The Durham Rule and Judicial Administration of the Insanity Defense in the District of Columbia
![handle is hein.journals/ylr70 and id is 917 raw text is: THE DURHAM RULE AND JUDICIAL ADMINISTRATION
OF THE INSANITY DEFENSE IN THE DISTRICT
OF COLUMBIA
ABE KRASHt
ON July 1, 1954, in Durham v. United States,' the United States Court of
Appeals for the District of Columbia Circuit announced a new test of respon-
sibility to be applied in all future criminal cases in the District: [A]n ac-
cused is not criminally responsible if his unlawful act was the product of mental
disease or defect.2 This new standard was designed to reconcile the rule of
responsibility with advances in medical knowledge, and to broaden the class
of persons who would be treated instead of punished; more particularly, it was
framed to facilitate communication between psychiatric experts and the courts
which was being impeded by the pre-existing tests. Although the Durham de-
cision has provoked extensive discussion 3 -indeed, one commentator has
observed that Probably no criminal case of the past decade has been the sub-
ject of such widespread debate4-the Durham formula has been adopted in
only one other jurisdiction.5 While the test has been warmly endorsed by
tMember of the District of Columbia Bar.
I am greatly indebted for many helpful comments in connection with an earlier draft of
this article to my colleague, Abe Fortas; Professor Abraham Goldstein of the Yale Law
School; and Mrs. Howard Adler, a member of the Indiana bar.
1. 214 F.2d 862 (D.C. Cir. 1954).
2. Id. at 874-75.
3. The literature on the Durham rule has attained formidable proportions. See, e.g.,
Insanity and the Criminal Law-A Critique of Durham v. United States, 22 U. CHI. L.
REV. 317 (1955) ; Sobeloff, Insanity and the Criminal Law: From McNaghten to Durham
and Beyond, 41 A.B.A.J. 793 (1955); Arnold, Due Process in Trials, 300 Annals 123
(1955) ; Hall, Psychiatry and Criminal Responsibility, 65 YALE L.J. 761 (1956) ; Douglas,
The Durham Rule: A Meeting Ground for Lawyers and Psychiatrists, 41 IowA L. REv.
485 (1956); Note, 58 CoLum. L. REv. 1253 (1958); Szasz, Psychiatry, Ethics, and the
Criminal Law, 58 COLUm. L. Rav. 183 (1958) ; Symposium, Mental Disease and Criminal
Responsibility, 5 CATHOLIC LAW. 3 (1959); Watson, Durham Plus Five Years: Develop-
menit of the Law of Criminal Responsibility in the District of Columbia, 116 Am. J. Psy-
cHiATRY 289 (1959) ; Report of Committee on Criminal Responsibility, 26 J.D.C. BAR
Ass'N 301 (1959) ; Reid, Understanding the New Hampshire Doctrine of Criminal In-
sanity, 69 YALE L.J. 367 (1960) ; Halleck, The Insanity Defense it the District of Colum-
bia-A Legal Lorelei, 49 GEo. L.J. 294 (1960); Bazelon, The Awesome Decision, Satur-
day Evening Post, January 23, 1960, p. 32.
4. Weihofen, The Test of Criminal Responsibility: Recent Developments, 172 INT'L
RECORD OF MEDICINE 638 (1959).
5. See V.I CODE ANN. tit. 14, §§ 1, 14 (1957):
All persons are capable of committing crimes or offenses except-
(4) Persons who are mentally ill and who committed the act charged against
them in consequence of such mental illness.
The Durham decision helped to inspire reconsideration of the criminal responsibility stand-](ViewImageLocal?handle=hein.journals/ylr70&div=63&collection=&method=preview&ext=.png&size=3)
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