mitment to a security institution, the duration of which is initially five years, with the possibility of an unlimited number of three-year extensions. The statute provides, however, that there be a minimum of one review every year to ascertain whether or not the curative measures should continue. Finally, the Draft provides for a provisional release from the institution, brought about by administrative action. Because the release is provisional, however, the released offender is placed under professional supervision, and always faces the possibility of reincarceration.

The Criminal Code of the Republic of China labels its laws concerning postacquittal treatment as "Peace Preservation Measures." 65 An individual exempted from punishment due to insanity may be incarcerated in a mental institution for an apparently unspecified period of time. There is the customary provision relating to the possible release of the offender at an early date if it is satisfactorily shown that he has recovered, as well as a provision for lengthening the stay, if deemed necessary. There does not appear to be, however, any provision for periodic review of the offender's condition, or for fixed time limits for periods of incarceration, as exist in Japan.

Finally, consider the post-acquittal treatment of an individual in the U.S.S.R. The Criminal Code of the Russian Soviet Federated Socialist Republic states that, in general, an offender may be committed to either a general psychiatric hospital or to a special psychiatric hospital.66 Committment to a general psychiatric hospital will take place if the individual, by his behavior, shows a need for compulsory hospitalization and treatment. Committment to a special psychiatric hospital will occur, on the other hand, if the individual, again by his behavior, presents a special threat to public safety. The Code notes that:

"Persons committed to a special psychiatric hospital shall be kept in conditions of a reinforced supervision that excludes the possibility of their commission of a new socially dangerous act.” 67

In choosing the proper type of hospital for the offender, the court considers such factors as the type of mental illness involved, and the weight of the social danger posed by the given act. The court is given broad powers to terminate the incarceration, to alter the type of hospital being used, and even to remand the individual to the care of relatives or guardians.

Hazard, Shapiro, and Maggs supplement the above description of treatment by stating that if the offender who has been incarcerated might be sane, the hospital is obliged to appoint a commission of physicians, and to transmit its findings to the proper court.68 Furthermore, every offender undergoing compulsory psychiatric treatment must have his case reviewed by such a commission no less than every six months. The judicial decision, Case of Illiodorova, is illustrative of these last points.69 An individual who was found to be "non-imputable" was subjected to compulsory psychiatric treatment. The hospital, seeking to have her released, appointed a medical commission and submitted its report to the Court. The Moscow Provincial Court, on the basis of this report, discharged the offender from the hospital. The Judicial Division vacated the judgment of the lower Court, holding that the reports presented thereto had been incomplete, and that such reports were to be based upon a complete examination of the individual.

H. J. Berman provides some thoughtful comments concerning the underlying attitudes which have shaped the statutory methods of treatment.70 According to Soviet theory, the law, by maintaining social order, maintains the mental health of the community, by giving order to interpersonal relations, by providing constructive vents for destructive impulses, and by giving to individuals a sense of community with each other. Berman's caveat bears repetition:

"Whether law adequately fulfills these (psychological) functions depends upon whether certain assumptions about human personality, implicit in law, are in fact valid." 71 72

"The Criminal Code 1935 arts. 86-99 (Rep. of China 1961).

The Criminal Code of the R.S.F.S.R. 1960 arts. 58-61 (1966).

67 Id. at art. 59.

"J. Hazard, I. Shapiro, and P. Maggs. The Soviet Legal System 150 (1969).

2 Bull. Verkh. Suda R.S.F.S.R. 10 (Sup. Ct. R.S.F.S.R. 1968).

70 Berman, Law as an Instrument of Mental Health in the United States and Soviet Russia, 109 U. Penn. L. Rev. 361 (1961).

"Id. at 364.

Unfortunately, Berman never heeds his own warning, but contents himself with determining the extent to which psychological assumptions agree with legal assumption

Berman goes on to point out that, more importantly, the Soviet Union's criminal law is considered a tool with which to shape the behavior of the people into the image of the "new Soviet man." Although criminal law is obviously concerned with the adjudication of legal rights, it is no less concerned with the shaping of ideas and attitudes of the offender and the general public. This ‘educational' goal of criminal law, and especially of post-acquittal treatment, is reinforced by the prevailing belief that the behavior of people may be altered by the alteration of their environment.73 74 Since the goal of treatment is to change the offender's behavior, and since it is at least theoretically possible for anyone to properly change the behavior by changing the environment, one might imagine that post-acquittal treatment would not be limited to whatever treatment could be given by a physician, but rather could be performed by anyone capable of properly altering the environment. Indeed, this has been codified, as earlier seen, with regards to the various options possessed by a court.75

