The Model Penal Code and Trent’s Teabagging: Insanity as a Defense, Part 4.

Welcome back to Lawyers & Liquor where we’re going to keep the crazy train slamming down the tracks today as we lean into part 4 of our examination of the insanity defense in the courts!

If you missed the first three posts discussing the evolution of the insanity defense through the ages, the M’Naghten rule, the Durham rule, and what the hell an irresistible impulse is, you can find those here,  here, and here respectively. You don’t really need to read them to understand today’s discussion of the fourth insanity as a defense standard, the “substantial capacity” test, but I’d really suggest it because – as you’ll see in a few – they all sort of tie together in how we got here.

So with that said, let’s get what is essentially a criminal law review out of the way so in a year some law student can be like “Wow, this was really unhelpful and confusing! Thanks Boozy!”

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.

All that said, let’s introduce our questioning strawman for today’s discussion of the Model Penal Code Standards for an insanity defense.

I think you’re severely overestimating how much people are interested in this.

I don’t care if they find it interesting, sir. I do. Besides, today we’re going to start seeing how the last three posts all tie together as part of the evolution of this standard.

I mean you’re really overestimating the amount of “give a shit” people have here, Boozy.

I promise, after today there’s only one more post before we’re done. Besides, this series will probably help some poor law student next semester in understanding this shit, so it’s a public service.

Alright, let’s get on with it then. You told us about three standards, but what’s this “substantial capacity” test?

In 1951 the American Law Institute began drafting the Model Penal Code to deal with a very real problem – the fact that most of our criminal offenses in the United States are actually derived from old English common law crimes and therefore could be either (a) woefully outdated or (b) differ wildly from jurisdiction to jurisdiction in the elements and proof considering that common law is , for the most part, case law. It was the goal of the ALI, because we’re going to get all fancy and start using neat-o acronyms, to do a sort of high level overview of the basic criminal laws of all of the states and the federal government, and then issue a sort of guidebook for state legislatures to consider in drafting their criminal laws in order to make sure everyone played nice on the criminal law playground. In doing so, the ALI, which, and I want to be really clear on this, is actually a pretty well-respected institution made up of a lot of really well educated and experienced attorneys, judges, law professors, and academics that dedicates itself to the review and synthesis/clarification of the common law, got the chance to revisit the defense of insanity.

See, the project began back in 1951, but as we discussed last week it was in 1954 that the D.C. Circuit and New Hampshire really fucked things up by essentially overruling M’Naghten and sticking Durham in place. As we discussed before, the Durham standard for an insanity defense was, I mean, just incredibly lax and had a lot of wiggle room for people to argue they weren’t criminally liable for an offense. Looking at the now new determination of Durham, which hadn’t been an issue when these guys started looking into the common law of crime because everyone sort of accepted M’Naghten as the correct test, the ALI went “Well shit, now we have to do something else” and with, what I imagine was a world-weary sigh, decided to do something that courts had historically been loathe to do:

The ALI brought in actual mental health professionals and researchers to help draft Section 4.01 of the Model Penal Code, which specifically discussed when someone had or lacked the capacity to be held culpable for the commission of a crime.

Wait, nobody had ever asked mental health professionals for their takes on this before?

I mean, they had, but only in the form of testimony that the judges could then bend around to fit into whatever standard was being applied and not in the form of “This is why this shouldn’t apply.”

Once the standard for M’Naghten was set down based on the understanding of mental illness and how it drives actions back in 1843, the courts just sort of…applied it blindly, with some exceptions like the development of the irresistible impulse test to lighten the load. Then, over 100 years later, the court in Durham said “That standard from back when Queen Victoria was in her early 20’s? Yeah. We don’t think that’s really the appropriate way to be handling this shit now that we’re literally launching shit into space and there’s a way to transmit pictures directly into your fucking living room.” All of those judicially created standards – M’Naghten, Irresistible Impulse, and Durham (see, this is why we spend so much time talking about shit, so you can understand the payoffs later) – were informed by the testimony of healthcare professionals, but the people setting the standards were judges – and judges are generally not well known for their astounding breadth of experience and knowledge in mental healthcare. Judges are known for applying the facts and law to the existing precedent, and only very rarely overruling that precedent to say “Whoa whoa whoa, what the fuck man?”

So between the harsh standard of M’Naghten and the lax standard set by Durham, a middle ground needed to be struck in the opinion of the ALI and the mental health professionals they had hired. Section 4.01 was that informed middle ground, and it read as follows:

(1) A person is not responsible for criminal conduct if at the time of such conduct as a result of mental disease or defect he lacks substantial capacity either to appreciate the criminality of his conduct or to conform his conduct to the requirements of law.

(2) The terms “mental disease or defect” do not include an abnormality manifested only by repeated criminal or otherwise anti-social conduct.

A.L.I. Model Penal Code § 4.01 (P.O.D. 1962 )

That looks a lot like M’Naghten.

It does, right? But the thing is, it’s actually really broad in comparison to the M’Naghten standard for criminal culpability, and it’s all based on what words are being used.

