Is the Insanity Defence Itself Insane?

As with my first article expounding my political thoughts, philosophical views and religious methods, a reader has kindly taken the time to compose a question and view point long enough to require 3000 words to answer!

The question is this:

alexander hiboux.
Further to your post of the 7th, and having taken some time to consider same, I agree that if someone were to act unlawfully in a moment of insanity, that persons temporary insanity should not absolve him of blame as to his actions, because, to return to a view expressed in my earlier post, a difference must be drawn between “temporary” and “permanent” insanity.
If someone acts out of temporary insanity, then by definition, for the prior, and presumably post, act period, that person is in a state of sanity and as such they are aware of what is right and wrong, and thus must be aware of what could loosely be termed natural justice. Ergo, they have at sometime understood right and wrong, and presumably do so again. The fact that this was rejected for such period as to “allow” the act to happen should be no basis for a defence.
However, if a person has always been “insane”, then that person may well have never understood the concept of right and wrong, and perhaps never will. Thus there has been no rejection of right and wrong, but rather a fundamental inability to understand the concept at any time, not just at the time of the act itself.
The fact that the rest of society understands the concept should not be imposed upon the individual, otherwise we are moving towards a point where any deviation from popular and societal norms may be considered unacceptable, and in the extreme, criminal.
Thus, whilst, for the safety of the rest of the population (the moral majority, if you will), the permanently insane should be kept from harming others, perhaps by effective imprisonment, (or hospitalised in a secure unit as the more p.r. conscious would term it), it is for the safety of others, and not for the permanently insanes inability to understand right from wrong, or his actions, that this should occur.
Of course, if the “permanently” insane person were then to be medicated to a point where they were no longer deemed to be insane, and such that they no longer posed a threat to society, that would then open up a whole other argument…

Here we go!

Dear Mr Owl,

Firstly, don’t worry about using a nom de plume, just be careful you don’t end up as I; for sometimes it seems like more people now know me as Basho than as not. In fact, I have real life friends who don’t actually know my given name! After realising this was happening, I concluded that I actually quite liked it.

I now don’t know if I am Basho dreaming I am being James or James dreaming he is Basho.

After all, Basho is a “silly name” that sounds great in English, but, and I always keep this in mind, means “Banana Plant” in Japanese. A good and funny name for a Daoist!

Anyway, thanks, once again, for lending your obviously well thought out comments to this article and its conclusions.

I think my original point was covered in the term, “Temporary” Insanity and that being no good defence, but I too have been thinking about it, and it deserves a larger answer. Your answer shows you know something of legal moral logic, the kind of logic that my first article came out against; was that what prompted you to reply? Nevertheless, I think I can clearly say something about what I mean now.

In my ideal society, a sort of Basho’s Republic I have started to call, ‘new society’, life is lived according to a new set of values. What are these? I suppose the nearest Western approximation, and no Western idea covers half of it, would be either Anarchism or Anarcho-Syndicalism.

I say it doesn’t cover the half of it,and that is mainly because in the west we deconstruct everything.

We can’t help it I suppose. It is the nature of our science that before we can believe something we must explain it in scientific terms. That is we must measure it, for all science is about finding out ways of measuring things. Then we use those measurements to build conceptual frameworks from which future judgements, predictions, can be made. This is a very successful method of doing things in terms of building cars, computers and space stations. But, it leaves a whole aspect, a important aspect, of human nature outside in the cold. In the largest of the societies arranged this way, such as the US, they have married their science, which they all know is not the whole deal, with religion. Here in the UK, we used to have a sense of the “English condition.” It was formed by many things, such as: cricket, football, beer, Jane Austin novels and the second biggest empire of all time. It gave us our sense of spiritual identity. Recently that has been replaced, or at least degraded, and the English identity is now some sort of uber-selfishness fostered by uncapped capitalism.

