The courts have been no less concerned with the post-acquittal treatment of an insane offender; they, of course, are more properly concerned with striking a proper balance between the protection of society from the offender, and the protection of the offender's own rights. In the case of Ragsdale v. Overholser, the plaintiff brought a habeas corpus proceeding to obtain release from an institution in which he had been incarcerated after acquittal, and claimed that the statute pursuant to which he had been committed was unconstitutional, in that it denied him of his freedom without due process of law.27 The plaintiff claimed the denial since the statute permitted committment without an affirmative finding of insanity at the time of committment. In holding the statute constitutional, the Court first held that the plaintiff had adequate safeguards at his disposal with which to protect his rights (i.e., the right to sue for a writ of habeas corpus). It next stated that the statute was practical, in that, in view of the fact that some time must elapse between acquittal and determination of the individual's present mental condition, it would be better spent with the offender in prison than at large. The Court held that it was not unfair to require that an offender, who has been absolved from punishment due to insanity at the time of the act, be confined until it has been determined whether or not he has recovered.

Later cases, however, have manifested more concern for the acquitted offender. In Lynch v. Overholser, the Court held that a District of Columbia statute, requiring a court to order committment of any offender acquitted on the grounds of insanity at the time of the act, applied only to an individual who had relied affirmatively upon the defense of insanity, and not to an offender who had all along maintained that he had been sane at the time of the act.28 Further, the Court in Cameron v. Fisher held that the acquittal of an individual on the grounds of insanity was not tantamount to an adjudication that he was insane, at the time of the act; it merely indicated that, upon all of the evidence, there was a reasonable doubt as to whether or not the offender had had legal capacity to commit the crime.29

The above discussion indicates merely a few of the issues which have been raised concerning the post-acquittal treatment of an offender. As will become evident, these and related problems, as well as the more fundamental questions regarding the definitions of and tests for insanity, are by no means limited to the United States, or even to common law jurisdictions.

In Europe, the majority of countries had codified its definitions of and tests for insanity, although these codes often vary greatly in complexity. Some nations have proposed fairly concise and seemingly straightforward definitions and tests. For example, the Austrian Penal Act states that to determine whether or not an act or omission done by an individual is a felony, it must be determined whether or not, among other things, that person was capable or reasoning; if so, he will be held criminally liable for his acts.30 Furthermore, the Act provides that partial impairment of reasoning ability, reduced intelligence, or partial loss of understanding may be deemed mitigating circumstances in the allocation of punishment.31 Again, the Norwegian Penal Code states simply that, "An act is not punishable if committed while the perpetrator was insane or unconscious.," and also provides for a partial reduction of punishment, "when the act is committed... during temporary strong reduction of consciousness. . . ." 32 Finally, the French Penal Code reads, "If the person charged with the commission of a felony or misdemeanor was then insane...., no offense has been committed." 33 Incidentally, the earlier-mentioned irresistible impulse doctrine is also recognized by French criminal law.34

Other nations, however, have formulated more complex tests. The West German Draft Penal Code of 1962, for example, has an elaborate set of criteria for determining which offenders will be excused from punishment; specifically: "Anybody who at the time of the act is incapable of appreciating the unlaw

27 281 F.2d 943 (D.C. Cir. 1960).

28 369 U.S. 705 (1962).

20 320 F.2d 731 (D.C. Cir. 1963).

30 The Austrian Penal Act 1945 § 1 & 2(a) (1966).

31 Id. at 46(d).

32 Norwegian Penal Code 1902 § 44 & 56(1)(b) (1961).

33 The French Penal Code 1810 art. 64 (1960).

34 Biggs. Procedures for Handling the Mentally-Ill Offender in Some European Countries, 29 Temp. L.Q. 254, 259 (1956).

fulness of his act or of acting in accordance with such an appreciation, by reason of a morbid mental or emotional disturbance, a corresponding disturbance of consciousness, or low mentality, acts without guilt."

1935

Here, too, the Code provides for mitigating circumstances based upon the partial or reduced capacity of an individual, with regards to the above criteria.36 37 John Biggs, in a survey of the approaches of several European nations to the insanity defense, discusses some additional tests for insanity employed by these nations.38 In Denmark, for example, the relevant criterion by which to determine freedom from punishment is the presence or absence of mental disease capable of causing a lack of responsibility. Belgium's tests are similar to those adopted in France, while in Italy the accused will be deemed exempt from liability if a mental aberration has resulted in the individual's lack of understanding or volition. Switzerland, interestingly, has adopted the M'Naghten rules almost literally. The Netherlands, finally, has established a general rule that if the accused is suffering from a grave mental disorder, he will almost always be exempt from punishment.

