M’Nope-in: Insanity as a Defense, Part 1.

Hey, welcome back to Lawyers & Liquor as we start the week off with a banging of a gavel and the popping of a cold, delicious morning beer (what, that’s not a thing?) with an examination of law, law practice, and the various other sundries of legal minutia and misfeasance that has a bad habit of creeping into the day.

I’m the Boozy Barrister, and today we’re going to talk about a light subject, just a little bit of levity before you charge headlong into the hellish week that is the beginning of August. That’s right, today we’re going to talk about – and break down in terms that laymen, baby lawyers, the legal fetal collection of cells that is a law student, and even the old hands that may never have cracked a criminal guide since the bar – the many vagaries surrounding the defense of “insanity” in the American justice system…and how it differs from other mentally-based determinations you may run into in a criminal court matter.

But first, a word from our “Please Don’t Do This” Department.

If you think this is legal advice, you may qualify to assert one of these defenses.

Look folks, I’m certainly a lawyer. However, in no way, shape, or form am I your lawyer, and for reasons that will become clear today unless I was licensed in all 50 states I am in no way a final word or source on any of this information. If you’ve found yourself in legal trouble, find an actual criminal lawyer fort worth – criminal defense attorney fort worth — don’t rely on whatever I say because I can in no way help with my posts. What pops up here on Lawyers & Liquor is a discussion of general legal principles for the purposes of education, entertainment, and occasionally explicit evisceration of how the law is applied in specific instances. This isn’t legal advice, and there is no attorney-client privilege that’s going to attach to everything or anything you send me or comment. Further, if you’re in a position where anything I profanely proliferate on herein may apply to you, you should most definitely seek out an attorney licensed to practice in your jurisdiction and heed their wise advice and counsel over that of a sentient and angry whiskey glass on the internet.

With all that said and understood, I’m gonna drag out our Completely Sane Strawman for today’s discussion, whose sole purpose is to give me a nice foil to play off of as we dive deep into the world of mental issues, illness, and instability for today’s discussion.

First off, you shouldn’t use the words “defect,” “insanity,” or “illness” when talking about mental conditions, Boozy.

Coming right out of the gate with it today, huh?

Look, while the terms we’re going to be using today may be considered ableist, we’re going to have to face the reality that legal writing and jurisprudence is about 50 years behind the times when it comes to using correct and acceptable terminology. In a lot of circumstances I can avoid using specific terms or alter them a bit, but the fact of the matter is when we’re talking about phrases like “mental defect,” “insanity,” “incompetent,” or “mental illness,” these terms may have very specific legal meanings as developed over the years, and those meanings may be slightly different depending on where we are, what rule is being used, or what court issued the opinion. For that reason, we have to use the terms as they are set forth in the law and case law itself when discussing these things, otherwise stuff can get confusing.

Trust me, it isn’t a personal choice, it’s a legal one, because the law is old and, much like Grandpa, unwilling to stop using that one word that’s horribly not okay to say anymore because of it.

I’m still not happy about it.

I’m not happy about a lot of things, but I don’t get to just change terms that have a fixed meaning when we’re talking about shit, so let’s just keep the ball rolling and try to be respectful when we’re talking about folks who suffer from the various maladies of the mind.

Alright, though frankly I think the whole “Insanity Defense” thing is some touchy-feely bullshit.

Then it’s been touchy-feely bullshit since about the 12th century.

As noted by a number of folks who have spent a good amount of time looking into the history of mentally-based defenses, there has been some form of a “they weren’t well” defense in place for at least that long. In Joseph Amarillo’s “Guilty but Mentally Ill – Diminished Capacity: An Aggregate Approach to Madness” (man, legal scholars sure now how to get those eye-catching titles out there, right), it’s noted that the defense of some form of mental incapacity is actually much older than our court system. Joseph D. Amarilio, Insanity – Guilty but Mentally Ill – Diminished Capacity: An Aggregate Approach to Madness, 12 J. MARSHALL J. PRAC. & PROC. 351, 382 (1979). But, you know, back then there was basically this whole thing about “you know what? We don’t care if you weren’t aware of what you were doing. You’re still guilty and we’re still finding you guilty.” So insanity was really less of a defense and more of a mitigating circumstance in those situations – not a reason someone shouldn’t be punished, but a reason they shouldn’t be punished as harshly as someone else who wasn’t under a mental defect. And, in the fullness of time, proving a person was mentally not all there was a reason for people to seek either a pardon for the offense or a commutation of whatever sentence was bestowed.

