Section 4: Some questions still without adequate answers

Part 2: What is wrong with these patients?

67. Legal competency and criminal responsibility



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67. Legal competency and criminal responsibility

It has been mentioned that the psychopath does not often cooperate willingly in

treatment over any considerable period of time and that he also seems to be remarkably

free from the ordinary legal and penal restraints that prevent others from repeatedly

carrying out antisocial activity. Questions of legal competency and criminal

responsibility play a fundamental part in the efforts of society to cope with psychopaths.

Let us consider these concepts more closely.

The term competency in connection with our present problem is pertinent to

questions of legal commitment, which is a procedure by which the psychiatric patient

can, when necessary, be placed under treatment and appropriate restrictions even if this

has to be done against his will and, if necessary, by force. Responsibility seems in many

respects to be another aspect of the same thing. The incompetent person has been

legally pronounced unable to look after his own affairs or make his own decisions about

crucial matters. If a person is held to be legally responsible by a court, he is then

considered to be culpable for any crime or other misdeed he may have committed and

hence subject to legal penalties. Many assumptions,


some of them about matters on which few entirely agree, lurk in various degrees of

disguise in the almost limitless implications of these terms.

Probably most laymen, and perhaps some physicians, think of both incompetency

and a lack of legal responsibility as identical with psychosis or insanity. As so helpfully

pointed out by Davidson,68 this is incorrect, or at least incomplete and sometimes

misleading. According to the law, Uncle John's will may be entirely valid, although he

insisted for years that he talked with his dead grandmother and was diagnosed as having

schizophrenia. Every psychiatrist knows people who hallucinate and are delusional but

who should not be deprived of their liberty and sent against their will to institutions. A

good example is offered in a 50-year-old woman who for fifteen years has carefully

listened to a voice from her stomach which she "knows" is real and which often directs

her. Advice given by the voice has on the whole been quite sensible and practical -

never irrational! She has for a decade come at intervals to the outpatient clinic. So far

as can be ascertained, her life has been undisturbing to others, and she has, with fair

competency, carried out her own affairs.

It is true, nevertheless, that nearly everywhere in the United States it is usually

necessary for medical evidence to establish the presence of a "psychosis" and for the

court to pronounce a patient "insane" before he can be committed or in any way

handled therapeutically or prophylactically against his wishes. Mental deficiency, it is

true, may also serve as a basis for such action, although it is sometimes the practice to

say that the degree of deficiency is so great as to render the patient psychotic. There are

those who will argue that nevertheless he does not have a "psychosis."

The technicalities of procedure vary from state to state. Items redolent of

necromancy, and in which the glow of witch fires is still reflected, are not uncommon in

these doings. Until after publication of the first edition of this book, in my native state

the patient was "charged, with being a lunatic." Most physicians and jurists would

perhaps agree that for practical purposes incompetency, in the sense of making legal

commitment advisable, indicates a disability (disorder or deficit) of such degree that the

patient cannot be counted on to make a (normally) correct appraisal of his condition

and (therefore) to choose what treatment or protection he needs.

In considering the questions that arise concerning legal competency and

responsibility, let us remember that the determination of competency, on which

commitment depends, is usually carried out by a few selected experts-a lunacy

commission. On the other hand, as Cumming so well emphasized, questions of

responsibility on which terms of imprisonment or


even the death penalty may depend are determined by a jury of twelve laymen.64 Usually

when a person is legally adjudged incompetent, it is on the basis of his being psychotic.

Sometimes, however, a person who is psychotic may be held legally responsible because

he is considered as knowing the nature and quality of his criminal deed and that it is


A case referred to by Guttmacher is illustrative. Let us quote from his interesting


Spencer married a woman who had been raped about six years before. The man

was found guilty of rape and was given a sentence of five years. They usually give

longer sentences in Maryland, but he got five years. Spencer's wife, a very frail person,

died without medical attention while this man was serving his penitentiary sentence.

