Disorder in the Court: Morality, Myth, and the Insanity Defense

by Andrea L. Alden

Overview

The first book-length rhetorical history and analysis of the insanity defense

The insanity defense is considered one of the most controversial, most misunderstood, and least straightforward subjects in the American legal system. Disorder in the Court: Morality, Myth, and the Insanity Defense traces the US legal standards for the insanity defense as they have evolved from 1843, when they were first codified in England, to 1984, when the US government attempted to revise them through the Insanity Defense Reform Act. Throughout this period “insanity” existed primarily as a legal term rather than a medical one; yet the testimony of psychiatric experts is required in cases in which an insanity defense is raised.

The adjudication of such cases by courtroom practice is caught between two different but overlapping discourses, the legal and the medical, both of which have historically sought to assert and maintain firm disciplinary boundaries. Both expert and lay audiences have struggled to understand and apply commonplace definitions of sanity, and the portrayal of the insanity defense in popular culture has only served to further frustrate such understandings.

Andrea L. Alden argues that the problems with understanding the insanity defense are, at their foundation, rhetorical. The legal concept of what constitutes insanity and, therefore, an abdication of responsibility for one’s actions does not map neatly onto the mental health professions’ understandings of mental illness and how that affects an individual’s ability to understand or control his or her actions. Additionally, there are multiple layers of persuasion involved in any effort to convince a judge, jury—or a public, for that matter—that a defendant is or is not responsible for his or her actions at a particular moment in time.

Alden examines landmark court cases such as the trial of Daniel McNaughtan, Durham v. United States, and the trial of John Hinckley Jr. that signal the major shifts in the legal definitions of the insanity defense. Combining archival, textual, and rhetorical analysis, Alden offers a close reading of texts including trial transcripts, appellate court opinions, and relevant medical literature from the time period. She contextualizes these analyses through popular texts—for example, newspaper articles and editorials—showing that while all societies have maintained some version of mental illness as a mitigating factor in their penal systems, the insanity defense has always been fraught with controversy.

Product Details

ISBN-13:	9780817391638
Publisher:	University of Alabama Press
Publication date:	08/21/2018
Series:	Rhetoric, Law, and the Humanities
Sold by:	Barnes & Noble
Format:	eBook
Pages:	224
File size:	766 KB

About the Author

Andrea L. Alden is an assistant professor of English at Grand Canyon University.

Read an Excerpt

CHAPTER 1

Framing the Issue

What Rhetoric Can Offer to the Conversation

"Given the influence of social conformity and prejudice, defendants pleading not guilty by reason of insanity face the significant challenges of securing fair and impartial juries. Attitudes and knowledge of the insanity defense are factors that may influence levels of impartiality."

— Tarika Daftary-Kapur et al.

The insanity defense has been extensively debated in the public, as well as in relevant disciplinary spheres, and studied exhaustively through (primarily) social science research. In this chapter, I will first describe the conclusions reached by a recently published study that is representative of common inquiries into the insanity defense that will demonstrate the value of a rhetorical approach due to the limitations of social science methods. I will then elaborate the concept of sanism and describe what its rhetoric achieves. Next, I will outline the concepts that are at the center of my theoretical assumptions, including ideology, hegemony, fantasy, and myth. Finally, I will detail the largest obstacle of undertaking a study of this kind: the moralism attached to both the law and mental illness.

Current Approaches to the Study of the Insanity Defense

There is an extensive body of scholarly research on the insanity defense, primarily in legal studies and also in the mental health professions. Each field approaches its studies in ways characteristic of its discipline: in psychiatric analyses, researchers generally seek to understand how to explain mental illness in a legal setting; in legal analyses, researchers typically seek to understand how different standards for legal insanity affect various aspects of an insanity defense trial, with particular attention to juror decision-making.

Using Google Scholar, which provides a cursory overview of academic articles and books that include the phrase "insanity defense," I was able to determine that, for the period of time this book will address (1843–1984), 17,800 publications discuss the insanity defense. In reviewing scholarship produced during this period, it is difficult to identify the particular decade in which a given publication was written, as the topics of inquiry remain largely consistent, in addition to the venues of their publication: in the nineteenth and early twentieth centuries, the phrase "insanity defense" appears most frequently in the American Journal of Psychiatry; articles using the term and discussing the concept began to appear more frequently in law reviews from universities around the country during the mid-to-late twentieth century.

