: The Blawgraphy
Life of a Law Student, University of Houston Law Center

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By: Luke Gilman | Other Posts by
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In talking out the cases on the insanity defense today an idea occurred to me that the more I think about the more I am convinced is true. I tried it out with Thompson and I don’t think she was biting, but I would be interested to see what y’all think (y’all being you plural classmates and random internet interlopers) –

We’ve learned five, er, six (?) historical tests to determine insanity such that criminal culpability is found not to exist. All focus on mens rea – “the guilty mind” – as the theory goes, it’s only fair to punish those who are morally culpable for the acts they commit. If someone is insane; if, for instance, they honest to goodness believe the world is doomed and the only way to save it is to read aloud the magical incantations inscribed on the inside of my skull and bash it open to accomplish said result, then society deems that person not fully accountable for my death because they did not have the requisite ‘guilty mind’ that we alternately seek to punish and deter.

That’s a swell theory, but then we go and leave it up to juries – which as we know consists of 12 of our esteemed peers not smart enough to get out of jury duty – and I don’t think juries give a hoot about mens rea. They have an approximate hollywood-infused idea of what insanity might look like and what evil is. They look at the generally heinous, nonsensical act of violence that may have been committed and they look at the defendant and they do exactly what modern jurisprudence thinks it has progressed past. They decide based on the act, if it was an act more likely committed by an evil person or an insane person, and then they look at the person and say yep, evil, or yep, cuckoo for cocoa puffs. I’m not saying this is the right way to do it, but that’s how I see it going down in the jury box, the whatever else is said is just window-dressing for what’s already been decided.

Why do I say this? I keep going back to what one of the jurors in the Andrea Yates case said, the reason it was so hard is that they didn’t have a “guilty but insane” defense. In other words, the act was so heinous, so evil, that they can’t get past it, they want to condemn it as a crime, and yet they realize that Andrea Yates is about as insane as they come. Yet she’s not the raving, loopy kind of crazy we see in cartoon straightjackets. She calmly, rationally committed an unbelievably heinous act under a tragic delusion. She’d thought about it for a while, she got an opportunity and she took it. She knew society would think it was (legally) wrong, but according to her delusions it was the right thing (morally) to do. The act is most easily explained as evil. The first Andrea Yates looked over at her in her affectless, heavily-medicated state and said yep, evil, and convicted her. The second jury looked over and saw her break down and cry over the

Our system of jurisprudence wants jurors to take an enlightened view of the insanity defense, to understand our legal concepts of culpability and the rationales for punishment, but jurors don’t want to do that. They want to sleep at night and that means knowing evil is punished and when they see it, they don’t want to bless it no matter what the reason. They understand insanity, but they can’t overlook evil. That’s why they want the ‘Guilty but Insane’ verdict. At some point, jurisprudential ideals have to bow to the pragmatic reality of how juries (how society) see justice when insanity is involved.

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Category: criminal law, university of houston


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