Abolition of the Insanity Plea in Idaho: A Case Study

Author(s): Gilbert Geis and Robert F. Meier

Source: The Annals of the American Academy of Political and Social Science , Jan., 1985,
Vol. 477, The Insanity Defense (Jan., 1985), pp. 72-83
Published by: Sage Publications, Inc. in association with the American Academy of
Political and Social Science

Stable URL: https://www.jstor.org/stable/1046003

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 ANNALS, AAPSS, 477, January 1985

Abolition of the Insanity Plea

in Idaho: A Case Study

By GILBERT GEIS and ROBERT F. MEIER

ABSTRACT: The abolition of the insanity defense in Idaho in 1982 was

the first time in recent years that an American jurisdiction had eliminated
that traditional, common-law defense. Drawing upon questionnaire
responses from legislators, prosecuting attorneys, and psychiatrists, we
examine the circumstances surrounding this precedent-setting legislation.
We conclude that the conservative ethic stressing personal responsibility
for conduct, legal and illegal, seems to have been influential in bringing
about the new law, although future constitutional challenges may raise
issues about extension of the doctrine of strict liability in criminal cases.

Gilbert Geis is a professor in the Program in Social Ecology, University of California,

Irvine. He received his Ph. D. from the University of Wisconsin and has written or edited a
dozen books, focusing particularly on white-collar crime.
Robert F. Meier, an associate professor in the Department of Sociology, Washington
State University, is also a Wisconsin Ph. D. He is currently revising Sociology of Deviant
Behavior in collaboration with Marshall B. Clinard.

NOTE: Thanks to Carol Wyatt for typing assistance and to Sharon Arnold for research aid.

72

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ABOLITION IN IDAHO 73

DAHO in 1982 became the first juris- stone then observes with satisfaction
diction in the United States in recent that "this savage and inhuman law" was
times to abolish the insanity plea in repealed during the reign of Philip and
criminal trials.' The move was the result Mary.3
of thoughtful consideration; it did not In the United States, three state legis-
stem impulsively from a notorious in- latures during the two decades from
stance of abuse of the plea. Persons in 1908 to 1928 attempted to eliminate the
positions of authority in regard to men- insanity plea from criminal proceedings.
tal health law reform in Idaho had In Mississippi, a supreme court judge
located the source of the legislature's
formed a virtual consensus supporting
action with words that have a contem-
abolition. That consensus was firmly
based on a belief that the insanityporary
plea ring: "There has been much
had been blatantly misused and had abuse of the defense of insanity through-
out the country," Justice George H.
failed to provide either satisfactory
treatment for offenders or adequateEthridge noted in a 1931 opinion, "and
community protection against them. perhaps an undue public sentiment that
Combined with this conviction was the the abuses of this defense should call for
popular view, strongly held by residentsits utter abrogation." But Ethridge ob-
of this isolated, highly religious state,served calmly and with prescience that
that all human beings ought to take would hold for more than half a century
personal responsibility for their behav- that if such were the public mood, "it is
ior, that they should not be able to avoidtemporary." The Mississippi court struck
punitive consequences of criminal actsdown the statute excising the insanity
by reliance on either a real or a fakedplea,4 just as the Washington supreme
plea of insanity. court had done in 19105 and the Louis-
The abolition by the Idaho legislature iana court would do in 1939.6
of recourse to the insanity plea repre- Idaho was the first jurisdiction to act
sented the revival of a movement that in the wake of the mood of public
has occurred at various times over the outrage after the acquittal of John W.
centuries. In his Commentaries, Black- Hinckley, Jr., on the ground of insanity,
following his attempt on the life of
stone tells of a statute enacted during the
President Reagan.7 Idaho at first glance
reign of Henry VIII that provided that if
a person with a sane mind committed
3. William Blackstone, Commentaries on the
treason and afterwards became mad, he
Laws of England, 2nd ed. rev. (Chicago: Calla-
might be tried in his absence and suffer
ghan, 1869), bk. 4, chap. 2, p. 24; the original
death, as if of perfect memory.2 Black-
edition appeared from 1775 to 1779. The repealing
legislation was An Act whereby certayne Offences
be made Tresons, I & 2 Phil. M., c. 10 (1554).
1. Idaho Code ?18-207 (Supp. 1983). By the
middle of 1983, Montana also had abolished the 4. Sinclair v. State, 161 Miss. 142, 132 So.
581 (1931).
insanity plea, and eight states had provided for
verdicts of guilty but mentally ill. U.S. Depart- 5. State v. Strasburg, 60 Wash. 106, 110 Pac.
ment of Justice, Bureau of Justice Statistics,1020 (1910).
Report to the Nation on Crime and Justice: The 6. State v.Lange, 168 La. 958, 128 So. 639
Data (Washington, DC: Government Printing (1929).
Office, 1983), p. 68. 7. See generally Gertrude Block, "The Hinck-
2. An Acte for Due Process to be had in ley Trial and the Fallacious Presumptions of the
Highe Treason in Cases of Lunacy or Madnes, Insanity
33 Defense," ETC, 39:223-37 (Fall 1982);
Hen. 8, c. 20(1541-42). Ferdinand N. Dutile and Thomas H. Singer,

