More and more distinguished psychiatrists are proclaiming that psychiatrists should refuse to play any role in the public arena, at least in criminal trials, because they have nothing to contribute on the issue of criminal responsibility. I am afraid that those seeking to divorce the criminal law from psychiatry either misapprehend what the law seeks from psychiatrists or are overreacting to the frustration of their own inability to satisfy the impossible quest for certainty. It would be tragic if misunderstanding or embarrassment alone were to deny courts the benefit of information concerning the extent of present-day knowledge about human behavior. My experience tells me that this information is not only useful but essential to the moral and humane development of the law, particularly the criminal law.
The law, in my view, is not a static order built on certitude but a dynamic order built on process. Rather than providing wisdom, it offers a structure for seeking wisdom. Viewed as process, law becomes a framework for testing hypotheses, comparing alternatives, and setting policy, as well as for resolving disputes.
Thus, although the law strives to approach certainty, it seldom achieves this, because we must work with imperfect knowledge. Courts must make decisions when cases come before them; they cannot wait for certitude. The hope is that the more information they have, the better their decision will be. But they also must be told what is not known about a given matter, so that they may properly weigh the information they are given. Ignorance is troubling, but not knowing that one is ignorant is far worse. Justice is best when it is built on humility and modest expectations.
With this model of the law in mind, I would like to explain my understanding of what information is being sought from psychiatry, so that those psychiatrists who divorce themselves from the courts will at least be making an informed decision.
In my first few years on the bench, I became deeply disturbed with the workings of the criminal justice system and began to question seriously the morality of that system.
When I speak of moral force or morality in the law, I am not speaking of a righteous certitude or mystical sense of authority. Rather, I am speaking about elements of human decency, such as those embodied in the expression "Do unto others as you would have them do unto you." It is an ancient concept and a sound one. Whether phrased in religious or philosophic terms, this essential concept of reciprocal decency is what I mean by morality. As Judge Elbert Turtle has said, "The only way that law has progressed from the days of the rack, the screw, and the wheel is in the development of moral concepts."1
Day after day I found myself reviewing the convictions of persons who had committed acts of violence: murders, rapes, and assaultive robberies. The overwhelming majority of these defendants, at least 95 per cent, came from the bottom of the socioeconomic-cultural ladder, populated by deprived and disadvantaged groups afflicted with the highest incidence of mental, physical, economic, and social ills. The relationship between crime and such conditions is not merely a coincidence. Crime provides the deprived with a needed means of economic survival, a sense of excitement and accomplishment, and an outlet for frustration, desperation, and rage. Yet the law was (and still is) preoccupied with the institutional problems of criminal justice and oblivious to the social injustices that lie at the root of almost all violent street crime.
I believed then, and believe now, that criminal justice and social justice are inseparable; you cannot have one without the other. It seemed amoral, if not immoral, to impose moral condemnation on these persons without at least attempting to understand the roots of their devastating behavior. I deemed it essential that the criminal law take a look at the causes of criminal behavior in the process of assessing guilt or blame. My model, familiar to medicine, was the postmortem examination. This will not restore life, and the criminal process will not undo the offense. But in each case there may be a rare opportunity to learn something about why it happened. In the case of a crime, the entire community has an opportunity to learn from a public trial something of its role in the act and in the redemption of the actor and those who will inevitably follow in his footsteps.
Properly understood, the issue of criminal responsibility provides a natural vehicle for confronting the dehumanizing conditions that spawn the violent crime that darkens our lives with fear, and for questioning the morality if not the efficacy of our response to such crime. The so-called insanity defense reflects society's unwillingness to impose condemnation and punishment when it cannot impose blame. It says that if the act was not the product of a "vicious will," we may condemn the act but not the actor. The range of evidence admissible to explore blameworthiness was, however, narrowly limited, precluding consideration of modern information from the behavioral and social sciences relevant to determining how free was the choice to do wrong. I sought to broaden the inquiry by making it possible to ventilate all factors bearing on moral culpability. In fact, I sought to discard the term "insanity," not only because it is cruelly pejorative and intellectually bankrupt but also because it is needlessly confining and misleading. It makes little difference whether the defense is renamed a "criminal responsibility defense" or whether, as some have urged, it is subsumed under the question of what we call "mens rea" or intent, which for present purposes is an essential element of all crimes.
The first obstacle that I confronted in my effort to broaden the inquiry was the 100-year-old M'Naghten definition of insanity: that the defendant lacked an understanding of the "nature and quality" of his act or did not know that the act was wrong.2 Although these phrases were so ambiguous that they could have proved hospitable to a far-reaching inquiry into the causes of the criminal act, in practice psychiatrists and lawyers felt constrained to discuss only one aspect of personality, cognitive reason. Many psychiatrists properly criticized this focus as inconsistent with modern dynamic theories of man as an integrated personality. Moreover, thoughtful psychiatrists also complained that M'Naghten was being used to force them to decide the issue of responsibility, even though that issue is ultimately and predominantly a moral or legal one. They pleaded that the law allow them to be honest and asserted that, freed from M'Naghten' s straitjacket, they could provide a far more accurate assessment of psychic realities and present an array of modern scientific knowledge concerning human behavior.