The cause of death was not determined, but Spencer was sure that her death was the

result of the rape, which had occurred six years before, about three years before he had

married her. The idea possessed him that his wife was not going to be able to rest in

her grave unless she was really avenged, and he decided that it was his mission in life

to right this great wrong. A few months after this man had been released from the

penitentiary, Spencer went up to him and asked him to take a walk. They started

walking down the road together, and Spencer was overheard by some people who

passed to say, "You have been responsible for my wife's death. I hear voices at times

telling me that I must kill you. Her spirit will never rest unless I carry out this request.

I know that I am likely to hang for it and it's the wrong thing for me to do, but there is

nothing else left for me to do." Whereupon he killed him. He pleaded insanity and

the court, upheld by the court of appeals, ruled that he was not insane. The court of

appeals said it was clear that the witness heard Spencer say that he was doing what he

knew to be wrong and that he would be punished. That was all that the court needed

to know in order to satisfy itself that he was a responsible agent.

The patient discussed by Guttmacher, despite the hallucinations which would

surely have caused most psychiatrists to call him psychotic, was regarded as

"responsible" because of his own statement to the effect that it was wrong to commit

murder. An important question must be asked. Just how much knowing of the quality

and nature of the act, just how much and what sort of evaluation and emotional

appreciation of it, is proved or indicated by such a statement from a man who is


It is not unusual to find patients with schizophrenia who can pronounce correct

verbal judgments about matters they fail to evaluate sanely or react to normally.

Recently a man was examined who had almost succeeded in strangling his wife to death.

He "knew" this act was wrong at the time, was not apparently angry with her, and was

glad he had been prevented from killing her. He had felt influences "from within"

which were more


effective in determining his decisions and acts than the impulse to avoid murder and to

have his wife remain alive. This patient, who also had hallucinations and was obviously

psychotic and schizophrenic, apparently did not attempt murder because of deficiency

in the "intellectual" concept of right and wrong but probably because his personality

was so altered that appreciation, the emotional significance, of the act was (otherwise)

diminished or disordered. Another patient with schizophrenia may recognize his child,

say that he loves his child, express all the correct attitudes "intellectually" about the

situation, and still be so disordered in his responses that he will let the child drown or

burn to death without making ordinary efforts to save him.

In contrast with these, the psychotic paranoiac as he plans an assassination may

be able to feel strong hate and destructiveness (to experience criminal intent) similar in

degree and quality to that of the normal man.

In the case discussed by Guttmacher, definite evidence of irrationality was

demonstrable. But the contrary evidence of a localized rationality at the crucial point of

being able to express an opinion that to kill the man was wrong was accepted as proof

that he knew the nature and quality of the act. It might be said that here we have a

"lesion of the intellect" demonstrated, but the lesion was not demonstrated to be in

such a place as to prevent the man from making the rational statement about his deed.

Though competency and responsibility often seem to be two aspects of the same

question in legal matters, there may be good grounds for sometimes considering them

separately. Early in my experience with psychopaths I was struck with the idea that

much might be gained if they could be considered psychotic. With the first edition of

this book, in 1941, I expressed this opinion. I was led into this position by repeatedly

observing how little a fully developed psychopath succeeds in leading a normal or

acceptable life, and how badly needed was some means to control his antisocial and selfdefeating


I was not really thinking about responsibility from the other point of view; that is

to say about whether or not the person should be regarded as guiltless of crimes and

other antisocial activities. For many years I have consistently tried to emphasize my

strong conviction that psychopaths should not be regarded as psychotic in the sense of

being "innocent because of insanity" of the wrongs they do.

I still feel as strongly as ever that the psychopath's defect constitutes a major

disability for normal participation in human affairs, but I am convinced that I made a

great mistake in expressing myself in such a way as to give the impression I believed he

should be regarded as blameless, or not legally responsible for his misconduct. Despite

traditional concepts and


confusions, can we not conceive of a defect that seriously incapacitates and calls for

restraining measures, without assuming that this defect necessarily absolves the subject

from culpability and penalties of the law? Whatever in the psychotic patient there is that

may render him not responsible, or less than normally responsible, for crime, cannot, in

my opinion, be found in the psychopath's defect.