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 74 THE ANNALS OF THE AMERICAN ACADEMY

appears an unlikely jurisprudential pio-in Idaho "to stem from ... rigid
seemed
neer. But the powers that run the conformity."8
state
are rather homogeneous ideologically,
Idaho is a highly conservative state.
and they can, if aroused, readily
Its co-
citizens, half of whom are Latter Day
alesce behind a new idea. Saints-Mormons-tend to be notably
In the present article, we seek to usehostile to mental health concepts; not
the Idaho enactment as a laboratorytoo long ago, they were wont to pro-
specimen to examine the content, claim that the mental health movement
sources, and some of the issues sur- was dominated by left-wingers. As one
rounding abolition of the insanity plea. resident told Gerassi, Idaho is the Mis-
Idaho may hardly influence legal thoughtsissippi of the West in terms of its
or public opinion in the way that sophis-support for things such as education. A
ticated urban centers such as New York,local social worker has observed, "I
California, or the District of Columbiathink one of the worst insults you can
do, but, on the other hand, it offers ause in Boise is the word 'expert.' It's
manageable and circumscribed settingamazing how many people automati-
for close scrutiny of the career of acally think of experts as enemies."9
highly controversial social movement. The initial announcement by the state
attorney general that he would press for
THE BACKGROUND abolition of the insanity defense offers a
flavor of the sentiment behind the move-
The most perspicacious portrait of
ment. He noted with pride that Idaho
the social climate of the state of Idaho is
would be "the first state in the nation" to
that set out by journalist John Gerassi,
who delved into a homosexual scandal
alter its law. Abolishing the insanity
defense, it was maintained, "would
that aroused residents and officials in
remove confusion from the courtroom
Boise in the early 1960s. Gerassi was
as lay jurors try to determine the very
outraged by what he regarded as insen-
complex issues surrounding that deter-
sitive treatment of men alleged to be
mination." More revealing is the attorney
sexually involved with underage boys.
general's observation that the insanity
He thought that the legal officials and
plea had been "grossly distorted" so that
the media treated them barbarically,
it "allows many criminals to undergo
and that the root of the response lay in a
only a short period of psychiatric treat-
"repressed hostility" that for Gerassi
ment before they are found to be 'cured'
and released from custody." The attorney
"What Now for the Insanity Defense?" Notre
general, a declared candidate for lieu-
Dame Law Review, 58:1104-11 (June 1983); Peter
tenant governor in the next election-he
Arenella, "Reflections on Current Proposals to
ran
Abolish or Reform the Insanity Plea," American successfully-said he wanted to
Journal of Law and Medicine, 8:271-84 (Fall "streamline psychiatric involvement" in
1982); Ronald Dayer, "The Insanity Defense in
criminal trials.10
Retreat," Hastings Center Report, 13:13-22 (Dec.
1983); National Mental Health Association, Na-
tional Commission on the Insanity Defense, Myths 8. John Gerassi, The Boys of Boise: Furor,
and Realities (Arlington, VA: National Mental
Vice, and Folly in an American City (New York:
Health Association, 1983); Stanley Lesse, "The
Collier Books, 1968), p. 150.
Psychiatrist in Court-Theatre of the Absurd," 9. Gerassi, Boys of Boise, p. 66.
American Journal of Psychotherapy, 36:287-91 10. Tom Knappenberger, "Insanity: Idaho to
(July 1982). Consider Changing Law Allowing Mental State as

