NCJ Number
118918
Date Published
1988
Length
29 pages
Annotation
Conceptual issues in punishment for the criminally insane focus on acts for which punishment should be administered, criminal intent and capacity, and punishment goals such as deterrence, retribution, and rehabilitation.
Abstract
Popular but erroneous assumptions about punishment and the insane include: (1) that the insane, through the insanity defense, escape punishment; (2) that a successful insanity defense is easily engineered; (3) that the insanity defense, unlike other defenses, places an unfair burden on the prosecution; (4) that the insanity defense is the only defense to consider the mental state of an individual; and (5) that the insanity defense represents a singular exception to the general rules of law. Punishable acts involve the occurrence of harm, morality and criminality, mens rea (intent), and whatever may be legally defined as a crime requiring punishment. The argument that something is needed beyond mens rea and a criminal act has been proposed by Fingarette and encompasses the concept of capacity. For the defendant in an insanity case, the capacity argument cuts deeper than the absence of mens rea. Rather than claiming that the defendant is a responsible person under law who acted without guilty intent, the capacity argument is in effect a claim that the person was not a responsible agent. Of all rationales and theories offered to justify punishment, the two most widely cited positions are deterrence and retribution. Conceptually, rehabilitation is distinct from deterrence and retribution; the latter two are reasons for punishment, while rehabilitation involves treatment. From numerous proposals and recommendations for change to the insanity defense, the author discusses two for further consideration, the abolitionist position and the position that will eliminate "responsibility" from the determination of guilt.