Many psychiatrists and jurists have protested over many decades against the

M'Naghten Rules and have insisted that judgment should be made not on cognition

(knowing) alone but that other aspects of the personality should be considered. In

response to this criticism, the concept of "irresistible impulse," an alleged abnormality of

the will, was advocated years ago and was adopted as law in some parts of the United


This theory of "irresistible impulse" so often advanced by the defense in

questions of criminal responsibility deserves a brief discussion. As traditionally

interpreted, the M'Naghten Rules obviously center examination on an assumed

intellectual faculty.108 The concept of a pathologic and genuinely irresistible impulse

attempts to center it on another assumed and discrete faculty, a hypothetical will.

Quoting again from Guttmacher: 105

Seventeen of our states … [in 1948] recognize that it is not only a question of

whether a man knows that what he is doing is wrong, but [also] whether his will power

is sufficiently undermined by mental disorder that he cannot adhere to the right, in

which case he is not considered a responsible agent.

Hall expressed the belief that even where the irresistible impulse test was

recognized in theory, it was not often respected in practice.108

Nothing could be more obvious than the follies that may arise when an

attempt is made to localize illness in a hypothetical volition dismembered from the

integrate of human functioning. Arguments as to whether an impulse is

pathologically strong or whether what resists it is pathologically weak soon become

little more practical or more enlightening than arguments about priority between the

hen and the egg. As Hall points out, it has been said that if legal questions are

determined on such a basis "you will soon make irresistible an impulse which now is

resistible and resisted because of penal law."108 A prominent psychiatrist is quoted

as saying:108

From a psychological point of view, the impulse could not have been resistible,

since the act was carried out in accordance with the impulse. It is difficult for me to

conceive of an impulse which is resistible but not resisted.

Attempts to apply the M'Naghten Rules to a concept of faculty psychology

vividly illustrate the weaknesses of faculty psychology. Attempts, within the confining

framework of its assumptions, to examine not only an


intellect but also a will are unlikely to be helpful since in neither pursuit can we encounter

a reality of experience but must continue to deal with only verbal abstractions.

Many psychiatrists over several decades have been extremely bitter in their

criticism, and sometimes in their ridicule, of the M'Naghten Rules which for over a

hundred years constituted the chief legal guide in determining criminal responsibility.

As given by Hall, the essential points of the M'Naghten Rules lie in this statement:108

To establish a defense on the grounds of insanity, it must be clearly proved that at

the time of the committing of the act the party accused was labouring under such a

defect of reason from disease of the mind as not to know the nature and quality of the

act he was doing or, if he did know it, that he did not know he was doing what was


Some of this criticism of the traditional rules has apparently been based on the

wish by expert witnesses to express the opinion in psychiatric terms rather than in those

familiar to the law and to laymen. Violent denunciation of the rules has also apparently

been related to the concept of psychic determinism so vigorously espoused by Freud

and very popular among psychiatrists for several decades. This doctrine is regarded by

many as one of Freud's most important discoveries and as a foundation stone of

dynamic psychiatry.190 Although it is often assumed to be a fact established by

psychoanalytic research, we may note that Freud and all his followers have produced no

scientific evidence whatsoever to support it. It remains purely an assumption.

A truly logical conclusion from psychic determinism would, of course, abolish the

concept of personal responsibility altogether and along with it the basis of law and all

the value judgments that underlie ethical conduct and even rudimentary civilization. Let

us bear in mind, however, that those who profess allegiance to the doctrine almost

never follow it to the inevitable conclusions it logically demands. There are many,

nevertheless, who respond to its influence sufficiently to arrive at peculiar and

interesting assumptions. Some of these are now popularly regarded as the essence of a

liberal and scientifically enlightened mind. Going part of the logical way, but not all the

way, they conclude that when crimes are committed, it is never the fault (responsibility)

of the criminal but, inevitably, the fault of society.57

Zilboorg, one of those who vigorously criticized the law, and the M'Naghten

Rules especially, had this to say:301

When they all individually and jointly [judges, lawyers, and jury] ask me whether

the defendant in the dock is in my opinion insane, I


must candidly state, if I am to remain true to my professional knowledge and faithful

to my oath, first, that I do not understand the question, and, second, that since I don't

understand the question, I do not know whether the defendant is insane or not. I

admit the situation is embarrassing and puzzling to all concerned, but it is beyond my

knowledge and power to remedy or alleviate it.