From 1985 to 2017, the same query on Google Scholar yielded 36,300 results, which is significant in that the more recent thirty-two-year period produced more than twice the number of publications on the topic as the preceding 141 years. Again, the titles from decade to decade remain very similar; one primary aspect that distinguishes a study from the 1980s to the present from those in the prior 140-year period is the inclusion of relatively recent diagnostic categories such as Post-Traumatic Stress Disorder and postpartum psychosis, mental illnesses that certainly existed but had simply not been labeled as such until relatively recently, as well as new technologies such as neuroimaging. Otherwise, the issues they take up and the research questions they ask remain consistent with the many decades that precede them. One conclusion that can be drawn from these results is that interest in the topic has increased, and one reason for that is that all of the research on and debate over the defense has yet to produce a satisfactory solution to the problems it presents.

Jennifer Eno Louden and Jennifer L. Skeem's 2007 study sought to examine the effects of "jurors' intuitive prototypes of insanity and case-relevant attitudes" on insanity defense cases. Their article provides a potent justification for a rhetorical approach to insanity defense study. It is very similar to other social science research spanning the last fifty years; this is not to say that it is not interesting or important but rather to highlight that, in spite of both advances in the study of mental illness and two of the major revisions to the standards for legal insanity that occurred during that period of time, it is clear that juror decision-making in insanity defense cases has been largely unaffected by these changes. Furthermore, researchers who study this phenomenon have not made much progress in explaining why. Louden and Skeem begin by saying: "Few psycholegal issues are more controversial than the insanity defense. ... The public generally has a negative opinion of the insanity defense that varies only in its intensity over time. ... The legal system assumes that, given several procedural protections, jurors perform [their] duty as 'blank slates,' free of preconceptions and biases. ... [However], although ... standards of insanity change over time and differ across jurisdictions, there is little evidence that jurors actually apply legal definitions in rendering verdicts." Studies, including this one, consistently conclude that, while different legal definitions of insanity should provide evidence that jurors will reach different verdicts, it simply is not the case.

The findings of Louden and Skeem's 2007 study, which are consistent with those of similar studies, can be seen as follows:

1. "Jurors' attitudes toward the insanity defense strongly affect their case judgements."

2. "[A] defendant will not obtain a fair trial if some of the jurors impaneled are unwilling to entertain his established legal defense of insanity."

3. "When negative attitudes are identified, simply asking jurors to set them aside will probably insufficiently protect a defendant's right to a fair and impartial jury."

4. "Jurors with strongly held, negative attitudes often overestimate the extent to which they can set their attitudes aside."

5. "Because attitudes bias information processing, merely disseminating accurate information about the insanity defense is unlikely to change public opinion."

The authors cite legal scholar and mental disability law-reform advocate Michael Perlin's major claim: although the many myths about the insanity defense have been proven false, they "persist because they are based on deep-seated, largely socially acceptable prejudices against defendants with mental illness and maintained by faulty reasoning processes." Therefore, they suggest, "it is necessary to target attitudes on a deeper level" in order "to promote jury verdicts that are based on the evidence and legal instructions and less on personal biases about mental illness and criminal responsibility." While this is an admirable goal, it is also one that has been investigated ad nauseam in social science research. These studies are looking for a definitive way to get jurors to make decisions that are not influenced by their existing biases toward mental illness and criminal responsibility. Unlike rhetoric scholars, however, they lack the insight that Aristotle provided over two thousand years ago: decision-making is much more grounded in the way people feel than in their sense of logic; or, more accurately, their sense of logic derives from their emotional attachments, which are largely unconscious.

What Louden and Skeem, and numerous similar researchers, are unable to explain is how such attitudes are formed and why they remain firmly intact regardless of how much evidence to disprove them exists. It is with Michael Perlin's extensive body of work tackling the many myths that continue to hinder progress in insanity defense jurisprudence that I began this project, and it is his work that provides the justification for a rhetorical approach to understanding this complex phenomenon. I have examined the historical and contemporary trajectories of research on the insanity defense in order to demonstrate a gap which I hope to begin to address with this study. I will now turn to explaining the theoretical basis for a rhetorical approach to a study of the insanity defense.

