarantee that the witness is correct or any more accurate.

C. J. Connolly & P. McKellar, Forensic Psychology, 16 Bulletin of the British Psychological Society (No. 51, reprint) 3 (1963).

22. See, e.g., United States v. Horton, Crim. No. 59–62 (D.D.C. 1962), Transcript of Proceedings, pp. 441–43.

23. Official Transcript of Proceedings, United States v. Horton, Crim. No. 59–62 (D.D.C. 1962), pp. 425–26.

24. United States v. Ray, Crim. No. 250–61, Official Transcript of Testimony of Dr. Platkin and Dr. Owens (D.D.C. 1962) p. 64.

25. United States v. Ray, Crim. No. 250–61, Official Transcript of Testimony of Dr. M. Platkin and Dr. Owens (D.D.C. 1962) pp. 43–45.

26. Washington Post & Herald, March 14, 1953, p. 11.

27. Transcript of Proceedings, United States v. Willie Lee Stewart, Crim. No. 633–53, pp. 2049–2051–A. (D.D.C. 1962).

28. In United States v. John S. Sweeney, criminal case no. 466–60 (D.D.C. 1960) transcript of proceedings on December 16, 1960, the Government secured a court order directing a defendant, charged with murder, to cooperate with St. Elizabeths physicians on the ground that “it would be an intolerable situation if the Government should be deprived of the opportunity to ascertain the truth . . . .” In this context—since contempt proceedings against the defendant would be fatuous—Government counsel suggested that the defendant's lawyers would seem proper targets of criminal prosecution if they persisted in advising their client not to talk to Government physicians. See id. at 4–6.

29. M. Platkin, A Decade of Durham, 32 Medical Annals of the District of Columbia, 317, 318 (1963).

30. E. Cumming and J. Cumming, Social Equilibrium and Social Chance in the Large Mental Hospital; M. Greenblatt, D. Levinson & R. Williams, The Patient and the Mental Hospital, 49 (1957).

31. Another dimension is obtained by examining a summary of total annual budgetary authorizations for St. Elizabeths Hospital for the period of 1957 to 1967 which was forwarded to Dr. Robert G. Kvarnes of the Washington School of Psychiatry on April 13, 1967. The figures reflect some rise in appropriations for St. Elizabeths. Nothing in these figures, however, suggests the wholesale reorientation of the hospital to accommodate the vast numbers of non-psychotic as well as psychotic patients eligible for insanity acquittals at least until MacDonald v. United States, 312 F. 2d 847 (D.C. Cir. 1962).

Department of Health, Education, and Welfare Saint Elizabeths Hospital

a Starting with 1964, the Hospital began operating with an indefinite appropriation, under which it receives, in appropriated funds, the difference between reimbursements and its total authorized operating program. Accordingly, the direct appropriation and reimbursement figures shown for 1967 should be regarded as estimates.

b Proposed supplemental appropriation to cover general schedule and wage board salary increases.

a Starting with 1964, the Hospital began operating with an indefinite appropriation, under which it receives, in appropriated funds, the difference between reimbursements and its total authorized operating program. Accordingly, the direct appropriation and reimbursement figures shown for 1967 should be regarded as estimates.

b Proposed supplemental appropriation to cover general schedule and wage board salary increases.

32. H. Solomon, The American Psychiatric Association in Relation to American Psychiatry, 115 Am. J. Psychiatry 1, 7 (1958) ; for the standards themselves see American Psychiatric Association Standards for Hospitals and Clinics, 44–45 (1958).

The obvious failure of St. Elizabeths Hospital to meet the standards of the American Psychiatric Association is reflected essentially in the failure to meet the required ratio of psychiatrists to patients. These can be reflected in the following table:

PERSONNEL RATIOS FOR PUBLIC MENTAL HOSPITALS

* Includes such personnel as occupational and recreational therapy aides, physical education instructors, and music and dance instructors.

Id. at 61.

A document, almost suggestive of political compromise, the American Psychiatric Association manual, eschews firm figures wherever possible and avoids embarrassing comparisons between the hard realities of hospital practice and the identifiable standards of the most authoritative body of psychiatric practitioners.

* Includes such personnel as occupational and recreational therapy aides, physical education instructors, and music and dance instructors.