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ABOLITION IN IDAHO 75

The ethos behind the repeal is re- The solicitor general also set forth a
horror
flected in the statement of a psychiatrist story to underline the inade-
who had campaigned for a decade for quacies of the insanity defense as it had
operated
abolition of the insanity defense. He had in Idaho. Michael Hightower
had been acquitted on grounds of mental
recently testified in court that the claim
illness at a pretrial proceeding in early
of a defendant to be insane was "hog-
1973.
wash," and no more than an attempt to He was sent to a mental institu-
"hoodwink" the jury. The psychiatristfrom which he escaped; during his
tion,
period of freedom, he apparently was
insisted that most mentally ill persons
commit misdemeanors and that their guilty of kidnapping and rape. He again
attorneys do not bother to employ the avoided prison by successfully pleading
defense on their behalf. Under an al- insanity, and two years later was re-
tered law, where mental competence leased from a hospital as no longer
would be argued at the sentencing stage, suffering from illness. "It has been re-
such persons would be more apt to ported," be the solicitor general observed,
deemed in need of treatment. As a con- "that he has since been convicted of rape
sequence, the mental health establish-and murder in the state of Wash-
ment would be forced to upgrade itsington."14
currently inadequate facilities." The Idaho abolition was not totally
The state's solicitor general, a strong without opponents. They formed ranks
supporter of the new law, provides addi-behind the state's Mental Health Asso-
tional material regarding the spirit that ciation, which rather feebly fought the
prompted the change. He opened his bill on a number of grounds, including
discussion in a recent law review exami- the claim that it abridged due process
nation of the Idaho position with a rights and that it failed to offer satis-
series of rousing statements: factory definitions for such key terms as
"fitness," "mental illness," and "expert."
The insanity defense is a venerable insti-
One of the association's major argu-
tution, long protected from change by the
suspicion that because the precept is old it
ments against the measure was that it
must be valuable. Its proponents insist, with did not provide for civil commitment of
varying degrees of exaggeration, that it is an convicted persons sent to mental hos-
indispensable element of a fair system of pitals when their court-imposed sentence
criminal responsibility.'2 expired. This was in line with the asso-
ciation's basic stress on the need for
The insanity defense, the solicitor
increased public protection against dan-
general maintained, "has contributed
gerous offenders.'5
precious little to making the law more
humane." Its central flaw was "its scien-
THE NEW IDAHO LAW
tific unreliability."'3
Idaho until 1967 had employed t
a Defense," Idaho Statesman, 27 Apr. 1982;
William E. Schmidt, "Idaho Test Seen on Insanity McNaughtan test to determine insanit
Plea Ban," New York Times, 30 Apr. 1982. At that time, the state supreme co
11. Schmidt, "Idaho Test Seen on Insanity decreed that psychiatry had progress
Plea Ban."

12. Lynn E. Thomas, "Breaking the Stone

14. Ibid., pp. 245-56.
Tablet: Criminal Law without the Insanity De-
15. Press release, Mental Health Association
fense," Idaho Law Review, 19:239 (Spring 1983).
13. Ibid. Idaho Office, Boise, n.d.

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76 THE ANNALS OF THE AMERICAN ACADEMY

