writing a response

CHAPTER 20

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CRIMINAL

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SIMON WILSON

GWEN ADSHEAD

Tms chapter examines the relationship between criminal responsibility and m ental

disorders. Other legal excuses, such as mistake, self-defense, and dur�ss, _ are not ex­

plored here. The broader notion of moral responsibility, of which cn�ma_ I

_ respon­

sibility is perhaps a subclass, is also not discussed. We _ have a po�erful m�u1hon th�t

the insane, among others, are sometimes not responsible for their behav10r. Psyc hi­

atrists have been involved in assisting the courts in making determinations of w ho

is and who is not "criminally responsible" for their actions since the trial of Had field

in i8oo (Green et al. 1991). What "criminal responsibility" might mean _ and how '.t

might be measured has caused a good deal of discussion among ps�ch1atnsts, p�1- losophers, and lawyers. There is general agreement that the term is pro�lemahc.

There is not general agreement on the source of the proble�." _ We begm by re­

viewing the legal evolution of the concepts of criminal respons1b1hty and mental e x-

cuses.

CRIMINAL RESPONSIBILITY 297

LEGAL EVOLUTION OF CRIMINAL RESPONSIBILITY

Aristotle, in the Nicomachean Ethics (Elliott 1996), recognized two classes of invol­ untary actions: those that stemmed from ignorance (not knowing what one was doing) and those that stemmed from compulsion (knowing what one was doing but being unable to help it). This was the root of the complicated legal concept of criminal responsibility, and the medical defenses of insanity and diminished responsibility.

Mens rea

Henri de Bradon, a thirteenth-century legal scribe to Henry II, made the first refer­ ence to the requirement for a "guilty mind" in committing a criminal offense (Green et al. 1991). The law requires both a "guilty act" (actus reus) and a "guilty mind" (mens rea) for most criminal offenses, and so mental problems may affect the "guilt­ iness" of one's mind and hence the criminality of one's conduct. Some jurisdictions explicitly codify different sorts of mens rea, forming a hierarchy of degrees of cul­ pability. The American Model Penal Code of 1962 describes four such degrees of mens rea (Section 2.02(2)): purposely -the actor intends a harmful outcome; know­ ingly-the actor knows harm is very likely but proceeds anyway; recklessly-the actor consciously disregards a substantial and unjustifiable risk; and negligently -the actor is unaware, but ought to be, of a substantial and unjustifiable risk.

English common law makes similar distinctions, although they are not so ex­ plicitly codified (Smith 1999). We might view these degrees of mens rea as translating into a hierarchy of criminal responsibility-a person being more responsible for an act clone purposely than for one clone negligently. Certainly the degree of blame and severity of punishment are closely linked, whereas the legal mechanisms for excusing the mentally disordered are not found in this hierarchy. The law treats the mentally disordered as being irrational.

Actus reus

In rare cases, where one behaves unconsciously (for example, following a head in­ jury), the law considers that no actus reus has occurred, and the accused is acquitted on the grounds of automatism.1 The law assumes that one cannot perform actions unconsciously, and this stance is reminiscent of the philosophers' distinctions be­ tween actions and mere bodily movements (White 1968).

298 NORMS, VALUES, AND ETHICS

Insanity

This is not the place to review the history of the insanity defense in detail (see Hamilton 1986). Legal insanity has largely been seen as a cognitive matter, concern­ ing reason, or rather lack of reason, and this should be seen in the co�text ?f the traditional legal view that reason controls behavior (Bowden 1983). The msamty de­ fense was codified by the M'Naghten Rules of i843, which require, for insanity, that "at the time of committing the act, the party accused was laboring 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 that he did not know that what he was doing was wrong." This remains the test of insanity in Englis� law,_ a�d �t �orms the basis of insanity defenses in many or most other Anglo-Amencan 1unsd1chons. Psy­ chiatrists have been unhappy with the strict and narrowly cognitive definition of criminal irresponsibility of the M'Naghten Rules, which are rarely met by even the most psychotic of defendants (Mackay 1995). Philosophers have tended to be more satisfied with this definition, though (Kenny 1986; Gendin i973).