33. Lynch v. Overholser, Habeas Corpus No. 171–60 (1960).

34. E. Goffman, Asylum 92 (1961).

35. Overholser v. O'Beirne, 302 F. 2d 852 (D.C. Cir. 1962).

36. Briscoe v. United States, 248 F. 2d 640, 641 n. 2 (D.C. Cir. 1957).

37. L. Srole et al., Mental Health in the Metropolis [The Mid-Town Manhattan Study].

T.A.C. Rennie Series in Social Psychiatry (1962) reports as follows with regard to a sample of 1,660 mid-town adults:

Table 8-3. Home Survey Sample (Age 20–59), Respondents' Distribution on Symptom-formation Classification of Mental Health

* Marked, Severe, and Incapacitated combined.

Id. at 138.

* Marked, Severe, and Incapacitated combined.

38. One must further bear in mind that current psychiatric opinion holds that the treatment of many psychiatric disorders can best be accomplished outside of a hospital, and for those that do require hospitalization, return to the community should be as rapid as possible to prevent the debilitating effects of institutionalization. In this light, automatic confinement of all persons suffering from mental and/or emotional disorders to St. Elizabeths Hospital is a counter-therapeutic practice, even if one were to assume that the facilities at St. Elizabeths were ideal.

Dr. Raymond Prince, Member of Psychiatry Department of McGill University in letter to author, dated April 14, 1967.

The attitude of the Court of Appeals toward a constitutional right of adequate and humane treatment of those confined within St. Elizabeths Hospital has varied through a period of approximately two decades.

An early concern for the fate of those confined within St. Elizabeths Hospital was replaced by apparent callousness. Compare Miller v. Overholser, 206 F. 2d 415 (D.C. Cir. 1953) with Overholser v. O'Beirne, 302 F. 2d 852, 854 (D.C. Cir. 1962).

In a path-breaking decision in 1966 the Court of Appeals declared that there was a right to treatment for those committed to a mental hospital, that “involuntary confinement without treatment [was] ‘shocking’ ” and that a patient acquitted by reason of insanity and confined in St. Elizabeths Hospital was entitled to a hearing upon the allegation that he was denied adequate and humane medical care. The decision, however, provides no indication as to whether St. Elizabeths physicians will succeed in establishing the adequacy of their treatment facilities by testifying that what they administer is “environmental” or “milieu” therapy, i.e., in lay language, that the privilege of breathing in the air of St. Elizabeths Hospital is treatment enough. Rouse v. Cameron, 373 F. 2d 451 (D.C. Cir. 1966).

For a psychiatric reaction to the case, suggestive of this very possibility, see the news story in Washington Post and Herald, January 10, 1967 p. Bl entitled “Holtzoff Fights Back in Insanity Case Appeal” which includes this paragraph: “Dale C. Cameron, superintendent of St. Elizabeths Hospital and Rouse's ward psychiatrist, Stray H. Economon, testified that Rouse's treatment is ‘adequate, if not ideal’. They described

Rouse as a sociopath who does not respond well to treatment and is aloof and uncooperative.“

A hearing in District Court, following the Court of Appeals decision, resulted in the dismissal of the habeas corpus petition.

Significantly, in an order handed down sua sponte on April 4, 1967, the Court of Appeals declared that the right of treatment applied independently of any legislative history which appeared to support it. Rouse v. Cameron, 373 F. 2d 451 (D.C. Cir. 1966).

As this article goes to press the Court of Appeals still remains to be heard from on the adequacy of Rouse's treatment at St. Elizabeths.

39. M. Gilbert & P. Levinson, “Custodialism” and “Humanism” in Mental Hospital Structure and Staff Ideology. Greenblatt, Levinson and Williams (eds.) The Patient and the Mental Hospital 22 (1957).

40. The Institution for Criminal Psychopaths at Herstedvester, under the supervision of Dr. George Sturup, was visited by the author. For one of numerous published descriptions of the Danish treatment of the psychopathic offender, see S. Hurwitz, Criminology 412–14 (1952).

41. Junior staff members and psychologists at St. Elizabeths encountered by Project staff members have frequently manifested a humane concern for the patient as an individual and a sense of optimism about his therapeutic potential, much at variance from the attitude frequently conveyed by senior staff members.

42. See Transcript of Proceedings, United States v. Oscar M. Ray, Jr., Crim. No. 250–61 (D.D.C. 1962) pp. 24–25.

43. See I. Belknap, Human Problems of a State Mental Hospital, 65 (1956).

44. Testimony of Dr. David W. Harris, Transcript of Proceedings, Tremblay v. Overholser, Habeas Corpus No. 288–61 (D.D.C. 1961), p. 16.

