Friday, August 9, 2019
Michael Louis Corrado (University of North Carolina School of Law) has posted Insanity and Free Will: The Humanitarian Argument for Abolition (in The Insanity Defense: Multidisciplinary Views on Its History, Trends, and Controversies, Mark D. White, editor (Praeger, January, 2017)) on SSRN. Here is the abstract:
Among the arguments for abolishing the insanity defense there is the one that politicians often appeal to: the defense makes it too easy for criminals to evade punishment, and to avoid this outcome all criminals, including the mentally ill, must be punished. The force behind the argument lies in the sentiments that arise in reaction to violent crime: fear and vindictiveness. But there are also serious theoretical arguments, among them the one that I want to focus on here, namely that the insanity defense is based upon a philosophical and sociological error, the idea that criminals have free will. If we reject that error, according to this argument, we will also reject the insanity defense, and we will reject it not for the purpose of denying the supposed advantages of the defense to the mentally ill, but of extending those advantages to all criminals.