Abolish the “Insanity Defense”—Why Not? (with Jay Katz), 72 Yale Law Journal 853 (1963)
The criminal law is one of many mechanisms for the control of human behavior. It defines conduct that is thought to undermine or destroy community values. It seeks to protect the life, liberty, dignity, and property of the community and its members by threatening to deprive those who who contemplate such conduct and by inflicting sanctions upon those who engage in proscribed activity. The sanctions authorized, whether intended to punish, restrain, reform, or deter, constitute a deprivation of life, liberty, dignity and property. Because of the inherent conflict between the values ultimately to be preferred and their deprivation by the sanctions authorized, the criminal law has sought to minimize the consequences of this paradox through rules of law which restrict the state's authority to sanction. One of these rules, a fundamental restriction, is that before the state can inflict sanctions it must overcome the presumption of innocence which favors all of us—by establishing beyond a reasonable doubt each element of the offense charged. By defining crimes in terms of such traditionally material elements as a voluntary act purposely causing a specific result, the laws seeks to exclude from criminal liability those who are not "appropriate" subjects for a given sanction or indeed for any sanction. Thus, if the state fails to produce evidence which establishes each element of the crime or, put another way, if the accused introduces evidence which leaves in doubt any material element, no sanction can be imposed for the crime charged. To illustrate, the state cannot hold a person criminally responsible for murder if there was no causal relationship between the shot fired and the death of the victim; or if the shot was fired without the intent (mens rea) to kill, even though death was caused by the shot; or if the victim did not die even though the shot was fired with intent to kill. Recognizing that the elements of a given offense may not be sufficiently precise to exclude all those who ought to be free of criminal liability, the state, in order to maximize preferred values, has formulated exceptions which are called defenses. Thus, to prevent the state from actually encouraging criminal activity, the defense of police entrapment, for example, will relieve an offender of liability even if each element of the crime is established beyond doubt. The evaluation of any device for sorting out who is and who is not an appropriate subject for criminal sanction requires identifying the values in issue. No device haunts the criminal law and clouds the values it seeks to reenforce more than "insanity" as a basis for relieving persons of criminal responsibility.
Date of Authorship for this Version
Goldstein, Joseph and Katz, Jay, "Abolish the “Insanity Defense”—Why Not?" (1963). Faculty Scholarship Series. Paper 2453.