At other times in its history, insanity was seen as a status (like being a child), rather than an excuse (Mackay 1995). And, at other times and places, causation has been seen as key to insanity. Lord Denman, in R v. Oxford (1840), stated that "a person may commit a criminal act and not be responsible. If some _contributory disease was in truth the acting power within him, which he could not resist, he would not be responsible" (cited in Green et al. i991). The American Durham Rule excused conduct caused by mental disease: "an accused is not criminally responsible if his unlawful act was the product of mental disease or mental defect" (Durham v. United States D.C. Cir. 1954). Causation has been dismissed as the "fundamental psycholegal error" (Morse 1999). Such definitions of insanity seem perilously deterministic, as though, simply because behavior is caused, it should be excused. Irrationality is what matters, Morse (1999) argues. However, pace Morse, causation is not totally beside the point, as illustrated by an example from Kenny (1986) of an academic who is suffering from paranoid delusions that his colleagues are persecuting him and who decides to poison his mother-in-law to inherit her fortune. It is hard to see why one set of crazy beliefs that make him irrational should excuse an apparently calculated motive.

Diminished Responsibility

Diminished responsibility was introduced into English law by the Homicide Act of 1957. It was already well established in Scotland and had been since the case of Dingwell in 1867 (Green et al. 1991). Section 2 of the 1957 act states: "Where a person kills . . . he shall not be convicted of murder if he was suffering from such an abnor­ mality of mind (whether arising from a condition of arrested or retarded development

CRIMINAL RESPONSIBILITY 299

of mind or any inherent cause or induced by disease or injury) as substantially im­ paired his mental responsibility for his acts." This is a partial defense to a charge of murder, reducing the crime to manslaughter if successful. The wording of this act has caused considerable difficulties for psychiatrists. Strictly speaking, the psychiatric expert is supposed to confine his testimony to the issue of "abnormality of mind," the question of "substantial impairment of mental responsibility" being the ultimate issue and therefore a matter for the jury, not the expert.2 It has not worked like this in practice, however, with psychiatrists frequently being pressed to address the ulti­ mate issue (e.g., Masters 1985). Walker (1968) has suggested that diminished respon­ sibility brought together a number of diverse mental states that had previously been excused under the pretext that they "do have something in common -an impairment of some mental faculty which is called 'responsibility' " (152). Griew gives this idea short shrift:

One distinguished psychiatrist recently remarked to me: "I don't think we know very much about mental responsibility." He had, I believe, been seduced into thinking that this was a meaningful remark by long experience of being invited, as an expert, to opine about the state of a defendant's "mental responsibility" -as though it were indeed a specific faculty. My answer should have been: tell me what would count as "knowledge about" mental responsibility, so that it might en­ able you to give more authoritative evidence to the effect that it was substantially impaired; what exactly is it about which you seek knowledge? (1986: 19)

Griew believes that impaired "mental responsibility" (and, by extension, criminal responsibility) really contains two ideas: that of diminished liability (a legal conclu­ sion) due to reduced culpability (a moral conclusion). Psychiatry has nothing to say about these matters.

CRIMINAL RESPONSIBILITY

What then of criminal responsibility? Morse provides a definition by exclusion of criminal responsibility that assigns criminal responsibility to a defendant "if the state can prove beyond a reasonable doubt that the defendant's behavior satisfied the def­ initional 'elements' (criteria) of the crime charged and no affirmative defense of justification or excuse can be established" (1999: 148). So one is criminally responsible if one has behaved in a way defined by the state as criminal, and without any state­ sanctioned excuse for doing so. But why should the state sanction certain excuses? And why is madness so universally seen as exculpating?

We are back to our initial, powerful intuition that some people are more re­ sponsible for their behavior than others. But we have also seen something of the criticisms of the notion of "mental responsibility" in the 1957 English Homicide Act

300 NORMS, VALUES, AND ETHICS

and the suggestion that the concept is confused with ideas about blame and punish­ ment rather than being a separate, objectively identifiable condition that might have consequences in terms of blame and punishment.

Thought Experiments

Let us start with our intuitions and a thought experiment. Consider Jane, who often calls the red-haired John, whom she barely knows, "You red-headed bastard wanker." We are shocked. When we learn that Jane suffers from Tourette's syndrome,3 that seems to make all the difference. We believe that Jane is less responsible for, and has less choice about, her actions than if she were simply someone who is habitually rude. Furthermore, let us stipulate that Jane and John are living in a society where using profane language is a criminal offense. We would, I believe, consider Tourette's syndrome an excuse from a conviction for using profane words, an insanity defense, perhaps. Rudeness seems less likely to afford such a defense. So there is a difference between Tourette's Jane (T-Jane) and rude Jane (R-Jane).

