Gonna need a lot of rubber rooms in the Middle East.

. . . and Seattle.

Criminal conviction and punishment are two different things, but the insanity defense as currently constituted confuses them. There is no need for the defense, and the law would be better off if it were abandoned.

Crimes, particularly those where the insanity defense is relevent, require that the government prove criminal intent, or mens rea. If a murderer is so lost to reality that he did not form an intent to murder -- he thought he was choking a dog, or his pillow -- then he is not guilty of murder. If he knew that he was killing another human being, and that is what he intended, then he is guilty of murder even if he thought that his god commanded it. (Note to lawyers: I am intentionally eliding the various degrees of murder because it's not relevent here.) This would also relieve juries of the impossible burden of judging fine degrees of insanity and leave them only with their traditional job of determining murderour intent, or its absence.

If someone is guilty of murder, but is also insane, then he can be dealt with appropriately. He can be treated, he can be reassessed, his sentence can be commuted if appropriate, but no pre-judgment need be made.

They aren't guilty. They oughtn't be tried but committed to an institution as wards of the state instead.

If they kill someone while intending to kill someone, they're guilty of murder.

Also, you apparently missed the point of Cuckoo's Nest.

No, they aren't. There are innumerable circumstances where we don't consider intentionally killing someone t be murder.

No, the point was that the Chief wasn't crazy.

Fine. If they kill someone while intending to murder someone, they're guilty of murder.

No, the point was that McMurphy could opt in to the ward (or, in your interpretation, the mommy state), but couldn't opt out. Though treated more harshly as a criminal, he had more rights as against the state.

The point is that (in)sanity is a continuum, not a polarity. Makes it tougher, don't it?

No, it's not murder if they're crazy.

RP belonged there, as even he recognized. The Chief didn't.

Right. You think it's not murder and I (and centuries of Anglo-Saxon common law) think that it is. I've explained why I think that's right: because it allows juries to make the decision they traditionally make about intent, while allowing the state to treat rather than punish after conviction. You just keep repeating your conclusion as if it were an argument.

Ghost: That's the point. Juries are not particularly useful in drawing subtle lines about insanity, diminished capacity and just plain antisocial. They are good at drawing lines about criminal intent. Let's leave them to do what they're good at and then let the experts work with the defendant after conviction.

Give it up David. When OJ decides he's right about something the argument is essentially over. No amount of evidence, context, or expert testimony will convince him otherwise, as becomes the ultimate expert in that subject. Aircraft design, transportation engineering, constitutional law, there's no beginning to his talents in these or a myriad of other areas.

There's no basis for holding someone crazy responsible for murder. There is for locking them up as a lunatic.

Still waiting for that first Brazilian jumbo to take off.

Still waiting for you to set the goalposts down.

It's Airbus that's going down. And the Brazilians won't be taking theior market share.

Here's one more point of view:

My bipolar daughter believes that when a mentally ill person refuses treatment and commits a crime he is every bit as culpable as a "sane" person. (Refusing treatment includes, in her view, not taking prescribed meds.)

She is, in fact, much tougher on that score than her old man.

The mentally ill aren't entitled to refuse treatment for the exact same reason they aren't morally culpable for crimes.

Robert: I don't argue to change OJ's mind. I argue for my own amusement and for the edification of others.

OJ: There's no basis for holding someone crazy responsible for murder. Of course there is: if they're guilty of murder. If you think that you're Henry VIII, it doesn't mean that you're not a murderer when you behead your wife. Conviction is not punishment, no matter how much you confuse the two. Conviction allows the state to take custody over the body and to exercise dominion it can't usually -- and shouldn't usually be allowed to -- exercise, while still leaving protections in place for the citizen.

Requiring a criminal conviction in order for the state to take custody is a trivial and incoherent modern innovation and should be disposed of. Craziness alone suffices to deny an individual autonomy.

No, the insanity defense is a modern innovation and diminished capacity -- which is what you're really complaining about -- is only about 50 years old. Convicting crazy people of crimes is a time-honored tradition in the Anglosphere -- one which we still follow today other than for murder because, other than for murder, crazy criminals would much rather be in jail, with a certain release date, time off for good behavior and various other rights than in the booby hatch.

By the way, you still haven't given a single reason that it's better to treat murderers without convicting them rather than to convict them and then treat them. Not only are you defending the status quo and conventional wisdom (a BrothersJudd no-no all by itself) but you are defending a status quo that is incoherent in theory and often cruel in practice.

