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25 St. Louis U. Pub. L. Rev. 409 (2006)
The Insanity Defense: History and Problems

handle is hein.journals/stlpl25 and id is 427 raw text is: THE INSANITY DEFENSE: HISTORY AND PROBLEMS
The insanity defense has stirred more emotions than almost anything in
criminal law except the death penalty, and yet it is very rare. Most studies
have found that less than 0.5% of trials lead to insanity acquittals.1 Why has
this happened?
One part of the answer is that many people have little knowledge of mental
illness. If they cannot see it, then they doubt its existence. No one argues that
there is a difference in a planned action and an accident; indeed, the statement,
It was an accident! is a statement that every parent has spontaneously heard
from their children. If a person is ill in such a way that they misunderstand
events and act not out of malice but rather from incorrect information, they are
generally seen as being either not responsible or responsible at a much lower
The confusion around insanity grows from the very culture of Judeo-
Christian Western Civilization. All of our legal history has dealt with issues of
responsibility. The Christian Bible discusses from the very beginning Adam
and Eve's ability or inability to know right from wrong. How this would be
determined is unknown, except that presumably God could not make an error.
In Exodus, the issue is intent, with lack thereof being an exception.
Anyone who strikes a man and kills him shall surely be put to death.
However, if he does not do it intentionally, but God lets it happen, he is to flee
to a place I will designate.3 Intentionality is not defined, but is left up to the
* M.D.; D.F.A.P.A.; Director, Forensic Psychiatry Program; Department of Psychiatry,
University of Alabama. The author holds appointments at the University of Alabama, UAB
Medical School, and the University of South Alabama School of Medicine. He has opened an
ACGME-approved Forensic Fellowship in 1999 and is a Distinguished Fellow of the American
Psychiatric Association, Past President of the Alabama (State) Psychiatric Society, and has been a
member of the American Academy of Psychiatry & the Law since its inception. The author
maintains a Forensic Psychiatry Web Page at http://bama.ua.edu/-jhooper/index.shtml.
1. See, e.g., Ira Mickenberg, A Pleasant Surprise: The Guilty But Mentally Ill Verdict Has
Both Succeeded in Its Own Right and Successfully Preserved the Traditional Role of the Insanity
Defense, 55 U. CIN. L. REV. 943, 968 (1987).
2. Genesis 3:22 (New Int'l).
3. Exodus 21:12-13 (New Int'l).

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