The contrast between T-Jane and R-Jane provides useful insights into our intu­ itions about criminal responsibility. Although it has the advantage of being simple, it is a poor and atypical example of a mentally disordered defendant. This is a weakness-of-thought experiment, and it would be more helpful to have a back-up real-life example for more detailed analysis.4 Let us also bear in mind, therefore, the case of Mr. M. Mr. M is a man in his 30s with an unremarkable upbringing and no previous violent behavior. Over the past few months, his behavior has altered; he is disheveled, talks to himself, and is late for work. He kills a coworker by cutting her throat. When asked about this, he gives a rambling and difficult-to-follow account of believing that his victim was controlling his mind. He had come to know that she had been using drugs to increase her "brain power" and was able to cause his heart to skip a beat, and she could make light bulbs stop working. He suspected she might be a Romanian spy and was convinced she was evil. He went to work early one morning in order to kill her. He does not regret his actions and instead has been rather surprised not to be offered some kind of reward. Mr. M is found guilty of manslaughter on the grounds of diminished responsibility.

There are two extreme positions in considering these cases and criminal respon­ sibility: what we shall call a "realist" approach and an "antirealist" approach. Finally we explore the "psychiatric/pragmatic approach."

Realist Approach

There is something called "criminal responsibility," and it is this that distinguishes T-Jane from R-Jane and Mr. M from a sane killer. The difference between T-Jane

CRIMINAL RESPONSIBILITY 301

and R-Jane is something to do with their responsibility for their verbal behavior- T­ Jane has much greater difficulty controlling her verbal behavior than R-Jane. T-Jane's profane utterances may not even be actions of hers, being more like tics than pur­ poseful actions, although the fact that the content of the utterances does contain some accurate information about her surroundings might seem curious in this case. In other words, R-Jane is more responsible for her verbal behavior than T-Jane. R­ Jane has free will and can choose how to behave. T-Jane's behavior is determined and beyond her control.

This is beginning to touch on the confusing issues of free will and determinism (Williams 1980; Hospers 1990). Both free will and determinism struggle with the question "How can any of us be responsible for our actions?" For determinists, an actor is merely one part of a long causal chain stretching back to the beginning of the universe. For the free-will supporter, there must be uncaused events originating within the actor that cause actions: How can the actor be responsible for uncaused events? We have a powerful sense of our own ability to freely choose our behavior, and this is the common-sense view of the law. Nineteenth-century psychiatrists, such as Esquirol, believed that some psychiatric disorders disabled one's volition and hence one's responsibility (Smith 1979). Foucault (1978) has demonstrated the ridiculous circularity of some of these conditions, such as homicidal monomania, which were evident only in terms of a criminal act. Confused thinking about the nature of de­ terminism and free will reached its acme in a form of hard determinism whereby all criminal behavior was viewed as fair game for psychiatry (e.g., Hubert and East 1939). Hard determinism leads to the view that no one is responsible for his behavior, and so we have lost our initial intuition that some people (such as the mentally ill) are less responsible than others. The determinism of psychiatry contrasted with the free­ will position of the law has led Stone to assert that there is a "contradiction between the law's enduring free-will theory or morality of action and psychiatry's deterministic theory of causes" (1978: 656). This is probably confused thinking. Although we in­ tuitively believe there is something different between T-Jane and R-Jane, we cannot simply be determinists when thinking about T-Jane and free-will supporters when thinking about R-Jane. Either all our behavior is determined or none of it is. We need to be able to distinguish between T-Jane and R-Jane from within the same model. We also need a model that allows people to behave badly without automat­ ically and circularly labeling them as mad.

