Good evening, ladies and gentlemen, and
welcome to The Advocates, the PBS Fight of the Week. This program is made
possible by grants from The Arthur Vining Davis Foundations, Lilly
Endowment, Inc., The Amoco Foundation, Inc., and the Twin City Area
Educational Television Corporation.
Ladies and gentlemen, may I have your attention, please.
Moderator Evan Semerjian has just called tonight's
meeting to order.
Good evening. Tonight
The Advocates looks at a legal issue, one dealing with the conditions of
criminal liability. Specifically, our question is this: Should defenses
based on pleas of insanity be abolished in criminal trials? Advocate
Zipporah Wiseman says “yes.” Mrs. Wiseman.
The so-called defense of insanity is not a defense. It is a way for us to
feel better because we are supposedly not punishing the sick. We are hiding
them away in a warehouse. With me tonight are Joseph Goldstein, Professor of
Law at the Yale Law School, and Dr. Thomas Szasz, Professor of Psychiatry at
the State University of New York at Syracuse.
Advocate Lloyd Weinreb says “no.”
Common sense and common decency demand that a person who commits a
criminal act which he cannot control because of mental illness be given
treatment in a hospital and not thrown into prison and turned out onto the
street. Witnesses tonight are Dr. Lawrence Freedman, Psychiatrist, and
Professor Sanford Kadish of the Law Faculty at Berkeley.
Thank you. Our program originates tonight from the
Old Federal Courts Building in St. Paul, Minnesota. The practice of law has
drawn many well known Americans to this building, among them two current
members of the United States Supreme Court, Chief Justice Burger and Justice
Blackmun. We’re pleased to welcome back Zipporah Wiseman as an advocate
tonight. Mrs. Wiseman is a lawyer and is currently a Professor of Law at
Northeastern Law School in Boston. Opposing Mrs. Wiseman is Lloyd Weinreb.
Mr. Weinreb is a Professor of Criminal Law and Criminal Process at Harvard
Law School and a former Prosecutor in the District of Columbia. We'll be
back to these advocates for their cases in a moment, but first a word of
background on tonight's question.
When a person is
charged with crime, he's brought to trial to determine whether he committed
an act for which he should be punished. The person who commits an act which
otherwise would be criminal may not be liable to punishment under certain
circumstances. For example, if a person kills to save his own life, he has
not committed a crime. Or if a person damages another person's property
while sleepwalking, he has not committed a crime. Or if a person assaults
another but is judged to have been insane, he has not committed a crime.
These special defenses have developed from the principle that only conduct
that is the product of a person's voluntary choice should make him subject
to punishment. Therefore self-defense and a defense based on involuntary
acts are defenses which, if successful, result in acquittal, and the
defendant goes free. A verdict of not guilty by reason of insanity
ordinarily has a different result. Although the defendant is exempt from a
prison sentence, if the crime is serious, he's almost always committed to a
mental institution. The commitment may range from several months to life and
bears no relationship to the offense charged. The commitment will last until
the medical authorities consider him to be sane. Volumes of legal
scholarship and years of litigation have focused on the various tests for
determining what constitutes insanity under the law. Little attention is
paid, however, to the questions of why we need an insanity defense and what
objectives of the law are served by that defense. That is our subject
tonight as we examine the question. So, Mrs. Wiseman, why should the
insanity defense in criminal trials be abolished?
In 1952, in the District of Columbia, a Lieutenant Colonel in the
Air Force was charged with passing bad checks: two checks, value $100. He
wished to plead guilty and pay his fine, or serve his few months' sentence
under the law. The municipal court forced him to plead the so-called
insanity defense. He was judged sane enough to stand trial, and at his trial
he was judged insane, and therefore not guilty and was locked up in St.
Elizabeth's Hospital for the Criminally Insane. Two years and three courts
later the Lieutenant Colonel wrote, "Frankly, conditions here are almost
more than anyone can bear, and above all, no treatment. This hospital is a
human warehouse." Three years after that verdict of not guilty by reason of
insanity, the Lieutenant Colonel threw himself under the wheels of a slow
moving truck on the grounds of St. Elizabeth's Hospital and died. If that
man had been judged guilty of breaking the law, he might have at most served
a definite sentence in a prison for a few months and then gone free. But if
an accused is judged "not guilty" by reason of insanity, he is locked up
until a psychiatrist decides that he is sane. Such a criminal defendant may
spend the rest of his life in that "human warehouse." We propose the
abolition of this pernicious double standard of the law by eliminating the
so-called defense of insanity. My first witness is Professor Joseph
Professor Goldstein, welcome
to The Advocates.
Professor Goldstein is
the Professor of Law, Science and Social Policy at Yale Law School.
Professor Goldstein, what is the so-called defense of insanity?