See, the M’Naghten rule was essentially, in “easy law school notes” form, (1) mental defect AND (2) does not know either (a) the quality of the act OR (3) the nature of the act. This was a test based on actual knowledge of the defendant at the time of the commission of the act. However, the MPC Test, which is what we’re calling it now because we’re all about abbreviations, doesn’t demand absolute inability to either understand the nature of the act or to avoid the act itself. Instead, it only demands that, while under the effect of a “mental disease or defect” the defendant not have the substantial capacity to appreciate the criminality of the conduct or conform their conduct to the law.

Neat huh?

…Sounds a lot like “doesn’t know right from wrong.”

And that’s where you’re wrong. See, M’Naghten is a test of absolutes. Under M’Naghten if someone is mentally ill but knows something is wrong and could in any way stop themselves from doing it, they can be held culpable. But the MPC test loosens that rule in recognition that the knowledge of something being bad and the capacity to appreciate how bad it really is are two different things. A kid can know that “hurting someone is bad,” for example, but not really have the capacity to understand “shooting someone for stealing your toy” is fucking murder.

Further, in M’Naghten we’re not looking at criminality – or the legal right v. wrong – but morality. If a person knows an act is wrong – i.e. hurting people is morally wrong – then they should know that any of a range of offenses that stem from hurting people are wrong and therefore will fail M’Naghten. Under the MPC, though, we look at the appreciation not of morality but legality – does the person have the substantial capacity to understand that the act they commited (the specific act they commited) is illegal at the time of commission and not merely morally wrong.

Here, let me try to explain this another way.

Alright, so say Trent is a good guy, but he just finds it hilarious to sneak into peoples rooms and pop his dick in their mouth. He only does this to friends, and only does this when having a psychotic episode under a previously diagnosed mental condition. He believes this to be the height of hilarity, and while people have stopped hanging out with him in the past he doesn’t understand – genuinely doesn’t understand – why everyone is getting upset because, you know, it’s “just a joke, bro.”

One night Trent does this to his buddy Sam, taking a polaroid of the whole thing while Sam sleeps. The next morning he comes to breakfast with Sam and slides the polaroid across the table, saying “Dude, I know I shouldn’t do this but I just found it way too funny. Isn’t it hilarious?” Sam is disgusted by this, and violated as all fuck. He immediately goes to the police.

Trent, once charged, raises the defense of insanity. He has friends and professionals that are willing to testify, to the satisfaction of the court, that he suffers from a mental illness that has psychotic breaks. Under M’Naghten, though, insanity still wouldn’t fly because he made the state “I know I shouldn’t do this.” Trent has shown that he understands the nature and quality of what he is doing is wrong. Likewise, there is no compulsion to do this, so irresistible impulse wouldn’t apply.

Under Durham, he could be held insane and therefore not culpable. Why? Well, there is evidence showing that he only does this when under the influence of a psychotic episode of his illness. Where the evidence indicates that the criminal act is a result of the mental illness – like the act only happening during such episodes – the Durham test would be more likely to view the criminal act as the product of a “diseased mind” and therefore hold Trent to not be culpable by reason of his insanity.

Under the MPC standard, though, or the “substantial capacity test,” we would agree the first prong is satisfied: there was a mental illness that Trent was influenced by. When we get to substantial capacity to appreciate criminality, though, things get a little muddy. Trent obviously thinks that this act is funny and a joke, which tends to indicate he does not appreciate the fact that what he is doing is sexual assault. Likewise, the fact that he shows Sam the picture tends, again, to indicate that he lacks the ability to appreciate the criminal nature of his offense. In this case, then, merely knowing it was “wrong” wouldn’t be enough to overcome an insanity defense on its own, because the question is whether or not Trent has the substantial capacity to grasp that what he is doing is a highly criminal activity. By introducing evidence that he lacks the substantial capacity to appreciate the criminality, and by showing he acts in such a manner under the influence of a mental illness, Trent could set forth – in theory – a viable insanity defense under the Model Penal Code standard.

Alright, so the MPC created a lesser standard of insanity that is applied everywhere today?

…No.

Right after it was introduced in 1961, federal courts and state courts started adopting the Model Penal Code standards, sure. However, over time many states started to revert back to some version of the M’Naghten rule, either with or without the irresistible impulse kicker, shortly thereafter. Today only 18 states out of 50 rely on the Model Penal Code Section 4.01 as the basis of their insanity defense guideline. So it is, under the state law guidelines, very much a minority rule – though not as “minority” as Durham which, you may remember, is literally only the goddamn law in New Hampshire.

As for the federal courts? Well, around 1972 almost every federal court had adopted the Model Penal Code standard for determining insanity as a defense. And it stayed that way until 1982.

When some guy tried to murder the goddamn president to impress an actress, and managed to be found not guilty by reason of insanity under the standard, ushering in yet one more version of the insanity defense – and which circles back to the same reason we had M’Naghten at all.

But that’s for next time as we conclude our examination of Insanity as a Defense. I’ll see you back with that on Monday, and until then I remain…

-Boozy Barrister

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