“Policeman At The Elbow”: Insanity as a Defense, Part 3.

Welcome back to Lawyers & Liquor where we’re going to keep the crazy train slamming down the tracks today as we lean into part 3 of our examination of the insanity defense in the courts! If you missed the first two posts, where we examined M’Naghten and Durham as standards by which to determine if a defendant has the proper mental state to be guilty of a crime, you can find those here and here respectively. but we’ve got a lot of ground to cover today, so we’re just going to dive in without much of a recap because I don’t see why it’s my responsibility to summarize a bunch of shit for you. Seriously. Go read them. I’m not your momma.

But first, let’s get the form disclaimers out of the way.

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. 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.

We’re still on this? I mean…

Look, the foibles of the human mind, combined with law, are very complex and deep. We must fully discuss the nature of each of these defenses and…

Okay, Okay, Just…Get on with it.

Sure thing.

So last week we discussed the rule established by the bewigged bastards of the English courts in the case of M’Naghten, wherein they set forth what we generally know as the right-wrong rule. Better put, the rule in M’Naghten established that the defense of insanity may stand if, at the time of the offense, the defendant:

  1. Was under some mental defect or illness sufficient to derange the mind, and either
  2. Did not understand what they were doing (the nature of the act) OR
  3. Did not have the capacity to understand what they were doing was illegal (the quality of the act).

This is a pretty good test, but the court in Durham, as we saw last time, thought that it may be a little too strict because someone can completely understand the nature or quality of an act, but still have it be the product of a diseased/ill mind. So in Durham the court came down and espoused a new rule that said a finding of not guilty by reason of insanity may exist if, at the time of the offense:

  1. The defendant was under some mental defect, disease, or condition sufficient to derange the mind, and
  2. Viewing the evidence, it is clear that but for this condition the alleged criminal act would not have occurred, regardless of whether the defendant knew right from wrong.

Durham was intended to be a much easier test to meet because, you know, the mind is a strange thing and, while all people are presumed sane, it was a little harsh to say the person with crippling depression who honestly believed sending his family to heaven was better than letting them live in a cold and uncaring world wasn’t entitled to assert the illness caused his action. But that led to a whole new sort of problems, as folks started to insist that everything was the result of a mental illness. For instance, under Durham an alcoholic could argue their alcoholism was an illness, and but for that illness they never would have taken out the schoolbus of orphans who had just received two kittens apiece an were on their way to being adopted by millionaires. That could be a plausible defense under Durham.

So, while courts dropped M’Naghten on both the federal and several state levels after the decision of that case, by the 1970’s they were looking to find something between “Must think that a poop doll is a real person” and “May have a little trouble restraining themselves from doing a shit ton of coke and taking a chainsaw to a sex worker like in that one movie” as the standards by which we legally judge the capacity to commit a crime.

So what was that middle ground?

We’ll get to that, but first I need to circle back around to give you a “standard that isn’t really a standard” we sort of glossed over before, because it plays into the standard we’re about to talk about called the “Irresistible Impulse” standard.

The Irresistible Impulse Standard of Insanity.

Oh, you mean like when you see an ice cream cake and feel like you have to eat the whole thing in one go while you sob and call yourself a pretty princess?

…Someone’s starting to feel their oats. Let’s remember I can silence you at any point, eh fictional representation of an eager and questioning audience?

In 1887, in Alabama, Michael Bennett was shot. He was shot a number of times, and as a result of being shot was dead. Deader than a doornail. Deader than 30-50 feral hogs that rampage through a preschool playground in the deep South. Dead, dead, dead. And the culprits for the shooting in this case? His wife and his daughter.

Which…I mean, that should sort of give us some idea of where this one is going because holy shit it wasn’t just one of them that killed you, it was both your wife and your daughter that killed you. Let’s be frank here, there was something more going on in that house if both wife and daughter decided daddy needed to die. And it’s pretty likely the courts in this case recognized it, as when they were brought to trial both wife and daughter pleaded insanity as a defense, alleging:

[T]he evidence tend[s] to show that the daughter was an idiot, and the mother and wife a lunatic, subject to insane delusions, and that the killing on her part was the offspring and product of those delusions.

Parsons v. State, 2So. 854, 856 (Ala. 1887)

That’s not very PC of them, Boozy.

First, it was 1887. Second, remember way back in the first post on the subject when I said that each of these words had a very specific legal meaning under English law and, if a person fell under those meanings, they were generally not culpable for their criminal acts. To refresh your memory, and “idiot” under that standard was someone who, today, we would refer to as mentally disabled (I think that’s the right term) to an extreme degree, whereas a “lunatic” was someone with periods of “madness” but periods of lucidity as well. So, in old-timey language, what the court in Alabama was saying was “The daughter did not have the intelligence or understanding necessary to form criminal intent, whereas the mother was acting under some type of mental illness at the time no matter how lucid she is now.” Which, you must remember here, was being stated to try and keep them from being fucking executed for murdering their father/husband, respectively, and you can only guess why mother and daughter may have teamed up to become a daddy dearest decapitation squad in the late 19th century in fucking Alabama.