The metaphysical approach seems to suggest that there is a difference between T-Jane's brain and R-Jane's brain, and that that something is "mental responsibility." This view has to answer Criew's (1986) criticism that the notion of "mental respon­ sibility" has become a piece of mental machinery. There are different approaches to this. Some would argue that T-Jane has a disorder of will; she is unable to control her behavior because of a damaged will. For example, Robinson (2001) has argued that the law requires two assumptions: nomological indeterminacy (things could have been otherwise) and agentic power (people have control over things). T-Jane has a lack of agentic power and hence a legal excuse. This does not really deal with Griew's objections; "mental responsibility" is simply replaced by a fancier-sounding term,

302 NORMS, VALUES, AND ETHICS

"agentic power," which is really Aristotle's excuse of compulsion rehashed: "I knew what I was doing, but I couldn't help it." This might be a good representation of T­ Jane's situation-an irresistible impulse to utter profanities. The law, though, has been reluctant to admit such a defense on the grounds that the difference between "I couldn't resist" and "I didn't resist," while making all the difference to the law, may be impossible to determine empirically (as with Lord Parker in the case of Byrne (R v. Byrne (196o) 2 QB 396, 44; Cr App R 246).

There is a weakness in the thought experiment because T-Jane is an unusual mentally disordered defendant, compared to Mr. M. Did Mr. M have a disorder of will? This seems much less likely: he was able to choose to follow a particular course of action - namely, killing his victim - and to carry it out. There was nothing robotic or coerced about his actions. He intended to kill his victim and then did it. Morse has argued that the problem lies not with the will but with practical reasoning. He states, "mental disorder may compromise rationality because its signs and symptoms can give people crazy reasons for action that are not susceptible to correction by reason" (1999: 148). This seems to fit Mr. M's case better: he is partially excused because his actions are motivated by crazy reasons that are untouched by evidence to the contrary. We are still left with the original problem, though. Why should crazy reasons excuse when rational ones do not? Morse argues that irrationality may be used as an excuse insofar as it impairs a person's ability to properly follow the law.

Yet another way of viewing the difference between T-Jane and R-Jane is in terms of explanations. T-Jane's behavior is better accounted for by a mechanistic explana­ tion, in terms of disordered brain circuitry, whereas R-Jane's behavior is better ex­ plained by her intentions and reasons. Dennett (1967) has called these two types of explanations the "physical stance" and the "intentional stance," respectively. T-Jane is diseased and broken, and so a physicak explanation may work better. R-Jane is functioning normally but behaving badly. This manner of describing the ill and the diseased differently may date back to the medical psychologists of the nineteenth century (Smith 1979). T-Jane is mad; R-Jane is bad. This is a peculiarly enduring dichotomy, and one that is not especially helpful in the real world. Is Mr. M mad or bad? He is certainly mad, but then other mad people with similar beliefs may not have chosen to kill. Why did he not move far away from the victim? Why did he not tell the police what she was doing to him? A "physical stance" explanation does not seem to work well with Mr. M; it is easier to explain his behavior by referring to his (mad) beliefs and desires.

Antirealist Approach

There is no "criminal responsibility," or if there is we don't need to rely on it-this is the antirealist line. The difference between T-Jane and R-Jane, and between Mr. M and a sane killer, is that we believe both T-Jane and Mr. M should be exempt from punishment and blame. Criminal responsibility is simply an ex post facto ar-

CRIMINAL RESPONSIBILITY 303

gument to bolster our initial intuitions about who should be punished and who should be treated. There is nothing fundamentally different inside T-Jane and R-Jane; what distinguishes them is our beliefs about what should happen to them. Hart (1968) has stated that "for criminal responsibility there must be 'moral culpability,' " so Mr. M is less morally culpable than a killer without crazy reasons, and T-Jane is less morally culpable than R-Jane. Culpability (i.e., blaming and punishing) is what mat­ ters, not "responsibility." This view is given weight by, for example, Swedish law, according to which insanity is not an excuse (does not affect "criminal responsibility") but merely alters disposal (treatment rather than punishment; Felthous 1999). This view is also given weight by Green et al.'s (1991) assertion that criminal responsibility has lost its importance to a large extent in English law since the advent of the Mental Health Act of 1959, which enabled offenders convicted of offenses (other than mur­ der) to receive a hospital disposal, regardless of their degree of "responsibility" for the offense. Such legislation does not exist in America, and hence the American preoc­ cupation with "criminal responsibility," they argue.