But let’s be clear that, for the longest time at law it did not matter if you believed a little green man on your shoulder was telling you to masturbate on the playground because it would save the world from destruction by the Zizumi aliens. You were still guilty, just grounds for later mercy existed. Or, as legal historian William Holdsworth put it:

“[A] man who has killed another by misadventure, though he may deserve a pardon; is guilty of a crime, and the same rule applies … to a lunatic …”


So sane or not didn’t matter in determinations of guilty, just in the degree of punishment? Aren’t those sort of the same thing?

Yes and no.

I mean, yeah, if someone is found guilty and then almost immediately pardoned or set free, that could be the same as not being found guilty in practice. But the law basically says “hey, if you’re guilty then you’re responsible for this thing,” and the concept of people who may have believed the Great Gazoo was telling them to traumatize children for the benefit of all mankind would be held responsible simply rubbed people the wrong way when it came to the concept of justice. Likewise, while insanity was a mitigating circumstance in these matters and made harsh sentences less likely and pardons more likely, it by no means guaranteed such a light sentence or pardon. Instead it merely gave the folks making that determination the option of doing it – or as we lawyers say, something to hang their hat on if they so choose.

So right off the bat, you can see the issue: people who were genuinely acting under some mental condition or defect such that they may not know what the hell they were doing or even understand their actions at all could spend life in prison if, for instance, they came from an unpopular family or you had a particularly cruel judge. Plus, let’s not forget that “prisons” as we know them today are a relatively modern invention. For a not-insignificant-period, overlapping this time period, prisons were used to hold people awaiting trial. Punishment was often hard labor, corporal in nature, or, sometimes, even death for offenses that today we’d just stick you inside for ten years for. And where the term was imprisonment, jails and prisons of that era were crowded and tortuous places, where people may only be fed if a relative or friend actually brought them food. So…think of that, then think of some guy who doesn’t know what planet they’re on much less the nature of their crime being locked up in one of those places.

Not so fun, huh?

I…I really hope that changed.

Yes, much to the chagrin of Texas, that changed.

It changed majorly over time, as courts sort of struggled with the concept of mental illness as a way to prove incapability to form the requisite understanding of wrongness. In 1603, at least, courts were beginning to embrace the concept that certain types of people couldn’t be guilty because they lacked the mental capacity to form the requisite type of mental state, the mens rea, to appreciate and engage in criminal conduct to the level of liability. As noted by William Hawkins in his 1716 “A Treatise of the Pleas of the Crown,” English law by that point had stated that “[i]deots, lunatics during their lunacy, and madmen” were all incapable of forming the requisite criminal state of mind, and therefore could not be considered guilty for their actions.

A neat fact of this is English law at that time specifically differentiated between “idiots,” “lunatics” and “madmen” (and boy, if you think referring to someone as ‘insane’ is bad you should really read some very old English law because those motherfuckers did not care if they were cruel to folks). “Idiots,” for example, were that way from birth, couldn’t figure out 20 pence, didn’t know who their parents were, couldn’t figure out what was good or bad for them, etc – with one caveat that if they knew how to read and write they weren’t “idiots” and could be criminally liable. Which is…uh…I mean…a pretty low standard for criminal liability when you look at relative intelligence. “Lunatics,” however, were not such from birth but had periods where they were completely lucid, and those in which they were just…stark raving “mad,” and only in those periods were they exempt from prosecution. “Madness,” in that period, was considered to be a permanent and persistent insanity, from which there was no relief, and therefore the person couldn’t be sane. [Fun fact: you can read all of Hawkins’s Treatise for free here]

So, I mean, by 1716 the court system was really trying to wrap its arms around the concept of a mental state that would obviate criminal culpability, mainly based on the idea that people who couldn’t control or understand their criminal actions shouldn’t be held liable for them.

That doesn’t sound unreasonable.

Oh yeah. It totally isn’t. Which means we immediately started to fuck that shit up so we could toss some mentally ill folks into prison.

Is this that “Do they know right from wrong” thing you hear about?”

Most certainly is.