Writing a few years later, Berman again stressed the utilitarian approach taken by Soviet criminal law.76 Today's purpose of criminal law in general, and of post-acquittal treatment in specific, is to foster external and self-discipline for and within the individual, rather than to 'do' justice in an abstract sense. Berman goes on to evaluate the post-acquittal treatment of the individual. He contends that various institutions in the Soviet Union, the most important of which is the Serbskii Institute of Forensic Psychiatry, help to convert the above described goals of treatment into sensible, result-oriented methods. He further notes that the court, in determining the appropriate post-acquittal treatment to be employed, is typically more concerned with the social danger presented by the offender, than it is with the specific rehabilitation of the of fender; i.e., it is more concerned with maintaining an individual's group productivity, and with reeducating him for his proper role in society, than with promoting an individual's personal welfare.

Turning now to South America, it becomes apparent that most of the nations therein have codified their definitions of and tests for insanity after the fashion of many of the European nations earlier mentioned. For example, the Argentine Penal Code exempts from punishment:

"Anybody who at the time of commission of the crime could not appreciate the unlawfulness of the deed or control his actions, by reason of insufficiency or diseased disturbances of his mind, . . ." 77

The only quasi-definition appearing in the Colombian Penal Code, on the other hand, is that any individual who experienced a mental "alienation at the time of the act will be punished according to certain specified provisions." 78 The Code does provide, however, for the reduction of punishment if an individual displays "Conditions of psychical inferiority. . . ." 79

With regards to South American provisions for post-acquittal treatment, the measures once again seem to be almost identical to those of some of the European nations. The Argentine Penal Code requires that any individual acquitted as insane must be incarcerated in an insane asylum.80 The offender can only be released by a court decision, which in turn will be based upon advice from the public prosecutor and a panel of medical experts, testifying as to the offender's recovery or lack thereof.

According to the Colombian Penal Code, the predominant post-acquittal treatment is also commitment to a psychiatric institution which, at least statutorily, is in the total charge of psychiatrists, and is completely independent of any analogous institution for the non-criminally insane.81 Once committed, the offender must remain there for two years or until such time as he will be adjudicated sane, presumably whichever comes first. In any event, the offender

73 What is interesting is that these beliefs, emphasizing the ability of and need for the State to change an individual's behavior to fit a desired norm, coexist with the belief that a person is responsible for his own character and behavior.

74 To the extent that this belief is maintained by Soviet psychologists and psychiatrists, one might conclude that, in fact, a behavioral rather than medical model of abnormality has been adopted. Yet such a conclusion does not seem justified when viewed in the light of the statutory provisions for insanity as a defense to crime.

75 The Criminal Code of the R.S.F.S.R. 1960 art. 60 (1966).

76 H.J. Berman, Justice in the U.S.S.R. 312-29 (1963).

"The Argentine Penal Code 1960 art. 34(1) (1963). 78 The Colombian Penal Code 1936 art. 29 (1967).

79 Id. at art. 38(12).

80 The Argentine Penal Code 1960 art. 34(1) (1963).
S1 The Colombian Penal Code 1936 arts. 61-74 (1967).

cannot be released without a court order which, in turn, will only be issued after a hearing at the office of the Attorney General. Another method of postacquittal treatment used in Colombia is labelled "supervised liberty." This method involves the placing of the offender in the care of a family, nursing home, hospital, or ordinary insane asylum for a minimum period of two years. Throughout this period, they are subjected to the constant supervision of a guardianship council.

Finally, in considering the nations of Africa with regard to their laws concerning the defense of criminal insanity, it is useful to make reference to A. Milner's collection of scholarly articles on the subject. With regards to definitions of and tests for insanity, Milner and Asuni point out that a large number of African nations has adopted the M'Naghten rules, and that these countries may be usefully classified as to whether they have adopted the M'Naghten rules untouched or nearly so, or whether they have made one of three possible modifications thereto.82 The first modification involves the elimination of the rule that in order for a defense of insanity to be valid, the offender must be able to appreciate the general wrongfulness of the action, and substitutes the rule that in order for the defense to be valid, the offender must be able to appreciate the unlawfulness of the action. The second modification is actually an additional ground for exemption from punishment; i.e., where the mental state of the offender indicates that there would be little or no utility in punishing him. The third and final modification is a further addition; that is, the addition of the irresistible impulse doctrine earlier described. According to the authors, at least eight nations have adopted the M'Naghten rules in a more or less untouched fashion, while eleven countries have incorporated them into their statutes. Many eastern and central African courts have adopted the first modification, Ghana has adopted the second, and Nigeria and the Sudan have adopted the third (with South Africa and certain other southern African countries recognizing the doctrine, without formally adopting it). Consider now the methods used by several African nations with regards to post-acquittal treatment. The Penal Code of the Congo Democratic Republic, requiring that an offender who constitutes a danger to himself or to others be ordered into detention, emphasizes the protective function of penal sanction, rather than the rehabilitative function.83 The Ethiopian Penal Code, based upon the Swiss Penal Code, provides that if the offender is not dangerous, he may merely be instructed to undergo outpatient treatment.84 Should confinement be required, however, the period thereof is not limited, although the case must be reviewed once every two years. Upon eventual release of the offender from the mental institution, he is then sent to a charitable institution for a minimum of one year. Tanzania, like other nations, finding itself lacking physical post-acquittal treatment facilities, has established an institution for the criminally mentally ill, but has been forced to indiscriminately house therein offenders who became mentally ill during prison, offenders who were charged with a crime but could not be tried due to their mental illness, as well as offenders tried and acquitted due to their mental illness at the time of the crime.85 Finally, Portuguese Africa, in emphasizing the importance of rehabilitating the offender, permits its courts to impose penal sanctions based upon a consideration of the so-called "cultural pressure," to which the offender has been subjected.86 To this end, no hard-and-fast rule exists as to exactly who should be incarcerated in a mental institution, and for how long a period.