I'm really not sure what it is. It is neither a
defense, nor does it identify, with the word insanity, any category of
person that all of us can agree about. As was pointed out in the opening
remarks, most of us, I think, consider a defense a means by which a person
accused of a crime is able to justify his actions and therefore to be free
of criminal liability and return to the community, so there is, in using the
word defense, a mislabeling of the procedure by which a person is
represented in the criminal trial.
you say, Professor Goldstein, that this is a mislabeling?
Well, unlike self-defense, as was described
earlier, a person is automatically committed to a mental institution, and
though the brass plate on the outside of the brick building may be somewhat
different than that which is outside a prison, it is still so far as the
accused is concerned a deprivation, but it's a deprivation without
limitation, without restraint on authority which is imposed on all of us who
impose sanctions for those who commit crime.
What is the function of a defense in the criminal law, Professor
Goldstein, like the defenses you mentioned, such as self-defense?
I think in order to answer what the function of
the defense is, we ought to first turn to what the function of defining a
crime is. There are two functions really for defining a crime. One is to
advise each member of the community what's beyond the limit of human conduct
and what will get a response from the state in terms of a sanction, and we
require that that be defined with great precision, we require that there be
an act which causes a result, and we frequently include some sort of purpose
or knowledge or volition as requisite elements. In doing that, we also
determine what the restraint is on power---that is, we exclude from the
action, from state authority, all those persons who are not covered by that
definition. Now, no definition made up of words is completely unambiguous,
and frequently remains sufficiently gross so that it covers persons we do
not wish to cover, we do not wish to hold criminally responsible.
Is that where defenses come in?
And that's where the defense comes in; that's
where we say if a person's life is at stake and threatened by someone, that
he's entitled to protect his life against the person who threatens, or is
about to take another life. Now, nothing . . .
Would you please make this a brief question and
All right. Would you tell us,
Professor Goldstein, why you think this mislabeled defense of insanity has
been with Anglo-Saxon jurisprudence for a thousand years?
Well, it's hard to say, except I would speculate
that we're very uncomfortable with our commitment to restricting the state's
authority against those who commit acts causing a result that we don't like
with some degree of purpose, and therefore, we use the defense for people
who would not be subject to the criminal law as a device for holding on to
them because they're dangerous, and we do it in the name of somehow
protecting the sick, where we're very comfortable denying that to ourselves
and denying the fact that we are capable of hating the sick and responding
to them with this defense.
thank you. Let's go to Mr. Weinreb for some questions.
Professor Goldstein, you've told us this evening to
abolish the insanity defense, but you've told us very little about what
would replace it. Take one of the cases in which now the jury finds that a
man has committed a serious crime, but he is insane and therefore should be
found "not guilty" by reason of insanity. In such a case what would you do
with such a person?
I don't see any
need for replacing the insanity defense. I think that's an assumption that
frequently persists when one suggests removing something, that there's need
to put something in its place. What I'm suggesting is that we rely on the
definition of offenses that we currently have . . .
Let me make my question more specific. Professor
What would you do with such a person? Where would
you put him?
A person who now is found by a jury to have
committed a serious crime, but is not guilty because he is mentally ill, he
is insane. Where should we put him?
Under what we're proposing, no person would be not guilty because of mental
Where would you put him?
Professor Goldstein, where would you put such a person?
Any person who commits a crime, I would put in
prison and keep him there as long as the law authorizes,
You are declaring to us tonight, Professor
Goldstein, that any person, even if mentally ill, ought to be sent to prison
if he committed a crime without regard to his illness. Is that
It's correct that any
person—and I don't know what a mentally ill person is—but that any person
who is in need of therapy can get it in a prison under a criminal justice
system that believes in rehabilitation and provides for transfer for mental
institutions out of the prison.
understand you then, Professor Goldstein, you are saying to us, "Send the
man to prison, but treat him as if he were in a hospital." Why should we not
send him to a hospital?
suggesting that because the insanity defense is not even a finding if it
prevails that the person is mentally ill. It's only a finding that there's
some doubt about the sanity of the individual at the time the offense was
But of course we would have to
have found this man guilty to send him to prison.
Of course you would.
Professor Goldstein, if a man is sick, and if his crime is the product of
his sickness, why should we declare him criminal? Is that in the name of
decency? Why should we declare a man culpable, a criminal, for an act which
he could not control?
I think what you
want to get underneath is what you mean by the word criminal. What we're
saying is that he's subject to state authority and that state authority is
used now to keep someone out of circulation, to give some evidence of the
appropriateness of using deterrents, and to the extent the state can, work
its will on that person for a limited amount of time.
Is that what the community means by criminal and
guilt. Professor Goldstein?
Is that what you believe to
be the common understanding of the term criminal, sickness?
No, and that's just what we're talking about—the
fact that the law currently plays on the community's common understanding
with words and misuses them. We are now talking about personal liability and
guilt in criminal trials, when in fact we use a reasonable man standard, we
assume, or presume, that man intends the natural consequence of his acts,
and in fact the criminal law currently operates as a strict liability system
and that what might happen if we abolish the insanity defense is to permit
us to confront whether or not we really are committed to the idea of
volition and purpose and knowledge as requisites of liability.
