CrimProf Blog

Editor: Kevin Cole
Univ. of San Diego School of Law

Friday, August 9, 2019

Corrado on Insanity and Free Will

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.
And what are the advantages of an insanity acquittal? That the offender is not punished but rather committed to an institution where he will find softer conditions and necessary treatment. The argument is based upon two suppositions: that crimes are not the outcome of the free choice of offenders but are instead unavoidable, and that punishment is due only when a crime is the result of the offender’s freely made choice. From these starting points we are to conclude that punishment is never justified. And the last step is this: Since no one is to be punished, the point of the insanity defense disappears. Call this argument “the Humanitarian Argument for abolition of the insanity defense.” We find this reasoning in the recent writings, for example, of Derk Pereboom and Gregg Caruso. I agree with much of this argument, all the way up to and including the conclusion that punishment by the state is never justified. But the last step, from “no one is to be punished” to “the point of the insanity defense disappears,” is one that I think is dangerous and unwarranted, and one that I reject.

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