In turning from definitions of and tests for insanity as a criminal defense to the post-acquittal treatment of offenders, consider first the procedures used by several nations in Western Europe. The 1962 German Draft Penal Code contains lengthy provisions on the subject.39 Generally, if an individual who has been acquitted due to insanity constitutes a future danger to society, he will be ordered committed either to a medical or nursing institution. The individual will be institutionalized until he no longer presents a danger, at which time he will be released. The court may at any point review the committment, and must do so at specific intervals. The Penal Code of the German Federal Republic contains basically the same provisions, describing some of the rules in greater detail.40 It is interesting to note that (according to the latter Code) the avowed objectives of post-acquittal treatment are cure and care, and furthermore, that although there are several measures of "safety and rehabilitation" listed (one of which is confinement in a workhouse), only the first (i.e., confinement in an institution for cure and care) is, in practice, generally assigned to an acquitted offender. Finally, the discharge of an allegedly cured offender is always deemed conditional, subject to a variety of conditions subsequent. Tuteur and Venzlaff, commenting upon German post-acquittal treatment, note the presence of strict rules regarding judicial review of an individual's committment, beginning a mere three days after admission, and involving rights of appeal and future review within sixty days thereafter, if the individual so requests.41 They indicate that the potentially dangerous lack of the writ of habeas corpus may be offset by the favorable procedures outlined above.

Switzerland's post-acquittal treatment, as described by Anton Harder, is predominantly determined by the psychiatrist (as opposed to the courts or other institutions), varies from canton to canton (due to Switzerland's strong tradition of localism), and is often affected by a scarcity of psychiatrists, not only at the institutionalization stage, but also in the initial evaluation stage, in the sense that the probability that an acquitted individual will be institutionalized (rather than merely be placed on probation) will be directly related to the availability of psychiatric evaluation, which in turn will be directly related to the availability of psychiatrists.42 The available post-acquittal procedures are custodial care, treatment in an institution, and release on probation. Finally, a further problem arises from a lack of hospital facilities, which results in the indiscriminate mixing of criminally and non-criminally insane individuals.

Biggs' article, in distinguishing the Netherlands' post-acquittal treatment from that of Switzerland (whose laws on the subject are almost identical), points to the fact that the determination of the particular method of treatment to be used for the offender in the former nation is largely a function of classification of the offender at the Utrecht Psychiatric Observation Clinic.43 At the

35 The German Draft Penal Code 1962 art. 24 (1966).

Id. at art. 25.

"The 1953 Penal Code of the German Federal Republic, as amended to 1961, contains substantially the same provisions.

25 Biggs, supra note 34, at 255-62.

The German Draft Penal Code 1962 arts. 81-90 (1966).

40 Penal Code of the German Federal Republic 1871 arts. 42(a)-(1) (1961).

"Tuteur and Venzlaff, Forensic Psychiatry in the United States and West Germany, 14 J.For.Sci. 68, 70-75 (1969).

42 Harder, Forensic Psychiaery in Switzerland, 9 Clev.-Mar. L. Rev. 467 (1960).

43 Biggs, supra note 34, at 260-61.

clinic, a specialized team of psychiatrists, psychologists, and social workers classifies the offender as either responsible, partly responsible, or irresponsible, and, then, if a psychopath, as to type. By means of such classification process, it is believed, the best method of post-acquittal treatment can be determined. The basic format of institutionalization and concurrent enforcement of rights discussed with regards to West Germany applies as well to the Netherlands, although perhaps not with such rigorous review provisions.

In the same article, Biggs takes a quick glance at the nations of Italy and Luxembourg.44 With regards to Italy, he notes that the general standard of determination adopted elsewhere of whether or not an acquitted offender should be institutionalized (i.e., does offender present danger to society) is used here. The viewing of confinement as a security measure, and the periodic review of incarcerated offenders, have also been incorporated into the Italian system. With regards to Luxembourg, Biggs observes that the nation's purpose for having post-acquittal treatment is to rehabilitate rather than punish, and that, to this end, a national governmental committee has been organized to prevent crime, maintain mental health, and promote social welfare.

