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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 mtandards."** 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.**

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 phe nomena and conditions as prerequisites to the legal exemption, many nations (Japan, for example) actually include social phenomena and conditions as pre requisites 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 & muner and Asunt, supro note se, at 319. 14. at 321 n. 10.

People r. Welle, 38 al 2 220. 202 P 28 53 (1949). * A probable justification for this assumption will be found several pages hence in the siiscussion 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 rec nizes 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 nations 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.

2 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.

institutions which, besides performing research in the field of forensic medi. cine and seeking new methods of treatment, lend an air of uniformity and standardization to what otherwise might be the indiscriminate determination of suitable post-acquittal treatment, varying from court to court. Nations benefitting from the existence of such national institutions include Switzerland, Sweden, Luxembourg, and the Soviet Union.

It has been noted that all of the rules, laws, and procedures concerning insanity as a defense to crime are predicated upon the assumption that there is such a phenomenon as mental illness, or at least that there is utility in talking in such terms. It follows logically that if it is shown that there is no such phenomenon as mental illness, or at least that there is no utility in so postulating, these rules, laws, and procedures would be irrelevant, and demand rejection or substantial revision.

It was earlier pointed out that psychologists and psychiatrists who subscribe to the medical model of abnormality maintain that mental illness is an illness like any othr illness, and hence postulate the former by reasoning by analogy. Consider the validity of such reasoning, by considering the extent to which mental illness is analogous to other physical illnesses.94 First, a physical illness is directly observable, either by means of a person's physical senses, or by means of sensitive instruments which monitor a person's physical condition. On the other hand, mental illness is not directly observable; the only phenomenon which is directly observable is a person's behavior. The existence of the illness is inferred from the existence of the so-called 'symptoms. Second, a person's physical illness is modifiable by manipulation of his internal structure (e.g., surgery), but not by manipulation of his environment (e.g., home life). Mental illness, however, cannot be cured by manipulation of a person's internal structure since, as already seen, the behavior is the only observable, measurable, and hence treatable aspect of the illness. Finally, although the characteristics of a physical illness are generally the same throughout the world, the characteristics of mental illness, and physicians' response thereto, vary from nation to nation.

From this comparison it seems clear that the analogy postulated by psycholngists and psychiatrists between physical illness and mental illness, at least with respect to the variables here discussed, is not totally valid. If the analogy is not valid, it would seem reasonable to question the existence of (or the utility of the concept of) mental illness. Furthermore, the comparison seems to suggest that in dealing with abnormality, it might be more useful to deal di. rectly with behavior as the 'abnormality' itself, rather than as the symptom of some underlying and unmeasurable illness, since it is only behavior which is capable of empirical observation and manipulation.95

An important question remains, however. If all of the abnormal behavior which has hitherto been deemed symptomatic of mental illness is no longer to be so treated, in what light should abnormal behavior be viewed? After all, the elimination of a postulated cause of an observable phenomenon does not eliminate the phenomenon itself. In discussing the behavioral model of abnormality, it was seen that no qualitative difference is perceived as existing between normal and abnormal behavior, since all behavior is learned. Thus, the most that could be said about abnormal behavior is that it is maladaptive, socially undesirable, unpleasant, out of place, and so forth. It is again extremely important to notice that whereas the medical model discussed such behavior in terms of sickness, which implies the existence of some absolute and objective criteria for so judging, the behavioral model discussed the same behavior in terms of desirability, which implies the presence of only relative and subjective criteria for so judging: 96 A slightly different approach is taken by Dr. Thomas Szasz, one of the most controversial writers in this field. He classifies abnormal behavior as constituting "problems in living,” rather than mental illness symptoms.97 Whatever the abnormal behavior is called, what is significant is that it is only abnormal in the sense that someone doesn't like it, not in the sense that it is symptomatic of sickness.

94 T. Szasz, Ideology and Insanity (1970),

95 This conclusion, of course, is based upon the assumption that the treatment of abnormality should be handled in an empirical rather than theoretical or intuitive fashion. This assumption seems well-founded, however, when it is considered that psychology and medicine are both avowedly empirical sciences.

les The philosphical consequences of such an approach are enormous. Such a theory denies the existence of absolutes such as right and wrong or good and evil, and postulates that all such labels are merely expressions of a person's opinion as to something, which in turn will carry much less weight in any logical argument; i.e., it is more forceful to say, "You are wrong (in an absolute sense)," than it is to say, "I dislike what you are doing."

Taking this line of reasoning one step further, if mental illness doesn't exist, for what reasons are offenders, who have been acquitted from criminal liability, committed to mental institutions for many years? According to Dr. Szasz, such people are committed because, due to their maladaptive behavior, they have so annoyed or endangered society that they must be removed therefrom until they have learned the skills deemed appropriate by the law-makers and policy-makers of the society. If and when they can demonstrate that they have acquired the appropriate skills, they are readmitted to society. What Dr. Szasz objects to is that by considering undesirable behavior to be sickness, society enslaves its members, since in order for an individual to remain 'healthy,' he must do what society demands of him. Thus a given social ideology, in the guise of mental health, can gradually eradicate individuality.98

In the light of the previous discussion, consider again some of the laws and procedures relating to the insanity defense. First, consider generally the definitions of and tests for insanity. As noted earlier, many nations attempt to define a legal exemption from punishment on allegedly medical grounds in terms of social standards, clearly unsound reasoning. Yet even those nations which define their tests in purportedly terms would be hard put to show that such terms as 'ability to reason' constitute objective and absolute criteria, rather than subjective and relative criteria. Such an observation strongly points out the fallacy of assuming that mental illness is an illness like any other illness.