[If anyone cares about the underlying issue, my arguments are cribbed from the late Professor Norval Morris of the University of Chicago Law School. For those interested, I highly recommend his many and convincing writings on the subject.]

No, I'm saying there's no basis for trying them. Incarcerating them for being crazy should be regular and systematic again--the opposite of the status quo. Andrea Yates wasn't a murderer precisely because she should not have been out in society.

I don't believe they can be treated. It would be fine to put them to death because they're possessed by the Devil.

Many, probably most, can be effectively treated. But some cannot ... especially the way-gone schizophrenics. (Double especially if drug abuse has "fused" the underlying disorder, like Syd Barrett.)

I mispoke earlier, BTW. Daughter agrees that someone in a psychotic state should not initially be held accountable in the same way as a "sane" person. However, if that person is effectively treated (regains sanity via treatment) and then opts out of that treatment, she would show no mercy.

Opts? They can't be allowed options.

Jumbo jets are so 20th century, and Brazilians aren't as stupid as Europeans as to pursue that dead-end. But hey, they're furriners, and even though many of them live in the southern equivalent of the Eastern Time Zone, that still makes them stoopid.

"Requiring a criminal conviction in order for the state to take custody is a trivial and incoherent modern innovation and should be disposed of. Craziness alone suffices to deny an individual autonomy."

The problem is that many of us don't want to give the State the power to start locking people away without a cumbersome and lengthly procedure in which they have to prove to ordinary citizens that the facts support their case. Then there's the 20th Century totalitarians who've shown that psychiatry can be abused by said state, and we have reason to be distrustful of such State power.

Then again, he might change his mind when his beloved State declares a dislike of automobiles, soccer, the metric system and travel to the West Coast to be signs of severe mental illness worthy of "treatment".

This is one of those times, oj, when my irony detector just doesn't seem to work.

But FWIW. When they're sane-by-medication, they have the same ability to choose as those who are sane-by-nature.

Of course, if you believe that sane-by-medication is not possible, that makes no sense.

I blame your grandfather.

I don't believe they can be treated.

Well, that gives us fascinating insight into Orrin Judd, but doesn't tell us much about psychiatry.

Quackery.

Yes, it's very much my Grandfather's fault.

Who makes them take their meds if they aren't institutionalized?

As I said.

Raoul:

Protecting us from the Andrea Yates of the world is exactly why the state exists. Requiring that she kill before we do something about her is the kind of libertarian twaddle up with which David generally doesn't put.

(Irony detector still showing multiple false positives.)

Actually, I agree with oj regarding the whole "deinstitutionalizing" fiasco. No doubt Grandpa was well-intentioned. Geraldo less so.

See "Crazy ... A Father's Search Through America's Mental Health Madness" by Pete Earley.

Geraldo did a great thing--the conditions were atrocious. No reason to release people though.

Agreed on all three points, and Geraldo is no less a schmuck.

Perhaps now--not then. Of course, he sent a nice note when our Grandfather died and got me an interview at 20/20....

The thing that makes the whole thing difficult is there is no standard definition on what insane is.

Perhaps a public trial is necessary to establish the facts of the matter, so people whose views we don't like can't be thrown into a psychiatric institutions as they did in the Soviet Union.

We don't run our society on the basis of not being the USSR.

the kind of libertarian twaddle up with which David generally doesn't put.

You're getting us confused again. "Orrin Judd" doesn't put up with libertarian twaddle. "David Cohen" hates Communitarians, but tries to be as libertarian as possible consistent with having a decent society.

Communitarians are likewise unable to be so mean as to institutionalize someone just because they're "different."

A decent society doesn't have such trouble.

No we don't. That's why we have a trial to establish the facts of the matter.

The Yates children paid a high price for your need not to be the USSR.

A decent society has some means of regulating who it locks up and for how long.

Yes, while your ideal society deals with them only after they've killed someone and then blames them for your failure.

Yes, I often fantasize about my Utopia in which crazy people are allowed to run around unchecked right up until they kill someone, at which point they are convicted of murder. Oh, wait, that was New York in the '80s, except for the, you know, conviction part.

I have no idea why you think I oppose the locking up and forced treatment of crazy people under the appropriate circumstances and with the proper safeguards. It's certainly nothing I've said.

Yates had been identified as "disturbed," but in a society where being JUDGEMENTAL is the only sin left, she was sent home to fend for herself and be at the mercy of her husband who was following the biblical command to go forth and multiply.

Of course, at the least, her kids should have been removed from her care, and steps taken to insure she had no more, but that didn't happen, so now we're talking about what to do with her after the fact.