Consider now the methods of post-acquittal treatment used by the Scandinavian nations. The Norwegian Penal Code provides several safety measures, all of which are theoretically available to a criminally insane individual, some of which involve the standard procedure of committment to an institution, and some of which involve other procedures, such as placing the individual under police supervision or probation, keeping him in custody (of whom is not specified), or placing him in private care.45 Here, as in West Germany, fairly rigorous procedural rules for the incarceration in, and eventual release from, an institution exist. All decisions which affect incarceration are made by the Public Ministry, supplemented by a physician's opinion. Although an individual's discharge cannot take place until the Ministry's position is known, an individual need not wait longer than three months after an announcement of his alleged recovery. Biggs' article supplements the above information by adding an interesting footnote.46 Evidently there has been a number of cases in which, although the physicians have found the individual to be insane, the court has proceeded to find the individual sane, thus totally ignoring the testimony of the psychiatric expert.

O. Kinberg, in an article discussing forensic psychiatry in Sweden, describes post-acquittal treatment as being largely determined by such national organizations as the Forensic Psychiatric Clinic of Stockholm, the Central Archive of Criminology, and the Forensic Psychiatric Commission, all of which supply data and manpower used in determining the optimal post-acquittal treatment of a given offender.47 Despite the availability of such resources, however, the ultimate decision still rests, as in other nations, with the court. The alleged goals of post-acquittal treatment are two-fold: first, to socially rehabilitate the offender; and second, (if the first is not possible) to render the offender harmless. If the offender has a gross disorder, Kinberg suggests, there will be little or no difficulty in having the individual committed to a mental hospital. On the other hand, if the offender, although insane at the time of the act, no longer requires hospitalization, he may be released, and treated as merely an outpatient. Other measures involve the placing of offenders in "security establishments," and the interning of individuals in special mental hospital wards. Kinberg makes one caveat which merits repetition:

"... they (offenders) often lack such symptoms as are considered signs of mental disease by the man in the street. Therefore, it can be very difficult to get the courts or juries to understand that such persons are sick and belong to the domain of medicine. Although a purely medical treatment is not to be had, they ought, being diseased people, not to be placed in prisons under the direction of non-medical staff. For even where medical treatment is reduced to a kind of vague psychotherapy, it should be applied under medical guidance."

Biggs comments upon Swedish practice, and although reaffirming Kinberg's outline of procedure in substance, points to the existence of several problems,

44 Id. at 260-62.

45 Norwegian Penal Code 1902 § 39 (1961).

46 Biggs, supra note 34, at 259.

47 Kinberg, Swedish Organization of Forensic Psychiatry, 44 J. Crim L.C. & P.S. 135 (1953).

48 Id. at 149.

such as the lack of psychiatric manpower, lack of medical sophistication among the general public, and the inability of many psychiatrists to agree on basic diagnoses of mental conditions.49 Biggs also notes that although the court, in rendering a final decision as to the post-acquittal treatment of the offender, usually has before it the report of the official psychiatrist, it rarely has the psychiatrist himself. In concluding, Biggs reiterates Kinberg's view (as stated in a separate article) that the emphasis of post-acquittal handling of an offender should be upon treatment rather than upon punishment, not only because of 'moral' considerations, but also because the avowed goal of all penal measures (moral and educational rehabilitation) can be so better served.50 Biggs, in outlining post-acquittal procedures employed in Denmark, finds many similarities to those employed in Sweden, including the presence of many national institutions providing aid to the courts, such as the Forensic Medicine Council at Copenhagen, and the institution at Herstedvesta for recidivists.51 Four general post-acquittal procedures are employed (the first three of which are applicable if the offender presents a danger to society, and the last of which is applicable if the offender does not): first, committment to a mental hospital; second, committment to an institution for psychopaths; third, committment to an institution for imbeciles; and fourth, the appointment of a guardian or supervisor. In discussing the Herstedvesta institution, Biggs quotes its director as claiming that 55% of the offenders are returned to society without criminal tendencies. This allegedly high cure rate is deemed partially attributable to the lack of physical restraint in the institution, the lack of enforced therapy, and favorable public support. Marring this picture, however, is the fact that, in many cases, castration of sex offenders is deemed the only cure for deviate sexual behavior.

Finally, consider nations in Eastern Europe. The Turkish Criminal Code, besides providing for authority of the court to determine the type of post-acquittal treatment to be employed, and providing the typical criterion for determining when an offender should be released, requires that when an offender is about to be released, the hospital must submit a report to the court, indicating that the offender has recovered, and further indicating whether or not the individual must be subjected to post-release medical control and examination (not necessarily limited to out-patient treatment) which is the responsibility of the prosecuting attorney.52 Should this be required, the frequency of such examinations must be stated, and if, after the offender's release, he again becomes sick, he will once again be placed in the institution. Finally, in describing procedures employed in Yugoslavia, Biggs notes that the principle adopted by legal and medical authorities with regards to post-acquittal treatment is that man's behavior is not fixed, but is capable of being changed as a function of environmental changes.53 Based upon such belief, the goals of post-acquittal treatment are to better the offender and return him to society.