45. Washington Post & Herald, Oct. 24, 1963, p. A-3.

46. Statement by Dr. Overholser in the American Weekly, Washington Post & Herald, June 18, 1961, p. 4.

47. See Clerk's File, Sutherland v. United States, No. 16, 160 (D.C. Cir. 1961).

48. See Hearings before Judge Walsh in United States v. Walter Johnson, Crim. No. 381–59, July 13, 1961.

49. D. Acheson, McDonald v. United States: The Durham Rule Redefined, 51 Geo. L.J. 580, 588 (1963).

50. Transcript of Proceedings, United States v. Willie Lee Stewart, Crim. No. 633–53 (D.D.C. 1962), pp. 2043–2044. Goffman observed that demeaning and discrediting statements about patients in general are a commonplace characteristic of descriptions of a patient's history and general appearance in the records kept at St. Elizabeths Hospital. See E. Goffman, Asylum 156–58 (1961).

51. There is no reason to believe that the St. Elizabeths scene is significantly different from that obtaining elsewhere. The impoverished public mental hospital has, in fact, been a national blight. See A. Deutsch, The Shame of the States (1948). See also materials cited regarding the inadequacy of the national mental hospital picture in R. Arens, Due Process and the Rights of the Mentally Ill: The Strange Case of Frederick Lynch, 13 Catholic U. L. Rev. 3 (1964).

52. This applies to District Court cases only. The Court of General Sessions (dealing with misdemeanors exclusively) commits defendants to D.C. General Hospital —usually for a period of one month. In isolated instances there are District Court commitments to the D.C. General Hospital as well. These acquitted by reason of insanity are invariably committed to St. Elizabeths Hospital under D.C. Code Ann. §24–301 (1955). Unlike the D.C. General Hospital, St. Elizabeths is thus both the examining—and, ultimately treatment or custodial center—for those claiming the benefits of the insanity defense. The interest of St. Elizabeths in preventing the intensification of already existing overcrowding of its facilities is therefore obvious. It is noteworthy too that the senior physicians in charge of court ordered examinations at St. Elizabeths—unlike those of the D.C. General Hospital who perform the same function—are usually older men with apparently limited professional mobility.

53. Official Transcript of Proceedings before Judge Holtzoff in United States v. Gilleo, Crim. No. 583–59, March 25, 1960, p. 3.

54. Testimony of Dr. Owens, Official Trancript of Proceedings, United States v. Frank Horton, Crim. No. 59–62 (D.D.C. 1962) p. 445.

55. A criminal case tried in the District of Columbia in 1961 and not identified in the interests of the defendant.

56. United States v. John W. Jackson, Jr., Crim. No. 980–61 (D.D.C. 1962) p. 445.

57. Transcript of Proceedings, In matter of Bernard Goldfine, Habeas Corpus No. 246–90 (D.D.C. 1960) pp. 36–37.

58. United States v. John Sweeney, Crim. No. 466–60 (D.D.C. 1961).

59. A. Hollingshead & F. Redlich, Social Class and Mental Illness passim (1958).

60. See United States v. John W. Jackson, Jr., Crim. No. 980–61 (D.D.C. 1961).

61. The “official” view of St. Elizabeths Hospital—propounded in terms of abstract theory and applied to the isolated case—has been in line with the American Psychiatric Association's Diagnostic and Statistical Manual. Thus, both “sociopathic” and “emotionally unstable” personalities have been officially proclaimed to conform to the hospital's conception of mental illness, in one case in mid-trial following a weekend conference by the hospital staff. See, e.g., In re Rosenfield, 157 F. Supp. 18 (D.D.C. 1957) and Campbell v. United States, 307 F. 2d 597 (D.C. Cir. 1962). The evidence however suggests the practical repudiation of this view in numerous court cases, particularly as the full implications of the acceptance by St. Elizabeths Hospital of all non-psychotic sufferers of mental disorder hit home. It has been suggested—and it is borne out in terms of initial impressions that “[w]hat seemed to be emerging under the Durham rule was that neither legal principles nor medical concepts determined the defendant's fate so much as did administrative label changing by the hospital's staff.” Reid, The Bell Tolls for Durham, 6 J. of Offender Therapy 58 (1962).

62. See American Psychiatric Association, Diagnostic and Statistical Manual (1952).

63. See the testimony of Dr. David Owens in United States v. Horton, Crim. No. 59–62 (D.D.C. 1962). Transcript of Proceedings 425–126. Cf. White House Conference on Narcotic and Drug Abuse, Proceedings (1962) ; President's Advisory Commission on Narcotic and Drug Abuse, Final Report (1963).

For an example of a statutory scheme designed to substitute medical treatment for conventional punishment in the case of drug addicts, see, New York Mental Hygiene Law §§211–213 (1963).

