When people ask me what factors could mitigate responsibility in a criminal case, insanity is always the first that comes to mind. So it is interesting that we are covering it so late in the semester and that the literature about it is relatively sparse. I think this is because as MacNiven said, lawyers are not psychologists, so they do not have expertise with this condition and cannot write very profoundly about it. Likely in court, the burden of proof for insanity falls on doctors, not lawyers, and we must consider each case individually because every madman is different in his own way.
One of MacNiven’s arguments which I had foolishly not considered before is that there are different levels of mental illness, so a defendant should not escape sentencing based on minor conditions like ADD. A person with mild or moderate mental illness can still control his actions enough to avoid breaking the law. We should excuse only severe cases, and these should be sent to the asylum immediately after trial. My suggestion is that an inmate should serve at least as much time in the asylum as he would if he were in prison. This would deter some criminals from pleading insanity in my opinion. Regardless, with neurology constantly improving, we should now be more equipped than ever to correctly judge cases featuring these pleas.
“Temporary insanity” seems like a ridiculous concept to me absent medical evidence. Congressman Daniel Sickles tried to use it in 1859 when he was tried for killing his wife’s lover. Certainly, Sickles killed the man out of rage and shame, but I would still hold him responsible, following Aristotle’s rule that a man should bear responsibility for actions under an avoidable condition (see: drunkenness). How many people go temporarily insane, anyway?
Hart considers the role of punishment in “Punishment and the Elimination of Responsibility.” He is skeptical of the role of punishment, and so am I. This is a difficult topic for me and for the West due to Jesus Christ’s advice for one to judge not lest he be judged, to always forgive his neighbor, and to turn the other cheek when one has been struck. It is much easier for me to accept incarceration as protection against future wrongdoing than as punishment. A total restriction of punishment, however, would even preclude parents from spanking unruly children, not to mention the punishment nuns would mete on children in generations past. If Jesus meant we should never punish, how could so many believers disregard that advice?
Hart’s argument that sentencing is arbitrary seems quite strong to me. Yes, we continue to shape our statutes every year, and yes, there is a general correspondence between the seriousness of the crime and the seriousness of the punishment, but who decided how many years of prison theft merits or how many dollars should go into a parking fine? Most are sensible but rough estimates in my opinion. The policy of giving treble damages to a plaintiff is also really an approximation.
Parole, or the early liberation of certain prisoners for good behavior, seeks to provide rehabilitated criminals an escape route, but it is a controversial practice. In some cases, it creates the impression that crime has no consequences at all as long as the criminal has the self-control to keep his mouth shut once he’s in jail.
I have one final comment: I frequently hear jokes about prison rape, which for some people seems to be the “real” punishment for crimes. Should this casual acceptance of prison insecurity and physical violence disturb us? Should we look the other way on what happens to inmates because they “deserve” it?