Campbell, Joe Bill

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Kentucky Law JournalVolume 55 | Issue 3 Article 71967Criminal Law--Insanity--Test for CriminalResponsibilityJoe Bill CampbellUniversity of KentuckyFollow this and additional works at: https://uknowledge.uky.edu/kljPart of the Criminal Law CommonsRight click to open a feedback form in a new tab to let us know how this document benefitsyou.This Comment is brought to you for free and open access by the Law Journals at UKnowledge. It has been accepted for inclusion in Kentucky LawJournal by an authorized editor of UKnowledge. For more information, please contact UKnowledge@lsv.uky.edu.Recommended CitationCampbell, Joe Bill (1967) "Criminal Law--Insanity--Test for Criminal Responsibility," Kentucky Law Journal: Vol. 55 : Iss. 3 , Article 7.Available at: https://uknowledge.uky.edu/klj/vol55/iss3/7Recent CasesC~mimAL LAW--INsANrrY--TEsT FOB CBIvnNAL BEuSPONSIBILITY.-Charles Freeman, a confirmed alcoholic and narcotics addict, was con-victed on two counts of selling narcotics in violation of a federalstatute.' Through an informant, two federal narcotics agents arrangedto purchase heroin from Freeman. Unaware of the agents' identities,the defendant on two separate occasions received money in exchangefor a substance which chemical analysis indicated to be heroin. Indenying responsibility for the substantive offense, Freeman allegedthat at the time of the transaction he possessed insufficient capacityand will to be held responsible for the criminality of his acts. Pursuantto these allegations and in light of precedent, the district court in-structed the jury to employ the M'Naghten rule2 as the appropriatetest of insanity. The conviction resulted in Freeman's being sentencedto concurrent terms of five years on each count. Held: Reversed. Thenew test for determining criminal responsibility shall be whether atthe time of committing the act the defendant, as a result of mentaldisease or defect, lacked substantial capacity either to appreciate thewrongfulness of his act or to conform his conduct to requirements oflaw.3 United States v. Freeman, 357 F.2d 606 (2d Cir. 1966).Absent the issue of criminal responsibility, the facts of the Free-man case were but routine. The importance of this decision rests onthe fundamental notion of criminal justice: the criminal law shouldtruly reflect the moral sense of the community.4Since the United States Supreme Court has refused 5 to establish a'21 U.S.C. §§ 178-74 (1909).2 M'Naghten's rule states that:a defense of insanity can be established only when the party accusedwas laboring under such a defect of reason, from disease of the mind, asnot to know the nature and quality of the act he committed, or if he didknow it, he did not know he was doing wrong.M'Naghten's Case, 10 Clark and Fin. 200 (1843).3 Section 4.10 of the Model Penal Code [hereinafter cited as "ALI rule!] asformulated by the American Law Institute reads as follows:a person is not responsible for criminal conduct if at the time of suchconduct as a result of mental disease or defect he lacks substantialcapacity either to appreciate the wrongfulness of his conduct or to con-form his conduct to requirements of law.4 357 F.2d at 607-08.5 Although there are arguments that the Supreme Court has indicated itsapproval of M'Naghten in Davis v. United States, 160 U.S. 469 (1895), and inDavis v. United States, 165 U.S. 373 (1897), the court in Freeman attempted todistinguish the reasoning of these two cases.KENTucKY LAw JouRNALuniform standard of criminal responsibility in federal proceedings,6the courts of appeal in the various circuits have wide discretion inascertaining the principle which they believe best satisfies the dictatesof justice in criminal insanity trials. Taking note of this issue, theSecond Circuit in Freeman, in an effort to support its transition, citedrecent cases in two other federal circuits where the courts abandonedthe M'Naghten rule in favor of a position similar to that adopted by theSecond Circuit.7 While it is true that M'Naghten remains the test inthe majority of state and federal jurisdictions, 8 the court in this caseacknowledged the need for a change. The constant distinctions andrefinements continually being made in the field of criminal law requirethat questions previously answered be re-asked, and new answersmust be brought forth if the concept of ordered liberty so pertinent toour system of justice is to be maintained.9The majority opinion made an articulate analysis in disposing ofM'Naghten and implementing the new rule. Operating on the as-sumption that the three purposes of the criminal law-rehabilitation,deterrence, and retribution-are best served when the truly irrespon-sible are given psychiatric treatment rather than imprisonment, thecourt expressed doubt as to its ability to attain justice underM'Naghten.10Ultimately, the court's arguments against M'Naghten are derivedfrom one basic premise-its focus upon only the cognitive aspect ofthe personality." Such a limitation has had