to the point at which the assumptions -the

on availability of treatment and
which McNaughtan was based were no level of care required;
longer satisfactory and, as had many
-any risk that the defendant, if at
other states, it adopted the Americanlarge, may create for the public;
Law Institute's definition of insanity.16and
The 1982 law, however, eliminated
any consideration of insanity from - thea capacity of the defendant to
criminal trial, restricting court testimony appreciate the wrongfulness of
his conduct or to conform his
to issues of mens rea or other matters
that might be an element of the offense conduct to the requirements of
law at the time of the offense
charged.17 The aim is to distinguish
testimony bearing on legal responsibil- charged.'8
ity from that concerned with moral
blameworthiness. A defendant will be PSYCHIATRISTS, LEGISLATORS,
PROSECUTORS
examined before trial, however, to de-
termine if he is fit to proceed to trial. If To obtain a firmer fix on the condi-
not, the defendant will be placed in tions
a that underlay the Idaho law and
mental facility and may be tried if ever how relevant persons felt about the
he regains his ability to aid in his defense
statutory change, we conducted a ques-
in an adequate manner. The only pos-
tionnaire survey of members of three
sible trial verdicts will be guilty or notgroups: psychiatrists, state legislators,
guilty. If the defendant is declared guilty
and prosecuting attorneys. We presumed
and there is reason to believe that his
that the persons who answered would be
mental condition "will be a significantmore likely than those who did not to be
factor at sentencing and for good causeconcerned about the questions. The
shown," a psychiatric examination is tonumber of questionnaires sent and re-
be carried out and its results filed with
turned, along with rates of return, was
the court. The court, in sentencing, is as follows: psychiatrists, 34 sent, 5 re-
ordered by law to consider factors such turned, 15 percent; legislators, 105 sent,
as the following: 18 returned, 17 percent; prosecuting
the extent to which the defendant attorneys, 44 sent, 9 returned, 20 percent.
is mentally ill; Obviously, such a low response rate
precludes any meaningful numerical
the degree of illness or defect and
statements about how the groups as a
level of functional impairment; whole felt; but it was not such tabula-
the prognosis for improvement or tions that we sought, only further in-
rehabilitation; formation concerning the views that had
led Idaho to abolish the insanity plea.
One factual question and two in-
16. State v. White, 93 Idaho 153,456 P.2d 797 quiries about the respondents' opinions
(1969). constituted the heart of the brief survey
17. See generally Gary V. Dubin, "Mens Rea instrument. We asked, "What was your
Reconsidered: A Plea for a Due Process Concept
attitude toward abolition of the insanity
of Criminal Responsibility," Stanford Law Re-
view, 18:322-95 (Jan. 1966); Francis B. Sayre,
defense?" Thereafter, there was a single-
"Mens Rea," Harvard Law Review, 45:947-1026
(Apr. 1932). 18. Idaho Code ?9-2523 (Supp. 1983).

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ABOLITION IN IDAHO 77

reward for our suppression, we would

word inquiry, "Why?" and subsequently
the question, "Why do you believelike to make certain that those who have
that
not forced themselves to repress their
Idaho became the first American juris-
diction in current times to eliminateevil
theimpulses suffer suitably for that
insanity defense?" lapse so we ourselves can be reassured
that our sacrifice was not for nothing.
That this interpretation may not be
Psychiatrists
altogether fanciful is illustrated in re-
sponses
Four of the five psychiatrists who re- that combine the idea of per-
sponded said that they had favored sonal responsibility with references to
abolition of the insanity defense, a the fact that offenders who had avoided
ratio
that we found surprising. Though they criminal responsibility were prematurely
tended to be more articulate-as well as released from mental institutions to

more prolix-the psychiatrists favoring which they were assigned. Such state-
abolition by and large echoed opinions ments seem to contain punitive, as much
that we would find stated again and as community-protection, connotations.
again by the prosecutors and the legis- Whatever the accuracy of its alleged
lators. One psychiatrist encapsulated in psychodynamic roots, the belief that the
just two words the pronouncement that insanity plea undercuts legitimate de-
we most often encountered from all mands for assumption of personal re-
sponsibility
groups as constituting the basis of their should not be undervalued
as
opposition to the insanity plea. He wrote, an ideological position. It can force-
"Personal responsibility." A fellow prac-fully be argued, as Thomas Szasz has
titioner fleshed out that point a bit. "Adone,19 that to hold human beings per-
mental illness or psychosis," he argued,sonally responsible for their behavior
"should not be an excuse for errant accords them a dignity and a humanity
behavior." Others of the respondents that is taken from them by having
expanded on this matter; what they excuses,
all such as insanity, superimposed
sought to convey was that Idaho had upon
a their actions.
lingering frontier ethos, and that that Two of the responding Idaho psychi-
ethos puts high value on a behavioral atrists virtually echoed each other in
their explanation of why they had fa-
equation that insists that persons should
vored abolition. Both focused on what
take-or, more apropros, should suffer-
the consequences of their personal they
be- regarded as the abuse of the in-
havior. sanity plea-and, probably, of their
The roots of this strongly and widely profession-by lawyers engaged in es-
held belief probably lie not so much in tablishing or rebutting allegations about
Idaho's frontier heritage, but in the the mental state of the defendant. The
religious convictions of its population. briefer response of the two put the
Some psychiatrists-though perhaps not matter this way:
the ones we heard from-might suggest It was misused by lawyers. ... I feel if
that such a viewpoint represents the insanity or mental incompetence is in ques-
response of the uneasy good against the
acting-out wicked. That is, there exist in 19. Thomas Szasz, Law, Liberty, and Psy-
all of us impulses toward wickedness chiatry: An Inquiry into the Social Uses of Mental
that we suppress at some cost. As a Health Practices (New York: Macmillan, 1963).

