Even in these parlous times, few boundaries are as troubled as that over which law and psychiatry confer. Despite some experience, much thought, and more writing, there is little agreement even within the two disciplines about the respective competence of either. And such agreement as may appear often turns out to be nothing more than confusion or sharp conflict concealed beneath satisfyingly vague, intuitive labels.
Almost two decades ago, in Washington, D. C, the United States Court of Appeals for the District of Columbia Circuit reversed the criminal conviction of a man named Monte Durham for housebreaking and petit larceny.1 The grounds of reversal were hardly controversial: the court held that, contrary to the trial judge's belief, Durham had presented enough evidence on the question of his insanity at the time of the crimes to raise an issue for decision by the trial judge under the District of Columbia's version of the M'Naghten test for criminal responsibility.2 The Court of Appeals, however, did not stop there. In the course of an extensive opinion, the court rejected the M'Naghten rule in all its formulations and held, for the future, that "a broader test" should be adopted for criminal trials in the District of Columbia: "[A] ? accused is not criminally responsible if his unlawful act was the product of a mental disease or mental defect."3
Although a verbally similar test for criminal responsibility had been the rule in New Hampshire for more than seventy-five years4 without causing substantial comment, the Durham rule almost immediately became the focus of an increasingly heated controversy. Critics of the rule charged that it was vague, confusing, out of line with psychiatric realities, and would result in too many acquittals. Proponents argued that the suggested alternatives were vague, confusing, out of line with psychiatric realities, and would result in too many convictions. The prestigious American Law Institute, an organization of judges and legal scholars then engaged in a project to draft a "Model Penal Code," entered the debate with a proposal that has since been widely regarded as intermediate between the "extremes" of M'Naghten and Durham.5 After some hesitation, courts and legislatures began taking sides. Maine and the Virgin Islands adopted Durham by statute, and at least one state supreme court indicated that it would move to Durham if it could.6 Ten states- seven by statute and three by judicial decision7- and virtually all of the federal courts outside the District of Columbia8 had, by 1971, adopted one or another variant of the A.L.I, proposal. Although the remaining jurisdictions retained M'Naghten (sometimes supplemented by what is often referred to as the "irresistible impulse" or "control" test), both scholarly commentary9 and practical experience10 indicated that M'Naghten, at least in terms of the expert testimony that would be admitted at trial, was not nearly as restrictive as its opponents had argued. If the courts of the 1960s did not pray for the appearance of psychiatrists, the appellate courts at least made an honest effort to make them welcome when they appeared.
Recently, however, an increasing amount of disenchantment has set in. Closer attention to evidence from an alien discipline has forced courts to face more directly a host of unfamiliar problems, some of which raised questions about the assumptions that formed the bases of the laws the courts were seeking to apply. Ever more crowded judicial calendars have led to calls to speed the process of trial and conviction- and psychiatric evidence, whatever its merits, does not lend itself to speedy presentation. Nationwide publicity given to the apparent misuse of psychiatric expertise in the Soviet Union" has caused many people to look closely at the writings of iconoclasts such as Dr. Thomas Szasz, who for years have been claiming that the same thing can happen and is happening, here.12 And public concern with the increase of criminal behavior has led to impatience with almost any judicial device that does not seem designed to produce more and faster convictions. The movement symbolized by Durham-a movement toward more and fuller psychiatric testimony in the courtroom- seems to have ground to a halt.
Two recent events suggest that this may be an appropriate time to take stock. Last slimmer, in the case of United States v. Brawner,12 the District of Columbia Circuit finally and formally abandoned the Durham rule, opting instead for a variant of the American Law Institute's proposal; Chief Judge David L. Bazelon, author of Durham, wrote a separate opinion emphasizing his agreement that Durham should be retired, but (as I read the opinion, at least) his disagreement with almost everything else in the majority opinion. And this spring, President Nixon submitted to the Congress his long-awaited proposal for reform of the federal criminal code.14 The "most significant feature," according to the President, of the first part of this proposed revision is a section that is apparently intended to restrict severely the defense of insanity in federal criminal trials throughout the country.15
The President's proposal is almost certain to spark an intense congressional debate. Hopefully, at least some of the discussion will go beyond abstract argument about the standard to be applied, and ventilate some of the more troublesome problems underlying administration of the insanity defense. If not, we can expect that whether or not the President's proposal is enacted, the only real change in trials will be in the magic words that counsel seek to draw from sometimes willing, sometimes unwilling psychiatrists.16 For the insanity defense is not something that exists in a vacuum: it is rather a bundle of threads woven into a fabric of complex design. Like many legal doctrines, which usually depend in large part on the willing compliance of a host of individuals for their effectuation, it is almost inhumanly resistant to change; and as with similar doctrines, whatever change may be effected is likely to have wholly unanticipated ramifications.
My purpose in this article is not to "solve" the host of problems I hope to reveal, although no doubt my biases will become evident. I hope rather to illustrate the complexity of the problem; to ventilate some of the issues (legal, practical, and moral) surrounding use or abandonment of the insanity defense; to suggest some possible lines of approach (as well as some blind alleys); and to point out some of the inevitable confusion that follows from the assumption that the law is so precise that its reasons or its terminology may safely be left unexamined.