What you’re referring to is the idea that the test of mental competence, or compos mentis, for criminal liability is whether or not the defendant has the basic ability to differentiate whether an action is right or wrong. For a lot of folks, that’s what they think the question is: “Do they know right from wrong?” But really that’s only half the story, because the actual rule in this matter is something called the M’Naghten Rule, derived from the the 1843 English case, M’Naghten’s Case. Geez, citations were so goddamn easy back then. Anyhow, N’Naghten’s Case ended up with the House of Lords issuing a determination that combined several longstanding principles of English common law – which if you’re new here you gotta understand that America sort of cheated off of England’s exam sheet when we wrote a lot of our law – in regards to mental illness, defect, and insanity to determine when a person was criminally culpable to stand trial.

For a normal person they’d talk about the rule established by the case now. That means you’re about to history geek all over it, doesn’t it?

You bet your unstable ass it does, voice that screams into my head!

A Review of M’Naghten’s Case

Alright, so the background of M’Naghten is pretty standard fare. I mean, it can’t get more simple than this set of facts:

“The prisoner had been indicted for that he, on the 20th day of January 1843, at the parish of Saint Martin in the Fields, in the county of Middlesex, and within the jurisdiction of the Central Criminal Court, in and upon one Edward Drummond, feloniously, wilfully, and of his malice aforethought, did make an assault; and that the said Daniel M’Naghten, a certain pistol of the value of 20s., loaded and [201] charged with gunpowder and a leaden bullet (which pistol he in his right hand had and held), to, against and upon the said Edward Drummond, feloniously, wilfully, and of his malice aforethought, did shoot and discharge; and that the said Daniel M’Naghten, with the leaden bullet aforesaid, out of the pistol aforesaid, by force of the gunpowder, etc., the said Edward Drummond, in and upon the back of him the said Edward Drummond, feloniously, etc. did strike, penetrate and wound, giving to the said Edward Drummond, in and upon the back of the said Edward Drummond, one mortal wound, etc., of which mortal wound the said E. Drummond languished until the 25th of April and then died; and that by the means aforesaid, he the prisoner did kill and murder the said Edward Drummond. The prisoner pleaded Not guilty”

M’Naghten’s case [1843] UKHL J16 (19 June 1843)

…The fuck did I just read? Seriously? What is that?

Yeah, flowery language of old courts is pretty much indecipherable. Like, you expect an orphan to pop up asking you for more so you can bellow “More? You want more?” and sentence him to transportation to Australia, right?

The gist if we translate from ENGLISH to english is as follows:

Some guy named Drummond went out one night just to raise a little hell, right? Grab some dinner, go to Ye Olde Strip Clubbe, you know, whatever folks did in those days. What he didn’t know, though, was that some guy named Danny M’Naghten was walking around with a loaded gun, when Drummond passed him by M’Naghten got it in his head that someone needed to take Drummond down. So, with no warning and no reason, M’Naghten just flat out shot Drummond in the back and hurt him so bad that, after like four goddamn months of suffering, Drummond finally died of it. Afterwards, they arrest M’Naghten for murder but, during the trial, some folks got on the witness stand and said “Hey, whoa, hold up….Danny is…I mean…Danny really isn’t right in the head a lot of the time. Nice guy, but every now and then the lights go out and reason takes a trip out to the seaside for the day, if you catch my drift.” They probably tossed a few “Guvnahs” in there too. Because, you know, British.

What does this have to do with insanity?

Well, see, the court in M’Naghten sort of said “this guy is batshit, so we’re not going to hold him liable for shooting that guy in the back.” In doing so, the court there established one important legal principle that we still follow to this day:

Everyone is presumed to be sane.

Now you, me, and anyone who’s visited a Walmart at 1 in the morning knows that this presumption is tenuous at best, but it’s important to realize that the court wasn’t talking about actual sanity when it made this pronouncement, but rather legal sanity, which is the much lower bar for a person to be held legally culpable for their criminal actions. So, the moment a person walks into the courtroom, the law presumes that they’re capable of standing trial and had the full degree of their legally required wits about them at the time they allegedly committed the act that brought them under the all seeing eye of the great legal Sauron.

And how is this determined, you may ask?

Oh, is that my cue?


How is this determined?