If I understand your proposal, Professor Goldstein,
you've said something to us about brass plates over the door. You're telling
us, "Take away the brass plate, 'Hospital,' indeed close down the hospital.
Put a man in a prison, and put the brass plate 'Prison' on that institution,
and then do for him whatever in the way of treatment we now propose and try,
albeit failingly, to do in a hospital." Isn't that what you're
If it's appropriate. If he
has diabetes, I'd provide for that too in a hospital.
Doesn't your proposal abolishing the insanity
defense, which is a part of our criminal law, doesn't it make a radical
change in our understanding of guilt for the sake of doing nothing more than
changing a brass plate?
No, it restores
us to our original concept of guilt and permits us to communicate to our
children, the community, what the law ought to communicate—that is, what
it's doing and why it's doing it.
proposing that we communicate to our children this sense, that sickness and
blamed moral fault are the same thing?
Make this a brief answer.
The greatest immorality is to say that we're doing something about sickness,
when in fact we're treating the person as a criminal under the guise of
Mrs. Wiseman, back to
Professor Goldstein, do you believe
that we now help those people whom Mr. Weinreb refers to as sick by after a
criminal trial and the finding they committed the act that society defines
as a crime, by then putting them in a hospital?
Well, I'm not sure whether we're helping them or not. My ... To
the extent I have knowledge in this, I am very uncomfortable about any
forced treatment, particularly in this area. I can't conceive of it as being
meaningful. But before that, one really ought to acknowledge we're not
talking about people who are identifiable. There's no finding of insanity or
sickness. There's just doubt cast, apparently by evidence that we don't
understand on the man's sanity, but there's no finding of
All right, Mr. Weinreb, you
have one question.
isn't the substance of your proposal not that we confuse guilt and sickness,
but that we make treatment in mental hospitals effective, that we provide
treatment for those who are sick and release them when they are
Not at all, except to the extent
that if you mean by provide, provide an opportunity for treatment, yes,
that's an obligation of the state. Forced treatment, no. That's an offense
to the dignity of human beings.
is, Professor Goldstein.
we assert the authority to take into custody and impose our will on them
because of what they did which was offensive to us.
All right. Professor Goldstein, I want to thank
you very much for being with us tonight. Thank you.
Dr. Thomas Szasz, Professor of Psychiatry at the
State University of New York in Syracuse.
Dr. Szasz, welcome to The Advocates.
Thank you very much.
what do you find is wrong with this so-called insanity defense in the
I find a great many things wrong with
it, and I will list just three of the major ones. First, that it's based on
an ostensible condition, or disease, as it was referred to, insanity, which
in my opinion is a fiction or a word. It is made to look like as if the
defendant had pneumonia or diabetes. In fact, I think it will come out,
insanity is nothing of the sort. This is obvious. You can't plead pneumonia,
but you can plead insanity. Secondly, it has to do with a strategy under the
guise of ascertaining a fact. It looks as if people are trying to find out
if the defendant were or were not insane. In fact, what they're thinking
about is should he or should he not be locked up in a mental hospital. And
thirdly—and this really is in some ways, in my view, the most important
argument, and it was one on which Mr. Weinreb already touched— and that is,
humanism, dignity, what you mean by being a human being. To my view, being a
human being means being responsible for what you do. In proportion, as you
don't hold a person responsible for his acts, you diminish his humanity, and
that, of course, has been the history of institutional psychiatry.
You mention the history of institutional
psychiatry. What part does the discipline of psychiatry and the person we
call the psychiatrist play in the criminal trial when this plea of insanity
He plays both practically and
ideologically a very pivotal part, and in fact one could argue, if one is
prepared to look, as I like to often, anthropologically, sort of from the
outside, that this shows a sanity trial benefits mainly the psychiatric
prostitutes— and I use the word deliberately and advisedly—who are retained
by each party—and this is well known, psychiatrists will find anything that
people will pay them for; this has been the history of forensic psychiatry—
and the upshot is, though, that if they find that the defendant is insane,
then they have a roaring business of locking them up and treating them for
the non-existent disease of insanity which has caused them to commit a crime
which they enjoyed committing, which is usually killing somebody they hate,
robbing a bank in which there is money. And this is then called forensic
psychiatry, and again, if you look at who makes the money, cui bono, as the
Italians say, to whom does this benefit, well, it's obvious that the
greatest benefit is not to the defendant but to the psychiatrist and the
psychiatric profession, and they are the ones who have pushed this for
hundreds of years.
I would assume,
therefore, that you would keep psychiatrists out of the courtroom.
That's putting it mildly.
Make this a brief question and answer now.
Dr. Szasz, what happens to the person who is judged
"not guilty" by reason of insanity?
historically and generally, two things happen, as was already alluded to.
