Reflections on Current Proposals to Abolish or Reform the Insanity Defense

Arenella, Peter

doi:10.1017/s0098858800008091

Cited by 9 publications

(3 citation statements)

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“…This retrenchment was opposed by many legal scholars. In some cases, this was based on constitutional grounds (English 1988), whereas in other instances, the opposition was based on utilitarian thinking: for example, a person with impaired volition who has committed a criminal act is less likely to be rehabilitated if incarcerated in prison than if hospitalized psychiatrically (Arenella 1982). Nonetheless, this retrenchment was widespread throughout the USA.…”

Section: Knowing Right From Wrong: the Growing Reliance Of The American Criminal Justicementioning

confidence: 99%

The frontal cortex and the criminal justice system

Sapolsky

2004

Phil. Trans. R. Soc. Lond. B

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In recent decades, the general trend in the criminal justice system in the USA has been to narrow the range of insanity defences available, with an increasing dependence solely on the M'Naghten rule. This states that innocence by reason of insanity requires that the perpetrator could not understand the nature of their criminal act, or did not know that the act was wrong, by reason of a mental illness. In this essay, I question the appropriateness of this, in light of contemporary neuroscience. Specifically, I focus on the role of the prefrontal cortex (PFC) in cognition, emotional regulation, control of impulsive behaviour and moral reasoning. I review the consequences of PFC damage on these endpoints, the capacity for factors such as alcohol and stress to transiently impair PFC function, and the remarkably late development of the PFC (in which full myelination may not occur until early adulthood). I also consider how individual variation in PFC function and anatomy, within the normative range, covaries with some of these endpoints. This literature is reviewed because of its relevance to issues of criminal insanity; specifically, damage can produce an individual capable of differentiating right from wrong but who, nonetheless, is organically incapable of appropriately regulating their behaviour.

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Section: Knowing Right From Wrong: the Growing Reliance Of The American Criminal Justicementioning

confidence: 99%

The frontal cortex and the criminal justice system

Sapolsky

2004

Phil. Trans. R. Soc. Lond. B

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“…On paper, the various third-choice options differ from one another conceptually, dispositionally, and, most importantly, even in regard to culpability (Arenella, 1977). By way of comparison, England's “diminished responsibility” reflects a partial culpability verdict, whereas Michigan's GBMI option does not, and the latter fact has led some critics of GBMI to call it a “compromise verdict” (American Psychiatric Association, 1982, p. 9; Arenella, 1983, p. 118), and “an idea whose time should not have come” (Slobogin, 1985, p. 494). Whether GBMI in particular and third options in general represent compromise or coherence, is an arguable point.…”

Section: Prototypes Types and Shades Of Culpability And Verdict Optionsmentioning

confidence: 99%

Commonsense justice and jury instructions: Instructive and reciprocating connections.

Finkel

2000

Psychology, Public Policy, and Law

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Commonsense justice" (CSJ) and "jury instructions" are conjoined to illustrate their instructive and reciprocating (i.e., diagnostic and therapeutic) connections, and, when taken together, their instructive potential for the law. It is argued here that "jury nullification," which appears as the antithesis of connectedness, is more likely the failure of "jury instructions," rather than the "failings of jurors." Insanity jurisprudence is the main venue for demonstrating the instructive and reciprocating connections, an area replete with insanity test instruction failures. What emerges from the empirical findings are CSJ's sophisticated constructs and prototypes, where types and gradations of culpability are found, yet where jurors' distinctions are conflated and collapsed by instructional schemes that afford no opportunity for jurors to register their distinctions. When such a schema is created and tested, it succeeds. The implications of these instructive and reciprocating connections between CSJ and jury instructions-for other nettlesome areas of the law-are suggested.

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“…These alternative verdict choices provide the fact finder with another verdict option in addition to the traditional two choices of not guilty by reason of insanity (NGRI) and guilty. While there are conceptual arguments for and against a third option in general, and specific third options in particular (American Bar Association, 1984; American Psychiatric Association, 1982; Arenella, 1977, 1983; Dix, 1971; Fingarette & Hasse, 1979; Finkel, 1988a; Morris, 1982; Roberts, Golding, & Fincham, 1987; Slobogin, 1985; Sparks, 1964; Walker, 1968), the debate between proponents and opponents has been spirited and spicy nonetheless; the “debate” has been much more one-sided and critical, however, in regards to what jurors would do with such an option. The attributions regarding jurors are not only decidedly negative, they are largely uninformed by empirical evidence.…”

Section: Insanity’s Insularitymentioning

confidence: 99%

De facto departures from insanity instructions: Toward the remaking of common law.

Finkel¹

1990

Law and Human Behavior

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De facto departures from the law (de jure) have been noted in such areas as jury revolts, jury nullification, extralegal concerns, and insanity. The thesis developed here is that (a) when such departures have occurred in insanity cases, a critical rather than instructive view of jurors has prevailed; (b) this critical view impedes efforts to empirically understand jurors’ constructs of insanity and thereby restricts considered legal changes; (c) the Insanity Defense Reform Act of 1984 is illustrative of such narrowly considered changes, and, based on empirical findings, this act fails to instruct jurors or produce verdicts different from its predecessors; and (d) based on empirical findings, the common sense construals of sane and insane do emerge, complex though they be. Suggestions toward an empirically derived “common law” test of insanity, one that harmonizes legal, psychological, and common sense perspectives, are offered.

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Reflections on Current Proposals to Abolish or Reform the Insanity Defense

Cited by 9 publications

References 0 publications

The frontal cortex and the criminal justice system

The frontal cortex and the criminal justice system

Commonsense justice and jury instructions: Instructive and reciprocating connections.

De facto departures from insanity instructions: Toward the remaking of common law.

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