First, note that the defendant bears the burden of asserting that they were not sane at the time of the commission of the crime. This makes it sort of an affirmative defense, because the presumption is already in place, and therefore the defense bears the burden of overcoming the presumption of sanity in the court. As to what they have to prove to overcome this presumption, M’Naghten helpfully elucidates the standard by stating that, in order to be held non compos mentis, a party must show that, at the time the crime was committed:

  1. Did not understand the nature of what they were doing; or
  2. Did not understand the concept of right from wrong in what he was doing.

Wait, what’s the difference between those two?

I’m glad you asked, voice in my head.

Understanding the nature of the criminal act is a fancy way of saying “They knew what they were actually doing.” The classic example is, say, a person who engages in a stabfest at the neighborhood picnic. Once arrested, they are able to show that while they knew stabbing people was wrong, they didn’t believe they were stabbing people. They believed they were stabbing demons from the fifth dimension who were sent to harvest souls. As such, they did not understand that what they were doing was actually stabbing people and therefore didn’t grasp the nature of the criminal act they were committing.

The right from wrong test is more well-known, and essentially is that, at the time a person was doing a criminal act they were unable to determine that the act was wrong. Say a person kills their family and then, afterwards, sits down to a nice dinner after calling the police. The testimony shows that this person genuinely did not understand that killing people was wrong. They just sort of…thought it was an okay thing to do, and didn’t get that it was a violation of the law or societal norms. Note, though, this isn’t “I feel it’s okay to stab people” but rather “I genuinely did not think I could be arrested for this because I did not understand it was wrong at all.” For this reason, it is always a good idea to look for qualified criminal defense lawyers who can help you understand the degree of the crime and its consequences.

However, both of those reasons seem kind of…ripe for abuse. What’s to stop someone from claiming them after the fact?

That would be the third, and often unspoken, criteria of what we now call the M’Naghten Test: A requirement that the person claiming the defense be able to prove evidence of some “illness or defect of the mind or reason” prior to being able to really assert it. In other words, Johnny Stabs-a-Lot can’t go on a spree then walk into court and say “Whoopsie Doosy, I didn’t understand that mass murder was illegal! Guess I’ll just toddle off home now, and you better believe me I won’t do that again!” Instead, Johnny has to be able to show, or rather his attorneys must be able to show, that Johnny has some defect of the mind or reason such that the defense is viable. You do this by having psychologists and therapists testify, introducing mental health records, etc.

Absent some such defect, the M’Naghten Test won’t apply at all. It’s a gateway criteria for the application of the test.

So that’s the test? Mental defect/illness combined with a failure to understand the nature of the crime or understand that the act undertaken was wrong?

Yes. In some places. But not in all of the places.

…This is one of those things where there are multiple rules, isn’t it?

You bet your sweet ass it is, my fictional friend.

See, the M’Naghten Test comes with its own set of benefits and burdens, with some people thinking that it’s too narrow in what it considers to be a mental illness…for instance, what if someone knows something is wrong and understands what they are doing, but by reason of a mental illness cannot stop themselves from doing it? Or what about the people who knew they were killing a person and knew it was against the law, but were driven by their mental illness in such a way that, while it was not incapable of being overcome it factored heavily into it? There’s a lot that M’Naghten doesn’t catch which, arguably, could determine an act to be the product of a “diseased mind” to steal the words of a court.

And in that situation, what is fair and what isn’t fair? And how do we reconcile the need to do justice with the need for recognizing a mentally ill person should not be punished for things that are outside of their control?

…Sounds a lot to me like you’re leading up to a “Next Time.”

You’re absolutely right I am, because now that we’ve laid out the background of insanity defenses and the leading rule for them as established under M’Naghten, it’s time to talk about the other theories of mental competency that play into a criminal defense and trial…namely the Durham Test, the Irresistible Impulse defense, the Model Penal Code (ALI) test, and the Federal Insanity Defense…as well as the difference between insanity as a defense and competency of a person to stand trial!

So come on back on Wednesday as we keep exploring the wacky world of mental health and the law here on Lawyers & Liquor with M’Nope-in Part 2! Until then, I’ll hang around and keep being…

-Boozy Barrister

If you like Lawyers & Liquor and want to support me, you can toss financial support at the site and its creator on Patreon, through Ko-Fi, or even directly through Paypal! Any help is appreciated, and it keeps me from having to…you know…sell ad space on the site and shit. Want some merch? Check out our Artwork Tee store, or go buy some awesome shirts and mugs over at our Streamlabs Store.