Milner and Asuni, in evaluating the success of procedures related to the insanity defense employed throughout Africa, stress that the lack of rapid progress in developing definitions of and tests for insanity, as well as modern, result-oriented post-acquittal treatment procedures, may be related to the general lack of development of psychiatry in Africa, which in turn may result from a combination of factors, among which are the limited number of psychiatrists (some nations have none) and physical facilities, travel and language difficul

$2 Milner and Asuni, Psychiatry and the Criminal Offender in Africa, in African Penal Systems 330-35 (A. Milner ed. 1969).

Rubbens, The Congo Democratic Republic, in African Penal Systems 20 (A. Milner ed. 1969). Lowenstein, Ethiopia, African Penal Systems 46 (A. Milner ed. 1969).

Read, Kenya, Tanzania, and Uganda, in African Penal Systems 145 (A. Milner ed. 1969).

Gouveia Da Veiga, Portuguese Africa, in African Penal Systems 215 (A. Milner ed.

ties, and superstition and ignorance." Perhaps an even greater block to the rapid development of meaningful law in this field is that one continent is attempting to utilize a set of laws specifically designed for another continent, having different resources and manpower, social problems, and cultural norms. Although they do not suggest a return to primitive methods of handling these problems, the authors do believe that, "A principal danger comes from mistaking the culturally defined norms of behavior in Western culture to be ideal standards." 88 They imply that the thrust of African progress in this field should be directed towards altering the adopted laws to fit the specific needs and cultural norms of Africa, not of Europe. Such progress should involve a remodeling and clarification of many of the definitions of and tests for insanity adopted from other nations, a program to educate judges with regards to forensic medicine (at least, until more psychiatrists become available) and an adjustment of the present correctional facilities to fit the needs of the local African community.

From the above description of the definitions of and tests for insanity, and the post-acquittal treatment of offenders, can any general similarities or differences be discerned among the laws of these nations? Consider first the various definitions of and tests for insanity. One of the most obvious, yet most significant, similarities among the nations considered is that they all provide for insanity at the time of the act, no matter how defined, as a ground for exemption from criminal punishment. This is no small point. Its significance lies in the fact that the law-makers of every nation believe that there is such a thing as mental illness, and that it is possible, through the formulation of definitions and tests, to establish criteria by which to discriminate between normal, punishable people and abnormal, ‘immune' people; in short, that the medical model of abnormality is the model to be preferred (at least insofar as criminal law is concerned). Of course, the various nations, in their penal codes, do not talk in terms of adopting one theory to the exclusion of another; they accept the existence of mental illness as a fact. As was discussed earlier, however, mental illness is merely a hypothetical construct whose existence was postulated in accordance with a particular theory of abnormal behavior, not quite the same thing as an empirically and scientifically demonstrable phenomenon.

Another similarity among most of the nations discussed is the existence of provisions for a reduction of punishment, if the characteristics of a person which, if fully present, would justify a complete acquittal, are partially present. This practice is in complete opposition to that in the United States, where insanity at the time of the act, if proven, is a complete defense, and always exempts an offender from punishment, independent of the amount or degree of insanity.s

89

Next, the differences which do exist among the various definitions, although they may be many in terminology, are more apparent than real. Although a penal code may discuss the defense in such varied terms as 'insanity,' 'mental disease,' 'inability to reason,' or 'loss of will,' all of the terms refer to the same phenomenon; namely, the mental condition of the offender which is such so as to render him unable to manifest the required criminal intent.