Understanding Sanism and Its Rhetoric

Sanism is a term used by Michael Perlin, who defines it as prejudice against mentally ill people that causes "individuals with mental illness ... [to be] frequently marginalized to an even greater extent" than other historically oppressed groups. He contends that sanism maintains the primary characteristic of other "isms" (racism, sexism, ageism, ableism) because it serves as "an ideological rationalization or justification for stigmatizing and marginalizing the other," and that such stereotypes have resulted in discrimination by legislators, judges, and lawyers. Perlin argues that the way we approach mentally disabled people is governed by "irrational mechanisms" and that the assumptions made by the legal system regarding the nature of mental illness "reflect[s] our fears and apprehensions about mental disability ... and the possibility that we may become mentally disabled." It is this difficulty understanding mental illness and our discomfort regarding the stability of our own mental health that drive sanist behavior.

Because (as Perlin says) "mental illness has always been inextricably linked to sin, to evil, to God's punishment, to crime, to demons," and the loss of reason (supposedly humanity's defining capacity), the dehumanization of mentally ill people is troubling but not surprising. Highlighting the deeply embedded Enlightenment ideology that undergirds our dualistic cultural constructions of mind/body, reason/emotions, and nature/nurture, cultural historian and professor of psychiatry Sander Gilman says, "The most elementally frightening possibility is the loss of control over the self. ... The mad are perceived as the antithesis to the control and reason that define the self. ... What is perceived is in large part a projection; for within everyone's fantasy life there exists ... an incipient madness that we control with more or less success." Political philosopher Iris Marion Young notes, "Modern philosophy and science established unifying, controlling reason in opposition to ... the body, and then identified some groups with reason and others with the body." In this binary construction, then, mentally ill people are tied to the inferior body and its unmanageable emotions, which are then positioned in opposition to those who ostensibly maintain bodily control and exist as purely rational beings. In addition, the seeming randomness with which mental illness occurs causes such anxiety that those who do suffer from it are portrayed as having had some hand in their own misfortunes, the rhetorical origins of which will be discussed in the next chapter. This ideological "opposition to affectivity and the body" results in "the devaluation and exclusion of some groups," people who suffer from mental illness among them.

The moral issues raised by the insanity defense "trigger deep and intense emotional responses" that, while potent, are rarely articulated. These responses are the basis for the rhetoric of sanism, which refers in part to discourse (speech, writing, and other forms of influencing others) that discriminates against mentally ill people, but largely to the unconscious reaction of aversion to mental illness and mentally ill people that lies in the affective domain; we might usefully categorize such aversion as the result of implicit bias. Part of the way in which this rhetoric functions constitutes what Sharon Crowley would call its "ideologic," the ways in which the rhetoric of sanism relies on deeply embedded prejudice in the criminal justice system as well as common cultural perceptions of the insanity defense. The consequences of sanism for the insanity defense are manifested in specific discursive practices that take place both in the courtroom and the public. Perlin has identified multiple widely held cultural myths about the mentally ill and the insanity defense that he believes explain the persistence of sanist behavior in the face of major scientific advances in the understanding of mental illness.

While Perlin's research focuses on jurisprudence, I argue that these cultural myths also function rhetorically. Perlin asks the pivotal questions: "Why do we feel the way we feel about 'these people,' and how do those feelings control our legislative, judicial, and administrative policies?" For Perlin, the answer to these two questions is essential to understanding the incoherence of insanity defense jurisprudence. These myths reveal widespread cultural attitudes toward mental illness and mentally ill people.

Perlin identifies eight distinct myths. For example, one myth is that the insanity defense is overused, and another is that it is typically used in particularly heinous crimes. Another common myth is that the defense is primarily deployed by defendants who are faking mental illness in order to escape punishment. All of these myths hinge on widely held beliefs about the legitimacy of mental illness and those medical professionals who diagnose and treat it. Perlin's work provides us with a number of useful insights for discerning cultural biases and myths, but how do these translate rhetorically?

The discursive practices that represent the rhetoric of sanism are manifested in recurring tropes, all of which can be seen embedded in the myths that Perlin describes. The tropes, in their most basic form, are as follows: 1) the trope of deviancy, or the notion that mental illness is not "real" and is the fault of the afflicted due to weak moral character, poor choices, and so on; 2) the trope of fakery, or the idea that mental illness is easily and frequently faked for the purposes of avoiding consequences; 3) the trope of illegitimacy, or the idea that psychiatry is not a legitimate discipline, and psychiatrists will diagnose based on which side of the court case is paying them; 4) the trope of ordinary common sense, or the idea that anyone of ordinary intelligence can tell if someone is mentally ill or not; 5) the trope of danger, or the belief that if a defendant successfully pleads insanity, s/he will be set free and possibly harm others; and 6) the trope of pandemonium, or the belief that the insanity defense weakens the retributive, deterrent, and incapacitating effects of the criminal justice system.

