Excerpt on Development of the Insanity Defense | Tim Wu | January 25, 2018


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Excerpt on Development of the Insanity Defense

Excerpt on Development of the Insanity Defense

entirely delinks the “insanity” test from any mental disorder predicate and thus gives the factfinder free rein to decide who should be held accountable for criminal acts. Alternatively, academics from the clinical and legal disciplines such as Fingarette,50 Moore,51 Morse52, Sendor,53 and Schopp54 have proposed tests that focus on the rationality of the defendant, a construct which is cognitively oriented but which, its proponents claim, also captures those with volitional impairment who ought to be excused.55 Although the rationality tests vary in form, they all look at the extent to which the thought content of the criminal defendant reflects reality and the manner in which the defendant processes information.

None of these latter tests has been adopted by any state, and the product test exists in only one state.56 The ALI test, on the other hand, proved quite popular, at one time holding sway in virtually all the federal circuits and over half the states (with the rest using M'Naghten alone or combined with an irresistible impulse defense).57 After John Hinckley's acquittal on charges of attempting to assassinate President Reagan, however, the federal government, as well as several states that had adopted the ALI test, eliminated the volitional prong and tried to narrow the scope of the defense in other ways.58 Furthermore, at least five states have now eliminated the insanity defense altogether.59


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January 25, 2018

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Tim Wu


Columbia Law School

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