Origins of the Test

Origins of the Test

Each distinctive choice in § 4.01(1) answers a weakness in one of the three rules that were competing for acceptance when the American Law Institute drafted it, so the history is easiest to follow with those rules in view. The M'Naghten rule is a cognitive test: it asks whether a mental disorder left the defendant unable to understand what the act was or that it was wrong. Some jurisdictions added the irresistible-impulse test for the defendant who understood the act but could not control it.¹ The third rule was the Durham product test, under which a defendant is not criminally responsible if the unlawful act was the product of a mental disease or defect.² Those rules matter here only as background, and the Code's reaction to each is taken in the order the drafters made it, beginning with Durham.

The drafters turned Durham down even though their own psychiatric advisory committee had recommended adopting it.³ Their objection was that the word product is ambiguous. A jury told to decide whether a crime was the product of a disease receives no instruction about how close a connection is enough, so the working content of the standard comes from the experts who testify about it. A federal appellate court that adopted the Code test in Freeman described what followed. When the staff of the single hospital that supplied most of the psychiatric witnesses in the District of Columbia reclassified psychopathic personality as a mental disease, juries were abruptly told that defendants once treated as responsible were now to be acquitted.⁴ A test that rises and falls on the labels psychiatrists choose leaves the court no room for its own legal and social judgment about who should be condemned. The Code therefore dropped the question whether the crime was a product of disease and asked instead what effect the disease had on the defendant's capacity to understand and to control conduct.⁵

What the drafters kept from the older tests was their targets. The Code treats impairment of understanding and impairment of self-control as two separate capacities, and both must be accounted for if the law is to separate those who cannot be deterred from those who can.⁶ Deterrence works only on a person who can grasp that an act is forbidden and can hold back from it. A person who, in the grip of a delusion, believes he is squeezing lemons when he is choking his wife cannot receive the message the criminal law sends, and neither can a person who grasps the message but whose disorder overrides the ability to act on it.⁷ A test confined to cognition would excuse the first and convict the second, though both are equally beyond the law's reach. Section 4.01 therefore joins the two inquiries as alternatives, so that a defendant is relieved of responsibility if the disorder substantially impaired either capacity and need not show both.⁸

Having kept both inquiries, the drafters loosened each of them. The first change replaced know with appreciate. Knowledge can be satisfied by a detached, abstract awareness, such as a defendant's ability to recite that the act is forbidden, even though that awareness never reaches the level of feeling or conviction.⁹ Appreciate conveys a broader sense of understanding than simple cognition, so a defendant whose disorder emptied that knowledge of its meaning may lack the capacity the Code requires.¹⁰ It follows that expert testimony about the emotional, or affective, side of the defendant's personality bears directly on the first prong. The volitional prong likewise speaks of capacity to conform conduct to the law. That wording avoids the implication, often drawn from the irresistible-impulse label, that lost self-control shows itself only in sudden, spontaneous acts and never in conduct accompanied by brooding or reflection.¹¹

The second loosening was to require that the defendant lack only substantial capacity, which the drafters regarded as the Code's most significant alteration of the prevailing tests.¹² The reason lies in how mental disorder presents clinically: disorientation can be extreme without being total, and clinical experience resembles a graded scale far more than an on-off switch. A rule demanding total incapacity of understanding confines the expert to the narrow question whether the defendant was deluded in a way that would have made the act lawful had the delusion been true, and a rule demanding total incapacity of control imposes a similarly unrealistic limit.¹³ Asking about substantial capacity lets the examiner address the extent of the defendant's awareness, understanding, and control. The drafters defined substantial as a capacity of appreciable magnitude by the standard of humanity in general, as opposed to the fragmentary, trivial remnant left by the most severe afflictions of the mind.¹⁴ They conceded that the word names no exact degree and concluded that greater precision was impossible, leaving the jury with a question of degree of the kind it already answers when it decides recklessness and negligence.¹⁵ The standard thus sits between the older tests, which were generally read to require a total lack of capacity, and Durham, which could be read to require only slight impairment.¹⁶

The practical difference appears in Blake v. United States, where the Fifth Circuit adopted the Code test and reversed the bank-robbery conviction of a man whose adult life had been one long round of psychiatric confinement.¹⁷ The evidence could have shown either schizophrenia or only a sociopathic personality, and Blake was neither unconscious, nor unable to tell right from wrong, nor stripped of will in the absolute sense. He could not have prevailed under a charge demanding complete disorientation, but a charge asking about substantial lack of capacity left the question to the jury.¹⁸

The contrast shows where the Code places its threshold. Some incapacity of any size is insufficient, and total incapacity is unnecessary.¹⁹

The Code's formula was widely adopted at first. Virtually all of the federal courts of appeals took it up, sometimes with minor variations.²¹ The court in Freeman called it the soundest test yet formulated, and the D.C. Circuit, which had created the Durham rule, abandoned that rule in Brawner in favor of the Code approach.²² Adoption was often selective. In United States v. Currens a court of appeals used only the portion of the test addressed to capacity to conform conduct to the law, reasoning that the appreciation prong gives too much weight to cognition.²³

That consensus broke after John Hinckley was acquitted by reason of insanity for shooting President Reagan, a trial in which the jury was instructed under the Code's formula.²⁴ Public reaction was sharply negative, and Congress, which had never before legislated on the defense, responded by enacting the Insanity Defense Reform Act of 1984. The federal defense now requires a severe mental disease or defect that leaves the defendant unable to appreciate the nature and quality or the wrongfulness of the acts, so the volitional prong is gone.²⁵ The Fifth Circuit, which had adopted the Code test in Blake, later withdrew its recognition of the volitional prong in United States v. Lyons, observing that its earlier conclusion about the state of behavioral science had proved premature.²⁶ Many states responded to the Hinckley verdict in the same way, most returning to M'Naghten-type rules.²⁷

A significant minority of states nonetheless kept the Code test, usually by statute and sometimes by court decision.²⁸ When the Supreme Court surveyed American insanity standards in Clark v. Arizona, it counted fourteen jurisdictions inspired by the Code, in which a defendant is excused by satisfying either a volitional branch or a moral-incapacity branch, generally by showing a substantial lack of capacity.²⁹ The same opinion concluded that due process imposes no single canonical formulation of legal insanity, which is why the states remain free to mix the pieces.³⁰ New York shows the result. It kept a M'Naghten-style cognitive inquiry but borrowed the Code's concept of substantiality, asking whether the defendant lacked substantial capacity to know or appreciate either the nature and consequence of the conduct or that the conduct was wrong.³¹ Because the Code's formula appears in modified forms, an exam question calls for checking which pieces the stated jurisdiction has adopted: whether it demands substantial or total incapacity, whether it says know or appreciate, and whether it includes a volitional prong at all.