Most often this person is, in fact, in an Orwellian sense, called "not
guilty," but is then locked up for life in a dungeon called a mental
hospital, where if you ask the people where they would prefer to be, they
would all prefer to be in a prison rather than a hospital. Sometimes they
are let loose, which I also don't like, even though they have committed a
Thank you very much.
Dr. Szasz, I think Mr. Weinreb is eager to ask
you some questions, and here he comes.
Dr. Szasz, it sounds as if your complaint is more with the way psychiatrists
practice their profession than with the way the criminal law is
administered, so let me slip away from psychiatry for just a moment. If a
person walks in his sleep and does something that would be a crime if he
were awake, should he be declared a criminal?
A sleepwalker is a
I prefer your first statement. A
person who walks in his sleep and then does something which benefits him,
which is called a crime. I would like to know what he does. If he's . .
Let me ask you then. Dr. Szasz, about a
child of six or eight who does something that were he an adult, would be a
crime. Should we declare that child a criminal and put him in
Well, Mr. Weinreb, you are the
lawyer, and I'd assumed that our discussion would only be about adults today
because the treatment of children in the law is so totally different that
I'm not prepared to launch into it.
Well, I don't think you can get out of it that easily. Doctor. It's useful
to understand how far you'll go, I think, to answer the question.
All right, but then, now let me answer it this way.
Mr. Weinreb's question brings out the gist of my objection and other civil
libertarians' objections— namely, that psychiatric determinations are based
on the principle of paternalism, of treating adults as if they were
I take it, Dr. Szasz . .
No, I would not hold a six year old fully
Thank you. Are there
never cases. Dr. Szasz, when an adult, awake person is so confused, so
disturbed, so unable to control his conduct, that the same principle should
I have no objection to mitigating
circumstances being introduced to the jury, but not under the guise of
fraudulent psychiatry . . .
. . . Somebody's sick, somebody's
confused—that can be explained to the jury.
If a person—an adult person—engages repeatedly in conduct like,
let us say, molesting strangers, and there is abundant evidence from his
friends, from his family, and from competent psychiatrists, whose testimony
you would respect . . .
I would not. You
are building into the question precisely what I . . .
Let me, let me . . .
Let him finish the question.
. . . the psychiatrist in accordance with your suggestion—abundant testimony
from his family and friends and those who know him that he was unable to
control his conduct because of what they, although not you, would call
mental illness. And if the jury believed that evidence, that he could not
control his conduct, what would you do with him?
Well, sir, I can't answer it that way because it's a circular
question which is self-serving. You have built into your question the
proposition that there are mental illnesses which make people unable to
Eliminate that word, Doctor, that
phrase, then. Dr. Szasz. I did use it, and I won't use it now. If the jury,
because of testimony from a man's friends and family, is convinced that the
man could not control his conduct, what would you do with him?
I still don't understand the question because I don't
believe that people commit acts which they like to do and which can then be
called "unable to control."
that man would go to prison, would he not, Dr. Szasz?
Let me say this. That is an excuse. What you are
presenting is a psychiatric excuse. Where he goes depends upon the moral
judgment of the community.
And since you
do not accept that excuse, that man would go to prison, would he not, Dr.
No, if the jury wants to accept it,
they can acquit him and set him loose.
And if they acquit him under your proposal, he goes back onto the
My proposal is that we only have
regular prisons, as Professor Goldstein mentioned . . .
To be sure, so that the . . .
. . . that you don't have psychiatric
So the choice. Dr. Szasz, is
prison or the street.
It is precisely this
cop-out out of this bind that the insanity defense is meaning to
What I'm trying to do. Dr. Szasz, is
find out what would happen if we eliminate the cop-out. Prison itself is a
dreadful imposition on a man, is it not?
Molesting children is a dreadful crime.
To be sure. You're not suggesting, are you, that a man goes to prison
voluntarily. Dr. Szasz?
And you're not suggesting, are you, that
conditions in a prison are not dreadful, violent, destructive,
You know why they are so bad?
Because instead of prison reform, we have mental hospitals. If you could
pour the money into prison reform, we wouldn't have such bad
Are you opposed to giving a man
treatment, vocational counseling, all of those things, in a prison. Dr.
I am not opposed to treatment if
the person wants. I am opposed to all involuntary treatment in or out of
Including things like vocational
therapy, counseling, guidance of any kind?
Words are cheap. The question is does the prisoner want it or not. That is
the determining factor.
Dr. Szasz, are
you not proposing to us tonight, for the sick and the guilty as well, that
we keep the worst, the punitive aspects of a prison, and that we exclude
from them the hopeful, albeit limited, albeit not as complete as we'd like,
efforts to rehabilitate, the therapeutic efforts in prison, or if a man is
sick as we now profess, in a hospital.
Make this a brief answer.