See? There’s a reason we have to talk about and explain all that shit in detail in those posts you think are so damn boring.

So why is this important?

Well, it mainly became important because, in Parsons the court determined that the defendant, the mother/wife in this instance, was aware of the difference between right and wrong, and therefore was not insane. However, on appeal the Supreme Court of Alabama took a look at the circumstances, specifically the allegations that the mother, Nancy Parsons, believed that “the deceased had supernatural powers” and that her life was in danger from those powers unless she acted. In doing so, the court went “Well now, hold on a second…if we’re going to accept that she was laboring under a mental illness at the time of the crime, shouldn’t we still take that into account even if she knew right from wrong at the time she killed her warlock husband that was threatening her health to determine if a conviction is really appropriate?”

Now, this may sound a lot like what the court in Durham did, but it isn’t. And it isn’t because the court in Parsons didn’t through the M’Naghten baby out with the bathwater, and instead established a test that said “Look, even if they know right from wrong we need to take a look at the offense and the act itself and determine if the person could really control themselves despite knowing right from wrong.” This, my dear friends, is the crux of the “Irresistible Impulse” standard, or as the court stated:

Was the defendant at the time of the . . . crime, as a matter of fact, afflicted with a disease of the mind . . . [and] if such be the case, did he know right from wrong . . . [i]f he did have such knowledge, he may nevertheless not be legally responsible if the following two conditions concur: (1) If, by reason of . . such mental disease, he had . . . lost the power to choose between right and wrong . . as that his free agency was at the time destroyed . . . (2) and if . . . the alleged crime was so connected with such mental disease, in relation of cause and effect, as to have been the product of it solely.

Id. at 866.

What…what does all that mean?

It means that, while M’Naghten applies and generally the standard of right v. wrong is applicable, a person could still be determined to be not guilty by reason of insanity if:

  1. They have a mental disease, and
  2. They lacked the power to take the right action at the time because of that disease, and
  3. The crime is the sole result of the mental disease.

In other words, under Parsons and the irresistible impulse test, a mentally ill individual who had no ability not to act in that manner because the disease essentially overcome their free will despite a knowledge of right and wrong, may not be guilty so long as the crime itself is the sole result of the mental illness. So, for instance, killing Joe for owing you $20.00 isn’t okay if that was a motivating factor for the crime, regardless of whether or not you are mentally ill and cannot stop yourself from killing Joe, because it isn’t a result of the mental illness, but killing Joe because you believe he used your $20 to hire a hitman may be under the same circumstances if that belief was related solely to your mental illness.

Or, as another court would later put it, it is the standard that says you are legally insane and therefore not culpable if, despite a knowledge of right and wrong, you would, as a result of your mental illness, still engage in the same action if there was a policeman standing by your elbow. It isn’t “I felt I had to kill them” but rather “I had to fucking kill them.” Something that is so strong it overcomes the ability of a person to say no, despite their awareness of the nature and quality.

Essentially, it’s the duress of insanity defenses: Your illness strongarmed you into acting, and, like the Godfather, you couldn’t refuse the offer.

It’s a stricter standard than the Durham “result of a mental illness” but a lesser standard than the M’Naghten “must be completely bereft of the ability to understand exactly what you are doing in the moment” standard, and was used not really as a separate test of insanity but rather a modifier to the M’Naghten standard. And it’s a standard we still apply today, believe it or not!


Yep! In fact, the Tallywhacker Whacker herself, Lorena Bobbitt, used the Irresistible Impulse defense in her trial from cutting off her husband John’s johnson in 1994.

In that case, Lorena’s attorneys alleged that she suffered from PTSD (among other disorders) as a result of longtime abuse from her husband, and that this qualified as the mental illness. While she did not state she couldn’t recognize the criminal nature of her actions, she alleged that, as a result of her PTSD and fear stemming from the abuse, she saw no other way to escape him and stop the abuse. As a result, she pled that absent the mental illness she would have not done the thing and simply taken one of the other legal courses open to her, but because of the abuse she viewed this as the only way to escape the marriage and threat.

And…I mean…it worked. A jury acquitted Lorena on the grounds that she had an irresistible impulse to chop off some dicks resulting from mental illness. So it’s very much a usable, and applicable, standard for very specific situations of mental illness and crimes that may result therefrom. A step below complete, cold sanity in actions while being a step above the complete disassociation from reality often required of the M’Naghten standard.

Which is why, in some jurisdictions, Irresistible Impulse stands as a sort of back-up to the M’Naghten standard of insanity.

So…where are we now?

Well, so far we’ve covered M’Naghten, it’s modifier the Irresistible Impulse standard, and the only-applicable-in-one-place Durham standard of insanity. So that really only leaves us with one place to go, but two sites to visit there: the Model Penal Code standard and its sibling-by-marriage, the Federal Court Standard of the insanity defense.

Both of which we’ll cover Wednesday here on Lawyers & Liquor as we finish up our review of Insanity as a Defense.

Until then, I’m your host…

-Boozy Barrister

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