CHAPTER X

MENTAL DISEASES AND CRIMINAL RESPONSIBILITY

The question of responsibility for criminal acts, once a legal problem pure and simple, is now recognized as involving sociological, psychological and psychiatric considerations of far-reaching importance. This viewpoint, none too thoroughly established even now, represents the progress of several centuries, and still lacks adequate recognition in law. The eloquent protest against the legal conception of mental diseases written by Isaac Ray[78] in 1838 sounds like a quotation from a recent medical journal. "In all civilized communities, ancient or modern, insanity has been regarded as exempting from the punishment of crime, and vitiating the civil acts of those who are affected with it. The only difficulty, or diversity of opinion, consists in determining who are really insane, in the meaning of the law, which has been content with merely laying down some general principles, and leaving their application to the discretion of the judicial authorities.... It is to be feared, that the principles, laid down on this subject by legal authorities, have received too much of that reverence which is naturally felt for the opinions and practices of our ancestors; and that innovations have been too much regarded, rather as the offspring of new-fangled theories, than of the steady development of medical science. In their zeal to uphold the wisdom of the past, from the fancied desecrations of reformers and theorists, the ministers of the law seem to have forgotten, that, in respect to this subject, the real dignity and respectability of their profession is better upheld, by yielding to the improvements of the times, and thankfully receiving the truth from whatever quarter it may come, than by turning away with blind obstinacy from everything that conflicts with long established maxims and decisions."

A brief reference to the history of the development of the present legal conceptions of criminal responsibility will justify the comments made by Ray. The terms idiocy, lunacy and non compos mentis were all used by Coke in his "Institutes of the Laws of England" written, as nearly as can be determined, in 1625. A differentiation between the significance of the word idiot and non compos mentis appeared as early as 1325 in the English statute "De Praerogativa Regis," which delegated various responsibilities to the crown that are recognized to this day. Sir Matthew Hale, about 1670, described a partial and a total insanity, the former not being accepted as relieving the accused of responsibility for the commitment of a crime. It is an interesting fact that we still hear the question of partial insanity seriously discussed. In 1723 Justice Tracy in a murder trial ruled that "a prisoner in order to be acquitted on the ground of insanity must be a man that is totally deprived of his understanding and memory, and doth not know what he is doing no more than an infant, than a brute or a wild beast." As a result of this ruling a man was found guilty of attempting to murder a neighbor who sent devils and imps into his house at night for the purpose of disturbing his sleep. Fortunately the sentence was commuted to life imprisonment. In 1812 the Attorney General of England[79] ruled that "a man may be deranged in his mind—his intellect may be insufficient for enabling him to conduct the common affairs of life, such as disposing of his property, or judging of the claims which his respective relations have upon him; and if he be so, the administration of the country will take his affairs into their management, and appoint to him trustees; but, at the same time, such a man is not discharged from his responsibility for criminal acts."

The legal procedure of the present day is based very largely on the decisions made at the time of the McNaughton trial in 1843. In this case the Chief Justice, as quoted by Lord Lyndhurst, addressed the following words to the jury: "The point which at last will be submitted to you will be whether or not on the whole of the evidence you have heard you are satisfied that at the time the act was committed, for the commission of which the prisoner stands charged, he had not that competent use of his understanding as not to know what he was doing with respect to the act itself—a wicked and wrong thing—whether he knew it was a wicked and a wrong thing he had done, or that he was not sensible at the time he committed this act that it was contrary to the laws of God and man." This case led to a very serious consideration of the subject in the House of Lords. As the result of an official request for an opinion, the majority of the judges of the court, all concurring but one, expressed the view that "to establish a defense on the ground of insanity, it must be clearly proved that at the time of the committing of the act the accused party was labouring under such a defect of reason, from disease of the mind, as not to know the nature and quality of the act he was doing; or if he did know it (sic) that he did not know he was doing what was wrong."[80]

The importance and significance of these decisions, which one might very readily assume to be obsolete and too ancient to be worthy of consideration, will be made clear by a quotation from the penal code in effect in New York today. "Sec. 1120 (Penal Law). Incompetency of idiot or lunatic. An act done by a person who is an idiot, imbecile, lunatic or insane is not a crime. A person cannot be tried, sentenced to any punishment or punished for a crime while he is in a state of idiocy, imbecility, lunacy or insanity so as to be incapable of understanding the proceeding or making his defense. A person is not excused from criminal liability as an idiot, imbecile, lunatic or insane person except upon proof that, at the time of committing the alleged insane act, he was laboring under such a defect of reason as 1, not to know the nature and quality of the act he was doing; or 2, not to know that the act was wrong." It will, I think, be conceded that we have, at least, not lost ground in any way since 1843.

