Roanoke Times
Copyright (c) 1995, Landmark Communications, Inc.
DATE: SUNDAY, February 2, 1992 TAG: 9202020246
SECTION: HORIZON PAGE: F-1 EDITION: METRO
SOURCE: By DAVID BROWN THE WASHINGTON POST
DATELINE: LENGTH: Long
INSANITY DEFENSE ON TRIAL
Our understanding of crime and punishment presumes that behind any transgression there must reside a minimum amount of brainpower and willpower. For centuries, judges, juries and doctors have wrestled with the vexing question: How much?Over the next few weeks, jurors in Wisconsin will consider that question as they ponder the sanity - and criminal responsibility - of confessed serial killer Jeffrey Dahmer.
The insanity defense places in high relief the concepts of will, intent and responsibility that under lie both criminal law and our notion of what it means to be human.
Although psychiatrists and psychologists have traditionally been the courtroom "experts," the judgment as to who is - or is not - insane has always remained strictly in the hands of judge and jury. And over the past 150 years, that judgment has hinged on two concepts: a defendant's inability to tell right from wrong and an inability to control behavior.
The first is a "cognitive" standard, known historically as the M'Naghten Rule. In 1843, Daniel M'Naghten, a Scottish woodcutter suffering from delusions of persecution, killed a man he believed to be British Prime Minister Robert Peel. M'Naghten was found not guilty by reason of insanity, and a public outcry ensued. In response, the House of Lords stipulated that a successful insanity defense must prove that a defendant had "such a defect of reason, from disease of the mind" that the defendant was unable to distinguish right from wrong at the moment of the crime.
The more controversial part of the insanity plea, however, has been the "volitional" standard, which says a person can be found not guilty if mental illness makes it impossible for the individual to control behavior. That idea grew out of the 19th-century belief that some mental illnesses caused a flood of "irresistible urges."
In the wake of John W. Hinckley Jr.'s acquittal by reason of insanity in the attempted assassination of President Ronald Reagan, both the American Psychiatric Association and the American Bar Association dropped their support of a "volitional" standard. Eight states subsequently changed their laws accordingly, and today only about half the states allow inability to control one's behavior to be grounds for an insanity plea.
The chief objection seems to be that the idea offends the common-sense notion that truly "irresistible urges" are short-lived, and thus cannot apply to crimes that require elaborate preparation, such as stalking a target over a period of months.
Many forensic psychiatrists, however, warn against a legal standard based on that reasoning.
"The prosecutor likes to point to all the planning: `Look, the man got the gun, he went to the bank to rob it, and he stopped at a red light on the way.' But of course he planned it. He thought he was Robin Hood and he was going to rob the bank and give the money to the poor," hypothesized Jonas Rappeport, chief medical officer for Baltimore's Circuit Court. "Of course he stopped at the red light. He is crazy. He isn't stupid. He doesn't want to get arrested. You can't take this planning standard as an absolute kind of thing."
But if "normal" behavior does not imply sanity, neither does "abnormal" behavior or psychiatric illness provide prima facie evidence of insanity.
Virtually all experts agree that depression, delusions, obsessions or personality disorders do not necessarily excuse criminal behavior. Even acts that strain belief, such as Dahmer's reported attempts to lobotomize his victims with an electric drill, are not alone sufficient. Something else must be present - or, more precisely, missing.
Michael S. Moore of the University of Pennsylvania Law School believes that element is "moral culpability," which includes the capacity "to intend, to will, to adjust conflicting desires and beliefs into a coherent set of intentions."
Beings lacking such power are considered unsuitable for punishment, although society may choose to protect itself by detaining them in institutions.
Neurobiologists are beginning to understand the brain at a level that may eventually allow expert witnesses to point to physical defects in structures that house such currently abstract notions as "will" and "irresistible urges."
Last year, scientists at the University of Iowa published a study of five men with recent damage to parts of their frontal lobes. Each had recently made a series of poor decisions having serious consequences, and each complained of an emotional emptiness when confronted with events that previously would have been upsetting.
The researchers found that each man had a defective "galvanic skin response," a measure of the body's emotional discharge that causes sweat to accumulate on the skin at times of stress.
The scientists hypothesized that there was some link between the men's deficient emotional responses and their poor decision-making: Perhaps people require bodily clues, literally "gut responses," as guideposts in the formulating of good decisions - and that these men's brain damage had knocked out that communication loop.
But even brain damage can produce ambiguous behaviors. Stuart Yudofsky, a neuropsychiatrist at Baylor College of Medicine, recently treated a patient who suffered a head injury in an airplane crash. After the accident, the man underwent a profound personality change. He punched holes in the walls when his children made too much noise or mess, and he could barely keep from striking his employer, a person he never particularly liked. Eventually, he struck his wife and sought help.
Yudofsky is convinced the man's behavior resulted from damage to his frontal lobes, the part of the brain known to inhibit violent urges emanating from deeper, more primitive structures. And yet his actions also were influenced by the personality and experience acquired long before the accident. He did not explode randomly, he exploded at things that bothered him.
If this man's behavior had resulted in a lawsuit (it did not), Yudofsky says, the legal system might not have been up to appreciating the case.
"How have the great strides in neurobiology changed the notions of insanity? I think not very much at all," he said. "My sense is that the biologic dimension is very underplayed and misunderstood. There are subtleties that, in an adversarial system, do not lend themselves to the clean determination of causality."