64. Letter by St. Elizabeths' staff member to Axel W. Oxholm, Esq. in Washington, D.C., dated 1963.

65. See, e.g., United States v. Marocco, Crim. No. 208–62 (D.D.C. 1962). St. Elizabeths Hospital has furnished the following breakdown of diagnoses of those admitted to St. Elizabeths by reason of insanity acquittals:

66. Report to Counsel, subsequently the basis of testimony by Dr. Leon Salzman, dated April 10, 1962, in United States v. Marocco, supra.

67. M. Platkin, A Decade of Durham, 32 Medical Annals of the District of Columbia, 317–319 (1963).

68. United States v. Watson, Crim. No. 907–60 (D.D.C. 1961). Transcript of Proceedings, p. 246.

69. D. Acheson, McDonald v. United States: The Durham Rule Redefined, Geo. L.J. 580, 588 (1963).

70. Interview conducted by Project staff member with staff physician of St. Elizabeths Hospital, Aug. 21, 1960.

71. Telephone conversation between Project staff member and St. Elizabeths physician, Sept. 21, 1961.

72. United States v. Horton, Crim. No. 59–62 (D.D.C. 1962). Transcript of Proceedings, pp. 521–534.

73. St. Elizabeths certification in United States v. Aloysius Hart, Crim. No. 661–60 (D.D.C. 1961).

74. United States v. Pee, Jr., Crim. No. 701–60 (D.D.C. 1961).

75. A cut-off point around 1960 resulted in the routine referral of all mental examinations to St. Elizabeths Hospital.

76. United States v. Kent, Crim. No. 798–61 (D.D.C. 1963).

77. See R. Arens and J. Susman, Judges, Jury Charges and Insanity, 12 How. L.J. 1 (1966) and the cases cited therein. Cf. People v. Schmidt, 216 N.Y. 324, 110 N.E. 945 (1915) ; Stapleton v. The Queen, 86 Commw. L.R. 358 (Aug. 1, 1952) and F. Wertham, Psychoauthoritarianism and the Law, 22 U. Chi. L. Rev. 336 (1955).

78. The doctrine of “inherent implausibility” often invoked against complaining witnesses in rape cases, did not seem to be applied to St. Elizabeths physicians on judicial review. See, e.g., State v. Morrison, 189 Iowa 1027, 179 N.W. 321 (1920); Brown v. Commonwealth, 82 Va. 653 (1886) ; Cf. People v. Carey, 223 N.Y. 519, 119 N.E. 83 (1918). See also generally Miller, Criminal Law 294 (1934).

79. Overholser v. Russel, 283 F. 2d 195 (D.C. Cir. 1960). Beyond this, it may be observed that the development of a doctrine of diminished responsibility as affected by mental impairment has been inhibited by extant Durham jurisprudence. See Stewart v. United States, 275 F. 2d 617, 623–24 (D.C. Cir. 1960). So has a sophisticated exploration of intent. Nothing in the District of Columbia reflects the resourceful and humane treatment of intent as affected by organic and functional disorder exemplified by Rex v. Charlson (1955) 1 All E.R. 859 and People v. Jones, 42 Cal. 2d 219, 266 P. 2d 38 (1954).

80. This has been observed by such distinguished critics of the Durham Rule as Judge Kaufman who declared that in the District of Columbia “psychiatrists when testifying that a defendant suffered from a ‘mental disease or defect’ in effect usurped the jury's functions.” Judge Kaufman noted in this connection:

This problem was strikingly illustrated in 1957, when a staff conference at Washington's St. Elizabeths Hospital reversed its previous determination and reclassified ‘psychopathic personality’ as a ‘mental disease’. Because this single hospital provides most of the psychiatric witnesses in the District of Columbia courts, juries were abruptly informed that certain defendants who had previously been considered responsible were now to be acquitted. United States v. Freeman, 357 F 2d 606, 621–622 (2d Cir. 1966).

81. Letter to author, July 2, 1963. The identity of the psychiatrist who wrote it is kept confidential at his request.

82. Earlier studies of jury charges have made it plain that the classical Durham view has made a minimal impact upon District of Columbia trial courts and trial juries. See R. Arens and J. Susman, supra and R. Arens, D. Granfield and J. Susman, supra. One may further suggest that the court may wish to reconsider the requirements governing the release of those acquitted by reason of insanity insofar as they have tended to discourage the assertion of the insanity defense. Cf. dissenting opinion of Mr. Justice Clark in Lynch v. Overholser, 369 U.S. 705, 720 (1962).

83. Rollerson v. United States, 343 F. 2d 269, 272, n. 6 (D.C. Cir. 1964). The court pointed out that the St. Elizabeths view appeared to be directly opposed to the views reflected in the Diagnostic and Statistical Manual of the American Psychiatric Association and in standard psychiatric texts. Ibid.

