When John Hinckley was acquitted in 1982 for his attempted assassination of the President, the verdict galvanized opposition to the insanity defense. Some lawmakers wanted to restrict the use of the defense or even abolish it altogether. In Crime and Madness Thomas Maeder places the insanity defense and the recent challenges to it in historical perspective. Outrage over the Hinckley verdict, along with alarm over rising crime rates, inclined many to view the widespread use of the insanity defense as merely another manifestation of modern “soft” criminal justice. But Maeder argues that such a view is erroneous. For one thing, the number of defendants successfully using the insanity defense is small. More importantly, Maeder traces the insanity defense, in various forms, back to ancient times.

As Maeder makes clear, the insanity defense exists because crimes committed on account of madness cannot be treated in the same manner as other crimes. The law can dispense equal justice to all only by hypothesizing a “reasonable man” who is responsible for his actions. This hypothesis is plausible enough with most individuals, despite inevitable differences in intelligence, temperament, and other factors. But what of those properly classed as insane? Their mental disturbances and delusions set them apart from the overwhelming mass of humanity and make them more deserving of sympathy (and treatment, if it is feasible) than punishment.

Maeder traces the evolution of insanity law from the fragmentary evidence of early cases through the more substantial records of the English trials of the 18th and early 19th centuries up to the present day. The seminal case for modern Anglo-American jurisprudence was that of Daniel McNaughton; the resulting McNaughton Rule would in time become the law throughout the British Empire and in nearly every American state. Briefly stated, the McNaughton Rule established a strictly “cognitive” view of madness: an individual could be found insane only if, because of mental disease, he could not understand the nature of his act or recognize that it was wrong.

In recent decades, the insanity defense has come under attack from two different groups. Opponents of the insanity defense have claimed that it is too readily available to defendants and that it should be used only by those defendants whose mental disease is utterly beyond dispute. Among supporters of the insanity defense, on the other hand, many have complained that the McNaughton Rule is anachronistic and unhelpful, since it does not do justice to the noncognitive aspects of mental illness.

Maeder sees some merits on both sides of the issue but argues that the complexity of madness and crime precludes any extreme ideological solution. The insanity defense can be abused, but occasional abuses should not mean a universal ban. Because the release of mentally ill defendants can constitute a serious hazard to society, Maeder suggests ways to reduce the risks. He recognizes the limitations of the cognitive McNaughton Rule but points out that attempts to broaden the definition of mental illness in criminal cases have frequently had the effect of confusing the jury, as competing psychiatrists cloud the issues in a welter of incomprehensible jargon.

Maeder warns against the folly of abolishing the insanity defense so long as there are insane people. Such an abolition would likely result in either a merciless system of justice or an evasion of the law by judges and juries. One line of approach not suggested by Maeder, however, merits serious consideration: keep the insanity defense but place severe restrictions on the psychiatric testimony permitted at trials. The reasons for such an approach are suggested by a fascinating experiment by David Rosenhan and his colleagues in which several perfectly normal people secured admission to mental hospital wards by claiming to have heard voices. Once on the wards they stopped feigning mental illness and acted normally. No staff psychiatrists recognized the normalcy of these “patients,” even though several mental patients did. How could such a thing happen? Psychiatrist Roy Grinker may have put his finger on the answer when he remarked that psychiatry has actually regressed from the 19th to the 20th centuries, as concern with inferences replaced concern with behavior. After all, a simple observation of behavior would have easily revealed Rosenhan’s “patients” for who they were.

If the critique (by Medawar, Popper, Köhler, Eysenck, et al.) of the nonscientific character of much modern psychiatry is correct, the most plausible way out of the insanity dilemma may be to preserve the insanity defense while limiting evidence in support of insanity to observations of behavior patterns. The often neoscholastic and unilluminating psychiatric inferences on a subject’s “mental” state could be eliminated with very little loss to anyone.


[Crime and Madness: The Origins and Evolution of the Insanity Defense, by Thomas Maeder; New York: Harper & Row]