Second, consider the directly quoted statement made by Kinberg; it suggests a dilemma in which medical model supporters often find themselves.99 Rather than observe phenomena and collect data, and then develop a theory to account for such observations, these supporters first postulate the existence of mental illness, and then look to the environment to find support for their empirically unjustified postulate. In the event that they find no such evidence, they are required to force theoretical labels upon phenomena which (as the quotation points out) might otherwise not be so labelled. What is amazing is that these supporters will then adduce these phenomena as hard-core data to support the existence of mental illness! Consider also Sweden's goal of post-acquittal treatment.100 How can the ‘rendering harmless' of an individual be justified by any rationale other than that society considers the offender an undesirable. Surely Sweden does not have the same goal for those of its citizens who have physical illnesses but can't be cured!

Another provision to note in the light of the previous discussion is that found in the Korean Code, which recognizes the existence of self-induced mental illness. 101 Such a recognition seems to indicate an attempt to maintain, on one hand, the belief that mental illness is an illness and, on the other hand, to recognize the incompatible fact that people may rapidly change their behavior as a function or rapidly altered circumstances (the two concepts are incompatible since one of the characteristics of a physical illness is that it generally cannot be self-induced ((e.g., one cannot wish oneself into having cancer )) ). Such a provision displays the extent to which the classical theorists will go to make their preconceived concept of mental illness coincide with observable behavior. Does not such a paradoxical concept as ‘self-induced mental illness' suggest that a more parsimonious approach to behavior would be to abandon the concept of mental illness?

Finally, the earlier-made assumption that the actual goal of all post-acquittal treatment is the retraining of the offender for the benefit of society may be deemed justified in the light of the previous discussion.i

From these few examples, and from additional inspection of the law in view of the earlier discussion, it can be seen that the criminal defense of insanity,

102

97 T. Szasz, supra note 94, at 21. * Id. at 111-12. » Kinberg, supra note 47, at 149. 100 Id. at 148. 101 The Korean Criminal Code 1953 art. 10 (3) (1960).

supra, note 90.

57-868 - 72 - pt, 3-C-22

103

based upon the medical model of abnormality, which is based in turn upon the belief in the existence of mental illness, suffers from various contradictions, faulty logic, and unnecessarily complicated and circuitous explanations. What, then, should be done with the present insanity defense? This question may be further subdivided into two additional questions: first, should there be any insanity defense, and hence compulsory post-acquittal treatment; second, if the first question is answered affirmatively, what would be the best post-acquittal procedures to use?

It is at this point that Dr. Szasz and certain behavioral psychologists, although previously united in opposition to the medical model approach, part company. Dr. Szasz believes that the insanity plea should be abolished, and along with it, all compulsory post-acquittal treatment." 104 Behavioral psy. chologists such as Leonard Krasner, on the other hand, do not pass judgment on the first issue, but merely imply that if such post-acquittal treatment of an offender is to be done, it would be better to proceed according to the principles of behavior modification (i.e., that behavior is modifiable by altering the environmental contingencies of a given response) than according to the medical model method (i.e., that mental illness is cured by treating the underlying personality disturbances). 105 106

It is the opinion of the author that, at least in the immediate future, the most practical goals are: first, to openly admit the existing goals of post-acquittal treatment; second, to adopt more and more the principles of behavior modification in whatever post-acquittal treatment is deemed necessary; and third, to critically evaluate the concept of mental illness, and its ability to justify compulsory incarceration of criminal offenders whose behavior is merely disliked.107 The long-range goal, however, should be the abolition of the insanity defense and compulsory post-acquittal treatment. By so doing there will be no artificial discrimination between mentally healthy and sick criminal offenders in terms of punishment, and, although more people will obviously be subjected to normal penal sanctions, society will be required to recognize these penal sanctions (obviously designed to rehabilitate the offender in terms of society's objectives) for what they are, and will no longer be permitted to justify the application of these sanctions on the ground of restoration of an offender's mental health. The alternative is to continue to justify the imposition of punishment upon offenders on medical grounds, to equate conformity with normality and health, and to believe the statement which George Orwell's not. too-fictional character O'Brien makes: “You must humble yourself before you can become sane."108

2. Commits murder for the purpose of commiting, preparing, or making easier the commission of a misdemeanor, or to help a criminal or his accessory to escape.

In other circumstances, murder shall be sentenced to life at hard labor. 16. On para-military activities, Article 126 states :

103 T. Szasz, supra note 98.

104 It should be realized that what Dr. Szasz dislikes about the insanity defense and post-acquittal treatment is not that it involves the imposition of value judgments upon individuals per se (all laws do that) but rather that it does so under the guise of a seemingly universally attractive goal (to cure patients of mental disease), and hence may be receiving support from society from people who otherwise might not so give.

105 L.P. Ullmann and L. Krasner. supra note 1.

106 This parting of ways is more readily understandable when it is realized that the aspect of the medical model which Szasz criticizes is its desire to discriminate between normal and abnormal individuals in terms of society's treatment thereof, whereas the aspect most often criticized by other behavioral psychologists is the method of treatment which the medical model supporters use.

107 With regards to the first goal, certain socialist nations, as seen, have made great advances. Concerning the second goal, certain steps have been taken by behavioral psy. chologists in setting up token economies ; i.e., scientifically controlled environments in which a person is rewarded with tokens to the extent that he responds as desired-he may then use these tokens to acquire whatever he wishes. Furthermore, most nations, as earlier seen, have methods of post-acquittal treatment, other than confinement to a mental hospital, which are already available ; some of these environments may be more conducive to behavior modification than are those presently being used. Interestingly enough, the orientation of Yugoslavia, with respect to its emphasis upon the environ. mental changing of the offender, may provide another receptive climate for such ad

198 G. Orwell, 1984, at 190 (1958).

vances.

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