“Criminal” Insanity, Diagnosis, and Public Morality


The insanity defense contains at its core an intractable tension between the insane as sick and the insane as criminally deviant. The very phrase ―mentally-ill offender ―epitomizes the social vectors of therapeutic concern for and punitive attack against those who deviate from our sexual habits, deprive us of our property, or threaten our physical well-being. Sociopaths represent the apotheosis of this contradiction in that they suffer from a mental disease defined in terms of criminality. As such, these individuals have traditionally been treated differently from the insane and incompetent; they are denied the therapeutic approaches normally accorded to the mentally ill and routinely hammered with punishment within our criminal justice system.

This state of affairs provokes at least two worthy lines of inquiry: first, why the special treatment of sociopaths in the insanity defense and criminal law generally? And second, should it be otherwise? The answers to these questions, I will argue, move us far beyond the treatment of sociopaths to a general indictment of the social order and the criminal justice system that regulates it. In reality, sociopaths are a creation of psychiatric discourse, embraced by the criminal justice system for its convenience, and the contours of the insanity defense reflect this fact. While more critical considerations of moral responsibility might exculpate them, alongside numerous others, their persistence in the dominant ideology serves to conceal far more powerful—and hence far more threatening—sources of social harm.


Insanity Defense, Criminal Insanity, M’Naghten test, Durham rule



William Waller (Washington University School of Law)



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