No less interesting is the legal definition of insanity in Massachusetts: "The words 'insane person' and 'lunatic' shall include every idiot, non compos, lunatic and insane and distracted person." (Chapter 4, Sec. 7, General Laws of Massachusetts.) In New York the terms lunatic and lunacy include every kind of unsoundness of mind except idiocy. (Chapter 22, Sec. 28, Consolidated Laws.) This would presumably include psychopathic personality and imbecility.

Numerous court decisions have had a material bearing on the subject of responsibility. It has been held in New York that partial or incipient insanity is not a sufficient defense if there is still an ability to form a correct perception of the legal quality of the act and to know that it was wrong. (People vs. Taylor, 138 N. Y. 398, 407 (1893)). A weak or disordered mind is not excused from the consequences of crime. (People vs. Burgess, 153 N. Y. 561, 569 (1897)), etc. Generally speaking, the legal methods of determining criminal responsibility do not vary to any material extent with the different states. It is obvious that the responsibility for crime as defined by the courts is far from harmonizing with the conception of competency entertained by the medical profession. To the psychiatrist, if the criminal act is the result of the mental condition it constitutes a symptom of the disease process. It is readily apparent from even a very brief reference to the statutes that a person concededly suffering from paranoia, general paresis, dementia praecox or any other well-defined psychosis is still criminally liable for his insane acts within certain limitations. From a medical point of view the existence of a psychosis, if associated with a consequent judgment defect, emotional instability, disturbance of volition, intellectual deterioration, delusional and particularly persecutory control, hallucinatory trends, ideas of reference, etc., is of itself quite sufficient to explain criminal acts in the insane. This, however, as has been shown, is not the legal point of view. The accused is fully responsible unless it can be shown that he is suffering from such a defect of reason as not to appreciate the quality or nature of his act or that the act is wrong. There is no other legal standard. It is a well-known fact that many persons adjudged insane by the courts and committed to our institutions are fully competent to discriminate between right and wrong from an ethical point of view, although legally held to be incompetent and unsafe to be at large. These divergent viewpoints presumably are due to the fact that the law moves only with a degree of dignity which theoretically guarantees absolute security in avoiding any possible sources of error. It nevertheless is responsible for many miscarriages of justice.

Efforts to remedy this state of affairs have been made repeatedly by the medical profession. The American Psychiatric Association has devoted a great deal of time and attention to this subject, unfortunately without any very concrete results. The last official action taken was the unanimous approval of the following resolutions:—[81]

"Resolved: 1. That the proved rarity of wrong acquittals on the ground of insanity is the strongest evidence that the abuse of the insanity plea in criminal cases has been unwarrantably exaggerated.

"2. That the insanity plea is not by any means raised as often as it should be, to prevent the frequent miscarriage of justice arising from the conviction and imprisonment of insane persons whose true mental condition has not been recognized.

"3. That the abuses which have crept into the method of presenting medical expert testimony have been largely the result of established legal tests and procedures, although their correction does not require radical change in the laws.

"4. That inaccessibility of the evidence on both sides of the case is the chief cause of defective medical testimony.

"5. That whenever possible the medical witness should not testify unless he has had an opportunity to make both a mental and a physical examination of the person in whose behalf the plea of insanity is raised.

"6. That we consider the hypothetical question as ordinarily presented to be unscientific, misleading and dangerous to medical repute and that the evidence on both sides should always be included in its presentation to medical witnesses.

"7. That in all criminal cases absolutely equal rights should be accorded the medical witnesses for both the prosecution and the defence for the examination of the person alleged to be insane.

"8. That in our judgment the judiciary should by legal enactment be allowed more latitude in enlightening the jury and enabling it to comprehend the nature and meaning of the medical testimony laid before it.

"9. That we recommend as advisable the adoption wherever possible of the so-called Leed's method of preliminary consultation by medical witnesses on both sides of the case as to its status.

"10. That we advocate a freer use of appointments of commissions by the court.

"11. That a period of hospital observation of all persons committing crimes in whose defence the plea of insanity has been raised is by far the best method yet devised for securing impartial and accurate opinions, silencing popular clamor, avoiding prolonged and sensational trials and saving expense to the State; also that we advocate the enactment in every State of laws similar to those of Maine, New Hampshire, Vermont and Massachusetts, providing that such persons may be committed by the court to a State hospital for the insane there to remain for such time as the court may direct pending the determination of their insanity.