That aside, one other growth from this attitude of “frameworks” is the legal code. Now, everyone knows that no western legal code is “perfect,” but we rarely ask why. It is like an itch we can’t properly scratch, but it is still there, just out of reach of our understanding. Despite this we hold our laws near and dear. Indeed, we scoff at legal codes other than our own. For example, the US legal code is the victim in many crime dramas, the very idea of the Sharia legal code of the Taliban and other extremist Muslims is abhorrent to many. I don’t know why, since I think very few actually know what it comprises of, I suppose it is the simple foreignness, the difference between it and ours. I expect that if I was to propose we ran the country by the Law Code of King Hammurabi, then my mother (often the example I pull out of the hat when it comes to a certain Pro-British view point) would dismiss it out of hand, possibly with anger. Not that she knows what it is; simply that she hates any foreign influence and fears the further loss of her “national identity.” However, when watching the news of the two boys who tortured another boy because they were bored (something that highlights my last post’s point horribly well), then she is the first to call for them to suffer in the same way. This is “an eye for an eye,” the idea of which was fist invented by an Egyptian king called Hammurabi.

The point is that much of what we take for granted as the legal inventions of our society, which is of course a society of well thought out and well intentioned laws, is actually a hangover from the ancient times. Much fun is made of the supposed common law that Welsh people can be shot by a long bow if they are on London Bridge, or the legal right of those in receipt of a “Key to the City of London” to drive their sheep about the centre of town. These common laws make up much of the fabric that our edifice of legal code is built upon, and some of them are ancient in the extreme. They come from a time when what was right and wrong was not dependant of a legal framework. People didn’t need to be told, they knew.

While that may sound romantic, and even perhaps a sort of primitivism, I would posit that actually nothing has changed. The reason that we “know” the legal system is not perfect is because we know right and wrong naturally to some extent. If we listen to ourselves, then we can touch it inside. The legal code of our country is an attempt to give that feeling an expression. Where the code differs from the feeling, is where the knowledge of the imperfection of the legal code comes from.

Where there is a large and intractable problem is the dehumanising nature of such a legal code. It reduces people to concepts; neat boxes that we stack like crates in a warehouse.

So, while I don’t want to attack your position too much in this (we are dancing around each other quite well), I am going to point out a few things. You wish to council me from suggesting a framework that would lead to potential disastrous societal judging, and that is a commendable kindness, however, after this you do the very same thing yourself. You warn of moving to a point where any “deviation from popular and societal norms may be considered unacceptable” and yet the “permanently insane” are to be kept in imprisonment to prevent them from “harming others.”

Is that not the same thing? For what is it to be “permanently” insane unless it also includes a serious deviation from societal norms. It must be so, or you would not be able to judge it as such. It seems that it is ok to judge someone as an outcast of sorts, as long as it is done in a legal framework that “protects society.” Laws like this are less and less about justice, and I men justice in the pure sense that Hammurabi advocated. Laws, as you express them, are to do with protecting society. What I think you mean is the structure of society; the fabric of our public will. These insane people are outside of that structure, a threat to it, and thus must be kept locked up lest they run amok in public, pulling down society’s sense of self and crossing norm boundaries at will.

How terrible these insane people must be to deserve such treatment?

Moral majority you call this. Really, it is a majority that doesn’t want to see things they don’t want to see. Who don’t want to deal with the insane, only protect themselves from them? Indeed, no doubt, once judged insane they are no longer people at all.

In fact the only time you do deal with them is when you have temporarily medicated them to normality. Then you are willing to try them in court. I don’t suppose in that case that they could have been “permanently” insane could they? More a sort of, “un-medicatedly-insane.”

I would suggest that the term “insane” is supposed to be a medical one, but that it currently isn’t. It is a legal one. Once legally “insane”, a person is stripped of their freedom and controlled. This is not because they have done something, but rather that they might.

Indeed, they might. Then again they might not. There is not exactly a shortage of “non insane” people doing “bad” things is there?

What I would advocate is simple: Insanity is removed from the legal books.

Insanity has nothing to do with a defence or a charge of killing. Again, we are talking about killing, as this is at least the clearest cut of the examples. Those who are medically judged to be permanently insane, such the elderly with extreme dementia (the horror of all horrors and a good example as they are sometimes very violent) actually make up a few small percentile of those who are “mentally challenged,” as New Labour would say. I know a person who has spent time in a mental institute and apart from her being amazing at poker, due to her ability to bluff out anyone because she unpredictable, I don’t think her problems, treatment and ability to stand trial for something is in any way diminished or indeed even similar to the elderly dementia sufferer. She represents the middle end of that spectrum.

At the shallow-end of this crazy pool is the rest of us?

Are you sure? For, I think we all go a little insane in our lives at some point, as Ferris Bueller said, “Sooner or later we all go to the zoo.” If that is the case, where is this line to be drawn for an excuse for ones actions?