Continuing a discussion of what he considered to be the basic differences

between medical man and jurist, Zilboorg goes on to say:301

We have reached a rather disquieting parting of the ways. This is undesirable from

both your [the jurist's] point of view and mine. Your rules are unintelligible to me, and

my inability to follow them is unintelligible to you.

It is a matter of no little importance that joint action be continued, that every

effort at cooperation be made to fit our social instrumentalities to the needs of the

patient. It is important that new knowledge and understanding be used in these

efforts. It is doubtful, as Hall points out, that the substitution of psychiatric

terminology for the legal phrases would be of much practical or immediate help. To

quote from Hall again: 108

Imagine that, instead of a judge's instructions in terms of prevailing rules he said

"... essential to the psychopathic personality may be a defective organization of the

autotely ... and unsatisfactory adjustment of the heterotely." ... If, instead of

"knowledge" or "understanding," "control," or "act," the language of the law ran in

terms of id, ego, and super-ego, the psychiatrists would understand, but would many

lay persons be much enlightened even after they were informed that the "id" is the

"true unconscious," that the "ego" is that part of the mind that is "regulated by the

reality principle," and that the "super-ego" is a sort of inner monitor synonymous with


It seems likely that Hall's suggestions offer more hope for common

understanding and for effective action (the need for such action is particularly urgent

and obvious so far as psychopaths are concerned.) He suggests that concepts generally

agreed upon in psychiatry be utilized to "implement the M'Naghten Rules."108 It is

doubtful if any psychiatrist today conceives of personality function only in the

abstractions of faculty psychology. The human being as we know him is integrated. We

do not find him "thinking" without also "feeling." We do not observe acts of volition

altogether free of emotion. Continuing, Hall clarifies the very point on which he feels

agreement may be reached and which intelligent action may follow: 108

This view of the participation of the rational functions, including evaluation, does

not imply any depreciation of the role of the instincts in normal conduct. For

consistently with this theory, one asserts the fusion of various aspects of the self. This

means that moral judgment


("knowledge of right and wrong") is not reified as an outside, icy spectator of a moving

self; on the contrary, the corollary is that value judgments are permeated with the color

and warmth of emotion, as is evidenced by the usual attitudes of approval that

coalesce with right decisions. Indeed all action, especially that relevant to the penal

law, involves a unified operation of the personality.... The M'Naghten Rules provide

an analytical device for dissecting this action.

If these rules can be thus used by the jurist, it seems obvious that as

psychiatrists we can venture honest and sensible opinions on whatever evidence of

medical impairment we find that may alter such a "knowing." When no longer

dismembered and falsified in two-dimensional aspect but considered in all that we

sometimes imply by "appreciation," "realization," "normal evaluation," "adequate

feeling," "significant and appropriate experiencing," the term does not restrict us

solely to a discussion of the patient's reasoning abilities in the abstract.

In very impressive and helpful studies over a period of many years, Hall108-112 has

brought out from the viewpoint of our legal coworkers in this area facts, appraisals, and

suggestions which I feel can enable us to deal honestly and more effectively with

questions of legal responsibility and competency. He has also politely but convincingly

demonstrated some of the confusion contributed by us as psychiatrists to important

issues. Interestingly enough, Hall demonstrates in our own psychiatric writings

examples of the very dogmatism, the archaic and unrealistic approaches, and the

adherence to dubious theory at the expense of vital fact which we have so readily

ascribed to the law and its interpreters and so vigorously denounced.

If the jurist and the psychiatrist would approach our problem from the viewpoint

expressed by Hall, it seems to me that much nonsense and tragedy could be avoided.

