11 Professor Dershowitz has What Is So very effectively put psychia- : ty in its proper place. As Special about far as the law and public pol- Mental Illness? icy are concerned, a psychia- trist is an expert on the diag- nosis and treatment of men- tal illness, His testimony becomes relevant to questions of, responsibility only when mental illness itself is relevant to such questions, and that is only when it deprives a person of the capacity to conform his conduct to the requirements of law. Mental illness should not itself be an independent ‘ground of exculpation, but only a sign that one of the tra- Gitional standard grounds—compulsion, ignorance of fact, or excusable ignorance of law—may apply. Mental illness, then, while often relevant to questions of responsibility, is no more significant—and significant in no different way— than other sources of compulsion and misapprehension. Now although I am almost completely convinced that this is the correct account of the matter, I am nevertheless going to air my few lingering doubts as if they were po- tent objections, just to see what will happen to them. I shall suggest, then, in what follows, that mental illiaess has an in- dependent significance for questions of responsibility not fully accounted for by reference to its power to deprive ‘one of the capacity to be law-abiding. 4 AlanM, Dershowits, “The Payehitris’s Power in Givi Commit: ment! A Knife that Cate Both Ways." An abridged version of this talk was published in Poychology Today, 2/9 (Feb. 1969), 48-47 22 What Is So Special about Mental Tliness? 1 At the outset we must distinguish two questions about the relation of mental illness to criminal punishment. (There are two parallel questions about the bearing of men- tal illness on civil commitment) (1) How are mentally sick persons to be distinguished from normal persons? (2) When should we accept mental illness as an excuse? ‘The first appears to be a medical question thet requires the expertise of the psychiatrist to answer; the second appears to be an essentially controversial question of public policy that cannot be answered by referring to the special exper- tise of any particular group. Some psychiatrists may wish to deny this rigid separa- tion between the two questions. They might hold it self- evident that sick people are not to be treated as responsible people; hence the criteria of illness are themselves criteria ‘of nonresponsibility. But, obviously, this wor't do. First of all, the fact of illness itself, even greatly incapacitating i ness, does not automatically lead us to withhold ascription of responsibility, or else we would treat physical illness as an automatic excuse. But in fact we would not change our judgments of Bonnie and Clyde one jot if we discovered that they both had.had 103-degree fevers during one of their bank robberies, or of Al Capone if we learned that he had ordered one of his gangland assassinations while sul- fering from an advanced case of chicken pox. Secondly, there are various crimes that can be commitied by persons suffering from mental illnesses that can haxe no relevant bearing on their motivation. We may take exhibitionism to be an excuse for indecent exposure, or pedophilia for child molestation, but neither would be a plausible defense to the charge of income-tax evasion or pricefixing conspiracy. These examples show, I think, that the mere fact of ‘mental illness, no more than the mere fact of physical illness, automatically excuses. We need some further cri- terion, then, for distinguishing cases of mental illness that 273Doing and Deserving do excuse from those that do not, and this further question is not an exclusively psychiatric one. What we want to know is this: what is it about mental illness that makes it an excuse when it san excuse? So much, I think, is clear. But now there are two types of ‘moves open to us. The first is preferred by most legal writ: crs, and it is the one about which I intend to raise some doubts. According to this view, there is nothing very special about mental disease as such. Mental illness is only one of numerous possible causes of incapacity, and it is incapacity —or, more precisely, the ineapability to conform to law—~ that is incompatible with responsibility. Ultimately, there is only one kind of consideration that should lead us to ‘exempt a person from responsibility for his wrongful deeds, and that is that he couldn't help it. Sometimes a mental ill- ness compels a man to do wrong, or at least makes it um- reasonably difficult for him to abstain, and in these cases wwe say that, because he was ill, he couldn’t help what he did and, therefore, is not to be held responsible for his de- viant conduct. But in other cases, as we have seen, mental illness no more compels a given wrongful act than the chicken pox does, or may be totally irrelevant to the ex- planation of the wrongdoing, in that the wrongdoer would have done his wrong even if he had been perfectly healthy. What counts, then, for questions of responsibility is whether the accused could have helped himself, not whether he was mentally well or ill, ‘Aristotle put much the same point in somewhat different but equally familiar language. A man is responsible, said ‘Aristotle, for all and only those of his actions that were voluntary; to whatever extent we think a given action less than voluntary, to that extent we are inclined to exempt the actor from responsibility for it. There are, according to Aristotle, two primary ways in which an action can fail to it can be the result of compulsion, or it can be done in ignorance. Thus if a hurricane wind blows you twenty yards across a street, you cannot be said to have crossed the street voluntarily, since you were compelled to 274 What Is So Special about Mental Iinesst do it and given no choice at all in the matter, And if you put arsenic in your wife's coffee honestly but mistakenly be- Tieving it to be sugar, you cannot be said to have poisoned her voluntarily, since you acted in genuine ignorance of what you were doin, ‘Now if we take just a few slight liberties with Aristotle, we can interpret most of the traditionally recognized