Yes. We are hung
up on words, Mr. Weinreb. What you call sickness and rehabilitation, I call
an Orwellian death trap and torture. And what you call punishment, I call
All right. Mrs. Wiseman, back
Dr. Szasz, is the gist of your
position that the essence of humanity is to give every man the dignity of
assuming that he intends the consequences of what he does?
you therefore saying that if a human being breaks the law, commits a crime,
that society punishes him for a defined number of years in one
All right, Mr. Weinreb,
one question from
Dr. Szasz, if we lose
the distinction between sickness and guilt, if blame is no longer required
before we impose a criminal sanction, don't we risk creating a society in
which every act we don't like is punished, whether the person is
blame-worthy or not?
Mr. Weinreb, you are
putting words in my mouth. I am not advocating—and no one here is advocating
on our side—the abolition of the concept of sickness. We are not talking
about diabetes; we are talking about insanity, and it is only about insanity
that I claim there is a fraudulent concept.
All right. Dr. Szasz, I want to thank you very much for being
with us tonight. Thank you. For those of you in our audience who may have
joined us late, Mrs. Wiseman and her witnesses have just presented the case
in favor of abolishing the insanity defense in criminal trials. And now for
the case against. Mr. Weinreb, the floor is yours.
Thank you, Mr. Semerjian. The insanity defense is
an established part of our law. It provides simply that someone who commits
a harmful act against society because he is sick, and not because he is a
wrongdoer, will not be treated like a criminal. The other aspect of the
insanity defense is that if it is proved that a person committed a crime
because he was insane, usually society takes measures to protect itself
against a repetition by providing for him to be treated for his mental
illness. Like all social institutions, the insanity defense can be abused in
practice and has been, but abolition of the defense is not the answer. It
would mean that such persons would either be branded as criminals and dumped
in prison, subject to all the abuse of prison, or they would be returned to
the community without treatment and without any assurance to us that they
will not repeat their act. The community should treat such persons as the
ill persons they are. It should recognize and meet its social and moral
obligations to the mentally ill, not abolish them. The first witness tonight
is Dr. Lawrence Freedman.
Freedman, good to have you with us tonight on The Advocates.
For ten years Dr. Freedman was Consultant to the
American Law Institute study of the criminal law. He is Research Professor
of Psychiatry at the University of Chicago and Co-chairman of the Institute
of Social and Behavioral Pathology. Dr. Freedman, we have heard tonight that
there is no such thing as mental illness. Do you agree?
I do not agree. I think there is a class of
people who have such severe maladaptive incapacities, who see things which
other people cannot see, who hear things which other people cannot hear, who
suffer pain which cannot be organically traced, whose perceptions place them
in situations where, out of misapprehension, they are liable to commit
The proponents tonight
have said that we cannot distinguish between people who should be blamed and
sent to prison and those who cannot be blamed and who are generally
hospitalized. Do you find this distinction difficult to make. Dr.
I do not find this
distinction difficult to make when I am attempting to ascertain the
psychopathological state of an individual of the sort whom I have just
described. Such a person, whose thinking processes are so seriously
distorted, whose processes of adaptation are incapacitated, who suffer from
an inability to adapt themselves, are not able to control themselves in
certain conditions and therefore seem to me ought not to be held for blame
for acts which are otherwise harmful.
What ought the society to do, then, about such a person who commits a
Society ought to provide
such persons with the diagnosis, the treatment, which their suffering, their
personal suffering, their pathos, which is the essence of the term
pathology, requires and should provide them with all the armamentarium of
medicine and psychiatry, whether in or out of hospitals, depending upon
Can the society require a
person, the sort of person whom you describe, to accept treatment?
Society requires large numbers of people, as the
previous witnesses have pointed out, to accept treatment which might be
called massive behavioral modification in penology. Prisons are massive,
government supported experiments in behavioral modification. Since the
finding of guilty in a sentence causes them to be incarcerated against their
will, they are rewarded for behaving properly, according to the definitions
of the wardens and the guards, and they are punished for behaving improperly
by being held longer, etc.
What sorts of
treatment might be available in a mental hospital. Dr. Freedman?
In a mental hospital, the treatment, as is the
case in a wide range of all illnesses, would be appropriate to the illness,
ranging from psychotherapy, a personal relatedness, the use of medication
which might tranquilize otherwise agitated and fearful individuals, entire
range depending upon the individual needs of those persons.
What do you believe are the possibilities of
treatment in a prison setting?
having spent four years attempting to treat people in a prison, that the
role of guard and the role of therapist are inherently incompatible and that
it is not possible to treat in a prison setting.
Given the condition of our mental hospitals. Dr. Freedman, and
your experience in prisons giving treatment so as you could, in your opinion
should the insanity defense be abolished?
Very brief, Doctor.
opinion, some form of designation of persons who are so ill as to not be
able to control themselves ought to free them from punitive sanctions on the
part of the state.
Thank you, Mr.
Weinreb. Mrs. Wiseman, your witness.
