Abolition of the Insanity Defense Violates Due Process

Journal of the American Academy of Psychiatry and the Law, Vol. 41, Pg. 488, 2013

U of Penn Law School, Public Law Research Paper No. 15-33

9 Pages Posted: 5 Dec 2015

See all articles by Stephen Morse

Stephen Morse

University of Pennsylvania Law School

Richard J. Bonnie

University of Virginia School of Law

Date Written: 2013

Abstract

This article, which is based on and expands on an amicus brief the authors submitted to the United States Supreme Court, first provides the moral argument in favor of the insanity defense. It considers and rejects the most important moral counterargument and suggests that jurisdictions have considerable leeway in deciding what test best meets their legal and moral policies. The article then discusses why the two primary alternatives to the insanity defense, the negation of mens rea and considering mental disorder at sentencing, are insufficient to achieve the goal of responding justly to severely mentally disordered offenders. The last section considers and rejects standard practical arguments in favor of abolishing the insanity defense.

Keywords: Criminal procedure, constitutional law, Fifth Amendment, Supreme Court of the United States, SCOTUS, Delling v. Idaho, blame, responsibility, mental disorder, competence, punishment, fairness

Suggested Citation

Morse, Stephen J. and Bonnie, Richard J., Abolition of the Insanity Defense Violates Due Process (2013). Journal of the American Academy of Psychiatry and the Law, Vol. 41, Pg. 488, 2013; U of Penn Law School, Public Law Research Paper No. 15-33. Available at SSRN: https://ssrn.com/abstract=2698861

Stephen J. Morse (Contact Author)

University of Pennsylvania Law School ( email )

3501 Sansom Street
Philadelphia, PA 19104
United States

Richard J. Bonnie

University of Virginia School of Law ( email )

580 Massie Road
Charlottesville, VA 22903
United States

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