two detrimental results.First, it does not allow a jury to identify those who can distinguishbetween right and wrong but cannot control behavior. Consequently,there is no recognition of any degrees of incapacitation. Either the6357 F.2d at 613. See also, Moore, Jr., M'Naghten Is Dead-Or Is It?, 3HousToN L. BEv. 58 (1965), which suggests that the Supreme Courts inaction isnot mere coincidence, but is motivated by a desire to encourage the circuits todiscuss and develop alternative tests before making a definitive ruling.7The Third Circuit, in United States v. Currens, 290 F.2d 751 (3d Cir.1961), adopted all of the ALI rule except the part which reads "appreciate thewrongfulness of his conduct .. . The Tenth Circuit, in Wion v. United States,325 F.2d 420 (10th Cir. 1963), adopted the ALI rule, but would add that thejury be instructed that to return a guilty verd;ct they must be convinced that thedefendant at the time of the act was mentally capable of knowing what he wasdoing, was mentally capable of knowing that it was wrong, and was mentallycapable of contoig his conduct.821 AM. Ju. Criminal Law § 33 (1965).9 357 F.2d at 607.10 Id. at 615. See also, Allen, The Rule of the American Law Institute sModel Penal Code, 45 MARQ. L. REv. 494, 496 (1962), which states thatthe function of the test of criminal responsibility is to identify thosewho, on a calm and sober view, must be regarded as ineligible for theprocesses of criminal justice with their inherent, stigmatic and punitiveingredients and who, therefore, must be conceived solely as the recipientsof care, custody and therapy.11357 F.2d at 618. See BiGGs. THE GuImTY Mn 145 (1955).[Vol. 55,RECENT CASESdefendant knew right from wrong or he did not. Thus, many convicted,mentally-ill offenders are imprisoned where psychiatric care was un-available. The result has been the release of recidivists from prisonwith society at their mercy.12 Secondly, M'Naghten implicitly shackledthe significance of expert testimony. Bather than explain the functionsof the mind, the psychiatrist had to confine his expression to an opinionon defendant's capacity for determining right from wrong. The socialclimate of Victorian England, the age in which M'Naughten's rule wasformulated, is a great contrast to the complex society of today. Greatstrides made in psychiatry and psychiatric treatment are too importantto restrict the psychiatrist to a mere opinion on one's ability to de-termine right from wrong. Parenthetically, the ultimate deciders ofresponsibility-juries-should not be deprived of information vital tofinal verdict.' 3 Indeed, the court in Freeman accuses M'Naghten ofbeing a sham.14 Supporting this was the suggestion that the principlebehind M'Naghten, namely, that defect of cognition as a consequenceof mental disease is the primary factor in determining legal insanity,had probably never been other than a legal fiction.15In lieu of M'Naghten, the court sought to adopt a more workablerule. After a brief discussion rejecting two other tests, the "irresis-tible impulse"' 0 and the Durham rule,17 the court said that the Ameri-can Law Institute rule, while not perfect, was more adaptable in ap-plying the principles of a fluid and evolving science' 8 to a complexarea of criminal law. One may better appreciate such a conclusionafter a review of the historical development of this test.In 1953 the American Law Institute [hereinafter referred to asALI] began an exhaustive study of the problem of criminal responsibi-lity. Under the direction of noted scholars, 19 leading legal and medicalminds, the Institute undertook to draft an acceptable rule. Debates,12 357 F.2d at 618.13 Id. at 620.14 Id. at 619.15 Diamond, From M'Naghten. to Currens and Beyond, 50 CAxar. L. REv.189 (1962). Cf. United States v. Baldi, 192 F.2d 540, 568 (3d Cir. 1951)(dissenting opinion).10 The court in Freeman disposed of the "irresistible impulse" test on thebasis that psychiatrists question the existence of such an impulse. Also, thecourt stated that the term was too narrow and carried the misleading implicationthat a crime committed impulsively must have been perpetrated in a sudden andexplosive fit. 357 F.2d at 620.17While recognizing that the Durham rule may have been vast improvementover M'Naghten, the court did not accept it because it failed to give the fact-finder any standard by which to measure the competency of the accused. 