Freedman, I agree with you that holding a person against their will is
incompatible with being able to treat them. Why then is it possible to treat
someone who has been committed to an institution for the criminally insane
against their will? What is the difference?
I am not an advocate of institutions for criminally insane; I am
an advocate for massive improvements of our institutions for the treatment
of the mentally ill.
Well, I think none
of us here would disagree about that. We all agree that they desperately
need improvement. But dealing with the reality of our society as it is now,
where those who are judged not guilty by reason of insanity are sent to
institutions called hospitals for the criminally insane, held there against
their will for longer times, most often, than they would have been held in a
prison for this crime, can they be treated when they do not wish
You describe as an entire group
what is in fact a fragment. Not all persons are forced into hospitals; a
certain percentage, of course, are. My feeling, as I have said, is that our
concentration should be on providing appropriate care for such persons
rather than in maintaining criminally insane institutions in their present
deplorable state, as you pointed out, or abandoning the distinction between
the blameworthy and those who are too ill to control themselves.
You are . . .I'm sorry. You say you advocate—you
think it might be best to abandon that distinction, that we might be . . .
Was that the gist of your last?
Rather than. Excuse me, I
misunderstood. Dr. Freedman, might there be cases where even if we were in
the best of all possible worlds and really could give treatment to people
who were judged criminally insane, might there be cases that might be
And what would you do with them?
Depending upon their conditions, send them home,
keep them in hospitals. Treatability and the incarceration are by no means
What would be your
criterion as to whether you would send them home or keep them in an
institution for the criminally insane?
Their welfare within the constraints of social stability.
Who would judge their welfare within the
constraints of social stability?
would judge their welfare insofar as I am a diagnostician, and society,
through the instruments of the law, would make provisions for maintaining
But you as a trained
diagnostician would make a prediction, as it were, then about what they
might do, or how dangerous they might be for society. Is that it?
I would make a diagnosis of a condition.
Dangerousness is a social dilemma for which the law is set up to protect
I see. So it would depend on
what their condition was as to whether you would send them home or keep them
in the institution, or how long they would stay in the
It would depend upon what
is most beneficial for that person within the constraints of our living in a
coordinated society, yes.
So you would
balance, then, their condition as against the protection of society, if you
will, the interests of society. You would balance those and make a judgment
as to on which side they would . . .
The protection of society is on the hands of extraordinarily competent
persons such as yourself. I would balance the ability of an individual to
perceive accurately, to think correctly, to control himself so as not to
harm himself or others.
Make this a
brief question and answer, Mrs. Wiseman.
You say that you would decide, then, how well they could think, and you,
then, and psychiatrists, trained diagnosticians like you, in institutions
for the criminally insane all over the country, will decide how long these
people who are adjudged not guilty by reason of insanity will spend in
institutions for the criminally insane under our present law.
By extrapolating a single phenomenon of thinking,
you do a serious disservice to the diagnostic process, which attempts to
take into consideration a wide variety of functions by which diagnoses are
All right. Let's go to Mr.
Weinreb for a question.
let me review a question which you've just answered. The service of the
diagnostician is to describe the mental condition of the patient, is that
And the duty of society, its lawyers, the society
generally, is to determine, given that information, whether the man should
be released or needs to be detained for further treatment until the
diagnosis improves, is that correct?
my opinion, yes.
All right. Mrs.
Yes. We might agree about the
duty of society. Dr. Freedman, but in fact, in reality, under the law as it
is today in our institutions, is it not you, when you are a psychiatrist in
such an institution, who will decide whether a man stays in that institution
for life or goes free?
upon the quality of the state. There are states which do quite a good job,
particularly when they have outside concerns of service, of scanning and
screening in regular intervals to see that persons are not being held
without proper treatment for prolonged periods of time beyond their
It would be good if that were
true everywhere, but it's not true in every state, is it. Dr.
It's not true in every
And there are places in this
country where, indeed, diagnosticians, and sometimes nowhere near as well
trained as yourself, decide whether a man spends his life in an institution
for the criminally insane for passing a bad check.
Sadly, and comparably to miserable prisons which
also exist and which we both deplore.
And where you've spent some months ....
Dr. Freedman, excuse me. I want to thank you very much for being
with us tonight. Thanks. Mr. Weinreb.
The second witness tonight is Professor Sanford Kadish.
Professor Kadish, good to have you with us
Pleasure to be here.
Professor Kadish teaches at the Law School of the
University of California at Berkeley. He has written extensively about
criminal law and about the insanity defense. Professor Kadish, what is the
importance of the insanity defense in the criminal law?
As I see it, the defense of legal insanity gives a
very vivid expression to a terribly important fundamental principle of
fairness of any civilized community. That principle being that a person
should not be condemned and blamed in the absence of a power of choice. It
therefore takes its place, the defense of legal insanity, beside the variety
of other excuses in the criminal law, such as intimidation, coercion,
duress, sheer accident, all kinds of situations where, though the
consequence happens which society seeks to protect against, nonetheless it
is grossly unfair to blame and condemn the defendant because he was not at
fault because he lacked the power to choose.
