The Uneasy Entente between Legal Insanity and Mens Rea: Beyond Clark V. Arizona

By Morse, Stephen J.; Hoffman, Morris B. | Journal of Criminal Law and Criminology, Summer 2007 | Go to article overview

The Uneasy Entente between Legal Insanity and Mens Rea: Beyond Clark V. Arizona


Morse, Stephen J., Hoffman, Morris B., Journal of Criminal Law and Criminology


I. INTRODUCTION
II. CRIMINAL RESPONSIBILITY AND THE CONSTITUTION
III. MENTAL DISORDER AND CRIMINAL RESPONSIBILITY
       A. MENTAL DISORDER
       B. THE ACT DOCTRINE
       C. MENS REA
       D. LEGAL INSANITY
       E. MENS REA AND LEGAL INSANITY
IV. CLARK V. ARIZONA
       A. BACKGROUND
       B. THE INSANITY ISSUE
       C. THE MENS REA ISSUE
           1. The Tripartite Evidence Construction
           2. The Channeling Argument
V. THE CONSTITUTIONALITY AND WISDOM OF ABOLISHING MENS
       REA AND LEGAL INSANITY
       A. ABOLISHING MENS REA
       B. ABOLISHING THE INSANITY DEFENSE
       C. ALTERNATIVES TO ABOLITION
VI. THE FUTURE OF MENS REA AND LEGAL INSANITY
       A. THE GENERAL CHALLENGE TO RESPONSIBILITY
       B. THE ROOTS OF RESPONSIBILITY
VII. MENS REA, LEGAL INSANITY, AND COMMON SENSE
VIII. CONCLUSION

I. INTRODUCTION

Ever since the affirmative defense of insanity took its first truly modern breath in 1843 in M'Naghten's Case, (1) its relationship to its cousin, mens rea, (2) has been plagued with confusion. How can one be "insane" yet still have the mental state element required by the definition of a particular crime? Can mens rea alone be a sufficient basis for a sensible theory of criminal responsibility? Are there constitutional limits to a state's power to eliminate or restrict the insanity defense or the mens rea requirement? May states constitutionally preclude defense evidence directly relevant to insanity or lack of mens rea? More generally, what impact should recognized mental disorders have on criminal responsibility? Should evolving ideas about the nature and causes of mental disorders and of human behavior in general require changes in our settled views of blameworthiness?

In Clark v. Arizona, (3) the Supreme Court recently had one of its rare opportunities to clarify some of these issues. (4) The questions Clark presented were whether Arizona's unusually narrow insanity defense test violated the defendant's substantive due process rights and whether an Arizona rule that excluded virtually all expert evidence concerning mental disorder offered for the purpose of negating mens rea violated procedural due process. (5) Alas, the decision clarified little and may in fact have further muddied the conceptual and practical waters. (6)

To lay the foundation for understanding Clark, in Parts II and III we first examine the law of criminal responsibility, including its constitutional dimensions, and then explore the relevance of mental disorder to well-settled principles of criminal responsibility, such as the formation of mens rea and the criteria for the defense of insanity. Part IV considers Clark in detail. Part V addresses the constitutionality and wisdom of abolishing either the requirement of mens rea or the defense of legal insanity. Part VI considers the future of these two doctrines, both of which, we contend, are central to preserving just and sensible principles of blameworthiness. We conclude that contemporary scientific approaches to understanding human behavior do not undermine these principles and our legal practices based on them.

II. CRIMINAL RESPONSIBILITY AND THE CONSTITUTION

The structure of criminal responsibility is superficially straightforward. Crimes are defined by their "elements," which always include a prohibited act and in most cases a mental state, a mens rea, such as intent. The Constitution's Due Process Clause has been construed to require that the prosecution must prove all the elements defining a criminal offense beyond a reasonable doubt. (7) Even if the state can prove all the elements beyond a reasonable doubt, the defendant may avoid criminal liability by establishing an affirmative defense of justification or excuse. (8) The Due Process Clause has been interpreted to permit a state to place the burden of persuasion for affirmative defenses on either the prosecution or the defense. …

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