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78 THE ANNALS OF THE AMERICAN ACADEMY

tion, the issue of the crime and of the not been

mental working very satisfactorily-
state should be determined separately "noand
better than in any other state," as
the mental state [should] help to determine
one observed. Emphasis was placed on
the punishment and means for attaining this.
the fact that Idaho is a small state, and
The most comprehensive reply fromthat large numbers of citizens collec-
tively
a psychiatrist concerning his support for follow the details of notorious
abolition made mention of a number of criminal cases and form a judgment
points. First, he thought that defenseabout what they come to regard as
attorneys confused "the conclusion fromabusive use of insanity pleas, just as the
a current clinical examination with a national population did for the Hinckley
retrospective opinion." Second, he be- One psychiatrist thought that not
case.
many of his Idaho colleagues believed
lieved that psychiatrists would be better
there was any such thing as mental
employed if they used their "limited
illness.
skills and expertise" for the treatment of
the mentally ill and "avoided incursions The doctor who opposed abolition
had been a member of the legislative
into the criminal justice system." Third,
task force that considered the measure.
he felt that the insanity plea too often
He thought that the "obvious abuses" of
served as a weapon for the defense to pry
a more favorable bargain from the pros-the plea were being used as an excuse to
ecutor. Fourth, he was convinced that keep persons who needed its protection
the insanity plea had resulted in over- and aid from receiving such assistance.
burdening state mental hospitals with He also believed that the attorney gen-
persons with long histories of criminal eral had used abolition as a popular
behavior who, as a group, were "dan- campaign issue.
gerous, exploitive, unhappy, demand-
ing, clever, and uncooperative." They Legislators
took, he said, "an inordinate amount of
the hospitals' resources and energy." Some of the legislators seemed to
And finally, this psychiatrist noted that have responded to the questionnaire
in Idaho an examination by a single more in the way of a habit of answering
clinician-most often a psychologist- their mail than because of any real
determined the outcome of an insanity interest in the issue being addressed. But
allegation. This, he believed, sometimes the remainder provided thoughtful, often
resulted in decisions based on inade-
extended, responses. Of the total of 18
quate and uncontroverted evidence. responses, 15 had favored abolition,
Why had the reform occurred innone had been opposed, and 3 reported
Idaho? The most common response was that they had been ambivalent. One of
that in Idaho, as one psychiatrist ob-
these had been persuaded to vote in
served, there had been "excessive use of
favor of it "by the testimony of lawyers
the insanity defense to avoid criminal and shrinks I respect" and by the fact
prosecution." "Insanity," he claimed, that the measure had the support of
"was often interpreted as any emotional "intelligent people."
disturbance rather than overt psycho-Again in these responses there was
sis." The psychiatrists also believed that
strong emphasis on the misuse of the
the previous insanity plea system had plea. One legislator put the point in

