Model Penal Code and Rationality

There is an additional point here. M’Naghten is usually considered to be a ration-ality standard, focusing on epistemic factors.⁵⁵ Still, one might also use a more comprehensive view of rationality, as we discussed in Sect. 2.4. Based on such a broader interpretation, rational behavior may be considered to consist of at least two components: the person, first, acts on the right information and appreciation and, second, is able to guide his action according to this information and apprecia-tion. If a person has the right knowledge/appreciation but cannot guide his behav-ior according to that knowledge/information, irrational behavbehav-ior occurs. In contrast, if a person is able to guide his behavior according to his knowledge/

appreciation, but his knowledge/appreciation is flawed or distorted, irrational

55See also Sect. 2.2.

4.2 Irrationality

84 4 Lack of Free Will and Irrationality

behavior occurs as well. Such a line of thought would also be in accordance with the following remark by Sinnott-Armstrong and Levy:

What removes responsibility, if anything, is a lack of the capacity to be rational. People lack this capacity if they cannot form rational beliefs or rationally consider the criminality or wrongfulness of their acts (a defect in theoretical rationality) or if they cannot act according to the reasons that they have (a defect in practical rationality). These are exactly the lacks that remove responsibility according to the MPC [Model Penal Code] rule.⁵⁶

This means that while Elliott considers rationality separate from ignorance and compulsion, Sinnott-Armstrong and Levy interpret irrationality in terms of igno-rance and a lack of control. Based on this interpretation, considering irrationality as the ground for legal insanity may well lead us to endorse the Model Penal Code as a rationality standard—which would, however, contradict Moore, who opposes any further definition of irrationality or craziness.⁵⁷ In any case, the concept of rationality is flexible enough to be interpreted in various ways, with correspond-ingly various consequences for legal insanity.

A final remark: focusing exclusively on the term rationality may give the impression of an unduly rationalistic view of the human being as such, neglecting other core elements of mental life, such as emotions, sensitivity, etc. Of course, a broad notion of rationality may incorporate many of these aspects. Yet, as we dis-cussed, a broad notion would most probably fail to provide the clarity required in a court of law.

In sum, given the many meanings of “rationality,” it is a problematic concept as an actual criterion for legal insanity.⁵⁸ This does not necessarily imply that it can-not play a role in a theoretical framework for insanity. Since various scholars refer to the concept as central, albeit in dissimilar ways, it may be a helpful heuristic tool for identifying criteria for insanity. But it is too vague to be used as a criterion in a court of law.

4.3 Conclusion

In this chapter, we consider two classical theoretical grounds or justifications for legal insanity: lack of free will and irrationality.

Lack of free will is often mentioned as the conceptual ground for legal insanity.

Because mental disorders may undermine free will, it is argued that some defend-ants should be exculpated. Free will, however, is a contested concept and philo-sophical discussions on free will tend to be complicated—and different notions of

56Sinnott-Armstrong and Levy (2011, p. 317).

57See also Sect. 2.4 on rationality and the Model Penal Code test.

58Cf. Sinnott-Armstrong and Levy (2011, p. 317) who write about the United States: “Still, no jurisdiction has officially adopted this suggestion or defined insanity directly in terms of irra-tionality. This omission might be because the term “rational” is vague and controversial. Still, it might be possible for the rationality approach to be developed in fruitful ways.”

85

free will feature in such debates. In order to get a grip on this thorny concept, we looked at three senses of free will: acting for reasons, having alternative options, and being the source of the action. Understood in these terms, it turned out that free will may indeed be helpful in explaining why mental disorders may excul-pate defendants in a court of law. In my view, the three meanings of free will can also be considered as aspects of control. Acting of one’s free will, therefore, can be loosely understood as having control over one’s actions. This implies that the often-assumed relevance of free will to responsibility could be used as an argu-ment for including a control prong in the insanity defense.