Bayles (1982) has argued for three general philosophical approaches to blaming and excusing. The first is Bentham's utilitarian approach, where one excuses those for whom punishment would be inefficacious. Critics have objected to this on the grounds that the advantages of the general deterrence of others by punishing an individual might eliminate excuses. The second is Kant's influential view that one must excuse those who could not have avoided performing a criminal act and punish only those who had the capacity and a fair opportunity, to conform their behavior to the law.5 The third is Hume's view, which holds that blame and punishment are not for acts but for character traits, so that those who act out of character are excused (this is reminiscent of Foucault's [ 1978] comments about changes to the law in the nineteenth century). Gillett (1991) has also argued along similar lines, suggesting that we are interested in people's intentions for their behavior because intentions have to do with character and, hence, blameworthiness. This approach seems to fit with Mr. M, who is clearly mentally ill and has behaved out of character. He needs treatment and not punishment. What about T-Jane, though? She, just as much as R-Jane, is forever going around uttering profanities, and so on a Humean view we should punish her just as rigorously as R-Jane. The Kantian approach would rescue her because T­ Jane could not have avoided uttering profanities unlike R-Jane.

An alternative antirealist solution to the problem of criminal responsibility is a radical behaviorism-type approach, where one does away with "criminal responsibil­ ity" by confining one's talk to observable behaviors. Miller (1979) argues that much of the problem with talk of "criminal responsibility" is a category mistake. Mental illnesses are discussed as though they are the sorts of things that can cause criminal behaviors. Miller argues that mental illness is simply shorthand for a constellation of behaviors: "It is not that some occult entity, mental illness, affects a person's actions, it is that a person's actions is [sic) his mental illness." Miller calls this an "anthro­ pomorphic error," meaning that mental illnesses are reified and are thus transformed from shorthand (i.e., "schizophrenia" is the name given to odd verbal and physical behaviors of a particular sort) into things. Things can then be causally efficacious.

304 NORMS, VALUES, AND ETHICS

There is clearly something to this argument, although it is also reminiscent of the

radical behaviorism of the 1950s, which attempted to do away with mental states

altogether for the good of the science of psychology. Miller's point tha_ t mental

_ ill­

nesses are descriptions, not things, and therefore are not capable of causmg anythmg

is well taken. However, it is also beside the point, according to Morse (1999). Cau­

sation is irrelevant to excusing. All behavior is caused, so to argue that one is excused

because one's behavior was caused rather than chosen freely is "the fundamental

psycholegal error," in Morse's language. This is returning to the free will and deter-

minism arguments explored earlier. . . Yet another antirealist approach is to view responsibility, blammg, and punish­

ment as all socially constructed. Backlar (1998) asks where blame should properly lie

when a psychiatric patient acts criminally: with society, with the �atient for not tak�ng his medication (see also Mitchell i999), with the family, or with the commumty?

Miller (1979), too, states th�t "it is conceivable for the law to decide that the accused

is not criminally responsible because he is poor and sick and comes from a broken

home." In other words, it may not be too much of a leap to imagine a society where

these sorts of things are seen as just as exculpatory as mental diseases.

Psychiatric/Pragmatic Approach

Psychiatrists identify and describe abnormal mental states _in_ the same way �hat �hy­

sicians identify and describe abnormal physical states. This 1s the standard medical

model" of psychiatry, most trenchantly criticized by Szasz (1974). A p�rticul�r crit�­ cism for Szasz arises in relation to criminal responsibility. Since medieval times, it

has been assumed that abnormal mental states affect criminal responsibility by re­

ducing it. If this is correct, then abnormal mental states can do this (a) by �es�ricting

the capacity to make intentions that others hold blameworthy,_ (b) by restnctm_ g the

capacity to be autonomous more generally, and (c) by restnctmg the capacity to

reason morally. In English courts, psychiatrists are therefore invited to give an opinion on

whether a "mental abnormality" or "disease of the mind" is present; then they may

be invited to give an opinion on how that affected the defendant's criminal intent.

As we have seen, for an insanity defense to be successful, the psychiatrists must

connect a mental disease with failure to know or appreciate certain information about

the intention. For diminished responsibility (in British law), there must be an "ab-

normality of mind" that "substantially impaired" the defendant's responsibility. . How do psychiatrists relate their diagnostic identification of mental abnormality

to responsibility? There are many conceptual difficulties. First, there is no agreed

definition of what it is to be criminally responsible: that is, what mental capacities

might be necessary. Further, even if a checklist of capacity cri_ teria

_ could be ?rawn

up, the courts, in their role as social commentator, might still wish to retam the

CRIMINAL RESPONSIBILITY 305

ultimate privilege of determining who is responsible for a defendant's actions, rather than deputing this to medical doctors.