Durham v. United States was our attempt to provide the opportunity that psychiatrists sought.3 It announced a new test of "insanity," phrased in language familiar to behavioral scientists: an accused is not responsible for his act if it "was the product of a mental disease or defect." Our aim was not, as some may have thought, to equate "mental disease or defect" with "psychosis," so that psychiatrists could decide the responsibility issue simply by determining whether the defendant was psychotic by virtue of suffering from delusions or hallucinations, a diagnosis that requires little or no expertise.
As our later cases made clear, we gave "mental disease or defect" and "product" broad meanings, to include "any abnormal condition of the mind which substantially impairs behavioral controls" but for which the act would not have been committed. We wanted the factfinder (judge or jury) representing community understanding and mores to determine when the mental condition, from whatever cause, was sufficiently abnormal and its contribution to the criminal act sufficiently direct that it was reasonable, although not certain, to conclude that blame could not be imposed.
While Durham produced more information relevant to the jury's determination, it did not elicit nearly enough. Psychiatrists failed to testify candidly as to what they knew and, more important, what they did not know about the accused and what they could not know, given the state of psychiatric knowledge. In the main, they testified in sterile, conclusory psychiatric jargon borrowed from DSM-I and DSM-? and in legal jargon straight out of Durham. They resisted the efforts of the adversary system to question them about the factual and theoretical underpinnings of their conclusions, viewing cross-examination as an affront.4
So in 1972 I joined in a unanimous opinion of the court in Braumer v. United States, which abandoned the Durham rule.5 But I did not join in the court's adoption of a test6 that was essentially a warmed-over jumble of M'Naghten, the American Law Institute,7 and Durham.
Suffice it to say that before and since Durham, conclusory testimony has remained a serious blight not only in criminal proceedings but also in commitment and release hearings and inquiries into the conditions of confinement of juveniles, the mentally ill, defective delinquents, and sex psychopaths. The only difference is that in those matters the conclusory jargon is intoned on such questions as whether a person is "dangerous to himself or others" or whether he is "incorrigible" or "in need of treatment."
Several lessons have emerged from the Durham experience - and the resistance to it. First, we learned the extent to which ambiguity and uncertainty inhere in psychiatric testimony. Psychiatric terms are almost necessarily imprecise, and their understanding differs among individuals, institutions, geographic regions, and countries. And psychiatric diagnoses are almost necessarily uncertain, because a clinical diagnosis is not a scientific fact but an educated guess. Its reliability depends on the investigation and reasoning that underlie it.
When psychiatrists venture beyond strict diagnosis and consider quasi-legal issues, the ambiguities and uncertainties become that much greater. Such terms as "mental disease or defect," "incorrigible," and "sound mind" are even less helpful in communicating information than such terms as "schizophrenic" and "psychotic." Even if the meaning of these terms were relatively clear, the margin of error would still be great. For example, recent studies demonstrate that psychiatric predictions of dangerousness are, at best, abysmally poor; in the words of an A. P. A. task force, "neither psychiatrists nor anyone else have reliably demonstrated an ability to predict future violence or dangerousness. "8
The second lesson we learned from Durham was that psychiatric conclusions are often colored by the "hidden agenda" of psychiatrists: the institutional pressures and personal biases that cause psychiatrists to serve interests other than their patients' therapeutic needs. For example, the superintendent of the Napa State Hospital in California once told me, with commendable candor, that Sacramento is always looking over his shoulder on internal decisions. Psychiatrists have not infrequently informed me that if they are convinced that a person needs help and is too sick to realize this, they feel morally justified in being less than frank on the question of "dangerousness" when such a finding is required for commitment. And there seems to be general agreement that other institutional factors, such as space or manpower shortages, and other personal values, such as a "law and order" or "civil libertarian" orientation, can take precedence over medical considerations.
The third and perhaps most important lesson derived from Durham is how very threatened judges and psychiatrists were by the effort to elicit more information. The reasons for this reaction are understandable enough. For judges, candid and detailed psychiatric testimony would make the decisional task vastly more difficult; rather than being able to defer to psychiatrists' conclusions, they would be compelled to grapple with the almost impossible moral questions posed by the law. For psychiatrists, candor would require admitting how very few clothes the Emperor really has. They would have to state the facts honestly when there was not enough time to do an adequate examination, not enough knowledge to reach a definitive diagnosis, or not enough independence to make a professional judgment. They would have to deal with others openly, confronting their use of psychiatric theory. Psychiatrists not only regarded all these matters as personally embarrassing but also feared destruction of the mystique they deemed essential for public acceptance of their profession. And they were concerned about being held in contempt of court if they refused to answer questions that they did not understand or felt unqualified to answer.