In turning from the nations of Europe to the nations of Asia, consider a few of the definitions of and tests for insanity used by these nations. The Criminal Code Ordinance of Israel requires two conditions precedent in order for a person who has committed a criminal act to be exempted from punishment on the grounds of insanity.54 First, he must have been, at the time of the act, suffering from a mental disease. Second, he must have been, at the time of the act, incapable of comprehending his own actions as a result of this mental disease. Although this test appears to be an exact copy of the American “New Hampshire" rule, it must be remembered that Israeli law is based upon not only American and English law, but also upon Arabic, French, and Turkish law, and hence that the above test will be interpreted and used under the influence of these non-common law bodies of law.

The Korean Criminal Code states that:

"A person who, due to a mental disorder, is unable to pass rational judgments or to control his will, is not punishable." 55

Besides containing a provision for partial reduction of punishment due to mitigating circumstances based upon deficiency of mental capacity, the Korean Code provides the following interesting provision:

"The provisions of the preceding two Sections shall not apply to criminal conduct of a person who, anticipating the risk of committing crime, has intentionally incurred mental disorder." 56

In a preliminary discussion concerning the origins of the above tests, the translator notes two important sources of influence from which the Korean Code has evolved; namely, German law and Anglo-American law.57 He maintains first that the fact that 'incapacity' in Korean law may be either cognitive or volitional stems from the combined influences of German and English law, in that whereas Anglo-American law defines 'insanity' in cognitive terms, Germany has done so in volitional terms. He declares secondly that whereas the existence of mitigating circumstances is unknown in Anglo-American law, it exists in Germany, and has been directly incorporated therefrom into Korean law.

The Preparatory Draft for the Revised Penal Code of Japan presents another interesting test for the exemption from punishment of an allegedly insane criminal; i.e. :

"Acts committed by a person who, as a result of mental disorder, lacks capacity to discriminate as to the propriety of his conduct or to act according to such discrimination are not punishable." 58

The Draft also provides for mitigating circumstances, and for the above described self-induced insanity.59

M. J. Gamboa, in An Introduction to Philippine Law, maintains that there are three requisite elements of a crime: there must be an act or omission, the act or omission must be voluntary, and the act or omission must be punishable by law.60 In order for the act or omission to be voluntary, there must exist freedom of will, intelligence, and intent to commit the criminal act. According to Philippine law, there can be no freedom of will if an individual was seized by an irresistible impulse, and no intelligence if the offender was insane at the time of the act.61 Reduction of punishment due to mitigating circumstances based upon partial presence of the three 'voluntary' requirements is also possible.

Finally, the Criminal Code of the Russian Soviet Federated Socialist Republic provides a test which is fairly representative of some other Republics, and at the same time serves as a model code for others:

"A person shall not be subject to criminal responsibility who at the time of committing a socially dangerous act is in a state of non-imputability, that is, cannot realize the significance of his actions or control them because of chronic mental illness, temporary mental derangement, mental deficiency, or other condition of illness." 62

Furthermore,

". . . a person shall not be subject to punishment who commits a crime while in a state of imputability but before rendering of judgment by the Court contracts a mental illness which deprives him of the possibility of realizing the significance of his actions or of controlling them . . . but, upon recovery, he may be subject to punishment." 63

Consider now the post-acquittal treatment of a criminally insane individual in the various Asian nations. The Preparatory Draft for the Revised Penal Code of Japan states that whether or not an individual acquitted by reason of insanity will be subjected to "curative measures" depends upon first, the predicted probability of the reoccurence of the criminal behavior on the part of the offender; and second, the extent to which these measures are demanded by interests of public safety.64 The curative measures almost always involve com

56 Id. at art. 10(2) & (3).

57 Ryu, Psychiatry and Criminal Law, in THE KOREAN CRIMINAL CODE 26-29 (G. Mueller ed. 1960).

58 A Preparatory Draft for the Revised Penal Code of Japan 1961 art. 15(1) (1964). 50 Id. at arts. 15 (2) & 16.

60 M. Gamboa, an Introduction to Philippine Law 403-04 (7th ed. 1969).

61 Id. at 404 nn.18 & 19.

62 The Criminal Code of the R.S.F.S.R. 1960 art. 11 (1966).

63 Id.

A Preparatory Draft for the Revised Penal Code of Japan 1961 arts. 109-14 (1964), (1964).