How do psychiatrists decide what is "abnormal" in relation to criminal behavior? In the case of Byrne, abnormality of mind was defined as "a state of mind so abnormal that the reasonable man would term it so" -which rather suggests that this apparently diagnostic question could also be left to the jury. What is also not clear is whether the abnormality is related to the individual in question (i.e., is it out of character for him?) or whether it is a social abnormality (i.e., does it break group norms?). A focus on an individual's abnormality raises a conventional medical question; a focus on group norms makes the question more moral: What sort of behavior, although statis­ tically abnormal, is not acceptable to the group? This question itself is not so simple; social groups set different thresholds for responsibility for different types of criminal action (as can be seen in the different legal approaches to intention/mens rea).

Even if psychiatrists can agree on what constitutes "abnormality," it is not clear how these abnormalities affect moral reasoning. A dichotomous approach (normal/ abnormal) may not do justice to the psychological complexity of forming intentions. In this sense, the adversarial process of Anglo-American criminal law is inimical to the diagnostic process of psychiatry (Eastman i992).

It is also not clear that psychiatric explanations for criminal behavior are suffi­ ciently robust. There have been many and varied criticisms of the M'Naghten test of insanity (e.g., Reznek 1997), not least because it fails to address the most common pathological effects that the mentally ill experience. Some have argued that it is too cognitively based: that moral reasoning is not just a matter of "knowing" things but also involves feeling things. The pathology of action found in mental illnesses rarely involves a state in which one is not conscious of what is being done; rather, it is the interpretation and genesis of the action that gives it its symptomatic quality (Fulford 1989). Returning to Mr. M, one might argue that his practical reasoning is at fault, the way that he weighs up different kinds of evidence and makes a choice (Fulford 1996). Mr. M might prefer to argue that his delusions excuse him because he feels compelled by them, or that his delusions mislead him into error and ignorance of the true situation - both classic Aristotelian excuses.

It is not clear to what extent various psychiatric symptoms do, in fact, result in a sense of compulsion or the experience of ignorance. Individuals with impulse con­ trol disorders (DSM-IV-TR) are said to "fail to resist"; but, indeed, the most successful treatment for some compulsions involves "response prevention" -simply telling the person not to do it. The most successful treatment for addiction involves simply getting support for not taking the desired substance. Individuals with command hal­ lucinations obey their "voices" in only 50 percent of cases. Finally, individuals who have committed actions of which they later feel ashamed seek to distance themselves from ownership of their actions: "It wasn't me, it was my illness." Psychological therapy with offenders often involves helping patients come to terms with the fact that they did make such a choice (Cox 1991).

If we now think about error and ignorance, then delusions do provide the sufferer

306 NORMS, VALUES, AND ETHICS

with a false picture of the world on which to base important decisions. However, there are still a number of difficulties with the argument that the presence of delu­ sions could provide the basis for reduced responsibility. First, there is a question

_ of

the strength of the belief. Although a delusion is classically defined as a fixed behef that is not amenable to rational argument or evidence to the contrary, recent research into therapy for delusions suggests that cognitive therapy, which uses rational argu­ ment, can help individuals reduce their certainty about their delusions (e.g., Garety and Freeman 1999), which seems contradictory. Second, patients do not always hold their beliefs with complete absolute tenacity but, like many ordinary people, seem sometimes to waver in their beliefs. Third, the presence of delusions does not nec­ essarily reduce capacity to make treatment decisions or decisions to participate

. in

research. Does the decision to commit a crime require a higher degree of capacity, and on what grounds?

Buchanan (2000) suggests that psychiatric evidence excuses insofar as it provides a medical explanation for a "bad" choice (choice theory) or explains a defendant's choice in terms of his character (character theory). He goes on to explore the strengths and weaknesses of each position and concludes that psychiatry probably has more evidence to adduce about choice making than about character. However, Buchanan notes four problems: ( 1) mental faculties are affected relatively, not absolutely, by mental disorders; (2) mental faculties affect one another and are interconnected­ beliefs affect feelings, which affect beliefs; (3) some mental state changes are under conscious control, or at least some degree of control, which may fluctuate over short periods of time; and (4) relatively minor impairments may have large effects, psycho­ logically.

