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 Goldstein.

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.

Why do 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 answer?

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.

All right, 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 Goldstein.

Certainly.

What would you do with such a person? Where would you put him?

What person?

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 illness.

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 correct?

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.

If I 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?

I'm not 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 committed.

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?

Absolutely.

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 proposing?

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.

Are you proposing that we communicate to our children this sense, that sickness and blamed moral fault are the same thing?

Make this a brief answer.

clearly not. 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 insanity defense.

Mrs. Wiseman, back to you.

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 insanity.

All right, Mr. Weinreb, you have one question.

Professor Goldstein, 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 cured?

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.

As prison is, Professor Goldstein.

As prisoners, 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.

Dr. Szasz, what do you find is wrong with this so-called insanity defense in the law?

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 is made?

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?

Well, 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 crime.

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?

Of course.

A sleepwalker is a criminal?

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 prison?

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 children.

I take it, Dr. Szasz . . .

No, I would not hold a six year old fully responsible, no.

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 apply?

I have no objection to mitigating circumstances being introduced to the jury, but not under the guise of fraudulent psychiatry . . .

Dr. Szasz . . .

. . . 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."

Well, then, 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. Szasz?

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 street.

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 prisons.

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 do.

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?

No.

And you're not suggesting, are you, that conditions in a prison are not dreadful, violent, destructive, abusive?

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 prisons.

Are you opposed to giving a man treatment, vocational counseling, all of those things, in a prison. Dr. Szasz?

I am not opposed to treatment if the person wants. I am opposed to all involuntary treatment in or out of prison.

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 decency.

All right. Mrs. Wiseman, back to you.

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?

Exactly.

And are 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 institution?

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.

Dr. 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 harmful acts.

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. Freedman?

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 criminal act?

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 their needs.

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?

I think, 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.

In my 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.

Dr. 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 it?

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?

I say rather than.

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 un-treatable?

Yes.

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 equivalents.

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?

I would judge their welfare insofar as I am a diagnostician, and society, through the instruments of the law, would make provisions for maintaining social stability.

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 society.

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 institution.

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 made.

All right. Let's go to Mr. Weinreb for a question.

Dr. Freedman, 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 correct?

Yes.

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?

In my opinion, yes.

All right. Mrs. Wiseman.

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?

That depends 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 needs.

It would be good if that were true everywhere, but it's not true in every state, is it. Dr. Freedman?

It's not true in every state.

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 tonight.

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 well.

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 argument?

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 individuals.

All right. Professor Kadish, Mrs. Wiseman has some questions for you.

May I wipe my brow before you proceed?

Yes, indeed you may.

You can 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 . . .

Yes.

. . . 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 agree that…

Lots of unfortunate things have happened to people, lots of misery in the world is grossly unfortunate, but it is not all punishment.

No, but. 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 her freedom.

Professor Kadish, do you really maintain that what you call mental illness can be identified as clearly as typhoid fever?

No, not as clearly.

And with as much certainty as to both its existence and to the predictable course of the disease?

No, not with as much certainty.

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 individual.

You believe then that we help individuals by putting them in institutions for the criminally insane.

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 brief.

... a check forgery, you go to jail for two or three months.

Yes, I 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 acquitted of.

Thank you.

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?

All right. 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, please.

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 argument, please.

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 defense.

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 02134.

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And now, with thanks to our advocates and their very able and distinguished witnesses, we conclude tonight's debate.

The Advocates as a program takes no position on the issues debated tonight. Our job is to help you understand both sides more clearly.