Should States Punish the Insane?

U.S. Supreme Court in Washington, D.C. (Jonathan Ernst/Reuters)

A new Supreme Court ruling allows states to abolish the insanity defense, but justice demands treating, not punishing, mentally ill offenders.

‘You may ask why I send this to an Australian periodical,” C. S. Lewis wrote in his essay “The Humanitarian Theory of Punishment.” “The reason is simple and perhaps worth recording: I can get no hearing for it in England.”

Lewis had lost the favor of much of his nation when he declared that nearly all of his “fellow-countrymen” were “seriously mistaken” in their prosecution of the death-penalty debate then raging nationwide. He’d claimed that their error was in leaving the central question of the debate — whether capital punishment was a just penalty for certain crimes — unaddressed, focusing instead on the deterrent effects or potential rehabilitation offered by the death penalty and the alternative punishments on offer.

Lewis argued that the utilitarian rationales for punishing criminals — deterrence, rehabilitation, incapacitation — were insufficient to justify a penal regime. If the state did not first establish that an offender deserved to be punished for punishment’s sake, forcing “rehabilitation” upon him or using his fate to deter other would-be criminals was not merely dishonest, but instrumentalist: The offender himself became a means to an end. Without a sense of retributive justice, Lewis said, an offender is made “a mere object, a patient, a ‘case.’”

The Supreme Court laid down its verdict on Monday in Kahler v. Kansas, a decision about which I suspect C. S. Lewis would have a great deal to say. Kahler concerned the constitutionality of a Kansas law that barred mentally ill defendants from using the traditional insanity defense, instead limiting them to the defense that their mental illness rendered them incapable of forming the specific intent, or mens rea, needed for the commission of a crime. The tension between the two defenses is real, if subtle. Mens rea is a standard element of a crime which the prosecution must prove in all but strict-liability cases. The Supreme Court ruled in Clark v. Arizona that lower courts need not permit psychiatric testimony in establishing mens rea, whereas the insanity defense by definition involves the expertise of forensic psychiatrists.

The Court nevertheless found the Kansas scheme constitutional, which is defensible as a matter of law. But for those who have ever met someone who has lost touch with reality and cannot distinguish right from wrong, the moral question beneath the legal one inevitably nags: What does an insane offender, in the state of Kansas or elsewhere, “deserve” for the commission of his crime?

It is worth borrowing from Lewis’s essay to prove that the answer to that question is, in fact, what we should be after when it comes to matters of criminal justice. Much of our modern penological discourse is utilitarian, concerning itself with the protection of society, the rehabilitation of offenders, and the deterrence of other would-be criminals. While Lewis concedes that those things might be useful, he insists that justice demands we begin with an affirmation that the offender deserves to be punished, regardless of the punishment’s effect on him or society at large. If we can’t do that, punishment itself becomes severed from the moral order: “When we cease to consider what the criminal deserves and consider only what will cure him, or deter others, we have tacitly removed him from the sphere of justice altogether.”

Why? Because those second-order consequences — rehabilitation, protection of society, deterrence — are empirical, not ethical, matters. The question “Does capital punishment deter other would-be criminals?” has a statistical answer. So does the question “Do rehabilitation programs decrease rates of recidivism?” In these matters, says Lewis, “cuiquam in sua arte credendum”— we must believe the expert in his own field. If a sociologist runs a multivariate regression and finds that the death penalty has no meaningful effect on criminal behavior, the matter is settled, at least for those who believe deterrence is the only justification for executing criminals. “We demand of a deterrent not whether it is just,” Lewis wrote, “but whether it will deter.” If deterrence is what we are after, effectiveness, not justice, is our currency. What a particular offender deserves by virtue of his crime, however, is a moral question, upon which any layman is entitled to opine simply because he is “a rational animal enjoying the Natural Light.”

It is in this particular moral sense that I think Kansas’s framework, which makes it more difficult for mentally ill defendants to marshal psychiatric testimony in their own defense, falls short of a Lewisian standard of justice. Punishing mentally ill criminals in the same way we do sane ones could, plausibly, have a deterrent effect on other would-be criminals, and it could serve to incapacitate a dangerous, if ill, offender. But justice demands we view insane offenders — those who could not tell reality from unreality at the time of their offenses — not as a means to some useful end but as ends in themselves.

The Court acknowledges that Kansas law allows a defendant “to offer whatever evidence of mental health he deems relevant at sentencing.” This presumes, incorrectly, that someone without possession of his faculties can be properly “guilty” of a crime at all. An English legal treatise from 1581 — our earliest recorded recognition of insanity as a legal defense — stated that “if a madman or a natural fool, or a lunatic in the time of his lunacy” kills another person, “this is no felonious act for they cannot be said to have any understanding will.” Such men should be committed to a state hospital until they cease to be a threat to themselves or others, however long that process takes. Their crimes demonstrate that they are a danger, and their confinement to a hospital reflects that fact. Their psychosis, on the other hand, renders them morally blameless. So the hospital is what they deserve — and as C. S. Lewis demonstrates, that’s the question that matters.

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