Character theory is of interest, insofar as it is relevant to the defense of provo­ cation. In British law, the character of the accused is relevant to whether it was reasonable for him to be provoked by the actions of the victim. Recent legal argu­ ments have examined the extent to which psychiatric disorders could be part of the character of the accused (e.g., R v. Smith (Morgan)).

Character theory might also be relevant to the vexed question of the extent t? which having an abnormal personality might excuse responsibility. For example, it is well known that people with personality disorders often offend against others be­ cause they lack empathy. This lack of empathy is (probably) the result of an inter­ action of acquired brain damage at birth and abusive parental care. We also know that normal people can, as it were, "switch" empathy "on and off." Here again are the familiar questions: Is a lack of empathy the kind of thing that should excuse responsibility, and if so, does it matter how one came to lack it?

Some psychiatrists have sought to limit their evidence to "brain" rather than "mind" disorder, suggesting that only psychiatric conditions that have an organic basis can excuse responsibility and, by extension, that where there is brain disease, there will also be mind disorder. Fulford (1996) discusses the metaphysical limits of this argument, suggesting that the subjective experience of illness is an important _aspect of experience. Because this subjectivity distinguishes pathology from health, it �ay therefore also be relevant to the diagnostic process. Arguments based on the bram/

CRIMINAL RESPONSIBILITY 307

mind distinction also do not deal with the question of whether the presence of a brain tumor that gives rise to odd decisions should excuse those decisions, if they are morally and legally wrong, any more than any other mental condition that gives rise to similar decisions.

Forensic psychiatrists, in the pursuit of objectivity, may look at previous records of illness or behavior (especially crime) in attributing exculpating mental illness. But, again, in the context of a criminal charge, it may prove difficult to avoid hindsight bias. The psychiatrist may also be influenced by previous knowledge of the accused, or by the charges, or by the legal bodies that instruct him. Even though he strives for "objectivity," which is the province of the "expert," there may be so many com­ peting accounts of the accused that no single "objective" truth may exist. The ad­ versarial legal system assumes that there are different accounts of the truth, and the court will decide for the account that is best argued on the day. This approach to establishing "truth" is very different from the traditional empirical method with which psychiatric experts are familiar in research or the diagnostic processes that they use clinically.

It is also not clear that current approaches to diagnosis are sufficiently subtle in terms of relating mental illness to intention. This is particularly clear in relation to the distinctions often made between mental illness and personality disorder. Persons with mental illnesses are seen as "having" a disease, which in a sense possesses their brain/mind and controls their behavior in a global way. Persons with personality disorder are seen as "being" personality disordered; their behavior is a function of their identity and character and is therefore to some extent chosen and identified with by them. Toombs (1995) discusses the impact of chronic illness and disability on personal identity and argues that doctors do not always appreciate how patients with disabilities experience themselves not as having disorders but as being disabled.

The distinction between mental illness and personality disorder commonly made by mental health professionals may also be understood in terms of "illness behavior" (Mechanic 1978). Mental disorders like schizophrenia fit the model better: nobody would want to be schizophrenic, and patients with the illness want to get better. Even a lack of insight ("there's nothing wrong with me") may be understood as a symptom. Personality disorder, however, fits the model much less well. Persons with a person­ ality disorder appear not to think they have a problem except with other people. They may not see themselves as "ill," in the conventional psychiatric sense, but still present themselves as needing "help." They may also ask for help in difficult ways and not comply with advice that the professionals think will make them feel better.

It has to be said that mental health professionals do not necessarily apply their thinking about mental illness and responsibility in consistent ways. Those profession­ als who work with patients with histories of violence are often engaged in day-to-day judgments about moral responsibility and the capacity of the patient to "choose" to behave well or badly. A patient with schizophrenia who has been excused his offenses on the grounds of his mental illness may still be held responsible for "bad" behavior on the ward on the grounds that "he knew exactly what he was doing" - which is one limb of the insanity defense.

