The Insanity of the Defense

I. The Insanity Defense

“It is an ill thing to knock against a deaf-mute, an imbecile, or a minor. He that wounds them is culpable, but if they wound him they are not culpable.” (Mishna, Babylonian Talmud)

If mental illness is culture-dependent and mostly serves as an organizing social principle – what should we make of the insanity defense (NGRI- Not Guilty by Reason of Insanity)?

A person is held not responsible for his criminal actions if s/he cannot tell right from wrong (“lacks substantial capacity either to appreciate the criminality (wrongfulness) of his conduct” – diminished capacity), did not intend to act the way he did (absent “mens rea”) and/or could not control his behavior (“irresistible impulse”). These handicaps are often associated with “mental disease or defect” or “mental retardation”.

Mental health professionals prefer to talk about an impairment of a “person’s perception or understanding of reality”. They hold a “guilty but mentally ill” verdict to be contradiction in terms. All “mentally-ill” people...