Having described sanism and elaborated a number of its common rhetorical elements in a series of myths-turned-tropes, it may be helpful to describe their relationship to a number of theoretical assumptions and related concepts undergirding this study. Over the course of the history of the insanity defense, how did these myths and their corresponding tropes become so deeply embedded in the way we think about mental illness? Why do they seem intractable even in the face of a mountain of evidence that disproves them? To answer these and related questions, we must look more closely at the way belief, ideology, and myth shape our culture.

Belief, Ideology, and Hegemony in Sanism

So far I have noted that the concept of myth is central to the rhetoric of sanism and the institutional practices concerning the insanity defense, and I have relied on a more or less common understanding of the term as a common cultural story that is misleading or false. The concept of myth does not connote, however, the powerful emotions that they can inspire. Myths become increasingly important to a culture in times of unrest as a means by which ruptures in the narrative can be sutured and scapegoats ("others") identified. While people do engage in reasoning based on evidence, the premises by which they do so are drawn from beliefs, myths, and ideologies that adhere below consciousness; this explains why enduring ways of thinking are difficult, if not impossible, to alter. In this way, the hegemonic status of the law is maintained by myths about the law, and sanism is maintained by the myths about mental illness.

In order to understand how sanism functions, we must address the rhetorical forces that work to support it and other pervasive cultural "isms." According to rhetorical theorist Sharon Crowley, belief and action are primarily motivated not by reason but by "ideology, fantasy, and emotion." She developed the concept of ideologic to describe "connections made between and among moments (positions) that occur or are taken up within ideology." Crowley deploys Bourdieu's concept of the habitus, which locates belief in the material dimension, since it "includes cultural representations such as history, memory, ideology, fantasy, myth, and lore, and it also includes culturally habituated practices." Habitus relates closely to what Young calls "practical consciousness," which "refers to those aspects of action and situation which involve often complex reflexive monitoring of the relation of the subject's body to those of other subjects and the surrounding environment, but which are on the fringe of consciousness, rather than the focus of discursive attention." What is important to understand for the purposes of this study is that belief and ideology are embodied and adhere below consciousness, which is to say they are rarely conscious, even though we constantly act in and through them.

(Continues…)

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Table of Contents

Acknowledgments

Introduction: Reasoning with Madness

Chapter 1. Framing the Issue: What Rhetoric Can Offer to the Conversation

Chapter 2. A Brief History of Western Thought on Mental Illness and Its Relevance to the Law

Chapter 3. Knowing Right from Wrong: The Trial of Daniel McNaughtan

Chapter 4. Late Nineteenth-Century Insanity Defense Jurisprudence: Parsons, Davis, and the “Irresistible Impulse” Test

Chapter 5. Mid-Twentieth-Century Insanity Defense Jurisprudence: Durham v. United States and the “Product” Test

Chapter 6. Late Twentieth-Century Insanity Defense Jurisprudence: The Trial of John Hinckley Jr. and the Insanity Defense Reform Act

Conclusion. The Insanity Defense Since Hinckley

Appendix 1. Parsons v. State

Appendix 2. Davis v. United States

Appendix 3. Durham v. United States

Appendix 4. Hinkley Letter to Jodie Foster

Notes

Bibliography

Index

Editorial Reviews

This is a terrific book and one that is long overdue. Disorder in the Court engages two important, but relatively understudied, areas of rhetorical scholarship—the rhetoric of law and the rhetoric of medicine—in order to shed light on the intriguing issue of insanity defenses.”
—Edward Schiappa, author of Beyond Representational Correctness: Rethinking Criticism of Popular Media and coauthor of Argumentation: Keeping Faith with Reason


“An important contribution that provides a concise rhetorical assessment of the development of the insanity defense in America.”
—Francis J. Mootz III, author of Law, Hermeneutics, and Rhetoric and Rhetorical Knowledge in Legal Practice and Critical Legal Theory

From the Publisher