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The Brawner Rule—Why? or No More Nonsense on Non Sense in the Criminal Law, Please!, 1973 Washington University Law Quarterly 126 (1973)

Abstract

It ought not to be a matter of great scholarly interest to learn that yet another court has adopted as its formulation for the insanity defense the oft-embraced, oft-analyzed and oft-criticized text of the ALI Model Penal Code. It is not. It ought not to be a matter of more than momentary interest that in so doing that court "abandoned" its very own eighteen-year-old, oft-rejected, oft-analyzed and oft-criticized rule of Durham v. United States. It is not. It ought not to be worthy of more than slight interest that by retaining the definition of mental disease and defect which it adopted more than a decade ago in its reconstruction of Durham in McDonald v. United States, and by retaining the position it took later in Washington v. United States concerning the respective roles of the medical expert and the jury in determining criminal responsibility under Durham, the court in United States v. Brawner does no more than change the label and the apparent vintage year of its old and presumably discredited rule. It is not.

The question becomes, why devote any time to the study of a decision in which a court, not unlike the Esso tiger announcing its change of name with the assurance of no change in stripes, announces, albeit with far more words, a change in name only for its insanity defense formulation. The answer is to be found in another question which is worth asking and worth trying to answer: "Why does the court, except for Chief Judge Bazelon, who writes a separate but concurring "dissent," fail to recognize how great is its contribution to the confusion and misunderstanding which hallmark the debate about the insanity defense?" The answer is that the court neither asks nor answers: "Why an insanity defense? What are its purposes?"

Date of Authorship for this Version

1973

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