84. United States v. Harry J. Allen, Crim. No. 438–60 (D.D.C. 1961).

85. Whatever misgivings may arise on this score vis-à-vis government psychiatrists are fully matched by similar misgivings vis-à-vis significant numbers of private psychiatrists engaged in legal-psychiatric work and observed in the District of Columbia. The interviewing of private psychiatrists in the nation's capital to determine their attitudes toward the insanity defense conducted by project staff members between 1959 and 1960 revealed a startling frequency in “custodial” and punitive orientation. Observation of such psychiatrists in court-work further revealed an equally startling appearance of indifference to the fate of the defendant and a disconcerting carelessness in the organization and presentation of testimonial materials. There were, of course, conspicuous exceptions.

86. The change from coercion to rehabilitation by mental hospitals and prisons has been the subject of a number of recent studies. M. Greenblatt, D. Levinson & R. Williams, The Patient and the Mental Hospital (1957) ; McCleery, Policy Change in Prison Management (1957) ; D. Cressey, Contrary Directives in Complex Organizations: The Case of the Prison, 4 Admin. Sci. Q. 1 (1959) ; D. Cressey, Achievement of Unstated Organizational Goals; An Observation on Prisons, 1 Pacific Soc. R. 43 (1958) ; 0. Grusky, Role Conflict in Organizations: A Study of Prison Camp Officials, 3 Admin. Sci. Q. 452 (1959).

Two points are often repeated: (1) The ideal goals of mental hospitals, correctional institutions, and prisons are therapeutic. “The basic function of the hospital for the mentally ill is the same as the basic function of general hospitals . . . that function is the utilization of every form of treatment available for restoring the patients to health.” M. Greenblatt, R. York & D. Brown, From Custodial to Therapeutic Patient Care 3 (1955). (2) Despite large efforts to transform these organizations from custodial to therapeutic institutions, little change has taken place. Custodial patterns of behavior still dominate policy decisions and actions in most of these organizations. “In the very act of trying to operate these institutions their raison d' etre has often been neglected or forgotten.” M. Greenblatt, D. Levinson & R. Williams, op. cit., supra at 3. Two sociologists stated explicitly:

Custody and care of delinquent youth continue to be the goals of correctional agencies, but these are growing aspirations for remedial treatment. The public expects juvenile correctional institutions to serve a strategic role in changing the behavior of delinquents. Contrary to expectations, persistent problems have been encountered in attempting to move correctional institutions beyond mere custodialism . . .. Despite strenuous efforts and real innovations, significant advances beyond custody have not been achieved.

R. Vintner & M. Janowitz, Effective Institutions for Juvenile Delinquents, 33 Social Service R. 118 (1959).

One reason for this failure has been found in the external environment. Organizations have to adapt to the environment in which they function. When the relative power of the various elements in the environment are carefully examined, it becomes clear that, in general, the subpublics (e.g., professionals, universities) which support therapeutic goals are less powerful than those which support the custodial or segregating activities of these organizations. E. Cumming and J. Cumming, Closed Ranks (1957). Under such circumstances, most mental hospitals and prisons must be more or less custodial.

The present study suggests that the internal environment also imposes constraints. Even assuming that through the introduction of mental health perspectives and personnel, especially psychiatrists, St. Elizabeths' operating policies became oriented to therapy, it appears that Vintner's and Janowitz's observation would still be valid. St. Elizabeths would not be very effective serving therapy goals. Supportive of this conclusion is the small number of professionals available as compared to the large number of patients, the low effectiveness of the present techniques of therapy, the limitations of knowledge, and so on.

87. Easter v. District of Columbia, 361 F. 2d 50 (D.C. Cir. 1966). See the similar holding by the Fourth Circuit in Driver v. Hinnant, 356 F. 2d 761 (4th Cir. 1966). The United States Supreme Court has so far declined to decide the issues raised by these cases. See the dissent by Mr. Justice Fortas in Budd v. California, cert. denied 385 U.S. 909 (1966).

The inadequacies in existing treatment facilities for the alcoholics in the District of Columbia are highlighted in Report of the President's Commission on Crime in the District of Columbia 474–490 (1966). The courts, in turn, have been erratic in the handling of alcoholic patients. As observed by a news reporter, “[o]ne judge's chronic alcoholics are another judge's drunks, or so it seemed yesterday after General Sessions Judge Milton S. Kronheim sentenced a man previously adjudged a chronic alcoholic to 30 days in jail for public intoxication.” Washington Post & Herald, July 6, 1966, p. B1.