357 F.2dat 621-22.Is 357 F.2d at 623.19 Such scholars included Herbert Wechsler of Columbia University as ChiefReporter and Louis B. Schwartz of the University of Pennsylvania as Co-Reporter.1967]706 KFNTucix LAw JoumRAL [Vol. 55,arguments, drafts, and re-drafts on the subject of criminal responsibil-ity preceded the adoption of the final rule. The final draft was notaccepted until nine years after the research and exploration hadbegun20 This rule represents the first major attempt to draft an in-sanity rule through the combined efforts of professionals closelyassociated with the subject. Freeman represents the first major federaljurisdiction to adopt the test in toto.The court's reasoning in adopting the ALI rule clearly reflects therationale behind the M'Naghten rejection. Rather than focus on oneparticular aspect of personality, the Model Penal Code formulationrecognizes that mental disease may impair the functioning of the mindin numerous ways.Concomitantly, the rule espoused insights from psychiatry thatabsolutes are ephemeral and variations inevitable.2' Furthermore, thecourt emphasized that meaningful psychiatric testimony is possibleunder the new test. Thus, an "inquiry based on meaningful psycho-logical concepts can be pursued,"22 which should result in the use ofterms precise enough to provide the jury with workable standardswhen instructed by the judge.23 The separate branches of the test,phrased alternatively, will protect from criminal sanctions those per-sons mentally irresponsible for their actions. Finally, the court, makingno pretensions that the ALI rule is faultless, indicated that the geniusof the common law system has been its responsiveness to changingtime. The law must serve the needs of the present while drawing fromthe past. Psychiatry has become an important branch of modemmedicine; the development of a legal principle should reflect suchevolution.2 4Insanity tests for judging criminal responsibility currently provokeas much controversy as any other problem in criminal law.2 5 Whetheror not Freeman will initiate a trend towards total adoption of the ALIrule remains to be seen. That there is a great need for a change in thearea of criminal responsibility has been repeatedly manifested.26 Per-20 357 F.2d at 622.= ibid.22 Id. at 623.23 Note the following caveat: "I believe that mental disease is a complex andintricate matter and we cannot make it simple and understandable to everyonejust by inventing simple words or phrases to describe it." 112 CONG. REc. 2855(1966) (Remarks of Senator Thomas J. Dodd).24 357 F.2d at 624-625.!25 Commonwealth v. Chester, 337 Mass. 702, 150 N.E.2d 914 (1958): "In-deed, it is probably no exaggeration to say that this sube ct is receiving more at-tention today than any other subject in the criminal law."2 6 Gum-cmm & WrmoFErN. PsYcHIATnY AND THA LAW 415 (1952). Seealso, United States v. Malafronte, 357 F.2d 629 (2d Cir. 1966); People v. Krug-(Continued on next page)RECENT CASEShaps the time is ripe for the Supreme Court to grant certiorari to aninsanity case. By adopting a standard, the Court could put an end tothe divergence of opinion existing among the federal courts as to whichbest satisfies justice. Many state courts would also be persuaded by aSupreme Court decision. Until the Court adopts a position on thisissue, the confusion and complexity will continue to intensify.Joe Bill CampbellCRM NAL LAw-LAwYEBs-FES-ATroRNEY's FEES FOR INDiGENT CRIM-NAL DEFENDANTs.-The circuit court appointed counsel to represent adefendant in a Kentucky Rules of Criminal Procedure 11.42 motionproceeding. The motion was denied. Counsel moved the court forallowance of a fee, to be paid by the county or other public source,for his services in the proceeding. The motion of counsel was denied.Both motions were appealed together. Held: Affirmed. While there ismerit in the proposition that assigned counsel should be compensated,in the absence of legislation providing funds for this purpose, attorneyswill be required to devote their time and knowledge to the representa-tion of indigents in criminal cases as a fulfillment of a professionalduty. Warner v. Commonwealth, 400 S.W.2d 209 (Ky. 1966).Appellant-counsel, relying on a decision of the United States Dis-trict Court for the District of Oregon,' argued that the public use ofhis services and knowledge by the court was an unlawful deprivationof property without just compensation under the fifth amendment ofthe United States Constitution. The Oregon federal court saidthat while, historically, the privileges of the attorney in society oncerequired him to represent the indigent without compensation, thespecial privileges of his position no longer exist.The production of witnesses for an indigent defendant is a phase ofdue process-the supplying of a transcript of proceedings to an indigentdefendant through services, expertise, and facilities of the court reporteris a phase of due process, as is the supplying of mental and physicalexamination through the services and expertise of a physician, and somust also be a supplying of a license, time, expertise, office facilities andexpense of an attorney for the indigent. The supplying (of an attorneyat every stage] . . . is a public purpose. 2(Footnote continued from preceding page)man, 141 N.W.2d 39 (Mich. 1966) (citing Freeman); Commonwealth v. Ahearn,218 A.2d 561, 572 (Pa. 1966) (dissenting opinion).'Dillon v. United States, 230 F. Supp. 487 (D. Ore. 1964).2 Id. at 493.1967]

Criminal Law--Insanity--Test for Criminal Responsibility

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Criminal Law--Insanity--Test for Criminal Responsibility

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