Someone who is found not guilty by reason of insanity. Professor
Kadish, usually is not released, but is committed to a hospital. Will you
explain that from the point of view of the criminal law?
Yes, yes. Essentially what happens is that he's not
punished. This is the point I would like to stress. To be sure, as Professor
Goldstein points out, it is not a complete exculpatory defense. He doesn't
go free necessarily, but he is necessarily relieved of the penal criminal
consequences of conviction. Society, however, in order to protect itself
against the possible future dangerousness of such a person, who after all by
definition, although not of his own choosing, has created some danger to the
community, for its own protection finds it necessary to institutionalize
that person under a variety of conditions and hopefully at the same time to
try to effectuate some cure for this sick person. The distinction, if you'll
let me go on just a half minute more . . . The famous Typhoid Mary
represented a threat to the society. That person—in the disposition you
would make of that person, you would want to sharply distinguish her from a
person who deliberately goes around spreading disease. The latter person you
would put in prison. Typhoid Mary you would acquit but find some alternative
disposition which protects society. The analogy is clear.
Are the procedures at present for commitment of a
person who is criminally insane adequate, in your opinion?
No, I don't think so. I don't think they're
adequate, and this is where I think both the offense and the defense are on
the same ground. I would think that there ought to be a variety of
improvements, very fundamental improvements, in the administration of the
laws, in the administration of the institutions for the mentally insane.
There ought to be maximum limits on the duration of incarceration, perhaps
identical with the maximum for the offense for which the person was
acquitted. There ought to be opportunities to review the need for
incarceration, and there ought to be a massive input of psychiatric and
social work help for the person, which we now don't begin to do
Professor Kadish, a main reason
why tonight's proponents have urged that the insanity defense be abolished
is, as they argue, to protect individual liberty. Do you agree with that
Well, with all respect, I share
the premise, but I disagree with the conclusion. Interestingly enough,
historically it has been a rather law and order interest which has urged the
abolition of the defense of insanity on the simplistic grounds that, well,
insanity is just a way for guilty people to go free. I would think the way
to protect liberty is not to confuse the sick with the guilty and treat them
alike, but rather to make these massive reforms in the administration of our
mental hygiene laws, to protect the liberty and freedom and dignity of
All right. Professor
Kadish, Mrs. Wiseman has some questions for you.
May I wipe my brow before you proceed?
Yes, indeed you may.
wipe it while she's coming forward.
Professor Kadish, you said that you felt a person should not be punished or
condemned when that person lacked the power to choose . . .
. . . and
you were concerned with the fairness. Do you maintain that the incarceration
of a defendant in an institution for the criminally insane is not in reality
in our present day condemnation and punishment?
Certainly not, no. I think it just isn't. I don't know how to say
that except it isn't.
It's not. You do
Lots of unfortunate things
have happened to people, lots of misery in the world is grossly unfortunate,
but it is not all punishment.
Dr. Kadish, Professor Kadish, you do agree that a person who is incarcerated
in an institution for the mentally insane is deprived of their freedom. They
cannot go where they wish when they wish, as other citizens.
Unless he is on supervised release, which is
totally possible, or on an out-service basis, having some psychiatric care.
The institutionalization is a last resort, and to be sure, when he is
subjected to that, he lacks his freedom.
My experience with prisons and mental hospitals is that that kind of a
program is far more likely to occur in our prisons in our present day than
it is in our institutions for the criminally insane.
The very important point is when Typhoid Mary is
quarantined, she is not being punished, although she is being deprived of
Professor Kadish, do you
really maintain that what you call mental illness can be identified as
clearly as typhoid fever?
No, not as
And with as much certainty as
to both its existence and to the predictable course of the
No, not with as much
But despite the lack of
certainty, you feel that it is within the procedural safeguards of our law
to incarcerate people that psychiatrists have identified as ill, even though
it's not quite as certain as typhoid fever.
Despite the uncertainty, what is worth doing and necessary, I
think, to preserve fidelity to the principle of fairness is not to condemn
and punish such persons, persons whom a jury is prepared to conclude is so
far out of his rational control that he ought not to be punished. When a
jury so concludes, I believe that we ought not to punish, but seek another
alternative for self-protection and for the help of the
You believe then that we
help individuals by putting them in institutions for the criminally
In fact . . .
Wiseman; Yes, in fact.
Well, in fact, unfortunately, we don't begin to do enough by way of helping
individuals, and mind you, I do not want to present a fictitious case here.
I'm not suggesting that our mental hospitals, where persons are committed
against their will because they are acquitted on grounds of insanity, are
ideal therapeutic communities because they're not. Most of them are awful
places, and I'm with you in agreeing that it would be eminently worthwhile
to make them better. What I'm disagreeing with you on is that the right way
to do that is not to punish them and send them to our penal institutions,
which are the one institution in our society which rival mental institutions
for their sheer horror and degradation.