Finally, although all of the definitions and tests purport to cite medical phenomena and conditions as prerequisites to the legal exemption, many nations (Japan, for example) actually include social phenomena and conditions as prerequisites thereto ('property of conduct,' for example).

Consider now the various methods of post-acquittal treatment of offenders. Independent of the exact wording of the statutes, the methods of treatment display many similarities. First, the actual goal of nearly all such methods, whether or not openly expressed, is (at least in the opinion of the author) the retraining and reeducation of the offender for society's benefit, with the eventual reinstitution of the offender in the community from which he was taken." Second, because of the belief in mental illness, and hence in the belief that medical techniques can cure it, nearly all nations provide for the commitment of an offender to a mental institution until a certain amount of time has

87 Milner and Asuni, supra note 82, at 319.

88 Id. at 321 n.10.

89 People v. Wells, 33 Cal.2d 220, 202 P.2d 53 (1949).

Do A probable justification for this assumption will be found several pages hence in the discussion of the behavioral model's approach to such post-acquittal measures.

elapsed, or until the offender has recovered from the illness (i.e., is deemed capable of resuming his place in society). At the same time, however, most of these nations provide that judges and juries of the court, not medical experts, are the final arbiters as to whether or not an individual should be committed (although they will partially rely upon the judgment of the psychiatric experts).91 In addition, nearly every nation provides some specific method of review of a case to determine if and when the offender is ready to be released. Finally, almost all nations have a few procedures, besides committment, with their courts may employ, should they deem the first method unsuitable; these methods include outpatient treatment and protective custody. There usually is an additional group of remedies which, although theoretically available to the courts, is rarely used (perhaps unfortunately so) when dealing with insane offenders. Included in this latter group are such special procedures as commitment to work camps and vocational therapy.

Although most of the nations examined followed the above-stated paradigm of post-acquittal treatment, there are also several important differences among their methods. First, although the actual goal of these methods is the readaptation of an individual to a norm sought by the nation, nations vary in their candor as to admitting this. Some nations, most notably the United States and those in Europe, discuss their alleged goals in terms of preventing the offender from presenting a danger to himself or others, curing the mental disease and restoring the offender's mental health, or caring for the individual. Certain Asian and Eurasian nations, on the other hand, most notably the Soviet Union, first recognize that, in reality, post-acquittal treatment of an individual is designed to render him more compatible with his social peers, more useful to society at large, and less likely to again disrupt the social order.92 Having recognized this goal as the one actually sought (independent of any other labels given to it by the policy and law-makers) the Russian penologists give their approval to this goal, and actively seek new methods by which to further it (this approach was discussed earlier with regards to Berman's articles).93 Far from feeling a need to justify the incarceration of an acquitted offender on grounds pertaining to his well-being, the Soviet Union recognizes and advocates justification thereof on grounds which (at least in the opinion of the author) are deemed to be the actual ones; namely, grounds pertaining to society's well-being and best interests.

There are various other differences among the nations with regards to post-acquittal treatment that are worthy of note. For example, few African na. tions have developed the variety or detail of procedures that the European nations have. This may be accounted for, at least partially, by the unavilability of psychiatric personnel and facilities. Next, although all nations provide methods for determining if and when an offender should be released, they vary greatly as to the procedural safeguards designed to protect the personal rights of the offender. Whereas nations such as Norway, Japan, and the Soviet Union have formulated precise and equitable methods of periodic review of an offender who has been committed to a mental institution, other nations such as the Republic of China and Portuguese Africa (as well as certain other African nations) do not have such strict protection for the incarcerated offender. Nations also differ as to the source of their safeguards. Whereas in the United States and other common law jurisdictions the offender has a constitutionally guaranteed right to review (e.g., writ of habeas corpus), other nations afford their protection in a statutory fashion. Whether or not this makes a great deal of difference in practice, however, is doubtful. A final difference among nations which affects post-acquittal treatment is the presence or absence of national

"In many of these nations, this procedures seems to be required by the fact that there are generally more judges available for such duties than there are psychiatrists.

This is not to say that European nations totally outwardly ignore the goal of rehabilitation in terms of society's demands, or that the latter mentioned nations outwardly Ignore the individual's status; the difference is one more of degree and emphasis than of kind. Furthermore, it may be more precise to say that those nations which have a socialized form of government and society, independent of their geographical location, will be more likely to express candor as to the actual goal of post-acquittal procedures, since an axiom of the society will be that the resources of the people and the goals of the government will be directed towards the State rather than the individual. Viewed in this light, Sweden's candor on this subject is more understandable since, although it is a European nation, it is a socialized state.

" Berman, supra notes 70 & 76.