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 hallucinating?
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 self-defeating proclivities.
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 States.
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 wrong.
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 in
evitable 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 conscience?
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, Hall108,109,110,111,112 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 fea
r 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
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