"12. That it is the sense of the Association that it is subversive of the dignity of the medical profession for any of its members to occupy the position of medical advisory counsel in open court and at the same time to act as expert witness in a medico-legal case.

"13. That we regard the acceptance by a physician of a fee that is contingent upon the result of a medico-legal case as not in accordance with medical ethics and derogatory to the good repute of the profession, and advocate the regulation of the practice by legislation.

"14. That we are in favor of any legislation that will secure a definite standard of qualification for medical men giving expert testimony."

An equal amount of consideration has been given to this important question from time to time by the American Institute of Criminal Law and Criminology. At a recent meeting of that organization the following recommendations were submitted by a committee:

"1. That in all cases of felony or misdemeanor punishable by a prison sentence the question of responsibility be not submitted to the jury, which will thus be called upon to determine only that the offense was committed by the defendant.

"2. That the disposition and treatment (including punishment) of all such misdemeanants and felons, i.e., the sentence imposed, be based upon a study of the individual offender by properly qualified and impartial experts cooperating with the courts.

"3. That provisions be made permitting the transfer of such misdemeanants and felons at any time after conviction from one institution to another affording a different kind of treatment upon the presentation of evidence of the needs for such action satisfactory to the court which passed sentence.

"4. That no maximum term be set to any sentence.

"5. That no parole or probation be granted without suitable psychiatric examination.

"6. That in considering applications for pardons and commutation careful attention be given to reports of qualified experts showing the applicant's mental age and mental stability and that in drafting statutes determining or defining juvenile delinquency, mental age and mental stability, within reasonable limits, be regarded as of importance with the calendar age of the delinquent.

"In view of the foregoing and as an initial step towards the ends stated, the committee submits the following resolution and urges its immediate adoption:

"Resolved, That the several states be urged to make provision for the psychiatric examination, under conditions permitting prolonged observation when necessary, of all persons convicted of a felony, misdemeanor or other offense by properly qualified experts appointed to assist the court in reaching a decision as to the proper disposition and treatment of the offender."

The courts, the medical profession and the public have shown indications of a decided dissatisfaction with existing methods of determining criminal responsibility. This will certainly continue as long as the sole test of competency is the power of the accused to discriminate between a knowledge of right and wrong at the time when the act is committed. The conditions which lead to crime have been made the subject of scientific study by many. One of the early investigators in this field was Morel, who saw in the criminal a personification "of the various degenerations of the species." Much has been said of "moral insanity," a condition referred to by Abercromby as one "in which all the upright sentiments are eliminated while the intelligence presents no disorders." Lombroso advanced the theory that criminality is a form of atavism—a reversion of man to the primitive and savage type represented by his early ancestors. This theory was based on a careful study of the anatomical, physiological and psychological characteristics of primitive man. His classification included the occasional, the emotional, the born criminal, the moral insane, and the masked epileptic. Marro offered an anatomical basis for the degenerative theory in the form of nutritional defects in the central nervous system. Ferri distinguished between criminal lunatics and emotional criminals and held crime to be "a phenomenon of complex origin and the result of biological, physical and social conditions." "Habitual criminals," he says, "are the victims of a clear, evident and common mental alienation which causes the criminal activity," while the occasional offenders are to be explained by "the impulse of opportunities more than the innate tendency that determines the crime." The emotional criminal, according to Ferri, is a sane and moral individual overcome by momentary emotional paroxysms referred to as a "psychologic storm." Garofalo, on the other hand, looked upon crime as "an offense against the fundamental altruistic sentiments of pity and probity." From his point of view a criminal act was an indication of the loss of a proper sense of appreciation of the life or property of another—a moral anomaly. The Italian school of criminology was responsible also for the theory that criminal acts are only the expression of epileptic symptoms. Sociological workers have attributed crime to influences which overcome the natural resistance of the individual, a variation from which is merely an inability of the person to conform to the laws of environment. Max Nordau sees in human failings only an abnormality which he describes as "human parasitism." Others look upon crime as the natural product of a modern social and economic system. Colajanni ascribes alcoholism, vagrancy and prostitution to poverty, but crime, he says, is "due to necessity and to the degree and kind of education received." In the light of our present knowledge the conclusion would appear to be warranted that crime is the result of constitutional defects in the form of hereditary tendencies and arrested mental development, educational defects, a deterioration of habits as shown by alcoholism, etc., accidental influences such as environment and poverty, pathological conditions, including epilepsy and insanity, and precipitating factors in the form of emotional disturbances.

