Is Insanity a Demeaning Defense? Examining the Ethics of Offender Pathologization through the Lens of the Classics

Abstract

This article considers the question: is the insanity defence demeaning to the accused and if it is how should actors in the criminal justice system, defence counsel in particular, take into consideration the self-respect interest of the accused in advising on which defence to advance at trial? To explore this question I draw on two literary texts which show the defence as demeaning: Don Quixote de la Mancha by Cervantes and Crime and Punishment by Dostoyevsky as well as two texts which show insanity as an honour or face-saving defence: Homer's Iliad and Shakespeare's Hamlet.

Keywords:

• insanity defence
• self-respect
• ethics
• law and literature
• Cervantes
• Don Quixote
• Dostoyevsky
• Crime and Punishment
• Shakespeare
• Hamlet
• Homer
• Iliad

Notes

¹See Kesey, Ken (1973) One Flew Over the Cuckoo's Nest. London: Picador, which lent pop-cultural preeminence to this anxiety through the character of McMurphy who feigns mental illness and tragically gets more than he bargained for when he is transferred from a prison to a mental hospital. See also the movie adaptation: Michael Douglas and Milos Forman (1975). One Flew Over the Cuckoo's Nest [Motion Picture]. Available from Warner Home Video, 4000 Warner Blvd., Burbank, CA.

²See Gardner, John. (2008). Offences and Defences. Oxford: Oxford University Press.

³For an interesting discussion of the ethics of putting evidence of mental illness before the court in opposition to a client's wishes, see “Autonomy vs. A Client's Best Interests: the defense lawyer's dilemma when a mentally ill client seeks to control their own defense,” by Josephine Ross, 1998, American Criminal Law Review, 35, 1343.

⁴Here we can get assistance from Peter Strawson's famous essay, “Freedom and Resentment” in P. F. Strawson, (2008). Freedom and Resentment and Other Essays. New York: Routledge (Originally published by Metheun in 1974). Strawson contrasted the reactive attitude toward others in which we engage with them as fellows responsible members of moral community with the objective attitude toward others in which we view them as a mere object of causal analysis and control. Strawson wrote at p. 9:

To adopt the objective attitude to another human being is to see him, perhaps, as an object of social policy; as a subject for what, in a wide range of sense, might be called treatment; as something certainly to be taken account, perhaps precautionary account, of; to be managed or handled or cured or trained; perhaps simply to be avoided, though this gerundive is not peculiar to cases of objectivity of attitude (emphasis in original).

See also my discussion of Strawson and the stigma surrounding the insanity defense in “Responsibility, Self-Respect and the Ethics of Self-Pathologization” (2011). Rethinking Criminal Law Theory (forthcoming). Oxford: Hart Publishing.

⁵Criminologist Jamie Livingstone is conducting such a study, and it is anticipated that his research will be published in 2011. The results of his interviews promise to be very interesting.

⁶See also my discussion of this debate in “Responsibility, Self-Respect and the Ethics of Self-Pathologization.” (2011). Rethinking Criminal Law Theory (Forthcoming). Oxford: Hart Publishing.

⁷It would be very interesting at some point to analyze the similarities in the logic of the insanity defense and the defense of mistake of fact. It is often the case that we engage with the moral assumptions behind a mentally ill offender's deluded understanding of reality and, to some degree, the insanity defense, I think, hinges on the estimation that the offender would have been acting justifiably if his or her delusions were true.

⁸One exception to this is perhaps the film Lars and the Real Girl (Kimmel & Gillespie 2007), which depicts a delusional young man who sees his life-size inflatable doll as a real person. Although the film is a comedy, when the community joins in to support Lars's delusions, they do so with kindness and a real desire to help him transcend his illness. When others go along with Don Quixote's delusions, they do so only either to manage him or to lead him into further ridiculous acts to humiliate him.

⁹See Bernard Williams's discussion of Agamemnon in Shame and Necessity (2008) and my discussion of Agamemnon infra. Williams argues that Agamemnon does not deny responsibility. I am not a philologist or a classicist so I have no opinion on the point, but clearly some translations—like that of David Konstan—support the reading that Agamemnon denies responsibility. Others, like the one Williams points to, support Williams's reading that Agamemnon is not “disassociating himself from the action; he is, so to speak, dissociating the action from himself” (p. 54).

¹⁰Of course, Don Quixote commits numerous assaults in the course of his adventures, and people are often afraid that he is going to commit murder.

¹¹The ellipsis is in the original.

¹²The voice here is that of Razumihin, who is really the voice of reason and decency throughout the book. For the most part, the text asks our judgments to keep pace with those of Razumihin, and he seems to be the voice of the author.

¹³Foucault provides a marvelous explanation and analysis of the rise of confinement as the response to mental illness. See Madness and Civilization, 1998, beginning at p. 38.

¹⁴Razumihin is assuming Raskolnikov is innocent throughout this discussion.

¹⁵Although Dostoyevsky seems to ask the reader to be mistrustful of the professional expertise behind the verdict of temporary insanity, he also seems to endorse the possibility for redemption that the commuting of the death penalty brings. With the help of the good-hearted and pious prostitute Sonia, who comes with him to Siberia, Raskolnikov is able to move toward a kind of spiritual growth that seems also to involve accountability and repentance.

¹⁶I'm making this a non-lethal offense so that we can more realistically compare the relative appeal vis-à-vis self-respect of the defenses of insanity and duress. Duress rightly is not a defense to murder, and no self-respecting person of the kind we are trying to imagine would want to put it forward.

¹⁷The holding constant of the consequences is more plausible in the English context wherein diminished responsibility defenses (as opposed to full-blown insanity defenses) do result in a complete acquittal. In most legal contexts, an insanity defense is always going to result in some kind of treatment process, so here all other things never are equal.

¹⁸The Greek word being translated as “responsibility” is [aitios].

¹⁹See E. R. Dodds, The Greeks and the Irrational. Berkley: University of California Press, 1951.

²⁰It is ironic, therefore, that the World Health Organization has published a study showing living in a developed country as a negative indicator for recovery from mental illness. See Robert Whitaker, Mad in America. Cambridge, MA: Perseus Publishing, 2005, p. 227).