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477 Annals Am. Acad. Pol. & Soc. Sci. 9 (1985)

handle is hein.cow/anamacp0477 and id is 1 raw text is: PREFACE The insanity defense is the most abused defense. No other defense has been so often denounced or so routinely criticized. Even though it has been firmly established in the law for over four centuries, the public has never fully accepted insanity as a legitimate defense. There has always been a perception that the defense is peculiarly open to fraud and misrepresentation; that it has been employed mainly as a last, desperate resort by guilty defendants; that it allows the guilty to escape the stern hand of justice; and that it does not sufficiently protect society from the wrath of criminal madmen. Insanity, of course, is not the most abused defense if by abused one means employed by defendants to escape the consequences of their actions. In this regard, the plea of not guilty is the most abused defense. More guilty defendants plead not guilty than any other defense. Yet, no one has seriously suggested that we prevent accused criminals from denying that they have committed a crime. Most people readily recognize the limits of perfection inherent in our legal system and accept the risks as the price of liberty in a constitutional democracy. When it comes to the insanity defense, however, the public appears to demand near perfection. Although few people believe that no one is insane enough to be excused from criminal responsibility, there has been a persistent dissatisfaction with the administration of the insanity defense. Changes in the defense are long overdue, but regardless of what modifications are made, the general dissatisfaction with the defense is unlikely to end. Critics will continue to apply a standard of perfection to the insanity defense that, if applied to any of the other defenses, would be immediately recognized as unreasonable. Ironically, the insanity defense might have gained greater public acceptance if more mentally ill defendants were allowed to offer it as a plea. Since the development of the unfit-to-plead or incompetent-to-stand-trial statutes in the early nineteenth century, however, the vast majority of cases in which there is general agreement that the defendant should not be held legally responsible for his behavior no longer go to trial. In order for defendants to be tried they must be sane enough to understand the charges against them and to assist their attorneys in the preparation of their defense. Consequently, the insanity defense is employed in only the most difficult cases, situations in which the defendant is neither manifestly insane nor obviously sane, neither a raving maniac nor a mild-mannered reporter. Because it is always a matter of judgment as to where to draw the line on criminal responsibility, there will inevitably be controversy. Even if the insanity defense were abolished, there would still be controversy over the issue of criminal responsibility. The legal system would still have to take account of mental abnormality under the mens rea, or criminal-intent, requirement. Although this would make a plea of insanity much less likely-and probably produce much more agreement on acquittals-it would not eliminate all contro- versy. It might even make the controversy more intense. If the insanity defense were 9

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