Criminality, alcoholism, poverty, prostitution and mental deficiency are closely correlated. A special committee appointed by the New York State Prison Commission has made an exceedingly interesting report[82] on the relation existing between mental disease and crime. Their investigation shows that 21.8 per cent of 608 cases at Sing Sing, thirty-five per cent of 459 men at Auburn, twenty-two per cent of three hundred men at the Massachusetts State Prison, twenty-eight per cent of forty-nine women at Joliet, twenty-five per cent of seventy-six women at Auburn, twenty-three per cent of one hundred cases at the Indiana State Prison and thirty per cent of 150 examined at San Quentin were found to be mentally defective. An average of 27.5 per cent has been found in the prison population as a whole. Thirty-one and four-tenths per cent of the inmates of reformatories, training schools, workhouses and penitentiaries were found to be feebleminded. From twenty-seven to twenty-nine per cent of the inmates of penal and correctional institutions of the country were said to be defective. About thirty per cent of the population of the penal institutions for women in New York were found to be feebleminded. A study of 502 selected cases at the Psychopathic Laboratory of the Police Department of New York City in 1917 showed that fifty-eight per cent were suffering from either nervous or mental abnormalities. Of one thousand offenders examined by the medical service of the Boston Municipal Court twenty-three per cent were feebleminded, 10.4 per cent, psychopathic, 3.17 per cent, epileptic and nine per cent, mentally diseased and deteriorated; 45.6 per cent in all showed abnormal mental conditions. It has been shown that one of the most important causes of recidivism is mental deficiency. The importance of this observation may be illustrated by the fact that of 133,047 persons admitted to the penal and correctional institutions of New York state sixty per cent had served previous terms. Of 25,820 persons received at institutions in Massachusetts during one year, 57.4 per cent were recidivits. Justice Roads is responsible for the statement that of 180,000 convictions in England in one year more than ten thousand represented persons convicted upwards of twenty times previously.

The mental condition of the cases committed to the Matteawan State Hospital is of great importance in a consideration of the relation of crime to the psychoses. Of 2,595 cases admitted between 1875 and 1907 heredity or congenital defects were shown as etiological factors in eight per cent of the total number. Of 793 admissions in which more definite and reliable information was available, hereditary factors were noted in either the paternal or maternal branches of the family or both in thirty-five per cent of the cases. In addition to this, heredity was found in collateral branches in sixteen per cent. Heredity of some kind was thus shown in 51.3 per cent of the whole number studied. Of 3,247 admissions, 46.9 per cent were noted as being intemperate in their habits. An analysis of 576 unconvicted cases in 1912[83] showed that 41.4 per cent were diagnosed as dementia praecox, 21.1 per cent as alcoholic psychoses, 6.9 per cent as paranoid conditions, 4.1 per cent as epileptic psychoses, 7.1 per cent as imbecility with excitements, 2.9 per cent as manic-depressive psychoses, 2.4 per cent as general paresis, 3.1 per cent as undifferentiated depressions, 6.7 per cent as constitutional inferiority and 2.2 per cent as not insane. An analysis of 925 cases committed as insane and charged with criminal offenses attributable to their mental condition shows the more common crimes as follows:—assault (all forms), 26.2 per cent, burglary, 7.8, grand larceny, 8.2, petit larceny, 1, manslaughter, 1.4, murder, 18.9, homicide (total), 22.4, rape, 3.2, and vagrancy, 4.2 per cent.