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ABOLITION IN IDAHO 79

defendant
particularly astringent terms, saying that and not only his contrived or
questionable
abuse had been "flagrant" and that the mental state." The plea
plea had become "laughable." A member was said to have turned trials into
of the House of Representatives offered "sideshows," in part because defense
a feminist interpretation, observing lawyers
thatfelt compelled to raise the plea
the insanity plea had remained un- or to run the risk of facing charges of
touched until 1982 because "it fit nicely inadequate representation. Cases were
with the traditionally male structure," believed to have become "swearing con-
but that it had lost its credibility when it tests between psychiatrists." One pros-
was extended to cover cases of alleged ecutor summed up a common feeling in
premenstrual tension. Legislators also these terms:
stressed that they were concerned that
dangerous offenders were being released Juries are confused by the medical-mental
from mental institutions without first testimony and when numerous mental health
professionals have testified in total opposi-
having served the amount of time that
tion to each other there is generally no
would have been imposed on them had
feeling of validity to any of the testimony.
they been deemed guilty of the criminal
Both the defense and the prosecution attor-
act.
neys have available professional witnesses
It was also pointed out that the Idaho who for payment of the proper fee will
legislature had less than 10 percent of itssupport any position.
membership from the ranks of attor-
neys, a figure believed to be much lower In short, the insanity plea was said to
have
than in most American law-making become "a trial tactic with no real
bodies. Absent a large contingent of basis in the defendant's mental state." A
legally trained persons, the legislators
particularly thoughtful contributor put
were not constrained by arguments fa- his views in these words:
voring retention of the insanity plea that
We were finding that the insanity defense
might have relied upon jurisprudential
was being asserted in an ever-increasing
tradition or warnings of constitutional
number of cases. It was asserted in cases
barriers, among other things. where, I felt, even the minimum threshold
requirements for that defense were not
present.
Prosecuting attorneys
It is probably incorrect to say that Idaho
Of the nine county prosecutors who "abolished" the insanity defense. The new
responded, seven had favored abolition, tactic of defense attorneys in ourjurisdiction
one had been opposed, and one ambiv-is to challenge an individual's ability to aid
alent. The reasons favoring changehis attorney in the preparation of his own
defense. If successful in that endeavor the
duplicate to a great extent those we
encountered among members of the defendant may never have to be tried under
our statutory scheme. Thus, our "abolition"
other groups surveyed, with added re-
has shifted the emphasis from asserting the
citals of personal courtroom experience.
defense during the trial to pre-trial. Al-
"Juries occasionally reach extremelythough the standards are different, it doesn't
unjust decisions," said one prosecutor.appear to be as difficult to have an individual
"Abolition of the defense will again certified to not be able to assist his attorney
focus attention on the conduct of the in preparation of his own defense as it would

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80 THE ANNALS OF THE AMERICAN ACADEMY

abolition of the insanity plea promised

be to challenge the intent aspect of a par-
ticular crime. while the law change was being debated.
No such challenge has been made, how-
The prosecutor also reminded us that
ever, during the year and a half since the
the new law did not eliminate the possi-
new law was enacted. This may repre-
bility of challenging the existence of
sent satisfaction with the altered ap-
criminal intent, though he granted that
proach or, more likely, inertia in regard
the burden now seemed higher than it
to mounting an expensive, demanding
had been under the repealed law. That
attack.
is, he pointed out, "the defendant would
now have to prove that he did not intend
Opponents of abolition can presume
his act, as an affirmative defense, versus a reasonable chance of appellate court
success: in each of the three states where
simply not knowing that the act he
legislatures in the past had eliminated
intended to commit was wrong."20
the insanity plea, the enactments were
Explanations by the prosecutors as to
struck down as unconstitutional. The
why Idaho had led the nation in this law
first such ruling was delivered in 1910 in
change repeated many of the points
noted earlier. One prosecutor, for in- the Strasburg case. The Washington
stance, observed, "Idaho is conservative legislature the year before had passed
the following law:
and generally pro law enforcement, and
its people generally believe that one It shall be no defense to a person charged
should take personal responsibility forwith the commission of a crime, that at the
his own actions." The most acerbic note time of its commission he was unable, by
among the prosecutors' responses wasreason of his insanity, idiocy, or imbecility,
entered by the attorney who had op-to comprehend the nature and quality of the
act committed or to understand that it was
posed abolition of the plea. Why had the
wrong; or that he was afflicted with a morbid
change taken place in Idaho? we had
propensity to commit prohibited acts; nor
asked. "Ignorance," was his reply.
shall any testimony or other proof thereof be
admitted in evidence.21
IS IT CONSTITUTIONAL?
Strasburg maintained that the pro-
Idaho officials have awaited the con-
vision violated his due process rights as
stitutional challenge that opponents of
well as his right to trial by jury. The state