If the reasons why trial judges and psychiatrists preferred conclusory testimony are understandable, so too are the reasons why our court found such testimony unacceptable. Mystique may be necessary as a therapeutic technique for some patients, but it is wholly inappropriate when a person's liberty is at stake. If the decision-maker is told only that a person is or is not "schizophrenic" or "dangerous" or that his act was or was not the product of a mental disease, the decision -maker has no reliable basis for accepting or rejecting the psychiatrist's conclusions. Some might argue that this is as it should be, that these are essentially medical decisions not requiring independent legal decision. But when the state's coercive powers are employed, a defendant's interest in his liberty or a patient's interest in commitment, release, less restrictive confinement, or adequate treatment cannot be a matter solely for medical determination. The weight to be accorded the medical judgment must vary, depending on the strength of the underlying investigation and the logic employed in reaching that judgment. The best way to resolve what one observer has termed the "crisis in psychiatric legitimacy" is for the entire profession to resolve to play it straight.9
Providing complete disclosure to the decision-maker will not, of course, solve all problems. For example, if jurors acquired a full understanding of the nature and effect of impairments in the defendant's behavioral controls, a host of new problems would arise. What is the proper disposition of persons who cannot be justly held responsible for their acts but are not treatable in psychiatric hospitals?
This was dramatically illustrated to me in the case of a poverty-stricken and deprived black youth from the central city who had made what seemed to be an "unfree" choice to kill a white man after being taunted with a racial epithet. I have no easy answers for dealing with such persons, but I have always believed that this problem - like any problem - should be confronted directly, not papered over by denying or ignoring the moral content of criminal responsibility. The inevitable cost of such denial is a more and more repressive society - a growing cancer.
To conclude from these problems that psychiatrists have nothing to contribute to criminal proceedings is, in my judgment, to misread the Durham experience. If the psychiatrists who have reached that conclusion mean only to state that psychiatrists cannot decide when it is just to hold a person responsible for his acts, they are of course correct.
But the law (as distinguished from some judges and some lawyers) does not require answers to the ultimate questions from psychiatrists. It does not and cannot demand certainty where there is no certainty. Nothing more can be sought than a candid and comprehensive statement of what the psychiatrists believe they have learned about the accused and the wellsprings of his behavior. By this I mean all the sources of and influences on his conduct, whether they be found in his poverty, in his family, in his genes, in some single obsession, or in simple whim.
By telling the jury these things, you do not direct them to acquit or convict the accused. Rather, you humanize the law; you give the jury as much as we know about the human reasons for the accused's behavior, and then the jury must decide whether society should hold him responsible for his deeds.
The only special skill demanded is the ability to explain this information, and the insights and inferences that the psychiatrist has drawn therefrom through exercise of his ordinary professional skills, in commonly understood, human terms. On that basis, as in most areas of scientific endeavor, humane decisions can be made despite the uncertainties. For this purpose, few if any psychiatrists would seriously contend that they have no relevant information or insights to offer. I am consequently left with a lingering suspicion that the movement to divorce the criminal law from psychiatry rests on either a misunderstanding of the law's demands or a resistance to them.
I am disappointed that psychiatric understanding and acceptance of the law have moved so little in the past 20 years. But it is perhaps not surprising when one considers that we are in that terrible period known as "meanwhile." We know enough about human behavior to be plagued with grave doubts concerning the morality of our social and criminal justice systems, particularly as they apply to the disadvantaged and deprived among us, but we do not know enough to be able to resolve these doubts. The tragedy may be that too many of us ignore what we do know in order to postpone present needs while awaiting the day of certainty. "To await certainty is to wait an eternity."
I believe that psychiatry should be proud of its accomplishments, not ashamed of its limitations. If all it can do is to impart an understanding of this period of "meanwhile," so that the community may be aware of the moral dilemma it presents, then - as we say in Hebrew in thanking the Lord for doing more than enough for us - Dayenu.
1. Novak v. Beto. 453 F.2d 661, 672 (5th Cir. 1971) (concurring in part and dissenting in part); cert, denied. 409 U.S. 968 (1972),
2. See Bousfield, R.M. Report of the Trial of Daniel M'Naghten. London: Renshaw. 1843.
3. Durham v. United States. 94 U.S.App.D.C. 228, 214 F.2d 862 (1954).
4. See Washington v. United States. 390 F.2d 457 (D.C.Cir. 1967).
5. United States v. Brawner. 471 F.2d 969 (D.C. Cir. 1972).
6. See id. at 990-94.
7. American Law Institute, Model Penal Code (1955): "A person is not responsible for criminal conduct if at the time of such conduct as a result of mental disease or defect he lacks substantial capacity either to appreciate the criminality of his conduct or to conform his conduct to the requirements of the law."
8. Clinical Aspects of the Violent Individual. Task Force Report No. 8. Washington, D.C: American Psychiatric Association. 1974, p. 28.
9. Bazelon. D. L Implementing the right to treatment. University of Chicago Law Review 36 (1969), 742-754.