Nolan[84] has made an analysis of 646 first admissions to Matteawan during a period of six years (1912 to 1918). Forty-eight per cent of these were found to have been born in foreign countries. A striking observation was the large proportion of male cases born in Italy (10.8 per cent) and the female cases born in Ireland (11.7 per cent). Of the various races represented it was noted that the African, which was only responsible for 3.9 per cent of the admissions to civil hospitals, constituted 7.4 per cent of the Matteawan admissions. The races having the largest representation were the Irish (18.7 per cent), the Italian (12.4 per cent) and the Hebrew (10.8 per cent). The mixed races constituted 11.3 per cent of the admissions as compared with twenty-three per cent of the cases reported from civil institutions. Among the male cases 11.4 per cent were charged with disorderly conduct and 26.47 per cent with vagrancy. Of the women, eighteen per cent were charged with disorderly conduct, 16.4 with public intoxication and 39.8 per cent with vagrancy and prostitution. These three groups represent 74.2 per cent of all of the female cases admitted. Of the 646 criminal acts causing commitment, 34.1 per cent were classified from a legal point of view as felonies and 65.9 per cent as misdemeanors. Only 5.3 per cent were charged with murder, manslaughter, etc. Of the various psychoses represented by these cases 26.9 per cent were diagnosed as dementia praecox, seventeen per cent as alcoholic psychoses, 14.7 per cent as constitutional psychopathic inferiority, 7.3 as mental deficiency, 8.3 as manic-depressive psychoses, 11.3 as general paresis, 3.6 as senile psychoses, 2.0 as paranoia or paranoid conditions, 2.2 as epileptic psychoses, and 1.4 per cent as not insane. The alcoholic, constitutionally inferior and mentally defective group constituted thirty-eight per cent of the total. Of the 165 cases diagnosed as dementia praecox it is interesting to note that eleven were charged with homicide, ten with assault in the first degree, fifteen with burglary, thirteen with petit larceny, fourteen with disorderly conduct, and sixty-six with vagrancy or prostitution. Of the seventy-four cases of general paresis thirteen were charged with petit larceny, eleven with disorderly conduct, and twenty-nine with vagrancy or prostitution. The homicides and assaults were committed principally by the alcoholic, dementia praecox, constitutionally inferior and the defective cases. The burglaries and larcenies were committed largely by patients diagnosed as suffering from general paresis, dementia praecox and constitutional psychopathic inferiority.

The type of cases received at an institution exclusively for insane convicts is naturally quite different, as shown by the admissions to the Dannemora State Hospital in New York. Of 185 admissions covering a period of three years the principal psychoses represented were dementia praecox, forty-one per cent, constitutional psychopathic inferiority, nineteen per cent, manic-depressive psychoses, eight, mental deficiency, nine, alcoholic psychoses, five, paranoid conditions, four per cent, etc.

Experience has shown that the defective criminal classes are not suitable cases for either penal institutions or hospitals for the insane. They are unable to adapt themselves to prison discipline or hospital routine and prefer to associate only with persons of their own kind who are given to foolish boasting of their crimes as their least harmful diversion. They are entirely unappreciative of any efforts made on their behalf to improve their condition or fit them in any way for the requirements of society. They are strongly inclined to unprovoked cruelty to others. Often they manifest an apparent interest in religious services, thinking it may lead to some preferment, but not for any moral reason. They are notoriously untruthful, unreliable and exhibit a low cunning which often deceives those not familiar with handling individuals of that type. Curiously enough they are exceedingly critical of others and quick to notice their shortcomings. Sexual perversions and immoral conduct are only too common. Prostitution, as has already been shown, is one of the most common failings of the female delinquent. An interesting but superficial knowledge of legal matters is noted very frequently and paraded with a remarkable degree of egotism which is difficult to understand. It is comparatively an infrequent occurrence for a prisoner to admit that he is guilty of the crime of which he has already been convicted by a court. Only a few years since, a prisoner at Sing Sing wrote the Governor of New York suggesting that his release was indicated as a moral procedure for the good of the institution, as he was convinced from information obtained from others that he was the only guilty man in the establishment. The habitual criminal takes little, if any, interest in his own relatives or family except when he is in confinement, and feels no home ties. There is a curious lack of appreciation for the gravity of his own offense and he always complains of a "frame up" and asserts that he has not had a square deal. Homicides even are always explained in an attempt to show that they were justifiable or unavoidable. The most vicious of assaults are often committed on their fellow prisoners without any provocation of consequence. Experience shows that as a rule they are incapable of any sustained effort and accomplish little or nothing when left to themselves. Tendencies to crime show not only a marked suggestibility but a degree of impulsiveness and a lack of self control which is highly significant.

Another type of institution for this special group of cases is strongly indicated. They should be held under an indeterminate sentence and in some instances committed for life. As a result of hereditary defects, arrested mental development, ignorance and vicious tendencies this class furnishes the prisons with our most dangerous criminals. They should receive separate care, with an opportunity for a special education adapted to their individual needs. The defective classes have for centuries been held criminally responsible and have filled our prisons with incorrigibles and recidivists. Modern civilization should place at our disposal some means for remedying this situation other than mere punishment for the possession of an intellectual endowment for which these individuals are in no way responsible. The ends of justice can be served and the protection of the public assured at the same time by a form of medical treatment for the defective delinquent which will look forward to his ultimate restoration to society rather than a form of punishment which accomplishes nothing.