However, we observed that “lack of free will” only provides an explanation of excuse in some cases. Most importantly, “lack of free will” does not straightfor-wardly cover the impact of mental disorders on epistemic factors. Note that the knowledge prong is often considered a valuable and relatively uncontroversial ele-ment of legal insanity standards. In addition, a lack of moral insensitivity may also have impact on criminal responsibility, at least theoretically, and it is not straight-forwardly encompassed by “lack of free will” either. Still, moral sensitivity can also be considered part of “knowledge/appreciation”: a person without moral sensi-tivity may have serious problems with genuinely appreciating the wrongfulness of an action. Free will, therefore, could provide a partial justification of legal insanity at best. Furthermore, the notion of free will may bring metaphysical qualms to the table, which would probably be unhelpful in a court of law. I conclude that our analysis of “free will” underlines the relevance of a control prong in a legal insanity standard. But free will cannot serve as the conceptual ground for legal insanity.

We also discussed extreme but resistible urges that may occur in mental ill-nesses. Some might feel that these urges or impulses diminish a person’s free will, thus reducing his or her responsibility. This is one possible view. I offered an alter-native perspective that focuses on the effort it takes to control these urges. This view may be better in line with the phenomenology of these impulses and the fact that an effective therapy—CBT—makes use of the fact that, for at least some of such urges, patients can often resist the impulses—although this may be very diffi-cult. The extreme efforts on the part of the patient may be relevant for exculpation, although the precise implications these urges would have in the courtroom remain unclear.

Irrationality is considered central to legal insanity by Morse, Moore, and Elliott (among others). But the problem with the notion of rationality is its vagueness and ambiguity. Irrationality has very different meanings, which are more likely to con-fuse than to clarify discussions about legal insanity in the courtroom. Therefore, although rationality may theoretically be a helpful heuristic tool, it is not a suitable criterion for legal insanity.

In sum, while both standard views of the grounds of insanity have their mer-its, they are problematic as well. In addition, the picture of responsibility that has emerged in this chapter is basically Aristotelian insofar as it consists of two components: control and an epistemic (knowledge/appreciation) factor. This Aristotelian framework appears to be a more viable approach to legal insanity than either free will or rationality.

4.3 Conclusion

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In this chapter, we further explore the grounds for legal insanity, using two partially related approaches to the impact mental disorders have on a defendant’s responsibility.

The link between the approaches is that decision-making is central to both of them.

In the first part of this chapter, I compare legal insanity with patient decision-making competency in health care. As it turns out, there are several interest-ing similarities between insanity and incompetency. Based on the parallel, I will explore the extent to which the criteria for legal insanity could be based on the established criteria for patient competency.

The second part considers the impact of a mental disorder on a person’s behav-ior from the perspective of a stage model of decision-making. The stages are the generation of options, the selection of one of the options, and, finally, the initi-ation of the action. Each of these stages can be influenced by psychopathology.

Meanwhile, the consequences of such impact for responsibility and excuse may differ. The value of this model for legal insanity is assessed.

5.1 Analogy Between Patient Incompetency and Legal Insanity

A powerful parallel exists between assessments of legal insanity and those of patient incompetency. Alternative terms for patient competency are decision-mak-ing competency, decision-makdecision-mak-ing capacity, or just competency or competence (note that competency to stand trial is another matter).¹ Health care professionals

1There are also similarities between insanity and competency to stand trial. However, compe-tency to stand trial is much more focused on the particular circumstances of being a defendant in a criminal case and on understanding the roles of courtroom participants. Because of this particu-lar and limited scope, it is very different from evaluations of insanity. Situations in which crimes occur are much more open and less controlled than courtroom proceedings. This may well be the reason why developing criteria for competency to stand trial has proven to be less of a chal-lenge than developing a satisfactory insanity standard (see Packer 2009, p. 77). The comparison between insanity and competency to stand trial is, therefore, less promising.

Chapter 5

Competent and Compromised Decision-Making

© Springer International Publishing Switzerland 2016

G. Meynen, Legal Insanity: Explorations in Psychiatry, Law, and Ethics, International Library of Ethics, Law, and the New Medicine 71, DOI 10.1007/978-3-319-44721-6_5