After referring to typical arguments between those who argue for "reason" as a criterion

and those who in contradiction emphasize "will," he says: 108

Opposed to these views and avoiding their particularistic fallacies is the theory of

the integration of the self.... In terms of this theory any interaction with the

environment is integrated in the sense that the various functions of personality

coalesce and act as a unit. Although it is useful to distinguish the important "modes"

or attributes of such action, the various functions are not actually separate. On the

contrary, the affective, the cognitive, and the conative functions as well as all others

interpenetrate one another. Thinking (knowing, understanding) e.g., fuses with

tendencies to action and it is permeated also in varying degrees by the warmth of the

emotions.... Hence it is arbitrary and formalistic to assert that the psychotic's rational

functions, including his knowledge of right and wrong, are unimpaired.


There is only a certain awareness, a bare calculation unsupported by the strong pillar of

sensitivity that, in normal adults, effects identification with a prospective victim or

stimulates a vivid imagining of other consequences of the intended behavior; in short,

the Psychotic's conduct is unaccompanied by actual understanding of the moral

significance of his action.

Many of these quotations illustrating arguments over the M'Naghten Rules and

claims made by some psychiatrists that we are in a position to bring truly scientific

knowledge to bear on crucial problems, still dealt with by antiquated methods, are from

articles published over the last ten or twenty years. They are retained in the current

edition of this book because I believe they are still pertinent to problems that have not

yet (1975) been satisfactorily settled.

Despite the excellent points made by Hall, vigorous criticism of the law and

particularly of the M'Naghten Rules has continued over the decades, chiefly from

psychiatrists but also from jurists. Many of those who have expressed such bitter

dissatisfaction with the M'Naghten Rules welcomed the Durham Rule as a tremendous

and triumphant step forward. This rule pronounced by Judge Bazelon in 1954 is to the

effect that a defendant must not be held criminally responsible "if his unlawful act was

the product of mental disease or mental defect."111 Speaking of the Durham Rule,

Fortas has said, Its importance is that it is a charter - a Bill of Rights for psychiatry."83

Judge Bazelon received official honors and a certificate of commendation from the

American Psychiatric Association. Along with many psychiatrists, prominent legal

scholars have enthusiastically expressed the conviction that "science," "scientific facts,"

and "the latest knowledge of human behavior" have made the M'Naghten Rules

obsolete. They apparently assume that all this alleged psychiatric enlightenment can

now be freely applied to legal problems.

On the other hand, Hall and some other critics have expressed fear that the

Durham Rule might lead to the destruction of our jury system in criminal trials and turn

over questions of guilt and responsibility to narrow experts who, however adequately

trained in their limited field, may not really qualify as all-knowing judges on such

questions and all that they involve. Hall110 and Cumming64 express the fear that various

unproved and widely differing theories might be utilized by psychiatric witnesses to

make arbitrary and absolute judgments that would have little relation to scientific fact.

They also develop arguments that illustrate the danger of leaving such complex value

judgments on such imponderables as the judgment of criminal responsibility solely to

any experts known today. Although it is maintained by some that psychiatrists now

have a scientific method of arriving


at such a decision, the points made by Hall and Cumming raise grave doubts about this

assumption and suggest that this is an area not yet proved accessible to methods that are

genuinely scientific. Forcing the methods of science, or a caricature of these methods,

into areas which science is not now equipped to deal with does not endow judgments in

these areas with validity, whatever words we may use to state the case. This specious

and misleading practice has sometimes been called scientism.57

It is interesting to note that in 1907 Grasset99 brought forth under the term

"physiological responsibility" a concept very similar to that embodied in the Durham

Rule. Grasset advocated that the judgment of responsibility be made merely on whether

or not the capability of the organism is impaired. In this old concept he avoids

decisions about free will versus determinism. He also refuses to confine his inquiry to

disparate conceptual abstractions such as "knowing," feeling," or "will." Instead he

keeps his attention on the integrated reality of human functioning.