Professor Kadish, just talking together for a moment about this Utopia that
we would both like to have happen, do you think it might be more effective,
as Dr. Szasz suggested, if those of us who believe that both institutions
need improvement were to concentrate on one and to have our prisons, as many
do now, include in them the possibilities for treatment for those who wish
treatment and to have the various techniques and experts available to give
it. But for us, do you not think it would be healthier for our society to
call what we do by its proper name. We lock people up in a place that they
cannot get out of until a doctor says they may leave.
That, of course, is true in prisons too: we lock
people up that may not leave unless they are released on parole or their
term . . .
Unless the law says.
Professor Kadish. Surely you would agree that the law says that if you
commit a check . . .
Make this very
... a check forgery, you go to
jail for two or three months.
deplore the fact of a potential indeterminate commitment for those acquitted
on grounds of insanity, Mrs. Wiseman. I join you, and I would advocate the
imposition of a limit on how long such a person can be held, and one handy
rule of thumb is the duration of punishment for the crime that he was
We've been trying to improve it for a thousand
years, and now I think we might do something else.
Mr. Weinreb, back to you.
Professor Kadish, if in practice a mental hospital
often does not afford adequate treatment and a good prison makes treatment
available, how important is it to preserve the distinction between criminals
and the mentally ill?
Well, that gives me
an opportunity to repeat. I suppose I think it's essential because one of
the vital things that a criminal law system does is to carry out the
underlying ethical commitments of the community and what it does, and it's
terrible important. I would be wholly in favor of prisons becoming more
humane, of mental hospitals becoming more therapeutic and fair—that would be
ideal. But even in that Utopia, where they both were perfect institutions, I
would maintain the indispensable need for fidelity to the distinction
between the blame-worthy and the not blame-worthy, a distinction which is
made by the defense of legal insanity.
Mrs. Wiseman, you have another chance with one question.
This distinction between the blame-worthy and the
not blame-worthy. Professor Kadish, would you then maintain that you would
keep the non-blame-worthy in their separate institutions for life as long as
they continue to be what you call mentally ill?
No, I wouldn't keep them for life. I certainly wouldn't keep the
counterfeiter or the person who litters the sidewalk who gets acquitted on
grounds of insanity for the rest of his life. Certainly not. Intelligent
decisions have to be made in terms of how dangerous the person is, what kind
of danger he poses, is it the threat of littering or is it the threat of
destruction of life?
Professor Kadish, I'm going to have to interrupt, and I want to thank you
very much for being with us tonight.
Thank you very much.
Thank you. Thank
you. That completes the cases, and now it's time for each of our advocates
to present his closing argument. Mr. Weinreb, could we have yours,
Thank you, Mr. Semerjian. The
proponents tonight are caught between two positions, both of which are
unacceptable. We cannot afford to leave at large someone who has committed a
serious crime, while we know that the illness which caused the crime remains
and may cause him to commit the same act again. But to declare an insane
person a criminal and imprison him violates our deepest moral convictions.
We teach our children the difference between blame-worthy conduct and
conduct about which a man can justly say, "I couldn't help it." Mental
hospitals are not good places to be. They're awful. So are prisons.
Improving treatment in our hospitals and giving promise of release is a
better route to our common goals than closing the hospitals altogether.
Tonight's proponents speak of justice, but they would put the sick in
prison. They speak of liberty, but they would create a society in which all
that counts is your behavior, and the consequences of behaving in some
disapproved way—deviance, they call it—is imprisonment. Justice and liberty
both demand that we reject their proposal and vote no.
Thank you. Mrs. Wiseman, could we have your
It is time that we
stopped locking up people for life and calling it treatment. It is time we
stopped saying people are not guilty and therefore we will incarcerate them
until a medical process without standards or procedural safeguards says they
can be freed. It is time we, as a society, began to try to look honestly at
what we do do and what we want to do with the criminal law. If we continue
to use the so-called defense of not guilty by reason of insanity, we will be
teaching our children that it matters not what we do, only what we say. And
so we urge you to vote yes for the abolition of the insanity
Thank you. Now it's time for
you in our audience to get involved. What do you think about tonight's
question? Should defenses based on pleas of insanity be abolished in
criminal trials? Send your yes or no vote on a letter or postcard to The
Advocates, Box 1974, Boston 02134. Later this month the Senate Judiciary
Committee will be considering the proposal to restrict the insanity defense.
How do you want your Congressman to act? Let us know, and we'll tabulate
your votes and make the results known to members of the Committee and to all
members of Congress. Remember that address: The Advocates, Box 1974, Boston
And if you'd like a transcript of
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Next week The Advocates will originate from
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And now, with
thanks to our advocates and their very able and distinguished witnesses, we
conclude tonight's debate.
Advocates as a program takes no position on the issues debated tonight. Our
job is to help you understand both sides more clearly.