legal excuses in terms of his categories. Acting under duress or necessity, or in selfcdefense, or defense of others, or defense Of property, and so on, can all be treated as cases of acting, under compulsion, whereas ignorance or mistake of fact, ignorance or mistake of law, and perhaps even what used to be called “moral idiocy” or ignorance of the “difference between right and wrong” can all be treated as cases of act- ing in responsibility-cancelling ignorance. On the view I am considering (a view which has gained much favor among lawyers, and to which Professor Dershowitz, I feel sure, is friendly), the mental illness of an actor is not still a third way in which his actions might fail to be voluntary; rather, it is a factor which may or may not compel him to act in certain ways, or which may or may not delude, or mislead, or misinform him in ways that would lead him to act in ig- norance. Indeed, on this view, mental illness ought not even to be an independent category of exculpation on a level with, say, selfdefense or mistake of fact. Selfdefense and relevant blameless mistakes of fact always excuse, whereas ‘mental illness excuses only when it compels or deludes. We now know of the existence of inner. compulsions unsus- pected by Aristotle: obsessive ideas, hysterical reactions, neurotic compulsion, phobias, and addictions. Other men- tal illnesses characteristically produce delusions and hallu- inations. But not all neurotic and psychotic disorders by any means produce compulsive or delusionary symptoms, and even those that do are not always sufficient to explain the criminal conduct of the person suffering from them. ‘The nineteenth-century judges who formulated the fa- mous McNaghten Rules were presumably quite sympa- thetic with the view I have been describing, that there 275Doing and Deserving really is nothing very special about mental illness. ‘These rrules are not at all concerned with neurotically compulsive behavior—a category which simply was not before their minds at the time. Rather, they were concerned with those dramatic and conspicuous disorders that involve what we call today “paranoid delusions” and “psychotic hallucina- tions.” The interesting thing about the rules is that they treat these aberrations precisely the same as any other innocent “mistakes of fact"; in effect the main point of this part of the McNaghten Rules is to acknowledge that mistakes of fact resulting from “disease of the mind” really are genuine and innocent and, therefore, have the same ex- culpatory force as more commonplace errors and false be- liefs. The rules state that, “when a man acts under an insane delusion, then he is excused only when it is the case that if the facts were as he supposed them his act would be inno- cent. . ..” Thus if a man suffers the insane delusion that a passerby on the street is an enemy agent about to launch a mortal attack on him and kills him in what he thinks is “selfcdefense,” he is excused, since if the facts were as he falsely supposed them to be, his act would have been inno- cent. But if (in James Vorenberg’s example) he shoots his wife because, in his insane delusion, he thinks her hair has turned gray, he will be convicted, since even if her hair had tured gray, that would not have been an allowable de- fense. Note that the mental disease that leads to the insane delusion in these instances is given no special significance ‘except insofar as it mediates the application of another kind of defense that can be used by mentally healthy as well as mentally ill defendants. ‘The MeNaghten Rules do, however, make one important concession to the peculiarity of mental illness. Mentally normal persons, for the most part, are not permitted to plead ignorance of the law as a defense, especially for crimes that are “malum in se.” No normal person, for ex- ample, can plead in the state of Arizona that “he didn’t know that murder is prohibited in Arizona.” That kind of ignorance could hardly ever occur in a normal person, and 216 What Is So Special about Mental Iinesst even if it did, it would be negligent rather than innoceit ignorance. (One should at least take the trouble to find out whether a state prohibits murder before killing someone in that state!) If a person, however, is so grossly ignorant of ‘hat is permitted that he would murder even (as the saying goes) with “a policeman at his elbow,” then if his ignorance is attributable to a diseased mind and therefore innocent, he is excused. One can conceive (just barely) of such a case. Imagine a man standing on a street corner chatting with a policeman. A third person saunters up, calmly shoots and kills the man, turns to the astonished policeman and says “Good morning, ofcer,” and starts to walk away. When the policeman apprehends him, then he is the astonished one. “Why, what have I done wrong?” he asks in genuine puzzle- ment. In accepting this kind of ignorance when it stems from disease as an excuse, the McNaghten Rules do not really make much of a concession to the uniqueness of mental ill- ness. Ignorance of law does not excuse in the normal case because the Jaw imposes a duty on all normal persons to find out what is prohibited at their own peril. When a statute has been duly promulgated, every normal person is, presumed to know about it. If any given normal person fails, to be informed, his ignorance is the consequence of his ‘own negligence, and he is to blame for it. But when the ig- norance is the consequence of illness, it is involuntary or faultless ignorance and may therefore be accepted as an excuse, Again, itis not the mental illness as such which ex- uses, but rather the ignorance which is its indirect by- product. The ultimate rationale of the exculpation is that the actor “couldn't help it.” We hardly need the separate insanity defense at all if we accept the propositions that mentally ill people may be subject to internal compulsions, that mental illness can cause innocent ignorance, and that, both compulsion and innocent ignorance are themselves ex- cuses. Suppose a mentally ill defendant is acquitted on the ground that his illness has rendered his unlawful conduct, 2