It has been customary over the decades for lunacy commissions to pronounce

psychopaths competent and for juries to pronounce them sane and responsible. It is in

the concept of competency that we meet our primary problems when we attempt to

provide any improvement in methods of dealing with the psychopath. It is difficult to

examine the most important aspects of competency, however, without becoming

entangled with essential implications of legal responsibility. If we attempt to make

pronouncements about responsibility, we are likely, unless we take particular care to

signify what we are talking about, to find ourselves submerged in metaphysics and

attempting solutions of ultimate philosophic and religious problems. However

important or transcendent these problems may be and however we may solve them for

ourselves, we are not, as psychiatrists, qualified to solve them as experts. We are, let us

say, not competent to serve in such a role nor are we responsible.

In approaching questions of competency in the psychopath, it is plain that he

shows no defect in theoretical reasoning and that he lacks all the outer or peripheral

manifestations of psychosis and usually even of minor psychiatric disorder. If, however,

we consider the record of his actual performance, we nearly always find ample evidence

to say that he is socially incompetent in the sense that he cannot carry out a sane plan of

life or avoid repeated antisocial acts and other acts seriously damaging to himself.

McDougall long ago expressed a succinct and practical opinion on the essential

question of competency: 192

In practice the criterion adopted is: Can the patient be trusted to look after his

affairs without undue risk to himself and others? And there is no other criterion.


As the reader must, I believe, agree, this sensible criterion, although regularly

applied to any patient who has ever shown a delusion or a hallucination, is not in

practice applied to those who lack these and some other traditionally accepted signs of

"a lesion of the intelligence." If this criterion should be applied to psychopaths, it

would be much less difficult to commit them and keep them under satisfactory control.

Karl Menninger, also, in referring primarily to questions of liability for

punishment, has made a point that should be helpful if we apply it to the commitment

of patients who are not charged with crime. "The psychiatrist," he says, "asks not 'Is

that man responsible?’ but 'Of what is he capable or incapable?' "210

Despite the cogency of this position, it is not the common practice of

psychiatrists, if the patient is diagnosed as psychopathic personality, to ask themselves

such a question. Or, if they ask it, they arrive at a strange answer, and by extraordinary


In estimating competency in most matters, intelligence as manifested in verbal

reasoning carries a good deal of weight, but few who survive as adults continue to make

the estimate entirely on this basis. Judgment is often spoken of as a matter somewhat

different from and far more complicated than intelligence and is in general regarded as

better demonstrated in behavior than in talk. In the old Stanford-Binet psychometric

test we find the question, "Is it better to judge a man by his actions or by his words?"

The normal 10-year-old child is supposed to answer this correctly. What disturbing

thoughts may arise from this apply, I believe, as accurately to us in our role as

psychiatrists as to legal authorities.

Despite the widespread and sometimes bitter disagreement among psychiatrists

and at times among legal scholars, most patients with psychosis who need treatment and

who need restraint can be legally committed and controlled. Although many

psychopaths are, in my opinion, far more disabled than a large proportion of committed

psychotic patients and in far greater need of control, it is very difficult to have such a

patient committed. Before any important step toward solving the problems created by

psychopaths can be taken, some legal means of controlling their antisocial, heedless,

self-damaging, and irresponsible behavior must be devised.

If the Durham Rule devised by judge Bazelon is followed, the question of

competency in the psychopath would depend chiefly on whether his abnormality is

correctly defined as a "mental disease or mental defect." It has long been customary in

psychiatry and law to distinguish sharply between this abnormality and all the conditions

to which the terms "mental disease" or "mental defect" are applied. Few psychiatrists

could doubt that crimes committed by a psychopath are the product of his aberration.



psychiatrist-witness's opinion would, inevitably it seems, depend on whether or not he

classified this aberration as "mental." This decision, it seems to me, would in turn

substantially depend on whether or not this term is limited in its meaning to an assumed

disparate faculty of cognition. Thus, as far as the psychopath is concerned, it would

appear that the psychiatrist in court is faced with essentially the same decision, whether

he testifies under the M'Naghten Rules or the Durham Rule. Either may be interpreted

narrowly and confined to mere cognition or more broadly, as Jerome Hall108 suggests

that the M'Naghten Rules be interpreted. Decisions based on the M'Naghten Rules

depend on the interpretation of the word "know," and with the Durham Rules on the

interpretation of "mental disease or defect." It is hardly conceivable to me that a

psychiatrist would arrive at anything but the same conclusion by either test in his

opinion about a psychopath.