20. The precise consequences of the new law

supreme court, noting that the law was
are not readily determinable; Idaho officials arethe first of its kind, deemed it a "matter
attempting to launch a research project to pin-of grave concern" that required "more
point this information. James L. Antram, chief of than ordinary critical examination. " The
the state Bureau of Mental Health, Department of
court declared that the insanity defense
Health and Welfare, the agency that carries out
many of the determinations of mental compe-
was a sacrosanct right of a person ac-
tency, says that he has "the general impression thatcused of a crime and that trial by jury
there has been a decrease in the times that the issue "must mean that the accused has the
of competence is raised," and also notes that moreright to have the jury pass upon every
persons are coming into the custody of the De-
substantive fact going to the question of
partment of Corrections who are believed to need
mental health care. Telephone interview, 23 Apr.enormous success" because it has "reserved ques-
1984. Kenneth R. McClure, division chief of tions of intent for cases in which they are ap-
legislative administrative affairs in the state at- propriate." Telephone interview, 14 Apr. 1984.
torney general's office, considers the new law "an 21. Wash. Crim. Code ?6 (1909).

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ABOLITION IN IDAHO 81

to have
guilt or innocence, including whether orhis defense of insanity tried by
not he was sane when he violated the
jury. 23
law." In 1928 Mississippi passed a law that
Dissenting in the 7-to-2 verdict- prohibited use of insanity as a defense in
with one of the concurring judges homicide cases.24 Defendants, however,
agreeing only in part with the majority- could present evidence of their mental
Justice George E. Morris bowed before state, and if the jury found them guilty
the legislative will: "The same law-enact- but insane, punishment would be life
ing body which has said that an insane imprisonment. George Sinclair chal-
man cannot be guilty of the commission lenged the law on constitutional grounds,
of a crime may destroy that immunity." claiming that it represented cruel and
Morris also took the cudgel to the unusual punishment, denied due pro-
insanity plea with ringing rhetoric: cess, violated equal protection rights,
and denied him a fair and impartial trial.
No defense has been so much abused and no
feature of the administration of our criminal
The state supreme court agreed with
the appellant in a 7-to-2 decision. The
law has so shocked the law-loving and law-
abiding citizen as that of insanity, put for- majority opinion went back to common
ward not only as a shield to the poor law to anchor its support for retaining
unfortunate bereft of mind or reason, but the insanity plea as an excuse for crim-
more frequently as a cloak to hide the guiltyinal conduct, and also argued that no
for whose act astute and clever counsel can general deterrence purpose would be
find neither excuse, justification, nor miti-served by convicting an insane person.
gating circumstances, either in law or fact. ItBlackstone's observation that a madman
is therefore not strange that there should be
is punished sufficiently by his madness
found a legislative body seeking to destroy
alone was noted approvingly.25 Each
this evil and wipe out this scandal upon the
constitutional objection was upheld, with
administration of justice.22
the majority observing further that Sin-
Almost 20 years later, a Louisiana clair's mental condition had precluded
trial judge, in accord with the state'shim from participating satisfactorily in
newly enacted statute, appointed a lu-his defense: he had "sat through the trial
nacy commission to inquire into Williamin an indifferent, dazed, hazy state of
P. Lange's mental condition at the timemind, totally oblivious of what was
he was alleged to have committed mur- taking place."
der. The commission, composed of the Chief Justice Sydney Smith, in dis-
parish (county) coroner and the super-sent, like Morris in Lange, first bowed
intendents of two state mental hospitalsto the power of the legislature to define
or their representatives, could not have 23. State v. Lange, 123 So. 639, 642 (1929).
its finding challenged during trial. The 24. James W. Mann and Gene Parker, "Legal
Louisiana supreme court had no doubt Status of the Mentally Ill in Mississippi," Mis-
that the legislative formulation was sissippi Law Journal, 41:100 (Winter 1969).
25. Blackstone, Commentaries, bk. 4, chap.
unacceptable. It noted in a unanimous
31, p. 395. The observation-furiosus solofurore
opinion that "where the offense itself is
punitur-echoing Justinian's Digest of the sixth
triable, under the Constitution, by jury,
century is one of the few arguments offered against
the accused has the constitutional righttrying the insane accused when they recover their
senses. Nigel Walker, Crime and Insanity in
England, vol. 1, The Historical Perspective (Edin-
22. State v. Strasburg, 110 P.2d 1020, 1029. burgh: Edinburgh University Press, 1968), p. 197.

