I’ve been watching a show called Gotham recently. I’m a comic book nerd, like seeing strong women of color characters, and have a soft spot for any Law & Order type shows. One thing that makes the show quite unbearable at times is their portrayal of mental illness. They trick you by having protagonist Jim Gordon question the mass incarceration of the mentally ill at Arkham, but once he’s there as a security guard he’s more than happy to demean and manipulate the mentally ill as much as all the other neuro-normative, as in those without mental illnesses, characters. The mentally ill people incarcerated there are a collection of stereotypes, from the manchild to the flamboyant gay man. And of course one strange thing about the show, and about the Batman universe in general, is just how full Arkham is. Arkham pretty much has served as the de facto prison for most of Batman’s villains, even for those are supposedly “sane” like the Penguin or Black Mask.

In the real world, insanity defense are fairly rare, as demonstrated by the high rate of mentally ill persons in US prisons. Only 1 in 100 defendants even raise an insanity defense and the chance of the defense being successful is less than one percent. The misconception that it is more prominent stems from both the general fear and stigma around mentally ill people and the use of insanity defenses in highly publicized serial killer cases like Jeffrey Dahmer (thinking I might do a whole post about serial killers at some point if there’s any interest). Of course the state, and the capitalists it represents, have a very vested interest in incarcerating people with mental illness rather than having them treated at an in-patient facility (though in-patient facilities have their own problems, often associated with a general lack of funding by the state and a focus on diagnostic treatment rather than working with patients cooperatively). People with mental illnesses range from being disruptive to completely incompatible with a capitalist economy. 80% of mentally ill people are unemployed. The alienation and need for sublimination with in a capitalist economy is something that many of the mentally ill people simply cannot do or tolerate. But unlike their neuro-normative fellows, they are poor candidates to make up what Engels refers to as “an unemployed reserve army of workers.” Most of this “reserve army” is sustained by what Engels refers to as huckstering but what we now call hustling. Such hustling, whether in drug, piracy, or sex work, is incredibly mentally strenuous work. Which is not to say that mentally ill people do not engage in such work, but rather that it is not nearly as feasible for them to sustain themselves on it, and as Engels wrote, it reduces their options to begging.

Getting back to the insanity defense. Fun fact: most insanity defenses (decided by the states and one federal form) are based on a test from the 1500’s called the M’Naghten Test. This test is pretty simple: did the offender, with a defect of reason or disease of the mind, understand the difference between right and wrong? It would be laughable if it weren’t so blithely out of touch with both modern science and organizing done by mentally ill people for their rights. But wait, it gets much worse. Because this test could have gone the way of other 16th century institutions like serfdom.

The Chief Justice of the Supreme Court of New Hampshire, Charles Cogswell Doe, had a problem. Defendant was being charged with murder in the commission of a robbery (note that this was before felony murder rules had been established in many places like NH). Defendant had what at the time was called dipsomania, what we would now call alcoholism. The judge established a new test: that insanity defenses could be applied in cases where the crime was a product of mental defect or disease. Whether or not that was the case would be left up to the jury in their role as the triers of fact. Despite the problematic language, this was a huge step forward from the ludicrously high standard of the M’Naghten Test. And it was in 1870. It is generally referred to as the Durham/Product Test.

Having an insanity defense that could actually work was troublesome to capitalist lawmakers for another reason than the desire of warehousing an untenable population of unemployment. Guilt is a crucial aspect of the criminal legal system. Insanity defenses are “excuse defenses,” defenses that find a person normally guilty of the crime not guilty. Their existence has a basis in the representation-reinforcement school of thought: if you do not excuse certain defendants who are extremely sympathetic to the working class, it could both cause dissent to the government and reveal that the purpose of the criminal law is not as moral or socially responsible as it purports. Writes Evgeny Pashukanis:
Guilt… is the basis for the gradation of punishment – a new, if you wish, ideal or psychological element, which is combined with the material element (the injury) and the objective element (the act) – in order to provide a joint basis for determining the ratio of punishment…bourgeois jurisprudence ensures that the transaction with the criminal is in accordance with all rules of the art, i.e. that each may be convinced, and may verify that the payment is justly set (public judicial proceedings), that the criminal may bargain freely (adversary process), and that in so doing he may use the services of an experienced judicial expert (admission of the defence) etc. Briefly, the state conducts its relationship to the criminal within the framework of a bona fide commercial transaction in which there are, ostensibly, guarantees of criminal procedure.

So critiques were put forth against the Durham/Product Test that it puts too much emphasis on mental health experts. We have in this critique an interesting contradiction: on the one hand, it is legitimate to wish to avoid too much emphasis on the ambiguity that is witness experts (a topic for a later date I’m sure), but on the other hand, who else has the credentials to inform a juror’s choice on an issue explicitly about mental illness? With the publishing of the Model Penal Code in 1962, the American Law Institute sought to reinforce the certainty necessary for capitalist law, and insanity defenses were no exception. Model Penal Code section 4.01(1) adopts a version of the Irresistible Impulse test: that the defendant lacks substantial capacity to know criminality or conform their conduct to requirements of the law. Other criminal codes go further, such as the New York Penal Law which essentially revives the M’Naghten Test.

An actionable insanity defense that is not fatal in fact could be a means of questioning the purported morality and purpose of the criminal law. Remember that not all defenses are created by statute: the use of the “battered woman syndrome” defense, which faced major opposition when first used by defense lawyers who had gone outside of the defenses outlined by statute, is now practiced across the country. Similarly we need new defenses for people with mental illnesses that are not restricted by the prejudiced and exploitative definitions of capitalist law.

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