Take my friend; if she went back into a home, escaped and killed someone (say with her car), she would be able to claim that she is absolved from the act due to her “temporary insanity.” Should she be so absolved? I don’t think so.

In fact, people should not be judged on what they thought what mind they had and what angered them (consider the ridiculous Twinkie Defence). They should only be judged on what they have done. The action speaks loud and clear. The reason that insanity and such like are currently the focus is due to intention. We differentiate between killing (manslaughter?) and murder. The Insanity plea is an attempt to present a case that the defendant is not guilty of murder or attempted murder because he was “temporarily insane” and thus “did not have murder in his heart.”

Indeed a case I know personally comes very close to this. Many years ago, Cesca and I witnessed an attempted murder. We went to court to give evidence for the prosecution and sure enough, the defence claimed that the defendants “went a little too far” and “didn’t want to kill the victim.” They “lost control” and “were not responsible for their actions.” So what? Believe me, I could clearly see they went too far as they stabbed the victim 50 times in 30 seconds. Should they be able to use this as an excuse the fact that they went “too extreme”? Is it that the more extreme the crime, the less the responsibility for it?

How to judge a person’s intentions is such a maze that it is almost certainly a folly. To try to do so is to miss the essential nature of what it is that they have actually done. By focussing on that actual act rather than the intention of the actee, we come to a place where insanity is irrelevant. You stand and fall on your actions. It is fair, balanced and blind all the things the legal code should be. Therefore, I present the idea that intentions should not be so important when judging an action. The reason this is a change is that at the moment a court judges the public safety and the intentions as the vital thing. Guilty is the verdict, “You are guilty” is the format.

Slightly silly really, as most criminals do not feel “guilt.”

Quite the opposite. Killing in the form we know as murder is often an “elated experience.” A good book I really recommend in order to get inside the head of a violent career criminal is the self defence tome, “Dead or Alive” by Geoff Thompson, who interviews a horde of muggers serving time.

However, how to judge right and wrong without intention? The only real objection to this idea that I can think of is the problem of accidental actions. That an action was accidental should be, to my mind, the only defence under the law. Not only that, but we should not be so ready to put people into boxes. That is reducing them to the status of things, concepts to be moved around and stacked. Insanity is such a large and intractable grey area that it is a very slippery slope for abuse. I advocate a freer society.

But, what of the risks? You may ask, what about letting dangerous potential killers run lose?

Last week, a boy went into his school with a science project. The security guards spotted the project in the boy’s bag during a random inspection and set off the terrorist alarm. They closed the school, called the parents of all the children, alerted the FBI, Homeland, and the Press. This boy was dragged through hours of hassle. When they realised that the boy had done nothing wrong, they demanded he apologise for the trouble he had apparently caused. When he said, the innocent have nothing to apologise for, the school then demanded he go to “counselling,” to bring his abhorrent, and outside the norm, behaviour back into line.

When stupid things like this happen in a country, I do not think my ideas are the things that generate fear. However, none the less, the answer to the questions above is the same in both the case of me and the boy.

Society’s structure is to blame here. In the case of the boy, the stupid law that children can have access to firearms, leads to a “fear overload” A knee jerk reaction that only makes sense in the terms of the framework in play. Similarly fearing “crazy” people is a result of the society we live in. We have bred insane people who are violent. Of course, a small percentage would be regardless, but our society encourages such comfortable numbness in its people. Take those two boys mentioned in the first example who tortured a boy in England. Their reason was?

“We was bored”

The sorts of punishments these two deserve are not the point. The sort of punishments the country deserves is. I am saying that in a new society, that does not raise such psychotic shitheads as those two, we wouldn’t need to be so afraid. We need a spiritual revolution, a liberal revolution and a total countrywide project to learn to relax.

We need to learn that science is not the be all and end all. Nor is religion. Some sort of sense of spiritual upbringing, a new deal with the citizenship and a new justice system is just the start, but it is a long way to making this life and this country know itself again.

And justice be real.

Regards,

Basho

2016-10-18T18:52:30+00:00

About the Author:

Bio: Philosopher, film maker, writer and IT expert. Occupation: IT Consultant, film-maker and writer. Interests: Debate, cooking, computer-gaming, reading, writing, videoing, martial arts, air­soft, movies, diving, skiing… (The list goes on — Basho is a philosopher and therefore into everything!)