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82 THE ANNALS OF THE AMERICAN ACADEMY

the constituent elements of crimes. He plea, six years earlier it had upheld the
then went on to reject stare decisis in position that knowledge and intent were
favor of what he regarded as sophisti- not essential elements of the crime of
cated scientific research. Medical juris- accepting the earnings of a common
prudence, Smith argued, had learned prostitute.28
that the truly insane rarely kill, unless by The Idaho statute, by reducing issues
accident, and that they are unlikely to at trial to only the concept of intent and
recover from their condition, thereby those inherent in the definition of the
escaping altogether trial and punish- particular offense, has moved closer to a
ment for their behavior. Since such strict-liability approach and, in the pro-
persons were rarely involved in court
cess, has increased the state's power to
cases, the degree of due-process viola-
convict. It may be that mens rea and
tion was small, and the enhanced pro-
insanity are so inextricably bound to-
tection to the community under the new
gether that it will prove impossible to
approach was deemed to be significant
gain appellate court approval of their
and, on balance, overriding. Juries,
separation. Dissenting vigorously in a
Smith said, should decide only matters
review of his state's bifurcated trial
of fact-behavior-and experts shouldsystem, in which guilt and sanity were
adjudicate the matter of a defendant's
separately determined by a jury, Justice
mental state.26 John W. Preston of California may have
given voice to the view that will spell the
CONCLUSION
demise of Idaho's experimental approach
to excision
The question of strict liability lies of the insanity defense.
Preston
near to the heart of legislative enact- wrote,
ments and constitutional challenges re-
There can be no malice, deliberation or
garding the insanity plea. Strict-liability
premeditation without sanity. There can be
offenses relieve prosecutors of the need intent-indeed, no criminal
no criminal
to establish intent. Impure food and there is no sanity. If the jury, in
act-where
drug cases, traffic offenses, and statu- the intent of the defendant, may
ascertaining
tory rape are among the better-known
not consider the evidence of his insanity, it
offenses in which strict-liabilitymust follow that the legislature has the
stand-
ards are imposed in many states.27 power to dispense entirely with the element
None-
theless, distinctions continue to be drawnYes, more is true: If the jury may
of intent.
not, before assessing guilt to the defendant,
between strict liability and the insanity
consider the fact that he is insane, not only
defense. For instance, though the Wash-
may criminal intent be dispensed with, but
ington State supreme court in 1910
the time-honored and almost sacred pre-
struck down abolition of the insanity
sumption of innocence may be set at naught
26. Sinclair v. State, 132 So. 581, 591-97. by the law-making power.29
27. See generally Morisette v. United States,
Obviously, in Preston's eyes, such
342 U.S. 246 (1952); Richard A. Wasserstrom,
"Strict Liability in the Criminal Law," Stanford rule making was unacceptable. So too
Law Review, 12:731-45 (July 1960); George
Fletcher, Rethinking Criminal Law (Boston: 28. State v. Zenner, 35 Wash. 249, 77 Pac. 191
Little, Brown, 1978), pp. 716-36; Rollin M. (1904); see also State v. Akridge, 3 Wash. App. 96,
Perkins, "Criminal Liability without Fault: A 472 P.2d 621 (1970).
Disquieting Trend," Iowa Law Review, 68:1067- 29. People v. Troche, 206 Cal. 35, 53, 273 Pac.
80 (July 1983). 767, 774-75, cert. denied 280 U.S. 524 (1928).

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ABOLITION IN IDAHO 83

Idaho
Jay Katz and Joseph Goldstein has been able to translate these
main-
tain that "the minimum requirements views of ofthe unacceptable into a con-
mens rea have been held to compel temporary reality, without in the pro-
recourse to the insanity plea in criminal cess violating constitutional guarantees.
trials."30 It remains to be seen whether

Barbara D. Underwood, "The Thumb on the

30. Jay Katz and Joseph Goldstein, "Abolish
the 'Insanity Plea'-Why Not?" Yale Law Review,
Scales of Justice-Burdens of Persuasion in Crim-
inal Cases," Yale Law Journal, 86:1328 (June
72:872 (Apr. 1963), citing State v. White, 60 Wash.
2d 551, 590, 374 P.2d 942, 965 (1962); see also 1977).

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