Hopes at first were high that the Durham Rule would free psychiatrists from

archaic legal restrictions and allow them to bring truly scientific knowledge to bear in

court on questions of competency and responsibility.57,83 With the passage of time this

enthusiasm has waned. The scientific knowledge to deal so well with these problems

claimed so confidently by some psychiatrists seems not to have proved effective. In a

1974 issue of The American Journal of Psychiatry, Judge Bazelon, himself, expresses, in an

article with the interesting title "The Perils of Wizardry,"20 what I believe is a

disappointment similar to my own in the prospects of his widely acclaimed rule enabling

psychiatrists to bring a new and scientific solution to the old problems. I fear that many

psychiatrists overestimated what we have to offer. Let us quote:20

The experiment undertaken by my court in its 1954 decision in Durham v. United

States* is a real lesson in regard to the role of psychiatrists in insanity defense. That

case involved the formulation of a new test of criminal responsibility. It held that an

accused person is not criminally responsible if his unlawful act was the product of a

mental disease or defect. The purpose of this decision was to grant the psychiatrist his

100-year-old request to be allowed to tell what he knows and, just as importantly, what

he does not know about the phenomenon of human behavior rather than face

demands for conclusion resting on ethical, moral, and legal considerations beyond his


The purpose of the Durham decision was not fulfilled. Psychiatrists continued

adamantly to cling to conclusory labels without explaining the origin, development, or

manifestations of a disease in terms meaningful to a jury. The jury was confronted with a

welter of confusing terms such as personality defect, sociopathy, and personality disorder.

What became more and more apparent was that these terms did not

* Durham v. United States, 214 F 2nd 862, D.C. Cir., 1954.


rest on disciplined investigation based on facts and reasoning, as was required for the

fulfillment of the Durham decision. I regret to say that they were largely used to cover up a

lack of relevance, knowledge, and certainty in the practice of institutional psychiatry.

I am frequently asked, "Why don't you talk about what's wrong with courts and

lawyers?" I have written countless opinions and articles and have delivered several

"Bazelon jeremiads" about the problems in the practice of law before lawyers and judges.

But here I am concerned with the culpability of psychiatrists in the failure to achieve the

purpose of the Durham decision.

First of all, psychiatrists did not acknowledge the limits of their expertise. Secondly,

they failed to confront honestly and openly the conflicts that impaired their competence

even when their expertise was sufficient and relevant.... I warned behavioral scientists not

to fall into the same trap as described in The Wizard of Oz. In that Frank Baum classic,

Dorothy and her companions followed the yellow brick road to find the Wizard of Oz,

who lived in the Emerald City. They believed the wizard could give the tinman a heart, the

lion some courage, and the scarecrow a brain. When they finally arrived, they discovered

that the wizard was without expertise, a fake. In 1970 I commended the behavioral

scientists for caring about people in distress but warned them of the dangers in playing

wizard to the problems of society for which they had no expertise. The issue was not

whether the behavioral scientists were good, but what they were good at.

Despite some very important achievements in the last half-century, psychiatry

does not today, in my opinion, possess newly discovered and well-established facts

which afford a scientific answer to the ultimate questions that for so long have arisen

and caused confusion in determining responsibility.57 Whatever rule is followed, when

efforts to control the antisocial and self-destructive activities of a psychopath are being

made, the verdict will probably depend on whether the estimation of his legal

competency is based on outer appearance and the peripheral mechanisms of function or

on his amply demonstrated incapacity to lead an adequate or socially acceptable life

because of the serious inner pathology that only emerges in his actual- performance as a

member of the social group.

Many believe that the New Penal Code which seems to have supplanted the

Durham Rule in most jurisdictions is a better rule than that of Durham or of

M'Naghten. Even with this New Penal Code the interpretation of the terms mental

disease and mental defect is likely to vary among psychiatrists and continue to cause

difficulty in judgments about the psychopath.


Next: Section 4: Some questions still without adequate answers, Part 2: What can be done?, 68. Treatment or control


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Section 4, Part 2






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