NORMS, VALUES, AND ETHICS

One of the obvious difficulties in psychiatric testimony about responsibility is that it is just one narrative in a complex set of narratives, each with its own moral implications. Furthermore, often the psychiatrist has to rely heavily on what is said to him by the accused, whose narratives are likely to vary over time and by context (Adshead i998). The medical model of psychiatry requires psychiatrists to get infor­ mation from (apparently) independent informants, who may be more reliable than a person with a mental disorder. However, in the case of criminal charges, there are rarely such people as independent informants. In the theater of the criminal court, all speaking parts are important.

CONCLUSIONS

We have a strong intuition that some people are less responsible for some of their actions than others, which underpins the legal tradition of excusing the mentally ill their criminal behavior in certain circumstances. Exactly what is meant by the term "criminal responsibility," though, is far from clear. Some have argued that it is a real mental quality, which can be more or less present during a piece of criminal behav­ ior, presumably in the mind of the perpetrator. Others have argued that it is an artificial social construction that allows society to withhold punishment from those whom it deems not to deserve punishment and instead to require treatment. This essay has considered some of these arguments in more detail.

Recent research into the abnormal experience of agency, such as "alien limb syndrome,'' has suggested that a number of brain areas contribute to the performance of consciously chosen or willed actions (Spence and Frith 1999), especially the dorsolateral-prefrontal cortex. Such research findings can be used to argue that our intentions can be explained in terms of (or even determined by?) brain function. What is not clear is how such research will be able to distinguish between morally different intentions: choosing to move one's hand to wave goodbye is not the same as choosing to wave one's hand with a knife in it. Such a reductionist approach seems only to move the threshold for assessing the culpability of intentions to a different level, rather than providing an exculpatory account.

Similarly, published research on moral reasoning in offenders, which shows that they have "lower" levels of reasoning than nonoffenders, does not address the real question of responsibility: namely, what is the "right" level of moral reasoning for blameworthiness? Any notion of "levels" of reasoning presupposes a threshold that will be socially constructed and thus is arbitrary, not simply a function of the indi­ vidual.

A different account of excuse that uses psychological explanation based on child­ hood experience has developed - what Dershowitz (1997) calls "the abuse excuse." In these cases, it is argued that the defendant could not have acted other than he

CRIMINAL RESPONSIBILITY

did, because of the impact on him of early adverse childhood experience. In stark contrast to Aristotle's premise, it is argued that a man is not responsible for his "bad" character if it is the result of traumatic experience. Of course, such an argument does not address the converse: Can a man not be praised for his "good" deeds if they are the result of good experience? Similarly, there are clearly many people who have experienced childhood trauma who do not have "bad" characters - although this is yet another version of psychological determinism, in this case citing external rather than internal events. It seems that victims of childhood adversity can use this expe­ rience as both a justification and a psychiatric explanation for later violence.

Psychiatrists involved in the assessment of responsibility seem to move between physical and intentional explanations for "bad" intentions. The physical fits more easily with the medical role but, as we have seen, may not do justice to the claims of social processes. The intentional stance may fit better with a psychological ap­ proach to choices but may make it impossible for psychiatrists to avoid making moral judgments in the courtroom.

NO T ES

1. The law is more complex than this, distinguishing between insane and noninsane automatisms on the basis of whether the cause of the automatism was internal or external to the accused. In the case of insane automatism, the accused is pronounced not guilty by rea­ son of insanity; in the case of noninsane automatism, one is acquitted.

2. L. J. Lawton in R v. Robinson said, "We cannot stress too strongly that these cases of homicide are to be tried by judges and juries and not by psychiatrists" (cited in Griew 1986).

3- Tourette's syndrome is a neuropsychiatric condition with an onset in childhood; it is characterized by multiple motor and vocal tics, often including swearing (coprolalia).

4. Some of the philosophical papers in the literature founder for just this reason. For example, Wolf (1989) gives the example of Jo Jo, the son of a military dictator, who develops views of the world under his father's influence, ending up a vicious and tyrannical leader himself. Wolf expects us to believe that JoJo would not be held responsible for his murder and torture in a court of law. This thought experiment is far removed from the reality of insanity acquittees, and almost no one would actually consider JoJo to have an insanity de­ fense, a point eloquently made by Wilson (1996).

5. This Kantian view seems close to Morse's (1999) arguments that irrationality is excul­ pating because it impairs one's ability to follow the law.

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